GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
4.5 Applications for Security for Defendant’s Costs In cases where the plaintiff is domiciled outside Ger- many, the EU or the EEA, the defendant may require the court to order the plaintiff to provide security for the defendant’s costs, unless an international conven- tion provides otherwise. If a plaintiff who is obliged to provide a security refuses to do so, the action will be dismissed. In proceedings for interim injunctions, the defendant is generally unable to claim such security for costs. 4.6 Costs of Interim Applications/Motions As a rule, the unsuccessful party bears the costs of the proceedings. The costs of an action are allocated between the parties according to the outcome of the case. This general rule also applies to the costs of interim applications/motions. 4.7 Application/Motion Timeframe The timeframe for the processing of an application by the court depends on the quantity and complexity of the issue to be examined. Courts have the general obligation to expedite the proceedings by law. If pos- sible, the court should close the case within one single oral hearing. The court is then generally obliged to give a final judgment within three weeks of the conclu- sion of the oral hearing. The concept of discovery does not exist in German civil cases. Each party usually bears the burden of proof for the facts on which the party’s claim or defence is based. In certain circumstances the burden of proof lies with the other party. Each party decides for itself which facts and documents are submitted to the court. No rule obliges a party to disclose all avail- able information that might be relevant to the case. However, the information provided to the court must be true and correct. Consequently, German law does not provide tools for discovery. However, there are some disclosure obli- gations to which a party may be subject – eg, if the 5. Discovery 5.1 Discovery and Civil Cases
A special form of this judgment under reservation is the judgment in summary proceedings based on doc- umentary evidence or on a bill of exchange. In these proceedings, the parties may rely only on documents and party testimony for evidence. All other means of evidence are excluded, and counteractions are not permitted. However, even after a judgment under res- ervation has been rendered, the proceedings remain pending and the defendant may raise objections and submit evidence at a later stage of the proceedings, without the limitations of the evidentiary means. Such expeditious proceedings therefore entail a risk for the plaintiff that the judgment under reservation will be set aside at a later stage. If the plaintiff has enforced the judgment under reservation, it is liable to the defend- ant for all damages resulting from such enforcement on a no-fault basis. 4.3 Dispositive Motions German procedural law offers specific objections a defendant can raise to prevent the court from hearing a case at all; for example, if a valid arbitration clause covers the matter in dispute, the court must dismiss the claim without looking at the substantive facts of the dispute. 4.4 Requirements for Interested Parties to Join a Lawsuit If a new plaintiff wishes to join a pending lawsuit, the existing plaintiff, and possibly also the defendant, must declare their consent to the joining. Subsequent participation in an action as a defendant is only pos- sible if the plaintiff expressly sues the other defendant. A person who is not a party to the original lawsuit may intervene in the proceedings to support the position of one of the parties whose success or defeat will legally affect the interests of the intervener. Such a third-party intervention can be filed at any stage of the proceedings before the judgment becomes final. An intervener does not become a formal party to the proceedings but may act only in the interest of the party whom it assists. The intervener is not legally bound by the judgment. However, in a subsequent action between the inter- vener and the party it supports, the intervener is largely prohibited from arguing that the judgment is incorrect.
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