GERMANY Law and Practice Contributed by: Christian Strasser, Thomas Wambach and Yannick Greimann, HEUKING
3.2 Variations in Approach to Enforcement of Foreign Judgments There is no special approach to particular types of foreign judgments. However, as with domestic titles, only performance judgments can be enforced in Ger - many. As described under 2.6 Unenforceable Domes- tic Judgments , there is no enforcement procedure for declaratory judgments in Germany, and the same applies to such foreign titles. 3.3 Categories of Foreign Judgments Not Enforced As described in 3.1 Legal Issues Concerning Enforce- ment of Foreign Judgments , judgments from states that have not concluded an international treaty on the recognition of foreign judgments with the Federal Republic of Germany or for which reciprocity is not established cannot be enforced in Germany. Furthermore, judgments that violate Section 328 of the ZPO are not recognised. Contrary to the wording of Section 328 of the ZPO, not only “judgments” are eligible for recognition, but also foreign decisions like court orders, provided that they are final decisions on a subject matter of a civil dispute according to German law (cf Section 13 of the Judicial Systems Act ( Gerichtsverfassungsgesetz )). However, judgments in court or other decisions that relate exclusively to procedural issues are not eligible for recognition under Section 328 of the ZPO. Decisions issued in the context of interim relief only in ex parte proceedings (temporary injunction, arrest, freezing order, etc) are generally not recognised either. This also applies to reserved judgments due to their provisional nature. 3.4 Process of Enforcing Foreign Judgments Judgments from EU states accompanying a certificate issued in the country of origin can be enforced in Ger - many like a German title. The only special requirement is that in addition to the judgment to be enforced, the certificate must be provided to the debtor before or at the same time as the first enforcement measure was initiated.
UK joined the Hague Convention on Choice of Court Agreements (2005) in January 2021. Anyhow, there are still uncertainties as regards enforcing UK judg - ments. According to a best practice approach, these judgments are to be enforced by following the (bilat - eral) Convention for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters of 14 July 1960. The German Law on Execu - tion of the Convention foresees a simplified procedure similar to the enforcement of arbitral awards. Titles from All Other Countries Titles from states other than EU and Lugano states cannot be enforced in Germany without further for - mal court proceedings. Enforcement of such titles is subject to a mandatory declaration of enforceability by judgment in a procedure under Sections 722 and 732 of the ZPO. Such proceedings only take place if an international treaty between Germany and the third country secures the reciprocity (of the recognition of judicial titles) or if at least this reciprocity is established. If no such agreement exists, the foreign title cannot be enforced in Germany by any means (countries that titles cannot be enforced from for this reason are even unexpect - ed “candidates” like Liechtenstein, Abu Dhabi, South Africa, Uganda, etc). The scope of review in the proceedings is determined by Section 328 of the ZPO. While no review of the foreign title on the merits is conducted within this recognition procedure, both the procedural standard in the original proceeding and the conformity of the decision with the German ordre public are assessed. Enforcement of such a title can be immensely time- consuming due to the potentially extensive duration of the proceedings. If this judicial procedure is complete, enforcement takes place based on the judgment of the German court. Therefore, the foreign judgment is technically not enforced as it has been converted to a German judgment.
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