WEDNESDAY, 7 MARCH 2012
Germany: Your court proceedings are taking too long ? No problem, just sue the court...
Although this topic may be of more general interest (as it concern all sorts of court proceedings in Germany) this Class 46 member thought that readers of Class 46 should at least be aware of the following as it may have implications on proceedings in trade mark (and design) cases as well.
According to a recent change of law in the German Judicature Act a claim for compensation against the State can be made by a citizen affected by proceedings of unreasonable length. Demands for compensation are allowable for disadvantages suffered due to the unreasonable length of a proceeding.
The Court with jurisdiction over the legal matter must, however, first be made aware of the delay by way of a complaint. This provides the judges with the opportunity to take remedial actions by accelerating the proceedings in case of a justified complaint.
If the proceedings are still delayed, despite the complaint, a compensation suit may be filed as a second step. A compensation for the suffering caused by the excessive length of process, e.g. mental and physical stress, will be awarded, which usually will be €1,200 for each year, if redress by other means is not sufficient. In addition to the compensation for the non-material disadvantages an appropriate compensation for material disadvantages is provided, e.g. in case of insolvency of a company due to excessively lengthy court proceedings.
The monetary compensation for material disadvantage under the new regime is independent of possible redress by other means and is not dependent on fault. However, the compensation court will have to be convinced that the claimed disadvantage is actually due to the excessive length of judicial proceedings. Such compensation may include adequate compensation for financial losses. A loss of profits, however, ca not be claimed.
In parallel to the new compensation public liability claims may be made -- as was already the case -- if the delay is due to a negligent breach of official duty. In such a case comprehensive damages can be claimed, which may also include compensation of lost profits.
Maybe most important for Class 46 readers is that the new regime is also applicable to trade mark, patent and design proceedings before the Federal German Patent Court ("Bundespatentgericht") following changes in the German Trade Mark Act and the German Patent Act. The new law was published in the "Bundesgestzblatt" 2011, Part I, No. 60 and came into force on 3 December 2011. A copy of the law can be found on a webpage (see here) of the German Federal Court of Justice ("Bundesgerichtshof").
This Class 46 member is looking forward to seeing first actions filed and is curious about their outcome ...
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