Concept and Nature of the Cross-Appeal
Die Cross-Appeal is a legal remedy in German civil procedure law that enables the party that was partially or wholly unsuccessful in the first instance to also lodge an appeal against the first-instance judgment after the opposing party has filed an appeal. It plays a particularly significant role in the context of second-instance proceedings before the Regional Court or the Higher Regional Court.
Definition and Legal Basis
The cross-appeal is expressly regulated by law. The relevant provision is Section 524 of the Code of Civil Procedure (ZPO). According to this section, the respondent in the appeal proceedings may file an appeal against the judgment within the deadline for responding to the appeal, even if they initially waived the right to appeal or if the appeal deadline has already expired for them.
Fundamentally, the cross-appeal is a dependent extension or supplementation of the main appeal. It serves the purpose of procedural economy and enables a comprehensive review of the first-instance judgment in the appeal proceedings.
Statutory Text (§ 524 ZPO):
“(1) The respondent in the appeal proceedings may join the appeal by way of cross-appeal up to the expiry of the period for responding to the appeal.
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(2) Joining the appeal is also admissible if the appeal has already been withdrawn or dismissed as inadmissible before the expiry of the appeal period.
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(3) The cross-appeal loses its effect if the main appeal is withdrawn or dismissed as inadmissible.”
Requirements and Deadlines for the Cross-Appeal
Requirements for Admissibility
To exercise the right to file a cross-appeal, the following requirements must be met:
- Main Appeal: First, a valid appeal must have been filed by the opposing party, which can be referenced.
- Right to File a Cross-Appeal: Only the party that was adversely affected in the first instance and could have filed an appeal against the judgment is entitled to file a cross-appeal.
- Form: The cross-appeal must be declared formally in the response to the appeal (§ 524 para. 2 sentence 2 ZPO), so the same formal requirements apply as for the main appeal.
- Deadline: The cross-appeal must be filed within the response deadline to the appeal, generally within one month after service of the grounds for appeal (§ 524 para. 2 sentence 2 ZPO).
Effect of the Appeal in Relation to the Cross-Appeal
The cross-appeal is accessory to the main appeal; its admissibility and continued existence depend on the latter. It is only effective as long as the appeal proceedings are continued by the main appeal. If the main appeal is withdrawn or declared inadmissible, the cross-appeal likewise loses its effect (§ 524 para. 4 ZPO).
Purpose and Function of the Cross-Appeal
Tactical Significance in Litigation
The cross-appeal primarily serves to simplify proceedings and to allow a complete review of the first-instance judgment without initiating a separate appellate procedure. It allows the defendant to respond to the opposing party’s appeal and to introduce their own claims or defenses into the appeal proceedings without having to observe the original appeal deadline.
Distinction from the Regular Appeal
The independent (original) appeal and the cross-appeal differ primarily in terms of deadline (appeal: one month from service of the judgment, cross-appeal: one month from service of the grounds for appeal) as well as in their dependency on the continuation of the main appeal.
Admissibility and Legal Consequences of a Cross-Appeal
Scope of the Cross-Appeal
The cross-appeal is generally not limited in its scope; it can refer to all points of dispute or possible points of complaint in the judgment. Like a regular appeal, it can also address subsequent factual and legal corrections.
Effects upon Withdrawal or Dismissal of the Appeal
A characteristic feature of the cross-appeal is its so-called accessory nature: If the main appeal is resolved, for example through withdrawal or dismissal, the cross-appeal automatically loses its effect. The statutory intention is that the cross-appeal serves solely as a response to the opposing party’s appeal and is not to function as an independent legal remedy separate from the main appeal.
Special Features of Legal Remedies Law
A subsequent independent conversion of the cross-appeal into an autonomous appeal is excluded. The party that originally only filed a cross-appeal remains legally bound after the withdrawal or dismissal of the main appeal.
Practical Relevance and Importance of the Cross-Appeal
Practical Examples
In practice, the cross-appeal is often significant when a party decides only during the course of the appeal proceedings to seek a review of the judgment or, for tactical reasons, waits to see whether the opposing party will file an appeal at all.
The cross-appeal may also be strategically motivated, for example, to gain tactical advantages or to react to any changes in the proceedings prompted by the appeal.
Significance for Appeals Strategy
The possibility of a cross-appeal has a significant impact on the tactics used in appeal proceedings, especially in cases with complex disputes or partial success and failure in the first instance.
Comparison with Other Legal Remedies
Difference between Cross-Appeal and Contingent Appeal
A contingent appeal is the declaration by which a party only files its remedy in the event the opponent’s appeal succeeds. In contrast, the cross-appeal is always accessory and tied to the opponent’s appeal, and cannot exist independently.
Cross-Appeals in Criminal and Administrative Law
In German criminal procedure, the equivalent is the so-called “subsequent revision” (§ 400 StPO), whereas in administrative proceedings, the remedy of cross-appeal is also recognized (§ 127 VwGO).
Literature and Further References
- Code of Civil Procedure (ZPO), especially § 524 ZPO
- Meyer-Goßner/Schmitt, Code of Civil Procedure, Commentary
- Musielak/Voit, Code of Civil Procedure, Commentary
- GKG – Court Costs Act (Cost issues concerning cross-appeals)
- Thomas/Putzo, Code of Civil Procedure
The cross-appeal is an important legal instrument to safeguard legal remedies in civil appeals proceedings. It helps ensure comprehensive and fair review of first-instance decisions in the appeal process, without requiring all parties to act before the appeal period expires. However, this legal remedy is strictly tied to the existence of the main appeal and loses its legal effect once the main appeal ceases to exist.
Frequently Asked Questions
What deadlines apply for filing a cross-appeal?
The cross-appeal is subject to specific deadlines that must be strictly observed. According to § 524 ZPO (Code of Civil Procedure), the cross-appeal can be filed only until the expiry of the deadline for responding to the appeal. This period begins with the service of the appeal grounds and is typically one month. If this deadline is missed, the cross-appeal is inadmissible. This strict deadline rule serves procedural efficiency and prevents the proceedings from being delayed by late supplementary claims. A reinstatement into the previous state is generally excluded in the case of a missed deadline for a cross-appeal, as § 233 ZPO is not applicable. It is therefore particularly important for the parties to monitor the service of the appeal grounds and the course of the deadline closely.
What requirements must be met for a cross-appeal to be admissible?
For a cross-appeal to be admissible, various formal and substantive requirements must be met. First, the cross-appeal is an independent legal remedy, but it is dependent on the existence of a main appeal (accessoriness). This means it is only admissible as long as the main appeal is validly pending. The cross-appeal must be submitted in writing – by a Rechtsanwalt – to the appellate court. Furthermore, the appellant must not have withdrawn the appeal or validly waived it, otherwise the cross-appeal becomes irrelevant. In terms of content, the cross-appeal must set out clearly the scope and reasoning with which the first-instance judgment is challenged. In addition, only parties against whom the appeal is directed can themselves lodge a cross-appeal.
Is it possible to make new applications with a cross-appeal?
In principle, new applications can be made with the cross-appeal, but this is not possible without limitation. The scope of applications in the cross-appeal is subject to the same restrictions as those for the main appeal. This means the appellant in the cross-appeal can only make applications aimed at amending the challenged judgment. An extension of the subject matter in the context of the cross-appeal is permissible provided it falls within the scope of § 533 ZPO. This means the admission of new means of attack and defense requires the opponent’s consent or that the court considers the admission to be expedient and bases this on facts the appellate court must in any case consider when deciding on the appeal.
What legal effects does the withdrawal or inadmissibility of the main appeal have on the cross-appeal?
The cross-appeal is generally accessory to the main appeal. This means its effectiveness depends directly on the existence of the main appeal. If the main appeal is withdrawn or dismissed as inadmissible, the cross-appeal automatically loses its effectiveness (§ 524 para. 4 ZPO). It “falls away”, even if, at the time of withdrawal of the main appeal, it was already pending. In exceptional cases, however, the cross-appeal remains and is treated as an independent appeal if the main appeal ceases to exist solely because the withdrawal results from a procedural agreement made in bad faith, or if it was withdrawn due to an incorrect instruction on legal remedies.
What role does the cross-appeal play in labor court proceedings?
In labor court appeal proceedings (§§ 64 ff. ArbGG), the cross-appeal is also possible. According to § 64 para. 6 ArbGG, the provisions of the ZPO apply accordingly. Thus, parties to a labor court procedure may file a cross-appeal in the second instance to amend the initial judgment in their favor, provided that an appeal by a party is properly pending. Of particular importance is the fact that, also in labor court proceedings, the deadlines and form requirements of the ZPO apply, especially the one-month deadline from service of the appeal grounds. In labor court practice, the cross-appeal is particularly relevant when the non-appealing party realizes the need to have the judgment reviewed in its favor only after receiving the grounds for appeal.
Can parties still rely on the cross-appeal after the deadline has expired?
No, once the cross-appeal deadline has expired, it is no longer possible to file a cross-appeal. The possibility of submitting a cross-appeal after the deadline has passed is legally excluded, even if the opposing party should agree. There is no opportunity for subsequent correction; reinstatement into the previous state is also generally not possible for the cross-appeal. If, after the deadline, a desire to amend remains, this can generally only be pursued by asserting one’s own applications within the response to the main appeal, but these must be connected to the subject matter of the main appeal.
Can a cross-appeal also be filed against ancillary decisions?
The cross-appeal may, in principle, be directed against all parts of the first-instance judgment, not only against the “main ruling”. It can thus also be used to challenge ancillary decisions such as costs, interest, or provisional enforceability, provided there is an interest in appealing and the general requirements for an appeal are met. The purpose of the cross-appeal as a procedural defense allows the affected party to subject not only substantive legal but also procedural or cost-related aspects of the first-instance judgment to a comprehensive review. However, a prerequisite is that the dispute over the ancillary decision has not already been decided with res judicata effect.
