Obligation to provide testimony
The obligation to provide testimony in German law refers to the statutory or contractual duty of a person to issue a certificate or to give witness testimony. It is a central concept in civil, criminal, and employment law, and concerns both the duties of witnesses in court proceedings as well as the obligations of employers towards employees. The following article examines the complex legal aspects of the obligation to provide testimony, its limitations as well as exceptions, and references relevant legal foundations.
Definition and Areas of Application
The obligation to provide testimony appears in various areas of law:
- In court proceedings (civil proceedings, criminal proceedings, administrative proceedings), it includes the duty to appear as a witness and to contribute to clarifying the facts.
- In employment law it describes the employer’s obligation to issue a qualified employment reference or interim reference to the employee.
- In public law it also concerns, for example, the obligation of public officials to prepare expert opinions or certificates.
These different areas of law are subject to their own regulations, whereby the obligation to provide testimony is always part of a formal procedure.
Obligation to provide testimony in court proceedings
Duties of witnesses in civil proceedings
According to Sections 380 et seq. of the Code of Civil Procedure (ZPO), any person summoned as a witness is, in principle, obliged to be available to the court for testimony. The obligation to provide testimony includes:
- appearing in court (obligation to attend by summons)
- the duty to testify truthfully
- if necessary, the taking of an oath.
Limits of the obligation to provide testimony
The obligation to provide testimony is limited by exceptions:
- Right to refuse testimony (Sections 383 et seq. ZPO): Certain persons may or must refuse to testify if they have a special close relationship with a party involved (e.g., fiancés, spouses, close relatives).
- Profession-related right to refuse testimony: Certain professional groups (e.g., doctors, clergy) are protected by profession-specific obligations of confidentiality (Section 383 (1) Nos. 6 to 8 ZPO).
- Privilege against self-incrimination (Section 384 No. 2 ZPO): Witnesses are not required to provide information that could incriminate themselves or persons close to them under criminal law.
Regulatory measures for violations
Anyone who, contrary to the obligation to provide testimony, fails to appear without a valid excuse or refuses to testify may, according to Sections 380, 390, 409 ZPO, be subject to a regulatory fine, coercive detention, or coercive fine. Forced appearance is also possible.
Obligation to provide testimony in criminal proceedings
In criminal proceedings, Section 48 of the Code of Criminal Procedure (StPO) stipulates a comprehensive obligation to provide testimony. Witnesses may be obligated to tell the truth and are subject to the duty to testify and the obligation to take an oath.
Rights to refuse testimony
- Personal rights to refuse testimony (Section 52 StPO): Spouses, life partners, and close relatives have the right to refuse testimony.
- Professional confidentiality (Section 53 StPO): Certain groups (such as lawyers, doctors, journalists) may refuse to testify.
- Protection against self-incrimination (Section 55 StPO): No one is obliged to expose themselves to criminal prosecution.
Even in criminal proceedings, coercive means (e.g., regulatory fines, coercive detention) can be applied to witnesses who fail to comply with their obligation to provide testimony.
Obligation to provide testimony in administrative and social court proceedings
In administrative proceedings (Section 96 Code of Administrative Court Procedure, VwGO) and social court proceedings (Section 118 Social Court Act, SGG), similar regulations apply. Witnesses are generally required to appear and give truthful testimony.
Obligation to provide testimony in employment law
Right to a reference from the employer
Under German employment law, there is a statutory obligation to provide testimony according to Section 109 of the Commercial Code (GewO). Accordingly, every employeeis entitled to a written reference at the end of the employment relationship.
- Simple references: State the type and duration of employment.
- Qualified references: Additionally assess performance and conduct during employment.
- Interim reference: May be requested during ongoing employment for a valid reason.
Content requirements
The reference must be phrased benevolently, but must also be truthful. It must not unnecessarily harm the employee’s future professional advancement. Legal disputes about the accuracy of the contents are frequently the subject of labor court proceedings.
Timeframe and form
The reference must be issued without delay after termination of employment and must meet certain form requirements (written, personally signed).
Legal consequences in the event of a violation
An employer who breaches the obligation to issue a reference can be sued for its issuance. In addition, claims for damages may be asserted if the employee suffers a disadvantage due to the missing reference.
Limits and exceptions to the obligation to provide testimony
Rights to refuse testimony
The most important exceptions are governed by rights to refuse testimony. These include:
- Personal relationships: Protection of family harmony and personal rights
- Obligations of confidentiality: Protection of sensitive information, e.g., by doctors or clergy
- Protection against self-incrimination: Principle of protection against involuntary criminal prosecution.
Practical significance
In practice, these rights have a significant impact on the scope and enforceability of the obligation to provide testimony in court proceedings and professional life.
Sanctions for breaches of duty
If a person culpably breaches the obligation to provide testimony in a proceeding, sanctions such as regulatory fines, coercive detention, or coercive fines may be applied in accordance with the procedural rules. Repeated violations may lead to criminal consequences, such as for a false statement not under oath (Section 153 StGB) or for false testimony under oath (Section 154 StGB).
Legal foundations
The main statutory provisions concerning the obligation to provide testimony are found in the following regulations:
- Code of Civil Procedure (ZPO): Sections 373 et seq., 383 et seq., 386 et seq., 390 et seq., 409 et seq.
- Code of Criminal Procedure (StPO): Sections 48 et seq., 52 et seq., 53 et seq., 55, 70
- Code of Administrative Court Procedure (VwGO): Section 96
- Social Court Act (SGG): Section 118
- Commercial Code (GewO): Section 109
- Criminal Code (StGB): Sections 153, 154 (False testimony)
Significance of the obligation to provide testimony in the rule of law
The obligation to provide testimony is a central element for establishing the truth in court proceedings and for legal certainty in working life. It serves to ensure effective enforcement of the law, while the rights to refuse testimony and the duties of confidentiality protect individual interests and socially recognized confidentiality obligations.
Summary: The obligation to provide testimony includes both the duty to give testimony in court proceedings and the obligation to issue references in professional life. It is of fundamental importance for the functioning of the legal system and the enforcement of individual claims. Numerous exceptions and limitations ensure a proper balance of interests between the duty to testify and to provide references and the protection of personal or professional concerns.
Frequently Asked Questions
When does an employer have a statutory obligation to issue a reference?
The legal obligation for an employer to issue a reference in Germany arises from Section 109 of the Commercial Code (GewO). Upon termination of employment—whether by employer dismissal, employee resignation, expiry of a fixed-term contract, or a termination agreement—every employee is entitled to a written reference. Thus, the obligation to issue a reference is linked to the end of the employment relationship and not to the employer’s will or specific business activities. An interim reference, however, is only granted exceptionally and for a justified interest (e.g., change of supervisor, restructuring, imminent parental leave) but is not a statutory obligation as in the case of a final reference. The reference must be issued at the latest upon termination of the employment relationship; if the employer fails to do so after a reasonable deadline set by the employee, they are deemed in default.
Does the obligation to issue a reference also apply to trainees and interns?
For trainees, there is an explicit obligation to issue a reference according to Section 16 of the Vocational Training Act (BBiG). At the end of training, the training company must issue a reference containing information on the type, duration, and the acquired skills, knowledge, and abilities. For interns, the obligation to provide a reference depends on the respective contract and analogies to the principles of employment law; often an implicit entitlement to an internship reference exists, especially in the case of longer or paid internships. For student or short-term internships, there may be no entitlement to a reference in individual cases; however, in practice, an informal certificate is usually issued.
How does the obligation to provide a reference apply in the case of termination during incapacity for work?
Even if the employment relationship ends during an incapacity for work (e.g., due to illness, accident, or prolonged absence), the obligation to provide a reference remains fully effective. The employee can request the reference even after the incapacity and the actual end of employment. Incapacity for work does not affect the obligation; rather, the employer must ensure that the reference can be requested and either picked up or sent. If necessary, it is the employer’s responsibility to send the reference by post if the employee cannot collect it personally. Any restriction or postponement of the obligation to provide a reference is not permissible by law.
Must the reference be issued in a specific form?
The employment reference must be issued in writing according to Section 109 GewO. A simple reference must at least state the type and duration of employment, while a qualified reference additionally evaluates performance and conduct. The reference must be written on the employer’s letterhead, typed without errors, and handed over in original form, personally signed. Issuing by email or scan alone does not fulfill the legal requirement, nor does a facsimile signature. A digital signature is permitted if it meets the requirements for written form within the meaning of Section 126a BGB (qualified electronic signature).
What are the consequences if the employer does not comply with the obligation to issue a reference?
If the employer does not fulfill the obligation to issue a reference, the employee can first request the reference in writing and, if necessary, set an appropriate deadline. If the reference is still not issued, the employee’s claim can be asserted in court through a reference correction claim before the labor court. The employer may also owe damages if the lack of a reference causes harm (e.g., in the application process). Persistent refusal may result in the imposition of coercive fines on the reference claim. The obligation to provide a reference generally becomes time-barred after three years, starting from the end of the year in which the claim arose (Sections 195, 199 BGB).
Are there exceptions to the obligation to provide a reference, for example in small businesses or for short-term employment?
The obligation to provide a reference generally applies regardless of the size of the employer or the duration of the employment relationship. Neither small businesses nor short-term employment relieve the requirement to issue an employment reference if requested by the employee. Even for fixed-term, marginal, or one-day jobs, an entitlement to a reference may exist. The only restrictions apply if the employee explicitly and voluntarily waives the reference or if proving that issuing it is impossible (e.g., complete loss of all necessary documents in insolvency and proven efforts to retrieve them).
Are there any deadlines that must be observed when requesting a reference?
There are no statutory exclusion periods or immediate forfeitures for requesting a reference. Generally, the entitlement to a reference expires according to the regular limitation period of three years, beginning at the end of the year in which the employment ended (Sections 195, 199 BGB). However, some employment or collective agreements contain exclusion periods, within which all claims—including the entitlement to a reference—must be asserted, often between three and six months after the end of employment. If the reference is only requested after this period, the claim may be forfeited. Therefore, it is generally advisable to request an employment reference in a timely manner.
