Statutes and regulations you should be aware of in case you plan to file a lawsuit in Germany
German civil law is based on the tradition of Roman law and is characterized by its codified system of legal provisions, i.e. statutes (Gesetze). This means that pretty much everything is written down in black letter law, including the rules concerning German Civil Litigation.
This is true for both the substantive laws (e.g. German Civil Code, German Commercial Code etc.) as well as the forensic procedural rules (Code of Civil Procedure, Labor Court Procedure Rules, Procedure Rules for Family Matters and Non-contentious Jurisdiction etc). More information on German law and the German legal system in general can be found in the official brochure “Law – Made in Germany”, published by the German government in cooperation with the German bar association (Bundesrechtsanwaltskammer). It is essentially a marketing brochure by German jurists, praising the advantages of the codified German legal system in comparison to the “not so easy to understand” common law system with its thousands of (sometimes medieval) precedents.
German Law Online
On the official German government website Gesetze im Internet, provided by the Justice Department (Justizministerium), you are able to access all German laws (Gesetze) and regulations (Verordnungen) relevant in the context of civil and commercial law claims and how to litigate in Germany. In addition to federal legislations available on Gesetze im Internet, you can research the various laws and regulations of the 16 individual German states (Bundesländer) on this website here: Justiz.de/bundeslandesrecht
The most essential German federal laws and procedural codes are even available in English language, see this list. While I am not always entirely happy with the quality of the translation and the English terminology used for certain German technical legal terms, these German statutes in English language will at least give you a basic understanding of the respective German law.
The German laws and procedure rules you will most likely be faced with when you make a civil court claim in Germany are these:
Bürgerliches Gesetzbuch(BGB) / German Civil Code
The BGB is the core of German civil law and the pride of German jurists. It is a compendium of five “books” which regulate the central areas of German civil law: the law of persons and property (Sachenrecht), German contract law (Vertragsrecht) including consumer protection rules (Verbraucherschutz), the German law of tort (unerlaubte Handlung), German family law (Familienrecht) and German rules of succession and probate. More background on the German Civil Code on Wikipedia.
Please note that in some areas of law, these ZPO rules do not apply. German family law matters, for instance, as well as non-contentious probate proceedings, are governed by the FamFG procedure rules (see below), which are very different in nature. German labor law courts also have their own specific set of procedure rules (see ArbGG below).
Handelsgesetzbuch (HGB) / German Commercial Code
The contractual relationship between merchants as well as any remedies available in business to business trade are regulated by the German Commercial Code. The Commercial Code closely interacts with the general legal principles contained in the German Civil Code. Thus, the two need to be studied together in order to understand the relationship between merchants under German law.
Zivilprozessordnung (ZPO) / German Civil Procedure Code
The ZPO contains the rules dealing with “real” German Civil Litigation. Whether you need to file a monetary claim, a tort claim or a petition for preliminary injunction: In case you (or your client) needs to go to court in Germany in a matter that is not regulated by a more specific procedure code (like labor law, family law, contentious probate etc.), the rules of civil procedure are what you need to adhere to. The principles of the ZPO are the main topic of this blog.
Arbeitsgerichtsgesetz (ArbGG) / German Labor Court Procedure Rules
Forensic disputes between employer and employees in Germany are regulated by specific procedural rules. One main difference from the normal German Civil Procedure Rules are that the focus of the court is even more on trying to reach a settlement. Also, in German labor law disputes, each party must bear the costs for their own legal counsel, regardless of the outcome of the lawsuit. Thus, even if you win the case, you must still bear your own lawyer’s legal fees. This is an exception from the general principle under German procedural law that the party which prevailed, is reimbursed for their reasonable legal costs. The idea behind this exception is that an employee shall not be deterred from filing a labor lawsuit out of fear to have to bear the employer’s legal bills. Note: in labor law cases, a party does not have to be represented by a legal counsel.
Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG) / Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction
Long title, indeed. The FamFG is of practical importance, because its procedural rules do apply in all German family law matters (Familiensachen) as well as in German non-contentious probate matters (Nachlassverfahren), unless and until a party opts for the contentious probate route and escalates this to the High Court level (more in this post). The procedure rules of the Fam FG are quite different from those of the Zivilprozessordnung (ZPO) which govern regular civil litigation. ZPO procedure rules are more confrontational in nature. The parties, for example, are named plaintiff (Kläger) and defendant (Beklagter). Whereas, under der procedural regime of the FamFG, the procedural approach and the terminology are less aggressive. Here, the parties are called applicants (Antragsteller) or participants (Beteiligte).
Gerichtsverfassungsgesetz (GVG) / German Courts Constitution Act
The GVG lays out the German court system, i.e. how German courts are organised, how judges are appointed and regulates how German courts
Gerichtskostengesetz (GKG) / German Court Fees Act
The fees to be paid to the court in German (contentious) forensic matters are regulated in the Gerichtskostenkostengesetz (Court Fees Act). The GKG tells you how much and when to pay in court fees, advancements for court appointed experts and other costs related to a German court case (e.g. costs for serving court papers in the USA or for having German court orders translated into English). For information on lawyer fees in Germany, please see the post How to retain a German lawyer.
An interesting aspect of German court fees is that they are drastically reduced if the parties do settle. This court fee reduction is meant as an incentive for the parties to end the legal dispute without need of a court order. Thus, German judges will always promote a settlement. In gact, they are under the legal obligation to do so, see the post: How to settle a German lawsuit.
The text of the GKG is only available in German and it is certainly a complicated read, even for German lawyers. But in case you feel up for it, here you go:
Gesetz über Kosten der freiwilligen Gerichtsbarkeit für Gerichte und Notare (GNotKG) / German Court Fees Act in Non-Contentious Matters
In non-contentious German court matters (see FamFG above), the court fees are usually significantly lower compared to “real” lawsuits. Thus, there is a specific court fees act for such family law and probate matters. Some of those are being dealt with by German civil law notaries
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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