Judges are in a unique service and fiduciary relationship under public law with the State, the "judicial relationship", which is different from the civil servant relationship. This is because judges are not required to follow instructions like civil servants. The judicial relationship is the form of the public service relationship occupied by those members of the public service who have to make judicial decisions in public office as holders of the power to make judicial decisions. Judges are employed either by the Federal Government or by one of the 16 Bundesländer (federal states).
In the Bundesländer of
In the other Länder, a "judicial selection committee" is involved in the appointment. The judicial selection committees in the individual Bundesländer differ substantially with regard to composition and function; they mostly consist of members of parliament or of persons instructed by them; representatives of the judiciary sometimes also belong to them, and in many Länder one or two attorneys at law.
Decisions as to the appointment of judges to the highest federal courts of law (Bundesgerichtshof (Federal Court of Justice), Bundesverwaltungsgericht (Federal Administrative Court), Bundesfinanzhof (Federal Tax Court), Bundesarbeitsgericht (Federal Employment Court), Bundessozialgericht (Federal Social Court) are made by the federal judicial committee and by the federal minister responsible for the respective court. The appointment of the federal judges which establishes the employment relationship is made by the Federal President. The judges at the other federal courts are appointed by the Federal President on the proposal of the responsible federal minister without any involvement by the judicial selection committee.
The Bundesverfassungsgericht (Federal Constitutional Court) is at the same time a court and a constitutional body. Half of the judges of the Federal Constitutional Court are chosen by the Bundesrat (Federal Council) and half of them by a 12-member delegates committee of the Bundestag (Lower House of Parliament) by a two-thirds majority, and they are appointed by the Federal President.
The independent salaries of judges in federal courts and in the courts of the Länder are laid down in the Federal Salaries Act (Bundesbesoldungsgesetz); the salaries are determined by Salaries Regulation R. The basic salary is primarily calculated according to salary groups linked exclusively to the functions given to the judges. A judge only goes up to a higher salary group if a higher-value function has been given to him. The salary level of judges in the two lower salary groups (R1 and R2) is determined in principle by age. The salary is paid by the respective employer (Federal Government or Land).
The fundamental provisions relating to the status of judges are laid down in the Basic Law (Grundgesetz) in a separate section relating to "judicial decisions". The Basic Law states that the power to make judicial decisions is entrusted to the judges (Section 92) and it guarantees judicial independence (Section 97(1)).
Further details of the structure of the judicial relationship are reserved for particular Acts; the German Judiciary Act (Richtergesetz), which mainly deals with the position of professional judges, is of particular importance.
Section 1 of the German Judiciary Act contains provisions applicable to judges employed by the Federal Government and by the Länder, particularly provisions as to status. Section 2 governs the legal relationships of the judges employed by the Federal Government. Finally, Section 3 sets out, in the form of framework provisions, principles for judges employed by the Länder. These framework provisions are supplemented by the respective Land Judiciary Acts - each of the 16 Länder having a Land Judiciary Act.
The German Judiciary Act and the Land Judiciary Acts partly refer, for technical legal reasons, to other provisions. For example, reference is made to the Civil Service Act (Beamtenrecht) in respect of questions which can be settled in the same way for civil servants. Although the payment of judges in the Federal Republic of Germany has been laid down in an independent pay regulation since 1975, this pay regulation is part of the Federal Salaries Act (Bundesbesoldungsgesetz) which governs the pay of civil servants and soldiers as well as that of judges.
The provisions of the German Judiciary Act apply to the judges of the Federal Constitutional Court only in so far as they are consistent with the special legal status of those judges under the Basic Law and under the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht).
In Germany, there is on the one hand the "normal jurisdiction" consisting of the criminal and civil jurisdiction. Decisions are made in this area by the Amtsgericht (District Court), Landgericht (Regional Court), Oberlandesgericht (Higher Regional Court) and, as the highest court, the Bundesgerichtshof (Federal Court of Justice). Additionally, there are four further specialist jurisdictions: the administrative jurisdiction (consisting of the Verwaltungsgericht (Administrative Court), Oberverwaltungsgericht (Higher Administrative Court) or Verwaltungsgerichtshof (Administrative Court of Justice), Bundesverwaltungsgericht (Federal Administrative Court), financial jurisdiction (consisting of the Finanzgericht (Finance Court) and the Bundesfinanzhof (Federal Finance Court)), employment jurisdiction (consisting of the Arbeitsgericht (Employment Court), Landesarbeitsgericht (Regional Employment Court) and the Bundesarbeitsgericht (Federal Employment Court)) and the social jurisdiction (consisting of the Sozialgericht (Social Court), Landessozialgericht (Land Social Court) and the Bundessozialgericht (Federal Social Court)). Additionally, there is the Bundespatentgericht (Federal Patent Court) and Courts Martial as further special federal courts. All judges employed in those courts are either employed by the Federal Government or by the Länder.
The judges of the Federal Constitutional Court and those of the Land Constitutional Courts occupy a special position, as these courts are constitutional bodies, the rights and obligations of which are laid down in separate acts. In the case of the Federal Constitutional Court, this is the Basic Law and the Federal Constitutional Courts Act, and in the case of the Land Constitutional Courts these are the Land constitutions and corresponding Judicature Acts.
As the Basic Law lays down that the power to make judicial decisions is entrusted to the judges, it is mandatory for them to be involved.
Judicial representative bodies are involved to a certain extent in decisions relating to the administration of justice which concern the judges. For this purpose, the German Judiciary Act provides two bodies which are different in composition and functions: the presidential council for involvement before a judge is appointed or chosen, and the judicial council in respect of involvement in general and social matters.
In other respects, the Basic Law provides for freedom of association in Germany, so that judges can also form professional associations but are not obliged to do so.
Foreigners cannot become judges in Germany. According to the provisions of the German Judiciary Act, only persons who are Germans (within the meaning of the Basic Law) can be called for judicial appointment.
Public prosecutors employed by a Land are appointed by the Land government, the prime minister or the minister of justice of the respective Land, and public prosecutors employed by the Federal Government are appointed on the proposal of the Federal Minister of Justice by the Federal President with the consent of the Bundesrat. As civil servants, they are public service employees. They are paid by their employers (Federal Government or Land) and their pay is determined by the Federal Salaries Act (Bundesbesoldungsgesetz) and is in accordance with the salaries of the judges.
Only those who are qualified to exercise judicial office can be appointed as public prosecutors. The civil servants of the public prosecutors department are not independent but must comply with the official instructions of their line managers. The senior public prosecutors and the minister of justice are authorized to give orders. There are no standing orders for public prosecutors.
There are no statutory provisions about specializations or categories within the job outline of public prosecutors. In practice, however, specialization often occurs in particular areas (e.g. white collar crime, organized crime, offences relating to capital).
In Germany, the public prosecutor's office has the "monopoly" on bringing charges. In principle, only the prosecutor's office may bring charges in court in criminal matters, and it is obliged to do so where the relevant grounds exist.
There are no special professional representative bodies with compulsory membership for public prosecutors. However, the professional representative bodies established for judges are also open to public prosecutors.
Nationals of other Member States of the European Union can also be appointed as public prosecutors.
Attorneys at law in Germany practise an independent profession as "an independent body providing legal services". It is necessary to be admitted to practice. The procedure is conducted by the Bar Associations. Only those who have become qualified to exercise judicial office under the German Judiciary Act can be admitted, subject to the provisions for European attorneys at law (see below). This qualification is acquired by those who conclude a course (of at least three and a half years) in law at a university with the first national examination and conclude a subsequent period of preparatory employment (of two years) with the second national examination.
The status, the requirements for entry to the profession, the rights and obligations of attorneys at law, the organization and duties of the bar associations and professional supervisory body and proceedings in the Lawyers Disciplinary Court (Anwaltsgericht) are laid down in the Federal Regulations relating to attorneys at law (Bundesrechtsanwaltsordnung-BRAO). More detailed provisions relating to professional rights and obligations are laid down by the Professional Rules for attorneys at law (Berufsordnung für Rechtsanwälte - BORA), which are passed on a statutory basis by the Federal Bar Council. The remuneration of attorneys at law is laid down by the Attorneys at Law Remuneration Act (Rechtsanwaltsvergütungsgesetz - RVG).
In civil cases before the District Courts there is normally no requirement to instruct a lawyer. Representation by an attorney at law is however prescribed in all proceedings before the Regional Courts, the Higher Regional Courts and the Federal Court of Justice and in a range of family matters in the District Courts.
The parties can represent themselves before the Employment Courts in employment disputes. The parties must arrange to be represented by authorized representatives in proceedings before the Land Employment Courts and the Federal Employment Court. As well as attorneys at law, trade union representatives or representatives of employers' associations or of combinations of such associations may also appear as authorized representatives if they are authorized to provide representation under their constitution or a power of attorney and if the combination, association or its members are a party to the proceedings.
All attorneys at law are members of the Bar Council for where their office is located. The 27 Bar Councils, which are organized at the level of the Higher Regional Courts as corporations under public law, and the Bar Council at the Federal Court of Justice form the Federal Bar Council (www.brak.de ). The largest private association is the Deutsche Anwaltverein, in which about half of the attorneys at law are organized on a voluntary basis (www.anwaltverein.de - - - ).
The German Act relating to the work of European attorneys at law in Germany (Gesetz über die Tätigkeit europäischer Rechtsanwälte in Deutschland - EuRAG) governs the requirements under which nationals of Member States of the European Union and of the other Contracting States of the Treaty on the European Economic Area and Switzerland who are admitted as attorneys at law in their country of origin or who have a diploma entitling them to direct entry to the profession of attorney at law in their country of origin can practise their profession in Germany (provision of services, establishment under the professional title of the country of origin) and can be admitted as attorneys at law in Germany. BRAO governs the possibilities for other foreign attorneys at law to become established in Germany.
Like attorneys at law, patent attorneys in Germany practice an independent profession as "an independent body providing legal services". Their authorization to advise and provide representation is restricted to the area of industrial property rights. It is necessary to have a licence to practise, which is granted by the president of the German Patent and Trade Mark Office (www.dmpa.de; "information", "patent attorneys and representation"). Persons who have acquired a technical qualification (scientific or technical course of study with a final examination; one year's practical technical work) and who have then completed a training course in the field of industrial property rights (34 months, not applicable in the case of patent specialists who have practiced the profession for ten years) and who have passed the patent attorneys examination can be admitted to practice.
The German Patent Attorney Regulations (Patentanwaltsordnung) govern the status, requirements for entry to the profession, rights and obligations of patent attorneys, the organization and functions of the Patent Attorneys Association and the professional supervisory body and proceedings in the Professional Disciplinary Court. Further details on professional rights and obligations are laid down by the German Patent Attorneys Professional Regulations (Berufsordnung der Patentanwälte) which are passed on a statutory basis by the Patent Attorneys Association.
Nationals of Member States of the European Union and of the other Contracting States of the Treaty on the European Economic Area, who have a diploma entitling them to direct entry to the profession of patent attorney in their country of origin can take an aptitude test in order to be admitted as a patent attorney in Germany (under the German Act relating to the aptitude test for admission as a patent attorney (Gesetz über die Eignungsprüfung für die Zulassung zur Patentanwaltschaft)). The Patent Attorneys Regulations govern the possibilities of becoming established under the professional title used in the country of origin.
Notaries are "independent holders of a public office", who are appointed in order to certify legal transactions and perform other duties in the area of precautionary legal care. The appointment is made by the Land justice administrative authorities. German nationality and qualification to hold judicial office under the German Judiciary Act are requirements for the purposes of an appointment. This qualification is acquired by persons who pass a course of legal studies at a university (of at least three and a half years) with the first national examination and who then pass a period of preparatory employment (of two years) with the second national examination. In parts of Germany, attorneys at law are appointed as notaries and practise as notaries in addition to the profession of attorney at law (attorney-notaries), while in other parts of the country persons are appointed to work exclusively as notaries (main-profession notaries or exclusive notaries); in Baden Württemberg, notaries are sometimes made civil servants.
The position, requirements for entry to the profession, the rights and obligations of notaries, the organization and functions of the notarial associations and the disciplinary proceedings are laid down in the German Federal Notaries Regulations (Bundesnotarordnung). More detailed provisions on professional rights and obligations are laid down by the Directives which are passed on a statutory basis by the notarial associations. The German Act relating to costs in matters of voluntary jurisdiction (costs regulations) (Gesetz über die Kosten in Angelegenheiten der freiwilligen Gerichtsbarkeit (Kostenordnung,)) governs the costs of notaries (fees and disbursements).
Apart from a few exceptions (particularly in consular law), notaries have exclusive powers to undertake certifications. Certification is statutorily prescribed in particular in respect of contracts relating to land and in respect of particular transactions in the areas of company, family and inheritance law.
All notaries are members of the notarial association for where their business office is located. The 21 notarial associations, which are organized at the level of the higher regional courts as corporations under public law, form the Federal Notarial Association (information and addresses; www.bnotk.de - - - ).
Registrars are independent providers of legal services. Their function and position are conclusively laid down by the German Registrars Act (Rechtspflegergesetz). The Act also contains a list of the transactions which are transferred to registrars, as well as the judicial reservations in these areas: for example, registrars issue inheritance certificates on the basis of statutory succession or receive applications for inheritance certificates, grant guardianship court approvals, monitor the work of carers and guardians, process and decide on land register applications or applications to the commercial register, and perform enforcement functions.
Although registrars are actually independent in the performance of their duties, they are not judges and thus also do not exercise any power of adjudication for the purposes of Section 92 of the Basic Law.
Registrars are civil servants of the senior court service. They are mainly appointed by the individual Land justice administrative authorities for the area of business in which they are to be appointed, but also to a limited extent by the Federal Justice Department.
The qualification to be a registrar is acquired in the course of preparatory service to be performed as a civil servant subject to revocation, and by passing the registrars examination. The framework conditions and minimum standards of the training are laid down in the Registrars Act, and the breakdown of the preparatory service, the content of the studies and the details of the examination are regulated at Land level by the training and examination regulations made by the Länder.
Persons wishing to become registrars must be German nationals within the meaning of the Basic Law or nationals of a Member State of the European Union. However, a number of Länder have made use of the possibility provided by Article 48(2) of the EEC Treaty and only admit applicants of German nationality for preparatory employment.
Chief clerks are also independent providers of legal services. Chief clerks are involved in particular with the service of documents, summonses, enforcement, keeping records of hearings, certifications and the like.
The legal status of chief clerks arises from Section 153 of the German Judicature Act (Gerichtsverfassungsgesetz - GVG). Chief clerks are civil servants in the intermediate court service. They are mainly appointed by the individual Land justice administrative authorities for the area of business in which they are to be appointed but in the case of the Federal courts they are appointed by the Federal Ministry of Justice or by the Federal courts themselves.
The duties of the chief clerks are mainly set out in the individual procedural acts (e.g. the German Rules of Civil Procedure (Zivilprozessordnung) or the German act relating to matters of voluntary jurisdiction (Gesetz über die Angelegenheiten der Freiwilligen Gerichtsbarkeit)), supplemented by provisions made by the Länder in respect of their area of business and made by the Federal government in respect of the Federal courts.
The qualification to be a chief clerk is acquired in the course of preparatory employment to be performed as a civil servant subject to revocation and by passing a career examination. The framework conditions and minimum standards of the training are set out in Section 153 of the Judicature Act. The breakdown of the preparatory work, the contents of the training and the details of the examination are regulated at Land level by the training and examination regulations passed by the Länder. There is no training at Federal level.
Persons wishing to become chief clerks must also be German nationals for the purposes of the Basic Law or nationals of a Member State of the European Union.
Bailiffs are always Land civil servants for life of the intermediate service. They are appointed by the respectively responsible presiding judge of the Higher Regional Court. Bailiffs act as civil servants but independently. Bailiffs are independent in the manner in which they practice their profession.
As civil servants, bailiffs receive a salary, and they also receive a specific share of the fees charged in respect of their work. In order for them to be able to establish and maintain their own offices, which are necessary, the office expenses are refunded to bailiffs - normally at a flat rate - by the respective Land tax authority.
The legal relationships of bailiffs are laid down in the Judicature Act (Sections 154, 155) and are otherwise determined by various Land legal provisions. There is no general legislation governing the performance of the work of bailiffs. However, general administrative provisions do exist, which have been made by the individual Land justice administrative authorities: the Bailiffs Regulations (Gerichtsvollzieherordnung) and the Bailiffs Business Directions (Gerichtsvollziehergeschäftsanweisung).
The job description of the bailiff is a standard one. There are no specializations in this respect. The existing statutory or sub-statutory regulations apply in the same way to all bailiffs.
There is no system of chambers for bailiffs in Germany. The reason for this is that they are civil servants. They are however, almost without exception, organized into interest groups, most of them being members of the German Bailiffs Association (Deutscher Gerichtsvollzieher Bund - DGVB). This in turn is a member of the German Civil Servants Association (Deutscher Beamtenbund). Membership of the interest groups is not compulsory but voluntary.
Under current law, it is only possible to train German applicants. Only persons with German nationality can become bailiffs.Top
Last update: 30-05-2006