On October 31, 2024, an act entered force that allows the Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s supreme court for civil and criminal jurisdiction, to designate a case pending before it that is part of a mass proceeding as a “leading case.” Its goal is to reduce the burden on the courts that come with mass proceedings by offering guidance to the lower courts on how to address related matters.
As explained in the draft legislation, mass proceedings involve large numbers of individual lawsuits asserting similar claims in court, such as claims asserting improper clauses in consumer contracts or claims involving the Volkswagen diesel emissions scandal. They often give rise to the same legal questions relevant to resolution of the cases. They have been a significant burden on Germany’s civil courts in recent years.
As with most civil law jurisdictions (and unlike common law jurisdictions), generally the decisions of the BGH are not precedential in nature. Although still not binding, the new “leading case” procedure allows the BGH to choose a pending case in which to issue a ruling that will serve as precedential guidance for lower courts and help resolve the large number of pending cases in mass proceedings.
Additions to the Code of Civil Procedure
The act introduces three new provisions into the German Code of Civil Procedure (Zivilprozessordnung, ZPO). A new section 552b provides that where an appeal raises legal questions whose decision is of importance for a large number of other proceedings, the BGH may issue an order designating the appeal as a leading decision proceeding. The order must contain a summary of the facts and legal questions that are relevant for a large number of proceedings.
A new section 565 states that where an appeal intended for a leading decision proceeding is withdrawn or otherwise ends without a substantive judgment being issued, the BGH may nonetheless issue a decision on the legal issues identified in the order designating the appeal as a legal decision proceeding. The decision must be limited to the relevant legal questions.
A new subsection to section 148 allows the suspension of lower court proceedings involving legal questions that are the subject of a pending leading decision procedure until completion of that procedure. The parties must be heard regarding the suspension. If one party objects and presents important reasons against the suspension, the court must continue the proceedings.
First Leading Case Designated
The day the act entered into force, the Federal Court of Justice designated its first leading case—a matter involving claims for damages in connection with alleged violations of the European Union’s General Data Protection Regulation involving “scraping” of data from the social network Facebook. According to the court, the legal questions in this case are relevant for numerous other proceedings. Twenty-five other appeals concerning the scraping incident are currently pending at the Federal Court of Justice, and several thousand other cases are pending at the lower courts.
Jenny Gesley, Foreign Law Specialist
December 4, 2024
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