The German Judicial System

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1 European Consumer Centre Germany European Consumer Centres Network Manual for European consumers The German Judicial System

2 Summary A. Introduction Seite 3 B. Juriciary in Germany 1. Where to take legal action a. Constitutional courts b. Ordinary courts c. Labour courts d. Administrative courts e. Social and Financial courts 2. Who to give you legal advice (legal professions) a. Attorneys at law/barristers b. Notaries c. Registrars ( Rechtspfleger ) d. Tax Counselors 3. Legal remedies a. Berufung b. Revision 4. Enforcement of judgments 5. Defense/legal insurance 6. Legal aid ( Prozesskostenhilfe ) C. Special procedures 1. Judicial dunning procedure ( Mahnverfahren ) a. Mahnbescheid b. Vollstreckungsbescheid 2. European Order for payment 3. Small claims Regulation 4. Insolvency procedure 5. Administrative offence ( Ordnungswidrigkeitenverfahren ) D. Helpful vocabulary E. Useful adresses Seite 4 Seite 4 Seite 6 Seite 7 Seite 8 Seite 11 Seite 11 Seite 12 Seite 12 Seite 13 Seite 15 Seite 16 Seite 17 Seite 18 Seite 19 2 December 2010

3 A. Introduction Anyone might be forced to go to court once. Legal proceedings though are often expensive and time-consuming. A legal proceeding is usually even more complicated if it takes place in another country and this often prevents consumers from claiming their rights. Therefore the European Consumer Centre Germany has published this brochure in order to help consumers from other countries in the European Union who are facing a legal proceeding in Germany or are searching for legal advice. The basic principle of the German Judicial System is the one of the Rechtsstaat (rule of law). This means that any action taken by an executive authority has to be based on law. Furthermore any decision taken by an authority can be challenged in court. The German legal system differs fundamentally from the Anglo-Saxon common law system, in which courts rely mainly on precedents from prior cases (case law). In Germany judges base their judgments on legal codes. The legal codes delineate abstract legal principles and the judges must decide the specific cases on the basis of these standards. Although there are also some landmark decisions that had a strong impact on the German society (especially some decisions of the Federal Constitutional Court), court decisions in Germany in general haven t got the same importance than the case law in the Anglo-Saxon countries. In order to get a short overview over the complex German judicial system, the European Consumer Centre Germany has released this brochure. For further advice on this issue you are always welcome to contact ECC Germany. 3

4 B. Judiciary in Germany The judicial system in Germany comprises basically three different types of courts: Ordinary courts, dealing with criminal and most civil cases, specialised courts, such as the administrative, labour, social and fiscal courts, and finally constitutional courts which are competent for judicial review and constitutional interpretation. 1. Where to take legal action The German legal system is subdivided in constitutional courts ordinary courts, consisting of civil and penal courts social courts administration courts financial courts and labour courts a. Constitutional courts The Federal Constitutional Court ( Bundesverfassungsgericht ) is Germany s highest and most important judicial body. The jurisdiction of this court has had an enormous impact on the development of the Federal Republic of Germany and is known as the guardian of the constitution. Attention: In Germany everybody has got the right to appeal to the Federal Constitutional Court in order to check whether the action of a public authority (a judgment, a law or an administrative act) is in accord with the German constitution ( Grundgesetz ). The Federal Constitutional Court is the last level of jurisdiction and you will have to run through all other possible instances before going to Karlsruhe which is the city where the Court is located. Nonetheless, it is no super revision instance as it only deals with constitutional questions. 4

5 b. Ordinary courts Ordinary courts are competent for criminal matters, civil matters, matrimonial and family proceedings. Furthermore for non-contentious proceedings such as the maintaining of the company register. Ordinary courts are organized in four tiers, each of increasing importance: the local courts ( Amtsgerichte ), the regional courts ( Landgerichte ), the higher regional courts ( Oberlandesgerichte ) and the Federal Court of Justice ( Bundesgerichtshof ). In criminal cases, each of the first three courts may have jurisdiction, depending on the nature and seriousness of the crime. In civil proceedings, either the local or the regional court can be court of first resort. Appeals may mostly be lodged with up to two higher courts. c. Labour courts Labour courts handle disputes under private law arising from employment contracts and between management and labour force as well as matters covered by the Works Constitution Act. Labour courts have got three instances. They are for example competent for the question whether an employee has been fairly dismissed or not. d. Administrative courts The jurisdiction of the administrative courts covers legal protection against all administrative acts and other administrative proceedings. The administrative courts handle all trials under public administrative law, except those that fall under the jurisdiction of the social, finance or constitutional courts. Administrative courts have also got three levels. e. Social and Financial courts The social courts rule on disputes from all areas of social security. They have also got three instances. Financial courts have only got two levels and are dealing with taxation and related matters. 5

6 2. Who to give you legal advice The social courts rule on disputes from all areas of social security. They have also got three instances. Financial courts have only got two levels and are dealing with taxation and related matters. a. Attorneys at law/barristers ( Rechtsanwalt ) legal professions In some legal proceedings in Germany you are obliged to be represented by an attorney at law. While in civil law cases before the local district courts there is usually no such obligation, you always have to be represented by an attorney at law before the regional courts, the higher regional courts and the Federal Court of Justice. In criminal matters you have the right to be represented by a court-appointed counsel if you are accused of having committed a serious crime and haven t got the means to pay for an attorney at law on your own. In smaller criminal offences you do not necessarily have to be represented by a attorney at law. All attorneys at law have to be members of the Bar Council for where their office is located. The fees attorneys at law can charge you are regulated by law in the Rechtsanwaltsvergütungsgesetz (RVG). However fees can also be negotiated between the attorney at law and his client on an individual basis. Attention: Before you mandate an attorney at law you should sufficiently inform yourself about the costs he is going to charge. You should negotiate with your lawyer whether he will bill his hours or calculate fees according to the amount in dispute. b. Notaries ( Notar ) The legal status of notaries in Germany is that of an independent holder of a public office. They are appointed in order to certify legal transactions and perform other duties in the area of precautionary legal care. In parts of Germany, attorneys at law are appointed as notaries and practice as notaries in addition to the profession of attorney at law (attorney-notaries), while in other parts of the country persons are appointed to work exclusively as notaries (main-profession notaries or exclusive notaries). In the Land of Baden-Württemberg notaries can also be civil servants. Apart from a few exceptions, notaries have exclusive powers to undertake certifications. Certification is statutorily prescribed in particular in respect of contracts relating to land and in respect of particular transactions in the areas of company, family and inheritance law. All notaries are members of the chamber of notaries for where their business office is located. 6

7 c. Registrars ( Rechtspfleger ) Registrars are independent providers of legal services. Their function and position is laid down in the German Registrars Act ( Rechtspflegergesetz ). If you haven t got the means to pay an attorney at law the registrar can give you first legal advice and assistance ( Beratungshilfe ). If you need further advice from a professional attorney at law the registrar can give you a voucher for legal assistance ( Beratungshilfeschein ). With this voucher you can get legal advice from an attorney and have to pay only 10 Euros for this service. d. Tax counselors ( Steuerberater ) In Germany, tax counselors are called Steuerberater. They can give you advice in tax and accounting measures. Since the German tax law is considered to be one of the most complicated in the world it can be helpful to consult a tax counselor e.g. for your annual tax declaration if you are obliged to pay taxes in Germany. 3. Legal remedies If you are not satisfied with a judgment there are usually two types of appeal, Berufung (appeal on questions of fact or law) and Revision (appeal on questions of law). You have to be aware though that in civil law proceedings at ordinary courts an appeal is only possible if the amount in dispute is higher than 600 Euros or if the first instance considers a decision by a higher court essential in order to assure consistency in jurisdiction. a. Berufung The Berufungsinstanz (instance of appeal) represents a second instance where you can challenge the decision of the lower court both in legal terms and in terms of fact. In civil law cases you are though only allowed to bring forward new facts of the case under very limited circumstances while in a criminal legal proceeding all facts of the case are reevaluated. b. Revision The Revisionsinstanz (instance of revision) only allows a petitioner to question in legal terms whether substantive law has been applied correctly and whether the fundamental procedural Regulations have been observed. While in criminal legal proceedings the parties can directly invoke the Revisionsintanz in civil law cases it is only possible after the decision of the Berufungsinstanz and if this decision is left to appeal on a point of law. 7

8 4. Enforcement of judgments If you have succeeded in a legal proceeding you will get a legal title which you can enforce. In Germany it is the Gerichtsvollzieher (bailiff) or the execution court in the judicial district of the adverse party s residence who is competent for the enforcement of legal titles. Titel, Klausel, Zustellung : After having obtained a legal title ( Titel ), you will have to ask the authority to execute ( Vollstreckungsklausel ) which will be endorsed on your judgment. The therefore endorsed title has to be notified to the adverse party ( Zustellung ). According to European legislation you have also got the possibility to enforce a legal title from one European country in another European country. As a British citizen you have succeeded in a legal proceeding that was taking place in Great Britain against a company that is based in Germany. You have got the possibility to enforce this title in Germany. In this case, you must additionally to the above mentioned steps apply to the relevant court in Germany for a declaration that the foreign judgment is enforceable (exequatur) according to Regulation (EC) 44/2001. Example In cross border case you will always have to consider two questions before you go to court: Which one is the competent court and which law will this court apply? Assuming that you have been on holiday in Germany and on this occasion you have bought a digital camera. Back home you get aware that it is not really working as it should and you therefore contact the trader in Germany who denies any responsibility. Excursus: Applicable law and competent courts You are now considering going to court, but will you have to seek a German court or do your home country s courts have jurisdiction? The answer to this question gives Regulation (EC) 44/2001: In general the factor determining jurisdiction is the domicile of the defendant: Persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. According to this general rules, you would have to file your claim with the German courts as the defendant is domiciled in Germany. 8

9 Nevertheless, the Regulation contains a number of provisions that depart from this principle and allow court proceedings to be brought in another Member State other than where the defendant is domiciled. If the contract has been concluded between a consumer and a person who pursues commercial or professional activities in the Member State of the consumer s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities, the consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled. As the German trader sold you the good in his shop in Germany, he didn t directive his activities to the Member State of your domicile and you therefore can t choose to bring your issue to the courts of your country of residence. Which law will the court then apply? You will find the answer to this question in the 1908 Rome Convention which has been replaced by the Rome-I-Regulation by 17th of December 2009: As a basic principle of the Convention as well as the Regulation the applicable law can be freely chosen by the parties (freedom of choice). Where the parties have not determined which law shall be applicable to their contract, the contract will be governed by the law of the country with which it has the closest connection. The contract is presumed to be connected with the country where the party who is to provide the characteristic performance is habitually resident, which in general in practice means that a sales contract is governed by the law of the country where the seller is established and a contract for services is governed by the law of the country place where the service provider is established. But these are only presumptions and the court can choose to apply a different law if it finds that such law is more closely connected with the contract in question. In order to protect the weaker parties, such as consumers, the Convention and the Regulation foresee that the application of a particular law shall not deprive a consumer of the protection of mandatory rules of the law normally applicable to them 9

10 until the 17th of December 2009 from the 17th of December 2009 if in that country the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and he had taken in that country all the steps necessary on his part for the conclusion of the contract, or if the professional pursues his commercial or professional activities in the country where the consumer has his habitual residence, or if the other party or his agent received the consumer s order in that country or if the contract is for the sale of goods and the consumer travelled from that country to another country and there gave his order, provided that the consumer s journey was arranged by the seller for the purpose of inducing the consumer to buy. if he, by any means, directs such activities to that country or to several countries including that country and the contract falls within the scope of such activities. If you are living in the French border region and you regularly receive advertising leaflets from a shop in German, French law will be applicable to a contract closed in this shop. But the consumer could choose to go either to a French or a German court. Example If you are Austrian and travel to Germany with an organized selling tour and the trader has invited you in order to conclude the contract the Austrian law should be applicable. You can choose between an action to an Austrian or a German court. If you as a Polish consumer order something via internet from a German trader who is offering his goods on a homepage in Polish and who delivers the goods to Poland, then Polish law should be applicable in this case. The Polish or the German court can be addresses. Attention: If you are not sure which law is applicable or which court is competent in your case the European Consumer Centre in your country of residence is competent to give you further advice. 10

11 5. Defense/legal insurance If you want to insure the risk of having a legal dispute, you might conclude a legal insurance ( Rechtsschutzversicherung ). The insurance company will cover the costs if you are involved in a legal proceeding. In Germany applies the general principle that the unsuccessful party shall bear the costs of the proceedings: the looser pays! If you decide to conclude a legal insurance you should carefully read all the contract clauses. First of all there are different types of legal insurances. You can often decide for what kind of disputes you want to have coverage (e.g. rent, car accident or your employment contract). You are also often obliged to cover your own risk with an amount of up to several hundred Euros. Attention: Legal insurances often only cover disputes for the country where they were concluded. If you need coverage from your legal insurance for eventual disputes in Germany you should carefully check the terms and conditions of your contract. 6. Legal aid ( Prozesskostenhilfe ) In Germany it is considered to be part of the rule of law that no one should be prevented from going to court when he has got a well founded claim because he hasn t got the means to pay for the legal proceeding. Therefore these people have got the possibility to ask for legal aid. In order to get legal aid you have to fill in a questionnaire which you can get from an attorney at law or directly at the competent court. Before you will be granted legal aid, the competent court will evaluate the chances whether you can succeed with you claim. Since December 2004 you can, according to European legislation, also ask for legal aid if you want to go to court in another country of the European Union. If you are entitled to receive legal aid in this case depends on whether you are considered to be in need of assistance in your home country. Example You are a Greek citizen and want to go to court in Germany but haven t got the means to do so. Then you can ask for legal assistance for this procedure in Greece. You will then be granted legal aid according to the requirements in your home country Greece. 11

12 C. Special procedures The following procedures are adapted to help you getting your right in a quite simple and quick way e.g. when somebody in Germany owes you money, didn t deliver the requested product or when you had a car accident in Germany. 1. Judicial dunning procedure If someone owes you money in Germany and refuses to pay it back you don t have to start a legal proceeding straight away. There is also the possibility to start an easier and less costly Mahnverfahren (judicial dunning procedure) first. Mahnverfahren a. Mahnbescheid There is a standardised form for this procedure. You can just fill in a questionnaire where you mention the contact details of the debtor and the sum in dispute. The competent court, which is for European citizens outside Germany the Amtsgericht Wedding (Berlin) will not examine the facts of the case. Furthermore no documents are required to prove your claim which makes the whole procedure very simple compared to a lawsuit. For this procedure you don t have to be represented by a lawyer. You have to be aware though that the defendant has got the possibility to file a notice of opposition against the Mahnbescheid. If the debtor contests the claim, the court issuing the order (the dunning court) passes the legal dispute on to the competent court for this case, if you have applied for the dispute to be settled. You can get the form for the Mahnbescheid online under https://www.online-mahnantrag.de/omahn/mahnantrag?_ts= &command=start Attention: You will find further information about the judicial dunning procedure on the homepage of the European Consumer Centre Germany under the following address: judicial-dunning-procedure/ There we also provide an English version of the questionnaire. 12

13 b. Vollstreckungsbescheid If the defendant doesn t file a notice of opposition, the creditor can apply for an enforcement order ( Vollstreckungsbescheid ). The application for an enforcement order can only be made after the time limit of two weeks for the notice of opposition has been expired. The enforcement order is already preliminary enforceable. If the defendant doesn t file a notice of opposition within two weeks after he has received the enforcement order, you are entitled to finally enforce your title which can be considered as an equivalent to a court decision. With this title you will have the possibility of compulsory execution for up to thirty years. Attention: The Mahnverfahren is a convenient and cheap method to get your money back from your debtor. It is a possibility to circumvent a time consuming and costly court proceeding. It is especially advisable when your claim is well founded. Nonetheless, you will have a German title to be executed in another Member State. You will therefore have to proceed in that Member State the procedure of recognition of the title (exequatur) before you can execute. In order to facilitate cross border means of civil redress, the European Union has decided on 2 regulations settling rules for procedures which are even easier and quicker to conduct than the dunning procedure: the European order payment procedure for uncontested claims and the small claims procedure for contentious claims not exceeding European order for payment procedure Since consumers often face difficulties to get their money back in a cross border case, the European Parliament together with the Council have passed a Regulation which came into force on the 12th of December 2008 (except in Denmark). The Regulation establishes a European procedure for orders of payment. The procedure simplifies, speeds up and reduces the costs of litigation in cross-border cases concerning uncontested pecuniary claims. The procedure does neither require presence before the court nor representation by a lawyer: It can even be started and handled in a purely electronic way. 13

14 The form must include the key details, like the names and addresses of the parties and their representatives, the name and address of the court to which the application is made, the amount of the claim, the cause of the action and the cross-border nature of the case. You will have to complete it in the language of the Member State in which the court is situated. But thanks to the availability of standard forms for the communication between the parties and the court that are available in all EU languages language problems are minimised. The court to which an application for an European order for payment has been made considers whether the application conditions have been met. If the conditions are met, the court issues the order as soon as possible and normally within 30 days of the lodging of the application. The judicial decision obtained as a result of this procedure will circulate freely in the other Member States; the creditor will not have to undertake intermediate steps to enforce the decision abroad like the above mentioned exequatur. Only a translation of the title in the language of the Member State where it shall be executed will be asked. Attention: The form of the European order of payment will facilitate the procedure of claiming your money back in another country of the European Union. Whereas the dunning procedure is a two-stage process and its title has to run trough the exequatur procedure in the country where you want to execute it, the European order for payment procedure is enforceable after one step and without exequatur. You will find the questionnaire as well as further information under the following addresses: 14

15 3. Small Claims Regulation Not only the order for payment procedure will facilitate the possibility to get your money back from a debtor within the European Union. On the 1st of January 2009 the Regulation on small claims came into force. This procedure facilitates cross-border legal proceedings with an amount in dispute of up to Euros and applies to pecuniary claims as well as to non-pecuniary claims. Whereas the European order for payment procedure is the accurate procedure for not contested claims, the small claims procedure will be the good choice if you reckon with the other party s objection. As a consumer you will therefore have easier access to justice no matter if you had a problem with a small car accident in your holidays or if the internet trader from whom you bought a product did not fulfill his contractual obligations. To initiate the procedure you can also fill in a standardised form establishing time limits for the parties and for the court in order to speed up litigation concerning small claims. You don t have to be represented by an attorney at law. This will enable you to claim your rights in an efficient and cheap procedure. The procedure is a written procedure, unless an oral hearing is considered necessary by the court. The court may hold a hearing or take evidence through a video conference or other communications technology if the technical means are available. Finally, the Regulation abolishes the intermediate measures to enable the recognition and enforcement of a judgement given in a European Small Claims Procedure. A judgment shall be recognised and enforced in another Member State automatically and without any possibility of opposing its recognition. Attention: The small claims Regulation will give you the possibility to deal with a cross-border dispute on your own by using a standardised questionnaire. 15

16 4. Insolvency procedure If you have got a claim against a company and this company has meanwhile declared insolvency you have got the possibility to register your claim in the insolvency procedure. Attention: When you have got a claim against a company that is based in Germany and you don t know whether this company has declared insolvency the European Consumer Centre Germany can give you further advice. We can find out whether a company has declared insolvency and where you can register your claim. After a company has declared insolvency the competent court will transfer the case to a liquidator. This liquidator will then decide whether it is possible to open an insolvency procedure or whether this has to be rejected since the company doesn t have any means to pay back its debts. In case the liquidator decides to open the procedure you have got the possibility to register your claim at the liquidator s office. Be aware that only the liquidator and not the court is competent for the registration of your claim. You will find an English translation of a form for an insolvency procedure as well as further information on our homepage under: legal-procedures/insolvency-procedure/ When your claim is considered to be well founded and it is asserted that the company still has got the means to pay its debts, you will receive your money back or at least a part of it (the insolvency rate). 16

17 5. Administrative offence Ordnungswidrigkeit When you have committed an administrative offence (e.g. speeding fine, crossing a red light) and are stopped by the police they will usually ask you for a deposit for which you will get a receipt. When you finally receive the notice of the committed offence, you have got the right to appeal against this decision within two weeks. According to your appeal the authorities can decide whether to reduce the requested amount or even to renounce their last decision. Otherwise the authority will forward the case to the competent court that will then decide over your appeal. Attention: Due to a European Resolution there will most likely be the possibility to enforce administrative offences that you have committed in a EU-Member State in your home country. This possibility exists for fines higher than 70 Euros since November Nonetheless, you should always carefully respect the traffic rules in each European country. If you are interested in further information about the legal system in Germany or are facing one of the above mentioned problems the European Consumer Centre Germany will give you further advice. Just contact: Europäisches Verbraucherzentrum Deutschland Rehfusplatz 11 As of March 2011: Am Bahnhofsplatz Kehl Germany Phone: 0049-(0) Fax: 0049-(0) Mail: Please note that even after an accurate research we can not guarantee for the accuracy of the given information and therefore deny any liability for it. 17

18 D. Helpful vocabulary Amtsgericht: local court Arbeitsgericht: labour court Berufung: appeal (on issues of fact and law) Betriebsrat: staff association / workers council BGB: German Civil Code Bundesgerichtshof: Federal Court of Justice Bundesverfassungsgericht: Federal Constitutional Court Finanzamt: tax office Garantie: product warranty Gewährleistung: statutory warranty Gebühren: fees Gerichtsvollzieher: bailiff Güteverfahren, Streitschlichtung: conciliatory proceedings Kündigungsschutzgesetz: Employment Protection Act Kündigungsschutzklage: action against unfair dismissal Landgericht: district court Mahnbescheid: court order/default summons Notar: notary Oberlandesgericht: higher regional court Prozeßkostenhilfe: legal aid Recht: law Rechtsanwalt/Anwalt: attorney at law/barrister Rechtsschutzversicherung: insurance of defence and recovery Revision: appeal (on issues of law) Richter: judge Sicherheitsleistung: security lodging/provision Steuerberater: tax counsellor Strafzettel, Bußgeld, Verwarnungsgeld: fines Vollstreckungsbescheid: enforcement order 18

19 E. Useful adresses European Consumer Centre Germany Rehfusplatz 11 As of March 2011: Am Bahnhofsplatz 3 D Kehl Phone: 0049/7851/ Fax: 0049/7851/ Web: Mail: The European Consumer Centres provide consumers with information on cross-border purchase of goods and services, with assistance in the amicable resolution of cross-border complaints and out of court procedures. Bundesrechtsanwaltskammer (Federal Bar) Littenstraße 9 D Berlin The German Federal Bar is the umbrella organisation of 27 regional Bars Phone: 0049/30/ and the Bar at the Federal Court of Fax: 0049/30/ Justice. The Bars represent approx. Web: 117,000 lawyers in Germany. Mail: Bundessteuerberaterkammer (Federal Chamber of Tax Consultants) Haus der Steuerberater Neue Promenade 4 The German Federal Chamber of Tax D Berlin-Mitte Consultants assists in the search and selection of tax consultants which Phone: 0049/30/ provide assistance on issues relating to Fax: 0049/ tax law, business management, and in Web: choosing the correct legal structure. Mail: Bundesministerium der Justiz (Federal Ministry of Justice) Mohrenstraße 37 D Berlin The Federal Ministry of Justice provides a range of informational material as well as free online access to Phone: 0049/30/ Fax: 0049/30/ virtually the entire body of current Web: federal law. LINKS: en.htm (European Judicial Atlas in Civil Matters) (Court of Wedding) (European Judicial Network) 19

20 EURO-INFO-VERBRAUCHER e.v. An independent French-German consumer association Rehfusplatz 11 As of March 2011: Am Bahnhofsplatz KEHL phone: fax: Open to the public: Tuesday to Thursday 9 a.m. 12 p.m. and 1 p.m. 5 p.m. Kehl/Straßburg One address - Two services European Consumer Centre Germany European Consumer Centre France ECC-Net: European Consumer Centres Network The ECC Germany is funded by the Federal Ministry of Justice (Germany) and the Federal Ministry of Food, Agriculture and Consumer Protection (Germany), following a decision of the German Parliament, as well as by the European Commission.

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