Jurisdiction - Germany
TABLE OF CONTENTS
- 1 Should I apply to an ordinary civil court or to a specialised court (for example an employment labour court)?
- 2 Where the ordinary civil courts have jurisdiction (i.e. these are the courts which have responsibility for such cases) how can I find out which one I should apply to?
- 2.1 Is there a distinction between lower and higher ordinary civil courts (for example district courts as lower courts and regional courts as higher courts) and if so which one is competent for my case?
- 2.2 Territorial jurisdiction (is the court of city/town A or of city/town B competent for my case?)
- 2.2.1 The basic rule of territorial jurisdiction
- 2.2.2 Exceptions to the basic rule
- 184.108.40.206 When can I choose between the court in the place where the defendant lives (court determined by the application of the basic rule) and another court?
- 220.127.116.11 When do I have to choose a court other than that in the place where the defendant lives (court determined by the application of the basic rule)?
- 18.104.22.168 Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise?
- 3 Where specialised courts have jurisdiction how can I find out which one I have to address?
1 Should I apply to an ordinary civil court or to a specialised court (for example an employment labour court)?
There are two different systems of courts for civil disputes in Germany, the civil courts (Zivilgerichte) and the labour courts (Arbeitsgerichte). The civil courts are ordinary courts.
Labour courts have jurisdiction only in respect of civil disputes that are so closely connected with an employment relationship that the employment relationship largely determines them. The responsibilities of the labour courts are listed in Sections 2, 2a and 3 of the Labour Courts Act (Arbeitsgerichtsgesetz).
All other civil disputes come within the jurisdiction of the civil courts.
2 Where the ordinary civil courts have jurisdiction (i.e. these are the courts which have responsibility for such cases) how can I find out which one I should apply to?
2.1 Is there a distinction between lower and higher ordinary civil courts (for example district courts as lower courts and regional courts as higher courts) and if so which one is competent for my case?
The civil courts of first instance are the local courts (Amtsgerichte) and the regional courts (Landgerichte).
1. The local courts generally have jurisdiction in civil disputes if the value in dispute does not exceed €5 000 and the regional court does not have exclusive jurisdiction (Section 23 No 1 of the Judicature Act (Gerichtsverfassungsgesetz).
The local courts also have exclusive jurisdiction in the following cases, regardless of the value in dispute (Sections 23 and 23a of the Judicature Act).
The local courts have jurisdiction to hear disputes regarding claims arising from a residential lease or regarding the existence of such a lease (Section 23 No 2(a) of the Act).
Additionally, the local courts have jurisdiction at first instance in family cases, and generally in matters relating to the non‑contentious jurisdiction (Section 23a(1), first sentence, Nos 1 and 2).
The local courts also have exclusive jurisdiction in other matters arising out of Section 23 No 2, b–d and g of the Judicature Act.
2. The regional courts have jurisdiction in respect of all civil disputes that are not allocated to the local courts. These are primarily cases where the value in dispute is more than €5 000.
In particular, the regional courts have exclusive jurisdiction in cases based on civil service legislation and in claims relating to the liability of public officials.
The regional courts may have commercial divisions. These have jurisdiction among other things for civil law claims against businesses and disputes under the law governing cheques and bills of exchange. Section 95 of the Judicature Act contains an exhaustive list of the jurisdictions of the commercial divisions. The claimant must apply in the originating application for the matter to be heard before the commercial division.
2.2 Territorial jurisdiction (is the court of city/town A or of city/town B competent for my case?)
2.2.1 The basic rule of territorial jurisdiction
The general rule of jurisdiction in the Code of Civil Procedure is that territorial jurisdiction is determined by the place where the defendant lives. If a person has no permanent place of residence, the basis is the place where they are staying in Germany, and, if no such place is known, their last permanent place of residence. In the case of a legal entity, territorial jurisdiction is determined by its registered office.
2.2.2 Exceptions to the basic rule
For certain types of claim, the claimant may alternatively choose a jurisdiction different from that where the defendant lives (a special but not an exclusive jurisdiction). Examples of this are as follows.
- Disputes arising from a contractual relationship and disputes about the existence of a contract may also be commenced in the court of the place where the disputed obligation is to be performed (Section 29(1) of the Code of Civil Procedure (Zivilprozessordnung)). An agreement regarding the place of performance is relevant for procedural purposes only if the contracting parties belong to the category of people who are authorised to conclude choice-of-jurisdiction agreements under Section 38(1) of the Code of Civil Procedure, see 22.214.171.124.
- The term ‘contractual relationship’ includes all contracts governed by the law of obligations, regardless of the type of obligation. Where the labour courts have jurisdiction, the provision applies mutatis mutandis.
- For claims arising in civil liability for wrongful acts, the court in whose area the act took place also has jurisdiction.
- The victim of a criminal act may in the course of criminal proceedings submit applications intended to assert financial claims accruing to him from the criminal act in the court where the charge has been brought (joining the criminal proceedings under Sections 403 et seq. of the Code of Criminal Procedure (Strafprozessordnung)).
- In respect of divorce proceedings, substantive jurisdiction lies solely with the family court (Familiengericht, a division of the local court) in whose district the spouses have their usual joint residence (meaning the actual focus of their lives). If no such residence exists in Germany at the time when the proceedings become pending, i.e. at the time of service of the application document or statement of claim, sole jurisdiction lies with the family court in whose district one of the spouses is usually resident together with the couple's under-age children.
- If this does not establish a jurisdiction, sole jurisdiction lies with the family court in whose district the spouses have had their joint habitual residence, provided that one of the spouses is still usually resident there at the time when the proceedings become pending (see above). If this does not apply either, the point of reference is the defendant's habitual place of residence, unless there is no such place of residence in Germany. In this event, the point of reference is the claimant’s habitual place of residence.
- If this does not establish a jurisdiction either, the Family Court at the Berlin-Schöneberg Local Court has sole jurisdiction.
- The family court has sole jurisdiction in maintenance proceedings, i.e. maintenance for spouses and children, where proceedings for the dissolution of the marriage are or have been pending at first instance. In the case of maintenance for children, however, this jurisdiction applies only if there is a substantive connection with the divorce.
- If maintenance proceedings are brought in isolation, the general provisions remain applicable, i.e. the place where the defendant lives takes precedence.
- In proceedings relating to parental responsibility, the same applies, i.e. if proceedings are pending for the dissolution of the marriage, the family court has jurisdiction if there is a substantive connection to the divorce. If proceedings are commenced separately, the place where the child lives is decisive. If no such place exists, what matters is the actual place of residence (within Germany). The date of reference for determining jurisdiction is the date on which the matter is referred to the court.
Where a statute expressly states that a place of jurisdiction is exclusive, it takes precedence over all other jurisdictions, i.e. the proceedings must be initiated in the place of exclusive jurisdiction. Exclusive places of jurisdiction arise mainly as a result of special statutes.
If the proceedings relate to land or to a right equivalent to land (e.g. a hereditary building right), exclusive jurisdiction lies in some cases with the court in whose district the property is located; this applies to proceedings relating to ownership or encumbrances on immovable property, disputes about freedom from such encumbrances, possessory actions, boundary disputes and actions for partition (Section 24 of the Code of Civil Procedure).
In the case of disputes arising from leases or tenancies of premises or the existence of such arrangements, sole jurisdiction lies with the court in whose area the leased or tenanted premises are located (Section 29a(1) of the Code of Civil Procedure). This provision does not, however, apply to rental of residential premises for temporary use (holiday homes, hotel rooms etc.), furnished premises for individual tenants, or houses and premises for official duties (Section 29a(2)).
In the case of proceedings against the owner of a plant located in Germany, in which compensation is claimed for a loss caused by an environmental effect, exclusive jurisdiction lies with the court in whose area the environmental effect from the plant originated (Section 32a).
In debt collection proceedings (using the payment order procedure (Mahnverfahren)), sole jurisdiction lies with the local court with ordinary jurisdiction for the applicant, in other words the court of the place where the applicant has his or her residence or registered office (Section 689(2)).
In enforcement proceedings, exclusive jurisdiction lies with the local court in whose district the enforcement is to take place or has taken place (Sections 764(2) and 802). In the case of forced sale by auction or forced administration of land, exclusive territorial jurisdiction lies with the local court in whose district the land is located (Sections 1(1) and 146 of the Foreclosure Act (Zwangsversteigerungsgesetz) and Sections 802 and 869 of the Code of Civil Procedure).
German procedural law recognises the possibility of choice‑of‑jurisdiction agreements. Under Section 38(1) of the Code of Criminal Procedure, a court of first instance that has no jurisdiction per se can acquire jurisdiction as a result of an express or implied agreement between the parties. Such an agreement may be entered into only if the parties are businesses, legal entities under public law or public-law special funds. This confers jurisdiction on the court named..
A particular court of first instance may also be given jurisdiction if at least one of the contracting parties is not within the ordinary jurisdiction of any court in Germany (Section 38(2) of the Code of Civil Procedure). In this case, the agreement must be made in writing or, if it is made orally, confirmed in writing. If one of the parties is within the ordinary jurisdiction of a court in Germany, any choice‑of‑jurisdiction clause must as far as Germany is concerned name either that court or a special court whose jurisdiction in the case would be justified.
Under Section 38(3) of the Code of Civil Procedure a choice‑of‑jurisdiction agreement is admissible only if it has been entered into expressly and in writing after the dispute arose or to cover the possibility of the future defendant moving their address or habitual residence abroad after the contract is concluded, or of their address or habitual residence not being known at the time proceedings commence.
A choice‑of‑jurisdiction agreement must always relate to a particular legal relationship and legal disputes arising from it; otherwise it is invalid (Section 40(1) of the Code of Civil Procedure). A choice‑of‑jurisdiction agreement is also inadmissible if it deals with non-financial claims which are allocated to the local court, regardless of the value of the disputed subject‑matter. A choice‑of‑jurisdiction agreement is not possible if an exclusive jurisdiction is established by law (Section 40(2)).
Where a choice‑of‑jurisdiction agreement is required to be in writing, general terms of business and standard form contracts may also satisfy this requirement.
A valid choice‑of‑jurisdiction agreement is binding on the courts; the question whether exclusive jurisdiction has been agreed depends on the wording of the agreement.
b) Failure to dispute jurisdiction
Jurisdiction may also be conferred on a court of first instance if the defendant makes oral submissions in the main action without arguing lack of jurisdiction (Section 39 of the Code of Civil Procedure). In proceedings before the local courts, this legal consequence follows only if the court has drawn attention to the issue.
However, jurisdiction cannot be conferred by a failure to dispute jurisdiction in the main action if a choice‑of‑jurisdiction agreement would be inadmissible (see above, non-financial disputes and exclusive jurisdiction).
3 Where specialised courts have jurisdiction how can I find out which one I have to address?
The distinctive nature of the labour court’s special jurisdiction is determined only by the subject‑matter. With regard to issues of territorial jurisdiction and the possibility of a choice‑of‑jurisdiction agreement, the general rules apply, as set out in the answer to question 2.
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Last update: 06/05/2019