Definition: Foreign Judgment
A foreign judgment refers to a judicial decision issued by a court of a state outside the Federal Republic of Germany. In international legal relations, the foreign judgment is becoming increasingly significant, particularly in connection with international contractual relations, cross-border disputes, and matters of family, civil, and commercial law. The recognition and enforcement of such judgments in Germany and vice versa are governed by complex national and supranational regulations.
Legal Basis
Principle of National Sovereignty
In principle, each country is autonomous in deciding whether and under what conditions it recognizes a foreign judgment or enforces it within its own territory. Without an express contractual or statutory basis, there is neither a right to recognition nor enforcement of a foreign judgment.
International Treaties and European Law
The legal treatment of foreign judgments is primarily based on intergovernmental agreements and European legal instruments:
- European Union: Within the EU, the recognition and enforcement of civil and commercial judgments is governed in particular by the Brussels Ia Regulation (Regulation (EU) No. 1215/2012).
- Conventions and Bilateral Agreements: The Hague Convention and numerous bilateral agreements govern recognition and enforcement outside the EU area.
- Domestic National Law: Insofar as no conventions apply, the provisions of German law apply to foreign judgments, in particular §§ 328 et seq. ZPO (German Code of Civil Procedure).
Requirements for Recognition and Enforcement
Recognition
The recognition of a foreign judgment refers to its legal binding effect in Germany. A recognized judgment has the same legal effect as a domestic judgment. The key requirements are:
- Legality of foreign jurisdiction: The court of the country of origin must have had jurisdiction according to internationally recognized principles.
- Reciprocity: In some fields of law, it is required that the foreign court also recognizes German judgments (requirement of reciprocity).
- Proper proceedings and right to be heard: The foreign judgment must not have been issued in violation of fundamental procedural principles; in particular, the right to be heard must have been granted.
- Consistency with German public policy (ordre public): A foreign judgment will not be recognized if it is manifestly contrary to the essential principles of German law.
Enforcement
For the compulsory enforcement of a foreign title in Germany, an enforcement procedure is additionally required. In this context, among others, §§ 722, 723 ZPO apply. The requirements are mostly identical to those for recognition, but enforcement also requires a judicial declaration of enforceability (exequatur procedure), unless European law provides for automatic enforceability.
Different Areas: Civil Law, Family Law, and Criminal Law
Civil and Commercial Matters
Foreign judgments are most commonly found in civil and commercial law (debt claims, damages, contracts). Here, European and numerous multilateral regulations provide for extensive recognition and simplified enforcement.
Family Law
Special provisions apply in international family law, such as in matters of divorce, maintenance, and child custody. Here, not only the Brussels IIa and IIb Regulations of the EU are relevant, but also the Hague Child Protection Convention and other international agreements.
Criminal Law
In criminal law, there is no proper recognition or enforcement in the civil law sense. However, foreign criminal judgments may have legal effects under the International Convention on Penal Law or bilateral agreements, for example in crediting periods of imprisonment.
Review procedures and legal remedies
Exequatur Procedure
In non-European contexts, a special procedure is regularly required in which the foreign judgment is reviewed by a German regional court for the prerequisites for recognition and enforcement (exequatur).
Remedies
Various legal remedies are available to the parties against the decision on recognition or enforcement of a foreign judgment, such as an immediate complaint or, in the case of a European Enforcement Order, the remedy under Art. 43 Brussels I Regulation.
Special Problem Areas
Public Policy (ordre public)
The “ordre public clause” constitutes the most important point of entry for denying recognition: judgments that violate fundamental principles of German law (e.g. freedom of expression, protection of human dignity, prohibition of discrimination) will not be recognized.
Prohibition of double judgments and res judicata
A foreign judgment will not be recognized if a German judgment has already been issued between the same parties in the same matter (prohibition of double judgments). Lack of res judicata of the foreign judgment may also preclude recognition.
Practical relevance and significance
Due to the increasing international interconnection of private and commercial relationships, especially through globalization and migration, foreign judgments are continuously gaining significance in German legal practice. They constitute an important instrument for cross-border enforcement of private and commercial claims, while simultaneously presenting a challenge for the protection of national legal principles and the rights of affected individuals.
Literature and further regulations
- Code of Civil Procedure (ZPO), in particular §§ 328 et seq., 722, 723
- Brussels Ia Regulation (EU) No. 1215/2012
- Hague Convention of 1971 and 2005
- International agreements, such as the Lugano Convention
Conclusion
Foreign judgments are subject to strict legal requirements for their recognition and enforcement in Germany. Their practical enforceability depends largely on international and national regulations, as well as compatibility with the German ordre public. Careful examination of each individual case remains indispensable for international legal assistance.
Frequently Asked Questions
When and how is a foreign judgment recognized in Germany?
The recognition of a foreign judgment in Germany is generally governed by the provisions of the Code of Civil Procedure (ZPO) as well as by specific international treaties and EU regulations, such as the Brussels Ia Regulation for judgments from EU member states. The prerequisite for recognition is usually that the judgment is final and enforceable in the foreign state. No obstacles to recognition must exist, such as a violation of the right to be heard, the jurisdiction of the court, or a breach of the German ordre public. Recognition is usually automatic, i.e., without a special procedure, unless a party expressly applies for the denial of recognition. In special cases, such as family law judgments, specific regulations must be observed.
Under what circumstances can enforcement of a foreign judgment be refused?
The enforcement of a foreign judgment can be refused in Germany if certain obstacles to enforcement exist. These include, in particular, violation of fundamental procedural principles (e.g., lack of right to be heard), doubts about the jurisdiction of the originating court, lack of reciprocity (if required by a bi- or multilateral agreement), or a breach of the German ordre public (public policy). Enforcement may also be refused if res judicata is lacking or if the judgment is incompatible with an earlier German judgment or an already recognized foreign judgment.
Do foreign judgments have to be translated before they can be recognized or enforced in Germany?
Yes, as a rule, foreign judgments must be translated into German for proceedings in Germany. The translation should preferably be carried out by a sworn translator, as the court relies on an accurate translation for examination and communication. This is particularly important when submitting to courts, authorities, or for initiating an exequatur procedure for enforcement. Exceptions may apply in special procedures, such as under EU regulations, where a multilingual standard form is sufficient.
How does the exequatur procedure for the declaration of enforceability of a foreign judgment proceed?
The exequatur procedure is the formal process for declaring the enforceability of a foreign judgment in Germany. It begins with an appropriate application by the party seeking enforcement to the competent German regional court. The original or a certified copy of the foreign title, a translation, and proof of its finality are required. The court examines whether the prerequisites for recognition and any obstacles to enforcement are met. Only after a positive decision does the foreign judgment become enforceable in Germany and can be enforced like a domestic judgment. In the case of EU titles, the procedure can be largely omitted or simplified due to European regulations such as the Brussels Ia Regulation.
Are criminal judgments of foreign courts also eligible for recognition and enforcement in Germany?
Criminal judgments of foreign courts are subject to a different legal regime than civil judgments. Their recognition and enforcement are only possible within the framework of international agreements, such as the “European Convention on the Transfer of Proceedings in Criminal Matters” or specific bilateral agreements. In principle, Germany enforces foreign criminal judgments only if strict requirements are met, such as the prohibition of double punishment (ne bis in idem) and the review of whether the act would also constitute a criminal offense under German law. Certain EU framework decisions govern the mutual recognition of custodial sentences and fines among member states.
What role does public policy (ordre public) play in the recognition of foreign judgments?
Public policy (ordre public) is a significant obstacle to recognition and enforcement in German law. A foreign judgment that is contrary to fundamental principles of the German legal system, in particular human rights or essential procedural rules, must not be recognized or enforced in Germany. The review of public policy is carried out by the competent court as part of the recognition or enforcement procedure. However, this obstacle applies only in cases of serious violations, not mere deviations from German legal principles.
Are foreign judgments also eligible for recognition in Germany in tax matters?
As a rule, tax matters are not recognized or enforced under German law, as German law – like many other national legal systems – includes the so-called prohibition of tax execution. This means that foreign tax, customs, or duty decisions are generally not enforced by German courts or authorities. Exceptions can exist only on the basis of specific international treaties (e.g., within the EU) and are strictly limited.
