Definition and Purpose of the Declaratory Action
The declaratory action is a special type of action in German civil procedure law, which, according to Section 256 of the Code of Civil Procedure (ZPO), is aimed at having the existence or non-existence of a legal relationship judicially determined. It differs from actions for performance and formative actions, as it does not seek an immediate performance or a change in the legal situation but rather focuses on the judicial clarification of a specific legal relationship.
Legal Basis of the Declaratory Action
Section 256 ZPO
The decisive statutory basis for the declaratory action can be found in Section 256 ZPO. According to this, a plaintiff is entitled to bring a declaratory action as long as they can assert a legal interest in the determination of the existence or non-existence of a legal relationship or in the authenticity or falsity of a document.
Admissibility of the Declaratory Action
Requirements
1. Legal Relationship
A prerequisite for a successful declaratory action is the existence of a legal relationship. A legal relationship is the relationship between a person and another person or thing, as regulated by law. There is particular controversy regarding which specific claims or legal status constellations are considered capable of declaratory determination.
2. Legal Interest in Declaratory Relief
The plaintiff must have a so-called “legal interest” in the desired determination. A mere material or factual interest is generally not sufficient. The clarification must be suitable for eliminating current uncertainty regarding the legal relationship. The legal interest in declaratory relief is lacking, for example, if the plaintiff could also achieve his objective through an action for performance (subsidiarity of declaratory action).
3. Current Existence of the Legal Relationship
The legal relationship to be determined must already exist or at least be sufficiently specific that there is an immediate need for determination. Future or merely hypothetical legal relationships cannot be the subject of a declaratory action.
4. No Other Pending Action or Res Judicata
A declaratory action is inadmissible if a final judgment has already been rendered on the same subject matter in another action or another proceeding is pending.
Types of Declaratory Actions
1. Positive Declaratory Action
With a positive declaratory action, the existence of a specific legal relationship is sought. Example: The determination that a tenancy exists between the parties.
2. Negative Declaratory Action
The negative declaratory action aims to have the non-existence of a legal relationship established. A typical scenario is where the plaintiff wishes to have their lack of liability determined, for example, that an alleged claim by the opponent does not exist.
Distinction from Other Types of Actions
Difference from Action for Performance
In an action for performance, the fulfillment of a specific claim (e.g., payment, surrender) is sought, whereas the declaratory action merely clarifies the legal relationship. The declaratory action is generally subsidiary to the action for performance, meaning it is only admissible if a performance action is not possible or reasonable.
Difference from Formative Action
A formative action aims to create, alter, or terminate a legal relationship directly through the judgment (e.g., divorce, challenge of a declaration of intent). The declaratory action, on the other hand, is purely declaratory in effect.
Subject Matter of the Declaratory Action
Determination of a Legal Relationship
A legal relationship includes individual legal connections, such as contracts, obligations, property relationships, or family relationships. Individual rights and duties within a legal relationship can also be the subject of declaratory determination.
Determination of the Authenticity or Falsity of a Document
According to Section 256 (1) ZPO, the determination of the authenticity or falsity of a document may also be pursued.
Special Features of the Declaratory Action
Declaratory Action for Future or Conditional Legal Relationships
According to case law, a declaratory action is also possible if the legal relationship is at least already specified and will arise with sufficient probability.
Intermediate Declaratory Action
A particular form is the intermediate declaratory action under Section 256 (2) ZPO. It is admissible in the context of ongoing legal proceedings if the determination of a legal relationship is relevant for the decision.
Binding Effect and Scope of the Declaratory Judgment
A final declaratory judgment binds the parties and, like all final judgments, has the force of res judicata (material legal effect). The determination made in the judgment is therefore also generally binding for future proceedings between the same parties.
Declaratory Actions in Other Procedural Codes
The declaratory action does not exist solely in civil procedure law. Corresponding provisions can also be found in the Administrative Court Rules (Section 43 VwGO), the Social Court Act (Section 55 SGG), and the Fiscal Court Rules (Section 41 FGO).
Practical Examples of Declaratory Actions
- Dispute over the existence or non-existence of a tenancy, employment or insurance relationship
- Clarification of obligations, e.g., whether a claim exists
- Assertion of the invalidity of terminations (particularly in employment relationships)
- Dispute over inheritance rights or company relationships
Conclusion
The declaratory action is a central instrument for clarifying legal relationships. It serves the need for legal certainty when parties are uncertain about the existence or non-existence of a legal relationship. Due to its subsidiary nature and the strict requirements for legal interest, it ensures that courts only become active where there is a genuine need for a judicial decision. The declaratory action thus contributes significantly to legal clarity and to the avoidance of further disputes between the parties.
Frequently Asked Questions
When is a declaratory action admissible under Section 256 ZPO?
A declaratory action is admissible under Section 256 ZPO (Code of Civil Procedure) if the plaintiff has a legal interest in having a legal relationship determined by judicial decision. This interest must be aimed at eliminating uncertainties regarding the legal relationship between the parties to prevent future disputes or clarify existing ambiguities. However, the legal interest in a declaratory judgment is lacking if the plaintiff could have pursued his claim directly with an action for performance or formative action, or if the determination would be obviously meaningless. Furthermore, the action must relate to a specific legal relationship; mere factual questions or abstract legal questions are insufficient. In addition, there must be no conflicting special statutory provision that mandatorily prescribes another type of action (e.g., action for performance). A decision on the merits always requires that the legal interest still exists at the time of the last oral hearing.
What types of legal interest in declaratory relief are distinguished?
The legal interest in declaratory relief can be classified into various case groups: First, the precautionary interest, which exists when there is uncertainty about the legal situation between the parties at the time the action is brought and this uncertainty constitutes a current burden for the plaintiff or averts a future dispute. Second, the subsequent declaratory interest, particularly in the event that demands for specific performance have been fulfilled, when, for example, after completion of the legal dispute by supervening circumstances (such as after fulfillment), a legal interest in determining the original lawfulness or unlawfulness remains, especially regarding any subsequent claims for damages, repayment, or fees. Third, the so-called negative declaratory interest, where the plaintiff wants to have the absence of an obligation or the non-existence of a legal relationship asserted by the defendant confirmed.
Can future legal relationships also be determined by declaratory action?
As a rule, the declaratory action is limited to present legal relationships, i.e., it must concern an already existing legal relationship. Exceptionally, the determination of future legal relationships is admissible if, based on specific circumstances, it is already certain that the desired legal relationship will arise at a later date, for example, in the case of a contractually agreed future obligation. However, the legal interest in the determination of a future legal relationship must be examined particularly strictly in order to prevent abuse of the declaratory action. The crucial factor is that there is a current uncertainty regarding the future occurrence of the legal relationship and that this uncertainty is unreasonable for the plaintiff.
Against whom must the declaratory action be directed?
The declaratory action must be directed against the person or persons who are in a potential or actual legal relationship with the plaintiff. The party to the action is therefore the person against whom the determination of the legal relationship is to be made (e.g., the presumed creditor or debtor). If several people are involved in the legal relationship or if the legal relationship objectively affects the rights of third parties, the action can generally be directed against all potentially involved persons. Correct identification of the defendant is necessary to ensure the legal force of the declaratory judgment and to avoid subsequent follow-up proceedings.
How does the declaratory action relate to the action for performance?
The declaratory action and the action for performance are generally mutually exclusive: If an action for performance is possible and reasonable, the declaratory action is usually inadmissible, as the plaintiff can achieve his legal protection objective through the more far-reaching action for performance. The declaratory action is only applicable if the plaintiff can plausibly demonstrate that at present (still) no obligation for performance exists or that the interest in mere determination prevails (for example, in the case of future, uncertain claims or for the purpose of interrupting the statute of limitations). A declaratory action is also accepted in special situations, for example, if a judgment for performance would be practically impossible or unreasonable.
Is the binding effect of the declaratory judgment limited to subsequent proceedings?
The declaratory judgment has the force of law regarding the established legal relationship in a subsequent process conducted between the parties. This means that, pursuant to Section 322 ZPO, the binding effect is generally limited to the legal relationship determined, to the extent that its existence or non-existence was decided in the judgment. However, the legal force of the declaratory judgment does not automatically extend to other, closely related legal consequences or relationships, unless these were expressly made the subject of the determination. The court in later proceedings must therefore base its judgment on the final declaratory judgment to the extent that the subject matter of the dispute is identical.
Are intermediate declaratory actions pursuant to Section 256 (2) ZPO possible and when are they applied?
The intermediate declaratory action under Section 256 (2) ZPO allows, upon request, for a binding determination of a legal relationship decisive for the proceedings – irrespective of the main claim – in a pending legal dispute. This is particularly indicated if the existence or non-existence of a legal relationship is precedent for the final judgment to be rendered, and there is a legal interest in having it decided independently in order to create binding effect for a potential recovery or subsequent process. The intermediate declaratory action, however, is subsidiary to the final decision in the main proceedings and is rejected if the relevant legal relationship will already necessarily be clarified by the main proceedings. A prerequisite is that the uncertainty remains after the end of the main proceedings and that the legal interest in determination persists.
