Definition and significance of the objection action
Die Objection action is one of the key legal remedies in German civil procedure law. In particular, it provides a means to defend oneself against enforcement based on an enforcement title when there is a claim to tolerate enforcement against one’s own assets, but the existence of the claim has not been examined on the merits under substantive law. It is often also referred to as a third-party objection action pursuant to Section 771 of the Code of Civil Procedure (ZPO), when a third party asserts that they have a right to an object of enforcement and, for that reason, enforcement is inadmissible.
Legal basis of the objection action
Code of Civil Procedure (ZPO)
The provision for the objection action can be found in Section 771 ZPO. This regulates the case where enforcement based on a title is pursued against an object in which a person other than the debtor asserts a superior right. Sections 772 et seq. ZPO also need to be considered, as they regulate special cases, such as the objection of a beneficiary recorded in the land register or enforcement concerning joined movable items.
Purpose of the regulation
By means of the objection action, the legislator accounts for the fact that the legality of the enforcement is generally derived solely from the enforcement title, without comprehensive consideration of third-party rights at this stage of proceedings. The objection action thus enables the materially entitled person to secure their rights if those rights are adversely affected by the enforcement.
Requirements and admissibility of the objection action
Active standing
Any person who can assert an independent right—such as ownership, usufruct, or lien—over the object of enforcement, which precludes enforcement, is entitled to bring an action.
Passive standing
The objection action is directed against the enforcing creditor and the debtor. Both are necessary parties to the dispute, as the judgment has an impact on the existence of the enforcement and the related legal relationships.
Legal interest in protection
There is a legal interest in protection if enforcement has already begun or is imminent. The mere possibility of a future enforcement measure is not sufficient.
No concurrent lis pendens elsewhere
The objection action is inadmissible if a principal proceeding concerning the same subject matter is already pending elsewhere.
Substantive legal basis of the claim
The objection action requires the claimant to have a superior right in the affected object compared to the right presumed by the enforcing creditor’s claim. In practice, the following rights are especially relevant:
- Ownership (Section 903 BGB)
- Transfer of ownership for security purposes
- Pledge
- Usufruct
- Right of possession based on a lease or tenancy agreement
If the court concludes that the claimant holds such a right, enforcement against the object must be declared inadmissible to that extent.
Procedure and process of the objection action
Type of action and jurisdiction
The objection action is a specific form of the general action for performance. It is filed with the court of first instance that has jurisdiction over the district where enforcement is taking place (Section 771(1) ZPO in conjunction with Section 802 ZPO).
Content of the statement of claim
The statement of claim must contain an admissible claim application, often in the following form:
“It is determined that the enforcement of [precise identification of the title] against the object [description of the object] is inadmissible.”
Furthermore, the claimant must set out and prove in detail the facts that establish their right to the object.
Effect of the action
Filing the objection action does not automatically suspend enforcement. Protection against impending disadvantages can be obtained by applying for a preliminary suspension of enforcement pursuant to Section 769 ZPO.
Legal consequences of the objection action
Decision in favor of the claimant
If the claim is upheld, the court declares enforcement against the specified object inadmissible. Any enforcement actions already taken in relation to the affected object thereby become legally ineffective.
Decision dismissing the claim
If the court dismisses the objection action, enforcement remains lawful and may continue.
Special considerations and distinction from other types of actions
Distinction from action to defend against enforcement, Section 767 ZPO
Whereas the objection action is used to safeguard the rights of third parties not covered by the title against enforcement, the action to defend against enforcement serves to assert objections by the debtor against the adjudicated claim. These are legally distinct instruments with different areas of application.
Distinction from reminder and immediate complaint
In the case of procedural errors in enforcement (e.g., formal defects or erroneous attachment), a reminder under Section 766 ZPO and an immediate complaint under Section 793 ZPO are possible.
Costs and appeals
The costs of the objection action are determined— as in other civil proceedings—by the amount in dispute and are borne by the losing party (Section 91 ZPO). Depending on value and specific grievance, the appropriate legal remedy against the judgment is an appeal or revision.
Significance of the objection action in legal practice
The objection action is a central procedural instrument for safeguarding the rights of third parties against enforcement measures. It is of particular practical importance in complex asset situations, security transactions, or disputes among co-owners. It provides effective legal protection when materially entitled persons are affected by enforcement—even though their rights have not been examined in the preceding proceedings.
Literature reference
- Thomas/Putzo, Code of Civil Procedure
- Zöller, Code of Civil Procedure
- Munich Commentary on the Code of Civil Procedure
With this comprehensive presentation, the article on “Objection Action” provides a well-founded summary of the definition, legal basis, requirements, procedure, legal effects, and distinctions of this special type of action under German civil procedure law.
Frequently asked questions
Who is entitled to bring an objection action?
In principle, any person or corporation who is directly affected in their rights by an administrative act may bring an objection action. This includes both natural and legal persons, provided they hold independent rights and have a personal, current, and worthy interest in the annulment or amendment of the administrative act. Importantly, there must be a specific administrative act that individually and directly creates or modifies a legal relationship. Moreover, the affected person must usually have gone through the preliminary procedure (objection procedure), unless this is dispensed with by law or has exceptionally been omitted by the authority itself.
What time limits must be observed for an objection action?
Strict statutory time limits apply to the objection action. Once the authority rejects an objection, the time limit for bringing legal action commences pursuant to Section 74(1) of the Administrative Court Rules (VwGO). In most cases, this period is one month and begins with the delivery of the objection decision. If no proper information about the time limit and competent court (legal remedies instruction) is given, the period extends to one year. It is strongly recommended to file the action within this period at the administrative court named in the objection decision, since an action submitted late is usually inadmissible.
In which court proceedings is the objection action heard?
The objection action, referred to as an action for annulment in administrative court proceedings, is heard before the administrative courts. It is directed against the final administrative act, typically following an unsuccessful objection procedure, and aims to secure the annulment (or partial annulment) of this act. The hearing takes place in accordance with the provisions of the Administrative Court Rules (VwGO), with the court first examining the formal admissibility requirements and then undertaking a substantive review of the contested administrative act. The court is not bound by the previous submissions and reviews the facts comprehensively.
What are the most common reasons for filing an objection action?
Objection actions are often filed when affected individuals claim to have had their rights violated by an adverse administrative act (e.g., fee assessment, refusal of a building permit, denial of social benefits). Typical grounds include violation of procedural rights (such as lack of a hearing), errors in the application of legal rules, discretionary errors by the authority (e.g., exceeding discretion, misuse of discretion), or an incorrect determination of facts. Claimants also often invoke infringement of fundamental rights or specific statutory protective provisions that the administration must observe in its actions.
What evidence can be submitted in the context of an objection action?
Various types of evidence are admissible in administrative court proceedings. In particular, documents, witnesses, expert opinions, inspection, and party examination are permitted. The court is obliged to investigate the facts ex officio (Section 86 VwGO), so it may use whichever evidence it considers appropriate, regardless of which party has offered it. Claimants typically submit written pleadings with relevant motions for evidence. In particular, obtaining an expert opinion is often of special importance in complex or technically demanding cases.
Is filing an objection action associated with costs?
Yes, filing an objection action incurs court fees and possibly costs for lawyers as well as further procedural expenses. The amount of court fees depends on the amount in dispute, which is determined by the court based on the significance and scope of the matter. Additional costs for evidence, in particular expert opinions, may also arise. If the action is unsuccessful, the losing party generally bears both court and opposing lawyer’s costs (Section 154 VwGO). In the event of success, there may be a claim for reimbursement of costs against the authority. Persons with limited financial means can apply for legal aid.
What are the legal consequences of a successful objection action?
If the court rules in favor of the action, it overturns the contested administrative act in whole or in part. In the extent to which it is overturned by the court, it is considered invalid. The authority is then obliged to restore the original condition or make new decisions in line with the court’s requirements. Any enforcement of the administrative act will be reversed or will not take place. Any resulting side effects (e.g., unlawfully collected fees or penalties) must also be corrected. The judgment is binding on the parties; appeals may be lodged—depending on the instance and value in dispute—by way of appeal or revision.
