Professional Documents
Culture Documents
Legal Sytem Germany PDF
Legal Sytem Germany PDF
December 2010
2
A. Introduction
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
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.
a. Constitutional courts
4
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.
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.
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
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 legal
two levels and are dealing with taxation and related matters. professions
a. Attorneys at law/Barristers (“Rechtsanwalt”)
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
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.
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
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.
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 Excursus:
on this occasion you have bought a digital camera. Back Applicable law
home you get aware that it is not really working as it and competent
should and you therefore contact the trader in Germany courts
who denies any responsibility.
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
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.
9
until the 17th of December 2009 from the 17th of December 2009
if in that country the conclusion of the if the professional pursues his commercial
contract was preceded by a specific or professional activities in the country
invitation addressed to him or by where the consumer has his habitual
advertising, and he had taken in that residence,
country all the steps necessary on his part
for the conclusion of the contract, or
or
if the other party or his agent received the if he, by any means, directs such activities
consumer’s order in that country to that country or to
several countries including that country
or
if the contract is for the sale of goods and and the contract falls within the scope of
the consumer travelled from that country such activities.
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 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 Example
consumer could choose to go either to a French or a German
court.
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
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.
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.
http://ec.europa.eu/justice_home/judicialatlascivil/html/la_information_en.htm
11
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.
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=838010-
1141121731582&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: http://www.eu-verbraucher.de/en/legal-procedures/
judicial-dunning-procedure/
There we also provide an English version of the questionnaire.
12
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 2.000 €.
13
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.
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:
http://www.eu-verbraucher.de/en/legal-procedures/european-judicial-
procedures/
14
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 2.000 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
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: http://www.eu-verbraucher.de/en/
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
5. Administrative offence
When you have committed an administrative offence (e.g.
“Ordnungs- speeding fine, crossing a red light) and are stopped by the
widrigkeit” 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 2010.
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:
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
D. Helpful vocabulary
18
E. Useful adresses
LINKS:
http://ec.europa.eu/justice_home/judicialatlascivil/html/fillinginformation_
en.htm (European Judicial Atlas in Civil Matters)
http://www.mahngerichte.de/mahngerichte/wedding.htm (Court of Wedding)
http://ec.europa.eu/civiljustice/ (European Judicial Network)
19
EURO-INFO-VERBRAUCHER e.V.
Rehfusplatz 11
As of March 2011: Am Bahnhofsplatz 3
77694 KEHL
phone: +49 7851 991 48 0
fax: +49 7851 991 48 11
e-Mail: info@euroinfo-kehl.eu
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
www.euroinfo-kehl.eu
ECC-Net: European Consumer Centres Network
http://ec.europa.eu/consumers/ecc/index_en.htm
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.