Federal Court of Justice

The Federal Court of Justice (German: Bundesgerichtshof, BGH) is the highest court in the system of ordinary jurisdiction (ordentliche Gerichtsbarkeit) in Germany, founded in 1950. It has its seat in Karlsruhe with two panels being situated in Leipzig since 1997 and 2020, respectively. It is the supreme court (court of last resort) in all matters of criminal law and private law. A decision handed down by the BGH can be reversed only by the Federal Constitutional Court of Germany on constitutionality (compatibility with the Basic Law for the Federal Republic of Germany) grounds.

Federal Court of Justice
Bundesgerichtshof
Established1 October 1950 (1950-10-01)
JurisdictionFederal Republic of Germany
LocationKarlsruhe, Baden-Württemberg, Germany
Composition methodElection by Judicial Selection Committee
Authorized byBasic Law of Germany
LanguageGerman
Websitewww.bundesgerichtshof.de
President
CurrentlyBettina Limperg
Vice President
CurrentlyJürgen Ellenberger
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History

Before the Federal Court of Justice of Germany was created in its present form, Germany had several highest courts:

As early as 1495 there was the Reichskammergericht, which existed until 1806. As from 1870, in the time of the North German Confederation, there was the Bundesoberhandelsgericht in Leipzig. In 1871, it was renamed to Reichsoberhandelsgericht and its area of responsibility was amplified. On October 1, 1879 this court was unsoldered by the Reichsgericht in Leipzig, which lasted until the collapse of the German Reich in 1945.[1]: 18 

On October 1, 1950, after five years of interim rule by the Allied Forces, the Bundesgerichtshof was founded. Only in 1995, the Federal Court of Justice admitted to the failed processing of the Third Reich justice system.[1]: 19 

Together with the Federal Administrative Court of Germany, the Federal Finance Court of Germany, the Federal Labor Court of Germany and the Federal Social Court of Germany, the Federal Court of Justice is one of the highest courts of Germany today, located in Karlsruhe and Leipzig.[2]

Location and premises
Hereditary Grand Duke’s Palace, seat of the Federal Court of Justice in Karlsruhe

The Federal Court of Justice is housed in five buildings on park-like premises in the centre of Karlsruhe, Herrenstraße 45 a. The main building is the Hereditary Grand Duke’s Palace (Erbgrossherzogliches Palais) built in 1891 to 1897 by Josef Durm. During WWII its dome was destroyed and the mansard floor caught fire.

In the 1990´s the Federal Prosecutor General’s Office was separated off of the Federal Court of Justice and housed in a new building in Brauerstrasse.[1]: 20 

In October 2003, an extension building was inaugurated. The large library contains the Museum of Legal History (Rechtshistorisches Museum).

In April 2012, a new reception building with large courtroom opened. Up until then the garden had been used as a helicopter landing pad for defendants being flown in. [1]: 21 

The Court has two branch offices, such as the Villa Reiss in the Gartenstrasse and a former Bundeswehr barracks in the Rintheimer Strasse, Karlsruhe.[1]: 21 

Since July 1997, the 5th Criminal Panel, and since February 2020, the 6th Criminal Panel have been housed at Villa Sack in Leipzig.[1]: 21 

Organisation and functions

General

The Federal Court of Justice consists of 13 panels responsible for civil matters (Zivilsenate) and six panels responsible for criminal matters (Strafsenate). In addition, there are eight[3] so-called special panels (Spezialsenate), which have specific responsibilities and are made up of judges from the civil and criminal panels; some of those panels also include appointed volunteers. The lion's share of the work is, however, done within the civil and criminal panels: Of the approximately 9,200 new matters brought before the Court in 2019, about 9,000 fell within the scope of responsibility of a criminal or civil panel.[4][5]: 3  To resolve disagreements among the various civil and criminal panels, the Federal Court of Justice also has two Grand Panels (Große Senate).

The civil and criminal panels consist of approximately eight judges each. Judges can serve on more than one panel, in which case their working time is split. Cases are never decided by all the members of a panel but, in general, by a group of five judges (Spruchgruppe).[6]

As in all German courts,[7] an annually revised schedule of responsibilities (Geschäftsverteilungsplan) specifies in detail the allocation of cases to panels, and each panel's internal schedule of responsibilities determines the allocation of cases to a five-judge group.[8] The allocation of cases to panels is different in civil matters than in criminal matters: Each of the civil panels has specific subject matter responsibilities. For instance, legal disputes concerning copyright law are handled by the First Civil Panel, while disputes concerning inheritance law are handled by the Fourth. In practice, these responsibilities are rarely changed, which leads to a high degree of specialisation of the individual panels. Criminal cases, on the other hand, are assigned to a criminal panel based primarily on the origin of the case, with each panel handling the appeals from a certain subset of court districts. For instance, appeals from courts in Berlin are always decided by the Fifth Criminal Panel. A few exceptions to this location-based assignment exist; for example, one of the criminal panels has a special responsibility for road traffic-related criminal matters and another one has exclusive responsibility for national security matters.[9]

Role in civil matters

The civil panels of the Federal Court of Justice primarily deal with appeals on points of law (Revision) and complaints against denial of leave to appeal on points of law (Nichtzulassungsbeschwerde).

In a typical civil case, the losing party can appeal to a court of second instance if the subject matter of the appeal is greater than 600 euros or the court of first instance expressly allowed the appeal.[10] Such an appeal (Berufung) can be both on points of fact and on points of law, and it prompts the appellate court to re-hear the entire matter (that is, it (re-)hears witnesses, including potential new witnesses, and re-tries material issues of fact).[11]

In some cases, the decision by the appellate court can be further appealed to the Federal Court of Justice—but only on points of law. In general, this requires a grant of leave by the appellate court. The appellate court is legally required to grant leave if (a) the legal matter is of fundamental significance or if (b) the further development of the law or the interests in ensuring uniform adjudication require a decision to be handed down by the Federal Court of Justice.[12] The Federal Court of Justice is bound by this determination of the lower court; if the losing party chooses to appeal, the Federal Court of Justice must decide on it.[13]

In cases where an injured party feels that the appellate court has wrongly not granted leave, they can file a Nichtzulassungsbeschwerde with the Federal Court of Justice provided that the subject matter of the appeal is greater than 20,000 euros.[14] If the Federal Court of Justice agrees that leave to appeal on a point of law was wrongly denied, it grants leave on its own and subsequently rules on the appeal.

Grand Panels

All panels of the court are at liberty to deviate from their own prior jurisprudence at any time.[15] However, when a panel wishes to deviate from the jurisprudence of one or more other panels, it must submit a request to those panels (Divergenzvorlage), asking them whether they stand by their prior decision(s).[16] If any of the panels do, and if the requesting panel still intends to deviate, it must refer the issue to a Grand Panel. In cases of disagreement between civil panels, the ultimate arbiter is the Grand Panel for Civil Matters (Großer Senat für Zivilsachen), a special panel of the court composed of the presiding judges of each of the 13 civil panels and the President of the Court; in cases of disagreement between criminal panels, the issue is referred to the Grand Panel for Criminal Matters (Großer Senat für Strafsachen), which is made up of two representatives from each of the six panels and the President of the Court.[17] In practice, such referrals are rare; in 2018, for instance, not a single question was put before the Grand Panel for Criminal Matters (2017: 4).[18][19] Even rarer are cases where there is a difference of opinion between a criminal and a civil panel. In such a case, the dispute must be resolved by the Joint Grand Panels (Vereinigte Große Senate), which consists of all the members of the Civil and the Criminal Grand Panel.[20]

If any panel of the Federal Court of Justice intends to deviate from a decision by one or more panels of any other German supreme court (i.e. the Federal Administrative Court, the Federal Finance Court, the Federal Labour Court, or the Federal Social Court), it must refer the issue to the Joint Panel (Gemeinsamer Senat).[21] The Joint Panel is composed of the presidents of all supreme courts (permanent members) and two judges from each of the panels involved in the disagreement (ad-hoc members).[22]

Special panels

Some specific cases are handled by special panels. The following is a list of special panels at the Federal Court of Justice; the composition of a deciding Spruchkörper is given in parentheses:

  • a panel for agricultural matters (Landwirtschaftssenat) (three judges + two appointed volunteers who work or have worked in farming);[23]
  • a panel for professional and disciplinary matters concerning lawyers (Senat für Anwaltssachen) (three judges including the President of the Federal Court of Justice + two appointed volunteers who are lawyers);[24]
  • a panel for professional and disciplinary matters concerning notaries public (Senat für Notarsachen) (three judges + two appointed volunteers who are notaries public);[25]
  • a panel for professional and disciplinary matters concerning patent attorneys (Senat für Patentanwaltssachen) (three judges + two appointed volunteers who are patent attorneys);[26]
  • a panel for professional and disciplinary matters concerning tax consultants and tax agents (Senat für Steuerberater- und Steuerbevollmächtigtensachen) (three judges + two appointed volunteers who are tax consultants or tax agents);[27]
  • a panel for professional and disciplinary matters concerning auditors (Senat für Wirtschaftsprüfersachen) (three judges + two appointed volunteers who are auditors);[28]
  • the Cartel Panel (Kartellsenat) (five judges);[29]
  • the Federal Disciplinary Tribunal (Dienstgericht des Bundes) (three judges of the Federal Court of Justice + two judges from the judicial branch of which the affected judge is a member).[30]

All of the judges on the special panels are regular members of a civil and/or criminal panel.

Judges

Judges of the Federal Court of Justice are selected by an electoral committee, which consists of the Ministers of Justice of the 16 German Bundesländer and of 16 representatives appointed by the German Federal Parliament (Bundestag).[31] The President of Germany appoints judges chosen by this committee.[32] Individuals who do not meet the personal requirements for lifetime judicial appointments are not eligible; in particular, individuals must be German citizens and must have the necessary educational background.[33] To be appointed as a judge at the Federal Court of Justice, an individual must, in addition, be 35 years of age or older.[34] Once appointed, the presidium of Federal Court of Justice assigns the new judge to one or more panels.[35]

As judges for life, judges of the Federal Court of Justice must retire upon reaching the retirement age.[36] The retirement age is between 65 and 67 years, depending on the year of birth.[37]

Presidents of the Court
Name[38] Took office Left office
1 Hermann Weinkauff (1894–1981) 1 October 1950 31 March 1960
2 Bruno Heusinger (1900–1987) 1 April 1960 31 March 1968
3 Robert Fischer (1911–1983) 1. April 1968 30. September 1977
4 Gerd Pfeiffer (1919–2007) 1 October 1977 31 December 1987
5 Walter Odersky (b. 1931) 1 January 1988 31 July 1996
6 Karlmann Geiß (b. 1935) 1 August 1996 31 May 2000
7 Günter Hirsch (b. 1943) 15 July 2000 31 January 2008
8 Klaus Tolksdorf (b. 1948) 1 February 2008 31 January 2014
9 Bettina Limperg (b. 1960) 1 July 2014

Attorneys

In all civil cases heard by the Federal Court of Justice, the parties need to be represented by an attorney who has been specifically admitted to the bar at the Federal Court of Justice (Rechtsanwalt beim Bundesgerichtshof).[39] This admission is the only 'special' admission within the German court system; ordinarily in Germany, an attorney admitted to the bar is permitted to practice before any court.[40] Conversely, within the German court system an attorney at the Federal Court of Justice is only allowed to practice before the Federal Court of Justice, other federal courts of last instance, the Joint Senate of the Supreme Courts of the Federation and the Federal Constitutional Court—but not before any of the lower courts.[41]

Admission to the bar at the Federal Court of Justice is highly selective; as of June 2022, only 38 attorneys are so admitted.[42] Candidates for admission are nominated by an electoral committee (consisting of judges, members of the ‘ordinary’ bar, and other members of the bar at the Federal Court of Justice) and are then chosen and appointed by the Federal Ministry of Justice.[43]

The requirement for a representative specifically admitted to the Federal Court of Justice does not apply in criminal cases. Here, representation by any lawyer admitted to the bar in Germany is sufficient.[44]

References
  1. The President of the Federal Court of Justice (2021). "The Federal Court of Justice" (PDF). Retrieved 1 November 2021.
  2. http://www.bundesgerichtshof.de/EN/TheCourt/TaskOrganisation/PositionFCoJ/positionFCoJ_node.html Archived 2014-08-22 at the Wayback Machine (German)
  3. Bettina Malzahn and Rudolf Mellinghoff, "Bundesgerichte", in Görres-Gesellschaft, Staatslexikon, vol 1 (8th edn, Herder 2017). The Grand Panels are not included in that number.
  4. "Übersicht über den Geschäftsgang bei den Zivilsenaten des Bundesgerichtshofs im Jahr 2019" (PDF) (in German). Bundesgerichtshof. Retrieved 28 September 2020.
  5. "Übersicht über den Geschäftsgang bei den Strafsenaten des Bundesgerichtshofs im Jahr 2019" (PDF) (in German). Bundesgerichtshof. p. 3. Retrieved 28 September 2020.
  6. Section 139(1) GVG.
  7. Monika Jachmann-Michel in Maunz/Dürig: Grundgesetz-Kommentar, art 101 paras 50ff (R 84 August 2018).
  8. Section 21g GVG.
  9. "Zuständigkeit der Strafsenate und der Ermittlungsrichter" (in German). Bundesgerichtshof. Retrieved 28 September 2020.
  10. Sections 512(1), 512(2) ZPO.
  11. Gerhard Robbers, An Introduction to German Law (7th edn, Nomos 2019) 25.
  12. Section 543(2) 1st sentence ZPO.
  13. Section 543(2) 2nd sentence ZPO. On the special case of an "objectively arbitrary" grant of leave, see Wolfgang Krüger in Thomas Rauscher and Wolfgang Krüger (eds), Münchener Kommentar zur ZPO, vol 2 (6th edn, Beck 2020), s 543 para 52.
  14. Sections 543(1) 2nd sentence, 544(2)(1) ZPO.
  15. Burkhard Feilcke in Rolf Hannich (ed), Karlsruher Kommentar zur Strafprozessordnung (8th edn, Beck 2019), § 132 GVG para 5.
  16. Sections 132(2), 132(3) 1st sentence GVG.
  17. Sections 132(2), 132(5) 1st sentence GVG.
  18. "Übersicht über den Geschäftsgang bei den Strafsenaten des Bundesgerichtshofs im Jahr 2018" (PDF) (in German). Bundesgerichtshof. p. 18. Retrieved 28 September 2020.
  19. "Übersicht über den Geschäftsgang bei den Strafsenaten des Bundesgerichtshofs im Jahr 2017" (PDF) (in German). Bundesgerichtshof. p. 18. Retrieved 28 September 2020.
  20. Sections 132(2), 132(5) 3rd sentence GVG.
  21. Article 95(3) 1st sentence GG; s 2(1) RsprEinhG [Law to ensure the uniformity of the jurisprudence of the highest federal courts].
  22. Section 3(1) RsprEinhG; Andreas Voßkuhle in Friedrich Klein and Christian Starck (eds), von Mangoldt/Klein/Starck: Grundgesetz (7th edn, Beck 2018) vol 3, art 95 para 43.
  23. Sections 2(1) 3rd sentence, 2(2), 4(3)(1), 4(6) LwVG [Landwirtschaftsverfahrensgesetz].
  24. Sections 112a(2), 112a(3), 106(1) 1st sentence, 106(2) 1st sentence BRAO [ Federal Lawyers' Act].
  25. Sections 99, 106 Bundesnotarordnung [Federal Code for Notaries].
  26. Section 90(1), 90(2) 2nd sentence PAO [Ordinance Concerning Patent Attorneys].
  27. Sections 97(1), 97(2) Steuerberatungsgesetz [Tax Advisory Act].
  28. Section 74 Wirtschaftsprüferordnung [Public Accountants Act].
  29. Section 94(1) GWB [Act against Restraints of Competition].
  30. Sections 79(2), 79(3), 61(1), 61(2) 1st and 2nd sentence DRiG.
  31. Article 95(2) GG [Basic Law]; ss 1(1), 2, 3(1), 4(1), 5(1) RiWG [Act on Electing Judges]; Helmuth Schulze-Fielitz in Horst Dreier (ed), Grundgesetz-Kommentar, vol 3 (3rd edn, Mohr Siebeck 2018), art 95 paras 26f.
  32. Section 125(1) GVG [Courts Constitution Act]; s 1(1) RiWG; Helmuth Schulze-Fielitz in Horst Dreier (ed), Grundgesetz-Kommentar, vol 3 (3rd edn, Mohr Siebeck 2018), art 95 para 32.
  33. Sections 9, 5ff DRiG [German Judiciary Act].
  34. Section 125(2) GVG.
  35. Cf s 21e(1) 1st sentence GVG.
  36. Sections 48(1) 1st sentence, 48(2) DRiG; Klaus Weber, "Altersgrenzen" in Creifelds Rechtswörterbuch (24th edn, Beck 2020).
  37. Sections 48(1) 2nd sentence, 48(3) DRiG; Klaus Weber, "Altersgrenzen" in Creifelds Rechtswörterbuch (24th edn, Beck 2020).
  38. "Die Präsidenten des Bundesgerichtshofs" (in German). Bundesgerichtshof. Retrieved 9 June 2022.
  39. Sections 78(1) 3rd sentence ZPO [Code of Civil Procedure]; 114(2) FamFG [Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction].
  40. Jens Adolphsen, Zivilprozessrecht (6th edn, Beck 2020), s 5 para 14.
  41. Section 172(1) 1st sentence BRAO [Federal Lawyers' Act]; Jens Adolphsen, Zivilprozessrecht (6th edn, Beck 2020), s 5 para 14.
  42. "Verzeichnis der BGH-Anwälte". Rechtsanwaltskammer beim BGH. Retrieved 9 June 2022. (German)
  43. Sections 164, 170(1) 1st sentence BRAO; Volker Römermann and Wolfgang Hartung, Anwaltliches Berufsrecht (3rd edn, Beck 2018), s 7 para 5.
  44. Volker Römermann, "Freigabe der Zulassung als BGH-Anwalt?" [2007] ZRP 207.

Further reading
  • Brockhaus in drei Bänden (in German). 2006. p. 839. ISBN 978-3-7653-1514-5.
  • Zwahr, Annette (2006). Meyers Großes Taschenlexikon in 24 Bänden (in German). p. 1038. ISBN 978-3-411-10063-7.
  • "The Federal Court of Justice" (PDF). Karlsruhe, Leipzig: Federal Court of Justice of Germany. 2014.
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