GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
The law on the new Commercial Courts and Commer- cial Chambers, which came into force on 1 April 2025, explicitly provides for an early organisational meeting (Case Management Conference) at which agreements can be reached on the structuring and conduct of the proceedings (see 1.2 Court System ). 7.3 Jury Trials in Civil Cases There are no jury trials in civil cases in Germany. 7.4 Rules That Govern Admission of Evidence In civil proceedings, each party is responsible for pre- senting the evidence in support of its case. The court will only consider evidence submitted by the parties and will not investigate the facts itself. Therefore, the initial written pleadings of the parties must already contain detailed factual statements and specify the evidence on which the party intends to rely. There are five types of evidence under German civil procedural law: documents, inspection by the court, witness tes- timony, expert opinions and party testimonies. Comparative Analysis To streamline the proceedings, the court will only take evidence relevant to the decision on the case. By applying the method of “comparative analysis”, the court determines which facts are relevant for the reso- lution of the case, which of those facts are undisputed and which are contested. The court then determines which party bears the burden of proving the facts in question and which evidence is offered by that party. Documents are by far the most important evidentiary means in German litigation. If the court concludes that facts must be proved by hearing witnesses or obtaining an expert opinion, it will list the facts in question together with an indication of which party bears the burden of proof for the dis- puted fact in a procedural order, order the witnesses to appear before the court, and/or select an appro- priate expert and instruct them to draw up a written expert opinion and then appear before the court for questioning. Evaluating Evidence The court evaluates the evidence obtained and then makes a factual determination based on that evidence. It may evaluate most forms of evidence according to
its sound judgment and common sense, without being bound by rules for the evaluation of evidence. The court is obliged to review all facts presented by the parties and all evidence comprehensively when mak- ing a decision. The standard of proof in civil cases is strict, in that the court must be “fully convinced” that a particular dis- puted fact is true in order to base its judgment on that fact. This means that the court must be sure, with a practically viable level of certainty that silences doubt without completely eliminating it. A lower standard of proof may apply to damage and causal links. 7.5 Expert Testimony If the determination or the assessment of certain facts requires expertise, the court may appoint an independent expert. The expert serves as the court’s objective and impartial assistant. If the parties them- selves submit written expert opinions, these opinions are not treated as expert evidence but as part of the party’s pleadings. To prove the factual assertion made in such an expert opinion, the party must submit a request to the court to appoint an independent expert to confirm the assertion. Only the evidence submitted by a court-appointed expert constitutes evidence by expert testimony. Experts usually submit their expert opinions in writing. The parties have the opportunity to comment on the expert’s findings, request that additional questions be put to the expert and apply to the court to summon the expert to an oral hearing to be questioned on their written opinion. The court has discretion to evaluate the expert testimony. In practice, it is very rare for a court to deviate from an opinion rendered by a court- appointed expert. 7.6 Extent to Which Hearings Are Open to the Public Oral hearings are open to the public. In exceptional cases, the court may order the exclusion of the public at the request of one of the parties. In commercial matters, the discussion of business or trade secrets may be a reason for this exclusion. The court may also formally order all persons who participate in the hearing to maintain strict confidentiality.
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