Definition and significance of divergence in judicial decisions
The divergence of judicial decisions refers, in German law, to the substantive deviation of judgments or rulings by different courts that adopt differing, sometimes even opposing, legal views regarding the same or comparable legal question. In this context, divergence means not only differing but usually irreconcilable interpretation or application of normative provisions. Such divergent decisions pose a significant problem for the uniformity of the legal system as well as for legal certainty and clarity.
Manifestations and causes of divergence
Differing legal opinions
Divergence arises when courts of different instances, but also within the same instance—for example, different panels of a higher court—reach different decisions on the interpretation and application of the same legal norm. A deviation in the subsumption of an identical set of facts under the same legal provision is also conceivable.
Formal and substantive divergence
- Formal divergence occurs when the reasons for the decision expressly indicate that a departure from an existing decision is being made.
- Substantive divergence is assumed when, on a factual level, there is an irreconcilable deviation regarding a legal question, even if this is not explicitly noted in the reasons for the decision.
Typical causes
The most important causes include differences
- in the interpretation of statutory provisions,
- in case law on specific individual issues,
- based on different factual backgrounds,
- due to differing methodological approaches in the application of law,
- as a result of changing social or legal evaluations.
Legal relevance of divergence in judicial decisions
Importance for legal unity and development of the law
Divergences impair the goal of legal unity, which should be promoted in the German legal system through various mechanisms and procedural avenues. At the same time, they can act as a driving force for legal development, as they offer occasions to critically examine and further develop existing legal views.
Effects on the application of law
Divergences harbor the risk of inconsistent application of the law, which creates uncertainties for those seeking justice. They make it more difficult to predict how future cases will be decided and can lead to unequal treatment.
Mechanisms to ensure uniform case law
Remedies and appeals system
A central means of avoiding and correcting divergences is the appeals system. Remedies such as appeals or revisions enable review and, if necessary, harmonization by higher courts. The goal is to clarify conflicting interpretations.
Divergence referral in accordance with § 132 (2) GVG and other provisions
If higher regional courts, higher administrative courts, or the Federal Administrative Court depart from the decision of another court when deciding on an appeal, special regulations apply. Pursuant to § 132 (2) no. 2 GVG (Courts Constitution Act), a revision must be allowed if the judgment differs from a decision of another superior court and is based on this deviation. Similar regulations can be found in other procedural codes, such as § 124 (2) no. 4 VwGO (Code of Administrative Court Procedure).
Referral procedure (decision of the Joint Panel)
In the event of divergences between different supreme federal courts or their individual panels, the law provides for a referral procedure to the Joint Panel of the supreme federal courts (§ 2 RsprEinhG). This body can issue binding decisions to ensure legal unity.
Particular significance of divergence in different branches of the courts
Ordinary jurisdiction (civil and criminal courts)
In this context, the Federal Court of Justice plays a decisive role in ensuring the uniformity of jurisprudence. Divergences manifest primarily between different higher regional courts or between higher regional courts and the Federal Court of Justice.
Administrative courts
In administrative disputes, divergence referral to the Federal Administrative Court is of considerable importance. The Code of Administrative Court Procedure governs the requirements and the procedure.
Social, finance and labor courts
Here, too, there are specific rules for reducing divergences, with each having its own highest instance (Federal Social Court, Federal Finance Court, Federal Labor Court).
Consequences and legal effects of divergent decisions
Binding effect and precedential value
Divergent judgments generally do not have binding effect beyond the individual case, but can exert a factual influence on the application of law. Legal development through clarification by the highest courts or a decision of the Joint Panel eliminates the divergence for the future.
Impact on proceedings
If a legally relevant divergence is established within ongoing proceedings, this may create the prerequisites for the admission of remedies such as revisions or complaints. The applicable procedural rules specify the details.
References and further regulations
- Courts Constitution Act (GVG)
- Code of Administrative Court Procedure (VwGO)
- Social Courts Act (SGG)
- Labor Courts Act (ArbGG)
- Act for the Preservation of Uniformity of Jurisprudence by the Supreme Federal Courts (RsprEinhG)
Conclusion
The divergence of judicial decisions is a significant phenomenon within the German legal system. It reflects the pluralism of legal application but also presents challenges to legal unity, legal certainty, and equal treatment. The law provides for various, sometimes differentiated, mechanisms and procedural avenues to identify, eliminate, and prevent future conflicts arising from divergent decisions. These measures contribute to the ongoing development and harmonization of jurisprudence in Germany.
Frequently asked questions
What legal consequences can a divergence in judicial decisions have?
A divergence in judicial decisions often has profound legal consequences, as it leads to inconsistent application of the law and thus impairs legal certainty as well as the principle of legitimate expectations. In cases where different courts—especially higher courts—answer the same or comparable legal questions differently, a so-called divergence situation arises. This not only hampers the further development of the law but can also create uncertainties for lower courts, as they cannot base their decisions on uniform case law. Systematically, this can lead to an increased number of appeals, as affected parties may hope to benefit from the more favorable precedent. Furthermore, divergence often serves as grounds for the admission of remedies, especially appeals before the supreme federal courts (e.g. § 543 (2) no. 2 ZPO), since these instances are specifically responsible for preserving legal unity. Divergence therefore frequently compels higher-level courts to provide clarifications to restore consistent legal use or implement necessary changes in jurisprudence.
To what extent is divergence relevant for the admission of remedies?
The existence of divergence plays a central role in the admission of remedies. Certain legal remedies—such as revision to the Federal Court of Justice (§ 543 ZPO), legal complaint to the Federal Administrative Court (§ 132 (2) no. 2 VwGO), or legal complaint to the Federal Labor Court (§ 72 (2) no. 2 ArbGG)—can explicitly be admitted on the grounds of divergence. The prerequisite is that the challenged judgment deviates in a decisive legal question from an earlier decision of a superior or equivalent court. An exact presentation and engagement with the diverging decision is essential, since the appellate court will only act if the procedural handling of divergence is substantiated in this way. The purpose of these divergence-admission clauses is to ensure legal unity and the further development of the law through clarification by the highest courts.
What requirements does case law impose for presenting a divergence in an appeal statement?
The requirements for presenting a divergence in a statement of appeal are, according to established jurisprudence of the highest courts, very strict. Appellants must specifically indicate the material legal opinion adopted by the contested judgment and precisely how it materially deviates from a particular decision of a superior or equivalent court. A general claim of inconsistency does not suffice; instead, the relevant sections of the divergent decision must be quoted verbatim or identified at least in their essential substance and directly contrasted with those of the contested decision. Only then can the appellate court examine whether a substantial legal question is indeed answered differently, which is a key reason for accepting divergence. Mere factual deviations are not enough; it must be a different response to a legally significant question relevant to the decision.
Can divergences also occur between specialized courts, and how are they addressed?
Divergences are not limited to certain branches of courts, but can also arise within the specialized courts (e.g. administrative, labor, social courts) and sometimes between these branches. For divergences within a court branch, for example between higher administrative courts of different federal states, the supreme specialized court—here, the Federal Administrative Court—is responsible for providing a clarifying decision. Systematic divergences between various specialized courts can pose a problem, for example in cases of concurrent jurisdiction or identical legal questions in social and administrative law. In such constellations, there is usually a lack of an explicit institutional appeal instance; therefore, the supreme federal courts can and must make use of their authority to issue joint decisions—in the Joint Panels, for example (§ 2 (1) RsprEinhG). In practice, however, such cases are comparatively rarely reported.
How does a divergence affect the decision-making of lower courts?
The existence of divergent higher-court case law poses a particular challenge for lower courts, as they are generally bound by the case law of their respective superior court (§ 563 (2) ZPO, § 202 SGG accordingly). If there are differing views of different higher courts on a legally relevant question, the lower courts must carefully consider which line to follow. They may take local jurisdiction into account or follow the more persuasive precedent. Not infrequently, conflicting decisions lead to the lodging of remedies in order to have the legal question clarified by the highest court. Until clarification, the risk of inconsistent judgments and resulting de facto unequal treatment remains.
What mechanisms exist to overcome divergence and ensure legal unity?
To overcome divergences and ensure legal unity, several procedural and institutional mechanisms exist. The most important role is played by the appeals process, which, on grounds of divergence, enables review and clarification of divergent legal questions by the highest courts. Higher courts are also obliged, when intending to deviate from a decision of another—especially a superior—court, to refer the matter to a larger panel or the Joint Panel of the Supreme Federal Courts (e.g. § 132 (2) no. 2 VwGO, § 131 GVG). The parties also benefit from procedural duties to provide information, for example through notification and hearing rights in the context of establishing divergence. The aim of all these mechanisms is ultimately to ensure a coherent, predictable, and equal application of the law for all those seeking justice.
Does a divergence necessarily lead to a landmark decision by the highest court?
A determined divergence obliges the competent supreme court to review and, where appropriate, ensure legal unity, but not every divergence automatically leads to a substantive landmark decision. The appellate court may decide that the divergent decisions do not concern a legally significant or clarifiable question, or that, in the specific case, other admission reasons are paramount. Only if the divergent legal question is actually significant and requires clarification will the court refer the revisionary question for a landmark decision. If this is not the case, the court often decides the dispute on other grounds or dismisses the revision as unfounded. Thus, while divergence is usually access to supreme court review, it does not guarantee a comprehensive leading decision in all cases.
