🇩🇪 Germany

8         GERMANY

8.1         LEGAL FRAMEWORK

Harmonization on an European level is in certain areas of law rather advanced. However, procedural law, to be distinguished from enforcement law, is to a far extent an exception of this. Accordingly, procedural law remains mainly national, not harmonized law.

Whereas the procedural law is harmonized all over Germany, the German states have still the competence for the courts as such. Accordingly, the number of courts and the organization of the courts themselves is in the competence of the states.

8.2         MAIN PRINCIPLES

  1. The German court system has several Court tracks depending on the matter of law in question, such as general civil law, family law, labor law, social law, administrative law, criminal law and constitutional law. In the following, we will briefly elaborate the civil law court system.
  2. Generally, the plaintiff has at least two, and as the case may be max. three instances of court access, starting with the local courts (Amtsgericht) or District Courts (Landgericht) as first instance, the Court of Appeals (Oberlandesgericht; OLG) as the second instance and in certain cases and if allowed by the Court of Appeals or allowed by the Federal Supreme Court a third instance (Revision) at the Federal Supreme Court.  In practice, only a small percentage of cases reach the Federal Supreme Court (Bundesgerichtshof; BGH).

A further special court is the German Constitutional court (Bundesverfassungsgericht, BverfG) in Karlsruhe which is not a regular last instance, but at the end the court with the highest competence in

view of its findings on the most fundamental set of law, the German constitution (Grundgesetz). In very rare cases, the plaintiff can, after having exploited  all instances, file a complaint with the Constitutional Court claiming violation of his constitutional rights.

  1. Generally, it is not necessary to send a warning letter before you go to court. However, it is in most cases useful to send such letter to avoid to bear the costs for filing a complaint or a request for a preliminary injunction if the defendant immediately declares it will not contest the action after being notified about the court action. Also, in preliminary injunction proceedings, judges are interested in the reaction of the defendant, in particular if they intend to decide ex parte.
  2. At the local courts, only one judge is deciding the case, whereas the chambers in the District courts and the Court of Appeals have usually three judges and the chambers of the Federal Supreme Court even five judges.

The plaintiff can file its court action, and the defendant can later on request that, either to a civil law chamber comprising three professional judges (at the District Court level) in cases of unfair competition, design and trademark law also to a commercial chamber comprising one professional judge and two non-professional side judges being from the local industry.

  1. German lawyers can represent their clients in all German courts with the exception of the Federal Supreme Court to which only a handful of lawyers resident in Karlsruhe are admitted.
  2. Whereas the first instance, in IT or IP matters usually the District Court, considers both the facts and the law completely, the Court of Appeal, in many cases, only considers whether the first instance has evaluated the facts and the law correctly. Accordingly, new facts can only be submitted in the 2nd instance in certain circumstances. This is the reason why it is so important to prepare the first instance case very carefully.
  3. Whereas you have always jurisdiction at the residence of the defendant, you have in particular in IP cases also jurisdiction at the place of infringement which is often the case everywhere in Germany, for example because a trademark is used all over Germany or a website is intended to be downloaded all over Germany. In those cases, plaintiff can choose the court to file its court action.
  4. Whereas IT cases have no special courts, there are special courts

with exclusive jurisdiction for certain IP matters, such as a German trademarks and designations, community trademarks, designs and patents in every German state. This reduces, in IP matters, usually the choice of jurisdiction, but provides the benefit of specialized judges with sometimes long experience. In IP matters, the courts of Hamburg, Cologne, Mannheim, Düsseldorf and Munich are in particular known for their expertise.

  1. Whereas a first instance trial usually last between 10 months and two years, the proceedings at the Court of Appeals level last usually longer, on average two years. The current duration of Federal Supreme Court proceedings is about 2 to 5 years.

8.3         IMPORTANT MILESTONES OF A TRIAL

8.3.1        First instance procedure

After filing the complaint and having advanced the expected court fees based on a calculation of the litigation value, the complaint is served to the defendant who has usually 14 days to declare its willingness to defend himself. Then a court hearing to discuss an amicable settlement and/or to litigate the case is scheduled by the court. Before that, the defendant has the opportunity to file a response to the complaint. Usually, the parties can exchange further briefs until the hearing. In the hearing, the court tries to settle the case, often by announcing his preliminary view on the merits. At the end of the hearing in which usually all facts and evidence must be presented or offered, the court

will render or announce a decision which can be a final decision for this instance, but also its decision to hear witnesses or order an expert opinion on certain facts or even the law.

8.3.2        Judgment and further Appeals

If a judgment is rendered and, sometimes only weeks and even months later, substantiated, the losing party can within one month file an appeal which must be substantiated within two months starting from the receipt of the full decision. Electronic submission of both complaints, briefs and the decision is not yet available at all courts.

8.3.3        Revision

If a party wants to further appeal a decision of a Court of Appeals, it must ask the Court of Appeals to allow the revision to the Federal Supreme Court. Such revision will mainly be allowed if there is a new question of law at stake. If such revision is not allowed by the Court of Appeals, the respective party can file a complaint against this non-admission to the Federal Supreme Court itself which will then in its own discretion allow the revision or not.

8.4         THE PRELIMINARY RULING QUESTION BEFORE THE EUROPEAN COURT OF JUSTICE

Every judge in any national court proceeding can forward certain questions of European law which he considers as decisive for deciding the case to the European Court of Justice. As long as the ECJ has not decided about it, the proceedings are stayed.

8.5         COSTS AND FEES

The losing party must pay the court fees and the reimbursable statutory lawyers’ fees, also only to a certain extent, if both parties lose and win to a certain extent. Both the court and the lawyers statutory fees are calculated on the basis of the litigation value of the case. This can be the sum of claimed damages, in IP matters more often the value of an injunction or information claim. Each party may in addition pay the difference of higher lawyers’ fees, often calculated on a time basis, exceeding the statutory lawyer´s fees.

8.6         PRELIMINARY INJUNCTION PROCEEDINGS

Preliminary injunction proceedings are in particular in the field of intellectual property law a sharp sword in Germany. They are often the only court proceedings conducted. In such proceedings, you can mainly claim an injunction, but no damages. In IP matters, you must, with most courts, file the request for a preliminary injunction within one month of your knowledge of the infringement and the infringer. Only a few courts allow the filing of a preliminary injunction also for a somewhat longer period. You must substantiate the facts by documents or affidavits within this timeframe. Courts can then decide,

even ex parte, very quickly, often on the same or the next day. If such a decision is then served to the defendant by the plaintiff with the help of an officer within one month, the defendant must immediately stop his infringing conduct and can, of course, oppose the injunction. The court will then schedule quickly a hearing to consider the arguments of the defendant. If such an injunction should then be lifted, the defendant has a claim for compensation for his loss by following the injunction decision.

8.7         CRIMINAL PROCEEDINGS

Criminal proceedings are governed by different rules then described above and handled by special courts and usually specialized criminal law lawyers.

Criminal proceedings are usually commenced by the public prosecutor following the investigating work of the police and other authorities. The court must then allow the complaint which will then be prosecuted against the defendant. Although certain criminal sanctions are also available in commercial matters, there are rarely enforced in German practice in these areas of law.

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