Requirements for a subsequent decision on the admissibility of the appeal by the court of appeal

If the court of first instance assumed that the weight of the losing party was more than € 600.00 and therefore saw no reason to decide on the admission of the appeal, according to the case law of the Federal Court of Justice, the court of appeal, which assesses the weight to be lower, can decide on the admission of the appeal. However, if such an assessment by the lower court is doubtful, for example because it may have assumed that a non-pecuniary dispute exists, the court of appeal is prevented from making a subsequent decision on the admission of the appeal. The appeal is then not admissible.

The reason for this decision by the Federal Court of Justice on 22.02.2024 (case no. III ZB 65/23) was a step-by-step action for information against a foundation that had become the sole heir to various agricultural and forestry businesses, including a castle and stud farm. Following an unsuccessful candidacy for the foundation's board of directors, the grandniece of the testator sued for information on the current status of the foundation's articles of association as well as the dates and contents of previous amendments to the articles of association, as she was of the opinion that the founder's wishes had been disregarded with regard to the age of the board members and the membership of a family member on the board. The action was successful at first instance and the judgment was declared provisionally enforceable in accordance with Section 709 sentence 1 ZPO against a security deposit of € 2,000.00. The Higher Regional Court dismissed the appeal as inadmissible, as the necessary complaint pursuant to Section 511 (2) No. 1 ZPO had not been met. The Regional Court had not granted leave to appeal.

The BGH dismissed the defendant foundation's appeal on points of law as inadmissible. The Court of Appeal had rightly assumed that it was not permitted to decide on the admission of the appeal itself pursuant to Section 511 (4) sentence 1 ZPO. Since neither party had applied for permission to appeal, the court of first instance did not have to make an express decision on this. Its silence meant non-admission.

According to the established case law of the Federal Court of Justice, the court of appeal must make a subsequent decision on the admission of the appeal if the court of first instance failed to do so because it had assumed that the losing party had more than € 600.00 worth of complaints. However, the prerequisite for this is that such an assumption by the court of first instance is established. This was not the case in the proceedings decided. The controversial question of whether the amount of the fixed security deposit alone can be used to draw a conclusion as to the amount of the complaint assumed by the regional court can be left open. Such a conclusion is not possible, at least in the case of non-pecuniary disputes, as section 708 no. 11 ZPO does not apply to these.

The regional court could also have erred in assuming a (generally) non-pecuniary dispute, as it had ordered the provision of security in accordance with Section 709 sentence 1 ZPO. According to the court, a legal dispute is a pecuniary dispute if the claim being pursued is directed at money or objects of monetary value (property or rights). This also applies to requests for information indirectly directed at these. In the case decided, the action was predominantly aimed at establishing that the appointment of members of the Management Board was invalid, that a decision by the Management Board had been made in error of judgment and that the will of the founder had been disregarded, i.e. that non-pecuniary legal relationships had been breached. Only the application for permission to enter and use a certain castle is a matter of property law. Furthermore, it could not be concluded from the amount of the security set that the Regional Court had assumed that the minimum value pursuant to Section 511 (2) No. 1 ZPO had been exceeded. The burden on the party ordered to provide information is based on the time and costs involved in providing the information. The amount of € 2,000.00 assumed for the provision of security appeared to be too high; it could not be determined whether the court had included the costs of the proceedings. Furthermore, the court of appeal was not permitted to examine whether the decision to allow the appeal was correct.

Anyone who is claimed in court to provide information should always apply for permission to appeal in the first instance in order to obtain an express decision on this in the judgment.

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