Definition and legal classification of the preventive declaratory action
Die preventive declaratory action is an instrument of German civil procedure law that enables the plaintiff to obtain a judicial determination that a specific legal relationship (usually the non-existence of an obligation or claim) will not exist in the future, before a concrete dispute or an immediate infringement has occurred. It thus differs from the regular declaratory action and from the action for performance. The preventive declaratory action serves the purpose of preventive legal clarification and can help to establish legal certainty even before potential court disputes arise.
Legal basis of the declaratory action
General declaratory action (§ 256 ZPO)
The legal basis for the declaratory action is set out in § 256 of the Code of Civil Procedure (ZPO). According to § 256 para. 1 ZPO, a lawsuit can seek a determination of the existence or non-existence of a legal relationship or the authenticity of a document. The key requirement is the so-called legal interest in a declaration.
Distinction: Preventive declaratory action
The preventive declaratory action differs from other forms of declaratory actions in that it is used preventively: it is brought in order to obtain judicial clarification regarding a threatened or anticipated legal relationship, for example, to avert the threat or assertion of claims in the future. While the classic declaratory action generally concerns situations that have already occurred but are still unresolved, the preventive declaratory action aims at potential future disputes.
Requirements and admissibility of the preventive declaratory action
Legal interest in a declaration (need for legal protection)
The essential requirement for admissibility for any declaratory action is the legal interest in a declaration (§ 256 para. 1 ZPO). In the case of the preventive declaratory action, a mere abstract interest is not sufficient; rather, a concrete legal need for judicial clarification must exist. The court examines whether another (performance-like or defensive) type of action is available or reasonable for the plaintiff.
In particular, the asserted legal relationship must not be merely theoretical. Rather, it is necessary that the plaintiff, due to the conduct of the opposing party, must seriously expect to be called upon (qualified legal uncertainty). Mere fears or assumptions are not sufficient. Typically, there must be an existing so-called “risk of litigation”.
Sufficient concretization of the legal relationship
When pursuing a preventive declaratory action, the legal relationship to be determined must be sufficiently identified and defined. Indeterminate or overly abstract applications are inadmissible, since a declaratory judgment has clear legal effects and can have binding effect.
Subsidiarity to the action for performance
The preventive declaratory action is always subsidiary to a possible action for performance. This means: if an action for performance—such as a claim for injunction, delivery, or payment—is possible and reasonable, this takes precedence over the declaratory action. Only when an immediate action for performance cannot be filed (e.g., because an infringement has not yet occurred), is the declaratory action admissible.
Areas of application of the preventive declaratory action
The preventive declaratory action is particularly relevant in the following groups of cases:
Defense against unjustified claims
A typical case is the defense against impending unjustified claims, for example after a warning letter. The affected party then requests a declaration that no claim for injunction or payment exists. The action is also used to protect against termination of contracts, disturbances in rental relationships, or in employment law in cases of alleged breaches of duty.
Clarification of public-law legal relationships
In public law, a preventive declaratory action can be used, for example, to clarify whether particular administrative measures are lawful or not, provided that no administrative act has yet been issued. In administrative proceedings, this can be achieved through a declaratory action under § 43 VwGO.
In industrial property law
Especially in patent law, trademark law, and copyright law, the preventive declaratory action is used as a means to proactively defend against impending claims, for example, to have the non-infringement of an intellectual property right determined.
Legal consequences and binding effect of the declaratory judgment
If the claim is allowed, the declaratory judgment has binding effect (inter partes effect) between the parties. A renewed legal dispute on the same subject matter is excluded (so-called res judicata). For third parties, the judgment generally does not have immediate effect.
Limitations and restrictions of the preventive declaratory action
The preventive declaratory action is subject to strict requirements for admissibility. In particular, it is not permissible for mere differences of opinion, legal questions without specific reference, or for general abstract judicial review in the absence of a risk of dispute. It is also inadmissible if the assertion or defense in ordinary court proceedings is reasonable for the plaintiff.
Distinction from other types of actions
Difference compared to a negative declaratory action
The preventive declaratory action overlaps in scope with the negative declaratory action, whose main purpose is to judicially establish the non-existence of a claim asserted by the opponent. Both serve to defend against claims and to clarify the legal situation. The difference lies mainly in their preventive character and the timing of the action.
Difference compared to an action for performance
Unlike an action for performance, in this type of action the plaintiff does not seek an immediate act, forbearance, or omission, but merely the determination of a specific legal status.
Procedural approach and course
The preventive declaratory action is brought before the competent civil court, usually as an action for a declaration with a corresponding application. In terms of admissibility, the court in particular examines the existence of a qualified legal interest and the sufficient clarity of the claim. If necessary, an oral hearing takes place; the judgment is issued with reasons as in other actions.
References and further provisions
- Code of Civil Procedure (ZPO), in particular § 256 ZPO
- Administrative Court Rules (VwGO), § 43 VwGO
- Munich Commentary on the ZPO, § 256
- Zöller, Code of Civil Procedure, § 256
- Civil Code (BGB), for substantive law
Summary and practical note
The preventive declaratory action is an important instrument for the preventive clarification of future legal relationships and for the defense against impending unjustified claims. It requires a qualified legal interest and is only possible in cases of imminent legal uncertainty, sufficient specification of the subject matter of the dispute, and subsidiarity to the action for performance. Its use promotes legal certainty and can prevent costly and time-consuming legal disputes.
Frequently Asked Questions
When is it permissible to bring a preventive declaratory action?
The admissibility of a preventive declaratory action in Germany is governed by § 256 ZPO and requires that there is a legal relationship capable of being declared. A preventive declaratory action is generally only admissible if the plaintiff can demonstrate a legal interest in a declaration, meaning there is a need for an immediate determination. This means the plaintiff requires clarification of uncertainty regarding their rights or obligations before an actual conflict arises. Furthermore, there must be no other, simpler legal remedy available, especially an action for performance or injunction. In addition, there must be a present and actual risk of being sued or having rights violated by the defendant (a ‘concrete, imminent uncertainty’). It is therefore decisive whether the plaintiff has a legitimate interest in obtaining a binding court decision now, for example in order to prepare for possible court or administrative measures.
What are the requirements for the legal interest in a declaration in a preventive declaratory action?
The legal interest in a declaration (§ 256 paragraph 1 ZPO) is the main hurdle for a preventive declaratory action. It is not sufficient for the plaintiff to want an abstract legal question clarified in advance. Instead, there must be an objectively justified concern about an impairment of rights or being called upon by the opponent. The legal interest is present if an intervention in the plaintiff’s rights or a threatened lawsuit by the opponent puts them at risk, or if uncertainty may lead to legal disadvantages in the foreseeable future. Mere fear or insecurity is not enough; instead, there must be concrete indications of an impending event. Case law further requires that other remedies, particularly actions for performance or injunction, do not take precedence.
In which areas of law is the preventive declaratory action most commonly used?
Preventive declaratory actions are primarily used in areas of law where preventive clarification is frequently necessary, such as civil law (e.g., in the case of impending warning letters, contractual relationships, or compensation issues), administrative law (determination of the unlawfulness of future administrative acts), and insurance law (for example, to clarify the scope of insurance before a loss event). Preventive declaratory actions are also used in intellectual property law (especially competition law or trademark law) to prevent possible lawsuits for alleged infringements of intellectual property rights.
What procedural particularities apply to the preventive declaratory action?
Special care must be taken in substantiating and explaining the legal interest in a declaration when seeking a preventive declaratory action. The court rigorously examines whether there is indeed a current uncertainty and thus a justified interest in legal clarification. The plaintiff must specifically and comprehensibly describe the impending disadvantage; otherwise, the claim risks being dismissed as inadmissible. The burden of substantiation for the legal interest and the existence of a legal relationship capable of being declared lies solely with the plaintiff. Formal requirements particularly arise from the need to sufficiently specify the legal relationship to be determined in the application for action.
How does the preventive declaratory action differ from an action for performance?
The preventive declaratory action aims to establish the existence of a legal relationship or certain legal consequences, even though there is not yet a specific obligation to perform or refrain, nor could such an obligation be directly enforced. In contrast, the action for performance seeks to obtain the immediate enforcement of a specific act (e.g., payment, delivery) or forbearance. The action for performance requires a due and enforceable right, while the declaratory action may also be admissible if a right or obligation is at issue, but its enforcement or violation has yet to occur, even if that event is imminent or acutely threatened.
What role does the timing of the threatened infringement play in the admissibility of the action?
The timing of the threatened infringement is of decisive importance for the admissibility of a preventive declaratory action. If the infringement or claim is still far off in the future or is based merely on vague possibilities, the necessary legal interest is lacking. Case law requires that the impending disadvantage is ‘forthcoming’ or that a situation has arisen in which one must expect to be sued immediately. A purely hypothetical or merely feared situation is not sufficient. The closer and more concrete the timing of a potential infringement is, the more likely the claim will be admissible.
Can preventive declaratory actions be used to avoid cost-intensive proceedings on the merits?
Yes, a key objective of the preventive declaratory action is to eliminate legal uncertainties early through judicial clarification and thereby avoid subsequent, often more costly main or performance proceedings. By obtaining a determination of the non-existence of an obligation or claim, the plaintiff can prevent being sued or having to engage in expensive, long-term litigation. However, the prerequisite always remains that a legal interest in a declaration and a current legal uncertainty exist. The preventive declaratory action thus constitutes an effective means of creating clarity at an early stage in contentious or unclear legal relationships and preventing unnecessary costs.
