Federal Court of Justice confirms rejection of an appeal against denial of leave to appeal in the context of the ‘Gorch Fock’ refurbishment
In a widely noted decision, the Federal Court of Justice (BGH) dismissed the complaint against denial of leave to appeal in a legal dispute concerning claims for reimbursement of expenses related to the comprehensive refurbishment of the training ship ‘Gorch Fock’ (decision dated February 8, 2023, Case No. V ZR 78/22). The decision relates to a long-standing legal conflict involving complex obligations law issues regarding the reversal of commercial contracts and competing compensation claims under public and civil law provisions.
Background of the refurbishment measures and origin of the legal dispute
The sailing training ship ‘Gorch Fock’ serves as the flagship of the German Navy and is of significant historical and public interest. The refurbishment measures carried out in recent years were characterized by several contract awards, subcontractor services, and financial addenda. The underlying legal dispute centers on the question of whether a company that incurred expenses during the refurbishment work can assert a claim for reimbursement of expenses against the owner of the ship.
The proceedings began with the claimant company seeking reimbursement for expenses that exceeded the originally agreed contract volume. Both claims under Sections 539, 683 sentence 1, 670 of the German Civil Code (BGB) and possible contractual adjustment mechanisms were examined. The defendant, as owner of the ‘Gorch Fock’, argued that such a claim was not applicable, particularly in light of the contractual commitment and the agreed remuneration.
Course of the proceedings before the lower courts
The Regional Court had already dismissed the action at first instance. The decision was mainly based on the premise that, after the conclusion of the underlying contract for work, no compensation claims beyond the agreed remuneration could be asserted. The Higher Regional Court (OLG) confirmed this view, stating that the requirements of Section 670 BGB—especially management of another’s affairs in the interest and with the consent of the principal—were not fulfilled. A deviating contractual arrangement generally precludes recourse to the principles of agency without specific authorisation.
The plaintiff subsequently filed a complaint against denial of leave to appeal with the BGH, after exhausting all ordinary legal remedies. The aim was to obtain permission to appeal in order to achieve a supreme court clarification of the unresolved legal issues.
BGH’s reasoning for rejecting the complaint against denial of leave to appeal
The BGH assessed that the case does not have fundamental significance within the meaning of Section 543 (2) of the German Code of Civil Procedure (ZPO). The relevant legal questions, particularly regarding the distinction between contractual and quasi-contractual claims in the special context of large public projects, have already been sufficiently clarified by supreme court rulings. Thus, there was no reason to allow an appeal. The lower courts had correctly assessed the plaintiff’s claims according to the recognized principles of the law of obligations and public procurement law.
The BGH explicitly states that the contractual remuneration provisions define the framework for any reimbursement claims. Only in narrowly defined exceptional cases, such as in the event of a change of plan or an explicit consent from the client to further services, may additional claims be considered. In the case at issue, such consent was lacking, so no claim to further compensation beyond that contractually owed existed.
Civil law and commercial law implications of the decision
Contractual commitment and subsidiarity of reimbursement of expenses
The BGH’s decision has significant implications for contract drafting in the field of public procurement and for the management of complex refurbishment projects. It highlights the primacy of contractual regulations and the restrictive handling of subsidiary claims from agency without specific authorisation (Sections 677 et seq. BGB). Companies engaged in large-scale projects must fundamentally base their actions on the agreed scope of work and the defined remuneration mechanisms.
Practical importance for future refurbishment and construction projects
The ruling also underscores the importance of precise contractual provisions to avoid later disputes over remuneration adjustments or alleged additional services. Especially in extensive and complex refurbishments, contractual compliance is the decisive guiding principle. Without explicit contractual opening clauses or documented changes of plan, claims for reimbursement are often on uncertain footing.
Implications for public procurement and project management
For public procurement, the BGH’s decision also sets clear limits regarding subsequent remuneration claims. Contractors in the public sector cannot—as sometimes assumed—simply rely on a statutory right to reimbursement of expenses when they provide services beyond the original contractual scope. This strengthens legal certainty for the contracting authority, but also raises the requirements for project management and risk management.
Source note and procedural status
The presented decision relates to the proceedings before the Federal Court of Justice, Case No. V ZR 78/22, published by urteile.news. Further legal remedies against this decision are no longer permissible. The factual and legal situation has thus been conclusively assessed.
Conclusion and note
The case law regarding claims for reimbursement of expenses in connection with the ‘Gorch Fock’ refurbishment highlights once again the central role of clear contract design and the limitations of statutory compensation claims in complex projects. Due to the multifaceted nature of such cases and the interplay between civil, commercial, and public economic law, it may be advisable to thoroughly consider the legal implications relating to the execution of refurbishment projects or specific contract drafting. For further information on the legal framework in this area, the Rechtsanwalt of MTR Legal are available as contacts.
