U.S. Plaintiffs must post security for the other party’s legal costs when suing in Germany

The German Code of Civil Procedure (Zivilprozessordnung) rules in section 110, that any claimant (plaintiff) from outside the European Union (EU) or the European Economic Area (EEA) who initiates a civil lawsuit in Germany, must not only pay in the court fees (details here), but must also provide security (Sicherheitsleistung) for the legal fees of the defendant. Depending on the value of the lawsuit, these costs can be steep. The idea behind this is, of course, that a foreign claimant shall not be able to file a lawsuit against someone in Germany and then, later, after having lost the case, dodge the defendant’s legal cost refund claim.

Who must post security for costs in German civil litigation cases?

According to section 110 para. (1) ZPO, plaintiffs who do not have their habitual residence (or business seat in case of the plaintiff is a company or corporation) within an EU or EEA member state, must provide a security deposit — if the German defendant in the lawsuit so demands. Sometimes the German defendant’s lawyer is not even aware of this statute, especially if the defendant’s lawyer does not carry out much international work. But if the defendant is represented by a German counsel worth his or her salt, that request for the plaintiff to provide security will be the first thing the defendant’s lawyer will submit to the court.

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What are the Rules of Evidence in Germany?

In a German civil lawsuit, a relevant fact must be proven by the claimant, or more precisely by the party bearing the burden of proof, if the defendant disputes the alleged fact to be true. For details on who bears the burden of proof and what needs to be done to convince the court see the post: Standard of Proof in German Civil Litigation.

Types of Evidence admissible in German Civil Courts

In sections 355 to 370, the German Code of Civil Procedure (Zivilprozessordnung, ZPO) lays out some general rules on how a German civil court takes evidence. The court (be it a single judge or a judiciary panel (see here: GERMAN COURT SYSTEM) determines:

  1. which alleged facts are still remaining in dispute after the parties have exchanged their briefs (“verbleibende streitige Tatsachen”, also called “Streitstand”);
  2. who must produce the evidence on these disputed facts; and 
  3. how much time is this party granted to submit sufficient evidence. 

With regard to all this, the German civil court issues a so called Beweisbeschluss, i.e. a court order on the concrete evidence to be taken, section 358 German Code on Civil Procedure. The content of this Beweisbeschluss can, for instance, be an order to hear a witness or the decision by the court to instruct an independent expert (Sachverständiger) to provide the court with an expert opinion (Sachverständigengutachten).

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What are the rules regarding pre-action conduct before litigation in Germany?

Let’s be blunt: There aren’t any! The German Code of Civil Procedure (Zivilprozessordnung, ZPO) does not impose any specific pre-action requirements on the parties or their legal counsels. In Germany, there is neither a pre-action protocol to adhere to, nor any pre-trial discovery. Read more on German Civil Procedure Rules in the post German Laws relating to Civil Litigation.  

Thus, if you wish to do so, you can basically shoot from the hip and file a German civil or commercial lawsuit against someone without even giving them prior warning that such a lawsuit is coming their way. One reason why this “let’s sue first and discuss later” approach is quite common in Germany is that legal costs are relatively low when compared to litigation costs in the USA or Britain.

A short warning letter is still recommended

In real life, of course, such ambush lawsuits are not the rule. In most cases, the parties do write back and forth about a claim before someone files a lawsuit. However, if a claimant does not expect the defendant to constructively participate in such pre-trial discussions or if statute of limitation deadlines are closing in, the claimant can skip this stage and immediately file a petition (Klage) with the German civil court in order to put pressure on the defendant.

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Pros and Cons of Settling a Civil or Commercial Lawsuit under German Law 

German litigation lawyers as well as German judges love it when the parties of a civil dispute enter into a settlement agreement (called “Vergleichsvereinbarung” or simply ”Vergleich“). Why? Because German civil procedure rules and other laws concerning German civil litigation (see this post) provide financial incentives for lawyers if they find a way to resolve the dispute amicably, i.e. if the lawsuit is ended without the need for a judgment or other formal order by a German court. 

With regard to the German judge, the motivation to promote a settlement is obvious: If the parties settle, the judge does not need to spend many working hours hearing witnesses, examining documents and writing a judgment. 

German Law encourages Settlements

Section 278 German Code of Civil Procedure explicitly rules that the court shall at all stages of the civil lawsuit “work towards an amicable resolution of the dispute”. The original German wording of the relevant statute is:

„Das Gericht soll in jeder Lage des Verfahrens auf eine gütliche Beilegung des Rechtsstreits oder einzelner Streitpunkte bedacht sein.“

This means that a German judge in a civil litigation matter shall proactively attempt to induce the parties to reach such amicable resolution by way of a court recorded settlement agreement (gerichtlicher Vergleich); details are explained below. 

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Everything you should know before hiring a trial (or any other) lawyer in Germany

First of all: German civil law is a codified system (more here). This means that pretty much everything you can think of as being relevant for a client-lawyer relationship is regulated by black letter law anyway. Thus, if you need a German lawyer (their official German title is Rechtsanwalt) quickly, feel free to just hire him or her by fax, email or even on the phone.

The Merits of Codification

In Germany, there is no need for written client-attorney engagement contracts, fee agreements or extensive “know your client” paperwork (especially not in private client business). Why? Because the obligations of a German lawyer towards his or her client are clearly laid down in various federal statutes of German law.

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Final Judgments issued by United States Courts in Civil Law and Commercial Law Matters can be recognised and eventually also enforced in Germany

It is, however, a somewhat tedious procedure and there are a number of exceptions to this principle. This post explains how the domestication of United States court orders in Germany works and provides a practical guideline for U.S. lawyers and their clients who have obtained a U.S. court order against a German defendant or a debtor who owns assets in Germany. In short: this is how you enforce a U.S. judgment in Germany.

No International Treaties

Between the USA and Germany there exist no bi-lateral or multilateral international treaties with regard to the mutual recognition and enforcement of foreign court orders. Thus, when it comes to the domestication of U.S. judgments in Germany (and vice versa), the respective national laws apply. We must therefore look at the relevant German laws which regulate if, when and how foreign (i.e. non-German) court orders and judgments can be recognized and enforced within Germany.

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