GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
• declaratory judgments in which the court confirms if a specific legal relationship exists or not under the condition that the plaintiff can show a certain interest as regards the declaration; and • judgments directly altering a legal relationship – eg, the exclusion of a shareholder. 9.2 Rules Regarding Damages With a few exceptions, courts only award dam- ages to the extent expressly claimed and quanti- fied by the plaintiff (ne ultra petita). German law understands damage as an invol- untary loss of property. If such loss occurs, the damaged party can, in principle, demand the natural restoration of the status before the harm - ful conduct/event. In theory, monetary relief for a loss is treated as an exception to this principle of natural restoration. However, if damage occurs to a person/an object, the injured party may alternatively claim the amount of money neces- sary for the restoration. Furthermore, if the res- toration of the status prior to the occurrence of the harmful conduct/event is not possible or suf- ficient, the injured party may immediately claim the sum of money necessary for the restoration. The common practice is financial compensation for loss or damage. In addition, an injured party may claim compen- sation for future losses due to loss of profit. The courts apply strict rules regarding the substan- tiation of the profits that would have accrued in the absence of the harmful conduct/event. Furthermore, a plaintiff may claim compensation for immaterial losses, such as pain or damage to reputation. Such compensation is usually grant- ed only if expressly provided for by law.
Punitive damages that add a penalty element are generally not awarded under German sub- stantive law due to the principle of restoring the situation prior to the harmful conduct/event. However, punitive damages are awarded if the parties to the dispute agreed on a contractual penalty. Such punitive damages are well known in competition law. 9.3 Pre-judgment and Post-judgment Interest According to the basic principle of ne ultra petita, interest is granted only if the plaintiff has expressly claimed that interest. For monetary claims, the plaintiff generally claims interest from the date of service of the statement of claim at five percentage points above the base rate, or nine percentage points above the base rate for certain disputes with non-consumers. In addition, if the defendant is in default of pay- ment, the plaintiff may claim interest before ser- vice of the statement of claim. Such delay usu- ally requires that the claim has become due and the plaintiff has requested performance before filing the statement of claim. If the court grants interest, it will be calculated until the date of payment of the claim. 9.4 Enforcement Mechanisms of a Domestic Judgment The means of enforcement depends on the judgment to be enforced and the nature of the assets against which enforcement is sought. In the case of pecuniary claims, the garnishment of monetary claims or other proprietary interests, the execution against real property or tangible personal property are typical means of enforcing judgments. Execution titles for specific perfor- mance can be enforced by eviction, substitute performance or the imposition of penalties.
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