Definition and significance of the decision procedure
The decision procedure represents a central issue in the German legal system and refers to a judicial form of decision in which the court decides certain matters by order—i.e., without conducting an oral hearing or delivering a judgment. It serves in particular for the quick and appropriate resolution of specific legal questions that do not require processing in a formal lawsuit. The decision procedure is applied in various legal areas, each containing its own rules regarding procedure and the effects of decisions.
General characteristics and distinction from the judgment procedure
In contrast to the judgment procedure, which typically involves an oral hearing and concludes with a judgment, the decision procedure is conducted in writing. The decisive difference lies in the form of decision (order instead of judgment) and, as a rule, in the shortened course of the proceedings. An order is binding, but may—depending on the respective area of law—be subject to its own legal remedies.
Form and content of the order
An order is issued in writing by a court or a panel. The legal requirements for the content of an order arise from the respective procedural regulations. Typically, an order includes:
- the parties involved,
- the decisive facts,
- the legal reasoning,
- the final decision.
Orders must always be justified, unless the law provides for an exception.
Areas of application of the decision procedure
The decision procedure is used in various areas of German law. The most significant areas are outlined below:
Decision procedures in labor law
In collective labor law, the decision procedure is specifically governed by § 2a of the Labor Court Act (ArbGG). It regularly concerns disputes regarding workplace co-determination rights and matters between employers and works councils, for example in the interpretation and enforcement of works agreements or social plans.
Course of the labor court decision procedure
- Filing an application: The procedure is initiated by an application.
- Principle of investigation: In the decision procedure, the court is not bound by the parties’ submissions, but rather investigates the facts ex officio.
- Participants in the proceedings: In addition to the classic parties to the proceedings, other participants, such as trade unions or employee representatives, may be involved.
- Legal remedies: Orders from the labor courts are normally subject to legal complaints or immediate appeals.
Decision procedure in voluntary jurisdiction
In matters of voluntary jurisdiction, for example in family law, guardianship law, custodianship law or land register law, the decision procedure is the predominant decision format. The procedural rules in this jurisdiction follow the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG).
Other areas of voluntary jurisdiction:
- Probate matters
- Land register matters
- Register matters (e.g., register of associations, commercial register)
Decision procedure in criminal procedure law
Decision procedures are also applied in criminal proceedings, such as in the ordering or lifting of pre-trial detention (§ 117 StPO), in the intermediate procedure (§ 203 StPO), or in decisions on complaints and other ancillary decisions.
Administrative law decision procedure
In administrative proceedings, orders can be made especially before administrative courts pursuant to the Code of Administrative Court Procedure (VwGO). Examples include interim orders or special decision procedures in administrative court jurisdictions.
Legal status of participants and procedural principles
The participants in the decision procedure vary depending on the area of law. In labor law, these include employers, employee representatives, and possibly affected third parties. In voluntary jurisdiction and family law, they are the applicants and other parties whose rights are directly affected.
The principle of ex officio investigation is characteristic in numerous decision procedures. Thus, the court is often obliged to thoroughly investigate the facts independently of the submissions of the parties. Other procedural principles may include the involvement of additional participants, special form requirements, or specific legal remedies.
Legal remedies and res judicata in the decision procedure
Orders can generally be challenged with various legal remedies. The type of permissible remedy depends on the respective area of proceedings and the statutory provisions:
- Appeal: The appeal is the main legal remedy against first-instance orders in many proceedings, such as in labor court decision procedures or voluntary jurisdiction (§§ 58 et seq. FamFG).
- Legal complaint: In certain cases, the law allows for further review by way of a legal complaint.
- Immediate appeal: If urgency requires, an immediate appeal is available, as in the case of ordering a temporary injunction.
Once res judicata takes effect, the order becomes binding. The effect of res judicata usually only covers the decision on the specific matter at issue.
Summary
The decision procedure is a complex and widely used part of German procedural law, and ensures efficient and formalized resolution of specific legal matters outside of classic lawsuit proceedings. Due to its special structure, it relieves the courts and allows for quick, appropriate decisions. The precise procedural rules and available legal remedies always depend on the area of law and the relevant statutory provisions.
Frequently asked questions
Who is entitled to file an application in the decision procedure?
In the decision procedure, the parties to collective agreements, employers, works councils or staff councils, or affected employees are generally entitled to file an application. The precise eligibility depends on the jurisdiction of the labor court and the relevant statutory provisions, such as the Works Constitution Act (BetrVG) or the Staff Representation Act (PersVG). As a rule, all those who hold co-determination, participation, or information rights in the framework of company co-determination may initiate a decision procedure, for example if there are questions of interpretation about company regulations or disputes about the application and interpretation of works agreements. Representatives for severely disabled persons are also entitled in certain cases. If third parties are involved, such as the conciliation committee, it may also become a party to the proceedings under certain circumstances.
What procedural principles apply in the decision procedure?
The decision procedure is conducted according to the provisions of the Labor Court Act (ArbGG), especially §§ 2a, 80 et seq. ArbGG, and observes the principles of the so-called “expedited and substantively-oriented procedure.” It differs fundamentally from the judgment procedure, for example by applying the principle of ex officio investigation: the court is not bound by the applications submitted or facts alleged by the parties, but establishes the facts independently and comprehensively. Furthermore, the rules of evidence are less strict; thus all means of evidence that serve the clarification of the facts are allowed. The parties are given ample opportunity to comment and to be heard. Nevertheless, procedural minimum requirements remain, especially regarding application, reasoning, and compliance with statutory deadlines.
What typical matters are dealt with in the decision procedure?
Decision procedures generally deal with collective legal disputes. Typical matters are questions from the area of company co-determination, such as the interpretation and application of works agreements, rights and duties of the parties to a works relationship (e.g., co-determination rights of the works council pursuant to § 87 BetrVG), the validity and scope of regulatory agreements, and the establishment and competence of the conciliation committee. Disputes relating to the implementation of social plans, guidelines, or within the framework of staff representation laws are also common. The validity of the appointment or removal of works council members as well as questions of proper business conduct and operational capability of the works council also fall within the decision procedure.
How does the decision procedure work in practice?
The procedure is initiated by a written application to the locally and substantively competent labor court. Upon receipt, the court examines admissibility, gives the opposing side an opportunity to respond, and schedules a chamber hearing. Before the chamber hearing, a conciliation hearing may take place to facilitate an agreement between the parties. The court may independently initiate investigations and summon persons as witnesses or request expert opinions. In complex disputes, the conciliation committee is often brought in, but its decision can then be reviewed by the court. The procedure typically ends with an order, against which an appeal to the regional labor court is possible and, in certain cases, a legal complaint to the Federal Labor Court.
What legal remedies are available against orders in the decision procedure?
Against decisions (orders) in the decision procedure, the first legal remedy is the appeal pursuant to §§ 87 et seq. ArbGG, which must be filed with the regional labor court. The appeal must be filed in writing and with grounds within one month of service of the order. Against the decision of the regional labor court, a legal complaint to the Federal Labor Court is possible under certain conditions, in particular if a legal issue of fundamental importance is affected or there are divergent decisions. Legal complaint and appeal have their own requirements regarding form and deadlines. An immediate appeal is also permitted against certain interim decisions (e.g., rejection of the conciliation committee).
Who bears the costs of the decision procedure?
A special feature of the decision procedure is the regulation of costs. In principle, each party and participant bears their own costs, regardless of the outcome of the proceedings (§ 2 (2) GKG in conjunction with § 80 ArbGG). Court costs for participants are low compared to classic civil proceedings, as the procedure is free of court fees if it concerns labor law co-determination. The situation differs in staff representation disputes in the public sector, where specific cost rules may apply. Importantly, no party is required to pay the other party’s costs, and nominal legal fees are also not reimbursed.
How do decision and judgment procedures in labor law differ?
The decision procedure is intended exclusively for collective legal disputes, whereas the judgment procedure is for individual legal disputes (such as between employer and employee about pay, dismissal, etc.). In the decision procedure, the principle of ex officio investigation applies and there is no obligation for oral hearing, while the judgment procedure requires presentation of evidence by the parties and a compulsory oral hearing. Furthermore, decision procedures are concluded by order, not by judgment, and the legal remedies are governed by different rules (appeal instead of appeal on facts and law, legal complaint instead of revision). This systematic distinction is of fundamental importance for practice.
