We can represent your interests in a German court if you, as a Dutch party, have received a German summons or other German procedural document or if you yourself wish to bring proceedings against a German counterparty in a German court.
In the following, we provide some information about the various legal procedures in Germany, how these actions proceed in German court and practical matters such as costs and legal representation.
Proceedings in first instance take place before the Landgericht or the Amtsgericht.
The Amtsgericht is a local court, somewhat comparable to a county court in England or a Dutch subdistrict court. The Amtsgericht automatically has jurisdiction in certain matters, including cases involving financial claims of up to EUR 5,000 and tenancy and family cases.
The Landgericht has jurisdiction in all other cases. The Landgericht is made up of sections called Kammers: a general civil section and a general criminal section. Within these sections, there are a number of specialist subsections, such as the Kammer für Handelssachen (section for commercial matters).
Parties in proceedings before the Amtsgericht are not obligated to be represented by a German attorney (Rechtsanwalt (male) or Rechtsanwältin (female)), although this is always recommended. For proceedings before the Landgericht or a higher court, however, legal representation is mandatory.
Our firm works on the basis of hourly rates in accordance with the experience of the lawyers doing the work. Our work is billed by the hour, and this also applies for legal matters under German law.
A German lawyer is obliged to charge a minimum fee in proceedings before the German courts according to the German law on laywer’s fees (Rechtsanwaltsvergütungsgesetz). This fee depends on the financial stakes involved in the case (in German: the Gegenstandswert). This means that you are obliged to pay the minimum fee, even if our invoice based on our hourly rate is lower than the legally required minimum fee. If you are found to be fully in the right in the German proceedings, the other party is obliged to compensate you for this statutory minimum fee. The other party is not obliged to reimburse costs based on our hourly rate in excess of the minimum fee. The same applies to you if you lose the case. This means that, if you litigate in a case that involves a lot of hours in legal support, and in which your chances of success are limited, you are exposing yourself to financial risk.
The amount of the court fees (Gerichtkosten) also depends on the financial amount of the claim involved in the case. Unlike in the Netherlands, if you settle before the proceedings reach their conclusion in Germany, you will only have to pay part of the court fees.
If you have legal aid insurance, you are well advised to check whether the costs of proceedings in Germany are covered.
A normal lawsuit in German court (a Klageverfahren) is initiated with a Klageschrift, the German form of a summons. A German summons differs greatly from the corresponding ‘claim form’ in the Dutch system. The German claim form begins with a list of the claim or claims, followed by the factual and legal substantiation. On a Dutch summons, this is the other way around.
The claiming party must then pay the court registry fees. If we are handling your case, we will arrange this payment for you.
In Germany, the court handles the service of the summons on the other party (in the Netherlands, this is the claiming party’s responsibility).
The opposing party files its defence in a document called the Klageerwiderung, and may also file a counterclaim (Widerklage).
The German court determines how the proceedings continue from there. For example, the judge may invite the parties to submit further written arguments, but it may also proceed directly to scheduling an oral hearing. Unlike in the Netherlands, the parties cannot block out dates on which they are prevented’ from attending the oral hearing.
A German judge takes an active approach and, unlike a Dutch judge, will often give indications of what they think of the case, both in writing and during the oral proceedings. They will also make suggestions to the parties as to what the content of a settlement might be. A settlement can be included in an official court report.
An appeal against a judgment of the Amtsgerichtis heard by the Landgericht. The Landgericht’s judgment can be appealed before the Oberlandesgericht. The Oberlandesgericht is comparable to the appeal court in the Netherlands (the gerechtshof).
If you want to appeal a decision of the Landgericht (court of first instance), this appeal is heard before the Oberlandesgericht. Cassation can be brought before the Federal Court of Justice (Bundesgerichtshof). The Bundesgerichtshof is comparable to the Supreme Court in the Netherlands.
The appeal period is one month from the time of service of the judgment. This is shorter than in the Netherlands, where the appeal period in normal proceedings is three months from the time the judgment is delivered.
German procedural law has a simple procedure for uncontested financial claims: the Mahnverfahren. This is the procedure commonly used for debt collection. The claims court (Mahngericht) is an Amtsgericht and has competence in this regard. As a creditor, you only need to state the claim and do not need to substantiate it. The court does not examine the legality of the claim. The debtor receives a Mahnbescheid, which constitutes notification to the debtor of the Mahnverfahren.
The Mahnbescheid can be opposed within two weeks of receipt by filing a Widerspruch. The Mahnverfahren then becomes a normal court case, in which the creditor has to substantiate the claim and the debtor can defend themselves.
After the expiry of the opposition period, an enforcement order (Vollstreckungsbescheid) can be requested. This can also be opposed within two weeks of receipt (in an Einspruch), which also leads to the Mahnverfahren becoming a normal procedure.
The court fees for a Mahnverfahren are lower than for normal proceedings.
Additionally, as in any EU country, the European equivalent of the Mahnverfahren, namely the European Payment Order, can be requested in Germany.
An Urkundenprozess is a simplified normal court case that can be used when evidence can be provided purely in the form of documents. Witnesses and experts are not needed
An Eilverfahren is a form of injunctive relief proceedings in which you can unilaterally request the court to grant injunctive relief (einstweilige Verfügung). One difference between the Eilverfahren and the Dutch form of injunctive relief proceedings (kort geding) is that the German court may decide not to hear the other party. The purpose of an Eilverfahren is to prevent the claiming party from suffering irreversible damages.
An Arrestverfahren is an urgent procedure for provisional and precautionary measures and is therefore similar to the petition procedure that can be followed in the Netherlands for the purposes of a prejudgment attachment. The requirements under this procedure are much stricter than in the Netherlands, however, and so it is rarely used in practice. However, note that a simple precautionary bank seizure can be made on a debtor’s bank account anywhere in the European Union, including in Germany, on the basis of a European order for the attachment of bank accounts.
With an einstweilige Verfügung, it is sometimes possible to achieve the same result as with a prejudgment attachment by imposing certain injunctions on the other party (e.g. an injunction on the sale of products).
If you want to enforce a German judgment in the Netherlands (or in Germany), you must first request a special ‘enforcement copy’ of the judgment (vollstreckbare Ausfertigung) from the German court. The judgment will not include a costs ruling. This must be requested separately together with vollstreckbare Ausfertigung.
German judgments are recognised in the Netherlands and can be enforced by a Dutch process server after service without any additional procedure. The Dutch process server needs a number of documents for this:
The further course of the enforcement procedure is governed by Dutch law.
The enforcement of German judgments in Germany is carried out after service by the process server (Gerichtsvollzieher) or by the court’s enforcement section (Vollstreckungsgericht). The process server has the power to seize movable property in attachment proceedings. The court has competence in cases involving the attachment of claims, immovable property or other assets.
Enforcement of a judgment in Germany is less expensive than in the Netherlands, but it proceeds more slowly. The process server and the court are civil servants. In the Netherlands, process servers are commercial parties.
If you do not know which of the debtor’s assets you can recover, German law has a number of tools to help you find out.
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