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.

Hasty lawsuits come with a cost risk

The only real risk a claimant takes when suing without any prior warning letter to the other party is that the defendant immediately acknowledges the claim (sofortiges Anerkenntnis). In these cases, the claimant does win the court case but is stuck with the full legal costs, i.e. court fees and both sides lawyer’s fees. This is due to section 93 German Civil Procedure Code which rules:

Costs in the event of an immediate acknowledgment by Defendant

Where the defendant has not given cause for an action to be brought, the plaintiff shall bear the costs of the proceedings should the defendant immediately acknowledge the claim.

Thus, if a claim does exist and the defendant can demonstrate that he or she would have immediately paid if the claimant had only asked for it, then the claimant does obtain the judgment in his favour but is stuck with all costs of the civil trial.

Mandatory Pre-Action Conduct resulting from Contract

While German statutory law does not impose any pre-action protocol requirements, such requirements may still result from an agreement between the parties. Many contracts, especially business to business contracts, contain clauses which stipulate that in case of a dispute, the parties shall have to discuss and negotiate in good faith and try to resolve the dispute out of court. Parties may even be bound by such contractual agreements to attempt alternative dispute resolution (ADR), in German “Alternative Streitbeilegung”, like mediation (Mediation) or arbitration (Schiedsverfahren or Schlichtungsverfahren), before they initiate court proceedings.

If such a contractual clause exists but the claimant immediately sues anyway, then the defendant can raise the defence that the claimant is in breach of said contractual obligation. In practice, the German lawsuit will then be stayed until the parties have either resolved this amicably or until the pre-trial negotiations have failed.

As I have explained in this post, every German civil trial starts with mandatory settlement conferences anyway. So, even in case of an “ambush lawsuit”, the parties will be asked by the court whether there is a chance to settle the dispute without the need for a formal judgement.

More information on litigation and legal fees in Germany is available in these posts:

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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