GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
defendant, must declare their consent to the joining. Subsequent participation in an action as a defendant is only possible if the plaintiff expressly sues the other defendant. A person who is not a party to the original law- suit 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 judg- ment. However, in a subsequent action between the intervener and the party it supports, the intervener is largely prohibited from arguing that the judgment is incorrect. 4.5 Applications for Security for Defendant’s Costs In cases where the plaintiff is domiciled outside Germany, 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 convention 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 defend- ant 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 applica- tion by the court depends on the quantity and complexity of the issue to be examined. Courts have the general obligation to expedite the pro- ceedings by law. If possible, 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 conclusion of the oral hearing. The concept of discovery does not exist in Ger- man 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 circum- stances 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 available infor- mation that might be relevant to the case. How- ever, the information provided to the court must be true and correct. 5. Discovery 5.1 Discovery and Civil Cases Consequently, German law does not provide tools for discovery. However, there are some disclosure obligations to which a party may be subject – eg, if the opposing party is in posses- sion of a certain relevant document. German substantive law or contractual agree- ments may also grant a party a legal claim against the opposing party for disclosure of certain information that is not otherwise avail- able. Such a claim may be asserted in court. A special form of such proceedings is the action
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