Even German Court Judgments are not being fully published
German Civil Court Case Files are not Public Record
American and British lawyers naturally assume that court files are public record and can be easily accessed and inspected by anyone.
Not in Germany! Germany is rather secretive when it comes to legal documents. Under German law, there is no general right to access court records in order to inspect and copy them. Instead, the written documents in a German civil lawsuit (lawyer’s statements, witness statements, expert opinions etc.) are considered to be a private and confidential, which is called “vertraulich” in German.
Pleadings and Submissionsare not available to Third Parties
While the hearing itself is public, the written statements submitted by the parties and/or their lawyers (in German referred to as “Schriftsatz”) are not. Neither are witness statements or expert reports. This is codified in section 299 para (2) German Code of Civil Procedure:
Inspection of Court Files:
(2) Without the consent of the parties to a legal proceeding, the (…) court (…) may allow third parties to inspect the files only if these third parties have demonstrated a legitimate interest to see the court file.
Such “legitimate interest” (in German “berechtigtes Interesse”) is defined rather narrowly by German courts. The fact that a U.S. law firm represents a client who considers suing the same defendant does not per se constitute a legitimate interest to see the German court file. This means that a potential claimant (or their lawyers) cannot simply find out by accessing court records what the legal counsel of another claimant has already argued in a certain case. The only option is to contact the legal counsel of a party and ask them whether they are willing to disclose their material, which obviously also requires their client’s consent.
The Expert on German and English Civil Procedure
German business litigation lawyer Bernhard Schmeilzl specialises in UK-German disputes since 2001. He is not only a very experienced German trial lawyer but he also knows the English side of things because he has written the only German language textbook on civil litigation in England and Wales (“Der Zivilprozess in England”) published by the renowned BECK Verlag.
He is the editor of the German language law blog www.EnglischesRecht.de, which explains matters of English law to a German speaking audience.
His in depth knowledge of both legal systems and their respective civil procedure rules makes his advice so valuable for litigants from the UK. Bernhard Schmeilzl immediately eliminates any misconceptions and unrealistic expectations the UK party may have, for example about the tool of disclosure, which simply does not exist under German law.
Guide to Civil Litigation in Germany
Download the free English language brochure on how to conduct a civil lawsuit in Germany here:
GrafLegal Guide to German Civil LItigation (UK version)
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