GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
court. Which court has jurisdiction as the entry court usually depends on the value of the dis- pute, while special rules apply to certain mat- ters – eg, tenancy law or family law. The regional courts have special chambers for commercial matters. In very rare cases, higher regional courts may act as entry courts. Generally, it takes a few months from commenc- ing proceedings to get to trial. Appeals and Requests to the ECJ An appeal may be lodged against decisions of the entry courts with the competent (higher) regional court. Judgments handed down on first appeal may be appealed to the Federal Court of Justice. In pending proceedings, a German court may request an authoritative resolution by the Euro- pean Court of Justice on unresolved questions of European law material to the outcome of the case. The European Court of Justice has juris- diction only to answer the specific questions of European law and will not rule on the whole matter. In theory, the Federal Constitutional Court can overrule any civil judgment for a violation of the fundamental guarantees on civil procedure and substantive law in the German Basic Law. Such extraordinary objections on grounds of constitu- tional rights are, however, rarely granted. 1.3 Court Filings and Proceedings As a rule, the German Basic Law requires that court proceedings are open to the public. Restrictions and exceptions may apply – eg, to the protection of trade secrets, other secrets, the safety of a person or state interests.
Court records are not public. While any third par- ty may apply to the court for access to certain court files, such a request will be granted only if the applicant has a legitimate legal interest in inspecting the files. Judgments are only published in an edited and anonymous form. 1.4 Legal Representation in Court Only attorneys admitted to the German bar can represent a party before regional courts and higher regional courts. However, certain acts may be performed by the party itself at the court’s offices. Also, in cases where the Code of Civil Procedure does not require representation by lawyers, the parties may conduct the litigation themselves. With respect to the Federal Court of Justice, in civil cases only lawyers admitted to the specialised bar of this court may appear before it. Foreign lawyers can conduct cases in German courts if they have been admitted to the Ger- man bar. European lawyers can be admitted to the bar as Established European Lawyers who are entitled to practice as attorneys in Germany under the professional title of their country of origin. 2. Litigation Funding 2.1 Third-Party Litigation Funding Third-party litigation funding is becoming increasingly common. There are no legal regu- lations that deal directly with such funding. Its framework derives from statutes such as the Legal Services Act, the Federal Lawyers’ Act and the Lawyers’ Fees Act. It emerges from them, eg, that the funder is prohibited from providing legal advice to their client. In general, the funder
472 CHAMBERS.COM
Powered by FlippingBook