There are currently a number of diesel lawsuits underway in Germany. Most of them are being decided in favor of the Volkswagen Group or the dealers. However, there has not yet been a ruling from Germany’s highest court, the Federal Court of Justice.
Actual ruling from the Higher Regional Court in Braunschweig has made the possibility of a hearing this year before the Federal Court of Justice more likely. While the plaintiff’s appeal to the higher court was unsuccessful, the Volkswagen Group assumes that the plaintiff will appeal to the highest German court. It would be the first lawsuit directly against Volkswagen AG to be heard in the Federal Court of Justice or, as it called in German, the Bundesgerichtshof (or BGH, for short). We have therefore put together what you need to know about such proceedings at the BGH.
1. What exactly is going to be tried before the BGH?
Civil suits brought before the BGH are essentially revisions, appeals against denial of leave to appeal and appeals on a point of law.
The BGH examines the application of the law exclusively, i.e. whether the contested ruling was itself reached based on an error of law. The highest German court is bound by the facts established by the trial judge, unless they were introduced based on a procedural error. New facts are not considered on appeal, apart from very narrowly-defined exceptions.
2. What are the chances of success of an appeal before the BGH? And how long does it take for a ruling to be made?
Chance of success: The following conclusion can be drawn based on the interim statistics for the period November 1, 2017 until October 31, 2018:
During the period in question, a total of 742 appeals admitted by the Court of Appeals (regional or higher regional court) were ruled on. Of these, 92 judgment on the merits were ruled on, and 110 were concluded with a judgment and remanded back to the lower court (Paragraph 563 Civil Process Order). Those proceedings had for the plaintiff a success rate of 27 percent.
According to the annual statistics from 2017, a success rate of 23 percent for the plaintiff can be calculated for the entire year of 2017. Of the total of 755 decisions made on appeals admitted by the Court of Appeals, 81 were concluded with judgments on the merits and 98 were concluded with a judgment and remanded back to the lower court.
Duration of proceedings: The BGH has no information on the average duration of the appeals admitted by the Court of Appeals. However, the BGH does keep records of statistics regarding the number of cases concluded in each respective half year.
The data from the annual statistics for 2017 could be found on page 32, whereby the appeals in patent cases (line 11) should be subtracted.
According to this, five percent of the appeals allowed by the Court of Appeals were concluded within the first six months and 43 percent within a period of seven to twelve months. Another 30 percent were concluded within a period of 13 to 18 months, 10 percent within 19 to 24 months and only 12 percent concluded after more than 24 months.
3. Who can appear before the BGH?
The BGH requires legal representation, i.e. parties cannot represent themselves. Whereas all attorneys-at-law permitted to practice in Germany may appear before the criminal division – or senate – of the BGH, there are restrictions in the civil senate. Only 43 specially selected attorneys are allowed to act as legal representatives in legal disputes there. Only they are accredited by the Federal Court of Justice. All of them have their law offices in the city or regional district of Karlsruhe. The restriction of who can appear before the BGH’s civil senate is primarily intended to maintain the quality of the appeals process in civil cases in the interest of those involved.
4. What is the regular procedure during hearings before the BGH?
After the senate decides on the admissibility of the appeal, the chairperson sets the date for the oral hearing. The chairperson of the senate names a rapporteur who deals with the matter in writing at least one week before the hearing. As a rule, the rapporteur prepares the ruling by means of a written vote in the form of a draft verdict.
The BGH proceedings are generally open to the public.
The chairperson opens the proceedings and establishes that the participants are present. Then the senate introduces the status of the proceedings, i.e. it explains the case to be heard and what the parties demand. Furthermore, an opinion is given on the compliance with the admissibility requirements of the appeal. Then the BGH attorneys present their legal arguments in the case. As the BGH only checks rulings in regard to legal errors and does not review the facts of the case, no evidence such as witness testimony is presented. At the conclusion of the hearings, the senate usually sets a date for the ruling.
The decision on the appeal is made by the five members of the senate in a closed meeting, and the vote is determined by a simple majority. All votes carry the same weight. The BGH decisions are binding as soon as they are announced. There is no further legal recourse against them. If the appeal is successful, the ruling made previously by a regional or higher regional court is overturned.