1. neutrality of the court is an essential principle of the rule of law

In our constitutional state, the neutrality of the court is – of course – an extremely valuable asset. Our Basic Law therefore stipulates this in Article 97(1):

Judges are independent and subject only to the law.

The aforementioned provision is closely linked to another provision of our Basic Law, namely Article 101 (1) sentence 2 of the Basic Law:

No one may be deprived of their legal judge.

The wording of the provision quoted above may be difficult for the legal layperson to understand. It concerns a very important principle for guaranteeing the neutrality of the court: When Article 101 Paragraph 1 Sentence 2 of the Basic Law states that everyone has the right to their own statutory judge, this is intended to exclude human influence on the question of which judge will ultimately hear a legal case. In practice, this is guaranteed by predetermined objective criteria that decide which case ends up with which court/judge. The Federal Constitutional Court has defined the following standards (decision of February 8, 1967 – 2 BvR 235/64):

It follows from this meaning of Article 101.1 of the Basic Law that general rules must exist by virtue of the constitution as to which court, which panel and which judge are appointed to decide the individual case. The authority of the judge to decide in the specific case must be derived as clearly as possible from general provisions, namely from the rules of jurisdiction of the procedural laws and the schedule of responsibilities of the competent court (BVerfGE 17, 294 [298 f.] = NJW 64, 1020; BVerfGE 18, 344 [351 f.] = NJW 65, 1219).

2. guaranteeing neutrality in individual cases

The above-mentioned constitutional regulations alone cannot guarantee that the judge responsible for the decision is actually neutral in individual cases. In addition, the Federal Constitutional Court determined in the decision cited above that judicial neutrality

(…) it is essential “that it is exercised by a non-involved third party” (BVerfGE 3, 377 [381] = NJW 54, 833; BVerfGE 4, 331 [346] = NJW 56, 137; BVerfGE 14, 56 [69] = NJW 62, 1611; BVerfGE 18, 241 [255] = NJW65, 343).

The Federal Constitutional Court explained:

Judicial activity therefore requires neutrality and distance on the part of the judge vis-à-vis the parties to the proceedings. However, this does not only result in the requirement that – as the BVerfG in the decisions cited

has ruled – too close a personal connection between the courts and the bodies whose applications and files they have to rule on is unconstitutional. According to this principle, it must also be ensured that the person seeking justice does not stand before a judge who – for example due to close kinship, friendship or even

The fact that the company is at enmity with a party – lacks the necessary neutrality and distance.

3. the grounds for bias as the basis for an application for bias

According to the principles of the Federal Constitutional Court cited above “it must also be ensured that the person seeking justice does not stand before a judge who – for example because of close kinship, friendship or even friendship or even enmity with a party – lacks the necessary neutrality and distance.”

Section 42 of the German Code of Civil Procedure (ZPO) is intended to provide the following legal protection to ensure the above:

(1) A judge may be recused both in cases in which he or she is excluded by law from exercising the office of judge and on grounds of apprehension of partiality.

(2) A challenge on grounds of apprehension of bias shall be made if there is a reason to justify mistrust of the impartiality of a judge.

(3) Both parties are entitled to the right of refusal in any case.

3.1 Starting point: The statutory grounds for exclusion pursuant to Section 41 ZPO

Section 41 of the Code of Civil Procedure (ZPO) standardizes certain circumstances in which a judge is already considered biased by law, namely:

“1. in matters in which he himself is a party or in which he is in the relationship of a co-authorized party, co-obligated party or party with a right of recourse to a party;

2. in matters relating to his or her spouse, even if the marriage no longer exists;

2a. in matters relating to his or her partner, even if the partnership no longer exists;

3. in the case of a person to whom he is or was related by blood or marriage in the direct line, in the collateral line up to the third degree or related by marriage up to the second degree;

4. in matters in which he is or was appointed as an authorized representative or counsel for a party or is or was entitled to act as the legal representative of a party;

5. in matters in which he is questioned as a witness or expert;

6. in matters in which he has participated in the issuance of the contested decision in a previous appeal or in arbitration proceedings, unless it concerns the activity of a delegated or requested judge;

7. in cases due to overlong court proceedings, if he has participated in the proceedings complained of in a legal process, on the duration of which the claim for compensation is based;

8. in matters in which he has participated in mediation proceedings or other out-of-court dispute resolution proceedings.”

3.2 The reason for refusal “Concern of bias”

The “apprehension of bias” completes, so to speak, the aforementioned statutory grounds for bias.

From the wording of the law (Section 42 (2) ZPO: (…) if a reason exists which is capable of justifying mistrust of the impartiality of a judge.) , it follows that this reason for bias does not require that a judge is actually biased. It is sufficient if “objective reasons” justify the assumption that a judge is biased.

In other words:

Objectively justified mistrust leads to concerns about bias.

With regard to the objective circumstances required to justify distrust of a judge, the grounds for disqualification under Section 41 ZPO (see above) can be helpful. The closer a situation is to one of the grounds for disqualification, the closer it is to the assumption that there is a justified concern regarding the bias of a judge. Here is an example:

According to § 41 No. 2/2a, a judge is excluded in matters concerning his or her spouse or partner. If the matter concerns a person with whom the judge has lived in a domestic partnership for many years, e.g. in the context of a shared flat during their studies, it should be possible to justify concerns of bias with reference to the proximity to this very section 41 no. 2/2a ZPO.

In cases in which Section 41 ZPO cannot be applied, it becomes more difficult:

According to the Federal Constitutional Court (BVerfG NJW 2000, 2808), the rule of thumb is:

Concerns of bias on the part of a judge (…) presuppose that there is a reason that is capable of justifying doubts about the judge’s impartiality. It does not matter whether the judge is actually biased or prejudiced or whether he considers himself to be biased. The only decisive factor is whether, on a reasonable assessment of all the circumstances, there is reason to doubt the impartiality of the judge.

In connection with the above-mentioned rule of thumb, the following groups of cases based on the conduct of the judge typically provide grounds for concern about bias:

• The manner in which the proceedings are conducted can give rise to bias, particularly if it suggests that one party is being arbitrarily disadvantaged or favored. Examples of this are the unwillingness to take note of oral or written party submissions, an obviously excessive advance on costs for an expert witness, inappropriate pressure to settle, the rejection of a justified request for transfer by the party without or with an unobjective justification (OLG Cologne NJW-RR 97, 823; OLG Munich NJW-RR 02, 862), prolonged inactivity of the judge or undue delay in proceedings without objective reason (OLG Brandenburg FamRZ 01, 552; BauR 12, 1150; OLGR Frankfurt 09, 115; doubtful, aA OLG Hamm Beschl v 4.1.11 – 1 W 86/10; LSG NRW decision of 19.10.11 – L 11 SF 297/11 AB).
• Assistance to a partyAssistance to a party which, for example, recommends a new cause of action, advises a cross-appeal, points out the way of assignment in order to avoid problems of standing to sue, or suggests the “escape into default” in order to avoid disadvantages from missing the deadlines set by the judge himself, gives rise to concerns of bias.The same applies to a reference to possible defenses or counterclaims, in particular the statute of limitations defense (BGH NJW 2004, 164).
• UnobjectivityUnobjective behavior is always likely to indicate bias, because such behavior can never be practically justified by procedural tasks. Examples are insulting statements or “showing the bird”.

3.3 No reason for bias: Judicial references (!)

As a rule, judicial references pursuant to Section 139 ZPO do not constitute grounds for bias.

The reform of the German Code of Civil Procedure (ZPO) has significantly strengthened the court’s duty to provide information, advice and care. Since then, the law has expressly obliged the court to conduct a legal discussion. Accordingly, expressions of legal opinion are not a suitable starting point, e.g. if the judge (provisionally) comments on the prospects of success of the action as part of the introduction to the state of the case and dispute or in settlement discussions. Therefore, for example, the judge’s suggestion to withdraw the action or the appeal lodged due to a lack of prospects of success cannot constitute bias. The limit is the transition to genuine assistance (see above), which is why, outside of settlement negotiations, references to legal positions for which there are no references in the party’s statement of claim are not covered by the substantive conduct of proceedings (duty to provide information) of Section 139 ZPO

4. the procedure if there are doubts about the neutrality of the judge

In summary, an application for recusal proceeds as follows:

4.1 Application for rejection

If a party is of the opinion that a judge involved in the proceedings is biased in the aforementioned sense, the party must submit a corresponding recusal request to the court appointed to make the decision, which will then decide on the request without the judge concerned (Section 44 ZPO).

The application for recusal is generally form-free, i.e. it can also be submitted orally by means of a statement for the record. In terms of time, it is generally admissible from the pendency until the judgment becomes final. However, Section 43 ZPO does in fact impose a clear restriction:

43 ZPO

A party can no longer object to a judge on the grounds of apprehension of bias if it has entered a hearing or submitted motions to the judge without asserting the reason for objection known to it.

As a result, this means that an application for recusal must be made immediately after becoming aware of a reason for recusal, because the law interprets any further “admission” by the party concerned in the course of the ongoing proceedings as acceptance of the circumstance giving rise to bias.

The application for recusal submitted in an admissible form is justified if there is a reason for exclusion (Section 41 ZPO) or concern about bias (Section 42 ZPO).

4.2 Credibility of the grounds for refusal

The grounds for recusal must be substantiated. The official statement of the rejected judge and the affidavit of the legal representative of the rejecting party serve as a means of establishing credibility.

If a request for recusal is only made in the course of proceedings, it must be substantiated that the reason for recusal or knowledge thereof only arose later, in addition to the reason for recusal.

The procedure for deciding on a recusal request is governed by Section 45 ZPO. According to this, the decision on the recusal request is made by the court to which the recused judge belongs, but without the participation of the judge. He is replaced by his representative as specified in the schedule of responsibilities.

If a judge at the local court is rejected, another judge of the local court – designated for this purpose in the schedule of responsibilities – shall decide.

4.3 Decision on the rejection request and appeal

Pursuant to Section 46 ZPO, the decision is made by means of an order against which an immediate appeal may be lodged if the application for recusal is declared inadmissible or unfounded. An appeal against decisions of the OLG and LG in appeal and complaint proceedings is only possible if it is permitted.