Definition and General Meaning of Necessary Expenses
Necessary Expenses refer in German law to the expenditures incurred by a party or participant in a judicial or administrative proceeding, to which an objective necessity is attributed for the assertion or defense of their rights. The term is particularly applied in criminal procedure law, administrative offence law, administrative procedures, and other procedural codes. Necessary expenses are frequently discussed in connection with the obligation to reimburse costs, such as when the state, a defendant, or a participating party is involved.
Legal Basis of Necessary Expenses
Criminal Procedure Code (StPO)
The reimbursement of necessary expenses in the Criminal Procedure Code is mainly regulated in Section 464a Paragraph 2 StPO. This includes, among other things, the actual costs of the defense, travel and accommodation expenses, fees for expert opinions, and expenses for necessary translations.
In criminal proceedings, the reimbursement of costs through necessary expenses covers both the expenditures of the accused and of the joint plaintiff, provided these were objectively required for the purpose of pursuing or defending rights. In principle, these are expenditures that a reasonable party could regard as necessary, taking into account the significance of the case and the circumstances.
Administrative Offences Act (OWiG)
According to Section 46 OWiG, which refers to many provisions of the Criminal Procedure Code, necessary expenses are also reimbursable in administrative fine proceedings. It should be noted that the expenses of the affected person or participants in the proceedings must be reimbursed at least in the event of success against the responsible authority – such as in the case of termination under Section 47 OWiG or an acquittal.
Code of Civil Procedure (ZPO)
In civil proceedings, “necessary expenses” are understood in particular to mean those expenditures that a party had to incur within the course of litigation. Regulations can be found in Sections 91 et seq. ZPO and in the Cost Directory (KV) for the Court Costs Act. Necessary expenses here may include, in particular, expenditures for witnesses, experts, translations, travel expenses, as well as costs of statutory representation.
Administrative Procedure and Administrative Procedural Law
In administrative procedures and administrative procedural law, the principle also applies that necessary expenses are reimbursable (Section 162 VwGO). These may include expenditures for legal counsel, travel and accommodation expenses, necessary copies, and expenses for evidence.
Scope and Distinction of Necessary Expenses
Distinction from Court Costs
Necessary expenses must be distinguished from court costs. While court costs are officially levied (e.g., for court fees, service fees), necessary expenses relate to costs individually incurred by a party or participant in the proceeding.
Distinction from Unnecessary Expenditures
Only those expenses are reimbursed that were incurred out of an objective necessity from the perspective of a reasonable party in the given proceeding. Non-essential or disproportionate expenditures, such as luxury accommodations or arbitrarily repeated travel, are regularly not recognized as necessary expenses.
Examples of Necessary Expenses
- Travel expenses: Travel costs to court appointments, accommodation costs if arrival on the day of the hearing is not possible.
- Costs for summoning witnesses: Compensation and travel expenses for witnesses, interpreters, and experts.
- Fees for legal representation: Payments for legal counsel within the legally permissible scope.
- Expert opinion costs: If an expert opinion is indispensable in the context of the defense or prosecution.
- Costs for copies, extracts, and translations: Insofar as necessary for the proper conduct of the proceedings.
Reimbursement of Costs and Filing Applications
Legal Basis for Claims
Whether and to what extent necessary expenses are reimbursable depends on the outcome of the proceeding and the relevant statutory provisions. Reimbursement is usually granted upon application in accordance with the applicable procedural law.
Procedure for Asserting Claims
As a rule, expenses must be specifically documented and applied for on a case-by-case basis. After the conclusion of the procedure, the court or the competent authority decides the extent to which costs are to be reimbursed. The affected person submits an application for reimbursement of costs, specifying and providing evidence of the expenses.
Special Cases and Particularities
Necessary Expenses in Case of Acquittal or Termination
If there is an acquittal, termination of the proceedings, or a similar decision in favor of the affected party, there is a claim to reimbursement of the necessary expenses caused by the proceedings. This includes, in particular, defense costs and expenses for measures that were objectively necessary for the efficient exercise of rights.
Partial Reimbursement and Apportionment
If only part of the claims is recognized, or the decision is in favor of only part of the matter, the court may split the reimbursement of costs proportionally so that each party is liable for their necessary expenses on a pro rata basis.
Special Provisions for Joint Plaintiffs and Private Plaintiffs
Joint plaintiffs, private plaintiffs, and other participants in the proceedings may, upon successful completion of the procedure, also claim reimbursement of their necessary expenses, provided that specific provisions such as Sections 472 and 472a StPO apply.
Literature and Further Reading
- C.H. Beck (ed.), Cost Law: Court Costs, Lawyers’ Fees, Expenses, Munich, latest editions
- Gerold/Schmidt, Lawyers’ Remuneration Act (RVG), commentary
- Meyer-Goßner/Schmitt, Criminal Procedure Code
- Zöller, Code of Civil Procedure
The concept of necessary expenses is a central component of cost law in all judicial and administrative proceedings in Germany and ensures fair financial compensation for the expenses required in the proceedings.
Frequently Asked Questions
Who bears the necessary expenses in criminal proceedings?
In criminal proceedings, the term “necessary expenses” particularly refers to the costs incurred by a participant for appropriate legal defense. These include, for example, attorney’s fees as well as expenses for necessary expert opinions, travel costs, fees for translations, or costs for attending hearings. In principle, each participant initially bears their own necessary expenses. However, if the proceedings are discontinued in favor of the accused or there is an acquittal, these expenses may be covered by the state treasury under Sections 467, 473a StPO. An exception applies if the proceedings are discontinued for minor offences under Section 153 StPO; in such cases, expenses may remain wholly or partially with the accused. In the case of a chosen attorney (Wahlanwalt), reasonable fees are also reimbursed; fees exceeding this must be borne by the party themselves.
How are necessary expenses dealt with in civil proceedings?
In civil procedure law, Section 91 ZPO in particular governs the duty to bear necessary expenses. The losing party must reimburse the opposing party for the necessary expenses incurred during the proceedings. This includes out-of-court lawyer’s fees, travel and accommodation costs for the parties involved, and costs for experts if these were necessary for proper legal pursuit. The decisive criterion is always the necessity of the costs in the sense of an economically reasonable, appropriate pursuit or defense of rights. Unnecessary costs, such as engaging a non-essential expert, are not reimbursed.
Under what conditions are costs considered “necessary expenses”?
For costs to be recognized as necessary expenses in the legal sense, they must be objectively required to properly safeguard one’s legal interests in the proceedings. This requires a strict purpose-means relationship: only those costs that would have arisen for a reasonable party under prudent conduct of the process are considered necessary. The perspective always taken is that of a reasonable third party acting with a balanced cost-benefit approach. Excessive expenses, luxury expenditures, or costs incurred for personal convenience are regularly not included.
What role do necessary expenses play in administrative fine proceedings?
In administrative offence proceedings under the OWiG (Act on Regulatory Offences), similar principles apply as in criminal proceedings. According to Section 105 OWiG, the necessary expenses of the affected person are to be reimbursed by the state treasury if the proceedings are discontinued or the person ultimately prevails. This particularly includes the expenses of the defense lawyer, as well as translation costs, expert reports, travel or accommodation expenses, and compensation for witnesses, so far as these are required for appropriate defense. The determination is made by the court; disputed issues are decided in the cost determination procedure under Section 464b StPO.
How are necessary expenses determined and reviewed?
The assessment of necessary expenses is made by a cost determination order, issued upon application by a party under Sections 464b et seq. StPO or Section 104 ZPO. The party must set out and substantiate its expenses, for example, through cost receipts, fee invoices, or tickets. The opposing party has an opportunity to comment. The court then examines whether the claimed costs can rightly be recognized as necessary under the relevant procedural code. An appeal, usually by immediate complaint, can be lodged against the assessment.
Can court costs also be reimbursed as necessary expenses?
Court costs, such as court fees and expenses for the operation of the court, are conceptually and systematically to be distinguished from necessary expenses in the narrower sense. While court costs are generally imposed on the party liable for costs “ex officio,” necessary expenses relate to the parties’ own, out-of-court costs. Only in special exceptional cases, such as when legal aid is granted or in the context of certain cost reimbursements, can court costs in a broader sense be equated with necessary expenses.
What happens to the necessary expenses in the case of partial success?
If the proceedings result in a situation of partial success—that is, both parties are partly successful and partly unsuccessful—cost reimbursement will be apportioned pursuant to Section 92 ZPO or Section 473 StPO. In such cases, each participant bears expenses according to their degree of success or defeat. That means each party receives only a portion of their necessary expenses from the opponent and may have to cover a portion of the opponent’s expenses. Precise calculation and distribution are carried out in the cost determination procedure—any contributory negligence or tactical conduct in the lawsuit is particularly taken into account.
What legal remedies are available in cases of dispute regarding the reimbursement of necessary expenses?
In the event of a dispute over the amount or necessity of expenses, the parties concerned may lodge legal remedies against the cost determination. In civil proceedings, this is the immediate complaint under Section 104 (3) ZPO; in criminal proceedings, under Section 464b StPO. These complaints are examined by the higher court, which will again review the necessity and appropriateness of the disputed expenses. In this way, it is ensured that no unjustified or excessive expenses are reimbursed at the expense of the losing party and that the principle of cost fairness is maintained.
