When a party who was either wholly or partially unsuccessful in the prior appeal submits an appeal on points of law to the Federal Court of Justice, the Federal Court of Justice will review the judgment of the lower appellate court (as well as a court order rejecting an appeal pursuant to sec. 522 par. 2 Code of Civil Procedure upon successful complaint against denial of leave to appeal) for errors in substantive law and procedural irregularities. As the Federal Court of Justice only reviews rulings with regard to errors of law, no new facts or evidence may be presented in appeal proceedings of this nature.
The appeal proceedings can only be opened when the appellate court or – following a complaint against denial of leave to appeal – the Federal Court of Justice has granted leave to appeal. Such leave to appeal may be restricted to one aspect of the appellate court’s ruling, whereby such a restriction may arise from the reasons for the judgment. Therefore, it is always important to examine whether the reasons for the judgment give rise to a restriction of leave to appeal. If this is the case, and if the party concerned wishes to contest the appellate court’s ruling in full, it may then be necessary to submit a complaint against denial of leave to appeal in addition to the (restricted) leave to appeal.
The deadline for filing an appeal on points of law is one month, starting from service of the judgment but at the latest five months after the judgment is pronounced. The deadline for providing reasoning for the appeal on points of law is two months (also starting from service of the judgment but no later than five months after the judgment is pronounced). The deadline for providing reasoning for the appeal on points of law is two months (also starting from service of the judgment), but the reasons must be submitted no later than five months after the judgment is pronounced.
If the appellant’s respondent is also unhappy with the judgment, they may also contest it by means of cross appeal (section 554 of the Code of Civil Procedure). This applies irrespective of whether the appellate court or, in the case of a complaint against denial of leave to appeal, the Federal Court of Justice has granted leave to appeal. Cross appeals on points of law do not rely on leave to appeal; the sole prerequisite is that there is a direct legal or economic connection between the subject matter of the cross appeal and the circumstances that constitute the subject matter of the main appeal.
The cross appeal must be filed, and reasons provided, within one month of the provision of the reasoning for the opponent’s appeal; this deadline cannot be extended. In light of such a tight deadline, it is imperative that an attorney licensed to appear before the Federal Court of Justice is instructed (at the very latest) upon submission of the appellant’s reasoning.
If the appellate court has not granted leave to appeal against its judgment or has denied leave to appeal by means of a court order pursuant to sec. 522 par. 2 Code of Civil Procedure, this court’s decision can only be reviewed by the Federal Court of Justice if the Federal Court of Justice itself grants the right to appeal upon a complaint against denial of leave to appeal as submitted by the unsuccessful party.
Pursuant to sec. 26, no. 8, of the German Introductory Act to the Code of Civil Procedure (EGZPO) – a frequently overlooked transitional provision – complaint against denial of leave to appeal is only admissible if the amount that will be in dispute exceeds €20,000. However, this does not apply in cases where the appellate court has rejected the appeal as inadmissible in its ruling.
The complaint against denial of leave to appeal must be filed within one month after service of the appellate court’s judgment, but no later than six months after the judgment is pronounced. Reasons must be submitted within two months after service of the appellate court’s judgment, but no later than seven months after the judgment is pronounced.
The complaint against denial of leave to appeal will only be successful if there is a reason for granting leave to appeal, i.e. when the case is of fundamental importance or if a judgment of the Federal Court of Justice is required to develop the law or to ensure its consistent application (cf. section 543, paragraph 2, sentence 1, Code of Civil Procedure). One factor shared by these groups of cases is that the dispute between the parties has a significance beyond the case concerned, making it relevant for society at large. In particular, this is the case when the decision of the appellate court is based on an infringement of the unsuccessful party’s procedural rights as enshrined in the constitution. Pursuant to the established precedent of the Federal Court of Justice, the fact that the judgment of the lower appellate court contains legal errors (however grave or obvious they may be) does not, on its own, represent sufficient grounds for appeal.
The legislature envisaged that the typical content of complaints on points of law should be procedural ancillary decisions of a minor nature. Admittedly, the reality is often different. The complaint on points of law, for example, is an option where the appellate court has ruled an appeal as inadmissible and can also be used to contest decisions on the recognition and enforcement of an arbitration award, the decision of a foreign court, or model case rulings in capital market law disputes. Complaints on points of law can be of considerable legal and economic importance.
Complaints on points of law may be lodged with the Federal Court of Justice if the law expressly permits the complaint on points of law and if the legal case is of fundamental importance or if a ruling is required from the Federal Court of Justice to develop the law or to ensure its consistent application. The complaint on points of law is also admissible if the lower court has granted leave to complaint (potentially with restrictions); the Federal Court of Justice is bound by this ruling of admissibility. There is no complaint mechanism against the denial of leave to complaint on points of law.
The complaint on points of law must be submitted (with reasons) within one month of service of the contested judgment. The respondent to the party submitting the complaint on points of law may file a cross appeal under a complaint on points of law.
If your opponent has filed an appeal, a complaint against denial of leave to appeal, or a complaint on points of law, we recommend that you instruct an attorney licensed to appear before the Federal Court of Justice to defend the judgment of the appellate court as soon as the reasons for the opponent’s legal remedy have been submitted (at the latest). Quite apart from anything else, this is important in response to an appeal on points of law, because the clock starts ticking on the deadline for your own cross appeal as soon as reasoning for the appeal is provided. Further, this is an opportunity (indeed the only opportunity in written proceedings concerning complaints against denial of leave to appeal and complaints on points of law) to present your own standpoint to the Federal Court of Justice and counter your opponent’s arguments before the Court delivers its ruling. This is no less true in cases where your opponent has initially only lodged a complaint against denial of leave to appeal. After all, appeals that have been admitted by the Federal Court of Justice in response to such a complaint are, in the vast majority of cases, successful. Moreover, targeting observations made by the appellate court that are unfavorable to the appellee by means of a “counter-objection” can have a decisive effect on the outcome of the dispute. Legal rebuttals submitted by attorneys who are not on the bar of the Federal Court of Justice will be ignored by the court.