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. (…)”