Rüdiger Ernst
Judge at the Higher Regional Court
Berlin / Germany
The appeal in German civil procedure and the length of the process:
Facts and figures, problems and solutions
A. Introduction: federal courts constitution and appellate remedy system
The court structure in Germany and the appellate remedy system (stages of appeal) are
complicated and not easy to understand. Many say that the appellate remedy system is more
complicated than needed.
Everything that I will talk about in the next 20 minutes has been simplified. Each principle and
rule has its exceptions. For reasons of time, I will restrict my comments to the fundamental
principles.
The Federal Republic of Germany has 17 individual judicial systems. Figuratively speaking,
this is like a cosmos comprising 17 planetary systems. Why is that? The Federal Republic of
Germany is a federal state that consists of 16 Laender. Each one of these has its own complete court system. On top of this, there is a nationwide network of (five) supreme federal
courts. Not including the constitutional courts at the federal and Laender levels, there are
1,089 courts with 20,382 judges. Of these, 459 serve on federal courts and 19,923 on
Laender courts [2012]).
In each of the 16 Laender, and at the federal level, five types of courts are structured side by
side – like pillars. Civil courts and criminal courts form one pillar. The four other pillars comprise finance courts, labour courts, social courts and administrative courts. Each pillar has
one lower and one higher1 as well as a supreme court. In civil justice, the area I will be focusing on here, there are even four levels of courts (just like in criminal justice).
B. The appellate remedy system in civil action: appeal and revision (Berufung and Revision)
(not including family matters)
The civil justice court system has four tiers:
1
Exception: financial jurisdiction
2
Federal Court of Justice
Higher regional courts
at least one per Land, 24 in total
Regional courts
at least one per higher regional court district,
115 in total
Local courts
650 in total
Both the local courts and the regional courts are first instance courts. Local courts have jurisdiction for disputes up to a value of 5,000 euros, and regional courts for disputes over 5,000
euros. If the local court is the court of first instance, it is possible to lodge an appeal against
the judgement at a regional court and then to lodge a revision against the judgment at the
Federal Court of Justice. If the regional court is the court of first instance, it is possible to
lodge an appeal against the judgment at a higher regional court and then to lodge a revision
at the Federal Court of Justice.
What is the difference between appeal and revision?
As you can see, there are two different, successive forms of appellate remedy against the
ruling of the court of first instance: appeal and revision. The appeal opens the way for a
judgment rendered by the court of first instance to undergo a factual and legal review. In turn,
the revision merely opens the way for the legality of the appeal judgment to be reviewed. For
example, the court of appeal may re-hear witnesses or hear other witnesses. Or they can
commission a new expert opinion. As a rule, the court of appeal decides on the matter itself.
(It very rarely refers the legal dispute back to the court of first instance). In turn, the court of
revision is bound to the established facts as recorded by the court of first instance and the
court of appeal. If the revision is successful, the court of revision can reach a decision on the
matter itself provided that a decision can be reached based on the actual findings. The court
of revision is therefore not limited to the cassation of the disputed ruling. The decision can
therefore be overturned. However, if the court of revision believes that more facts must be
established, it will revoke the ruling and refer the matter back to the court of appeal for a new
hearing at which a new judgment will be rendered.
Can any ruling be disputed using appellate remedy?
An appeal is only permissible if either the amount in dispute exceeds 600 euros or if the court
of first instance allows for an appeal in its ruling. The court of first instance will allow an appeal if the case is of fundamental importance or the development of the law or the ensuring
of uniform jurisdiction require a decision by the court of appeal. The aim of introducing an
appeal based on admissibility in addition to an appeal based on value (in the year 2002) is to
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also allow minor disputes of particular significance to be referred to a court of appeal and
then to a court of revision (Federal Court of Justice).
The revision only takes place in one of two instances: either the court of appeal rules that it is
permissible or the court of revision rules in favour of a complaint against a decision that the
appeal is not permissible. A revision must be permitted if either the case is of fundamental
importance or the development of the law or the ensuring of uniform jurisdiction requires a
decision by the court of revision. The admissibility of a revision does not depend (no longer
depends) on whether a (high) amount in dispute on revision or a (high) value of a gravamen
has been exceeded (as was the case with the previous value-based revision). There had
been criticism that the previous version of the revision was an appellate remedy “for the rich”
because of its value-based approach.2
However, an inadmissibility complaint (with which a revision can be sought that has not been
granted) is only permissible if the gravamen is above a value of 20,000 euros.3
How do the proceedings at the court of appeal work?
Regardless of whether it is a regional or a higher regional court, the decisions reached by the
court of appeal are taken by a panel that comprises three full-time judges. The court of appeal only ever reaches its decisions after oral proceedings and must always provide detailed
reasons for its decision. Since the Code of Civil Procedure was reformed in 2002, the appeal
does not constitute a full-record court (any more) in which the legal dispute is "re-heard".
Instead, the proceedings at a court of appeal primarily serve to review and remedy any errors
that may have been made in the judgment passed by the court of first instance. Regional
courts hear around 58,000 appeals per year (2012). Higher regional courts hear around
53,000 (2012). On average, the proceedings at a court of appeal at a regional court last 6.2
months (2012) – if the dispute is resolved by a court ruling, it takes 8.7 months. A higher regional court needs 8.6 months (2012) – if the dispute is resolved by a court ruling, then 11.4
months.
In comparison: the average time for proceedings at first instance (2012) is 4.7 months for
local courts (7.2 months if the dispute is resolved by a court judgment) and 8.4 months for
regional courts (13.9 months if the dispute is resolved by a court judgment).
2
Schiffer (1949), quotation based on Jauernig/Hess, Section 72 marginal no. 10
The term of validity of this regulation of Section 26 (8) of the Introductory Act to the Code of Civil
Procedure (EGZPO) has been limited from the very beginning and has been extended several times. It
is currently valid until the end of 2014.
3
4
The court of revision (the Federal Court of Justice) reaches its decision with a panel of five
full-time judges. Every year, the Federal Court of Justice receives between 5,000 and 6,500
new appellate remedy cases (these include family matters, however).
Each time legislators attempt to amend the laws governing appellate remedy, the legal and
political significance of appellate remedies is pointed out time and time again:4
- Appellate remedies increase the chances of ensuring that the right decision is reached. The
admissibility of appellate remedies places healthy pressure on the lower courts to justify their
decisions carefully. It therefore equalises judicial independence.
- Appellate remedies serve to secure uniform jurisdiction if proceedings ultimately end up in a
supreme court or a few higher courts, whilst jurisdiction of the lower courts must remain unclear and fragmented given their large number. With 650 local courts, 115 regional courts
and 24 higher regional courts throughout the country, the function of uniform jurisdiction is of
great importance. The required development in jurisdiction can only be achieved through the
jurisdiction of the higher courts whose rulings are published. Extending the appellate remedies therefore not only serves the interests of the individual parties but also the administration of justice as a whole. This is especially true of the revision.
- Appellate remedies also have their disadvantages: they delay proceedings and make them
more expensive.
C. Duration of appellate appeal proceedings
1. Constitutional stipulations – rulings of the Federal Constitutional Court
Judicial review can only be effective if it does not come too late. The guaranteed judicial review that is derived from the principle of a state governed by the rule of law does more than
just ensure that there is legal recourse to the courts. In the interests of legal certainty, the
principle of a state governed by the rule of law requires that legal relations under dispute are
resolved within a reasonable amount of time.5
However, the Federal Constitutional Court has never provided an absolute figure to define
what a reasonable amount of time to resolve a civil dispute is. Instead, it has emphasised in
its rulings that there is no generally-accepted timeframe for determining whether proceedings
have gone on for a disproportionately long time. The Federal Constitutional Court instead
4
Jauernig/Hess, law of civil procedure, 30th edition 2011, Section 72, marginal no. 6 et. seq.
Cf. Ruling of the Federal Constitutional Court of 30th July 2009 – 1 BvR 2662/06, NJW-RR 2010,
207; ruling of 20th June 1995 – 1 BvR 166/93, E 93, 99; federal constitutional court NJW 2008, 503
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has stated that all of the individual circumstances must be taken into account.6 The main
criteria put forward by the Federal Constitutional Court in determining this are:

the nature of the proceedings and the significance of the case to the parties;

the impact of long proceedings for the parties concerned;

the level of difficulty of the matter and the conduct that can be attributed to the parties
concerned (especially delays in the proceedings caused by them) as well as

third-party activities beyond the court’s control, in particular those of experts.
Generally speaking, the Federal Constitutional Court requires that, the longer the proceedings continue, the more the court of decision must work to ensure that the proceedings are
accelerated.7
2. Stipulations of the ECHR – Rulings of the ECtHR
Sect. 6 (1) (1) of the ECHR also states this unequivocally.
In the past, not only have national courts therefore had to deal with a large number of complaints because of overlong proceedings but also the European Court of Human Rights (ECtHR). Over half of all judgments against the Federal Republic of Germany that determined
the country were in breach of the ECHR related to the duration of the proceedings.8
The ECtHR judgment passed on 26 October 2000 (No. 30210/96) marked the first time that
overlong proceedings could not only be in breach of Art. 6 (1) of the ECHR, which ensures
the right to a fair and swift trial, but also of Art. 13 of the ECHR, which guarantees the right to
effective remedy. In the view of the ECtHR, Art. 13 of the ECHR calls for a legal remedy before a national authority with which the infringement of the right to judicial review can be effectively asserted within a reasonable time.
In a large number of proceedings against the Federal Republic of Germany, the ECtHR has,
in the past, pointed out that, in contrast to Art. 13 of the ECHR in conjunction with Art. 6 of
the ECHR, German law has no effective legal remedies that allow the parties concerned either to accelerate the court’s decision or to obtain any appropriate indemnification for a delay
that has already occurred.9
When checking whether court proceedings are taking a disproportionately long time, the ECtHR also points out that each case must be reviewed on its own merits. In this context, the
ECtHR applies three aspects in particular in permanent jurisdiction:
6
Federal Constitutional Court NJW 2010, 1192
Evidence hereof can be found in Keders/Walter NJW 2013, 1697
8 Press release no. 619 of the EGMR of 2 September 2010
9 Cf. e.g. judgement of 2 September 2010 – 46244/06, NJW 2010, 3355
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
the complex nature and difficulty of the case;

the conduct of the appellant and the court; and

the significance of the legal dispute for the appellant.10
It goes without saying that this issue of overlong proceedings not only impacts the appeal
proceedings but also the proceedings at the court of first instance. Given the general topic of
this conference, I would like to focus solely on the appellate courts and especially on the appeal proceedings.
D. Measures / solutions / attempted solutions
In this next section, I would like to present a series of measures and solutions, or attempted
solutions, that have been undertaken in the past few years with the aim of shortening the
length of time that civil proceedings – and appeal proceedings in particular – take. I would
like to add, however, that this is not an exhaustive list.
1. Decision taken by a judge sitting alone (Section 526 Code of Civil Procedure)
Following the reform of the Code of Civil Procedure in 2002, it became possible for the parties to agree to the legal dispute under appeal to be referred to a judge sitting alone for him
or her to make a decision. In straightforward cases, the panel of judges can transfer the matter to one of its members as a judge sitting alone. The purpose of doing so is to use human
resources wisely (parliamentary paper 14/4722, p. 65). Thus, in contrast to the court of first
instance, a heavily restricted regulation governing judges sitting alone should be reached in
the appeals procedure. It follows from this that the appeal proceedings (including before a
regional court) should be conducted and decided by the panel in cases that are of greater
significance.11 Of the 58,241 appeals ruled on by the regional courts in 2012, 7,455 were
ruled on by a judge sitting alone (12.8%). Of the 50,868 appeals ruled on by the higher regional courts, 4,060 were ruled on by judges sitting alone (8%).
2. No oral hearing for appeals with no chance of success (Section 522 (2) ZPO)
Following the reform of the Code of Civil Procedure in 2002 – and following extensive political debate – it became possible for the court of appeal to reject appeals that had no chance
of success without having to hold an oral hearing. The aim of avoiding the need to set a
hearing date was to save on judges’ resources (parliamentary paper 14/4722, p. 97). In the
case of “unsubstantial” appeals, the aim was to swiftly establish the unappealability of the
10
11
Evidence hereof can be found in Keders/Walter NJW 2013, 1697
Zöller/Heßler, ZPO, 30th edition 2014, Sect. 526, marginal no. 1
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decision passed by the court of first instance in the interests of the plaintiff. At present, the
requirements for this are as follows:
The court of appeal is to immediately deny leave of appeal if all of the members are unanimously satisfied that
1. the appeal manifestly has no chance of success;
2. the legal matter is not of any fundamental significance;
3. the further development of the law or the interests in ensuring uniform adjudication do not
require a decision to be handed down by the court of appeal; and
4. no hearing for oral argument is mandated.
Prior to handing down such a ruling, the court of appeal or the presiding judge is to indicate
to the parties to the dispute its intention to deny leave to appeal and the reasons therefor,
and is to provide the plaintiff in the appeal with the opportunity to submit its position within a
period of time to be set.
3. Censure of delay and claims for compensation for excessively long court proceedings
Against the backdrop of the rulings of the Federal Constitutional Court and especially the
ECtHR, and following extensive legal and political debate, the “Law on Judicial Remedies in
Court Proceedings and Criminal Investigations of Excessive Length” came into force on 3
December 2011.12 This law introduced the right to claim compensation if court proceedings
were excessively long. Compensation covers material disadvantages incurred and – if other
forms of indemnification are insufficient in individual cases – also immaterial disadvantages.
Whoever as the result of the unreasonable length of a set of court proceedings experiences
a disadvantage as a party in those proceedings shall be given reasonable compensation.
The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case concerned, in particular the complexity thereof, the importance of what was at stake in the case, and the conduct of the parties and of third persons
therein.
A disadvantage not constituting a pecuniary disadvantage shall be presumed to have occurred in a case where a set of court proceedings has been of unreasonably long duration.
Compensation can be claimed therefor only insofar as reparation by other means, having
regard to the circumstances of the particular case, is not sufficient. Compensation shall
amount to EUR 1,200 for every year of the delay. Where, having regard to the circumstances
of the particular case, the sum is inequitable, the court can assess a higher or lower sum.
A party to the proceedings shall obtain compensation only if he has complained about the
length of the proceedings to the court seized of the case (censure of delay). A censure of
delay can be filed only if there is cause to fear that the case will not be concluded within a
reasonable time. A censure of delay can be reiterated at the earliest after six months, but not
in a case where a shorter duration is necessary by way of exception. Where expedition of the
proceedings depends on factors that have not yet been introduced into the proceedings, ref12
BGBl. 2011, p. 2302
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erence shall be made thereto in the censure. Otherwise, in the assessment of the reasonable
length of proceedings, account shall not be taken of these factors by the court required to
give the decision on compensation (court of compensation). Where the proceedings are further delayed before another court, it shall be necessary to file a new censure of delay.
Reparation by other means shall be possible in particular where the court of compensation
makes a finding that the length of the proceedings was unreasonable. Such finding shall not
require the making of a prior application. In serious cases the finding can be made in addition
to compensation.
A court action to enforce a claim can be brought at the earliest six months after the filing of
the censure of delay. The court action must be brought no later than six months following
entry into final and binding force of the decision ending the proceedings, or following another
manner of disposal of the proceedings. The claim shall not be transferable until a final and
binding decision has been given in the court action.
In civil proceedings, the higher regional courts are responsible for claims for compensation.
To date, 13 judgments have been passed in compensation proceedings.13 Of these, eight
suits have had partial success and five were unsubstantiated. Compensation payouts for
immaterial disadvantages have largely followed the legally established lump sum (1,200 euro
per year). One amounted to 4,300 euros, two amounted to 3,600 euros, one to 3,200 euros
and another one to 900 euros. Only one compensation payout above this lump sum was
made due to a delay in a child matter because this was seen as being especially burdensome for the parties involved. Two proceedings were adjudged to have been excessive in
length but no compensation was paid out. To date, the Federal Court of Justice has yet to
pass a revision judgement on the payment of compensation due to civil proceedings.
Two years after the law came into effect, the law is being evaluated on behalf of the German
Bundestag.
The new regulation meets the requirements of the ECtHR in terms of its means of appeal
within the meaning of Art. 13 ECHR.14 Since December 2013, Germany no longer appears
on the list of the Committee of Ministers of the Council of Europe that monitors the implementation of the ECtHR’s rulings.15
4. Outcomes of a study into excessively long civil proceedings
In 2012, several higher regional courts (among them the higher regional court of Berlin) collectively conducted a study into excessively long civil proceedings. The study included appeals proceedings but did not focus solely on these. The aim of the study was to systemati13
All of the following details taken from: Steinbeiß-Winkelmann/Sporrer, NJW 2014, 177 et. seq.
Althammer/Schäuble NJW 2012, 1 et. seq., 6
15 Steinbeiß-Winkelmann/Sporrer, NJW 2014, 177 et. seq., 178
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cally examine the causes of excessively long proceedings in civil courts as well as possible
remedies. The study covered all general civil proceedings which took longer than 24 months
at one level of jurisdiction.
According to figures published by the Federal Statistical Office (destatis), 6.3% of all civil
proceedings heard at regional courts as courts of first instance lasted longer than 24 months.
By contrast, the average length of proceedings was (only) 8.2 months.
Based on the data acquired, it has been possible to determine a large amount of circumstances that extend the length of proceedings. The following are some of the factors included
in the study:
Subject of proceedings, proceedings before a judge sitting alone or the chamber/senate,
amount in dispute, form of settlement, scope of proceedings (foliation), legal aid proceedings,
change of judge, rejection of judge, change of lawyer, majority of parties involved on plaintiff
and/or defendant side, insufficient facilitation of proceedings by the court, rescheduling of
hearings, evidence based on expert reports, service of papers abroad, internal legal remedies (petitions for disqualification on the grounds of bias, and similar), requests for administrative assistance, counterclaims, number of witnesses.
In addition to other outcomes, the study has shown that, among the large number of these
factors, two above all are very suited to extending the length of civil proceedings:
a) Obtaining expert reports: quite clearly, it does not take a legal study to know that obtaining
expert reports impacts the length of a legal dispute. Regardless of the field, it was found that
evidence based on expert reports was a consistent factor in extending the length of the proceedings that were investigated. Instead, the more interesting question here is to what extent
the proceedings are extended and what the relevant starting points are.
For example, it was found that, statistically speaking, the probability of having to obtain an
expert report rises in certain subject areas. This above all applies to cases involving medical
liability, construction work and traffic accidents where the expert report is used far more often
than in other areas. As a result, evidence based on an expert report on average took up
around 40% of the entire court proceedings across all court levels and instances.
It was also established that an expert was called in to give evidence in every other excessively long proceedings that were investigated.
b) Change of judge during the proceedings: in legal disputes during which the judge changes
at least once, there was a greater inability on the part of the court to facilitate the proceedings. What is more, the number of rescheduled hearings rose significantly when judges
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changed. Whilst, in the case of the proceedings under investigation, six out of ten hearings
needed to be rescheduled when the judge did not change, a total of eight out of ten hearings
had to be rescheduled when the judge changed.
E. Outlook
What is the state of the appellate remedy proceedings in Germany as a whole, and especially the appeal proceedings, in terms of how they impact the length of proceedings? What has
been achieved? What needs to be done?
It is certainly pleasing to note that the introduced formal censure of delay, in conjunction with
the claim for compensation, now meets the requirements of the ECtHR in terms of its means
of appeal within the meaning of Art. 13 and that Germany has been taken off the list of the
Committee of Ministers of the Council of Europe that monitors the implementation of the ECtHR’s rulings. However, this still does not go far enough.
EU Commissioner Reding has noted that there is a connection between the economic problems of a country and the lacking efficiency in its judicial system.16 The willingness to invest
correlates with the levels of legal remedies that are available.17 For example, the discussion
in Germany currently focuses on whether the effective use of modern information technologies (electronic legal correspondence and e-files) will bring potential benefits for the tasks
performed by judges. Another area of discussion is whether a legal basis should be established that allows the court to issue – legally represented – parties with stipulations on the
scope and structure of their submissions.
Another current major topic is the increase of out-of-court settlements of disputes through
mediation bodies that is linked to the implementation of the EU’s ADR Directive (Directive
2013/11/EU on Alternative Dispute Resolution for Consumer Disputes). Civil courts see
themselves in competition with other providers to solve legal disputes. The same can be said
for the shift towards arbitration proceedings that can be observed. The length of appeal proceedings plays a prominent role in this competition between the courts and other providers.
The 70th German Jurists’ Conference is being held in September 2014. The German Jurists’
Conference is a congress with between 2,500 and 3,500 participants that has convened every two years in a different German city since 1860. One of the main topics this year is “The
judge in civil proceedings”. Needless to say, the question of how long civil proceedings take
will play a key role here as well. Let me quote from this year’s programme: “It is time to move
16
17
Quote based on Gaier NJW 2013, 2871 et. seq., 2873
Gaier NJW 2013, 2871 et. seq., 2873
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on from the 19th century controls that govern jurisdiction and proceedings. Increasingly specialised attorneys, more complex circumstances, extensive proceedings, a virtually boundless ability to issue written submissions electronically, and the legal penalties imposed for
excessively long proceedings all shape the changing and increasing demands on civil proceedings. The procedural law department of the 70th German Jurists’ Conference would like
to discuss whether and, if so, what instruments can be created to make civil proceedings
modern, attractive and effective.”
.