Concept and Significance of the Divergence Appeal
The divergence appeal is a term in German procedural law and denotes a special form of appeal whose admissibility is specifically based on deviations of a court decision from the case law of other courts or a higher court. The divergence appeal serves to ensure legal uniformity and guarantees that courts reach consistent decisions in comparable cases. It is particularly significant in the context of administrative procedure law as well as social and fiscal court proceedings, and to some extent also in civil procedure.
Legal Basis and Scope of the Divergence Appeal
Code of Administrative Court Procedure (VwGO)
The divergence appeal is regulated in Section 132(2) No. 2 of the Code of Administrative Court Procedure (VwGO). According to this provision, an appeal is admitted if the judgment deviates from a decision of the Federal Constitutional Court, the Joint Senate of the supreme federal courts, a federal court or the supreme court of a Land responsible for the federal territory in the application of the same legal provision, and this deviation is the basis for the judgment.
Social Court Act (SGG)
A corresponding provision exists in Section 160(2) No. 2 of the Social Court Act (SGG), which also enables the admission of an appeal based on divergence.
Fiscal Court Code (FGO)
In fiscal jurisdiction, Section 115(2) No. 2 of the Fiscal Court Code (FGO) governs the divergence appeal. Here too, it serves to ensure uniform case law.
Code of Civil Procedure (ZPO)
In civil procedure law, the divergence appeal is not explicitly regulated by statute, but may become relevant based on general legal principles and in the context of leapfrog appeals.
Prerequisites for Admitting a Divergence Appeal
Concept of Deviation (Divergence)
A deviation within the meaning of divergence exists when the court of the contested judgment, in interpreting and applying a legal principle, diverges from the interpretation and application of this legal principle by the divergence court (Federal Constitutional Court, federal supreme court, or equivalent court). It is not sufficient if the court merely reaches a different result in an individual case; rather, there must be a conscious or unconscious difference in legal opinion regarding a legal principle of fundamental importance.
Comparability of the Legal Provision
For divergence, the deviating decision must concern an identical or substantively comparable legal provision. The difference in application of the law must relate to the same legal question.
Relevance for the Decision
The differing handling of the legal norm must have been relevant for the judgment, i.e., the judgment would likely have had a different outcome without the difference in legal interpretation.
Grievance
As a rule, the appellant must be adversely affected in his or her rights by the judgment. This is a necessary prerequisite for the admission of the appeal.
Procedure and Course of the Divergence Appeal
Grounds for Admission to Appeal
Divergence is a specific ground for admitting an appeal, so it must first be submitted in the admission procedure to what extent factual or legal deviations exist. In particular, it is necessary to specify exactly from which decision has been deviated and which legal principle is affected.
Requirement for Statement of Grounds
The application to admit a divergence appeal must be accompanied by a comprehensive, substantiated justification. A mere assertion of deviation is not sufficient; rather, a comparison of the legal principles and their different application is required.
Scope of Review in the Appeal Proceedings
In the actual appeal proceedings, the appeal court examines whether such divergence and its relevance for the decision actually exist. If the court concludes that there was no relevant deviation concerning a legal principle, the appeal is dismissed as unfounded.
Significance of the Divergence Appeal for Legal Unity
The divergence appeal is of particular significance for the rule of law, as it is an essential instrument for ensuring legal unity in Germany. It enables divergent legal views to be clarified at the highest judicial level and thus ensures uniform case law for subsequent proceedings. This legal institution is indispensable, especially as law evolves or new statutory interpretations arise, for the harmonization and development of the law.
Distinction from Other Grounds for Appeal
The divergence appeal must be distinguished from other grounds for admission such as the fundamental importance of the legal issue (Section 132(2) No. 1 VwGO) or procedural errors (Section 132(2) No. 3 VwGO). While the fundamental importance focuses on the general interest in clarifying a legal question, the divergence appeal is exclusively aimed at correcting differences in legal application between courts.
Practical Relevance and Examples
In practice, the divergence appeal is particularly relevant when lower courts decide contrary to the established case law of a federal court or the Federal Constitutional Court. Typical scenarios include deviations from long-established legal principles of federal courts or contradictions between different higher courts.
Literature and Further Information
The following literature is recommended for a deeper understanding of the subject:
- Eyermann, Code of Administrative Court Procedure, Commentary, each latest edition
- Kopp/Schenke, VwGO, Commentary
- Sodan/Ziekow, Code of Administrative Court Procedure, Commentary
Legal texts and materials can be found in particular in:
- Section 132(2) VwGO
- Section 160(2) SGG
- Section 115(2) FGO
Summary
The divergence appeal is a significant legal institution in German procedural law that serves to ensure legal unity and consistent case law. It applies whenever court decisions diverge in interpreting and applying the same legal provision. The procedure is subject to strict formal and substantive requirements and constitutes a central element for harmonizing the jurisprudence in Germany.
Frequently Asked Questions
What is the procedure for a divergence appeal in legal practice?
The divergence appeal procedure typically begins with the filing of an appeal by a party, asserting that the contested judgment or order diverges from a decision of a higher or same-level court in a legal question that is relevant for the decision. Once the statement of grounds for appeal is submitted, the competent appeal court first examines the admissibility, particularly the basic requirements for divergence. It reviews whether a relevant deviation in the application of law actually exists. If necessary, the parties are invited to comment. The appeal court then analyzes both the contested judgment and the referenced comparison decision. If the court finds divergence and considers the appeal justified, it may set aside the challenged judgment and either remit the case to the lower court for a new hearing and decision or render its own decision on the merits. Throughout the proceedings, the relevant procedural rules apply—such as the respective code of procedure (e.g., ZPO, VwGO, SGG, FGO)—with particular attention to deadlines and form requirements.
What legal conditions must be met for a divergence appeal?
Certain strictly regulated legal conditions must be met for a divergence appeal. First, there must be a substantively relevant and decision-critical deviation of the contested judgment from a decision of a higher or equivalent court in the same legal question. This divergence must be stated concretely and substantiated—mere dissatisfaction or differing findings of fact are not sufficient. The legal deviation must have been pivotal for the decision (‘ruling’ or ‘obiter dictum’ is generally not sufficient). Moreover, the cited comparison decision must actually contain, in its reasoning or operative part, the differing legal viewpoint on which the court’s decision is based. The appeal is only admissible if the relevant code of procedure explicitly provides for it, which is especially the case in administrative and social court proceedings. Also, the statutory time limits for submitting and justifying the appeal must generally be complied with.
What role does the principle of legal unity play in divergence appeal proceedings?
The principle of legal unity is the fundamental legal policy objective of the divergence appeal procedure. It dictates that comparable cases must be decided by courts of similar competence according to the same legal standards. Divergence appeals are specifically intended to correct divergent case law and establish a consistent and contradiction-free interpretive standard. The divergence appeal thus prevents the development of inconsistent jurisprudence and contributes to the predictability of judicial decisions and legal clarity. Parties seeking justice can therefore expect that their legal situation does not depend on random judicial assignment or regionality. The appeal court ensures compliance with and enforcement of this legal unity.
How are the requirements and existence of divergence specifically verified?
The determination of whether divergence exists is made based on a comparative analysis of the legal questions decisive for the dispute between the contested judgment and the comparison decision. First, the appellant must meticulously identify the legal question in which the deviation is alleged and support this with the relevant passage from the comparison decision. The court then examines whether the deviation actually exists and whether it concerns a controlling legal viewpoint relevant to the decision. It is not sufficient for a court to reference an outdated opinion or an obiter dictum. Furthermore, the appeal court checks whether an appropriate type of comparison decision exists, such as a decision by a supreme federal court or a court of the same grade. If the court has already changed its jurisprudence, it is assessed whether this has rendered the divergence irrelevant.
What are the consequences of a successful divergence appeal for the original proceedings and the parties involved?
If the divergence appeal is granted, the appeal court regularly sets aside the contested judgment. In most cases, the matter is remitted to the previous instance for a new decision, which must then be made in accordance with the binding legal opinion of the appeal court. This gives the parties, particularly in the case of a legal error, a renewed opportunity to present their case under changed legal circumstances. If the case is suitable for immediate decision, the appeal court may also decide on the merits itself if the facts do not require further clarification (e.g., purely legal questions). Moreover, a successful divergence appeal can entitle the party to reimbursement of costs—the losing party or the state then regularly bears the costs of the proceedings according to the applicable cost regulations.
When is a divergence appeal inadmissible or unfounded?
A divergence appeal is inadmissible, for example, if the procedural requirements—especially the right to appeal, compliance with deadlines, and proper formulation of the divergence—are not met. On substantive grounds, it is unfounded if a purported deviation is alleged but actually does not exist in the relevant legal question or was not decisive for the outcome. The legal remedy is also impermissible if there is no equivalence or higher status of the comparison decision, for example, if the cited decision comes from a different type of court or a lower instance. In addition, the divergence appeal may be unfounded if the appeal court finds that an earlier legal opinion is outdated or has meanwhile been clarified by the highest courts, and the challenged decision correctly reflects this.
What is the significance of divergence rules in different branches of the judiciary?
The divergence rules are found in various codes of procedure, such as the Code of Administrative Court Procedure (§ 132(2) No. 2 VwGO), the Social Court Act (§ 160(2) No. 2 SGG), and the Fiscal Court Code (§ 115(2) No. 2 FGO). They are an expression of a control mechanism specifically focused on upholding the principle of legal unity. In administrative and social courts, the divergence appeal is a central standard of review for the non-admission complaint and for admitting an appeal. In the ordinary courts (especially civil and criminal courts), by contrast, the general importance of the matter or the violation of substantive or procedural law is usually decisive; nevertheless, special grounds for divergence may also play a role here. The legislative design of divergence rules demonstrates how the quest for uniform jurisprudence is safeguarded systematically.
Is a divergence appeal possible in the case of differing assessment of facts?
No, the divergence appeal can only be based on differences in the application of law, not on a different assessment or evaluation of facts. Divergence within the meaning of the applicable procedural codes only exists when the court, in a decision-relevant legal question—that is, in the subsumption or interpretation of legal norms—deviates from another judicial decision with comparable competence. Findings of fact cannot be reviewed in a divergence appeal; these are in principle only challengeable via legitimate and substantiated procedural complaints. This ensures that the divergence appeal serves exclusively to maintain legal unity and does not become an additional instance for examining facts.
