Definition and general meaning of the right to lodge an appeal
Die Right to lodge an appeal is a central concept in procedural law and refers to the right of an individual or party to file a legal remedy—especially an appeal—against a judicial or administrative decision. It is one of the key admissibility requirements for initiating legal remedies. The right to lodge an appeal is therefore directly linked to the exercise of legal protection and serves to ensure effective judicial review.
The right to lodge an appeal regularly arises in connection with the procedural stages of the German judiciary, including ordinary, administrative, social, fiscal, and labor jurisdictions, as well as proceedings before administrative authorities.
Legal basis of the right to lodge an appeal
Right to lodge an appeal in the Code of Civil Procedure (ZPO)
According to Section 567 of the Code of Civil Procedure (ZPO), the right to lodge an appeal in civil proceedings is determined in particular by whether the appellant is aggrieved by the contested order or judicial decision. The fundamental principle here is the so-called “principle of grievance” (Beschwerprinzip). Anyone who is adversely affected (“aggrieved”) by a decision in their own rights is entitled to file an appeal as a legal remedy.
Subjective grievance
The appellant must be able to allege a subjective (personal) violation of rights. A so-called “third-party grievance” (grievance of other persons) generally does not constitute one’s own right to lodge an appeal. It is decisive whether a legally protected interest of the person concerned is affected.
Objective grievance
An objective review of the violation of rights generally takes place in the appeal proceedings. The presumption of a purely factual impairment without any legal disadvantage is insufficient for the right to lodge an appeal.
Right to lodge an appeal in administrative court jurisdiction
According to Section 42 of the Code of Administrative Court Procedure (VwGO), the right to lodge an appeal in administrative court proceedings particularly arises from the violation of one’s own rights. Here too, only the person materially affected may file the legal remedy. For an action for annulment or mandatory injunction, the applicant must be able to assert that they are infringed in their own rights by the administrative act or its omission.
Right to lodge an appeal in social court jurisdiction
In social court jurisdiction, the right to lodge an appeal is governed by Sections 172 et seq. of the Social Court Act (SGG). As in civil and administrative court proceedings, a personal involvement is a prerequisite. The person whose legal interests are impaired by the administrative or judicial decision is entitled to lodge an appeal.
Right to lodge an appeal in the Code of Criminal Procedure (StPO)
In criminal proceedings, the right to lodge an appeal pursuant to Sections 296 et seq., 304 StPO is available to anyone whose own rights have been affected by a decision of the court or the public prosecutor’s office. Typically, this concerns the accused, but also third parties, witnesses, or injured parties, provided they are adversely affected in their own legal positions by the decision.
Forms and types of the right to lodge an appeal
Statutory right to lodge an appeal
In addition to the general right to lodge an appeal based on personal involvement, numerous special rules expressly assign the right to lodge an appeal to certain persons or institutions. Examples include the appeal rights of authorities, associations, or third parties in specific areas of environmental or data protection law.
Norms protecting third parties
The right to lodge an appeal may also arise when norms have so-called third-party protective effects, i.e., when the relevant provision is not enacted solely in the public interest but also protects specific individual interests. Only then can a third party file an appeal.
Right to lodge an appeal in association actions
With the introduction of the possibility of association actions, for example in environmental protection or data protection, the right to lodge an appeal has been granted by law to certain organizations (e.g., environmental associations). The organization must either be affected itself or act in the general or collective interest, provided this is foreseen by law.
Right to lodge an appeal in family and guardianship law
In family law (Sections 58 et seq. FamFG) and guardianship law, the circle of persons entitled to lodge an appeal is deliberately broadened. In addition to those directly affected by a decision (e.g., parents, persons under guardianship), close relatives or other parties to the proceedings are also entitled to appeal under certain circumstances.
Right to lodge an appeal in constitutional law
A constitutional complaint before the Federal Constitutional Court (Section 90 BVerfGG) specifically requires the complainant to assert that they have been injured by public authority in a fundamental right or a right equivalent to a fundamental right (a “grievance” by an act of public authority).
Limitations and exclusion of the right to lodge an appeal
No right to appeal in the absence of a violation of rights
If there is no personal violation of rights, an appeal is inadmissible. This applies, for example, to mere witnesses or uninvolved third parties who are not affected in their own rights.
Exclusion by law
By law, certain remedies and thus the right to lodge an appeal can be expressly excluded or restricted. Such exclusions are often found in cases of trivial decisions or certain types of proceedings.
Significance of the right to lodge an appeal for legal protection
The right to lodge an appeal ensures access to higher instances and constitutes a central element of effective legal protection. It ensures that only parties actually affected can file legal remedies, thereby also serving to protect against the abusive use of judicial resources.
Literature and further sources
- ZPO, Commentary (current edition)
- VwGO, Commentary (current edition)
- SGG, Commentary (current edition)
- BVerfGG, Commentary (current edition)
- Meyer-Goßner/Schmitt, StPO, Commentary
Note: The right to lodge an appeal is a complex and cross-procedural concept whose precise form must always be determined on a case-by-case basis by reference to the relevant procedural norms. A more in-depth examination of the legal requirements is essential when lodging legal remedies.
Frequently asked questions
Who is legally entitled to lodge an appeal?
In principle, a person is entitled to appeal if they are directly affected or aggrieved in their own rights by an administrative or judicial decision. Legal systems, such as German administrative law (Section 42 (2) VwGO), generally link the right to appeal to the assertion of a violation of one’s own subjective rights. It is usually sufficient if the person concerned plausibly sets out why the decision infringes a legally protected interest; an actual violation of rights only needs to be proven in the course of substantive review. Direct involvement and the absence of grounds for exclusion (e.g., waiver of rights or expiration of deadlines) are also mandatory prerequisites. In particular situations, legal entities or associations may also have the right to lodge an appeal if they are affected in accordance with their statutes and objectives.
Can third parties who are not directly affected also file an appeal?
As a rule, the right to appeal is not available to third parties who are affected solely in general or indirect interests. According to prevailing opinion, the right to appeal is strictly tied to a qualified personal impairment of rights; mere side effects or general legal interests are insufficient. An exception may exist in so-called third-party challenges if a third party is demonstrably impaired in specific, legally recognized positions, such as in neighbor protection under construction law. Even then, it must be carefully assessed in each individual case whether there is a sufficiently affected, individually attributable, and legally protected position.
How important are deadlines for the right to lodge an appeal?
Observing statutory or official deadlines is essential for exercising the right to appeal. If the person entitled to appeal misses the relevant deadline, the right to file an appeal is generally lost unless there are grounds for reinstatement expressly provided by law. The exact deadline is determined by the relevant procedural code (e.g., Section 63 VwGO, Section 355 (1) AO, Section 147 VwVG) and usually begins with the notification of the decision. The effective delivery, as well as any suspensions or interruptions of the deadline, must also be considered on a case-by-case basis.
Can the right to lodge an appeal be transferred or assigned?
Transfer or assignment of the right to appeal is generally excluded, as it is a highly personal right. Only in exceptional cases, such as universal succession—in particular, inheritance—does the right to appeal pass to the successor in title. In the case of party representation, the original entitlement remains with the person concerned, even if an authorized representative acts; a separate assignment of the entitlement is not legally provided.
Does the right to lodge an appeal also exist for minors or persons lacking legal capacity?
Minors and persons lacking legal capacity as defined by Section 104 BGB can, in principle, be entitled to lodge an appeal if they are affected by a decision in their own rights. However, the exercise of this right must be carried out by their legal representative (e.g., parents, guardian, custodian). Incapacity to pursue legal remedies does not mean exclusion from legal protection, but only that rights are exercised by the authorized representative.
How is the right to lodge an appeal examined in administrative proceedings?
In administrative proceedings, the examination of the right to appeal generally takes place before considering the substance of the case, as it is a prerequisite for the admissibility of the legal remedy. Administrative authorities and, in particular, courts assess whether the submission originates from a person whose rights may be affected by the contested measure. This so-called ‘possible violation of rights’ is initially sufficient to affirm the admissibility of the appeal; only in the further course is it determined whether an actual violation of rights exists.
What happens if several persons are jointly aggrieved?
If several persons are affected by the same decision in their own rights, each affected person generally has an individual right to appeal. In certain cases, however, a joint appeal, such as in the form of accession or third-party intervention, is permissible. In mass proceedings, this can result in the joinder of parties, but the individual right to appeal must be examined separately for each natural or legal person.
What are the legal consequences of the absence of the right to lodge an appeal?
If the right to lodge an appeal is lacking, the appeal must be rejected as inadmissible. The court or authority examines this ex officio and independently of the parties’ submissions. A decision on the merits is not given in such cases. The absence of this admissibility requirement has absolute effect and can be reviewed at any stage of the procedure. Subsequent rectification is excluded except in cases of legal succession.
