Abstract

To which Party should Court Fees be Charged if there is no longer any Need to Adjudicate? – Judges caught between the Conflicting Priorities of their Obligation to adhere to the Law and Procedural Economy

Under German procedural law the court fees of each party depend on the outcome of the case, with the defeated party usually having to accept the costs. In a case that does not proceed to judgement because the parties agree that the process no longer makes sense (“übereinstimmende Erledigungserklärung”), the fees are to be taken by the party who would have lost if a decision by the court had been made. As these constellations may lead to the futile taking of evidence and rising expenses, the process orders in administrative law as well as in civil law provide regulations that allow the court to decide on the distribution of the fees between the parties on equitable discretion (“nach billigem Ermessen”). Even hard questions of law (“schwierige Rechtsfragen”) can remain undecided – a turn away from the positivistic doctrine prevailing until the 1930s that obliged the courts to decide exclusively on legal grounds. This change in favour of discretion had been mainly made on economic reasons.

This rule, which is broadly accepted, can under certain circumstances produce dubious results, especially when applied to mass processes. Many plaintiffs bring to court parallel but individually specific cases. An example for such mass procedures can be seen in college admission claims of rejected applicants.

If regulations, which are set by parliamentary laws, are challegend the German constitutional law obliges the court to bring the question to the Federal Constitutional Court. Only this court is competent to decide whether a law meets the requirements of constitutional law. But what should happen when some of the many cases brought to the court in a mass process consensually do not have to be decided (for example because the plaintiff has got an admission at another college) while others still have to be decided?

On basis of the usual procedural customs a German court has declared those cases as finished and equally divided the costs between the parties. At first glance this seems to be adequate. But a closer look reveals that the defendant encounters a multitude of these fees. Furthermore, the defendant as an administrative body is bound to obey formal law and could not even have acted differently.

The article illuminates the question how to deal with hard questions in law and under which conditions these questions may remain open. The author proposes – contrary to the legal custom so far – not to declare the process concerning the costs as finished but to wait for the Federal Constitutional Court’s decision on the remaining cases. In terms of process order it can be based on the instruments of either suspension or abeyance. The benefit lies in respecting the authority of parliamentary legislation and in avoiding legal unstableness. Following a Luhmanian approach the legal system is found on the decision of legal or illegal, a third category of uncertainty is unknown.