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Last update: 20-04-2006
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Jurisdiction of the courts - Germany

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Note: The following questions relate only to domestic proceedings



 

TABLE OF CONTENTS

A. Should I apply to an ordinary civil court or to a specialised court? A.
B. Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to? B.
B.I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case? B.I.
B.II. Territorial jurisdiction B.II.
B.II.1. The basic rule of territorial jurisdiction B.II.1.
B.II.2. Exceptions to the basic rule B.II.2.
B.II.2.a) 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? B.II.2.a)
B.II.2.b) 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)? B.II.2.b)
B.II.2.c) Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise? B.II.2.c)
C. Where specialised courts have jurisdiction how can I find out which one I have to address? C.

 

A. Should I apply to an ordinary civil court or to a specialised court?

There are two different jurisdictions for civil disputes in Germany, the civil courts and the employment courts. The civil courts are part of the ordinary courts.

Employment courts have jurisdiction only in respect of civil disputes which are so closely connected with an employment relationship that the employment relationship largely determines them. Sections 2, 2a and 3 of the German Employment Courts Act (Arbeitsgerichtsgesetz) contain an enumerative list of the jurisdictions of the employment courts.

All other civil disputes come within the jurisdiction of the civil courts.

B. Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to?

B.I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case?

The ordinary civil courts are the Amtsgerichte (District Courts) and the Landgerichte (Regional Courts).

1. The District Courts in principle have jurisdiction in civil disputes if the value of the dispute does not exceed EUR 5 000 and if the Regional Court does not have exclusive jurisdiction (Section 23 (1) of the German Judicature Act (Gerichtsverfassungsgesetz - GVG).

The District Courts also have exclusive jurisdiction in the following cases, regardless of the value of the disputed subject-matter (see Sections 23, 23(a) GVG):

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The District Courts have jurisdiction to hear disputes regarding claims arising from a residential lease or regarding the existence of such a lease (Section 23(2a) GVG).

Additionally, the District Courts have jurisdiction at first instance in family cases (Section 23(a) GVG). These include the following:

  • children's cases
  • statutory maintenance obligations based on marriage or family relationship
  • a mother's maintenance claims in connection with the birth of a child
  • matrimonial cases
  • disputes relating to claims arising from matrimonial property, even if third parties are involved in the proceedings.

The exclusive jurisdictions of the District Court arise from Section 23(2) (b) - (h) GVG).

2. The Regional Courts have jurisdiction in respect of all civil disputes which are not allocated to the District Courts. These are in particular disputes with a disputed value of more than EUR 5 000.

The Regional Court has exclusive jurisdiction in particular in cases based on civil service legislation and in claims relating to official liability.

The Regional Courts may have commercial divisions. These have jurisdiction inter alia in respect of civil claims against merchants and in respect of disputes under the law governing cheques and bills of exchange. Section 95 GVG contains a conclusive list of the jurisdictions of the commercial divisions. The plaintiff must apply in the statement of claim for the matter to be heard before the commercial division.

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B.II. Territorial jurisdiction
B.II.1. The basic rule of territorial jurisdiction

The principle which applies in Germany under the provisions of the rules of civil procedure relating to general jurisdiction is that territorial jurisdiction is determined by the place where the defendant lives. In the case of a person who has no place of residence, the place where he is staying in Germany is taken as a basis and, if no such place is known, his last place of residence. In the case of a legal entity, its registered office is conclusive.

B.II.2. Exceptions to the basic rule
B.II.2.a) 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?

For certain types of claims, the plaintiff has the possibility of choosing a different jurisdiction than that of where the defendant lives (special, not exclusive jurisdictions). Examples of this are as follows:

  • In the case of the disputes arising from a contractual relationship and the existence of such a relationship, proceedings can also be initiated in the court of the place where the disputed obligation is to be performed (Section 29(1) of the German Rules of Civil Procedure (Zivilprozessordnung - ZPO). An agreement regarding the place of performance is only material for procedural purposes if the contracting parties belong to the group of persons who are authorized under Section 38(b)(1) ZPO to conclude jurisdiction agreements (see (c)). The term "contractual relationship" includes all contracts governed by the law of obligations, regardless of the type of obligation. Where the employment courts have jurisdiction, the provision applies accordingly.
  • In respect of claims arising from prohibited acts, the court in whose area the act has been committed also has jurisdiction.
  • The victim of a criminal act may in the course of criminal proceedings make applications intended to assert financial claims accruing to him from the criminal act at the court where the charge has been preferred.
  • In respect of divorce proceedings, substantive jurisdiction lies solely with the Family Court (Familiengericht) (a division established at the District Courts) 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 (meaning 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 also does not apply, the defendant's habitual place of residence is conclusive, unless there is no such place of residence in Germany. In this event, the plaintiff's habitual place of residence is decisive. If this also does not establish a jurisdiction, the Family Court at the Berlin - Schöneberg District 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, this court has sole jurisdiction. In the case of maintenance for children, however, jurisdiction applies only if there is a substantive connection with the divorce. If maintenance proceedings are brought independently (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 jurisdiction of this court still applies if there is a substantive connection with the divorce. If the proceedings are made pending 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 which is conclusive for determining jurisdiction is the date on which the matter is referred to the court.
B.II.2.b) 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)?

Where an Act specifically designates a jurisdiction as being exclusive, it takes precedence over all other jurisdictions, i.e. the proceedings can (admissibly) only be initiated within the exclusive jurisdiction. Exclusive jurisdictions arise in particular from special Acts:

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If the proceedings relate to land or to a right equivalent to land (e.g. hereditary building right), sole jurisdiction in particular cases lies with the court in whose district the subject matter is located; this relates to proceedings arising from ownership or from a charge on real property, disputes relating to freedom from a charge on real property, possessory actions, boundary dispute actions and actions for a partition (Section 24 ZPO).

In the case of disputes arising from leases or tenancies in respect of premises or the existence of such a relationship, sole jurisdiction lies with the court in whose district the leased or tenanted premises are located (Section 29(a)(1) ZPO). The provision does not however apply to leases of residential premises for temporary use (holiday homes, hotel rooms etc.), furnished premises for individual tenants, houses and premises for official duties (Section 29(a)(2) ZPO). 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, sole jurisdiction lies with the court in whose district the environmental effect arose from the plant (section 32a ZPO).

In debt collection proceedings, sole jurisdiction lies with the District Court where the applicant has his general jurisdiction, in other words usually his residence or registered office (Section 689(2) ZPO).

In compulsory enforcement proceedings, sole jurisdiction lies with the District Court, as the enforcement court, in whose district the enforcement action is to take place or has taken place (Section 764(2), Section 802 ZPO). In the case of compulsory sale by auction or compulsory administration of land, sole territorial jurisdiction lies with the District Court, as enforcement court, in whose district the land is located (Section 1(1), Section 146 of the German Compulsory Auction Act (Zwangsversteigerungsgesetz), Sections 802, 869 ZPO).

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B.II.2.c) Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise?

aa) Agreements

The possibility of jurisdiction agreements exists in German procedural law. Under Section 38(1) ZPO, a first-instance court which is not competent per se can become competent as a result of an express or tacit agreement by the parties. This agreement may only be entered into if the parties are merchants, legal entities under public law or public-law special funds. In those cases, a first-instance court which is otherwise incompetent can become competent as a result of an express or tacit jurisdiction agreement.

The competence of a court at first instance may also be agreed if at least one of the contracting parties has no general jurisdiction within Germany (Section 38(2) ZPO). In this case, the agreement must be made in writing or, if it is made orally, confirmed in writing. If one of the parties has a general jurisdiction within Germany, only a court at which that party has its general jurisdiction or at which a special jurisdiction is established can be chosen in respect of Germany.

Under Section 38(3), a jurisdiction agreement is also only admissible if it has, expressly and in writing, been entered into after the dispute arose or to cover the possibility of the future defendant moving his address or habitual residence abroad after the contract is made or of his address or habitual residence not being known at the time of the commencement of proceedings.

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It is a constant requirement for a jurisdiction agreement for it to relate to a particular legal relationship and the legal disputes arising from it; otherwise it is invalid (Section 40(1) ZPO). A jurisdiction agreement is also inadmissible if it deals with claims other than financial claims, which are allocated to the District Court regardless of the value of the disputed subject matter. A jurisdiction agreement is also impossible if an exclusive jurisdiction is established according to law (Section 40(2) ZPO).

Where the written form is required for a jurisdiction agreement to be entered into, general terms of business and form contracts may also satisfy this form.

A valid jurisdiction agreement is binding on the courts; whether the exclusivity of the jurisdiction is agreed depends on the content of the agreement.

bb) Undisputed hearing

The jurisdiction of a first-instance court is also established by the defendant making oral submissions in the main action without asserting lack of jurisdiction (Section 39 ZPO). In proceedings before the District Court, this legal result only arises if the court has given a corresponding indication.

However, jurisdiction cannot be established by making submissions without dispute in the main action where a jurisdiction agreement would be inadmissible (see above, this concerns cases of non-financial disputes and exclusive jurisdictions).

C. Where specialised courts have jurisdiction how can I find out which one I have to address?

The peculiarity of the special jurisdiction of the employment courts exists solely in respect of substantive jurisdiction. With regard to issues of territorial jurisdiction and the possibility of a jurisdiction agreement, the general rules apply, as set out under B.

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Last update: 20-04-2006

 
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