U.S. Judgments in Germany

How can you have your U.S. judgment recognized in Germany?

Generally, it is quite easy to have a foreign judgment recognized and enforced in Germany as there are different international bi-lateral and multilateral treaties between Germany and other countries in existence. For instance, for all countries of the European Union, the “Übereinkommen über die gerichtliche Zuständigkeit und die Vollstreckung gerichtlicher Entscheidungen in Zivil- und Handelssachen“ (EuGVÜ) replaced by the EuGVÜ is applicable. Furthermore, for countries of the European Free Trade Association the so called Lugano-Übereinkommen (LugÜ) is applicable.

However, there is no such Agreement between the United States and Germany. Therefore, if a U.S. judgment should be recognized and enforced in Germany, it is more complicated and burdensome, as it is said that every country has sovereignty with respect to whether to recognize a foreign judgment or not. The entire process from the recognition of the U.S. judgment until its enforcement will be threefold.

First, the judgment must be recognized and second, a further petition/complaint must be initiated to enforce the judgment and third, the wages or any other assets the Debtor/Defendant owns that are located in Germany must be garnished.

First step’s legal basis is section 328 of the German Civil Procedure Code

The basis for the first step, hence, to have a foreign judgment of a country that is not a member of the European Union, has not signed and ratified the LugÜ or any other international agreement or convention, are.

I. Requirement of section 328 German Civil Procedure Code (§328 ZPO)

1. First, judgments of a foreign court are capable of being recognized. Consequently, it is questionable what a judgment is under the German law. The formal name of judgment is irrelevant. The criterion is whether it is a court decision that has been made during a judicial proceeding in which the Defendant was heard. Consequently, the following decisions are recognizable as being a judgment: General judgments, Default judgments, Default Summons. However, injunctive relief decisions, judicial or out of court, but court recorded settlements are not recognizable as in the later case the court did not make a decision.

2. Second, the foreign decision must be final and has become effective; hence, appeal proceedings must have been barred due to the statute of limitation or otherwise.

3. Third, it must be a civil matter or one related to the business code, hence no municipal decisions are recognizable based on the above section.

4. The decision making court must have had jurisdiction (personal and subject matter jurisdiction) over the matter based on German law. Hence, if the plaintiff would have brought the action before the German court, the German court would not have had jurisdiction, section 328 Abs.1 No. 1 German Civil Procedure Code (ZPO). The reason for this provision is that under German law, in some matters German courts have exclusive jurisdiction.

5. The foreign decision is not recognizable under German law if the Defendant was not served properly or timely to ensure he could be heard. Section 328 Abs.1 No. 2 German Civil Procedure Code (ZPO). This argument cannot be raised by the Defendant if the Defendant has participated in the foreign court’s proceedings personally or through his/her attorney. It should be kept in mind that improper service can be cured, for instance if the person received the documents later and he/she still had enough time to defend herself.

6. The decision to be recognized cannot be contrary to a former domestic nor foreign judgment. Furthermore, the matter in question cannot be pending in any other German court. Section 328 Abs.1 No. 3 German Civil Procedure Code (ZPO).

7. The foreign decision cannot violate German “ordre public” ideas; hence the decision cannot be contrary to fundamental German principles and contrary to the “Grundrechte” of the German Constitution. Section 328 Abs.1 No. 4 German Civil Procedure Code (ZPO). A foreign decision is contrary to German fundamental principles and the “Grundrechte” of the German Constitution if the decision is based on completely different grounds contrary to German principles and if the foreign judgment was rendered within certain proceedings that are contrary to German proceedings. Examples that are deemed to be contrary to German principles are:
8. Defendant could not have obtained a defense attorney;
9. The award of punitive damages because pursuant to German law the compensation of the damages is deemed sufficient. Damage compensation cannot have the punishing character because this sufficiently regulated through criminal statutes.
10. Judgment for damages is being awarded, although the person would be indemnified under German Law.
11. Non-appealable decisions regarding fatherhood are contrary to German law and German policy. The foreign country must have similar recognition laws and procedures. Section 328 Abs.1 No. 5 German Civil Procedure Code (ZPO).This is for the United States the case, as also New Jersey has recognized the Uniform Foreign Money Recognition Act and even if New Jersey has recognized and ratified the Uniform Foreign Money Recognition Act, a judgment recognition on comity basis would be possible.

Second step’s legal basis are sections 722, 723 German Civil Procedure Code (§§722, 723 ZPO) – the enforcement of the recognized judgment

Once the foreign judgment is recognized under German Law, a petition to have the judgment declared enforceable in Germany (“Vollstreckbarkeitserklaerung”) must be initiated.

Garnishment procedures

1. Upon receiving the declaration of enforceability (“Vollstreckbarkeitserklaerung”), a garnishment petition must be filed with the appropriate Marshall (“Gerichtsvollzieher”).
2. In this regard it is important to already have sufficient information regarding the debtor, such as:

• Name of bank where he has his bank accounts.
• Name of investment funds including account numbers and name of the investment company.
• Name of his employer or name of his former employer in Germany or name of the German pension officials in order to garnish assets in his name. If there are no assets in the debtor’s name, a garnishment will not be possible. However, if there is a joint bank account in the debtor’s name and another person’s name at least ½ of the account can be garnished.

Summary

• It is possible to have a U.S. judgment recognized in Germany as long as it is not some kind of judicial or out of court settlement and as long as it is not only a temporary order or an injunctive relief order or a judgment that is not final, but still appealable.
• The principles of a recognizable U.S. judgment under German law are similar to the principles that are spelled out in the Uniform Foreign Money Recognition Act in the United States.
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  Upon recognition, the foreign judgment must be declared enforceable and must be enforced by for instance garnishing assets, wages, and pension benefits as long as these assets are located within the German jurisdiction and one has information about the assets and the assets are in the debtor’s name.

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  Necessary documents:

  • Certified copy of the judgment.
  • Certified translation of the judgment into the German language: we could obtain that for you from our German court certified translator that we are regularly using.
  • Apostille for the judgment to be used in Germany: We could obtain that for you as well.
  • Documents that prove proper service to your husband.
  • Documents showing the basis of the awarded amount, such as pay stubs.