Definition and origin of the term Arrestgericht
The Arrestgericht is a term used in German civil procedure law for the court responsible for issuing and deciding on protective measures in arrest proceedings. Arrest proceedings serve to provisionally secure monetary claims or claims for the surrender of specific items through what is known as arrest (§§ 916 ff. German Code of Civil Procedure – ZPO). The term “Arrestgericht” does not refer to an independent court in an institutional sense, but instead to the functional jurisdiction of the relevant court for arrest matters.
Legal basis for the Arrestgericht
Code of Civil Procedure (ZPO)
The statutory basis for arrest proceedings, and thus also for the Arrestgericht, is set out in §§ 916 to 934 ZPO. These provisions determine both the prerequisites and the procedure for arrest proceedings, as well as the local and subject-matter jurisdiction of the Arrestgericht.
Subject-matter jurisdiction
According to § 802 ZPO and § 23 No. 2 GVG (Courts Constitution Act), the local court (Amtsgericht) usually has jurisdiction for arrest matters as well as for interim injunctions, unless the parties are referred to a higher instance, for example because of the value of the principal matter. In special cases, the regional court (Landgericht) may also have jurisdiction.
Local jurisdiction
The local jurisdiction of the Arrestgericht is determined by § 919 ZPO. Accordingly, jurisdiction generally lies either with the court in whose district the opponent of the arrest application or the subject of the arrest is located. Depending on the type of arrest—movable or claim arrest—jurisdiction may be determined differently.
Relationship to other areas of law
The Arrestgericht is primarily assigned to civil law, but it is also connected to enforcement law, international law, and partly to European law regulations, especially in cases involving cross-border elements.
Functions and powers of the Arrestgericht
The Arrestgericht performs several key functions in the arrest proceedings:
Decision on the arrest application
The court examines the admissibility and merits of the arrest application. In particular, it assesses whether a claim for arrest and grounds for arrest exist, as required by §§ 916, 917 ZPO. Whether the arrest concerns monetary claims or specific items, different requirements and security purposes must be considered.
Imposition and structure of the arrest
The Arrestgericht issues the arrest either by decision (§ 922 ZPO) or, in urgent cases, by interim order even without a prior hearing of the opponent (§ 926 ZPO). It determines the content, scope, and means of security, and it can also issue conditions.
Execution and revocation
The arrest issued by the Arrestgericht must be executed by the applicant within a specified period (§ 929 ZPO). The control of the proper execution of the arrest, as well as any applications for revocation, amendment, or conversion of the arrest, also falls within the competence of the Arrestgericht.
Decision on counter-applications
The Arrestgericht also decides on any objections raised by the affected party and on applications to avert the arrest by providing security (§ 923 ZPO).
Service, legal remedies, and changes of jurisdiction
Service of the arrest order
The Arrestgericht ensures proper service of the arrest order to the parties so that it can become effective and be enforced.
Legal remedies against decisions of the Arrestgericht
Depending on the specific circumstances, legal remedies, in particular immediate appeal (§ 924 ZPO), can be lodged against decisions of the Arrestgericht. The next higher court has jurisdiction to decide on the appeal.
Change of jurisdiction
It may be necessary to change jurisdiction after the arrest proceedings have been conducted, for example, if the principal action is to be dealt with by another court (§ 942 ZPO). The provisions of the Code of Civil Procedure apply accordingly.
Types of arrests
Security arrest
The security arrest serves to secure enforcement for monetary claims. The Arrestgericht decides whether there are sufficient grounds for a judicial order authorizing the seizure of the debtor’s assets.
Arrest in rem
Arrest in rem is ordered to secure claims for the surrender of specific items. Here too, the Arrestgericht is responsible for deciding on the form and scope of the measures.
Arrestgericht in the international context
In cross-border arrest proceedings, for example in cases where the defendant is domiciled abroad or assets are located in other countries, the jurisdiction of the Arrestgericht follows international rules of jurisdiction, such as the Brussels Ia Regulation or national provisions regarding international legal assistance.
Special features and legal remedies
Oral hearing and urgency
The Arrestgericht may, at its discretion, order an oral hearing (§ 922 (1) ZPO). In urgent cases, however, arrest may also be ordered without a hearing of the opposing party.
Obligation to pay damages in the case of unjustified arrest
If an arrest is unjustly ordered by the Arrestgericht and is subsequently found to be unwarranted, the applicant is liable under § 945 ZPO to compensate for the damage caused by the measure.
Literature and further references
Further reading includes:
- Commentaries on the Code of Civil Procedure (ZPO), especially §§ 916 ff. (e.g. Zöller, Musielak/Voit)
- specialist literature on provisional legal protection
- current case law of the higher courts
Summary
The Arrestgericht is a central body within German civil procedure law, responsible for the ordering, structuring, supervision, and revocation of arrest measures to secure claims asserted in proceedings. Its tasks range from examining legal bases to deciding on legal remedies and specific procedural issues, always ensuring the protection of the interests of all parties involved. Detailed knowledge of the jurisdictional rules, procedural provisions, and legal remedies is crucial for successful enforcement and for safeguarding legal certainty.
Frequently Asked Questions
Who is responsible for ordering the arrest?
According to §§ 919 paragraph 1, 802 ZPO, the responsibility for ordering an arrest generally lies with the local court (Amtsgericht) in whose district the ordinary residence of the respondent is located. Alternatively, an application may be filed with the court handling the main proceedings, provided such proceedings are already pending. In urgent cases, the court in whose district the assets or items to be arrested are located also has jurisdiction. For certain types of arrested assets, such as bank deposits, the court where the relevant bank is headquartered or has a branch may also be competent. It should be noted that the competent judge decides on the application in a summary procedure, where the claimant must particularly demonstrate and substantiate the urgency of the arrest.
How is the arrest procedure initiated and how does it proceed?
The arrest procedure is generally initiated by a written application containing the statement of claim, the claim for arrest, the grounds for arrest, and an explanation of urgency (§ 920 (2) ZPO). In urgent cases, an oral application is also possible. The applicant must substantiate his claims, the demand to be secured, and the conditions for the order of arrest, for example by sworn affidavits or other evidence and documents. Subsequently, the court examines in summary proceedings whether the requirements for granting arrest are met. An oral hearing is not mandatory but possible, especially if the respondent is to be heard. Following a successful application, the court issues an arrest order, which is immediately enforceable, possibly even without a prior hearing of the opponent (ex-parte).
What types of security are available to the Arrestgericht?
The Arrestgericht has various options for securing the creditor’s claims. This includes in particular the arrest in rem, which aims to seize the debtor’s assets and thus secure them for later enforcement (§ 930 ZPO). This can concern movable property, real estate, as well as rights and receivables. Personal arrest, which involves ordering detention to secure a claim, is extremely rare and virtually irrelevant in Germany. The court may also impose requirements, such as requiring the applicant to provide security to protect the respondent from unjustified disadvantages (§ 921 sentence 2 ZPO). Furthermore, the court determines the type of enforcement of the arrest, which is regularly carried out by the bailiff.
Is there legal protection against the imposition of arrest?
The respondent has various legal remedies available to contest an arrest order. First, after service of the arrest order, he may file an objection (Widerspruch) with the competent court (§ 924 ZPO), prompting an oral hearing. Both the prerequisites for the arrest and any new facts are re-examined, while the summary character of the proceedings is maintained. The arrest order may be wholly or partially revoked or modified. Additionally, the respondent may file an immediate appeal (sofortige Beschwerde) with the appeal court (§ 793 ZPO), provided the arrest order was issued without an oral hearing. The respondent may also offer to provide security to avert enforcement of the arrest, in which case the enforcement is suspended.
What deadlines must be observed in the arrest procedure?
Specific deadlines apply in the arrest procedure, affecting both the applicant and the respondent. After issuance of the arrest order, it must be enforced within one month in accordance with § 929 (2) ZPO; otherwise, it loses its effectiveness. Enforcement of the arrest is normally carried out by the bailiff. There is no specific deadline for the respondent to object, but this should be done “without undue delay” after becoming aware of the arrest to avoid adverse consequences. Furthermore, the arrest creditor must initiate the main proceedings within a certain period if the arrest order so directs (§ 926 ZPO), otherwise the arrest may be lifted.
What is the role of substantiation in the arrest procedure?
In the arrest procedure, substantiation (Glaubhaftmachung) is a central requirement due to the summary nature of the proceedings. The applicant must substantiate both the asserted claim (claim for arrest) and the need for security (ground for arrest) in accordance with § 920 (2) ZPO. This means that full proof is not required; it is sufficient to show a preponderance of probability using suitable evidence such as sworn affidavits, documents, or witness statements. The standard of proof is lower than in the principal proceedings, which is due to the urgency of arrest proceedings. At the same time, the court is obliged to examine the submitted documents and may, in individual cases, request further evidence.
What is the relationship between the Arrestgericht and the court for the principal proceedings?
The Arrestgericht is solely responsible for ordering and examining the prerequisites for an arrest within the context of expedited proceedings. It does not decide on the substantive legal claim in the main proceedings but merely makes a provisional ruling to secure it. In practice, however, the Arrestgericht is often also the court for the principal proceedings, for example where an action is already pending with the competent court or the applicant files the main action in parallel with the application for arrest. The order for arrest by the Arrestgericht has no prejudicial effect on the main proceedings, which are conducted entirely independently. The court deciding on the main matter is not bound by the legal assessment of the Arrestgericht and fully and finally examines the facts.
