Definition and Legal Framework of ‘Expert’
The term ‘Expert’ is used in various ways in German and international law and encompasses an important function in proceedings, contract drafting, and expert reports. In the legal context, ‘Expert’ refers to a person who, by virtue of their particular expertise and experience in a specialized field, is consulted in court proceedings, administrative processes, or private matters in order to establish facts, make assessments, or explain cause and effect. The role of an ‘Expert’ is often also described as an appraiser or technical expert, whereby different guidelines and legal bases may be decisive depending on the field of application.
Distinction and Classification
The term ‘Expert’ is not a legally defined concept in German statutes, but is nonetheless used—especially in international and European law. In practice, ‘Expert’ generally corresponds to the German term ‘Sachverständiger’ (technical expert). The requirements, rights, and obligations are defined in particular by procedural codes, the German Civil Code (BGB), the Code of Civil Procedure (ZPO), the Code of Criminal Procedure (StPO), the Administrative Procedure Act (VwVfG), as well as corresponding international regulations.
Requirements for Qualification and Appointment
Minimum Requirements
Certain prerequisites must be met in order to be appointed as an ‘Expert.’ These include:
- Proof of special expertise and many years of practical experience in the respective field
- Independence and impartiality
- Objectivity and duty to diligently prepare expert reports
A public appointment is not mandatory, but is often important for official or judicial recognition.
Appointment by Courts and Authorities
The Code of Civil Procedure (§§ 402 ff. ZPO) and the Code of Criminal Procedure (§§ 72 ff. StPO) regulate the formal requirements for selection and assignment. Courts and authorities have discretion in their selection, but must pay attention to professional suitability. In certain cases, a publicly appointed and sworn expert may be preferred.
Rights and Duties within Proceedings
Scope of Duties
An ‘Expert’ is engaged to establish facts, assess technical issues, and prepare expert opinions. Mandatory duties include:
- Preparation and submission of expert reports with detailed explanation of methods and results
- Participation in hearings and oral proceedings
- Well-founded answers to judicial questions
Duties
In addition to the duty to present findings objectively, there is a particular duty of confidentiality (§ 203 StGB) as well as a duty to submit necessary documents. The activity must be conducted impartially and independently.
Improper Performance and Liability
Liability is governed by § 839a BGB as well as other special statutory provisions. Incorrect findings or breaches of duty may result in claims for damages. In the case of judicial appointments, a privilege of limited liability exists under strict conditions, provided there is no intent or gross negligence.
Procedural Role and Significance
In Civil Proceedings (§§ 402 ff. ZPO)
In civil proceedings, an ‘Expert’ may be appointed by the court to establish facts. The expert report prepared has considerable influence on the court’s decision-making process, but is not binding. The parties have the right to raise objections and request supplementary questions.
In Criminal Proceedings (§§ 72 ff. StPO)
In criminal proceedings, an ‘Expert’ is appointed for technical, medical, or scientific matters. The opinions provided may be decisive for determining guilt and sentencing.
Administrative Proceedings
In administrative proceedings, experts are often consulted to clarify technical issues, particularly in matters relating to the environment, construction, and trade. The legal basis is the Administrative Procedure Act; the prepared reports are used as evidence.
International and European Law
At the European level, the office of ‘Expert’ also plays an important role, such as in international arbitration, decisions by EU institutions, and international cooperation on technical or scientific issues. The requirements for appointment and independence are often determined by the rules of the respective organization or international agreements.
Remuneration and Cost Law
Remuneration is regulated by the Act on Remuneration and Compensation of Judicial Experts (JVEG). It provides for reasonable remuneration corresponding to the workload. In international proceedings, respective national provisions or arbitration regulations apply.
Conclusion
The term ‘Expert’ in a legal context refers to a person with special expertise who assumes significant responsibilities in establishing facts, evaluations, and resolving technical questions during proceedings. The legal bases for appointment, rights, duties, liability, and remuneration are not uniform, but are generally based on principles of independence, transparency, and qualification. The work of ‘Experts’ makes a substantial contribution to the establishment of truth and legal certainty.
Frequently Asked Questions
Who is liable in law if a consultant designated as an ‘Expert’ provides incorrect information?
A consultant acting as an ‘Expert’ may, under certain conditions, be legally liable for incorrect information given. The key distinction here is between non-binding advice (‘courtesy’) and binding, knowledgeable expert consultation. If an expert, in the context of an assignment (contractual or pre-contractual), provides incorrect technical information, claims for damages may arise under § 280(1) BGB (breach of contractual secondary obligations), provided the party seeking advice suffers financial loss. In addition, certain experts, such as tax advisors, physicians, or lawyers, are also subject to special legal provisions on liability and particular professional codes, which generally allow only limited liability shifting or limitation. The decisive factors for liability are the content and scope of the advice given, the expectations of the party seeking advice, as well as the demonstrable expertise of the expert. In individual cases, tortious liability under § 823 BGB (unlawful act) may also apply, especially in cases of intent or gross negligence, such as when an expert violates recognized professional standards and thereby causes concrete damage.
What legal requirements apply to the qualification of an ‘Expert’?
Whether and what legal requirements apply to the qualification of a consultant acting as an ‘Expert’ depends largely on the respective profession and field of activity. For certain professional titles, such as ‘Sachverständiger’ (technical expert), ‘specialist lawyer,’ or ‘publicly appointed and sworn expert,’ statutory minimum requirements and admission prerequisites exist, the non-compliance with which may result in fines (§ 132a StGB for misuse of titles). However, the term ‘Expert’ is not legally protected; rather, it refers to a self-assigned or attributed expertise. Nevertheless, assuming or being assigned this role obliges the individual to exercise their activity according to general care standards (see § 276 BGB). Anyone publicly presenting themselves as an expert must actually possess special knowledge; otherwise, risks under competition law (misleading advertising under § 5 UWG) or civil law liability for incorrect advice may arise.
How is the liability of ‘Experts’ towards third parties regulated?
An ‘Expert’s’ liability towards third parties generally presupposes the existence of a contractual or pre-contractual legal relationship, for example in the form of a contract with protective effect for third parties. Outside a direct contractual relationship, liability may arise under § 823 BGB (tort liability) or from a guarantor position, if the expert assumes a particular relationship of trust towards a third party and the third party demonstrably relies on this expertise. In specific cases, such as in the context of reports, liability consequences are also governed by public law provisions (e.g. building or environmental law) and applicable professional rules. In the international context, any relevant conflict of law issues must also be considered, especially in the case of cross-border consulting services.
Is the designation ‘Expert’ subject to regulatory requirements?
The mere designation as ‘Expert’ is not subject to any specific regulatory requirements in Germany, since the term is not protected and there are no regulatory admission rules. However, the use of an expert title must not violate statutory provisions, particularly competition law (§§ 3, 5 UWG – prohibition of misleading practices) or the right to a name (§ 12 BGB). If a person wrongly carries an expert designation or misleads about their qualification, warnings, injunctions and possibly a ban on practicing the profession may result. For regulated professions, additional professional legal regulations apply.
What information and disclosure obligations does an ‘Expert’ have according to current jurisprudence?
A consultant acting as an ‘Expert’ is generally obliged to provide comprehensive, correct and understandable information to clients on all circumstances relevant to the particular consultation. This information obligation arises from the general advisory duty under § 241(2) BGB and is specified by supreme court jurisprudence. In particular, an expert must point out recognizable risks, uncertainties, and potential conflicts of interest. Failures in providing information may result in claims for damages if the client suffers loss due to omitted advice or warning. Specific professions may be subject to additional statutory duties to inform (e.g. § 630e BGB in medical law, § 6(2) RDG for legal consultants).
When does a violation of the prohibition of misleading practices occur when someone calls themselves an ‘Expert’?
A violation of the prohibition against misleading occurs if the designation ‘Expert’ creates the false expectation in the relevant audience that the person concerned has special, proven expertise and experience which they do not actually possess. Legally, this is relevant under § 5(1) UWG (Act Against Unfair Competition). The decisive question is how an average, reasonable recipient understands the use of the expert title. In particular, falsely claiming special qualifications—such as ‘certified expert’ without appropriate certificates—is anti-competitive and may be subject to warning by competitors, consumer protection associations, or supervisory authorities. Criminal sanctions are also conceivable if deception in business dealings can be proven (§ 263 StGB – fraud).
To what extent is an ‘Expert’ allowed to advertise their services?
Advertising by a provider acting as an ‘Expert’ is legally permissible provided it complies with statutory regulations, in particular the law of fair competition and any special advertising restrictions for certain professional groups. Advertising must be objective and truthful, and in particular must not contain misleading or incorrect claims with respect to expertise, scope of services, or chances of success. Professionally regulated ‘Experts’—especially lawyers, tax advisers, or doctors—are subject to additional advertising restrictions (cf. § 43b BRAO, § 57 Steuerberatungsgesetz, § 27 Heilberufe-Kammergesetz). Violations can result in disciplinary sanctions, claims for damages, or competition law injunctions.
What documentation obligations does an ‘Expert’ have in carrying out their activities?
Documentation obligations vary depending on the field of activity and the underlying legal relationship. As a rule, it is advisable for a consultant acting as an ‘Expert’ to document the essential aspects of the consultation, particularly recommendations, warnings, and assumptions made. For regulated professions there are additional specific documentation requirements: for instance, lawyers must record client advice and instructions in writing (§ 50 BRAO), doctors are required by § 630f BGB to keep complete patient files, and in construction or in the context of publicly appointed experts, extensive documentation of reports is required. Violation of the documentation obligation may result in evidentiary disadvantages or even administrative sanctions.
