1 Sources of the rules in force
1.1 National rules
Between 2007 and 2016 the EU codified the conflict-of-law rules of important areas of private law in the form of Regulations (in particular Regulation (EC) No 593/2008 (the ‘Rome I Regulation’), Regulation (EC) No 864/2007 (the ‘Rome II Regulation’) and Regulation (EU) No 650/2012 (the ‘EU Succession Regulation’)). For an overview please refer to the guide ‘Judicial cooperation in civil matters in the European Union’. Consequently, the scope of Germany’s autonomous conflict-of-law rules has become ever narrower.
The main source of domestic German conflict-of-law rules (or private international law) is the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche –EGBGB), in particular Articles 3 to 48. Under Article 3 EGBGB, conflict-of-law rules laid down in EU legislation and in international conventions explicitly take precedence over the provisions of the Act in their fields of application.
German law also contains scattered conflict-of-law rules elsewhere than in the EGBGB, for example in the Insolvency Code (Insolvenzordnung – InsO).
In fields that are not regulated by legislation, for example in international company law, the applicable law is determined by the courts.
1.2 Multilateral international conventions
A list of all multilateral conventions signed and ratified by Germany can be found in Directory B of the Federal Law Gazette (Bundesgesetzblatt) (online orders via https://www.bgbl.de/). The multilateral international conventions listed include conventions containing unified conflict-of-law rules.
Multilateral conventions of this type are often initiated by international organisations. Particular mention should be made of the Hague Conference on Private International Law (https://www.hcch.net/en/home/), of which Germany has long been a member.
1.3 Principal bilateral conventions
Individual conflict-of-law provisions can also be contained in bilateral conventions. A list of such conventions between Germany and other states can be found in Directory B of the Federal Law Gazette (see 1.2 above).
2 Implementation of conflict of law rules
2.1 Obligation of the judge to apply conflict of law rules on his own initiative
Questions of the conflict of laws do not arise only in disputes before the courts. Business partners in different states need to know which law governs the contract between them, irrespective of any future legal dispute. That law determines their rights and obligations. Car drivers travelling on holiday to other states must be aware of the law under which they are liable if they cause a traffic accident there. That law determines the nature and scale of any compensation.
Where the facts of a dispute present some connection to the law of another state, a German court adjudicating the case will determine which law is to be applied by referring to the German conflict-of-law rules. German judges must be conversant with the conflict-of-law rules applicable in Germany. They must apply them whether or not a party so requests.
2.2 Renvoi
If under the German conflict-of-law rules the law of another state is applicable, but the law of that state in turn refers to the law of a further state, German law generally accepts the further reference, under Article 4(1), first sentence, EGBGB; this is known as renvoi (Gesamtverweisung) (referral to the foreign law, including its conflict-of-law rules). If the foreign law refers back to German law, the German substantive provisions are applicable (Article 4(1), second sentence, EGBGB). The term ‘substantive provisions’ describes the provisions of a law excluding its conflict-of-law rules.
Where the German conflict-of-law provisions allow the parties to choose the applicable legal system, Article 4(2) EGBGB states that that choice relates only to the substantive provisions. A number of other conflict-of-law rules also provide explicitly for referral to the substantive provisions of the law of the state concerned (e.g. Article 10(1) EGBGB and Article 17b(1) EGBGB).
The EU Regulations on conflict-of-law rules contain their own provisions on renvoi and – in contrast to German conflict-of-law rules – generally exclude it.
2.3 Change of connecting factor
A switch in the applicable law in a situation where the facts of the matter are still open to change is a phenomenon familiar to German law. For example, rights in rem are in principle assessed according to the law of the location of the property, which means that if an item’s location is changed it may come to be governed by a different legal system.
A change of connecting factor is also accepted in other areas of law, examples being a change of nationality or a change to a person’s place of habitual residence.
However, no change in the applicable law is possible if the conflict-of-law rules establish a specific time of connection. For example, to determine the law governing a marriage, the connecting factor will be the nationality at the time of marriage (Article 13(1) EGBGB).
2.4 Exceptions to the normal application of conflict rules
Article 6 EGBGB formulates the German reservation relating to public policy, whereby a provision of a foreign law is not to be applied where its application would be manifestly incompatible with the fundamental principles of German law. ‘Fundamental principles’ here means the basic principles of justice. Generally, this refers to serious violations of fundamental rights guaranteed in the German Constitution. For the applicability of the public policy reservation it is also important that the facts of the case present a domestic connection; otherwise the German legal system cannot be involved. Here too, precedence has to be given to any special rules, in particular those laid down in EU legal instruments that take precedence (see, for example, Article 21 of the Rome I Regulation, Article 26 of the Rome II Regulation and Article 35 of the EU Succession Regulation). A further exception to the application of conflict-of-law rules applies in the case of overriding mandatory provisions. Under an overriding mandatory provision national rules are applied compulsorily, as respect for these provisions is regarded as crucial by a country for safeguarding its public interests, in particular its political, social or economic organisation. Mandatory provisions assume their greatest importance in questions of contractual and non-contractual obligations. Special rules on the subject are laid down in the EU legal instruments that take precedence (see in particular Article 9 of the Rome I Regulation, which contains a legal definition, and Article 16 of the Rome II Regulation) and in international conventions.
2.5 Proof of foreign law
Not only must German courts apply the conflict-of-law rules of their own motion, but, according to Section 293 of the Code of Civil Procedure (Zivilprozessordnung – ZPO), they are also required, after due consideration, to determine the substance of the applicable foreign law. This is not limited to perusal of the foreign legislation: the court must consider the treatment of the legislation in academic writing and case-law. The court must put itself in a position to be able to apply the foreign law in the same way as a court would do in the country concerned.
To determine the substance of foreign law, courts may use any sources of reference available to them.
- One source of information for contracting states is provided by the European Convention on Information on Foreign Law, signed in London on 7 June 1968. The request must be sent to the competent agency of the foreign state concerned via the competent receiving/transmitting agency.
- Instead of a request for legal information under the London European Convention, the court can also obtain a legal opinion from an expert, provided the expert also possesses knowledge concerning the practical application of the foreign law.
- For straightforward questions, under certain circumstances, information obtained from the contact point of the European Judicial Network in civil and commercial matters or from the court’s own research into the foreign law may also suffice to establish the substance of the foreign law.
Courts may also call on the cooperation of the parties for proof of foreign law, but are not bound by their pleadings. They can therefore exploit any source of reference, of their own motion, without being bound by the evidence submitted by the parties.
In exceptional cases where despite all due care the content of the foreign law to be applied cannot be established, German law is to be applied as an alternative.
2.6 National resources such as national websites for finding the content of the applicable law and translations in other languages
English translations of legislation are available at https://www.gesetze-im-internet.de/Teilliste_translations.html
3 Conflict of law rules
3.1 Contractual obligations and legal acts
International sales contracts are subject in the first place to the UN Convention on Contracts for the International Sale of Goods, which applies automatically between businesses from any of the large number of contracting states unless the parties have ruled this out sufficiently clearly, for example by ‘waiving the UN Sales Convention’.
For all promissory contracts concluded since 17 December 2009, the question of the applicable law is, in principle, determined in accordance with the Rome I Regulation, unless the contract is outside the scope of that Regulation. In addition, Articles 46b to 46d EGBGB are also applicable. Under the Rome I Regulation, a contract is generally governed by the law chosen by the parties (Article 3 of the Rome I Regulation), although restrictions apply in particular to contracts involving consumers (Article 6 of the Rome I Regulation).
3.2 Non-contractual obligations
Since 11 January 2009, the selection of the legal system applicable to non-contractual obligations has generally been determined by the Rome II Regulation, supplemented by Article 46a EGBGB. Under the general conflict-of-law rules contained in Article 4(1) of the Rome II Regulation, the law of the country in which the damage occurs generally applies, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
In cases not covered by the Regulation, such as, for instance, infringements of the right to protection of one’s personality (Persönlichkeitsrecht), German law provides for specific conflict-of-law rules to determine which country’s law will apply; these rules are laid down in Articles 38 to 42 EGBGB. For such cases falling outside the scope of the Regulation, Germany’s conflict-of-law rules contain the following provisions:
Article 38 EGBGB lays down rules on the law to be applied in respect of different types of claims based on unjust enrichment.
Under Article 39 EGBGB, legal claims arising out of acts performed without due authority in connection with the affairs of another person are governed by the law of the state in which the act was performed. A special rule applies to settlement of a debt owed by another person.
Under Article 40 EGBGB, claims for damages arising from an unlawful act are in principle governed by the law of the place in which the liable party has acted (Recht des Handlungsorts); the injured party can decree that instead of that law, the law of the country in which the injury occurred (Recht des Schadenseintritts) is to be applied.
Article 42 EGBGB provides that the parties may in any event choose the law applicable to a non-contractual relationship after the event that gave rise to it.
In addition, under Article 41 EGBGB, the applicable system of law may be replaced by a system of law which, owing to particular circumstances, has a substantially closer connection to the facts of the case.
3.3 The personal status, its aspects relating to the civil status (name, domicile, capacity)
Under Article 7(1) EGBGB, a person’s legal capacity is governed by the law of the state of which that person is a national (Heimatrecht). In principle, a person’s gender is also determined in accordance with the law of the state of which he/she is a national (Article 7a(1) EGBGB). However, persons who habitually reside in Germany may choose to apply German law to a change of gender (Article 7a(2) EGBGB).
Where a person has more than one nationality (Mehrstaater), Article 5(1), first sentence, EGBGB provides that reference must be made to the ‘effective nationality’, i.e. the nationality of the state with which the person with multiple nationalities has the closest connection. If, however, a person with multiple nationalities also has German nationality, Article 5(1), second sentence, EGBGB provides that German nationality alone applies in all cases.
In contrast to legal capacity, a person’s capacity to contract is determined in accordance with the law of the state in which the person habitually resides (Article 7(2) EGBGB).
The place of habitual residence is also the connecting factor applied in the case of a person’s name, which, under Article 10(1) EGBGB, is generally subject to the substantive provisions of the state in which the person habitually resides. A person may also choose to apply the law of the state of which he/she is a national to his/her name (Article 10(4) EGBGB); there are also options to choose the law applicable to a person’s married name or the name of a child (Article 10(2) and (3) EGBGB).
3.4 Establishment of parent-child relationship, including adoption
3.4.1 Establishment of parent-child relationship
Under Article 19 EGBGB, the parentage of a child is subject to the law of the state in which the child is habitually resident. In the relationship to each parent, the parentage can also be determined by the law of the state of that parent’s nationality. Lastly, if the mother is married, the parentage can be determined in accordance with the law governing the general effects of the marriage at the time of the birth (Ehewirkungsstatut, Article 14(2) EGBGB). Different rules apply for children born before 1 July 1998.
Parentage can be challenged under the legal system that determines parentage (Article 20, first sentence, EGBGB). The child may, in any event, also challenge his/her parentage in accordance with the law of the state in which he/she is habitually resident (Article 20, second sentence, EGBGB).
3.4.2 Adoption
The adoption of a child within Germany (i.e. cases in which the adoption is granted by a German court) is subject to German law. It is otherwise governed by the law of the state in which the adoptee is habitually resident at the time of the adoption (Article 22(1) EGBGB); this provision only applies if the adoption abroad is granted other than by a court decision.
Adoption procedures completed before 31 March 2020 are subject to the previously applicable international private law, i.e. the adoption is governed by the law of the state of which the adopter was a national at the time of the adoption (old version of Article 22(1), first sentence, EGBGB). Adoption by one or both spouses is subject to the law that governs the general effects of the marriage (old version of Article 22(1), second sentence, EGBGB).
The recognition and establishment of the effectiveness of foreign adoptions are regulated in the Act on the effects of adoption of a child under foreign law (Gesetz über Wirkungen der Annahme als Kind nach ausländischem Recht) (Effectiveness of Adoption Act (Adoptionswirkungsgesetz – AdWirkG)).
3.5 Marriage, unmarried/cohabiting couples, partnerships, divorce, judicial separation, maintenance obligations
3.5.1 Marriage
Under Article 13 EGBGB, the conditions for the conclusion of opposite-sex marriages are usually governed by the law of the state of which the person engaged to be married is a national. Exceptionally, under special circumstances, German law may apply instead in relation to individual conditions of marriage.
In Germany, a marriage may be concluded only in the presence of the registrar, or exceptionally – if neither party is a German national – of a person specifically empowered by a foreign state (Article 13(4), second sentence, EGBGB).
If general effects of the marriage do not fall within the scope of Council Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (EU Matrimonial Property Regulation), they are subject to the law chosen by the spouses in accordance with Article 14(1) EGBGB or, in principle, if no law has been chosen, the law of the state in which both spouses habitually reside (Article 14(2) EGBGB).
Same-sex marriages are governed by Article 17b EGBGB. Under this article, the law of the state in which the marriage is registered is generally applicable (Article 17b(1), first sentence, and (4), first sentence, EGBGB); this is a referral to the substantive provisions of the law in question. The same applies in the event that at least one of the spouses is neither male nor female. Under Article 17b(5), second sentence, EGBGB, it is also possible in such cases to choose the law, in accordance with Article 14 EGBGB, that will govern the general effects of the marriage.
3.5.2 Unmarried/Cohabiting couples and partnerships
Registered life partnerships (eingetragene Lebenspartnerschaften) are generally governed by the law of the state in which the life partnership is registered (Article 17b(1), first sentence, EGBGB). Since 1 October 2017 it has no longer been possible for registered partnerships to be formed in Germany (Article 3(3) of the Act introducing the right of marriage for same-sex couples (Eheöffnungsgesetz)) and Article 17b(1), first sentence, EGBGB is therefore, in relation to the formation of a life partnership, an extremely rare case of a German conflict-of-law rule covering a legal relationship that can only come into being abroad.
3.5.3 Divorce and judicial separation
The law applicable to divorce and legal separation has been determined since 21 June 2012 by Council Regulation (EU) No 1259/2010 (Rome III Regulation). The Regulation applies even if under its provisions the applicable law is the law of a state not participating in the enhanced cooperation under the Rome III Regulation (Article 4 of the Regulation). Divorce and legal separation are also governed by the Rome III Regulation in the case of same-sex marriages (Article 17b(4), first sentence, EGBGB). In Germany, a divorce (in the case of an opposite-sex or same-sex marriage) can be decreed only by a court (Article 17(3) and Article 17b(5), first sentence, EGBGB).
The annulment of a registered life partnership is governed by the law of the state in which the life partnership is registered (Article 17b(1), first sentence, EGBGB).
The law applicable to sharing pension entitlements is determined by the law applicable to the divorce (the divorce law). In the case of registered life partnerships, this aspect is governed by the law applicable to the annulment of the life partnership, i.e. the law of the state of registration. In certain circumstances where sharing pension entitlements is not recognised by the foreign law, it will alternatively be implemented in accordance with German law, if the parties so request (Article 17(4) and Article 17b(1), second sentence, and (4) EGBGB).
Restraining orders that are linked to a home in Germany of (opposite-sex or same-sex) spouses or registered life partners, and that prohibit a spouse/partner from accessing this home or from approaching/having contact with the other spouse/partner, are subject to the substantive provisions of German law (Article 17a and Article 17b(2) and (4) EGBGB).
3.5.4 Maintenance obligations
In the case of Germany, the question of which law is applicable to maintenance claims between relatives or between spouses has been determined, since the EU Maintenance Regulation entered into force on 18 June 2011, by the Hague Protocol on the Law Applicable to Maintenance Obligations of 23 November 2007. According to Article 2 of the Protocol, the Protocol has universal application, i.e. even if the law to be applied under its provisions is that of a non-contracting state. The German rules in the EGBGB that were applicable hitherto in that respect have therefore been repealed.
3.6 Matrimonial property regimes
The law applicable to the property consequences of a marriage is determined, for both opposite-sex and same-sex marriages entered into from 29 January 2019, on the basis of Regulation (EU) 2016/1103 (EU Matrimonial Property Regulation; for same-sex marriages see Article 17(4), second sentence, EGBGB). The EU Matrimonial Property Regulation also applies to existing marriages if the law applicable to the matrimonial property regime was specified after 29 January 2019. The EU Matrimonial Property Regulation gives priority to the autonomy of the parties: the spouses can choose the law applicable to their matrimonial property regime in accordance with Article 22(1) of the Regulation. They can opt for the law of the state in which at least one of the spouses is habitually resident at the time the agreement is concluded or the law of a state of nationality of either spouse at the time the agreement is concluded (Article 22(1)(a) and (b) of the EU Matrimonial Property Regulation). In the absence of an agreement between the parties, the connecting factor under the EU Matrimonial Property Regulation is the first common habitual residence of the spouses or, alternatively, their common nationality or the state with which they jointly have the closest connection (see Article 26 of the EU Matrimonial Property Regulation). The law applicable under the EU Matrimonial Property Regulation also applies if it is the law of a state not participating in the enhanced cooperation under the Regulation (Article 20 of the EU Matrimonial Property Regulation).
In the case of opposite-sex marriages entered into before 29 January 2019, the property consequences of the marriage are generally subject to the law governing the general effects of the marriage at the time of marriage (see Article 15 EGBGB in the version applicable up to 28 January 2019). Depending on when the marriage was entered into, the law of the state in which the spouses habitually reside or the law of a state of nationality of either spouse may, for example, apply (see transitional provisions and cut-off-date regulations in Article 220(3) EGBGB). If a same-sex marriage was entered into before 29 January 2019, the law of the state in which the marriage was registered generally also applies to the property consequences of the marriage.
The law applicable to the property consequences of registered partnerships is determined, in the case of partnerships registered from 29 January 2019, on the basis of Regulation (EU) 2016/1104 (EU Registered Partnership Property Regulation). Like the EU Matrimonial Property Regulation, the EU Registered Partnership Property Regulation also applies if a choice of law was made after 29 January 2019 relating to the property consequences of the registered life partnership. Under the EU Registered Partnership Property Regulation the choice of the parties is also the principal connecting factor. In addition to the law of the state of habitual residence or the law of a state of nationality of either partner at the time the agreement is concluded, it is also possible to opt for the law of the state under whose law the registered partnership was created (Article 22(1) of the EU Registered Partnership Property Regulation). In the absence of a choice-of-law agreement, the law applicable to the property consequences of registered partnerships is the law of the state under whose law the registered partnership was created (Article 26(1) of the EU Registered Partnership Property Regulation).
In the case of life partnerships registered before 29 January 2019 that fall outside the scope of the EU Registered Partnership Property Regulation, the property consequences remain subject to the law of the state of registration (Article 17b(1), first sentence, EGBGB).
3.7 Wills and successions
Where death occurs on or after 17 August 2015, the rules generally applicable are those laid down in the EU Succession Regulation. Under that Regulation the last habitual place of residence of the testator is the fundamental connecting factor for the law applicable to the succession (Article 21(1) of the EU Succession Regulation). Successions dating from before 17 August 2015 (i.e. the testator died before this date) are governed, in accordance with Article 25 EGBGB in the version applicable up to 16 August 2015 (old version), by the law of the country of which the testator was a national at the time of death (old version of Article 25(1) EGBGB). Under the old version of Article 25(2) EGBGB, the testator could opt for German law with respect to immovable property located in Germany.
In respect of the validity as regards form of testamentary dispositions, in Germany the Hague Convention of 5 October 1961 on the Conflicts of Laws relating to the Form of Testamentary Dispositions (1961 Hague Convention) generally applies, even since the entry into force of the EU Succession Regulation. A disposition is valid as regards form if its form satisfies the requirements of a legal system with which it has a connection, for instance by virtue of nationality, the habitual residence of the testator, or the place where the will was made. In the case of immovable property, a testamentary disposition can also be valid as regards form if it complies with the law in the place where that property is situated (Article 1 of the 1961 Hague Convention). Under Article 26 EGBGB, a testamentary disposition is also valid as regards form if it complies with the law that governs the succession or would have governed it at the time the disposition was made.
3.8 Real property
Under Article 43(1) EGBGB, rights in rem are governed by the law of the state in which the property is situated. That local law governs, for example, the scope of ownership rights and the manner in which the property can be transferred or encumbered with a lien or pledge. If property is taken to another state, there is a change in the applicable law and, from that moment on, the legal system of the property’s new location governs the exercising of the rights to the property that were established under the law of the place where it was previously located (Article 43(2) EGBGB).
Under Article 44 EGBGB, the conflict-of-law rules laid down in the Rome II Regulation apply by analogy (see point 3.2) to claims based on adverse impacts arising from land.
Article 45 EGBGB provides for a special connecting factor for certain means of transport (aircraft/rail vehicles/watercraft). Rights to these means of transport are generally governed by the law of the state of origin, which is determined based on the place in which they were registered or licensed.
Under Article 46 EGBGB, it is possible to depart from the law determined by reference to the aforementioned connecting factors if the circumstances show a substantially closer connection to the law of another state.
3.9 Insolvency
In the area of international insolvency law, Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings contains conflict-of-law and international procedural rules governing the relationships between Member States, with the exception of Denmark. If this Regulation (or its predecessor, Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings) is not applicable, international insolvency law is governed by Section 335 et seq. of the Insolvency Code. With regard to conflicts of law, Section 335 of the Insolvency Code provides that, in principle, the insolvency proceedings and their effects are subject to the law of the state in which the proceedings have been opened. Section 336 et seq. of the Insolvency Code defines special connecting factors for specific aspects of international insolvency law which may depart from that principle (e.g. employment, set-off, and voidability of transactions in insolvency proceedings).