UPDATE: This post explains the pre Brexit legal situation
After tiresome proceedings you finally obtained a UK judgment or court order against a debtor who lives in Germany or has assets there. The good news: Since Germany is a EU member state the European Enforcement Order (EEO) Regulation and the Brussels I Regulation do apply which enable simple and quick enforcement of your UK judgment (for legal details see this article).
The EEO Regulation can – and should – be used if the debtor:
- agreed to the debt, and this has been approved by the court in a consent order (e.g. a Tomlin Order);
- did not defend the claim at all, so there is a default judgment;
- did initially dispute the claim but did not defend the claim in court when it was tried.
The EU website “Judicial Atlas in Cilvil Matters” provides helpful information on the EEO Regulation and the necessary forms and court certificates. The benefit of using the EEO procedure is that the application is made to the English court by simply completing a short form plus a completed EEO certificate (which must be issued by the English court), the judgment, any costs certificate and – if applicable – a document confirming service. Once this EEO Regulation certificate is issued the judgment will be treated as if it had been delivered by a German court, which means that the usual German methods of enforcement can be used (e.g. garnish personal property, bank account or claims; sequestration of real estate etc).
If the EEO Regulation does not apply, e.g. because you have a judgment resulting from a contested hearing or if you need to enforce a non-money judgment – then you will need to use the Brussels Regulation for the mutual recognition and enforcement of EU judgments (see here for broader background of the so called Brussels Regime).
The Brussels Regulation (only) applies to orders in civil or commercial proceedings, not criminal, bankruptcy or insolvency proceedings or proceedings regarding matrimonial relationship, wills and succession. The application is made in Germany where you will need to file the judgment and a certified translation. Information and forms are available on the EU website here.
Once the formalities are fulfilled, the enforcing German court will declare the England & Wales judgment enforceable without – and that is the whole point – re-examining the entire case. As soon as the judgment is recognised by a German court and the papers have been properly served to the debtor you can take local enforcement measures. Effective service on the debtor can sometimes be a problem. The details of serving documents in Germany is explained here.
In spite of the above regulations the debtor can still try to appeal the UK judgement in Germany. However, the grounds of appeal are very limited. An appeal will only be successful if, for example:
- the judgment goes against the so called „ordre public“, i.e. core public policy of the enforcing member state;
- the judgment is irreconcilable with an earlier judgment given in a member state involving the same causes of action and between the same parties.
This is very rarely the case between the UK and Germany and such appeal will therefore most likely be dismissed by the German court. By appealing the debtor can, however, delay enforcement for another few months. Pending such appeal by the debtor you should take interim measures to preserve assets in Germany which is possible under German law.
In case you have not started court proceedings yet and when you are sure that the debtor will still be resident in Germany (or at least have assets there) when the court renders the judgement, then it may be the better alternative to sue the debtor in Germany right from the start (details here). This may be cheaper and quicker and you will not have to bother with getting a UK court order recognised in Germany.
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For more information on the German legal system: the bilingual brochures “Law – Made in Germany” (free download here). German statutes are easily accessible on the website of the German Department of Justice (here), including an English version of the Code of Civil Procedure. and the German Civil Code (Bürgerliches Gesetzbuch).
The law firms Graf & Partners (Germany) and Lyndales (UK) have many years of experience in civil and business law matters as well as litigation. So, should you need assistance with British-German legal issues do not hesitate to contact us: schmeilzl [at] grafpartner.com