Present your case...Serious young judge sitting in the courtroom with a stern facial expression.

The court’s duty to provide information in civil proceedings

/in /by

The example of the court’s duty to provide information shows that the courts often do not adequately fulfill their obligations to the parties under the German Code of Civil Procedure (ZPO).

For example, it is not uncommon for courts to simply remain silent until the first hearing date – in the worst case, years can pass until then. As a result, the parties do not know where they stand for a long time and eagerly await the hearing date, from which they hope to finally learn the court’s point of view. It is often only during the court hearing that judges then issue so-called judicial instructions in accordance with Section 139 (2) and (3) ZPO.

Court notices only at the trial are not timely!

This procedure is unlawful and can be grounds for appeal! Courts must – as expressly stated in Section 139 (4) ZPO – provide information as early as possible. Otherwise, the court’s duty to provide information has not been fulfilled.

It is therefore to be welcomed that the Federal Court of Justice has repeatedly referred to this circumstance in its appellate case law (see also this article) clearly points this out. Once again, in its decision of 21.01.2020 (case no. VI ZR 346/18), the BGH repeated and explained this reference to the courts of lower instances (note: the underlying case concerned a late reference by the court of appeal):

“(…) Article 103 (1) of the Basic Law obliges the court to take note of and consider the submissions of the parties to the proceedings. This is intended to ensure that the decision is free of procedural errors that are due to the failure to take note of and consider the submissions of a party. If a court disregards a party’s submission without this being supported by procedural law, it violates their right to be heard (see only Senate decision of 2 October 2018 – VI ZR 213/17 , NJW 2019, 1082 para. 6; BVerfGE 69, 141, 143 f. [BVerfG 30.01.1985 – 1 BvR 393/84] ; in each case with further references). The procedure of the court of appeal is no longer supported by the law.

The Federal Court of Justice has consistently held in its case law that a party who is victorious at first instance may rely on receiving an indication from the court of appeal if the court of appeal does not wish to follow the assessment of the lower court on a point relevant to the decision and considers it necessary to supplement the submissions or provide evidence due to its differing opinion; the indication must generally be given in good time so that the appellant can react before the date of the oral hearing (cf. only BGH, decisions of October 10, 2019 – V ZR 4/19 marginal no. 7, juris; of April 11, 2018 – VII ZR 177/17 , NJW 2018, 2202 marginal no. 8; of January 21, 2016 – V ZR 183/15 marginal no. 5, juris; of July 4, 2013 – V ZR 151/12, juris). July 2013 – V ZR 151/12 , NJW-RR 2014, 177 para. 8; also Senate decision of May 25, 2018 – VI ZR 370/17, VersR 2018, 1001 [BGH 29.05.2018 – VI ZR 370/17] para. 15; in each case with further references). If, contrary to Section 139 (4) ZPO, the court of appeal does not issue the notice until the oral hearing, it must give the party concerned sufficient opportunity to respond to it. If it is obvious that the party will not be able to explain itself conclusively at the oral hearing, the court must, if it does not switch to written proceedings, adjourn the oral hearing even without an application for leave to respond in order to give the party the opportunity to respond (BGH, decisions of April 11, 2018 – VII ZR 177/17 , NJW 2018, 2202 para. 8; of September 27, 2013 – V ZR 43/12 para. 12 et seq., juris; of July 4, 2013 – VII ZR 192/11 , NJW-RR 2013, 1358 para. 7).

The Court of Appeal violated these obligations. (…)”

Rating

In the opinion of the author, this case law also applies to the duty to provide information at first instance. This already follows from Section 139 (4) ZPO, according to which information must be provided as early as possible. If the court violates this by waiting until the hearing date to provide information, it must take into account the party’s subsequent submissions even without requesting an extension of time for the submission of information in order not to violate the fundamental right to be heard.

Do you have any questions?

Plenty of space on this one. An african-american woman showing you a USB stick.

Reference to USB stick in the application

/in /by

The reference to a USB stick in the claim is permissible. This was clarified by the Federal Court of Justice in a recent ruling from 14.07.2022 (Ref. I ZR 97/21).

Problem description: Digitization in civil proceedings

Digitalization is advancing – also in civil proceedings. According to the law (see Section 130a (1) ZPO), attachments to statements of claim or other pleadings may be submitted to the court as “electronic documents” subject to certain requirements. § Section 130a (1) ZPO reads:

“Preparatory pleadings and their annexes, applications and declarations to be submitted in writing by the parties as well as information, statements, expert opinions, translations and declarations by third parties to be submitted in writing may be submitted to the court as electronic documents in accordance with the following paragraphs.”

The problem is that the permission cited above is limited to the digital submission of objects that also exist or can be produced in written form. In reality, however, we are increasingly dealing with purely digital objects or facts. For this increasingly common constellation, the BGH has now provided valuable clarification for practical use.

The BGH ruling of 14.07.2022 (Case No. I ZR 97/21) – The digitalization of civil proceedings also includes the reference to a USB stick in the application for action

In its judgment of 14.07.2022 (case no. I ZR 97/21), the Federal Court of Justice clarified that reference to a USB stick is also permitted in a claim that is to be enforced in the event of success. The BGH stated:

“The specificity of the application must also be examined ex officio in appeal proceedings by
(BGH, judgment of 16. December 2021 – I ZR 201/20,
GRUR 2022, 229 [juris para. 21] = WRP 2022, 318 – ÖKO-TEST III, mwN). According to
Section 253 (2) no. 2 ZPO, an application for an injunction – and according to Section 313 (1)
no. 4 ZPO a conviction based on it – must not be worded so vaguely that the subject matter of the dispute and the scope of the court’s power of review and decision (Section 308 (1) ZPO) are not clearly delineated, the defendant is therefore unable to defend itself exhaustively and the decision as to what it is prohibited from doing is ultimately left to the enforcement court (st. case law; see BGH, judgment of September 9, 2021 – I ZR 90/20, BGHZ 231, 38 [juris para. 19] – Influencer I, mwN). Sufficient certainty is usually given if reference is made to the specific infringing act and the claim, at least by referring to the claim, unambiguously indicates the characteristics of the challenged conduct in which the basis and the connecting factor for the infringement of competition and thus the injunction should lie (cf. BGH, judgment of November 8, 2018 – I ZR 108/17, GRUR 2019, 627 [juris para. 15]=WRP2019,731 – Deutschland-Kombi; decision of February 4, 2021 – I ZR79/20,K&R 2021, 333 [juris,para.12]).

Accordingly, the Court of Appeal correctly assumed that
the reference to the USB stick submitted by the plaintiff as Annex K 1 to the files , which indisputably fully documents the telemedia offer complained of as a specific form of infringement, is sufficient to substantiate the plaintiff’s applications for injunctive relief.”

My assessment of the admissibility of the reference to a USB stick in the application

The ruling makes it clear in a welcome way that the digitization of civil proceedings does not stop at the submission of documents in the context of court proceedings.
§ Section 130a (1) ZPO does not help if the actual subject matter of the dispute in the proceedings is a digital product. In this case, it is simply not possible to dispense with a reference to a digital source outside the judgment (here: USB stick) in a judgment.

Do you have any questions?

Gavel, scales of justice and law books

Action dismissed as “currently unfounded”

/in /by

Especially in construction law disputes, it is not uncommon for a claim to be dismissed as “currently unfounded”. This often concerns the due date of remuneration claims, for example, because acceptance as a prerequisite for the due date is questionable. In these cases, there are often judgments that dismiss a claim as currently unfounded.

The BGH recently stated in detail that in such cases the res judicata effect of the dismissing judgment also includes the grounds for the judgment, insofar as the other – i.e. the currently not missing – claim requirements have been positively established or affirmed.

BGH on the res judicata effect of a dismissal of an action as currently unfounded

In its ruling of December 9, 2022 (case no. V ZR 72/21), the BGH stated the reasons for this:

“(…)

It has been clarified in supreme court case law that if an action for payment is dismissed as currently unfounded pursuant to Section 322 (1) ZPO, the fact that the plaintiff had no claim due for payment against the defendant up to the time of the last oral hearing becomes res judicata (cf. Senate, judgment of October 6, 1989 – V ZR 263/86, WM 1989, 1897, 1898; BGH, judgment of July 28, 2011 – VII ZR 180/10, NJW-RR 2011, 1528 para. 12; decision of January 23, 2014 – VII ZB 49/13, NJW 2014, 1306 para. 11).

(…)

The extent to which a dismissal of an action as currently unfounded can also have a “positive” res judicata effect in addition to this “negative” res judicata effect to the detriment of the plaintiff, to the effect that the existence of certain conditions of the claim is established in favor of the plaintiff, has been disputed to date.

(…)

This question was answered in the affirmative by the Third Civil Senate in a decision handed down after the judgment of the Court of Appeal in a case in which an official liability claim against a notary (Section 19 (1) sentence 1 BNotO) had been comprehensively examined in preliminary proceedings and then dismissed solely due to the existence of another possibility of compensation (see judgment of June 9, 2022 – III ZR 24/21, NJW 2022, 2754 marginal no. 17 et seq. with extensive evidence on the status of the dispute ). Accordingly, the res judicata effect of a judgment dismissing the claim as currently unfounded also extends to the fact that the conditions of the claim are otherwise fulfilled if and to the extent that these have been affirmed or positively established in the grounds of the decision. In order to determine the scope of res judicata, the facts of the case and the reasons for the decision must be used in addition in the case of judgments dismissing the action.

(…)

The V. Civil Senate agrees with the convincing argumentation of the III. Civil Senate and also considers it relevant in this constellation.

However, the entire content of the judgment does not become res judicata. Rather, res judicata is limited to the legal consequence that forms the sentence of the decision, which the court has derived from the facts of the case by subsuming them under objective law. However, in the case of a decision dismissing an action, the decisive reason for the dismissal, which is to be determined from the grounds and determines the legal consequence, is part of the final judgment and not solely an element of the grounds for the judgment.

(…)

If the court in the preliminary proceedings, in which the defendant applies for the unlimited dismissal of the action, affirms the conditions of the asserted claim with the exception of the occurrence of conditions precedent, the affirmation of the conditions of the claim is not merely an element of the grounds for the judgment and a preliminary question, but, measured against the defendant’s legal protection objective, a decisive reason for dismissal. The defendant, who is seeking an unlimited dismissal of the action, is adversely affected due to his further legal protection objective, insofar as (only) a dismissal as currently unfounded is made.

(…)

He can therefore – at least by means of an appeal – obtain a judicial review of the extent to which the asserted claim should be rejected without restriction because it does not ultimately exist.

(…)

However, it is then logical that the affirmation of the conditions for entitlement has a “positive” effect in favor of the plaintiff. This result is also convincing because otherwise, in subsequent proceedings, the plaintiff might be forced to prove the already examined and affirmed conditions of entitlement again. The defendant could therefore, by contesting the claim again, ensure that a comprehensive examination of the same claim prerequisites takes place both in the preliminary proceedings and in the subsequent proceedings. Such a result would be nonsensical from a procedural point of view because it would devalue the results of the previous proceedings…”

Assessment of this view on the dismissal of the action as “currently unfounded”

The ruling is to be welcomed in principle, as it would indeed be nonsensical to have to re-examine previously examined and affirmed eligibility requirements in subsequent proceedings.

However, caution is advised for those affected by such constellations insofar as this case law also harbors pitfalls – at least if the principles listed are extended to every conceivable case of a claim being dismissed as “currently unfounded” due to the absence of an individual claim requirement. An example of this is the case in which the plaintiff appeals against such a judgment with the aim that the court of appeal also affirms the missing requirement for a claim and thus upholds the action. Strictly speaking, the appellate court’s review jurisdiction would then be limited to the question of the existence of this individual due date requirement. The other conditions of entitlement affirmed by the court of first instance do not constitute a complaint by the plaintiff filing the appeal. In order for the court of appeal (in favor of the defendant of the first instance) to also review the other conditions of entitlement, the defendant would have to file a cross-appeal.

Do you have any questions?