GER: No Appeal Success – Court to Provide Information

Sept 20, 2024 Benn-Ibler Rechtsanwälte

Can an appeal procedure be too fast? The German Federal Court of Justice (Bundesgerichtshof, BGH) had to deal with this question because a higher regional court had dismissed an appeal even before receiving the statement of grounds for appeal.

The case in hand concerned the return of a property at the end of the usufruct. The unsuccessful party lodged an appeal but initially without giving reasons. This is possible in principle under Sections 517 and 520 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO). Even before the grounds of appeal were received by the Higher Regional Court, the latter dismissed the appeal by order. The losing party lodged an appeal against the refusal, claiming that there had been a breach of their right to a fair hearing under Article 103(1) of the German Basic Law (Grundgesetz).

The BGH ruled as follows:

In principle, a court can dismiss an appeal immediately if there is no prospect of success. This dismissal can be made by way of an order without a hearing. However, under Section 522(2) of the ZPO, the appellant must be informed in advance and given the opportunity to comment within a specified period. According to the BGH, in order to be able to give this information at all, the court must have previously dealt with the grounds of appeal. Otherwise, the right to a fair hearing would be violated. Without grounds, the court would not be able to assess whether an oral hearing would not contribute to the success of the appeal.

In this case, the court of appeal made the reference at a time when the appeal was unfounded. After receipt of the statement of the grounds of appeal, the court of appeal did not do a remittal of the case. According to the BGH, this was a legal error.

The BGH remitted the case to be re-heard.

BGH XII ZR 92/22 (21 June 2024)