Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
II. Enforcement against items
Section 285
Enforcement officer
(1) The enforcement authority shall effect enforcement against movable items through enforcement officers.
(2) The enforcement officer shall be empowered to conduct enforcement against the judgement debtor and third parties by means of written or electronic order from the enforcement authority; the order shall be presented on demand.
Section 286
Enforcement against items
(1) The enforcement officer shall attach items in the possession of the judgement debtor by seizing them.
(2) Items other than money, valuables and securities shall be left in the possession of the judgement debtor where this does not jeopardise satisfaction of the claim. Where the items remain in the possession of the judgement debtor, attachment shall only take effect where it is made apparent by affixing seals or some other means.
(3) The enforcement officer shall inform the judgement debtor of the attachment.
(4) These provisions shall also apply to the attachment of items in the possession of a third party who is prepared to return them.
Section 287
Powers of the enforcement officer
(1) The enforcement officer shall have the power to search the judgement debtor’s living quarters and business premises as well as containers where the purpose of the enforcement so requires.
(2) The enforcement officer shall be authorised to have locked doors and containers opened.
(3) Where the enforcement officer meets with resistance, he may use force and request the support of police officers for this purpose.
(4) Without his consent, the judgement debtor’s living quarters and business premises may only be searched on the basis of a court order. This shall not apply where obtaining the order would jeopardise the success of the search. The local court in whose district the search is to be undertaken shall be responsible for the court order for the search.
(5) Where the judgement debtor agrees to the search or an order against the judgement debtor has been issued pursuant to subsection (4), first sentence, above or is unnecessary pursuant to subsection (4), second sentence, above, persons who share custody of the judgement debtor’s living quarters of business premises shall tolerate the search. Undue hardship for the joint custodians shall be avoided.
(6) The order pursuant to subsection (4) above shall be presented during enforcement.
Section 288
Enlistment of witnesses
Where an act of enforcement is met with resistance or where neither the judgement debtor nor an adult family member, adult permanent joint resident, or person employed by the judgement debtor is present during an act of enforcement in the living quarters or business premises of the judgement debtor, the enforcement officer shall enlist two adults or one municipal or police officer as witness(es).
Section 289
Period of enforcement
(1) An act of enforcement may be conducted at night (section 758a(4), second sentence, of the Code of Civil Procedure) as well as on Sundays and officially recognised general public holidays only with the written or electronic permission of the enforcement authority.
(2) The permission shall be presented on demand during the act of enforcement.
Section 290
Enforcement officer’s requests and notifications
The requests and other notifications constituting part of the acts of enforcement shall be issued verbally by the enforcement officer and recorded in full; where they cannot be issued verbally, the enforcement authority shall send the person to whom the summons or notification is to be presented a copy of the written record.
Section 291
Record
(1) The enforcement officer shall keep a record to every act of enforcement.
(2) The record shall contain:
1. the place and time of recording,
2. the object of the act of enforcement, with a brief description of the measures,
3. the names of the persons with whom negotiations have been held,
4. the signatures of the persons and the note that a signature was provided after the record was read out or presented for inspection and after approval,
5. the signature of the enforcement officer.
(3) Where it is not possible to satisfy one of the requirements pursuant to subsection (2) number 4 above, the reason shall be stated.
(4) The record may also be produced electronically. Subsection (2) numbers 4 and 5 above as well as section 87a(4), second sentence, shall not apply.
Section 292
Averting attachment
(1) The judgement debtor may only avert attachment where he pays the due amount to the enforcement officer or demonstrates that he has been granted a period of grace for payment or that the debt has expired.
(2) Subsection (1) above shall apply accordingly where the judgement debtor furnishes a ruling demonstrating the impermissibility of the attachment to be undertaken or where he furnishes post office or bank receipts demonstrating that he has paid in the amount owed.
Section 293
Liens and preferential rights of third parties
(1) A third party not in possession of the item may not raise an objection to the attachment of an item on the basis of a lien or preferential right. He may, however, demand preferential satisfaction from the proceeds, irrespective of whether his receivable is due or not.
(2) The ordinary court in whose district attachment has been made shall have sole responsibility for a claim for preferential satisfaction. Where the action is brought against a body to which the enforcement authority belongs and against the judgement debtor, they shall be deemed to be joined parties.
Section 294
Unpicked crops
(1) Crops not yet separated from the ground may be attached as long as they have not been seized through enforcement against immovable assets. They may not be attached earlier than one month prior to the usual time of ripening.
(2) A creditor who has a right to satisfaction from the real property may appeal pursuant to section 262 against the attachment where a claim that has priority during enforcement against the real property is not being attached.
Section 295
Exemption of items from attachment
Sections 811 to 812 and 813(1) to (3) of the Code of Civil Procedure as well as the prohibitions and restrictions under other statutory provisions on the attachment of items shall apply accordingly. The enforcement authority shall take the place of the court with jurisdiction over enforcement.
Section 296
Realisation
(1) Upon written order of the enforcement authority, the attached items shall be sold at public auction. “Public auction” shall mean
1. an on-site auction, or
2. a universally accessible Internet auction via the platform www.zoll-auktion.de.
Such auction shall normally be conducted by the enforcement officer. Section 292 shall apply accordingly.
(2) In the case of the attachment of money, its removal shall count as payment by the debtor.
Section 297
Suspension of realisation
The enforcement authority may temporarily suspend the realisation of attached items by decreeing payment deadlines where immediate realisation would be unreasonable.
Section 298
Auction
(1) The attached items may not be auctioned before one week has expired since attachment insofar as the judgement debtor has not declared that he agrees to an earlier auction or this is necessary to avert the threat of a considerable loss in value or to avoid disproportionate costs of lengthy retention.
(2) The date and location of the auction shall be publicly announced; a general description of the items to be auctioned shall be provided in the process. At the request of the enforcement authority, an officer of the municipality or a police officer shall attend the auction. The first and second sentences above shall not apply to an auction pursuant to section 296(1), second sentence, number 2.
(3) Section 1239(1), first sentence, of the Civil Code shall apply accordingly; in the case of the on-site auction (section 296(1), second sentence, number 1), section 1239(2) of the Civil Code shall apply accordingly as well.
Section 299
Knockdown
(1) In the case of an on-site auction (section 296(1), second sentence, number 1), the knock-down to the highest bidder should be preceded by three calls. In the case of an Internet auction (section 296(1), second sentence, number 2), the knockdown shall be awarded to the person who has made the highest bid at the end of the auction, unless the auction is terminated prematurely; this person shall be informed of the acceptance of the bid. Section 156 of the Civil Code shall apply accordingly.
(2) The called item may only be handed over against payment in cash. In the case of an Internet auction, the called item may also be handed over if the payment is credited to the account of the revenue authority. Where the called item is sent, the handing over shall be regarded as being effected upon surrender to the person designated to carry out the dispatch.
(3) Where the highest bidder has not demanded the handing over against payment of the sale price at the time specified in the auction rules or, in the absence of such a provision, before the end of the auction session, the item shall be otherwise auctioned. The highest bidder shall not be allowed to place another bid; he shall be liable for the shortfall in proceeds, he shall have no claim on the additional proceeds.
(4) Where the knockdown is awarded to the creditor, he shall be freed from the obligation to pay in cash insofar as the proceeds, following the deduction of the costs of enforcement, are to be used to satisfy his claim. Insofar as the creditor is freed from the obligation to make a payment in cash, the amount shall be deemed to be paid from the debtor to the creditor.
Section 300
Lowest bid
(1) The knockdown may only be awarded for a bid of at least half of the usual sale value of the item (lowest bid). The usual sale value and the lowest bid should be published at the auction.
(2) Where no knockdown is awarded because a bid matching the lowest bid has not been offered, the lien shall remain. The enforcement authority may set a new auction date at any time or order the realisation by other means pursuant to section 305 of the attached item. Where realisation by other means is ordered, subsection (1) above shall apply accordingly.
(3) Items made of gold or silver may not be knocked down at less than their gold or silver value. If no adequate bid for the knockdown is made, the item may be sold privately at the order of the enforcement authority. The sale price may not go below the gold or silver value and half of the usual sale value.
Section 301
Ceasing the auction
(1) The auction shall be ceased as soon as the proceeds are sufficient to cover the amounts to be recovered including the costs of enforcement.
(2) Receipt of the proceeds by the auctioning official shall be deemed to be payment by the judgement debtor unless the proceeds are deposited (section 308(4)). In the case of an Internet auction, receipt of the proceeds on the account of the revenue authority shall be deemed to be payment within the meaning of the first sentence above.
Section 302
Securities
Attached securities with a stock exchange or market price shall be sold privately at the daily price; other securities shall be auctioned according to the general provisions.
Section 303
Registered securities
Where an attached security is registered, the enforcement authority shall be entitled to effect the transfer of the security to the name of the purchaser or, where a bearer security that has been transferred is involved, the re-conversion into a bearer security, and to submit the necessary declaration in place of the judgement debtor.
Section 304
Auctioning unpicked crops
Attached crops which have not yet been separated from the ground may only be auctioned after they have ripened. The enforcement officer shall have the crops harvested if he does not auction them before they are picked.
Section 305
Realisation in special circumstances
Upon application by the judgement debtor or for special reasons of expediency, the enforcement authority may order an attached item to be realised in a manner or at a place other than that set out in the sections above or that the item be auctioned by a person other than the enforcement officer.
Section 306
Enforcement against spare aircraft parts
(1) Section 100 of the Act Governing Rights in Aircraft shall apply to enforcement against spare parts to which a registered lien on an aircraft extends pursuant to section 71 of the Act Governing Rights in Aircraft; the enforcement officer shall take the place of the bailiff.
(2) Subsection (1) above shall apply to enforcement against spare parts to which the right in a foreign aircraft extends, subject to the proviso that the provisions of section 106(1), number 2, and 106(4) of the Act Governing Rights in Aircraft shall be taken into account.
Section 307
Subordinate attachment
(1) For the purposes of attaching items that have already been attached, it shall be sufficient for the enforcement officer to make a declaration, of which a written record is to be made, that he is attaching the item for the receivable to be described. The judgement debtor shall be informed of the additional attachment.
(2) Where the first attachment is effected for another enforcement authority or made by a bailiff, this enforcement authority or the bailiff shall be sent a copy of the written record. The same obligation shall apply to a bailiff who attaches items which have already been attached on behalf of an enforcement authority.
Section 308
Realisation in the case of multiple attachment
(1) Where the item is subject to several attachments by enforcement officers or by enforcement officers and bailiffs, jurisdiction for the auction shall be based on the first attachment only.
(2) Where a creditor conducts the auction, the auction shall be conducted for all creditors involved.
(3) The proceeds shall be distributed according to the order of the attachments or according to an alternative agreement of the creditors involved.
(4) Where the proceeds are insufficient to cover the receivables, and a creditor for whom the second or a later attachment was effected demands, without the agreement of the other creditors involved, distribution other than according to the order of the attachments, the local court in whose district the attachment is effected shall be notified of the situation and the proceeds deposited. The notification shall be accompanied by the documentation relating to the proceedings. Sections 873 to 882 of the Code of Civil Procedure shall apply to the procedure for distribution.
(5) Where attachments are effected simultaneously for various creditors, the provisions of subsections (2) to (4) above shall apply subject to the proviso that the proceeds are distributed in proportion to the receivables.
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