Procedural time limits - Germany
TABLE OF CONTENTS
Give a definition of the various deadlines applicable in your Member State in civil matters; for example, procedural time limits, periods of prescription or limitation, prefixed periods, etc.
Give the list of the various days envisaged as non-working days by your legislation pursuant to Regulation (EEC, Euratom) No. 1182/71 of June 1971.
What are the applicable general rules on time limits for the civil proceedings in your State? Quote the references of applicable legislation in civil matters.
When an act or a formality has to be carried out before the expiry of a period, what is starting time – i.e. the initial moment from which the period runs (dies a quo) - of this act or formality?
Can the starting point from which the period runs be affected or modified by the method of transmission or service of documents (personal service by a huissier or postal service)?
Does the starting time for any time limit depend in any way on the receipt by or knowledge of the action by the recipient. If so how?
When a time limit is expressed in days, does the indicated number of days include calendar days or only working days?
When such a period is expressed in months or in years?
Are there any starting points for time limits which apply exceptionally or particularly in certain civil procedures?
If the period expires on a Saturday, Sunday or a public holiday or non-working day, is it extended until the first following working day? Is this extension applicable even when the period in question has as a starting point a future event?
When the request is taken to a jurisdiction which has its seat in the metropolitan territory of the Member State (for those which comprise entities apart from the metropolis or have the geographically separate entities), are deadlines increased for persons who live/reside in one of these entities or for those which live/reside abroad? If in the affirmative for how long?
Conversely, when the request is taken to a jurisdiction which has its seat in one of these entities distinct geographically from the metropolis, are deadlines increased for persons who do not live/reside in these entities or for persons who live/reside abroad?
Are there time limits for appeals specific to certain civil matters?
Can courts, in an emergency or for any other cause, shorten the appearance time limits or fix a special date for appearance? Conversely can such periods be extended?
When an act intended for a party resident in a place where he/she would benefit from an extension of a time limit is notified in a place where those who reside there do not benefit from such an extension, does this person lose the benefit of such a time limit?
What are the sanctions in case of non-observance of the periods?
If the deadline expires, what remedies are available to defaulting parties?
1. Give a definition of the various deadlines applicable in your Member State in civil matters; for example, procedural time limits, periods of prescription or limitation, prefixed periods, etc.
a) Procedural time limits
In Germany sections 214-229 of the Code of Civil Procedure (ZPO) lay down general rules on time limits for trials, while specific provisions governing particularly time limits are contained in the relevant sections of the ZPO.
As a rule, a distinction is drawn between “real" time limits (eigentliche Fristen), i.e. periods within which those involved in proceedings can or – to avoid forfeiting rights – must perform procedural acts or formalities, and “unreal" time limits (uneigentliche Fristen), within which the law requires the Court to perform certain official acts.
Real time limits are either prescribed by law or set at the court’s discretion. Legally‑prescribed time limits include the “periods of grace” (Notfristen) provided for by section 224(2) ZPO, which are always described as such in the ZPO and may not be shortened or extended.
The parties may agree to shorten time limits set by the court and legally prescribed time limits, but not periods of grace or unreal time limits. However, they may not extend the limits. In principle, the court may extend or shorten a time limit it has set, but may alter legally-prescribed time limits only where there is legal provision for doing so and only where a party can provide compelling grounds for such action.
The following time limits are important for parties involved in civil proceedings:
a) In payment procedings
In payment proceedings, under section 692(3) ZPO, an objection may be lodged against the payment order and, under sections 700 and 339 ZPO, an appeal must be lodged against a writ of execution within two weeks.
b) In investigative proceedings
- Section 132 ZPO lays down the general rule that, to ensure that preparations can be made for hearings in adversarial proceedings, the preparatory pleadings must be submitted to the court in time for them to be forwarded to the other party at least one week before the hearing.
- Where the judge sets a date for a preliminary hearing, under sections 275(1) and 277 ZPO he must allow the defendant at least two weeks to reply. Under section 276(1) ZPO, where the judge initiates written preliminary proceedings, the defendant has a two-week period of grace within which he must indicate whether he intends to defend the action; under section 276(2) ZPO the court allows him at least a further at least two weeks to submit a statement in defence.
- If the defendant fails to indicate his intention to defend the action within the time allowed, under section 331 ZPO the claimant may apply for judgment to be given for him by default. The court also issues a judgment by default if the claimant or defendant fails to attend an appointment or enter a plea. Under sections 338 and 339 ZPO, where a judgment by default has been given the party against whom it has been given has two weeks from the service of the judgment to lodge an objection. Where the objection is admissible (and, most importantly, submitted within the time allowed), the proceedings are deemed to return to the stage prior to the default.
- Under section 517 ZPO appeals must be lodged within a month, while section 520 ZPO allows two months for the submission of grounds in support of the appeal. Both time limits commence with the service of the full judgment or, at the latest, five months after it has been pronounced. The court sets a time limit of at least two weeks for replying to an appeal.
- Where the appeal court dismisses an appeal on a point of law, under section 544(1) and (2) ZPO, a renewed application for leave to appeal may be lodged within a month of the service of the full judgment.
- The month allowed for an appeal on a point of law under section 548 ZPO is also a period of grace, while section 551 ZPO allows two months for providing grounds in support of the appeal. Both time limits commence with the service of the full judgment or, at the latest, five months after it has been pronounced.
- Under section 569 ZPO an immediate complaints against a judgment must be lodged within two weeks of service and not later than 5 months and 2 weeks after it has been pronounced. Appeals on points of law, which may be based solely on infringements of rights, must be lodged under section 575(1) within one month after the judgment was served, while section 575(2) ZPO requires the grounds to be presented within a further month.
- Where a party fails to comply with any of the procedural requirements listed in section 233 ZPO (e.g. a period of grace or time limit for the submission of grounds supporting an appeal) through no fault of its own, the party may apply for restitutio in integrum. Under 234(1) and (2) ZPO, the application must be made within two weeks of the removal of the obstacle.
2. Give the list of the various days envisaged as non-working days by your legislation pursuant to Regulation (EEC, Euratom) No. 1182/71 of June 1971.
- New Year’s Day: 1 January.
- Epiphany: 6 January (only in Baden-Württemberg, Bavaria and Saxony-Anhalt)
- Good Friday: the date varies, but is sometime around the end of March or beginning of April
- Easter Sunday: the date varies, but is sometime around the end of March or beginning of April
- Easter Monday: the date varies, but is sometime around the end of March or beginning of April
- 1 May/Labour Day.
- Ascension Day: in May, the date varies
- Whit Sunday: in May, the date varies
- Whit Monday: in May, the date varies
- Corpus Christi, the date varies between sometime at the end of May and the middle of June (only in Baden-Württemberg, Bavaria, Hessen, North-Rhine Westphalia, Rhineland-Palatinate, Saarland, Saxony and Thuringia)
- Assumption, 15 August (only in Bavaria and Saarland)
- Day of German Unity, 3 October.
- Reformation Day, 31 October (only in Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and Thuringia)
- All Saints Day, 1 November (only in Baden-Württemberg, Bavaria, North-Rhine Westphalia, Rhineland-Palatinate and Saarland)
- Repentance Day, the date is variable, sometime between the middle and end of November (only in Saxony)
- Christmas Day, 25 December.
- Boxing Day, 26 December.
3. What are the applicable general rules on time limits for the civil proceedings in your State? Quote the references of applicable legislation in civil matters.
Section 222 ZPO states that time limits for all court proceedings must be calculated in accordance with the rules laid down in sections 187-193 of the Civil Code.
Details of how time limits are set can be found in the answers to questions 5 and 6.
4. When an act or a formality has to be carried out before the expiry of a period, what is starting time – i.e. the initial moment from which the period runs (dies a quo) - of this act or formality?
If the question refers to when an act becomes effective within a time limit and complies with a time limit, the answer is as follows:
Time limits for procedures are observed if acts or formalities are performed by the end of the final day allowed, i.e. as a rule the document is forwarded to the court within the allotted time. The crucial factor is when the document is received by the court, not when it was despatched. The time allowed may, however, be used in full, i.e. until the very end of the final day, even if it is unlikely that anyone will actually see the document at that time.
If the question is intended to establish how the start of the time limit is arrived at, the answer is as follows:
Where an event or a specific time in the course of a day determines the start of a time limit, under section 187 of the Civil Code, the day in question is not included in any calculation of the time limit.
4.a) Can the starting point from which the period runs be affected or modified by the method of transmission or service of documents (personal service by a huissier or postal service)?
No. Where a time limit starts from the moment of service (see reply to question 5 d)), the method of service is irrelevant. Documents are served at the moment they are handed over to the recipient (section 177 ZPO) or by one of means of substitute service listed in sections 178, 180 and 181 ZPO (e.g. given to an adult member of the family or placed in letterbox).
5.a) Does the starting time for any time limit depend in any way on the receipt by or knowledge of the action by the recipient. If so how?
Where a time limit starts from the moment of service (see reply to question 5 d)), it must be established that the documents were actually served. In the case of substitute service, the question of whether the recipient actually received the document is not, in principle, decisive. The decisive factor is that the address for service is (still) the home or business premises of the addressee for service.
If the recipient has no knowledge of the proceedings and is therefore unable to appeal against the decision, under certain circumstances he may apply for restitutio in integrum (see reply to question 13). See the reply to 5 d) in relation to the actual starting time.
5.b) When a time limit is expressed in days, does the indicated number of days include calendar days or only working days?
For example, if a person must act or is served a document on Monday 4th of April 2005 and he or she is requested to answer within 14 days from service, does this mean that he or she shall answer before:
- Monday, 18th of April (calendar days) or
- Friday 22nd of April (working days)?
The indicated number of days relates only to calendar days, not working days. In the above example the time limit would end on 18 April, not 22 April. Where the time limit ends on a Sunday, Saturday or generally recognised public holiday, the limit would extend to the following working day (if, for example, 18 April were a Saturday, the time limit would expire on Monday, 20 April).
5.c) When such a period is expressed in months or in years?
Where a time limit is not
calculated from the date of a key event or moment in time but is expressed in
months or years, it ends at the end of the day of the last week or month
corresponding in name or number to the day on which the event occurred or the
time began. Where the beginning of a day is the point in time that is
decisive for the start of the time limit, the limit ends at the end of the
day in the last week or month that is named or is the date on the starting
day of the time limit.
Where the last day of a
time limit expressed in months does not have an equivalent day in the month
in which the time expires, the limit ends on the last day of the month (e.g.
the time limits starts on 30 January and ends on 28 February).
5.d) Are there any starting points for time limits which apply exceptionally or particularly in certain civil procedures?
As a rule a time limit starts from the service of a document requiring a reply or a decision against which an appeal may be lodged (cf. for example, sections 276(1)(1), 329(2)(2) or 339(1) ZPO). Sections 517, 548 and 569(1)(2) ZPO also state that the time allowed for appeals, appeals on points of law or complaints begin with the service of the decision; where the document is not served or not effectively served and the situation is not resolved within the meaning of section 189 ZPO, the time limit begins five months after the decision has been pronounced. The five-month period thus replaces service. Section 544(1)(2) ZPO makes similar provision in the case of renewed applications for leave to appeal, but in this case the effect of the substitution of service does not enter into force until six months later.
There are different starting points for time limits for, in particular, legal remedies that can set aside the legal force of judgment in exceptional cases:
- The time limit for applications for restitutio in integrum begins on the day when the obstacle is removed (section 234(2) ZPO);
- The time limit for applications concerning failure to grant a hearing under section 321a ZPO starts from the time when it becomes known that there has been a violation of the right to a hearing (section 321a(2)(1) ZPO);
- The time limit for applications for annulment and for the re-opening of proceedings (sections 578 et seq. ZPO) begins on the day the party learns of the grounds for the challenge to a judgment, but not before the judgment has entered into force (section 586(2)(1) ZPO).
The time limit for applications to have a judgment set aside in a public notice procedure (sections 946 et seq. ZPO) begins on the day the applicant learns of the exclusion decision (section 958(1)(2) ZPO).
6. If the period expires on a Saturday, Sunday or a public holiday or non-working day, is it extended until the first following working day? Is this extension applicable even when the period in question has as a starting point a future event?
Where the period expires
on a Saturday, Sunday or a public holiday, this day does not count and the
period expires on the following working day.
7. When the request is taken to a jurisdiction which has its seat in the metropolitan territory of the Member State (for those which comprise entities apart from the metropolis or have the geographically separate entities), are deadlines increased for persons who live/reside in one of these entities or for those which live/reside abroad? If in the affirmative for how long?
As Germany does not have
any such entities there is no need for special rules. The German Code of
Civil Procedure therefore does not extend time limits for people living a
long way from the place of jurisdiction. However, under section 141(1) ZPO,
the court may decide not to require a party to attend in person, where the
"great distance" from the place of residence to the court makes it
unreasonable to do so. Given the generally good transport possibilities
today, a distance of several hundred kilometres is not viewed as "great";
however, each case must be assessed on its merits, and, for example, the
question of the health of a party may be significant.
8. Conversely, when the request is taken to a jurisdiction which has its seat in one of these entities distinct geographically from the metropolis, are deadlines increased for persons who do not live/reside in these entities or for persons who live/reside abroad?
See reply to question 7.
9. Are there time limits for appeals specific to certain civil matters?
German civil law and law of civil procedure set the following time limits, for example:
- Under sections 957(2) and 958 ZPO, an action to set aside a judgment must be brought within one month.
- Under section 1059(3) ZPO, unless the parties have agreed otherwise, arbitration decisions may be contested by an application for annulment lodged with the court within three months of receipt of the decision.
- Section 586(1) and (2) ZPO allows a period of grace of one month from the day on which the party learns of the ground for setting aside a judgment for actions for annulment or for the re‑opening of proceedings closed by an enforceable final judgment.
- The court may also fix a time limit for bringing an action in cases under sections 494a(1) (independent procedure for taking evidence) and 926(1) ZPO (arrest).
- Where a tenant has not agreed an increase in rent at the end of two months after receipt of the request, 558b(2) of the Civil Code entitles the landlord to bring an application for consent within a further three months.
- Where an employee seeks to have his dismissal overturned, under section 4(1) of the Protection against Dismissal Act he must bring an action before the Industrial Tribunal within three weeks. Should he fail to meet this deadline the effectiveness of the dismissal is assumed.
10. Can courts, in an emergency or for any other cause, shorten the appearance time limits or fix a special date for appearance? Conversely can such periods be extended?
It is basically up to the court to set time and dates for appearances, although its discretion is circumscribed by its duty to expedite proceedings and only to fix appointments for Saturdays, Sundays or public holidays under exceptional circumstances.
When issuing a summons to appear before the court in cases where representation is compulsory, at least one week's notice must be given The period of notice in other cases is three days; these periods may be shortened only if the parties agree following an application by one party.
Under section 141(1) ZPO the court requires both parties to attend oral proceedings, where this is necessary to establish the facts of the case. However, where long distances are involved, the court may waive the requirement for a person to attend if it is unreasonable to expect the party to travel a great distance (cf. question 8) or there are any other significant grounds. "Any other significant grounds" within the meaning of section 141(1) ZPO means any important reason for the party, including for example illness, planned holidays, overwork or likely psychological problems arising from an encounter with the other party.
Furthermore, section 227(1) ZPO requires the court to cancel or postpone an appointment to appear at an oral hearing if a party lodges an application citing "significant grounds". As far as this provision is concerned, the fact that the party failed to appear without good reason or failed to make preparations without providing any reason are not deemed significant grounds. Significant reasons include failure to observe notice periods when issuing summonses, a necessary change of legal counsel, the illness of a witness, the legal representative or the party, or where the party is prevented from attending by the death of a close relative. The court may require that the significant grounds for applying for a postponement be justified, and these grounds must be subjected to increasingly critical examination the closer the lodging of the application is to the date set. Even though the court vacation has been abolished, section 227(3) ZPO still allows greater flexibility where a party applies for a postponement for the period between 1 July and 31 August.
11. When an act intended for a party resident in a place where he/she would benefit from an extension of a time limit is notified in a place where those who reside there do not benefit from such an extension, does this person lose the benefit of such a time limit?
While there are no rules
for extending time limits for parties living far away, the German legal system
has no problem recognising that such provisions may exist elsewhere.
12. What are the sanctions in case of non-observance of the periods?
The non-observance of a time limit can have a variety of legal consequences, for example:
- Under 296(1) ZPO, new submissions made after a time period has expired are admissible only if the court is convinced that admitting them will not delay the resolution of the dispute or if the party provides adequate justification for the delay in presenting them. Submissions dismissed under these provisions may equally not be submitted to an appeal body (section 531(1) ZPO).
- Where during preliminary written proceedings under section 276 ZPO the defendant fails to indicate that he is prepared to defend the action within two weeks of service of the statement of claim, a judgment by default is issued against him following an application from the claimant (sections 276(1)(1), 276(2), 331(3) ZPO).
- Where the debtor allows the time limit for appealing against an order to pay to expire during an order for payment procedure (sections 692(1)(3) and 694 ZPO), an enforcement order is issued following an application from the creditor (section 699(1)(1) ZPO).
- Where the period for lodging an appeal is not observed, the decision becomes legally binding (section 705 ZPO). This also applies to the non-observance of the period for lodging an objection against a judgment by default or enforcement order. (The objection is not an appeal in the technical sense, as it is examined by the same body, and not a higher instance.)
Failure to observe the time limit for justifying an appeal, appeal on a point of law or subsequent appeal results in the appeal being dismissed as inadmissible (cf. sections 522(1), 552(1), 577(1) ZPO).
- The same applies to renewed applications for leave to appeal (section 544(2) ZPO).
13. If the deadline expires, what remedies are available to defaulting parties?
Where deadlines expire, the party has the following possible remedies in relation to the consequences set out in the answer to question 12:
- In cases covered by section 296(1) ZPO the party has the possibility of apologising for the delay (see above). In this case the court may require the party to explain why he is not to blame for failing to observe the deadline. If the explanation is acceptable, the court must take account of the late submission.
- The party against whom a judgment by default is delivered may appeal against the decision (section 338 ZPO). If the appeal is admissible, i.e. submitted in the correct form and within the time allowed (sections 339 and 340 ZPO), and justified, the proceedings are deemed to be returned to the stage before the deadline expired (section 342 ZPO). h.
- It is also possible to appeal against an enforcement order issued in connection with order to pay proceedings, as section 700 ZPO places enforcement orders on a par with judgments by default.
- The time limits for legal appeals and objections are so-called periods of grace. If a party is prevented from observing a period of grace, he may apply for restitutio in integrum (sections 233 et seq. ZPO). This must be done in the required form and within the time allowed (sections 234 and 236(1) ZPO). The facts that led to be time limit not being observed must be explained and be acceptable (section 236(2) ZPO). Procedures not carried out, e.g. the lodging of an appeal, must be performed within the application period.
- It is also possible to apply for restitutio in integrum where the time allowed for justifying an appeal, appeal on a point of law or further appeal has expired.
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