Necessary assertion of a value in dispute enabling an appeal against non-admission in the courts of fact

The background to the decision was a competition law case in which an injunction was sought against advertising for electricity supply contracts with a price comparison without stating significant contractual conditions. The regional court had upheld the claim and set the amount in dispute at € 15,000.00 with reference to a previous procedure for interim legal protection. The Court of Appeal, on the other hand, had dismissed the action with the same amount in dispute and rejected the plaintiff's objection to being heard. In accordance with sections 313a (1) and 540 (2) of the German Code of Civil Procedure (ZPO), the appeal judgment did not contain a statement of the facts. Following a subsequent complaint by the plaintiff regarding the value in dispute, the regional court set the value in dispute at € 40,000.00.

In its ruling on the appeal against denial of leave to appeal (case no. I ZR 152/23), the Federal Court of Justice (BGH) confirmed its case law according to which the court of appeal itself decides on the amount of the complaint to be asserted by the complainant without being bound by a determination of the value in dispute by the lower court, especially as this could be incorrect. According to the established case law of the Federal Court of Justice, the complaint is measured by the interest of the appellant in the amendment of the contested decision. The relevant point in time is the last oral hearing of the lower court, including the circumstances presented up to that point.

If a party has neither objected to the determination of the value in dispute in the factual instances nor made a credible case that further material circumstances should be taken into account for the assessment of the value, it cannot invoke for the first time in the appeal against denial of leave to appeal proceedings that the value in dispute should be set higher - at an amount that allows the appeal against denial of leave to appeal.

In the case decided, it was sufficient to state a value in dispute of € 40,000.00 in the statement of claim, to appeal against the value in dispute with reference to the fact that the value in interim relief is regularly set one third lower than in the main action, which led to an incorrect calculation, and finally to explain the market position and the supply area of the parties (Germany-wide distribution), which justified a value in dispute of at least € 30,000.00. In addition, the plaintiff had already objected to the determination of the value in dispute by the Regional Court at the beginning of the appeal proceedings and had presented the correct value in its opinion. On this basis, the BGH assumed a complaint of € 30,000.00, which made the appeal against denial of leave to appeal admissible.

If the Court of Appeal assumed that an appeal was not admissible due to the low amount in dispute and therefore did not make factual findings in accordance with Sections 313a (1), 540 (2) ZPO, this alone does not justify the admission of the appeal. However, the complainant's submission, insofar as it cannot be verified on the basis of the judgment, must be assumed to be correct. This may - as in the case in dispute - result in a violation of the right to be heard if it cannot be determined whether the court of appeal has taken into account certain submissions asserted by the party as essential.

Based on this case law, it may be worthwhile in cases of doubt, even if the amount in dispute is set sufficiently high by the court of first instance and the court of appeal, to submit factual evidence for the assessment of the amount in dispute at an early stage. This is because the Federal Court of Justice does not have to follow the assumption of a sufficiently high amount in dispute when examining sufficient weight within the meaning of Section 544 (2) No. 1 ZPO.