🇩🇪 Germany

1. The status of digitalisation in enforcement of the judgments under the regulation in

question (a) under EOP Regulation, and (b) under EEO Regulation

The digitalization of enforcement proceedings in Germany is progressing, with several key developments including electronic submission and communication and digital records. Submission of documents to the courts via an ordinary e-mail is not allowed. On 1 January 2022 however, the statutory regulations for the special electronic citizens' and organisations' mailbox (eBO) entered into force. With the eBO, citizens and organisations can exchange electronic documents securely with the justice system. The system enables online communication with courts. The eBO mailbox enables both the sending of electronic documents to the court and the sending of electronic documents by the courts and the bailiffs to the mailbox holders. To create an account specific software, which is not free of charge, is required. In addition, since 12 October 2023, citizens can also use a free of charge mailbox called Mein Justizpostfach (MJP) for communication with the justice system 2 in pilot operation. To use the MJP, foreign nationals can use eID card for EU/EEA citizens for identification purposes. 3 According to § 173 (2) ZPO professional parties to proceedings, including bailiffs, must set up an eBO for the service of electronic documents as of 1 January 2024. Authorities and lawyers cannot use eBO in their function. They use the special electronic mailbox for authorities (beBPo) or the special electronic mailbox for lawyers (beA). Pursuant to § 829a (1) ZPO, there is a simplified electronic procedure for enforcement of writs of execution for monetary claims up to 5,000 EUR. In these cases, forwarding a physical copy of the writ may be dispensed with. However complete digitalisation is not possible, as in principle an enforceable copy of the enforcement order must be submitted in order to initiate enforcement (§§ 724 (1), 725 ZPO), which is only issued in paper form (§ 317 ZPO). Enforcement agents are required to register and record enforcement instruments and actions electronically. Auctions of seized items can be carried out online (section 814 II ZPO) 4 . In the recent years in Germany important reforms were introduced allowing now usage of digital communication in the court proceedings. However there are still considerable discrepancies between those possibilities foreseen by law and legal praxis. 5 The provisions apply under the conditional that the necessary infrastructure exists and it is still missing in most of the courts.

Procedural aspects

2. Competent court or authority and procedure involved in the enforcement (a) under EOP

Regulation, and (b) under EEO Regulation

The ZPO distinguishes different enforcement procedures for movables (§§ 803-863) and immovables (§§ 864-871). The enforcement differs also in terms of the relevant enforcement authorities. There are four different enforcement authorities:

• the bailiff,
• the enforcement court,
• the trial court of first instance and
• the land registry.

Most relevant in consumer disputes are the bailiff and the enforcement court. The bailiff as an autonomous enforcement authority carries out enforcement insofar as the law does not assign jurisdiction to the courts. The bailiff is responsible in particular for seizure of movables, surrender claims (§ 883 ZPO) and to obtain information on the debtor's assets (§ 802a). The creditor can obtain information on the debtor's financial circumstances through the bailiff before other enforcement measures are carried out. Each bailiff has his own district. The districts are divided according to localities or streets. The creditor can send the application form (together with judgment and Form D) or other documents to the distribution office (Gerichtsvollzieherverteilerstelle) located at the district court. At the distribution office, all incoming documents are first sorted according to bailiff's district and then forwarded to the competent bailiff. Enforcement courts are competent for the enforcement of monetary claims by garnishment order ("Pfändungs- und Überweisungsbeschluss"). The enforcement court is the local district court in whose district the enforcement should take place. To initiate proceedings for the enforcement of monetary claim creditors have to use an application form (Antrag auf Erlass eines Pfändungs- undÜberweisungbeschlusses or Vollstreckungsauftrag an die Gerichtsvollzieherin/den Gerichtsvollzieher). The forms exist only in German and are 9 pages long. Due to the requirement of strict formality in enforcement proceedings, the title can only be enforced against the person with the name against whom the title is directed. In the event of a change of company's name, a creditor must apply to court for a correction of the title (Titelberichtigung).

3. rules on service

For both EOP and EEO

An enforcement measure may only begin after the enforcement order has been served on the debtor. If enforcement is to be effected by a bailiff, it is sufficient if service is effected personally at the same time with the first enforcement measure.

4. Language of the certificate and documents to be appended

For both EOP and EEO

The provisions of §§ 1083 and 1094 ZPO stipulate that a German translation and the certification of the translation by a person authorised to do so in one of the Member States must be provided for a judgmenet cerified with EEO in another Member State or EOP not issued in Germany.

5. enforcement fees

For both EOP and EEO

According to § 788 (1) ZPO the costs of compulsory enforcement, insofar as they were necessary, shall be borne by the debtor; they shall be recovered at the same time as the claim subject to compulsory enforcement. Pursuant to § 788 (1) sentence 2 ZPO, the costs of enforcement also include the costs of obtaining an enforceable copy and of serving the judgment. The costs depend on the measure taken. Each enforcement measure constitutes a separate act in terms of fees. For example, the issuing of an garnishment order, a fee of € 22.00 is charged by the court. These fees are also added to the claim to be enforced and thus imposed on the debtor. The creditor receive an invoice with detailed calculations of costs to be paid to a certain bank account.

6. Refusal, stay, or limitation of the enforcement procedure under the regulation in question in

the intended Member State (a) under EOP Regulation, and (b) under EEO Regulation

For both EOP and EEO

Article 21 EEO Regulation and Article 23 EEO Regulation give the debtor a limited possibility to prevent or restrict enforcement in the Member State of enforcement. Under certain conditions, the competent court in the Member State of enforcement can refuse enforcement in accordance with Article 21 EEO Regulation or suspend or restrict enforcement in accordance with Article 23 EEO Regulation. § 1084 ZPO establishes both procedures and the substantive and functional jurisdiction in accordance with the existing system of German enforcement law. § 1084 regulates the jurisdiction for applications under Article 21 and Article 23 of the European Enforcement Regulation (para. 1) as well as the procedures for an application under Article 21 and Article 23 of the European Enforcement Regulation (para. 2 and para. 3). The district court (Amtsgericht) as the court of enforcement has jurisdiction for applications for refusal, suspension or restriction of enforcement pursuant to Articles 21 and 23 of EEO Regulation (§ 1084 ZPO). The court decides on the applications in accordance with Article 21 EEO Regulation by order. The general procedural principles of German law apply to the proceedings. The creditor must be granted the right to be heard before the decision is made; an oral hearing is optional. The court decides on applications pursuant to Article 23 EEO Regulation by way of an interim order after hearing the creditor. These decisions are not subject to appeal (§ 707 (2) sentence 2 ZPO). With a decision on the merits in the Member State of origin, the provisional measures lose their effect in Germany. The similar provisions apply in respect to EOP. § 1096 ZPO regulates the debtor's protection against enforcement and the enforcement counterclaim against EOP issued in another Member State.

7. Availability of any legal aid for guidance on the enforcement procedures under the

regulation in question in the intended Member State (a) under EOP Regulation, and (b) under EEO Regulation

For both EOP and EEO

A party can apply for legal aid under the same conditions as during court proceedings. The application for legal aid for enforcement must be submitted to the court responsible for enforcement.

8. Critical assessment of the enforcement procedures under the regulation in question in the

intended Member State (a) under EOP Regulation, and (b) under EEO Regulation

For both EOP and EEO

Each Member State has its own enforcement procedures. It is not easy for the consumer to determine which authority is responsible for enforcing judgments in the defendant's country and to find out how to initiate the proceedings, e.g. where to find forms necassery to start enforcement proceedings. Filling out the form creates frustration and confusion. The planned "European electronic access point" as provided for in the Regulation 2023/2844 on the digitalisation of judicial cooperation and access to justice in cross- border civil, commercial and criminal matters will facilitate the access of natural and legal persons to the competent authorities in cross-border proceedings. It will be also applicable to the procedures provided for in EOP Regulation and the EEO Regulation. Consumer will be able to file claims, launch requests, send and receive procedurally relevant information and communicate with the competent authorities, or be served with judicial or extrajudicial documents. This reform will considerably change the operation of the simplified European procedures. However, it should be emphasised that digitisation, while playing a very important role, is not sufficient on its own. Further harmonisation is necessary. In particular, uniform procedural rules for the initiation of enforcement proceedings would be beneficial.