Can You Protect Yourself Against Service of US Complaints or Enforcement of US Judgments?

German citizens and companies can resist service of US complaints on the basis of Article 13 of the Hague Service Convention (Haager Zustellungsübereinkommen, HZÜ), in conjunction with Section 23 of the Introductory Act to the Courts Constitution Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG). Under Article 13 HZÜ, the State addressed may refuse to execute a request for service where doing so would jeopardize its sovereignty or security. The Federal Constitutional Court (Bundesverfassungsgericht, 2 BvR 1133/04) has held that this threshold is reached where there is a manifest violation of the indispensable principles of a free and constitutional state governed by the rule of law (the German "ordre public"). Protection against the enforcement of US judgments in Germany is, as an exception, available under Section 328 (1) No. 4 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO), in conjunction with Sections 722 et seq. ZPO.

An examination against the German "ordre public" is, in the standard scenario assumed by the Federal Constitutional Court, appropriate only at the end of the proceedings, within the examination of whether the foreign judgment is capable of recognition and enforcement in the Federal Republic of Germany. In addition, the variety of alternative methods of service available under US law has shown in the past that a refusal by German authorities to execute a request for service – exceptional cases aside – cannot prevent German citizens and companies from being sued before US courts. For example, a US court may, upon application, order that service be effected by publication in German newspapers.