Simplified and accelerated procedures - Germany

 

Order for payment procedure

1. Procedure in the case of an order for payment

Is there a simplified procedure aimed at dealing with claims that may be uncontested by the dependent (an "order for payment procedure")?

Yes. An order for payment procedure exists in the Rules of Civil Procedure and is laid down in Sections 688 et seq. ZPO.

1.1. Scope of the procedure

What is the scope of application of that procedure?

a) What types of claims are eligible (e.g. only monetary claims, only contractual claims etc.)?

The procedure is applicable in principle to all claims relating to the payment of a specific sum of money in Euros.

The order for payment procedure is however excluded in the following cases:

1. if it relates to a claim arising from a consumer loan with an interest rate more than 12 percentage points above the basic interest rate,
2. if it relates to a claim, the assertion of which is dependent on counter performance which has not yet been performed,
3. if service of the order for payment would have to be effected by way of public notification because the defendant's whereabouts are unknown.

b) Is there an upper limit regarding the value of the claim?

There is no upper limit regarding the value of the claim.

c) Is the use of that procedure optional or obligatory?

The use of the order for payment procedure is optional for the creditor. It is for him to decide whether to proceed by way of the order for payment procedure or to instigate normal proceedings.

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d) Is the procedure available if the defendant lives in another Member State or in a third country?

The German order for payment procedure applies in principle even if the defendant lives in another Member State or a third country. It must however be noted that, pursuant to Section 688(3) of the German Rules of Civil Procedure (Zivilprozessordnung - ZPO), where it would be necessary for the order for payment to be served abroad, the order for payment procedure only takes place if the German Recognition and Enforcement Implementation Act (Anerkennungs- und Vollstreckungsausführungsgesetz) makes provision for this. This currently applies to all Member States of the European Union and to Iceland, Norway, Poland and Switzerland.

1.2. Competent court

Regardless of the level of the claim, the only competent court for the purposes of the order for payment procedure is the district court at which the applicant has his general jurisdiction. The general jurisdiction is in principle determined by the place of residence, or in the case of a legal entity by its registered office. In many German Federal States, however, central order for payment courts have been established (for example, the Wedding District Court in Berlin), i.e. responsibility for order for payment procedures has been concentrated in a number of district courts or even in only one district court in the Federal State. In this case, the applicant's general jurisdiction exists at the central order for payment court with a responsibility for his place of residence.

If the applicant has no general jurisdiction within Germany, the Berlin Schöneberg District Court has exclusive jurisdiction. If the defendant has no general jurisdiction in Germany, the court which has jurisdiction is the District Court which would have jurisdiction for the contested procedure, regardless of whether the District Court has substantive jurisdiction (the District Courts have jurisdiction per se only up to the sum of €5,000). In this case also, there may be central order for payment courts depending on the Federal State.

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1.3. Formal requirements

a) Is the use of a standardised form obligatory? (if so, where can that form be obtained?)

The use of a standardised form is obligatory. There are different standardised forms on the one hand for the mechanical order for payment procedure and on the other hand for the manual order for payment procedure.

In most Federal States, the order for payment procedure is processed mechanically. Applications can in this case be made either on standardised paper forms or by way of electronic data exchange. There are certain software producers who supply software programs for electronic applications in the automated judicial order for payment procedure. On-line application via the Internet is also possible at some District Courts.

The standardised paper forms for the automated and manual order for payment procedures can be purchased from stationers.

b) Is it necessary to be represented by a lawyer?

No, it is not necessary to be represented by a lawyer.

c) Must the reasons for the claim be described in detail?

The reasons for the claim need not be described in detail. All that is necessary is to designate the claim, stating in particular the amount claimed. The boxes provided for this purpose in the standardised forms for the order for payment procedure must be completed. Main claims and ancillary claims must be designated separately and individually.

d) Must written evidence be presented in respect of the claims asserted? If so, which documents are admissible as proof?

No written evidence need be presented in respect of the claims asserted.

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1.4. Rejection of the application

An application for an order for payment to be made will be rejected if the order for payment procedure is not permissible or if the court to which the matter has been referred has no jurisdiction or if the application for an order for payment is not in accordance with the formal requirements. The application will also be rejected if the order for payment cannot be made in respect only of a part of the claim. The applicant must be heard before the matter is dismissed.

Before making the order for payment, the court does not examine whether the applicant is entitled to the asserted claim.

1.5. Appeal

There is in principle no appeal against the refusal of an order for payment. By law, an immediate appeal is commenced only if the application is sent in a form which is only machine readable and is rejected on the grounds that this form appears incapable of being mechanically processed by the court; however, this provision does not play a major role in practice.

1.6. Notice of opposition

If an order for payment has been made and served on the defendant, the defendant can file notice of opposition within two weeks. A notice of opposition must however be noted even after the expiry of that period, provided that no enforcement order has been made.

When the order for payment is served, the defendant receives a form on which he can file notice of opposition to the order for payment. The use of the opposition form is however optional and is not mandatorily prescribed. The notice of opposition can therefore also be filed in another form; the only formal requirement is that the notice of opposition must be in writing.

1.7. Effect of notice of opposition

If the defendant disputes the claim at the proper time, the effect of this is that it is no longer possible to issue an enforcement order for the compulsory enforcement of the claim asserted under the order for payment. The litigation is not however automatically transferred to the normal, i.e. "contested" procedure. This requires a specific application for the contested procedure to be implemented, and this can be made either by the applicant or by the defendant in the order for payment procedure. The applicant may also make the application as soon as he hears about the notice of opposition or can link the application to the order for payment as a precaution.

1.8. Effect of lack of notice of opposition

a) What needs to be done in order to obtain an enforceable decision?

On application, the court makes an enforcement order. The application cannot be made until the time limit for notice of opposition has expired, and it must contain a statement as to whether any payments have been made under the order for payment and, if so, what payments. If contributions have been paid, the applicant must reduce his application accordingly.

b) Is it still possible to appeal against this decision?

The enforcement order is equivalent to a default judgment which is declared to be provisionally enforceable. Notice of appeal can be filed against it within two weeks of service.

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Last update: 15-06-2006