Grounds for non-recognition to be examined by the German court

As explained above, the enforceability of a foreign judgment in Germany presupposes that it can be recognized in Germany. Recognizability is reviewed ex officio by the German court in the above-mentioned enforceability proceedings pursuant to Sections 722 and 723 ZPO.

In the absence of relevant bilateral agreements between Germany and the respective claimant state, the general rules of international law apply to the eligibility for recognition.

In particular, the eligibility for recognition must be measured against Section 328 (1) ZPO:

“(1) The recognition of the judgment of a foreign court is excluded:

1. if the courts of the state to which the foreign court belongs do not have jurisdiction under German law;

2. if the defendant, who did not enter an appearance and invokes this, was not duly served with the document instituting the proceedings or was not served in sufficient time to enable him to defend himself;

3. if the judgment is irreconcilable with an earlier foreign judgment issued here or to be recognized, or if the proceedings on which it is based are irreconcilable with proceedings that were previously pending here;

4. if the recognition of the judgment leads to a result that is manifestly incompatible with fundamental principles of German law, in particular if the recognition is incompatible with fundamental rights;

5. if reciprocity is not guaranteed”

Accordingly, a foreign judgment must be refused recognition in the following cases:

Lack of jurisdiction of the foreign court

The objection to jurisdiction is always the closest aspect that could argue against recognizability. This is because, internationally, the principle that an action must be brought at the defendant’s place of residence or business applies in cases of doubt. Consequently, the jurisdiction of the foreign court for an action against a German defendant would have to result from a special place of jurisdiction or an effective jurisdiction agreement.

No proper service (violation of the so-called right to be heard)

The objection that the foreign action has not been duly served is also worth examining. This requires, for example, that the German defendant must have had sufficient opportunity to defend himself properly against the action. As case law interprets this requirement very narrowly, this objection usually only helps in extreme cases, e.g. if there are only a few days between service on the German defendant and the decision date abroad, which should be rare.

In addition, a translation of the action into German is generally required. In most cases, this follows from the Hague Service Convention of November 15, 1965, to which a large majority of countries in addition to Germany have signed up.

On the subject of the effectiveness of service, please also read my article “Action from abroad – service effective?”.

Incompatibility with another court decision

The objection that a domestic court decision is incompatible with the recognition of the foreign decision is also very relevant in practice and therefore significant.

This applies in particular in the event of the earlier lis pendens of domestic proceedings with the identical subject matter of the dispute. “Lis pendens” means the time at which a validly filed action is received by the defendant with legal effect. The time of lis pendens abroad is determined by foreign law. Whether the foreign court was aware of the domestic proceedings is irrelevant.

Please also read my separate article on this constellation “The negative declaratory action to prevent a foreign action“.

By the way:

The priority of the domestic judgment applies even if the domestic judgment was issued despite the foreign proceedings having been pending earlier. Domestic judgments are therefore always barred, even if they should not have been issued at all.

Incompatibility with the so-called ordre-public

Finally, the so-called ordre public must be observed. This concerns the compatibility of the foreign judgment in question with the fundamental principles of German law. If a foreign judgment is so contrary to fundamental German principles that it would seem almost intolerable to declare such a judgment enforceable in Germany, then it must be refused recognition.

The above applies in particular to violations of fundamental rights. Other examples of judgments that violate German public policy are those based on procedural fraud or judgments based on gambling or betting debts.

Lack of guarantee of so-called reciprocity

Another mandatory requirement for recognition is the so-called “guarantee of reciprocity” in relation to the state of judgment in question.

“Reciprocity” means that the recognition and enforcement of a German judgment in the foreign state in question should not encounter significantly greater difficulties than, conversely, the recognition and enforcement of a comparable foreign judgment in Germany. In short, the point is that the “rules of the game” must be more or less the same. After all, it is not acceptable for Germany to recognize a judgment from a country that, conversely, refuses to recognize German judgments or only grants recognition under considerably more difficult conditions.

The above definition leads to the following problem: The question of so-called reciprocity can only be answered by looking at the actual judicial practice of both countries. This practice is constantly in flux, so that this question must be examined separately in each specific case.