GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
10.3 Procedure for Taking an Appeal The first appeal is only available to a party that is burdened by a judgment. It is only admissible if the value of the appeal exceeds EUR600. Oth- erwise, the entry court may allow an appeal by certifying its judgment for appeal. A first appeal is lodged with the appellate court by submitting a statement of appeal within one month of ser- vice of the full version of the judgment. The grounds for appeal are generally set out in a subsequent written pleading, which must be filed no later than two months after service of the judgment, but may be extended. The appellee may then submit a written pleading defending the judgment appealed. If the appeal is inad- missible or if the appellate court finds that it has no chance of success on the merits and that an appellate judgment is not relevant for simi- lar cases or for the development of the law, the appellate court dismisses the appeal by court order without an oral hearing, otherwise it will render a judgment after an oral hearing. A second appeal is admissible if the appel- late court expressly admits it in its judgment. Otherwise, the appellant may file a complaint against the refusal to grant leave for the second appeal within one month of service of the appel- late judgment. Both the second appeal and the complaint are admissible only if the value of the second appeal exceeds EUR20,000. Complaints against the refusal to grant leave for the second appeal are usually unsuccessful. 10.4 Issues Considered by the Appeal Court at an Appeal The purpose of the first appeal is the review of the judgment and the correction of any errors of law and fact made by the entry court. The appellate court is in principle bound by the factual findings of the lower court, unless these are erroneous.
The appellant may base its appeal on concrete indications which cast doubt on the correctness and completeness of the factual findings in the judgment, a violation of procedural or substan- tive law, or – in very limited circumstances – new evidence, if such evidence could not have been provided in the first instance. The second appeal is a review only on points of law. It is designed primarily not to obtain cor- rect judgments in individual cases, but to render decisions on issues of law which are important for the entire system of justice. The Federal Court of Justice must accept the factual find- ings of the lower courts as correct in principle and will examine only whether the contested judgment is based on a violation of procedural or substantive law. 10.5 Court-Imposed Conditions on Granting an Appeal The entry court cannot impose conditions on granting an appeal. A second appeal is only admissible if the appellate court expressly admits a second appeal in its judgment. An appeal on points of law is to be admitted if the legal mat- ter is of fundamental importance for the further development of the law or if the maintenance of consistency in court rulings requires a decision of the Federal Court of Justice. The appellate court cannot impose any additional conditions for the granting of a second appeal. 10.6 Powers of the Appellate Court After an Appeal Hearing The appellate court may dismiss or grant the appeal. If the appeal is granted, the appellate court will usually replace the judgment of the lower court with its own judgment. At the request of one of the parties, the appellate court may also remit the case to the court of first instance for further proceedings.
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