Withdrawal of the lawsuit
The withdrawal of the lawsuit is a significant term in German civil procedural law, describing the complete or partial termination of court proceedings initiated by a lawsuit by the plaintiff. The provisions for the withdrawal of lawsuits are particularly regulated in Sections 269 and 269a of the Code of Civil Procedure (ZPO). The withdrawal of the lawsuit has far-reaching procedural and substantive effects, which are explained in detail below.
Definition and legal classification
Definition
The withdrawal of the lawsuit refers to the express declaration by the plaintiff that the initiated judicial proceedings regarding the asserted claim will not be continued. This retroactively creates the assumption as if the proceedings, including the lawsuit, had never been pending.
Distinction from settlement of the principal matter and waiver of the claim
Withdrawal of the lawsuit must be distinguished from the settlement of the principal matter, where the parties declare the dispute to be without object. In contrast, waiving a claim is a substantive legal abandonment of the asserted claim and is binding for the future, whereas a withdrawn lawsuit can generally be filed again.
Requirements and procedure for withdrawal of a lawsuit
Timing and form
A lawsuit may generally be withdrawn at any time until a final binding decision has been made regarding the subject matter of the dispute. Withdrawal is possible even before the lawsuit is served, during the proceedings, and after a first-instance decision, provided it is not yet final. According to Section 269(1) ZPO, the declaration of withdrawal must be unconditional and is generally not permitted to be made subject to conditions. It may be made informally, either orally by entering it in the court record, or by written submission to the court.
Before and after the oral hearing (Sections 269 (1) and (2) ZPO)
- Before pendency or before the first oral hearing: Withdrawal of the lawsuit does not require the consent of the defendant.
- After commencement of the oral hearing: The consent of the defendant is required. However, pursuant to Section 269(2) sentence 3 ZPO, this may be refused within two weeks after notification of the withdrawal declaration.
Effects of withdrawal of the lawsuit
Impact on the proceedings
With the effective withdrawal, the pendency of the process lapses retroactively (Section 269(3) sentence 1 ZPO). The case is deemed to have never been pending.
Substantive res judicata
Withdrawal of the lawsuit does not affect substantive res judicata. It does not result in a final dismissal of the asserted claim, so a new lawsuit remains possible, provided there are no further procedural obstacles.
Consequences for costs
According to Section 269(3) sentences 2 and 3 ZPO, the plaintiff is obliged to bear the costs of the proceedings. The court decides on the costs in a cost assessment order. It is particularly important to note that out-of-court costs incurred prior to the withdrawal must also be borne by the plaintiff.
Special case constellations
Partial withdrawal of the lawsuit
Withdrawal is not limited exclusively to the entire lawsuit; it may also relate to a part of the subject matter in dispute (partial withdrawal under Section 269 ZPO analogously). The part of the lawsuit that remains pending is not affected.
Withdrawal after admission or waiver
If the defendant has previously made an admission or if a judgment has been entered concerning a waiver of the claim, withdrawal of the lawsuit is no longer possible. The formal termination of the process by such procedural acts excludes any subsequent withdrawal.
Special procedural situations
Withdrawal of the lawsuit in payment order proceedings
Withdrawal of the lawsuit is also permissible in the simplified proceedings under Sections 688 et seq. ZPO. If the proceedings are transferred from payment order to contentious proceedings, the general rules for lawsuit withdrawal apply accordingly.
Withdrawal of the lawsuit in labor court proceedings
In proceedings under the Labor Court Act (ArbGG), the regulation on withdrawal also applies. The consent of the defendant is also required here if the withdrawal occurs after the commencement of the oral hearing.
Withdrawal of additional claims and counterclaims
According to Section 269 ZPO, withdrawal of a counterclaim is also possible. The relevant requirements and effects are aligned with those of the primary claim. The same applies correspondingly to so-called additional claims.
Withdrawal of lawsuits in special types of proceedings
Administrative proceedings
In administrative proceedings (Section 92 of the Administrative Court Rules – VwGO), withdrawal of the lawsuit is also provided for. Here too, withdrawal can generally be declared until the judgment becomes final, and has similar legal effects.
Social court proceedings
Withdrawal of the lawsuit with identical effects is also permissible in social court proceedings (Section 102 Social Court Act – SGG). The decision on costs is governed by the relevant procedural law.
Criminal proceedings
In criminal procedure law (Section 149 Code of Criminal Procedure – StPO), withdrawal of a lawsuit by the public prosecutor may be possible prior to the opening of the main proceedings, although particularities must be observed.
Withdrawal of the lawsuit and restoration of the previous state
In connection with the withdrawal of the lawsuit, restoration to the previous state may be considered under certain narrow conditions, for example, if withdrawal occurred mistakenly or without the plaintiff’s intention, such as through procedural error.
Conclusion
Withdrawal of the lawsuit is an essential procedural right of disposition in German procedural law. It terminates court proceedings at the initiative of the plaintiff and results in the proceedings being treated as if they were never pending. The provisions ensure procedural balance, in particular by taking account of the interests of the defendant. Withdrawal is associated with significant procedural and cost-related consequences. Understanding the legal basis and particularities is indispensable for proper conduct of proceedings.
Frequently asked questions
What requirements must be met for withdrawal of a lawsuit?
Generally, withdrawal of a lawsuit requires that, at the time of withdrawal, the lawsuit is still pending before the court, i.e., that proceedings are ongoing and no final, binding decision has yet been rendered on the dispute. Withdrawal is effected by an explicit statement by the plaintiff to the court. In certain cases, especially after service of the claim on the defendant, withdrawal further requires the defendant’s consent (§ 269(1) ZPO). The defendant’s consent can be waived in exceptional cases, for example, if the defendant does not object to the withdrawal or in cases of application withdrawal in administrative proceedings. Furthermore, the withdrawal must not infringe on the rights of third parties.
What are the legal consequences of withdrawing a lawsuit?
Withdrawal of the lawsuit in civil proceedings results in the case being treated as if it had never been pending. This means that all procedural effects of pendency lapse, such as interruption of limitation periods (Section 204(2) BGB) or exclusive effects for parallel proceedings. Furthermore, after withdrawal of the lawsuit, the court usually only decides on the costs of the proceedings, and in general, the plaintiff must bear all costs (Section 269(3) ZPO). However, substantively, the underlying claim remains unaffected by withdrawal, so the plaintiff may in principle bring the same claim again.
Is it possible to withdraw a lawsuit after the conclusion of the oral hearing?
Under German civil procedural law, withdrawal of the lawsuit is generally allowed up until the judgment becomes final. However, after the conclusion of the oral hearing, withdrawal may only occur with the defendant’s consent (§ 269(1) ZPO). This serves to protect the defendant, who gains a legitimate interest in a judicial decision after the main hearing has closed. In rare exceptions, withdrawal without the defendant’s consent is permitted, such as in cases of default judgments, but this is the exception and is subject to special procedural requirements.
What are the formal requirements for withdrawal of a lawsuit?
The declaration withdrawing the lawsuit is a procedural act and may be made either in writing or entered orally in the record during the hearing. It must be addressed to the court and not to the other party. If the withdrawal is not declared during a hearing, it must be submitted in writing. It is advisable to clearly specify the case number and the specific application to avoid misunderstandings. Where the defendant’s consent is required, this should also be obtained or documented in writing.
Can procedural costs be imposed on the defendant after withdrawal of the lawsuit?
According to Section 269(3) sentence 2 ZPO, after withdrawal of the lawsuit, the plaintiff must generally bear all costs of the legal dispute. An exception applies only if the defendant gave rise to the lawsuit and the costs should therefore be distributed differently on grounds of fairness. In that case, the court may impose all or part of the costs on the defendant. There is also the possibility of an amicable cost agreement between the parties, provided both agree and notify the court accordingly.
Can a lawsuit that has already been withdrawn be refiled?
As a rule, it is possible to file a new lawsuit in the same matter after withdrawal, since withdrawal does not result in substantive preclusion. However, this does not apply if enforcement of the claim has meanwhile become time-barred or is precluded for other substantive legal reasons. It is important to note that a renewed lawsuit is an independent legal action and all procedural requirements must again be met.
How does the withdrawal of a lawsuit affect interlocutory decisions already made?
Procedural decisions already made, such as interlocutory judgments, orders on evidence, or rejections of applications, generally remain effective within the concluded proceedings. However, with the withdrawal of the lawsuit, the main proceedings are terminated; the interlocutory decisions do not have any binding effect beyond that for any possible future lawsuits, unless a final and binding ruling on a preliminary issue exists. In the event of a repeated lawsuit, preclusion of certain claims or defenses may apply if they were already dealt with in the first proceedings.
