Definition and Significance of Withdrawal of Complaint
The withdrawal of complaint is a central concept in German civil procedure law and refers to the unilateral procedural declaration by the plaintiff to end the legal proceedings initiated by them, without a substantive decision by the court. Through the withdrawal, the proceedings are generally reverted to the state they were in before lis pendens (pendency of the suit); that is, the effects of lis pendens cease to apply.
Legal Basis for Withdrawal of Complaint
Code of Civil Procedure (ZPO)
The relevant rules regarding withdrawal of complaint are contained in the German Code of Civil Procedure (ZPO). According to Section 269 ZPO, the plaintiff may withdraw the complaint without the defendant’s consent up to the beginning of the oral hearing. After this point, withdrawal is only possible with the defendant’s consent.
Scope of Application in Other Types of Proceedings
Comparable rules regarding withdrawal of claims exist in other areas of law, such as administrative proceedings (§ 92 VwGO), social court proceedings (§ 102 SGG), or labor court proceedings (§ 54 ArbGG in conjunction with § 269 ZPO).
Form and Procedure of Withdrawal of Complaint
Declaration of Withdrawal
Withdrawal of complaint must be declared to the court. No particular form is required; it may be submitted in writing or recorded with the court registry. For reasons of legal certainty and verifiability, the written form is recommended.
Timing and Requirement of Consent
Before the start of the oral hearing, the plaintiff may withdraw the complaint by simple declaration, without a formal application or the defendant’s consent. Once the oral hearing has begun, explicit consent of the defendant is required for withdrawal. This is intended to prevent a plaintiff from unilaterally ending proceedings after the defendant has already incurred significant procedural expense.
Special Features Where There Are Multiple Plaintiffs or Defendants
If there are multiple plaintiffs involved, in principle, each may only withdraw the complaint with respect to their own claim. In the case of a joinder of parties, withdrawal of individual claims may be permissible.
Legal Consequences of Withdrawal of Complaint
Termination of Proceedings
With an effective withdrawal of complaint, the proceedings are concluded without a substantive decision. The court confirms this by order. No formal judgment is issued. Withdrawal generally does not prevent the same claim from being filed again, unless another rule applies (e.g., withdrawal after the case becomes pending before the court).
Consequences for Costs
Pursuant to Section 269 paragraph 3 ZPO, the plaintiff is generally responsible for costs upon withdrawal, unless the parties have agreed otherwise. In particular, the plaintiff is required to bear the court costs and the defendant’s extrajudicial costs incurred up to the point of withdrawal.
Effects on Lis Pendens
With the withdrawal of complaint, lis pendens lapses. Lis pendens refers to the procedural binding of the claim to the court and the dispute between the parties. Through the withdrawal, the procedural effects of lis pendens are retroactively annulled, so the claim can generally be asserted again.
Exception: Alternative Withdrawal of Complaint
If the court has already scheduled a date for the announcement of a decision or if the matter is otherwise ready for decision, withdrawal of the complaint may be ineffective even with the defendant’s consent (§ 269(5) ZPO). In such cases, the proceedings continue and a substantive decision is rendered.
Distinction From Other Forms of Terminating Proceedings
Withdrawal of Complaint versus Waiver of Action
While withdrawal of complaint ends proceedings without a conclusive decision, allowing the claim to be asserted again, a waiver of action results in the permanent loss of the claim. The waiver of action can be declared after lis pendens and concludes the proceedings with a substantive court judgment.
Withdrawal of Complaint versus Declaration of Settlement
Additionally, a declaration of settlement may also conclude proceedings, particularly if the subject matter of the dispute has ceased during the process. In contrast to withdrawal of complaint, here the court is asked to declare the matter settled, with a final decision on costs rendered by the court.
Special Features in Withdrawal Proceedings
No Binding Effect on the Defendant
Withdrawal of complaint is generally a unilateral procedural act by the plaintiff. Except for the need for consent after the start of the oral hearing, it does not require the defendant’s participation or consent.
Binding Effect of Withdrawal
After the withdrawal is declared, the plaintiff is generally no longer able to unilaterally revoke the declaration. Exceptionally, withdrawals may be contested under the strict conditions of § 269 ZPO (e.g., challenge due to error).
Effect Toward Third Parties and Participants
If a third party has participated in the proceedings (e.g. an intervenor), the withdrawal also has effect against that third party. Special circumstances may apply in class actions, model declaratory actions, or association actions.
Literature and Sources
- Zöller: Code of Civil Procedure, Commentary
- Musielak/Voit, ZPO Commentary
- Rosenberg/Schwab/Gottwald: Civil Procedure Law
- Thomas/Putzo: Code of Civil Procedure
Conclusion
Withdrawal of complaint is an important instrument for terminating proceedings in German procedural law. It enables the plaintiff to end legal proceedings without a substantive decision and, under certain conditions, even without the defendant’s consent. Withdrawal of complaint entails specific legal consequences with regard to reassertion, allocation of costs, and the effects on lis pendens. Strict compliance with the statutory requirements and procedural rules is crucial for effective withdrawal of complaint.
Frequently Asked Questions
What are the legal consequences of withdrawing a complaint?
Withdrawing a complaint generally results in the termination of the pending proceedings, and the court will no longer issue a substantive decision. By withdrawing, the plaintiff loses all procedural rights acquired through the filing of the complaint up to that point. In particular, the lis pendens of the disputed claims lapses, so they could be brought again unless there are substantive obstacles. The court reviews the effectiveness of the withdrawal ex officio and, if appropriate, terminates the proceedings accordingly (§ 269(3) ZPO for civil proceedings). Withdrawal is generally possible up to the end of the oral hearing; thereafter, the defendant’s consent is required. Withdrawal may also have cost consequences: the plaintiff typically bears the costs of the proceedings, even if any procedural fees have already accrued.
Can a withdrawal of complaint be revoked?
A properly declared withdrawal of complaint is generally binding and cannot be unilaterally revoked by the plaintiff. Upon receipt of the withdrawal declaration by the court, the plaintiff is bound by it (§ 269(1) ZPO). Revocation is fundamentally excluded. Only in exceptional cases—such as demonstrable intention defect due to threat, deception, or error—can the withdrawal be reversed according to the general principles of rescission under civil law. The rescission must be declared without undue delay and to the court (§ 121 BGB). If the rescission is timely and accepted, the proceedings may continue accordingly.
Is the defendant’s consent required for withdrawal of complaint?
Whether the defendant’s consent is required for withdrawal of complaint depends on the stage of the proceedings. Until service of the complaint, consent is not required and the plaintiff may withdraw freely. After service but before the start of the oral hearing, consent is also not required. However, after the start of the oral hearing, withdrawal of the complaint is permitted only with the defendant’s consent (§ 269(1) ZPO). The purpose of this rule is to protect the defendant from costs and effort already incurred during ongoing proceedings.
What costs does the plaintiff bear after withdrawing a complaint?
Section 269(3) sentence 2 ZPO regularly provides that, after withdrawal, the plaintiff bears the costs of the proceedings. This includes both court costs and the necessary extrajudicial costs (for example, attorney fees) of the defendant. Any advance payments already made are refunded or offset in the settlement. Exceptions to this cost rule are possible only by agreement with the defendant and the defendant’s express consent. In individual cases, the court may, at its reasonable discretion, order a different cost allocation—for instance, if special circumstances such as a short-term termination have caused hardly any costs.
Is a new complaint permissible after withdrawal?
A new complaint is generally possible because withdrawal does not cause substantive res judicata for the subject matter of the dispute. This means the plaintiff can file the proceedings anew, provided there are no special grounds for exclusion or another forfeiture (e.g., due to limitation). The first withdrawal does therefore not have the material effect of a judgment. However, renewed legal protection requires that there are no procedural or substantive obstacles from legislation or previously concluded settlements.
Is partial withdrawal of complaint possible?
Partial withdrawal is permissible and may occur if the plaintiff only wishes to cease pursuing part of the original claim. The same conditions as for complete withdrawal apply: during the proceedings until the conclusion of the oral hearing, it can be done unilaterally; thereafter, the defendant’s consent is required. The consequences regarding costs and res judicata apply proportionately to the withdrawn part and are legally identical to those of a total withdrawal.
What formal requirements must be observed for withdrawal of complaint?
Withdrawal of complaint is possible without form, but in practice it is usually made in writing or recorded in the registry or during the oral hearing before the court. The declaration must unequivocally and unmistakably express that the complaint as a whole or in part is no longer being pursued. An informal oral statement is insufficient as long as it has not been recorded or otherwise placed on file. The court generally confirms the withdrawal by order or procedural directive. It is always advisable to secure evidence of the declaration to avoid possible later disputes about its content and receipt.
