Right of Disposal

Standing – Definition, Significance, and Legal Classification

Die Standing is a central term in German law, regularly arising in connection with the pursuit or defense of claims in legal proceedings. It refers to the right of a person to assert or defend a specific claim in their own name. Standing is particularly significant in the context of the admissibility of lawsuits and the conduct of proceedings. The following provides a comprehensive overview of the various legal aspects, development, and practical importance of standing.

Definition of Standing

General Definition

Standing is the substantive entitlement to assert a disputed claim or to defend against such a claim. It differs from the right of representation in litigation, which describes the legal capacity to conduct a case as a party. Standing is therefore a prerequisite for the admissibility of lawsuits in court.

Distinction from the Right of Representation in Litigation

While the right of representation in litigation describes the capacity to conduct litigation in one’s own name (right to sue), standing concerns entitlement to the disputed claim itself. Standing thus clarifies whether the plaintiff or defendant is acting in their own right or is the actual holder of the disputed claim. If standing is lacking, the lawsuit must be dismissed as inadmissible.

Legal Foundations of Standing

The Role of Standing in Civil Proceedings

In German civil proceedings, formal and substantive claim requirements are strictly distinguished. While legal capacity to be a party (§ 50 ZPO) and civil procedural capacity (§ 51 ZPO) are formal requirements, standing is a substantive requirement for the admissibility of a lawsuit.

Substantive Entitlement to the Claim

The party filing the lawsuit must be the bearer of the asserted right. These claims may arise from contractual relationships, statutory provisions, or other legal bases. Standing thus serves as a control mechanism because only the actual holder of the claim or someone who has been granted this right is entitled to assert it in court.

Example: Active and Passive Standing

Active standing: Anyone wishing to enforce a claim must have standing, i.e., must be the holder of the claim.
Passive standing: Anyone being sued must be the correct defendant, i.e., the person against whom the claim is directed.

Statutory Provisions

Although the term ‘standing’ is not expressly defined in the law, its legal significance is derived from case law and legal literature. Standing is closely connected with § 253 para. 2 no. 2 ZPO (statement of claim) and the admissibility of an action under § 256 ZPO (declaratory action). Standing is also recognized as an unwritten requirement for admissibility in administrative procedural law (§ 42 para. 2 VwGO), social procedural law, and criminal procedural law.

Standing in Various Procedural Codes

Standing in Civil Proceedings

In civil proceedings, standing is an independent requirement for the admissibility of a lawsuit. The decisive point in time is generally the conclusion of the oral hearing. If standing is lacking, this must still be examined ex officio in appeal proceedings.

Special Cases: Exceptions to the Principle

There are scenarios where a person may assert the rights of another, such as in voluntary or statutory representation in litigation (§ 1629 BGB for parents acting on behalf of a child). In these cases, standing is not directly with the plaintiff but with the holder of the claim.

Standing in Administrative Proceedings

According to § 42 para. 2 VwGO, standing is given in actions for annulment or obligations (e.g., annulment actions) if the plaintiff claims to have been injured in their own rights by the administrative act. In administrative law, this is often referred to as ‘right to sue,’ but it is substantively identical to standing.

Standing in Criminal Proceedings and Other Procedures

Standing is also significant in criminal and social court proceedings, particularly in cases of accessory prosecution, private actions, or class actions. Here, the requirements for substantive legal concern are assessed similarly.

Loss, Acquisition, and Transfer of Standing

Acquisition of Standing

Standing is acquired by those who are identified as right holders through legal transaction, statute, or by succession. It may transfer to another person with the assignment of the claim (e.g., by assignment, § 398 BGB).

Loss or Cessation of Standing

Standing may be lost by fulfillment, waiver, settlement, or elimination of the underlying claim. Standing must be maintained throughout the entire proceedings; otherwise, the claim must be dismissed as inadmissible or unfounded.

Practical Significance and Case Law

Significance in Judicial Practice

The examination of standing is of considerable practical significance. It serves to protect the defendant from unwarranted claims and ensures clarity as to who is the bearer of the asserted claim. Courts often review standing ex officio.

Important Judgments and Standard Literature

The issue of standing has been repeatedly addressed and developed in numerous landmark rulings by German courts, including the Federal Court of Justice (BGH), the Federal Administrative Court (BVerwG), and the Federal Labor Court (BAG). Standard works and commentaries deal extensively with standing and its practical application.

Summary

Standing is a fundamental legal institution in German procedural law. It determines who may actually pursue or defend a claim in their own name before a court. Lack of standing leads to inadmissibility of judicial proceedings. The precise determination of standing is a fixed component of judicial review in all instances and types of proceedings and serves to ensure the rule of law in judicial processes. Standing is thus a key element of procedural justice and efficiency.

Frequently Asked Questions

In which legal contexts does standing play a role?

Standing is particularly significant in German law in the context of civil procedure, but it is also relevant in public law and criminal law. In civil proceedings, standing determines whether the plaintiff is entitled to assert a specific right in their own name before a court. Typical applications are actions for performance, restitution, or declaratory judgment. In public law, it primarily concerns the role of a participant in administrative proceedings and administrative disputes, for example, when contesting administrative acts. In criminal law, standing is relevant insofar as it helps to clarify whether private individuals are entitled to exercise procedural rights such as filing a private action or submitting criminal complaints. Accordingly, determining standing is often a prerequisite for a substantive examination of the claims or rights at issue in a particular procedure.

What are the consequences of lacking standing in civil proceedings?

If a party lacks standing (usually so-called active or passive standing), the claim must be dismissed as inadmissible. The court usually examines standing as part of the admissibility of the action. As standing is one of the procedural requirements, its absence cannot be remedied later in the proceedings. Dismissal as inadmissible means that the court does not address the potentially justified substantive claim. In practice, this means, for example, that a person asserting another’s claim without proper authorization will fail with their claim for this reason alone, regardless of whether the claim would actually exist on its merits.

How does standing relate to the right of representation in litigation?

Standing and the right of representation in litigation are two closely related, but distinct, concepts. Standing determines whether a person may assert a particular right in their own name as the claimant (active standing) or as the party against whom the claim is directed (passive standing), whereas the right of representation in litigation refers to the right to conduct legal proceedings in one’s own name—even with regard to rights that actually belong to a third party (for example, in the case of voluntary representation in litigation). Standing is based on substantive law; the right of representation in litigation on procedural rules. In practice, however, both are often examined together, since both must be satisfied for a lawsuit to be admissible.

Is standing relevant in administrative proceedings or administrative courts?

Standing also plays a central role in administrative proceedings and before administrative courts, where it is often referred to as the right to sue or the right to participate. According to § 42 para. 2 VwGO, a plaintiff must assert that the contested administrative act or its rejection infringes their own rights (so-called ‘possibility theory’). This reflects standing in administrative proceedings. Lack of standing leads to dismissal of the claim as inadmissible. The requirements for standing are generally less strict than in civil proceedings, since it is sufficient if a violation of one’s own right appears possible.

Can standing lapse or arise during the course of a legal proceeding?

Standing is generally determined at the time of the last oral hearing, so it can lapse (‘cease to exist’) or arise later (‘be added’) during the proceedings—for example, if claims are assigned during the process. If the plaintiff loses standing during the procedure by transferring the disputed right, the claim is generally dismissed immediately as inadmissible. However, the proceedings may continue with the consent of the new right holder or by way of a change of parties. Complex scenarios may also arise, such as collective enforcement or insolvency proceedings where the insolvency administrator acquires standing.

How do active and passive standing differ within the scope of standing?

Within the framework of standing, active standing refers to the right to bring a claim. It is a prerequisite for someone to be able to act as a plaintiff. Passive standing, on the other hand, is the counterpart on the defendant’s side: it determines whether a person is the proper defendant against whom the asserted claim is directed. Both aspects must be examined in the proceedings, as lack of either active or passive standing will result in dismissal of the claim as inadmissible. In complex situations, for example, with multiple parties or joint debtors, it is necessary to distinguish precisely who has standing both actively and passively.

Are there any special considerations regarding standing in family and inheritance law?

In family and inheritance law, there are specific peculiarities due to statutory special provisions and the frequent existence of legal representations. Persons often do not possess standing directly but by virtue of law or through a representative: for example, parents may assert rights on behalf of their minor children, executors may act from the managed estate, or legal guardians may act within the scope of their powers. Even in these specialized areas, careful examination of standing is essential to determine whether the plaintiff or defendant is actually the holder of the disputed right or whether a legal representative must act.