German Civil Court Case Files are not Public Records

U.S. lawyers do naturally assume that court files are public records and can be easily accessed and inspected by the public. Not so in Germany! As with, for instance, land registry information (see here), Germany is rather secretive when it comes to legal documents. Under German law, there is no general right to access court records in order to inspect and to copy the same. Instead, the written elements of a German civil lawsuit (lawyer’s statements, witness statements, expert opinions etc.) are considered to be a private and confidential matter, what is called “vertraulich” in German.

Are German court hearings open to the public?

Pursuant to section 169 German Courts Constitution Act, the court hearings themselves are in principle open to the public, except for family law cases, non-contentious probate proceedings and other sensitive matters. Audio and television recordings or transmissions during court hearings are, however, strictly prohibited in Germany. When you see TV coverage relating to a German trial (be it a civil trial or a criminal court), the footage you may see on TV is made before the judge opens the proceedings. Once the German court is in session, no recordings must be made and no pictures must be taken.

Written pleadings and submissions are not available to any third parties

While the hearing itself is thus public, the written statements submitted by the parties and/or their lawyers (in German referred to as “Schriftsatz”) are not. Neither are witness statements or expert reports. This is codified in section 299 para (2) German Code of Civil Procedure:

Inspection of Court Files

(2) Without the consent of the parties to a legal proceeding, the (…) court (…) may allow third parties to inspect the files only if these third parties have demonstrated a legitimate interest to see the court file.

Such “legitimate interest” (in German “berechtigtes Interesse”) is defined rather narrowly by German courts. The fact that a U.S. law firm represents a client who considers suing the same defendant does not per se constitute legitimate interest to see the German court file. This means that a potential plaintiff (or their lawyers) cannot simply find out by accessing court records what the legal counsel of another plaintiff has already argued in a certain case. The only option is to contact the legal counsel of a party and ask them whether they are willing to disclose their material, which obviously also requires the respective client’s consent.

What about German Judgments?

Final judgments by German civil courts are available to third parties without having to demonstrate a legitimate interest. However, even these judgments are not public records in the sense that they would be freely accessible online. Instead, one must write to the court and ask for a copy of the specific judgment (against payment of a court fee and reimbursement for costs). This judgment will then be sent to the applicant, but only in an anonymized version, i.e. alle names and addresses of the parties, their legal counsel and the witnesses will be blackened. The same is true when German judgments are published in German legal literature (juristische Fachzeitschriften). Even if everyone knows who the parties in the case were, the names and addresses are not cited.

Pursuant to s. 299 para (4) German Civil Procedure Code, the court will never disclose the following parts of a german case file: drafts of judgments, orders, and rulings; the work supplied in preparing them; as well as the documents concerning the court’s coordination with others (e.g. experts).

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