Public policy (Germany)
Under the public policy ( French for public order ) are understood in private international law and international public law , the Basic domestic values. In particular, in the field of international law , it is understood to mean the reservation against an arbitration award by an international organization or against the application of an international treaty if this contradicts essential domestic legal principles.
The reservation of public policy occurs in two variants:
- The public policy reservation under conflict of laws stipulates that, as an exception , foreign law does not apply if it contradicts essential principles of domestic law. In Germany it is mainly regulated in Art. 6 of the Introductory Act to the German Civil Code (EGBGB) and Art. 21 Rome I-VO .
- The recognition legal public policy reservation has to content that foreign judgments not recognized in exceptional cases and be declared enforceable if the recognition or enforcement with fundamental principles of domestic law would be inconsistent. In Germany, it is included in Section 328 (1) No. 4 of the Code of Civil Procedure (ZPO) and Article 45 (1) lit. a EuGVVO (Art. 34 No. 1 EuGVVO old version ). From Art. 45 para. 1 lit. a EuGVVO, however, only the procedural public policy is covered.
There are numerous similarities between the two forms of the public policy requirement. The general clauses are formulated in a similar way in all cases, and there is always talk of “public order” or “essential principles” of domestic law. In addition, it is recognized, both with regard to the conflict of laws and recognition law, that the respective reservation clauses are to be interpreted narrowly and only to be applied in exceptional cases. Nevertheless, principles of interpretation cannot simply be transferred. The interest in the application of certain foreign law, from which the conflict of law public policy reservation makes an exception, is not to be equated with the interest in the recognition of foreign decisions, which is broken by the public policy reservation under recognition law.
Apart from the systematically specified division into a "conflict of laws" and a "recognition law" reservation clause, numerous labels have been attached to the public policy reservation that are intended to describe certain interpretative concepts, such as "ordre public international", "ordre public universel", "international law public policy ”,“ European public policy ”.
Conflict of law ordre public
The conflict-of- law rule of public policy always plays a role if international private law is to be applied in civil law and the result of the (foreign) legal norms to be applied is incompatible with the German legal system . A foreign legal norm that is incompatible with our principles of justice may also U. be used if the respective result of the application appears acceptable. Conversely, a legal norm that appears prima facie acceptable can lead to an application result that is not compatible with our legal understanding and therefore may not be applied.
The conflict of law public policy reservation in the autonomous German international private law (IPR) is mainly regulated in Art. 6 EGBGB. The rule is:
“A legal norm of another state is not applicable if its application leads to a result that is obviously incompatible with essential principles of German law. In particular, it is not applicable if the application is incompatible with the fundamental rights. "
Also Art. 40 para. 3 BGB is a manifestation of the conflict of laws public policy.
The meaning and purpose of the conflict of law ordre public are essentially the following aspects:
- Protection of the basic material values of one's own legal system (principle of material justice)
- Avoidance of domestic decisions that grossly contradict our legal opinion (requirement of national concordance or domestic decision-making)
- General clause-like safeguarding the validity of the so-called ius cogens , the general and at the same time mandatory rules of international law (international law aspect), whereby the prevailing opinion sees recourse to the public policy of Art. 6 EGBGB as dispensable: the validity of the general rules of international law is already secured by Art. 25 sentence 2 GG and its enforcement power under international law. The safeguarding of the validity of the ius cogens by means of the much stricter public policy (e.g. the criterion of domestic reference, see below) is not necessary because this is a restriction of the application requirements of the mandatory norms of international law as part of public policy ran out. In contrast, Art. 25 sentence 2 GG is more universal and speaks for the existence of an international or international public policy in addition to Article 6 EGBGB as national or IPR public policy . In contrast, the more recent literature in particular considers the national ordre public to be applicable: The requirement of an internal reference (so-called relativity of ordre public) is given up insofar as this would impair the validity of the mandatory norms of international law, especially the protection of human rights recognized under international law. It must suffice that if a German court has international jurisdiction, it may refuse to recognize a law that is contrary to international law in accordance with Article 6 of the EGBGB. The requirement of a domestic or internal connection should be reduced depending on the quality of the international law violation. Above all, the differentiation according to the severity of the violation of a norm of the global UN human rights treaties gains importance. For example, the criterion of whether human rights allow the nation state a certain amount of leeway when it comes to designing it speaks rather against restricting the requirement of domestic reference and thus for maintaining the restrictive requirements of public policy. In contrast to this, a violation of public policy is already assumed if there is no internal reference, provided that there is a violation of a human right for which an internationally and thus internationally recognized minimum standard has already emerged or the human right in its absolutely protected core area ( Synonym: inviolable essence ) is affected.
The public policy of Art. 6 EGBGB is an exception provision to be interpreted narrowly, because the legislator of the international private law standardized in the Introductory Act to the Civil Code (EGBGB) consciously accepts decisions in favor of international private law legal unity and the consistency of decisions, which are to be made by those under their own law differ. The prerequisite for application is that the relevant foreign law "is obviously incompatible with essential principles of German law", that is to say that it would affect the core of the domestic legal system. Fundamental rights are an essential part of the German legal system . The public policy is therefore seen as an intrusion point for fundamental rights.
Requirements for the application
The application requirements of the conflict of law ordre public are:
- Obvious incompatibility of a legal norm of another state with essential principles of German law: Only in the case of serious violations of German values within the meaning of the legal system , d. H. especially against the fundamental principles and rights of the German Basic Law. The old version of Art. 30 EGBGB was still based on the terms of the violation of the law (§ 134 BGB) and good morals (§ 138 BGB). This standard appeared inappropriate, since it too quickly downgraded the foreign legal system based on the domestic legal feeling and made it dependent on a too narrow understanding of domestic laws - measured by the exceptional nature of the provision. Due to the Spaniard decision of the BVerfG , the distinction between acceptable and unacceptable violations of fundamental rights had to be abandoned, which is now also expressly laid down in the formulation of Art. 6 sentence 2 EGBGB since the new version of the provision. Since then, public policy has undoubtedly been the breaking point for fundamental rights, which in case of doubt prevail over foreign material norms .
- Sufficient domestic reference or internal relationship in the case that involves a violation of public policy (so-called relativity of public policy ): The specific domestic reference is understood as a local restriction of the validity of public policy in order to take account of the exceptional nature of the provision. In examples 2 and 3 (see below), the domestic connection is already based on the spouses' stay in Germany. For the relativization of ordre public, time and factual reference points for a restriction are also relevant. In addition to the local relationship, there may be a lack of a factual relationship in the case: In example 1, it is a question of factual proximity whether the polygamous marriage was carried out in Germany (then a sufficient factual reference is to be assumed and public policy is part of the main question whether the polygamous marriage is effective) or the legal effects of a polygamous marriage abroad, e.g. B. post-marital maintenance claims (then a weaker factual reference to the violation of public policy is to be assumed, since the facts giving rise to the violation are only to be treated as a preliminary question ).
- Unsustainable application in a specific case: In addition to a serious violation according to a), the result of applying the foreign legal norm must also lead to an unsustainable result. This feature in the offense of Art. 6 EGBGB also serves to contain public policy so that it does not amount to an abstract control of norms. Not the foreign law itself, but its application in Germany must violate the German legal system. I.e. even if a foreign law is in itself immoral, its application does not have to lead to it. In example 2 (see below), the unilateral transfer of custody to the father is therefore only a violation of public policy under Iranian law if the decision to custody in the individual case infringes the best interests of the child. In example 3 , the application of the divorce consequence of the married couple due to unilateral repudiation on the part of the man is not only a violation of Art. 3 II GG, but also against the institutional guarantee of Art. 6 GG and the human dignity of Art. 1 I GG. Only then does the divorce acquire the character trait of an intolerable application of the Islamic talaq at home.
Due to the conflict of law ordre public , only the affected individual foreign legal clause is excluded from application in the event of incompatibility . In addition, the foreign law remains applicable and is even used to close a loophole caused by the inapplicability. This serves the purpose of public policy, which is to restrict the foreign law that is actually applicable only to the extent necessary to safeguard material justice and national decision-making. The international consensus on decisions that IPR currently serves should not be jeopardized by unauthorized enforcement of one's own law. German law is only used as a substitute law if no analogous or directly applicable regulations can be found in foreign law . In practice, however, the gap filling by German law is most common, which is usually due to the necessary gap filling due to the factual lack of an alternative set of norms in foreign law.
The conflict of law ordre public is usually important in legal relationships between citizens of other cultures. The approximation of laws in the European Union (or the entire western legal system ) only recognizes applications of public policy in a few cases. Frequent points of conflict are legal clauses of Sharia or Hindu law .
- If multiple marriages are concluded under foreign law in Germany ( polygamy ), this is incompatible with German law, which is oriented towards monogamous marriage (Art. 6 GG ) and thus contradicts public policy . The marriage that has come about under such circumstances can be annulled according to § 1314 Abs. 1 BGB. However, the same polygamous marriage - concluded abroad - would have to be recognized in Germany when it comes to the claims of the two wives against the man. In this case, the result of the application (the man's alimony obligation) does not contradict German public policy, although the legal norm in and of itself would not be compatible with German public policy.
- Ali and Fatima, who live in Germany, have a 7-year-old son Aladin. All are Iranian nationals. When the divorce came about in Germany because of violence by the husband Ali, the German court also had to decide on parental custody for Aladin. Although Aladin himself stated that he wanted to live with his mother Fatima, Iranian law provides that underage children are in principle subject to the violence of the father. According to Art. 8 III of the German-Iranian settlement agreement, the decision on parental custody in cases of exclusive participation by Iranian citizens is based on Iranian law. The present custody regulation violates the principle of equal rights of Art. 3 GG and - which is decisive with regard to the requirement according to c) - violates the child's right to develop his personality, which is also fundamentally protected in German law (Art. 1 I and 2 I GG ). This includes taking into account the will of the child and the prognosis with whom the child is likely to develop best when deciding on parental custody. In this specific case, these criteria clearly speak in favor of granting custody to the mother. The rigid Iranian regulation, which would provide for an exclusive allocation of power to Ali, is therefore unsustainable in the present case. The domestic connection exists because those involved have lived in Germany for years and want to stay here.
- The Islamic private divorce through unilateral marriage violation on the part of the man ( Talaq ) is a violation of German public policy because and as long as this right is not granted to the wife (violation of Art. 3 II GG).
In principle, a private divorce carried out abroad is also to be recognized domestically if the requirements of the foreign divorce law applicable under Art. 17 EGBGB (so-called divorce statute) have been complied with, even if the reasons for the divorce are at the expense of a partner, e.g. B. women are more narrowly defined than in German law. However, this does not apply if the unsustainable nature of such a regulation results from an extreme misweighting of the roles in marriage, the outcome of which ultimately no longer shows a balance of the rights and obligations of the partners within the marriage. Through a unilateral right of repudiation, marriage as a whole is called into question as an institute of communal ties in connection with a violation of the principle of equal treatment in favor of a man's dominant relationship, because the repudiation is an ubiquitous means of pressure in the man's potential discretion. This unilateral repudiation option for the man means that the woman is not viewed as an equal partner in a marriage. This conception of marriage, which manifests itself in the facts of a divorce, contradicts Art. 6 GG. The additional violation of Art. 1 GG results from the fact that it is incompatible with human dignity to keep women in a status of inferior rights. Sometimes it is also argued that there is no public policy violation if the wife agrees to the divorce. This is criticized with the argument that the repudiation itself is an act that disparages the wife. For a divorce to be effective, a court would therefore have to approve behavior on the part of the husband that violates fundamental rights. The act to which the offense is linked therefore violates public policy. (See AG Frankfurt / Main, Iprax 1989, p. 237 f.)
Public policy of recognition
The public policy reservation under recognition law means that foreign decisions are exceptionally refused recognition or, as an exception, are not declared enforceable.
Corresponding regulations can be found in Section 328 (1) No. 4 ZPO, Art. 27 No. 1 EuGVÜ and Art. 34 No. 1 EuGVVO . For example, Art. 34 No. 1 EuGVVO reads: "A decision will not be recognized if [...] the recognition of public policy (ordre public) of the Member State in which it is asserted would obviously contradict."
The regulations § 723 Abs. 2 S. 2 ZPO, Art. 34 Abs. 2 EuGVÜ and Art. 45 Abs. 1 EuGVVO stipulate that foreign decisions that cannot be recognized are not declared enforceable or, in the case of non-recognition, that one has already been issued Enforceability declaration can be revoked.
In France , five obstacles to recognition have been recognized since the Munzer / Munzer decision . One of these obstacles to recognition is a public policy reservation.
In the Anglo-American legal system , the "public policy" obstacle to recognition is recognized, which basically corresponds to the continental European "public policy" reservation. The prominent case of litigation fraud is, however, not treated as a sub-case of “public policy” in the Anglo-American legal community, but forms an independent reason for refusal of recognition “fraud”. The term “fraud” has a wide scope and encompasses not only cases of fraudulent proceedings, but any inadmissible induction of a judgment.
Sub-forms: substantive and procedural public policy
The application cases of the public policy reservation under recognition law are divided into two categories.
On the one hand, one speaks of substantive public policy when a foreign decision is refused recognition for reasons of content. This comes into question, for example, if a party has been sentenced abroad to enter into marriage, to commit an act that is punishable in Germany, or to pay punitive damages.
On the other hand, the so-called procedural ordre public applies if the foreign procedure is incompatible with the basic principles of German law. This can be the case, for example, if a party abroad has not been granted a fair hearing or if the foreign decision is based on legal fraud.
Requirements for the application
The conditions under which the public policy reservation under recognition law applies is highly controversial.
Ordre public atténué de la reconnaissance
It is sometimes claimed that the public policy reservation under the law of recognition generally has a lower level of attack intensity than the public policy reservation under conflict of laws (so-called "weakened public policy of recognition" or "ordre public atténué de la reconnaissance"). However, it is neither possible to quantify nor to specify what is meant by a “lower attack intensity”.
In addition, numerous different views are expressed on the question of whether a party can invoke the public policy reservation even if the affected party has or was available legal remedies in the first state, but has not or has not made use of these legal remedies . power.
In this respect, it is particularly controversial whether the prohibition on reviewing foreign judgments (so-called prohibition of révision au fond ) should be taken into account when applying obstacles to recognition as a benchmark. If the prohibition of révision au fond is used as a yardstick, it emerges that the public policy reservation under recognition law allows only limited control of foreign decisions and the remedies of the first state may have priority.
The enforcement of many international arbitration judgments, such as the arbitration rules of the International Chamber of Commerce in Paris or the arbitration rules of UNCITRAL, is based on the New York Convention . This provides (unlike the ICSID Convention) seven reasons for the rejection of a declaration of enforceability of an arbitration award in the executing state, one of which is public policy (Art. 5 (2) b) NYC). This is particularly important in the context of investment protection , e.g. B. relevant in the case of expropriations without adequate compensation.
Analogous to the reasons for refusing enforcement in the New York Convention, Section 1059 (2) b) ZPO provides that an arbitration award made in Germany can be set aside if it violates German public policy.
Future of the public policy reservation under recognition law
At the European level, it is planned to abolish the public policy reservation in the long term in order to increase the freedom of movement of decisions. In particular, Regulation (EC) No. 805/2004 (Enforcement Order Regulation) of 2005 deliberately does not contain any public policy reservation, nor does Regulation (EC) No. 861/2007 on the introduction of a European procedure for small claims and the Regulation (EC) No. 1896/2006 on the introduction of a European order for payment , which have been in force since December 12, 2008 and January 1, 2009, waive such a clause.
These tendencies are sometimes heavily criticized in the literature: What is required is not an abolition of the public policy reservation, but rather, conversely, its extensive application. This is the only way to ensure that parties who have been betrayed abroad receive adequate legal protection and are not exposed to unreasonable forced entry.
According to a mediating view, it is neither appropriate to completely abolish the public policy reservation, nor to apply it too generously. Rather, it is required to maintain the public policy reservation and apply it in a way that is appropriate to the interests of the user. A restrictive application that is in line with interests can be achieved in particular if the prohibition of révision au fond is taken into account as a benchmark.
- Literature on conflict of law ordre public
- Erik Jayme: Methods of specifying public policy in international private law . Heidelberg 1989
- Siegfried Schwung: The legal consequences of the application of the public policy clause in international private law . Mainz 1983
- Andreas Spickhoff: The public policy in international private law. Development - structure - concretization . Neuwied / Frankfurt am Main 1989
- Literature on public policy under recognition law
- Reinhold Geimer: International civil procedure law . 5th edition, Cologne 2005, Rn. 2910 ff.
- David Herrmann: The recognition of US judgments in Germany, taking public policy into account. A comparative law study on the “judicial conflict” between Germany and the USA . Frankfurt am Main u. a. 2000
- Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Jena 2008 (summary online at ordrepublic.de )
- Günter H. Roth: The reservation of the Ordre Public against foreign court decisions . Bielefeld 1967
- Haimo Schack : International Civil Procedure Law . A study book, 4th edition, Munich 2006, Rn. 860 ff.
- Christian Völker: On the dogmatics of public policy. The reservation clauses in the recognition of foreign court decisions and their relationship to public policy of the conflict of laws . Berlin 1998
- ↑ Evidence of terminology in Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 187.
- ↑ Cf. on these terms Christian Völker: Zur Dogmatik des ordre public. The reservation clauses in the recognition of foreign court decisions and their relationship to public policy of the conflict of laws . Berlin 1998, p. 252 ff. With numerous references.
- ↑ Evidence from Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 225
- ↑ Evidence from Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 220-224.
- ↑ Details and evidence from Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 144.
- ↑ Evidence on this conceptual distinction in Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 188.
- ^ Ulrich Spellenberg in Staudinger: International procedural law in matrimonial matters . Revised 2005, § 328 ZPO Rn. 445. Further evidence on the doctrine of the so-called “ordre public atténué de la reconnaissance” and on counter- views in Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 242.
- ↑ Detailed description of the state of opinion on the question of preclusion in Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 265 ff. (§ 13); Online summary .
- ↑ See Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 432 ff. And marginal no. 794 ff. And Rn. 913; see. also a summary of the importance of the prohibition of révision au fond and a summary of the avoidance of contradictions with the prohibition of révision au fond .
- ↑ See the example of the process fraud control Ekkehard Regen: Process fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 876 and online summary .
- ↑ Evidence from Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation , Rn. 179 and online summary .
- ↑ See for example Haimo Schack : Internationales Zivilprozessrecht . 4th edition 2006, Rn. 107d, 865a, 866, 955b-955d. Further evidence from Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 928–929 and online abstract .
- ↑ Cf. Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation . Marg. 929 and online summary .