Declaration of Enforceability of Non-EU Judgments – Requirements, Procedure, and Practical Guidance

If a judgment is issued outside the EU—such as in the United States, Switzerland, the United Kingdom (after Brexit), Canada, or other third countries—the question arises whether and how this judgment can be recognized and enforced in Germany.

The legal basis for declaring the enforceability (exequatur) of non-EU judgments is complex. Unlike within the European Union—where various regulations (such as the Brussels Ia Regulation) simplify the cross-border recognition and enforcement of judgments—non-EU judgments often require recourse to national laws and bilateral or multilateral international treaties. This can make the process of recognition and enforcement significantly more complex.

This article provides a comprehensive overview of the requirements, the procedure, and practical handling of declaring the enforceability of non-EU judgments in Germany. It addresses the relevant statutory foundations, the role of international agreements, typical procedural steps, possible objections by the debtor, and offers practical tips for creditors to improve their chances of successful enforceability.

I. Legal Foundations and Scope

1. National Provisions of the German Code of Civil Procedure (ZPO)

The recognition and enforcement of foreign judgments in Germany is primarily governed by Sections 722 and 723 of the German Code of Civil Procedure (ZPO), insofar as these do not involve judgments from EU Member States or states party to special agreements. Pursuant to Section 722 ZPO, a foreign judgment can only be declared enforceable in Germany on the basis of a judgment of enforceability issued by a German court. This court is the one that would have had jurisdiction over the subject matter at first instance. Unlike EU judgments, which benefit from simplified procedures based on European regulations, non-EU judgments require a declaration of enforceability (exequatur) under German law.

2. International Treaties and Bilateral Agreements

In addition to national law, the existence of international treaties is also significant. Germany has concluded bilateral treaties with some states on the mutual recognition and enforcement of judgments. Examples include treaties with Switzerland, which enjoys a special status under the Lugano Convention—also increasingly relevant for UK judgments after Brexit. Other examples are older treaties with certain (often Eastern European) countries, which may stipulate simplified procedures or special criteria for recognition.

In the absence of a bilateral or multilateral agreement, the domestic law of the Federal Republic of Germany applies exclusively. The Hague Convention on the Recognition and Enforcement of Foreign Judgments could play a broader role in the future as more states accede. At present, its applicability must be reviewed depending on the accession status of the respective states.

3. Distinction from EU Judgments and Arbitral Awards

Unlike EU judgments—where a simplified recognition procedure applies (in particular under the Brussels Ia Regulation)—the recognition and enforcement of non-EU judgments is more complex. The declaration of enforceability of non-EU judgments must also be distinguished from the enforcement of foreign arbitral awards, which are not recognized and enforced under Sections 722 and 723 ZPO, but under Sections 1060 et seq. ZPO, involving different requirements and procedures.

II. Requirements for Declaring the Enforceability of Non-EU Judgments

1. Formal Validity of the Foreign Judgment

A key requirement for declaring enforceability is that the foreign judgment is final and binding or at least enforceable in its state of origin. A judgment that is still subject to appeal and not final generally cannot be declared enforceable. The creditor must therefore prove that the judgment is indeed enforceable and has taken effect in the state of origin.

2. Jurisdiction and Right to be Heard

The German court examines whether the foreign court had jurisdiction. In particular, it considers whether the jurisdiction of the foreign court is appropriate under the principles of German international private law. It also checks whether the debtor was granted the right to be heard in the foreign proceedings and had a sufficient opportunity to participate.

3. Proper Service of Process

A fundamental prerequisite is that the debtor was duly notified of the foreign proceedings. This includes proper service of the complaint and summons. If service does not meet German standards (for example, if it was provided without a translation, or if it did not adhere to the minimum standards of the Hague Service Convention), this can prevent a declaration of enforceability.

4. No Violation of Essential Principles of the German Legal Order

In principle, the recognition and enforcement of a foreign judgment must not violate the German ordre public (public policy). The ordre public exception applies if the foreign judgment conflicts with fundamental principles of German law or the European Convention on Human Rights. If the legal principles applied in the foreign judgment grossly contradict basic concepts of justice or fundamental procedural rights, the declaration of enforceability will be refused.

5. No Inconsistency with Domestic Judgments or Previous Foreign Decisions

A foreign judgment will not be recognized if it is incompatible with a judgment delivered or recognized in Germany in the same matter, or if there is already a judgment on the same legal relationship from a third country that is recognized in Germany.

III. The Procedure for Declaration of Enforceability under Sections 722 and 723 ZPO

1. Application by the Creditor

The path to enforceability in Germany begins with the creditor’s application to the competent German court in terms of both subject matter and venue. The applicant must submit the enforcement title (i.e., the foreign judgment) and demonstrate that the formal requirements are met. This includes a certified copy of the judgment, proof of its finality or enforceability in the state of origin, and a certified translation of the relevant documents into German.

2. Examination by the German Court

The competent court then reviews the aforementioned requirements, in particular the international jurisdiction of the foreign court, the debtor’s proper participation in the proceedings, compliance with German ordre public, and adherence to formal rules.

3. Oral Hearing and Participation of the Debtor

In principle, the debtor can respond to the application for a declaration of enforceability. They may raise objections, for example if they believe the foreign decision violates ordre public or if proper service was not effected. Usually, an oral hearing takes place, allowing both parties to present their arguments. Unlike the original merits proceedings, the foreign decision is not re-litigated on the substance, unless there are ordre public concerns or obvious procedural defects.

4. Decision on the Declaration of Enforceability

If the foreign judgment meets all the requirements, the German court issues a judgment of enforceability, thereby making the foreign judgment enforceable in Germany. This enforcement judgment itself becomes an enforceable title and forms the basis for coercive enforcement measures under German law. If the court refuses to declare enforceability, the applicant may appeal the decision.

IV. Legal Consequences of the Declaration of Enforceability

Once a foreign judgment is declared enforceable in Germany, it is treated like a domestic enforcement title. This means:

• The creditor can initiate all enforcement measures available under German law, such as account garnishments, wage garnishments, attachment of movable and immovable property, or foreclosure sales of real estate.
• The enforcement judgment has the same effect as a German final judgment. However, the substantive legal effects apply only to the extent that its res judicata effect is recognized. No broader legal effects arise than those existing in the state of origin, unless expressly provided by German law.
• If the debtor fails to comply with the obligations set forth in the title, they may face the same enforcement measures as if the title were purely domestic.

V. Objections and Defense Options for the Debtor

1. Violation of Ordre Public

The debtor may argue that the foreign judgment violates fundamental principles of the German legal order. The court applies a restrictive standard in determining such violations. Typical cases include serious infringements of the right to be heard, arbitrary decisions, or obvious breaches of fundamental procedural standards.

2. Defective Service or Lack of Participation

A common objection is that the debtor was not properly summoned in the foreign proceedings or not informed in a way that would allow a proper defense. The debtor can claim that they were unaware of the proceedings or that service did not meet international standards (e.g., no translation, non-compliance with the Hague Service Convention).

3. Jurisdictional or Arbitration Agreements

If a contract stipulates that a specific court or arbitral tribunal has exclusive jurisdiction over the dispute, the debtor may argue that the foreign court assumed jurisdiction unjustifiably.

4. Prior Fulfillment or Statute of Limitations

If the debtor has already fulfilled the claim imposed by the foreign judgment or if the claim is time-barred under foreign or German law, they may raise this as a substantive defense, provided the German enforcement court allows such objections. However, caution is advised since the recognition procedure generally does not re-examine the merits. The debtor may need to initiate separate proceedings to assert payment, satisfaction, or limitation, if not permissible in the enforceability procedure itself.

VI. Practical Guidance for Creditors on Enforcing Non-EU Judgments

1. Thorough Preparation

Before initiating the declaration of enforceability in Germany, creditors should ensure they possess all necessary documents. These include a certified copy of the judgment, proof of its finality or enforceability, and a certified translation. The more accurate and complete the documents, the lower the risk of delays.

2. Reviewing International Jurisdiction and Service Rules

Creditors should already pay attention during the original proceedings to ensure that service on the debtor meets German standards. Although this can be difficult when proceedings take place abroad, it is advisable with a view to later enforcement in Germany. Moreover, it is worth checking early on whether any bilateral treaties or international agreements (e.g., the Lugano Convention) apply to simplify the process.

3. Avoiding Ordre Public Conflicts

Creditors should consider whether the legal principles of the state of origin stand in stark contrast to the German legal order. Although it is rare for a foreign judgment to be refused on ordre public grounds, unusual procedural practices or excessive punitive damages that violate fundamental notions of justice can be problematic.

4. Involving Experts

Because the declaration of enforceability procedure is complex, it is advisable to consult a lawyer experienced in international enforcement matters. Specialists can help plan the litigation strategy, obtain the necessary documents, and anticipate possible defense arguments from the debtor. The involvement of interpreters and certified translators is often indispensable.

5. Time and Cost Factors

Declaring the enforceability of non-EU judgments can be more time-consuming and expensive than enforcing EU judgments. Court and attorney fees, as well as translation costs, can add up. Creditors should therefore conduct a cost-benefit analysis in advance. If the debtor is solvent and there is a realistic chance of recovery through enforcement, the effort may be worthwhile.

VII. Examples and Case Scenarios

1. Judgment from the USA

A creditor has obtained a final judgment against a German debtor in New York. They now wish to enforce this judgment in Germany. Although there is no comprehensive recognition and enforcement agreement between Germany and the USA, the creditor can apply for declaration of enforceability under Sections 722 and 723 ZPO. The German court examines jurisdiction, proper service, and ordre public. If all conditions are met, the judgment is declared enforceable. The creditor can then proceed with account garnishments, wage garnishments, or other measures.

2. Judgment from Switzerland

For Switzerland, the Lugano Convention applies, facilitating the recognition and enforcement of judgments between the EU and EFTA states. The process is simpler than for states without such agreements. A Swiss judgment is generally recognized unless there are ordre public violations or other grounds for refusal.

3. Judgment from a State Without Agreements

If the judgment originates from a state with no applicable agreements or treaties, the creditor faces the full rigor of the German enforcement declaration procedure. Failure to clearly establish jurisdiction, finality, or proper service may cause the application for declaration of enforceability to fail.

VIII. Alternatives and Supplementary Measures

1. Out-of-Court Settlements and Mediation

Sometimes it may be more economical to negotiate an installment payment agreement or settlement with the debtor before undertaking a complex declaration of enforceability in Germany. This saves time, costs, and effort. An out-of-court settlement may render enforcement unnecessary if the debtor pays voluntarily.

2. Preservation Measures (Arrest) and Interim Injunctions

Before the foreign judgment is declared enforceable, it may be prudent to secure the debtor’s assets in Germany by way of an arrest or interim injunction. This prevents the debtor from dissipating assets during the recognition procedure.

3. Considering Alternative Locations for Enforcement

Depending on where the debtor’s assets are located, it may be more attractive to enforce the judgment elsewhere—perhaps in a state with simpler enforcement procedures or more favorable agreements. Strategic selection of the enforcement venue can save time and costs.

IX. Future Perspectives and Conclusion

The declaration of enforceability of non-EU judgments remains challenging, as there is still no uniform global legal framework for cross-border recognition and enforcement of judgments. While the EU has achieved a high degree of harmonization with its regulations, these cannot simply be extended to non-EU states. International conventions, such as the 2019 Hague Judgments Convention, could play a larger role in the long term as more states ratify it.

For creditors, it is crucial to become familiar with the legal framework for enforcing non-EU judgments at an early stage. Thorough preparation, sound legal advice, and compliance with all formal requirements are essential for success. Although the process is complex and potentially costly, in a globally interconnected economic environment, where debtors with assets in Germany may fail to pay, there is often no alternative to pursuing a declaration of enforceability.

Overall, declaring the enforceability of non-EU judgments in Germany is a sensitive and demanding field. However, those who understand the basics, plan ahead, and seek qualified legal assistance can overcome the hurdles and successfully enforce foreign judgments in Germany.