Federal Court of Justice

Seat of the Federal Court of Justice in Karlsruhe

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[5] 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.[6][7] 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).[8]

As in all German courts,[9] 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.[10] 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.[11]

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—provided that the subject matter of the appeal is greater than 600 euros or the court of first instance expressly allowed the appeal.[12] 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).[13] In the following situations the decision by the appellate court can be appealed to the Federal Court of Justice on points of law:[14]

1. The appellate court has granted leave to appeal on a point of law. It is legally required to do so 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.[15] 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.[16]
2. The appellate court has not granted leave to appeal on a point of law even though it had a legal duty to do so and the subject matter of the appeal is greater than 40,000 euros.
3. The appellate court has entered a judgement rejecting the appeal as inadmissible.

In cases (2) and (3), the injured party can file a Nichtzulassungsbeschwerde with the Federal Court of Justice. 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.

All panels of the court are at liberty to deviate from their own prior jurisprudence at any time.[17] 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).[18] 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.[19] 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).[20][21] 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.[22]

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).[23] 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).[24]

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);[25]
• 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);[26]
• a panel for professional and disciplinary matters concerning notaries public (Senat für Notarsachen) (three judges + two appointed volunteers who are notaries public);[27]
• a panel for professional and disciplinary matters concerning patent attorneys (Senat für Patentanwaltssachen) (three judges + two appointed volunteers who are patent attorneys);[28]
• 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);[29]
• a panel for professional and disciplinary matters concerning auditors (Senat für Wirtschaftsprüfersachen) (three judges + two appointed volunteers who are auditors);[30]
• the Cartel Panel (Kartellsenat) (five judges);[31]
• 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).[32]

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

• Horst Hagen
• Fritz Hauß
• Burkhard Jähnke
• Gerda Müller (jurist)
• Joachim Wenzel