In Germany, commercial matters are generally handled by civil courts. There are only a few types of commercial disputes that are handled by administrative or fiscal courts, for example, certain matters related to the economic activities of public authorities or tax-related matters. All other commercial cases go to civil courts.
There are several different types of appellate remedies available under German civil procedure law.
The most relevant categories by far are the two levels of appeals:
- first appeals, which deal with both the facts and the law of the case, are heard by the regional court or the higher regional court if filed against a trial judgment issued by a local or a regional court respectively; and
- second appeals against first-appeal judgments, which concern only points of law, are heard by the Federal Court of Justice.
It is also possible to request an immediate second appeal after the trial judgment has been rendered. However, this type of appeal can be risky for an appellant, because the second appeal court will generally not examine the facts of the case. Consequently, appellants will only opt for an immediate second appeal if the facts of the case are not in dispute between the parties.
Appeals are admissible against:
- final court judgments;
- interim judgments on jurisdiction;
- interlocutory judgments as to the merits of a claim;
- default judgments against which no objection can be lodged; and
- provisional judgments subject to a reservation of rights.
Apart from first and second appeals, complaints are the third most relevant category of appellate remedies in practice. German civil procedure law provides for different types of complaint as follows:
- minor court decisions by a local or regional court can be appealed by filing an immediate complaint;
- minor court decisions by the higher regional court;
- immediate complaints that can be appealed by filing a legal complaint before the Federal Court of Justice; or
- parties may file a complaint against the decision to deny a second appeal released by the first-appeal court.
Both appeals and, with some restrictions, complaints have a suspensory and a transferring effect (ie, these appellate remedies will suspend the effect of the judgment, court order or decision for the duration of the appellate remedy proceedings and the appellate court will be seised of the matter instead of the trial court).
Besides those major appellate remedies, there are further secondary remedies against other types of court decisions, such as:
- objection against default summons and default judgments;
- due process reprimand; and
- several types of reminder:
- against decisions taken by the delegated or requested judge;
- against decisions taken by the court’s records clerk;
- against decisions taken by a judicial officer;
- against the issuance of the court certificate of enforceability;
- against the nature and manner of compulsory enforcement; or
- in the event sufficient security has been provided to the creditor requesting enforcement.
Additionally, the parties may, under strict conditions, request a reopening of the proceedings after the court decision has become legally binding on the parties.
Finally, although strictly speaking they are not proper appellate remedies, commercial parties can also submit a constitutional complaint for fundamental rights abuse to the German Federal Constitutional Court, a complaint for violation of European law to the European Court of Justice or a complaint for human rights abuse to the European Court of Human Rights. However, because of their strict admissibility conditions, both with regard to jurisdiction and merits, these special appeals generally only have limited prospects of success and are therefore rare in practice.
As described in more detail in question 5, there is no alternative federal and state court system comparable to that in the United States. There is one single system that is a combination of various state courts (local courts, regional courts and higher regional courts) dealing with the trial and first appellate remedies and a single federal court (the Federal Court of Justice), which has nationwide jurisdiction. The Federal Court of Justice is the highest ordinary judicial body. One step below, there are the higher regional courts (each German federal state has at least one higher regional court). Each higher regional court has its own district with regional courts, which in turn also have districts with several local courts.
This geographical subdivision is also reflected in the recourse to courts from trial to second appeal: trial court decisions need to be appealed before a first-appeal court in whose district the trial court is located. Subsequently, second-level appeals will all be heard by the Federal Court of Justice, which is located in Karlsruhe, Baden-Wurttemberg.
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