Authorities

 Germany - Central Authority (Art. 2, 24) and practical information
Address

Central Authority(ies):

Letters of Request shall be addressed to the Central Authority of the Land in which the respective request is to be executed. Please click here for the list of Central Authorities.

Practical Information
(The following information was provided by the relevant State authorities or was obtained from the replies to the 2008 and/or 2013 Evidence Convention Questionnaire)

Blocking statutes:

Yes, there are two European instruments of this nature:

Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom (see, Article 5(1)).

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (See, Art. 25(1)).

Chapter I
(Letters of Requests)

Transmission of Letters of Requests:

Letters of Request are sent directly from a judicial authority in the requesting State to the Central Authority of the requested State.

Authority responsible for informing of the time and place of the execution of Letter of Request (Art. 7):

Judicial authority competent to execute the request.

Presence of judicial personnel at the execution of the Letter of Request (Art. 8):

Declaration of applicability. 

Privileges and duties existing under the law of States other than the State of origin and the State of execution (Art. 11):

No declaration of applicability.

Translation requirements (Arts 4(2) and 33): 

Accepts Letters of Requests written in or translated into German.

Costs relating to execution of the Letters of Request (Arts 14(2)(3) and 26):

Germany sought in a few cases reimbursement of costs under Art. 14(2).
There are no constitutional limitations with regard to the reimbursement of fees and costs, in connection with the execution of Letters of Request, for the service of process necessary to compel the appearance of a person to give evidence, the costs of attendance of such persons, and the costs of any transcript of the evidence (Art. 26).

Time for execution:

No information available.

Art 23 pre-trial discovery of documents:

Letter of Request will not be executed (full exclusion).

Nevertheless, Germany allows Letters of Request submitted in pre-trial discovery proceedings to be processed to an appropriate extent within the country. Such requests can be dealt with under Section 14 paragraph 2 of the law implementing the Evidence Convention insofar as this is not precluded by fundamental principles of German procedural law.

Information about domestic rules on the taking of evidence:  Letters of Request will not be executed (full exclusion).

Witness examination under Chapter I

Should Letters of Request include specific questions to be used during witness examination or only a list of matters to be addressed?

The views of the German Central Authorities are divided with respect to this topic. While a majority of Central Authorities requires a list of questions, a minority would consider a list of matters sufficient, if there is no intention of seeking disclosure by an adversary of the facts supporting a case.

Is it a public or private hearing?

There is no rule which requires that hearings conducted in judicial cooperation have to be public.

Do the judicial authorities "blue-pencil" Letters of Requests (i.e. rephrase, restructure and / or strike out objectionable questions or offensive wording so that a Letter of Request may be executed under the laws of the requested State)?

German Central Authorities endeavour to execute Letters of Request containing objectionable questions or offensive wording. To this end, they delete or rephrase certain passages after consulting with the requesting authority. However, Central Authorities will not execute Letters of Request if a certain threshold of objectionable questions or offensive wording is exceeded.

Is the witness provided in advance with a copy of the questions / matters to be addressed as contained in the Letter of Request?

No.

Are documents produced by the witness authenticated by the court?

No.

Is an oath generally administered to the witness?

In practice, witnesses are sworn in only in exceptional circumstances.

Can the witness be made subject to further examination and recall?

Yes, but a second request is necessary.

Are there sanctions for non-appearance of witness?

Yes. Pursuant to Section 380 of the German Code of Civil Procedure (ZPO), the witness may be charged for the costs caused by his failure to attend. A disciplinary fine may also be imposed on him. When the decision imposing the fine is unenforceable, confinement for contempt of court may be imposed.

Must interpreters who assist with the witness examination be court-certified?

Yes.

How is the testimony transcribed?

A record is made of the taking of evidence pursuant to Sections 159 ff of the German Code of Civil Procedure (ZPO).

Chapter II
(Taking of evidence by diplomatic officers, consular agents and commissioners)

Article 15

Applicable. The taking of evidence by diplomatic officers or consular agents is not permissible in its territory if German nationals are involved.

Article 16

Applicable. The taking of evidence by diplomatic officers or consular agents is not permissible in its territory if German nationals are involved. See conditions and competent authority.

Article 17

Applicable. See conditions and competent authority.

Article 18

No declaration of applicability (i.e., a diplomatic officer, consular agent or commissioner may not apply for appropriate assistance to obtain evidence by compulsion).

Taking of evidence by video-links
(under either chapter)
 

Chapter I

Are there legal obstacles to the use of video links?

No. The term "taking of evidence" is open, allowing the taking of evidence by video-link to be included.

The taking of evidence by video-link for foreign court proceedings is regarded as a special form of taking evidence which may take place without any specific provision because it does not contradict the principles of German law. The persons concerned however, whose image and voice are transmitted, have to agree for their evidence to be taken by video-link as in German law.

Technology used:

No information available.

Level of interpretation required:

No information available.

Simultaneous or in sequence interpretation:

No information available.

Interpretation required in which jurisdiction?

No information available.

Who pays for the interpretation?

No information available.

How would a request for evidence be handled if witness not willing?

No information available.

Chapter II

Are there legal obstacles to the use of video links?

Yes, because it is not guaranteed that the persons concerned have agreed for their evidence to be taken by video-link as provided by German law.

Technology used:

No information available.

Level of interpretation required:

No information available.

Simultaneous or in sequence interpretation:

No information available.

Interpretation required in which jurisdiction?

No information available.

Who pays for the interpretation?

No information available.

Bilateral or multilateral agreements

Supplementary agreements to the Hague Convention of 17 July 1905 and/or of 1 March 1954 were concluded with:  Norway (1977) and Switzerland (1910).

Bilateral conventions on judicial co-operation: United Kingdom (1928) insofar as it also applies to States other than the United Kingdom e.g., Australia, the Bahamas, Canada, Kenya, Malaysia, New Zealand and Nigeria; Morocco (1985), Tunisia (1966).

Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

Useful links:

Internationale Rechtshilfe online (in German only).

(This page was last updated on 10 March 2014)

Conventions