Germany

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CHAPTER XI

GERMANY

A. Introduction to German Civil Procedure

1. Pleading

A brief outline of the fundamental differences between the course of

litigation in civil matters in Germany and the United States will assist the

reader in appreciating the difficulties of collecting evidence in Germany

for use in U.S. litigation.1 First, the German Code of Civil Procedure

(Zivilprozessordnung) does not provide for pretrial discovery as

understood in the United States. To initiate civil litigation in Germany, the

plaintiff submits its pleadings to the court.2 The defendant then has to reply

to the claims in writing.3 The claims and defenses respectively must be

pled in significant detail. 4 The parties also have to provide specific

evidence to support the claims alleged in their pleadings.5 The respective

parties will name witnesses and provide the court with documents. As a

rule, these supporting documents must be produced by the party that refers

to the documents in its pleadings.6 Witnesses are not deposed by lawyers,

but instead give their testimony only in court during the trial. In the

1. For a more detailed discussion, see John H. Langbein, The German

Advantage in Civil Procedure, 52 U. CHI. L. REV. 823 (1985).

2. ZIVILPROZESSORDNUNG [ZPO] [CODE OF CIVIL PROCEDURE], Dec. 5, 2005,

BUNDESGESETZBLATT, Teil I [BGBL. I] 3202, “as amended,” § 253 (Ger.).

The judicial system in Germany comprises three different types of courts:

ordinary courts, dealing with criminal and most civil cases; specialized

courts, such as the administrative, labor, social, and finance courts; and

finally, the constitutional court, focusing on judicial review and

constitutional interpretation. Ordinary courts are most numerous by far.

Currently there are 828 ordinary courts (687 local, 116 regional, 24

appellate, one federal).

3. ZPO § 277 (3) (Ger.).

4. ZPO § 253 (2), (3), (4), § 277 (1) (Ger.).

5. ZPO § 130 No. 5 (Ger.).

6. ZPO § 355 (Ger.).

Obtaining Discovery Abroad

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German system, the judge decides whether documents are relevant and

whether the witnesses named will give testimony in court.7

Discovery as practiced in civil litigation in the United States is totally

unknown to the German legal system. Discovery requests by a party

merely in order to get access to admissible evidence are not allowed und er

German law.8 One recent exception has been the adoption of the European

Directive on Antitrust Damages Actions in 2014.9 In this context, the

European Union has introduced extensive powers for national courts to

order the disclosure of relevant evidence if a reasoned justification is

presented 10 Nevertheless, this new approach results from the specific

circumstances of the enforcement of antitrust damage claims. There is no

reason to suppose that a fundamental change has taken place with regard

to the disclosure of evidence in civil litigation.

Rather, it has been and still is a principle of civil litigation in Germany

that no party can be forced to “deliver to the other party the tools to

construct a case.11 The obligation to provide information and documents

to the court or the other party is dealt with by substantive law.12 With only

a very few exceptions, the obligation does not arise as a procedural right

of either party to proceedings under German law.13 In practice, each party

7. ZPO § 284 (Ger.).

8. Bundesgerichtshof [BGH] [Federal Court of Justice] Apr. 4, 1995, NEUE

JURISTISCHE WOCHENSCHRIFT [NJW] 2111, 1995 (Ger.);

Bundesgerichtshof [BGH] [Federal Court of Justice] May 4, 1964, NEUE

JURISTISCHE WOCHENSCHRIFT [NJW] 1414, 1964 (Ger.).

9. Directive 2014/104/EU of the European Parliament and of the Council of

26 November 2014 on certain rules governing actions for damages under

national law for infringements of the competition law provisions of the

Member States and of the European Union Text with EEA relevance, 2014

O.J. (L 349) 1 [hereinafter EU Damages Directive]. The member states had

two years to implement the Directive into national law.

10. Id., art. 5.

11. Bundesgerichtshof [BGH] [Federal Court of Justice] June 11, 1990, NEUE

JURISTISCHE WOCHENSCHRIFT [NJW] 3151, 1990 (Ger.).

12. For more details, see PRÜTTING, MÜNCHENER KOMMENTAR ZUR

ZIVILPROZESSORDNUNG: ZPO § 286, ¶¶ 109-13 (4th ed., 2013).

13. ZPO § 422 (Ger.) expressly refers to the provisions of substantive law,

namely: BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE] Aug. 18, 1896,

BUNDESGESETZBLATT, TEIL I [BGBL. I] at 42, 2909, as amended, §§ 259,

371, 402, 675, 681, 716, 810, 952 (Ger.), available in English at

www.gesetze-im-internet.de/englisch_bgb/index.html;

HANDELSGESETZBUCH [HGB] [COMMERCIAL CODE] 10 May, 1897

BUNDESGESETZBLATT, TEIL III [BGBL. III] at FNA 4100-1, as amended,

Germany

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presents its case to the court on the basis of the facts known. In presenting

its case, each party offers evidence (witnesses, documents, etc.) to prove

its own case and to rebut what it expects the other party will seek to

establish.

Only in limited instances could the court order a party to provide

documents. This is in principle the case only if a party has a claim for

obtaining the document under the applicable substantive law at issue and

that party makes a motion to the court in which the specific document is

referenced.14 For example, a party may request a contract between the

parties of which the other party was aware but did not have a copy.15

Possible disadvantages to a party (usually the plaintiff) who does not have

access to relevant information are balanced by the German rules govern ing

the burden of proof.16 The burden will usually be shifted to the party who

has access to the relevant information.17 In product liability cases, for

example, once the plaintiff has established that a defect existed that has

caused damage, the onus will be on the manufacturer to demonstrate and

prove that such defect could not have been prevented, i.e., that due

diligence was exercised in construction and testing, all required quality

control measures duly applied, etc. In other instances, the “prima facie

evidence” rule will assist the plaintiff in solving the problems resulting

from its lack of access to the defendant’s information.18 This evidence rule

signifies that upon initial examination, sufficient evidence appears to exist

to support a case. Prima facie denotes evidence that, unless rebutted, is

sufficient to prove a certain fact. Under German law, causation or liability

are often established on the basis of prima facie proof when damage arose

in the normal course of events. However, the plaintiff still has to submit

arguments and proof regarding its claim.

In addition, the winning party in the German system may collect its

attorney’s fees from the losing party.19 The amount to be reimbursed is

§§87c, 118, 157, 166, 258-261 (Ger.), available in English at

www.gesetze-im-internet.de/englisch_hgb/index.html.

14. ZPO § 421-422 (Ger.).

15. BGB § 810 (Ger.).

16. ZPO §§ 426-427 (Ger.).

17. PRÜTTING, MÜNCHENER KOMMENTAR ZUR ZIVILPROZESSORDNUNG: ZPO

§ 286, ¶ 38 et seq. (6th ed., 2015).

18. SAENGER, SAENGER ZIVILPROZESSORDNUNG: ZPO, § 286.

19. ZPO § 91 (Ger.).