Definition and Significance of Filing a Lawsuit
Filing a lawsuit is a central concept in procedural law, both in civil law and in labor, administrative, and social law. It refers to the formal initiation of court proceedings with the aim of asserting a claim against another person or institution in court. The procedure and the formal requirements for filing a lawsuit are regulated by law and serve both to ensure procedural legal certainty and to guarantee the parties the right to be heard.
Filing a Lawsuit in Civil Proceedings
Requirements for Filing a Lawsuit
In German civil proceedings, the filing of a lawsuit is governed by Sections 253 et seq. of the Code of Civil Procedure (ZPO). The lawsuit is initiated by submitting a statement of claim to the court (§ 253 para. 1 ZPO). Parties must have legal capacity and standing to sue or be sued. Furthermore, an admissible cause of action must exist, meaning a coherent presentation of facts and a legally protected interest in a judicial decision.
Contents of the Statement of Claim
The statement of claim must contain certain information (§ 253 para. 2 ZPO):
- the identification of the parties and the court,
- the specific designation of the subject matter in dispute and the relief sought,
- a brief presentation of the facts, and
- the designation of evidence.
It is essential that the subject matter in dispute and the plaintiff’s interest are presented clearly and comprehensibly. Without complete and correct information, the court may dismiss the lawsuit as inadmissible.
Types of Lawsuits
There are various types of lawsuits, depending on the desired outcome:
- Action for Performance: Requires the performance or omission of an act.
- Declaratory Action: Serves to establish a legal relationship (§ 256 ZPO).
- Action for Alteration: Aims at the creation, modification, or termination of a legal relationship.
Effect of Filing a Lawsuit
Filing a lawsuit has several legal effects:
- Lis Pendens (Pendency): Lis pendens begins with the filing of the statement of claim (§ 261 ZPO). This means the proceedings are pending before the court and certain effects occur, such as suspension of the limitation period (§ 204 para. 1 no. 1 BGB).
- Suspensive Effect: Certain out-of-court negotiations or ongoing limitation periods are suspended by the filing of the lawsuit.
- Obligation to Pay Fees: By submitting the lawsuit, court fees are incurred in accordance with the Court Costs Act (GKG).
Jurisdiction and Filing
Subject-matter and local jurisdiction are determined by statutory provisions, for example §§ 12 et seq. ZPO as well as the value in dispute (§§ 23, 71 GVG). The lawsuit must be submitted in writing; in certain cases, it can also be recorded at the court registry.
Filing a Lawsuit in Criminal Proceedings
In criminal proceedings, a lawsuit is not filed in the traditional sense; instead, the public prosecutor’s office files charges (§ 170, § 200 StPO). An exception is the so-called application to compel prosecution as well as certain accessory prosecution situations. In criminal offenses, filing a lawsuit is therefore less common for private individuals and is rather initiated by public authorities.
Filing a Lawsuit in Administrative Proceedings
According to § 81 of the Code of Administrative Court Procedure (VwGO), a lawsuit is filed by submitting a complaint to the administrative court. The requirements for the complaint are similar to those in civil proceedings, but special forfeiture provisions and deadlines must be observed, in particular the time limit for bringing an action (usually one month) must be strictly adhered to.
Special Types of Actions in Administrative Proceedings
- Action for Annulment: Against detrimental administrative acts.
- Action for Mandamus: When an authority refuses to issue a favorable administrative act.
- Declaratory Action: To clarify an existing legal relationship.
Filing a Lawsuit in Social Proceedings
Under § 90 of the Social Court Act (SGG), a lawsuit must be filed in writing with the social court. The requirements and types of lawsuits largely correspond to those of administrative jurisdiction.
Special Types of Proceedings
Filing a Lawsuit in Expedited Proceedings
In cases where immediate court intervention appears necessary to obtain a preliminary injunction or a protective measure, a lawsuit may also be filed as part of expedited proceedings. The procedural hurdles and requirements here differ from those of the so-called main proceedings.
Electronic Filing of Lawsuits
With the ongoing digitalization of the judiciary, the option to file lawsuits electronically has now been legally recognized in almost all jurisdictions. Filing via beA (special electronic lawyer’s mailbox) or through EGVP (Electronic Court and Administration Mailbox) has become mandatory for many parties to proceedings.
Procedural Follow-Up Questions
Costs and Court Fees
Filing a lawsuit is generally associated with the obligation to pay fees. These are based on the amount in dispute or object value and the applicable fee schedules (e.g., GKG).
Withdrawal of the Lawsuit
A lawsuit that has been filed can be withdrawn with the defendant’s consent until the beginning of the oral hearing (§ 269 ZPO). Withdrawal terminates the proceedings without a decision on the merits.
Amendment and Extension of the Lawsuit
Under certain conditions, an amendment or extension of the lawsuit is possible after it has been filed (§ 263 ZPO), subject to court approval or the defendant’s consent.
Deadlines for Filing a Lawsuit
Various deadlines must be observed when filing a lawsuit. These result from substantive and procedural legal provisions, such as the general statute of limitations (§ 195 BGB), special forfeiture periods, or time limits for filing suit in social and administrative law matters.
Legal Remedies if the Lawsuit is Rejected
If a lawsuit is dismissed by the court (as inadmissible or unfounded), the plaintiff has various legal remedies, such as appeal, revision, or complaint, depending on the jurisdiction and amount in dispute.
References and Further Information
Numerous commentaries, textbooks, and manuals on filing lawsuits have been published, including standard works on ZPO, VwGO, and SGG. Many specialist articles also address practical and theoretical aspects of filing lawsuits.
Note: This article provides an overview of the most important legal aspects of filing a lawsuit in different German court jurisdictions and does not claim to cover every specific regulation in detail. In individual cases, the currently applicable statutory provisions must be observed.
Frequently Asked Questions
What formal requirements must be observed when filing a lawsuit?
When filing a lawsuit, certain statutory formal requirements must be complied with in order to ensure the admissibility of the claim. The lawsuit must be submitted in writing to the competent court, complete with the date, the signature of the plaintiff or their representative, and full designation of the parties (§ 253 ZPO). The statement of claim must include the plaintiff, the defendant with a serviceable address, the court, a specific and well-defined statement of facts, and a specific claim for relief. In addition, any enclosures must be indicated in the statement of claim. If legal representation is required (e.g., in the Regional Court), the lawsuit must be filed by an admitted Rechtsanwalt. After submission, an advance payment on court fees is due according to the Court Costs Act; without payment, the lawsuit is generally not served.
When is a lawsuit considered to have been filed?
A lawsuit in civil proceedings is deemed filed as soon as the statement of claim is received by the court in accordance with § 253 para. 1 ZPO. However, the claim attains procedural pendency only upon service to the defendant (§ 261 para. 1 ZPO). There is therefore an important distinction between the receipt of the lawsuit and its service: for example, receipt interrupts limitation periods (§ 204 para. 1 no. 1 BGB), while pendency triggers certain legal effects, such as binding the subject matter in dispute or suspending other court proceedings.
What requirements must a lawsuit fulfill to be admissible?
For a lawsuit to be admissible, various factual and procedural requirements must be met. These include, among others, the jurisdiction of the court (subject-matter and local), procedural and legal capacity of the parties, absence of a binding judgment in the same matter (res judicata), as well as, where required by law (e.g., in neighborhood disputes), a prior attempt at mediation or conciliation. For certain types of lawsuits, particularly actions for performance, a coherent statement of facts is also expected, enabling the court to make a legal assessment.
What deadlines must be observed when filing a lawsuit?
In German civil procedure law, there are generally no statutory time limits for filing a lawsuit. However, substantive limitation periods (§§ 194 et seq. BGB) and procedural exclusion periods (such as claim periods in labor or administrative law) must be observed. Missing a deadline may result in loss of the right to bring an action. Additionally, during the course of proceedings, the court may set deadlines for submissions or motions to take evidence, the failure of which may have adverse consequences. In certain procedures, such as appeals against administrative acts, express deadlines for bringing an action apply (e.g., one month after service of the notice of opposition).
What costs are incurred by filing a lawsuit?
By filing a lawsuit, court costs are generally due according to the Court Costs Act (GKG), the amount of which depends on the value in dispute. In addition, there may be costs for legal representation, which are calculated according to the German Lawyers’ Fees Act (RVG). Besides these main items, there may be additional expenses for witnesses, experts, or translations. The plaintiff must advance the costs; final allocation is made after completion of the proceedings, depending on whether they win or lose. If unsuccessful, the plaintiff generally bears the costs of the litigation (§ 91 ZPO).
Is representation by a Rechtsanwalt mandatory?
The necessity of legal representation depends on the subject-matter jurisdiction of the court. Before local courts, the plaintiff may generally file and conduct the case themselves; legal representation is not mandatory there. From the regional court level and in most specialized courts (commercial chambers, higher regional courts, etc.), legal representation by a Rechtsanwalt is mandatory in accordance with § 78 ZPO. Legal representation is generally not required in labor and social courts, but is often recommended. In administrative proceedings, there is also no mandatory legal representation in the first instance.
What happens after the lawsuit is filed?
After the lawsuit has been received and the advance on court costs paid, the court serves the lawsuit on the defendant (§ 271 ZPO), thereby establishing pendency. The court then schedules a date for oral hearing or may initially order a written preliminary procedure. The defendant is given the opportunity to respond to the claim. The further proceedings follow the procedural codes and range from taking evidence and settlement hearings to the delivery of the verdict. Pending related proceedings may be suspended, or applications for legal aid may be reviewed.
