Definition and significance of a counter certificate
Die Counter certificate is a term from German law and refers to a written confirmation issued by an authority other than the one originally responsible for issuing a certificate, which questions, relativizes, or disproves the statements or facts of a previously issued certificate. Counter certificates are particularly issued in administrative, judicial, or medico-legal contexts to challenge an existing certificate. The primary function of the counter certificate is to break the existing certification monopoly and to ensure transparency and a balanced determination of the facts.
Legal basis of the counter certificate
Legal foundations
There is no explicit statutory definition of the counter certificate in German law. Nevertheless, the instrument is normatively recognized and is derived from general principles of administrative procedures, document law, as well as special legal provisions in various fields of law.
Administrative law
In administrative proceedings, the right to be heard pursuant to Article 103(1) of the Basic Law and the principle of equality of arms are of particular importance. Parties against whom a certificate is used have, within the framework of these principles, the opportunity to submit a counter certificate. This can be especially significant in administrative procedures or in opposition and judicial proceedings. Administrative authorities are obliged to take counter certificates into account in their decision-making.
Procedural significance
In judicial proceedings, such as civil litigation, social court proceedings, or administrative process, counter certificates can be introduced as evidence (§ 420 ff. Zivilprozessordnung, § 118 Sozialgerichtsgesetz, § 86 Verwaltungsgerichtsordnung). The counter certificate serves here to contradict or relativize the content of a certificate already submitted. Courts are obliged to assess both certificates objectively and, if necessary, obtain further evidence.
Practical areas of application
Medical law and school law
In medical law—particularly in the context of certificates of incapacity for work—the counter certificate plays a central role (§ 275 SGB V, § 65 SGB VII). The health insurance fund may, for example, obtain a counter certificate from the Medical Service of Health Insurance (MDK) if there are substantiated doubts about the legality or veracity of a submitted certificate of incapacity for work. In school law, the counter certificate is also relevant, for instance in the case of school medical certificates when a second examination is ordered.
Tenancy and condominium law
In tenancy law, for example, in disputes about the condition of a rented property, a certificate from one expert can be challenged by a counter certificate from another expert (§ 404 ZPO). The same applies in condominium law.
Civil service and labor law
In civil service and public service law, an official medical certificate can, for example, be reviewed by a counter certificate from another medical officer (§ 44 BBG, § 26 BeamtStG). In labor law, the counter certificate is particularly relevant in cases of incapacity for work and within the context of dismissal protection proceedings.
Family and social law
In social law, an applicant who is disadvantaged by an administrative decision may strengthen their legal position by submitting a counter certificate. For example, in benefit decisions, medical certificates are reviewed by counter certificates.
Legal status and evidentiary value of the counter certificate
Evidentiary function
The counter certificate constitutes an independent means of evidence. It provides the opportunity to challenge an existing presumption created by an initial certificate through an expert presentation. Under evidentiary law: For courts and authorities, counter certificates have evidentiary value equivalent to the original certificate, provided there are no reasons justifying a divergent assessment.
Objective assessment by authorities and courts
Neither the initial certificate nor the counter certificate has automatic precedence. The deciding authority must, taking into account all circumstances and, if necessary, gathering further evidence (e.g., obtaining a court expert opinion), decide which certificate should be accorded greater probative value in the specific case. In particular, when certificates are contradictory, the court may commission its own expert report.
Binding effect
The counter certificate does not have any formal binding effect, but merely represents another factual presentation, assessment, or evaluation. The final evaluation and decision is the responsibility of the deciding authority (administrative body or court).
Form, content, and requirements of the counter certificate
Formal requirements
A counter certificate must generally be prepared in writing and provide sufficient justification for the differing opinion. It must clearly indicate the substantive differences or doubts regarding the initial certificate. Signature and, if applicable, stamp as well as the identification of the authority responsible for the counter certificate are essential for its validity.
Substantive requirements
- Clear specification of the reference document (initial certificate)
- Presentation of facts or legal opinions that oppose the initial certificate
- Comprehensible argumentation and substantiation of one’s own statements
- Date of issuance
- Identification and legitimation of the issuer, whether person or institution
Special constellations and distinctions
Counter certificate versus counter expert report
In a broader sense, a counter certificate can be seen as a subcategory of a counter expert report. However, while expert reports conduct a comprehensive assessment of the facts, (counter) certificates usually focus on specific findings or individual issues.
Counter certificate in the international context
In international legal relations, comparable instruments are known under terms such as “counter certificate” or “contravailing certificate”, particularly in administrative and evidentiary proceedings.
Legal consequences of an unauthorized or incorrect counter certificate
Incorrect or unauthorized counter certificates can, depending on their content and effect, result in criminal or liability consequences for the issuer. In particular, knowingly issuing false counter certificates may be prosecuted as forgery of documents or false certification in office (§§ 267 ff., § 348 StGB).
Conclusion and significance in practice
The counter certificate is an essential instrument for legal certainty, truth-finding, and equality of arms in legal dealings. It serves to control certificates and ensures that no unilateral presentation of facts or assessments stands unchallenged. In practice, obtaining a counter certificate is especially significant in medical, administrative, and social law contexts. Appropriate drafting and assessment of the counter certificate remain, in each case, the responsibility of the deciding instance.
Literature reference: Detailed information can be found in commentaries on the Administrative Procedure Act, in handbooks on medical law, as well as in relevant specialist literature on document and evidentiary law.
Frequently asked questions
When and in which cases may a counter certificate be issued?
A counter certificate may only be issued in the legally regulated exceptional cases in which the law provides for a temporary or permanent administrative or judicial decision differing from the main certificate. It serves to provide the signatory with a provisional legal basis in disputed or ambiguous situations, or, for example in administrative proceedings, to document a differing legal opinion of another authority. Classic cases include refusals of approvals, contradictory orders, or urgent situations requiring immediate clarification before a final decision is made in the main proceedings. However, issuance of a counter certificate is always subject to certain formal and substantive requirements, which arise from special legal regulations, principles of administrative procedure, or specific administrative instructions.
What is the legal effect of a counter certificate?
The legal effect of the counter certificate depends on the particular procedural stage and the applicable legal basis. As a rule, this certificate does not have a final legitimizing effect, but is of a provisional nature. It may permit immediate enforcement or create a temporary authorization until a final judicial or administrative decision is made. In many cases, it serves to safeguard or restore a status quo or as proof that a particular measure—contrary to another administrative decision—is legally permissible. However, its effectiveness remains limited to the scope covered by the counter certificate and can be revoked at any time by corresponding main decisions.
What formal requirements must be observed when issuing a counter certificate?
Formal requirements for a counter certificate are generally strictly regulated. It must include the full name and, if applicable, the official title of the issuer, be dated, and personally signed or electronically signed. Depending on the legal field, a precise designation of the transaction in question, the specific facts to which the counter certificate refers, as well as a detailed justification as to why a counter position is taken with regard to the main certificate, are also required. In many cases, it is also mandatory to specify the relevant legal provisions. Additional provisions regarding the verification of the authenticity and integrity of the document apply when issued electronically.
What is the significance of counter certificates in administrative proceedings?
In administrative proceedings, counter certificates primarily serve to protect the legal position of the applicant or other affected parties in the case of contradictory or delayed decisions by different administrative bodies. They play an important role in the effective protection of rights, as they allow for quick, formal provisional regulations until a final decision on the application has been made. They are often requested to provide legal clarity in disputed cases or to secure interim legal protection. Their significance lies particularly in preventing gaps in legal protection and in safeguarding legitimate interests in proceedings with special urgency or time pressure.
What legal remedies are available against a counter certificate?
The same legal remedies generally apply to counter certificates as to other administrative decisions, provided they have the character of an administrative act. In most cases, an objection can be filed; sometimes an action before the administrative court is possible. If it is an internal statement or a purely internal administrative decision, formal legal remedies are generally excluded. The admissibility of the legal remedy depends mainly on whether the counter certificate has external effect and establishes, impairs, or determines the rights or obligations of the person concerned.
Are there time limits to be observed for asserting or contesting a counter certificate?
Yes, deadlines usually apply, which are determined based on the general administrative procedure provisions or specific sectoral laws. The objection period is generally one month after notification of the counter certificate, but in certain situations may deviate from the general rules. The deadline for filing a lawsuit before the administrative court is usually one month after receipt of the objection notice. It is therefore important to review and take timely action to meet the deadlines, especially as counter certificates often result in immediately enforceable regulations that require prompt legal review.
