Making Appeals More Appealing (Again)

Today, a reform of the appeal process came into force, following its publication in the Federal Gazette (Bundesgesetzblatt) yesterday. The reform widens the scope of judicial review of decisions that summarily dismiss an appeal in civil matters. The provision that was revised, Sec. 522 Code of Civil Procedure (ZPO), was only introduced in the large-scale reform of civil procedure in 2002. Today’s changes in part undo the 2002 reform.

As introduced in 2002, Sec. 522 ZPO required appeal courts to dismiss, without a hearing, if the following requirements were met: First, the decision of the three judges reviewing the matter had to be unanimous. Second, they had to find that it had no merits (fehlende Erfolgsaussicht). In addition, the court had to find that the matter had no wider relevance so that the upper courts did not need to deal with them to clarify the law (keine grundsätzliche Bedeutung). An order dismissing the appeal pursuant to Sec. 522 ZPO was final and could not be challenged. The lawmakers’ intention was to relieve the courts of the burden to schedule hearings in hopeless matters, and make the process more efficient.

The provision soon was criticized as unconstitutional. Even a Presiding Judge of the Federal Supreme Court (Bundesgerichtshof) went on public record to that effect. The critics failed to convince the Federal Constitutional Court (Bundesverfassungsgericht), though, which upheld the provision on several occasions.

In my view, it was the persuasive power of statistics, and not sophisticated constitutional arguments that ultimately made parliament change its mind. Statistics showed that Sec. 522 ZPO was applied hugely inconsistently across the federal states, and even across the individual benches (Senate) of the same Court of Appeals (Oberlandesgericht).

For example, in Baden-Württemberg, only some 9% of appeals were dismissed on the basis of Sec. 522 ZPO, whereas 19% of Bavarian appeals were dealt with in this way. One critic concluded that 75% of those who were unsuccessful in their appeals in Baden-Württemberg had a second shot at judicial review, since they could seek leave of appeal to the Federal Supreme Court (Nichtzulassungsbeschwerde), whereas less then 50% of Bavarians had that opportunity. Some of the differences between Courts of Appeal in the same federal state were even more striking. So at the end of the day, the reform of the reform redresses a serious access to justice problem.

One could speculate endlessly what led to these different patterns in judicial behaviour, and I hope that a talented sociologist or behavioural economist devotes her Ph.D. thesis to finding that out.

As of today

  • judges don’t have to dismiss (“das Berufungsgericht weist die Berufung … zurück”) in this fashion any more, but they have discretion to do it (“das Berufungsgericht soll … zurückweisen”).I guess you have to be a lawyer to appreciate the subtle change here; to me, this appears to be mainly semantics.
  • the lack of merits must be obvious to the nacked eye: “keine Aussicht auf Erfolg” became „offensichtlich keine Aussicht auf Erfolg – again, obvious is not the most technical legal concept….
  • judges must give special consideration to the question whether a hearing is required or not,
  • but finally, any order dismissing the appeal pursuant to Sec. 522 ZPO can be challenged as if it were a judgment. In practice, if the amount in dispute is in excess of EUR 20,000, then an application for leave of appeal is possible. This is where, in my opinion, the real value of the reform lies.

All statistical data quoted above has been taken from an article by Wendt Nassall, NJW 2008, 3390, who is a member of Germany’s most exclusive bar, admitted to the Bundesgerichtshof and amongst those who had been pushing for this reform. One interesting point that he found out in his very usefull number-crunching: Almost 20% of applications to seek leave of appeal to the Federal Supreme Court are successful and out of these appeals (Revisionen), almost 80% ultimately succeed. It remains to be seen how the numbers change over the next couple of years, and how the judges will adapt.

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