Civil Procedures in German: How to File and Defend a Civil Claim in Germany
Whether you are initiating a claim or have been served as a defendant in Germany, this post will provide a brief guide on what to expect and offer practical insights, following the typical timeline of a dispute before German courts.
Step 1: Filing a claim
The first step to initiate a civil lawsuit in Germany is to file a complaint with the competent German court (“Klageschrift”). The complaint must contain the following information:
- The names and addresses of the parties and their lawyers (if any)
- The facts and legal arguments that support the claim
- The relief sought by the claimant (e.g., payment of a specific amount of money, injunction, declaration of rights, etc.)
- The evidence the claimant intends to rely on (e.g., witnesses, documents, experts, etc.)
In case the value in dispute exceeds EUR 5,000, representation by counsel is mandatory, meaning that a lawyer must submit the statement of claim to the court.
Practical tip:
It is advised to always formally notify the defendant before initiating the proceeding, setting a final deadline for the payment. Otherwise, upon initiation of the proceeding, the defendant may immediately acknowledge the claim with the consequence that the claimant is liable for all costs involved.
Step 2: Case management by the court
Once the complaint is filed, the court will check if it meets formal requirements and if the plaintiff has paid the court fees or been granted legal aid. If everything is in order, the court will serve the complaint to the defendant and set a deadline for the response.
Practical tip:
In arbitration proceedings, the tribunal will usually conduct a case management conference with the parties at the beginning of the proceeding, agreeing on a procedural calendar containing all relevant dates of the upcoming proceeding. German courts will not align their case management with the parties and will not prepare a procedural calendar on the outset. Rather, in German courts are reactive, and may spontaneously set further deadlines during the proceeding if they find that not all issues have sufficiently been addressed.
Step 3: Responding to the complaint
The defendant has the right to defend themselves against the claim by filing a response with the court. The response is called “Klageerwiderung”, which means “statement of defense”. The response must contain the same information as the statement of claim (i.e. facts and legal arguments, evidence and a request for relief) and is subject to the same formal requirements.
Step 4: Conducting a settlement negotiation
Before the court proceeds to the oral hearing, it will try to facilitate a settlement between the parties. The settlement negotiation is called “Güteverhandlung”, which means “conciliation hearing”. The purpose of this hearing is to explore the possibility of a mutually acceptable resolution of the dispute, with the help of the judge. The judge will explain the strengths and weaknesses of each party’s case and may even propose a specific settlement option. The parties are required to attend the hearing in person or through their lawyers and to negotiate in good faith. If the parties reach a settlement, the judge will record it in a written document, which has the same effect as a final judgment. If the parties do not reach a settlement, the judge will schedule a date for the oral hearing.
Practical tip:
In most cases, the court will schedule the conciliation hearing on the day of the main oral hearing. In case no agreement is reached during the conciliation hearing, the court will immediately proceed with the oral hearing on the matter.
Step 5: Conducting an oral hearing
The oral hearing is the main stage of the civil lawsuit, where the parties present their arguments and evidence to the court. The hearing is conducted according to the following principles:
- Oral pleadings: The parties and their lawyers must present their arguments and evidence orally to the court, but may rely on the prior written submissions.
- Immediacy: The judge must hear and examine the evidence directly, without relying on intermediaries or reports.
- Party responsibility: The parties are generally responsible for presenting their case and evidence to the court, without the court’s assistance or intervention. However, the court is required to notify the parties of relevant issues they may have overlooked and give them the opportunity to address these.
The hearing begins with the judge calling the case and the parties. The judge then summarizes the main issues of the case and asks the parties if they have any preliminary objections or motions. The judge also tries to narrow down the disputed facts and legal questions and to encourage the parties to settle. If the parties do not settle, the judge will proceed to the examination of the evidence. The evidence may consist of:
- Witness testimony: The witnesses are questioned by the judge and the parties, under oath or affirmation.
- Expert opinion: The experts are appointed by the court or the parties, and they give their opinion on technical or scientific matters, under oath or affirmation.
- Documentary evidence: The documents are submitted by the parties or obtained by the court, and they are read or shown to the court.
- Inspection evidence: The court inspects the objects or places that are relevant to the case, either in person or through photographs or videos.
The judge evaluates the evidence according to the principle of free conviction, which means that the judge is not bound by any rules of evidence or proof, but by their own conscience and rationality. The judge also gives the parties the opportunity to comment on the evidence and to make their final arguments. The hearing ends with the judge closing the oral argument and announcing the date of the judgment.
Practical tips:
- Upon request of the parties, the court may grant the conduct of a virtual hearing.
- While the hearing is an important element of the proceedings, it is usually scheduled for a single session on a single day and generally handled in less than 3 hours. In simple cases, a hearing can be concluded in 15 minutes.
Step 6: Rendering a judgment
The judgment is the final decision of the court on the merits of the case. The judgment is called “Urteil”, which means “verdict”. The judgment must in particular contain the following elements:
- The names and addresses of the parties and their lawyers
- The court that has rendered the judgment
- The date and place of the judgment
- The operative part of the judgment, which states the outcome of the case and the obligations of the parties
- The reasons for the judgment, which explain the facts and the law that support the outcome
- The signature of the judge or judges
Step 7: Appealing the judgment
The parties have the right to appeal the judgment if they are not satisfied with the outcome or the procedure of the case. The appeal is called “Berufung”. It must be filed with the court that has rendered the judgment within one month of the service of the judgment.
The appeal is heard by a higher court, which may be a regional court (Landgericht) or a higher regional court (Oberlandesgericht), depending on the value and nature of the case. The appeal court will review the case based on the facts and the law, and it may (under certain circumstances) admit new evidence or arguments, if necessary. The appeal court will conduct a new oral hearing, following the same rules and principles as the first instance court. The appeal court will then render a new judgment, which may confirm, reverse, or modify the judgment of the first instance court. The appeal court’s judgment may be further appealed to the Federal Court of Justice, if the appeal court grants the permission or if the case involves a question of law of fundamental importance.
Practical tip:
Recent statistics show that only 10-20% of appeals are successful. It is therefore paramount to thoroughly review the chances of success beforehand and conduct a proper risk assessment.
Conclusion
We hope this blog post has provided you with a useful overview of the main features of a civil lawsuit in Germany. If you have any questions or need assistance regarding German litigation, please do not hesitate to contact us.
For more information about our litigation and arbitration experience, please visit our website.
