At which Court to file a civil or commercial lawsuit in Germany

In case you need to litigate in Germany, one of the first tasks is to know your way around German Civil Courts (ordentliche Gerichte). The below chart shows you at one glance which is the correct civil court for your claim against a German defendant, how many judges will hear your case and what your options for appeal are should you lose the lawsuit.

Finding the right German court or tribunal for your specific legal matter is tricky, because Germany has installed various specialised courts for certain areas of law, inter alia:

• Arbeitsgerichte (Labour Courts), dealing with all employment related disputes in Germany (more on the official website of the German Federal Labor Court);
• Verwaltungsgerichte (Administrative Courts), having jurisdiction over matters of public and administrative law like construction permits, planning permissions, municipal law etc. (more on the official website of the German Federal Administrative Court); and 
• Finanzgerichte (Fiscal Courts), the courts deciding on German tax issues, in particular on objections by citizens against German tax bills issued by the Finanzamt (German tax office); more on the official website of the Federal Fiscal Court of Germany. 

Chances are, however, that your case will not be heard by any of the specialized German courts listed above, because you will most likely want to make a civil or commercial claim against a German defendant. Or you may be involved in German probate matters (be it a contentious probate case or merely an application for a German grant) or a German family law case (divorce, child custody, alimony or child support etc).

The German Court System: Ordinary Courts

 In all these matters, the so called “Ordentliche Gerichtsbarkeit” (ordinary courts of law) have jurisdiction. Unlike the USA, the German court system does not have two parallel sets of courts (federal and state courts). 

The German ordinary courts of law are a four tier structure, but you will most likely only have to deal with two of those tiers. Depending on the area of law and the value of your claim, the entry trial court will either be the Amtsgericht (Local or Circuit Court, of which there are 638 throughout Germany) or the Landgericht (High Court, of which there are 115). 

At the Amtsgericht level, the parties are allowed to represent themselves if they wish to do so. Although, take my word on this, acting as your own counsel is hardly ever a good idea, much less in a foreign country. Before all other German civil courts (Landgericht, Oberlandesgericht, Bundesgerichtshof), the parties must turn the case over to an attorney, because section 78 German Code of Civil Procedure states that beyond the German Circuit Court level, each party must be duly represented by a counsel which is licensed to practice as a German trial lawyer (Rechtsanwalt). At the Bundesgerichtshof (Federal Court of Justice), special rules apply with regard to legal counsel (for details see the website of the Bar at the Federal Court of Justice).

On the Landgericht level, the cases are usually being heard by a panel of three judges. Nowadays, however, mainly due to low staffing of courts, the three judge panel (Kammer) sometimes rules that cases shall be heard and decided by a sole judge (Einzelrichter). This transfer of a civil case from the full judicial panel to a single judge is expressly permitted by s. 348 German Code of Civil Procedure. Up until the 1990s this transfer to a single judge was rather the exception, these days it is the standard approach, especially in larger German cities. In other words, if you as the claimant prefer your case to be heard and decided by the full judicial panel, you will need to demonstrate reasons why this is necessary. Whether to make this application or not is an important strategic decision, because such an application may make you unpopular with the court from the outset for causing additional workload.

Special Juducial Panels for Commercial Disputes

In commercial and corporate disputes, the Landgericht sometimes decides in the shape of the so called Kammer für Handelssachen (Judicial Panel for Commercial Disputes), s. 93 GVG. The specific characteristic of the Kammer für Handelssachen is that two lay judges (Laienrichter) are added to the judicial panel of three professional judges. These lay judges are business owners or company directors which must be recommended for this job by the local chamber of commerce. The idea behind this statute is that the lay judges shall provide the professional judges with practical knowledge about actual business life, commercial habits and customs.

The German Court System at a Glance

This chart shows at one glance which German civil court has jurisdiction, i.e. which court to file your petition with, which court is the court of appeal, how many judges will hear the case and whether you must have a German lawyer to represent you in court or whether you can represent yourself (which, again, is not a good idea):

Venue: Where to sue in Germany?

Once you have identified the right kind of court for your claim (i.e. which German court has subject-matter jurisdiction), you will then have to sort out where to sue, i.e. which court has venue. The German term for legal venue is “örtliche Zuständigkeit”, see section 12 to section 40 German Code of Civil Procedure.

The rules of thumb are that a civil or commercial lawsuit can be filed:

• where the defendant lives (Wohnsitz) or does business (Geschäftssitz); or 
• where the dispute originated (e.g. the place of an accident in tort cases or the place where a contract was entered into or violated). 

However, there are many important exceptions to these rules of thumb. In the German Code of Civil Procedure, no less than 40 statutes deal with the matters of jurisdiction and venue. Thus, both jurisdiction and venue must be thoroughly assessed in each case, because filing your lawsuit with the incorrect German court may cost you dearly. 

For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

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