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System of the German jurisdiction

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published on 4 May 2021 | reading time approx. 4 minutes




International jurisdiction

The international jurisdiction determines whether the courts of a state are appointed to make a judicial decision. With respect to cases involving foreign EU member states, in most cases the law unified for all Europe according to the EU regulations regarding the jurisdiction in civil matters applies in Germany.


As for the scope of application, the Brussel Ia Regulation includes comprehensive provisions concerning the international jurisdiction of the courts of the member states. Principally, the courts of the member state in which the defendant has his place of residence are authorised on an international basis in case of complaints. Beyond that, the enactment provides for specific responsibilities, among others.


Recognition and enforcement of European titles and foreign arbitral awards

In accordance with Brussels Ia Regulation, the judicial decisions issued in a member state are acknowledged by the other member states without the necessity of any specific proceedings. A review of the judicial decision in the corresponding member state does not take place in the matter. With Brussels Ia Regulation having entered into force, the validation process (exequatur) has been abolished.


Enforcement measures usually aim for the collection of sums of money, however, they may also involve the fulfillment of other obligations (obligation to act or cease and desist). Regarding transborder civil matters, a judicial decision must be enforced in accordance with the domestic regulations and procedures of the state in which the enforcement is executed (usually the state in which the obligor and his assets are located). In practice, a title of execution (e.g. a verdict or a settlement deal) as well as a certificate in compliance with Art. 53 Brussel Ia Regulation must be presented in order to achieve the enforcement. The legal proceedings of the enforcement and the executing authorities (courts, collection agencies and bailiffs) are appointed by the domestic law of the state, in which the enforcement is aimed to be achieved.


In Germany, the recognition and declaration of the enforceability of a foreign arbitral award essentially conforms to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Provided that the foreign arbitral award is acknowledged and declared as enforceable, the compulsory execution proceedings themselves comply with the corresponding national law.


Structure

There are five branches of court in Germany. They are divided into:

  • the ordinary jurisdiction, responsible for all types of legal proceedings with respect to civil criminal cases,
  • the employment,
  • finance,
  • administrative and
  • social jurisdiction.

As a general rule, a verdict pronounced by a court can be submitted to the next higher court for review (stages of appeal). For this purpose, an appeal must be lodged. If a verdict of the 1st instance is appealed against, the next higher court must review the entire case once more in the 2nd instance. Its verdict can be contested as well by means of another appeal. In this case, yet another higher court must examine whether all legal provisions have been applied correctly. The finance jurisdiction is an exception, as there are only two instances in this branch. The stages of appeal of the five branches of court are structured as follows:

  • 1. Ordinary jurisdiction: District Court, Regional Court, Higher Regional Court, Federal Supreme Court;
  • 2. Employment jurisdiction: Labor court, Regional Labor court, Federal Labor Court;
  • 3. Finance jurisdiction: Finance court, Federal Finance Court (no intermediary instance);
  • 4. Administrative jurisdiction: Administrative court, Higher Administrative Court, Federal Administrative Court;
  • 5. Administrative jurisdiction: Administrative court, Higher Administrative Court, Federal Administrative Court.

Legal costs

Legal costs are the direct expenditures of the parties accruing from the prosecution of a legal dispute. Legal costs are distinguished between court fees and extrajudicial fees.


The court fees concerning the ordinary jurisdiction as well as the employment, finance and administrative jurisdiction include the fees of the court itself as well as the so-called expenses; expenses for witnesses, legal experts etc. The extrajudicial fees primarily consist of the fees for the attorney-at-law, bailiff, and own expenses of the respective party.


The fees of the preliminary proceedings (opposition procedure at the finance court) count among the extrajudicial fees within the framework of legal proceedings in finance courts.


With respect to legal proceedings of the administrative jurisdiction, the extrajudicial fees include the costs arising during the preliminary proceedings, i.e. the costs of the objection proceedings preceding the lawsuit.


The proceedings of the social jurisdiction are an exception. At the social court, the proceedings are regularly free of charge. The extrajudicial fees are to be distinguished (see above). Extrajudicial fees arise in the course of proceedings of the social jurisdiction as well.


Obligation to bear costs/reimbursement of costs

Having clarified the question of what scope of legal costs arise within the framework of the individual branches of court, it is worth considering which party bears the costs at the end of the judicial procedure in the next step.


General regulations applying to all five branches of court

In its judgement concluding the procedure, the court determines which party bears the legal costs. The legal costs arising during the judicial procedure are both the court fees and the extrajudicial fees of the parties involved (see above). Provided that the plaintiff is successful in his legal proceedings, the respondent bears all the court fees in its entirety including the reimbursable expenses of the plaintiff accruing in the process. However, if the plaintiff is not successful, he does not only bear his own expenses, but also the court costs and the reimbursable fees of the respondent. If the plaintiff is only partially successful in the judicial procedure, the legal costs are either allocated proportionally or abolished.


Exceptions for individual branches of court

There are exceptions applicable to the employment-, finance- and administrative court that deviate from the general regulations and are explained below.


The extrajudicial fees for the consultation with an attorney-at-law will not be reimbursed in proceedings at the employment court; these fees are therefore borne by the respective party irrespective of the outcome of the proceedings. This exclusion of reimbursements, however, does not apply to proceedings at the Regional Labor Court and Federal Labor Court; instead, the general regulations apply (see above).


The finance authorities always bear the expenses arisen in the course of any proceedings at the finance court, irrespective of the outcome.


The principle of freedom of costs applies within the framework of proceedings at the social court. This principle of freedom of costs states that the plaintiff does not have to bear the court fees in case of losing the proceedings. In view of one’s own extrajudicial fees, the general regulations apply (see above).


Average duration of legal proceedings

There is no generally binding answer as to how much time legal proceedings may consume.


The Federal Statistical Office documents the average duration of proceedings for all various branches of court. In the statistics, the time frames are sorted in a range between 3 months and 24 months (partially up to 36 months) as of the date of pendency. For the purpose of a clearer understanding of the abstract time frames, the average duration of proceedings are depicted concretely on an example of legal proceedings at the civil court.


The average duration of legal proceedings regarding civil matters at the individual district court of all federal states amounts to 4.8 months and has been fluctuating between 2.0 and 9.9 months. In the Regional Courts of all federal states, the average duration of legal proceedings was 7.8 months and has been fluctuating between 4.3 and 17.2 months. Taking this into consideration, the average duration of legal proceedings in the 1st instance (8.7 months) was longer than those in the 2nd instance (6.6 months).


In concrete view, the duration of proceedings of a possible 3rd instance (appeal) is not taken into consideration, which may lead to another extension of the proceedings.


Provisional legal protection

Provisional legal protection is granted within all branches of court. All types of provisional legal protection have in common that they do not finalise a decision and generally do not permit the creation of a “fait accompli” (prohibition of the anticipation of the principal matter). Such being the case, they ensure the efficacy and viability of a subsequent decision in the principal proceedings. Provisional legal protection can only be claimed for the time during which a right within the framework of the principal matter is being claimed or is (still) valid to be claimed. The standard of review is reduced during provisional legal protection. Merely so-called summary (approximate) review takes place. The type of presentation deviates from the principal proceedings, too. The court is able to make a judicial decision by order without an oral or any other type of hearing and cut deadlines. The necessity to accelerate the formal hearing usually does not permit a formal hearing (hearing of witness, local inspection, expert testimony). The judicial decision is made on basis of the state of affair submitted or known as well as the facts substantiated by the complainant.

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