Concept and legal framework of the subsidiary application
Ein Subsidiary application is a concept from German procedural law that plays an essential role particularly in civil proceedings, but also in other judicial procedures. It is an application that a party expressly submits only in the event that another principal or ancillary application is not granted. The subsidiary application thus establishes a conditional sequence of applications and serves the efficiency of the process as well as the comprehensive protection of procedural rights.
Definition and distinction of the subsidiary application
A subsidiary application is a so-called auxiliary application that is only to be decided upon under a certain condition – the failure of a principal application or a superior auxiliary application. It is to be distinguished from a principal application, which is submitted unconditionally for decision. The sequence of staged applications is also referred to as a hierarchy of applications or a staged application, with the subsidiary application being made subsequent or subordinate.
German procedural law distinguishes between principal applications, auxiliary applications, and subsidiary applications. While the principal application is a party’s primary application, auxiliary and subsidiary applications are only made in case the principal application (or another application) is not granted. Within the category of auxiliary applications, simple and true subsidiary applications are distinguished.
Legal basis and areas of application
In civil procedural law
The option to submit subsidiary applications arises from the principle of party disposition as well as other procedural principles in civil procedure, in particular in the Code of Civil Procedure (ZPO). Since the court generally decides only on applications actually submitted (§ 308 para. 1 ZPO, so-called ‘ne ultra petita’ rule), parties may formulate their applications in a graduated and alternative order. A classic example is asserting a claim for performance with a subsidiary application for a declaratory judgment.
Example:
- Principal application: Order to pay a specified amount.
- Subsidiary application: In the event of rejection of the principal application, declaration of the obligation to pay.
In administrative procedural law
Likewise, the administrative court proceedings (§ 88 VwGO) allow the submission of subsidiary applications, for example in lawsuits against administrative acts. Here, subsidiary applications enable parties to assert further claims arising from the facts of the proceedings in case the principal applications are unsuccessful, without having to initiate a new procedure.
In criminal procedural law
Although the role of the subsidiary application is less common in criminal procedure, procedural arrangements of applications can also occur here, for example in accessory prosecution or adhesion proceedings.
Function and significance of subsidiary applications
Strategic considerations in procedural law
Subsidiary applications serve to minimize risks and comprehensively exploit tactical options in litigation. In this way, a party can ensure that the court examines all relevant legal bases for claims and procedural possibilities in the event that the principal application is unsuccessful.
The court is obliged to observe the ranking of the applications and to decide on the subsidiary application only if the submitted principal application (or superior auxiliary application) is unsuccessful.
Material and procedural res judicata
By submitting a subsidiary application, it is prevented that a party becomes procedurally precluded, i.e., that a claim can no longer be asserted in the later stages of the proceedings or subsequent proceedings due to omission. The allowance of subsidiary applications thus ensures the right to be heard and protects against the loss of res judicata.
Admissibility and limits
Subsidiary applications are generally permissible within the framework of the applicable procedural regulations. However, their effectiveness requires that they are formulated with sufficient specificity in accordance with § 253 para. 2 ZPO. The court can reject a subsidiary application as inadmissible if it is indefinite or formulated too vaguely. The internal condition, usually the dismissal of a principal application, must be clearly specified. Subsidiary applications are inadmissible if their condition is inadmissible or contradictory in terms of procedural law.
Types and practical examples of subsidiary applications
True and false subsidiary applications
- True subsidiary application: This is submitted for the event that the superior application is not granted.
- False subsidiary application: Here, the applicant does not establish a material link; instead, the application is submitted as an alternative without an explicit condition.
Example from civil procedure practice
- Principal application: Defendant is ordered to pay €5,000 to the plaintiff.
- Subsidiary application: Should the court find that only a claim to €3,000 exists, it is requested to order the defendant to pay €3,000.
Multi-level subsidiary applications (cascade applications)
In procedurally complex proceedings, a party can arrange several subsidiary applications in a so-called cascade:
- Principal application
- 1st subsidiary application (if the first condition is not fulfilled)
- 2nd subsidiary application (if the second condition is not fulfilled)
etc.
Subject matter, res judicata, and cost implications
Subject matter and preclusive effect
The order and conditionality of the applications determines the scope of the disputed subject matter before the court. If a subsidiary application is not submitted and is asserted only after the principal application is dismissed, the claim can generally not be asserted any more in the same proceedings. This forms the procedural background for the broad admissibility of subsidiary applications.
Cost implications under procedural law
Even in relation to the decision on costs pursuant to § 91 ZPO, subsidiary applications can be relevant. If only the subsidiary application is granted, the party is considered to have lost in respect of the dismissed principal application as well, which may affect the allocation of costs.
Summary
Der Subsidiary application is a central instrument of German procedural law and is applied in various judicial procedural regulations. It enables parties to assert several alternative legal bases or claim amounts in a step-by-step, conditional sequence. The precise formulation and the procedural and cost-related consideration of subsidiary applications are of great relevance for a successful outcome of the proceedings. The flexible structuring of applications through this instrument contributes significantly to the protection of parties’ rights and the efficiency of judicial proceedings.
Frequently Asked Questions
How does a subsidiary application differ from a principal application in civil proceedings?
In civil proceedings, the principal application regularly serves to achieve the claimant’s primary litigation objective. A subsidiary application, also called an auxiliary application, is made solely for the event that the principal application is not granted. This means the subsidiary application takes effect in the order of review as subordinate to the principal application and only becomes effective if the court wholly or partially rejects the principal application. This primarily serves procedural protection, ensuring the applicant does not come away empty-handed if the court does not grant the principal application. The difference lies in the conditional nature and the objective within the application as well as the order of judicial examination. It is important to clearly formulate the conditionality to avoid misunderstandings about the scope of the relief sought. Thus, the subsidiary application prevents the applicant from being left without protection if the principal application is rejected and obliges the court, in the interest of procedural efficiency, to also consider the auxiliary claims.
In which types of proceedings are subsidiary applications permissible and what special features apply?
Subsidiary applications are generally permissible in almost all types of German civil procedure as well as in public law, provided the relevant procedural law does not expressly exclude them. They are frequently used in litigation, but also in interim relief proceedings, in proceedings by order, and in administrative proceedings. In specific types of proceedings, such as voluntary jurisdiction, there may be special requirements for clarifying the hierarchy of applications. A particularity exists in labor court proceedings (§ 264 ZPO, § 46 ArbGG), as subsidiary applications are permissible in modification or declaratory actions, but are subject to special procedural requirements. In criminal procedure, subsidiary applications are also possible, for example when accessory prosecutors assert alternative claims, though these are subject to even stricter admissibility requirements regarding definiteness and linkage to specific facts.
How must a subsidiary application be correctly made procedurally?
A subsidiary application must be explicitly identified as such and included with sufficient specificity in the complaint or application. The condition should be clearly indicated through phrases such as ‘alternatively’, ‘in the event that …’, or ‘if the court does not grant the principal application.’ Furthermore, it must be clarified to which condition the examination of the application is tied—usually the total or partial dismissal of the principal application. A poorly drafted subsidiary application that is insufficiently determinable can be rejected by the court as inadmissible (§ 253 para. 2 no. 2 ZPO). It is essential that the court can comprehend the applicant’s intention and does not risk deciding beyond the application (‘ultra petita’). Resubmission of the application at a later stage in the process is generally possible for the applicant, provided no preclusion has occurred.
What material and procedural legal risks are associated with submitting subsidiary applications?
The submission of a subsidiary application entails certain legal risks. In terms of substantive law, there is a risk that imprecise formulation of the application may lead to either the principal or the auxiliary application being dismissed as unfounded, even though success would have been possible with correct application wording. Procedurally, a subsidiary application that is too broad or too narrow may result in the court making an incomplete or unlawful decision. There is also the risk of contradictory applications, for instance, if the auxiliary application collides with the principal application in substance. Additionally, disadvantages regarding bearing the costs (§ 91 ZPO) may arise if subsidiary applications increase the value in dispute—particularly if they are unnecessary or improperly submitted. In the worst-case scenario, there may be a gap in effectiveness if the condition is not clearly tied to the issuance of a decision concerning the principal application.
What role do subsidiary applications play at the appellate instance?
Subsidiary applications can also play a central role in the appellate instance, especially in appeals or revisions. Here, they allow the party, in case of failure regarding the main challenge to the first instance decision, to submit alternative claims, for example through modified applications or the assertion of new auxiliary applications according to the provisions of the respective procedural rules (§ 525 ZPO, § 559 ZPO). It is important that subsidiary applications be included in the statement of grounds for appeal to preserve the right to legal protection and avoid preclusion under § 531 ZPO. If they are not submitted in good time, it constitutes procedural fault or one’s own negligence. Thus, subsidiary applications are also a strategically important instrument for safeguarding further claims in the appeal process.
Can subsidiary applications be submitted or amended subsequently?
In principle, subsidiary applications can also be subsequently submitted or amended during the proceedings. However, this is subject to compliance with procedural deadlines and, if necessary, judicial instructions. In civil proceedings according to § 263 ZPO, the claim can be expanded, amended, or supplemented with auxiliary applications until the end of the oral hearing. An exception applies if the amendment constitutes a change of action within the meaning of § 263 ZPO—in this case, the opposing party’s consent or court approval is required. The introduction of new subsidiary applications at higher instances is, however, only permissible within narrow limits and under the specific requirements there (especially § 531 ZPO). As a rule, it is advisable to clearly formulate all relevant subsidiary applications already at the outset to enable comprehensive judicial review.
What is the significance of subsidiary applications in arbitration or international procedural law?
In arbitration and international procedural law, the subsidiary application is of comparable importance as in German procedural law, but the particularities of the relevant procedural rules or arbitration rules must be observed. Often, subsidiary applications are not expressly regulated but are permissible due to the general principle of party disposition. In international arbitration, the question of admissibility and effectiveness can also arise from the chosen applicable law or the cited arbitration rules (e.g., ICC, DIS, UNCITRAL). What is crucial here is the clear designation of the subsidiary condition and clarification of the order of asserted claims. In international contexts, the effect of the subsidiary application on cost allocation and enforceability in enforcement proceedings may also be questionable, especially when the arbitral award is to be recognized in another state. In such cases, it is recommended to always choose a transparent and comprehensible application beyond the national regulations.
