Model Declaratory Application
Definition and Basic Concept
The model declaratory application is a key element of the model declaratory action in German civil procedure law. It is a procedural application by which a qualified institution seeks a judicial determination regarding the existence or non-existence of claims or legal relationships in favor of a large number of affected consumers. The model declaratory application serves to allow courts to decide questions of fact and law with broad impact, in order to create legal certainty for many similar cases.
Legal Basis
The model declaratory action as a collective redress instrument was introduced into the Code of Civil Procedure (ZPO) by the Act on the Introduction of a Civil Procedural Model Declaratory Action on November 1, 2018, in Sections 606 to 614 ZPO. The model declaratory application pursuant to Section 606 (1) Sentence 2 ZPO is the procedural declaration by the qualified institution entitled to bring the action, initiating the model procedure.
Content of the Model Declaratory Application
Interest in Determination and Factual Background
The application must set out a specific interest in determination with regard to a large number of claims or legal relationships. The underlying factual background, the pattern of asserted claims, and the affected circumstances of life must be clearly described in the application (Section 606 (2) No. 1 ZPO).
Specific Objectives of Determination
The model declaratory application pursues specific objectives of determination. The application must request that the court determine certain factual or legal prerequisites for the claim or legal relationship. The defined objectives of determination must be sufficiently specific to enable a binding resolution for all affected parties (Section 606 (2) No. 2 ZPO).
Collectively Affected Group of Persons
The model declaratory application must outline the group of affected persons. The qualified institution filing the action must demonstrate how a large number of similar claims or legal relationships are concerned (Section 606 (1) Sentence 1 ZPO). The obligation to substantiate relates to the typical affectedness of the claimants’ community.
Information about the Qualified Institution
The model declaratory application must include information about the authorized institution, in particular its name, registered office, and legal representative (Section 606 (2) No. 3 ZPO).
Formal and Material Requirements
Admissibility of the Model Declaratory Application
A model declaratory application is admissible if
- a qualified institution is entitled to bring an action (Section 606 (1) Sentence 2 ZPO),
- at least 50 consumers are directly affected by the subject matter of the action,
- the application fulfills the statutory requirements regarding specificity, factual background, and collective interest.
The competent Higher Regional Court decides on admissibility and arranges publication in the claims register (Section 607 ZPO).
Requirements regarding Specificity
The legal or factual questions to be clarified by the model declaratory application must be formulated with sufficient specificity so that the court can make a clear determination. General or vague applications will be rejected as inadmissible.
Procedure after Submission of the Model Declaratory Application
After submission and review of the model declaratory application, the entry in the claims register takes place. Consumers may register in this register within a period of two months after initiation of proceedings (Section 608 ZPO). The court examines both the formal and material requirements of the application and defines the objectives of determination to be addressed in the model procedure.
During the proceedings, the parties may expand, limit, or modify the model declaratory application. Expansions or modifications require publication in the claims register and must ensure the affected group remains clearly defined (Section 610 ZPO).
Binding Effect and Legal Consequences of the Model Declaratory Application
The judgment on the model declaratory application has a binding effect for pending and future individual proceedings that concern the same situation, provided the affected consumers were registered in the claims register (Section 613 ZPO). The findings are binding for courts and parties in subsequent proceedings to the extent that these relate to the determined legal or factual element.
However, a successful model declaratory application and the corresponding model declaratory judgment alone do not immediately lead to payment or performance, but merely enable the simplified enforcement of an individual claim in a further proceeding.
Significance in Collective Redress
The model declaratory application differs from an individual action in that it seeks a determination, not specific performance. This instrument is particularly relevant for mass cases with similar circumstances, for example in consumer law, banking and insurance law, or in emissions scandal cases. It greatly relieves the judicial system and contributes to the uniform application of the law.
References to Literature and Case Law
Law on Collective Redress (Model Declaratory Action): BGBl. I 2018, p. 1151 BGH, Judgment of 25.05.2021 – XI ZR 264/20 (Distinction between determination objectives) Commentary: Thomas/Putzo, Code of Civil Procedure, Section 606 ZPO BeckOK ZPO, preceding Sections 606 ZPO
Summary
The model declaratory application is a central instrument of collective legal protection in civil procedural law. It allows for uniform determinations regarding the prerequisites or scope of claims in similar circumstances. Due to its clear statutory design, numerous formal and material requirements must be met for an effective application, aimed at ensuring the effective protection of the interests of a large number of consumers. The binding effect of such findings substantially facilitates individual legal enforcement and contributes to the standardization and efficiency of case law in the field of consumer rights.
Frequently Asked Questions
Who is entitled to file a model declaratory application?
Only qualified institutions may submit a model declaratory application. These usually include consumer protection associations or other recognized entities within the meaning of Section 606 of the Code of Civil Procedure (ZPO). They must meet certain requirements, such as sufficient expertise, independence, and at least four years’ activity in the protection of consumer interests. Individuals or companies generally do not have the right to file such an application directly. In addition, the institution must credibly demonstrate that the determination of a large number of consumers’ or small investors’ claims or legal relationships depends on the decision. The qualified institution thus acts as a representative of the affected parties without asserting its own individual claims.
What is the procedure after filing a model declaratory application?
After the model declaratory application is filed, the competent Higher Regional Court formally examines its admissibility, particularly the proper representation by the qualified institution and compliance with the remaining statutory requirements. If the application is found to be admissible, it will be published in the claims register. Consumers whose claims or legal relationships may be affected may then register for entry in the register within a specified period—usually two months. Registration is free of charge and in particular interrupts the limitation period of their claims. The court will then hold a hearing on the objectives of determination submitted. At the end of the proceedings, the court will issue the model declaratory judgment, which has binding effect for courts in later individual cases.
What binding effect does the judgment from a model declaratory action have for consumers?
The court decision rendered pursuant to the model declaratory action has binding effect for courts in later individual lawsuits brought by registered consumers (Section 613 ZPO). This means that the determined findings are binding on both the consumers and the defendant company. Further individual claims for performance must, however, be asserted separately by the consumers, in which they may refer to the legal findings of the model declaratory judgment. Thus, the model declaratory judgment has a kind of precedent effect and offers an improved starting position for subsequent individual proceedings.
Can affected consumers also deregister from the claims register?
Yes, consumers may withdraw their registration from the claims register until the end of the day before the start of the oral hearing (Section 608 (3) ZPO). Withdrawal means that the effects of registration—especially the suspension of the limitation period—cease retroactively. Once the oral hearing has begun, withdrawal is no longer possible. This regulation ensures that consumers can react flexibly to changes in the litigation situation or to an individual settlement with the defendant company.
What costs arise for consumers in connection with the model declaratory application?
No direct costs or fees arise for consumers for registering in the claims register. The proceedings themselves are borne by the qualified institution bringing the action, which may be supported by membership fees, donations, or public funds as applicable. Only if a consumer initiates an individual court proceeding following the model action—for example, to enforce a specific payment—will civil court fees and possible attorney fees arise.
What options do consumers have after a judgment in the model declaratory proceedings?
After completion of the model declaratory proceedings, consumers for whom favorable determinations have been made by the judgment can enforce their own claims against the defendant company on this basis. In many cases, the company will offer an out-of-court settlement to avoid further litigation. However, payments or other benefits must be asserted independently by the affected parties. If no settlement is reached, the consumer may file a lawsuit within a six-month period, in which the findings from the model declaratory judgment are already binding. This usually saves having to submit evidence applications and significantly facilitates the enforcement of the claim.
Does registration in the claims register suspend the limitation period?
Yes, under Section 204 (1) No. 1a BGB, registration of a consumer in the claims register suspends the limitation period for their claims for the duration of the model declaratory proceedings. The effect begins with registration in the register and ends no later than six months after the final and binding conclusion of the proceedings. Any potential claim remains protected during the proceedings and the subsequent period, without the consumer having to observe their own limitation periods. This offers a significant advantage over individual actions, where the limitation period would continue to run.
