Concept and Significance of the Divergence Appeal
The divergence appeal is a legal remedy in German procedural law, designed to ensure the uniformity of judicial decisions. It plays a particular role in connection with decisions of the Federal Supreme Courts, as well as in administrative and fiscal court jurisdictions. The purpose of the divergence appeal is to subject diverging and uncoordinated decisions of supreme court instances to legal review and, where appropriate, alignment (§ 132 (2) No. 2 VwGO, § 115 (2) No. 2 FGO). This form of appeal ensures that identical circumstances are adjudicated according to the same legal standards before German courts.
General Requirements for the Divergence Appeal
Legal Foundations
The legal basis for the divergence appeal is mainly found in the procedural codes for administrative courts (German Code of Administrative Court Procedure, VwGO) as well as in the Fiscal Courts Code (FGO):
- § 132 (2) No. 2 VwGO for proceedings before the Federal Administrative Court
- § 115 (2) No. 2 FGO for proceedings before the Federal Fiscal Court
Corresponding provisions can also be found in other procedural codes relating to fundamentally diverging decisions.
Requirements
A central requirement for the admissibility of a divergence appeal is the existence of a so-called material divergence. This means that the contested judgment deviates in a guiding principle, that is, a material legal principle, from a decision of another Federal Supreme Court, the Joint Senate of the Supreme Federal Courts or the Federal Constitutional Court. The divergence must concern the same legal question.
Detailed Requirements:
- The appellate court is bound by a decision of another court or a senate of the same court.
- The contested decision contains a legal principle which significantly deviates from another previously established legal principle.
- The decision would have been different if the legal norm used in the comparative case had been applied.
- The divergence must be described and substantiated in the complaint’s reasoning.
Scope of Application of the Divergence Appeal
Administrative Jurisdiction
In administrative court proceedings, a non-admission complaint can be filed against the refusal of an appeal by the appellate court, and one ground for such a complaint can be the existence of a divergence in accordance with § 132 (2) No. 2 VwGO.
Fiscal Jurisdiction
In fiscal jurisdiction, divergence pursuant to § 115 (2) No. 2 FGO also constitutes a cause for admitting a revision against judgments of the fiscal courts. This ensures the uniform application of law in tax and levy matters.
Social Jurisdiction
A corresponding provision for social jurisdiction can be found in § 160 (2) No. 2 SGG.
Labor and Civil Jurisdiction
In labor law and civil procedure, there is no divergence appeal in the strict sense. However, within the framework of the non-admission complaint against decisions of the State Labor Courts or Higher Regional Courts, the existence of a safeguarding deviation in legal issues may be relevant.
Form, Deadline, and Procedure
Form and Content of the Complaint
The divergence appeal is subject to a deadline and requires a written justification (§ 133 (3) sentence 3 VwGO, § 116 (3) FGO). The reasoning of the complaint must both set out the material legal principles and concretely specify the deviation. It must also explain why the differing legal view was crucial in the specific individual case.
Deadline
The complaint deadlines vary according to procedural code, but are generally one month after service of the judgment or the non-admission decision.
Decision on the Divergence Appeal
The respective revision court decides on the admissibility and merits of the divergence appeal; in administrative jurisdiction, the competent senate of the Federal Administrative Court, in fiscal jurisdiction, the Federal Fiscal Court. If the divergence appeal is deemed admissible and substantiated, the revision court may allow the revision and must also decide on the substance of the case.
Function and Significance in Legal Development
Uniformity of Jurisprudence
The divergence appeal fulfills a central function in safeguarding the uniformity of supreme court jurisprudence. Divergent interpretations and applications of federal law in similar cases can thus be corrected and eliminated for the future.
Development of the Law
In addition to its harmonizing effect, the divergence appeal contributes to the development of law. By subjecting diverging legal principles to supreme court review, disputed legal questions can be clarified and the development of law in the national context can be guided.
Distinction from Other Legal Remedies
The divergence appeal must be distinguished from other legal remedies such as the ordinary revision or appeal. It serves specifically to review deviations from existing supreme court legal principles; its focus is not on evaluating the individual case’s content, but on ensuring equal application of the law.
Grounds for the Appeal
In addition to divergence, other grounds stipulated in the respective procedural codes (such as fundamental significance of the matter or procedural errors) can lead to the admission of a revision. Accordingly, divergence is one of several independent grounds for appeal.
Literature and Further References
The following sources offer deeper reading for those who wish to study the divergence appeal in greater depth:
- Kopp/Schenke, Verwaltungsgerichtsordnung, § 132 VwGO (Commentary)
- Gräber, Finanzgerichtsordnung, § 115 FGO (Commentary)
- Hartmann, Introduction to the Practice of the Divergence Appeal; Neue Justiz
Note: This article provides a comprehensive overview of the divergence appeal under German law, considering its legal foundations, practical application, and function in the court system.
Frequently Asked Questions
What deadlines must be observed for the divergence appeal?
The divergence appeal is generally subject to specific deadlines, which may differ depending on the jurisdiction and area of law. As a rule, the deadline for filing a divergence appeal follows the general complaint deadlines, which are regulated in the respective specialized law, for example, § 133 (3) VwGO for the administrative divergence appeal. The divergence appeal (non-admission complaint) must be filed in writing with the competent court within one month after service of the complete judgment. The decisive factor is regularly the date of receipt of the formal court decision. If the deadline is missed, reinstatement to the previous status is only possible under strict conditions, e.g. in case of an excusable failure to meet the deadline. It is advisable to check the relevant provisions of the applicable procedural law, since there may be different or supplementary rules on deadlines in social, civil, or tax law.
Who is entitled to file a divergence appeal?
In principle, only the parties involved in the original proceedings are entitled to file a divergence appeal, i.e. plaintiffs, defendants, or other participants who are adversely affected by the judgment. Usually, the complaint must be filed by a Rechtsanwalt or authorized legal representative—especially before the Federal Supreme Courts, pursuant to § 67 VwGO or § 78 ZPO. The respective party status must be proven, and in certain types of proceedings, legal entities under public law or authorities can be entitled to appeal if they are directly affected by the contested court decision. The right to file an appeal is also granted to third parties in exceptional cases, e.g. in association actions or under special legal authorizations, such as in environmental law.
What formal requirements must a divergence appeal meet?
The divergence appeal must be submitted in writing and meet certain minimum requirements. In addition to observing the deadline, a precise designation of the contested judgment is required. The appeal must substantiate the decision from the other court that gives rise to the divergence and compare the material legal principles from both decisions. The appellant must concretely set out how a fundamental deviation exists between the contested decision and another supreme court decision. General dissatisfaction with the decision or mere repetition of the appeal reasoning are not sufficient. As a rule, the appeal must also be substantiated; the deadline for the reasoning may differ from that for submission but must also be strictly observed. Incomplete, unsubstantiated, or merely formulaic appeals are considered inadmissible.
In which cases is a divergence appeal possible at all?
A divergence appeal is always admissible when a lower court’s judgment deviates in a material legal principle from the decision of a higher court, especially a Federal Supreme Court. The divergence must relate to the application of law, not to the specific facts of the case. The divergence appeal is typically regulated for non-admission complaints (§ 133 VwGO, § 160 (2) No. 2 SGG, § 115 (2) No. 2 FGO), when an appellate court or the Higher Administrative Court departs from a decision of another supreme court, warranting review by the revision court to ensure uniform jurisprudence. Mere differences of opinion in the literature or the disregard of supreme court jurisprudence do not justify a divergence appeal. What matters is the existence of a guiding, contradictory legal principle.
What are the prospects of success for a divergence appeal?
The chances of success for a divergence appeal are generally rather low, since the requirements for substantiating and proving a significant divergence between supreme court decisions are high. Success occurs only if a fundamental deviation in a guiding legal principle can be clearly shown and proven. Therefore, a comprehensive and careful substantiation is particularly necessary, in which the difference between the legal principles is worked out in detail. It must also be evident that the deviation is material to the decision, that is, that a different decision would have been possible in the individual case without the divergent legal opinion. Many appeals already fail due to formal requirements or the lack of material significance of the alleged divergence.
What costs are incurred by filing a divergence appeal?
Filing a divergence appeal regularly incurs court fees. These are determined according to the relevant fee tables, such as the Court Costs Act (GKG) for civil and administrative proceedings or the Act on Court Costs in Family Matters (FamGKG). The amount varies according to the value in dispute, type of proceedings, and individual case. Additionally, costs for legal representation arise, as representation by a Rechtsanwalt is mandatory in most cases (e.g., before the Federal Administrative Court or the Federal Court of Justice). If procedural requirements are not met and the divergence appeal is dismissed as inadmissible, the appellant generally bears the costs. In social law proceedings, there are special rules regarding cost exemption or reimbursement. It is advisable to examine the relevant cost regulations and the possibility of legal aid on a case-by-case basis.
