Actual deposit

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The actuarial deposit or process cost security is a security deposit for process costs . It is used in many countries or provided for in civil procedure law to protect the defendant from arbitrary litigation by the (foreign) plaintiff. In court proceedings, a defendant can run the risk that, even if the claim is dismissed and the plaintiff is sentenced to pay the costs, it will be impossible for him to enforce the cost decision abroad. The domestic court in various countries can therefore, under certain circumstances, require the plaintiff to provide security for legal costs in advance. This security is usually provided by paying a sum of money to the court.

Derivation of the name

Actorical deposit = security deposit (deposit) by the plaintiff (lat .: actor ). Several forms of litigation cost security are already regulated in Roman law , both for the plaintiff, the defendant and the legal representative and exceptions to them.

Agreement on the European Economic Area and EU law

The actuarial deposit is basically suitable to represent direct or indirect discrimination within the meaning of Art. 4 Agreement on the European Economic Area (EEA Agreement) or Art. 18 TFEU . In the Rs Data Delecta, the ECJ has already made a clear statement with regard to a process cost guarantee . In this case, the ECJ clearly stated that " such legal provisions (...) must namely neither lead to discrimination against persons to whom Community law confers a right to equal treatment, nor restrict the fundamental freedoms guaranteed by the Community " and came to the conclusion that the national regulation on the provision of process cost security is subject to the general prohibition of discrimination, " even if only indirectly - effects on the intra-community exchange of goods and services " are given. From this it can be concluded that direct indirect or direct discrimination is fundamentally incompatible with Art. 18 TFEU,

  • if a national from another Member State,
  • who has no assets and no place of residence there, a security for the costs of litigation is imposed in the event of an action before a civil court,
  • while this is not required of the nationals of this Member State,
  • provided there is no objective justification for this and
  • as a result, the intra-community exchange of goods or goods is only indirectly hindered.

Since Art. 4 EEA Agreement is worded identical to Art. 18 TFEU and the objectives of the Treaties in these areas are the same, this view of the ECJ can also be assumed to be fundamentally valid for the EEA Agreement. This view is supported in particular with regard to the decisions of the EFTA Court of Justice on the prohibition of discrimination .

Discrimination can be justified (for example under Art. 13 EEA or Art. 36 TFEU). However, not every objective justification is automatically justified, but a weighing of interests and goods must take place (in the sense of the prohibition of arbitrariness , proportionality , equal treatment, etc.). The result of the weighing of interests and interests of a different treatment of nationals and non-nationals in the same matter is objectively justified if " it (the different treatment) was based on objective considerations independent of the nationality of the person concerned and in an appropriate relationship to a legitimate purpose pursued by national law ”.

In other words, discrimination is only justified if it is based on objective considerations independent of the nationality criterion and is proportionate to a legitimate purpose.

Germany

The process cost security can be found in the German Code of Civil Procedure under § 110 ZPO. According to Section 110 (1) of the German Code of Civil Procedure (ZPO), a claimant who is not habitually resident in a member state of the European Union or a signatory to the Agreement on the European Economic Area (EEA) can, at the request of the defendant, be required to secure litigation costs. Section 110 (2) of the ZPO provides for further exceptions.

The regulation in § 110 ZPO (old version) had to be. a. on the basis of the judgment of the European Court of Justice of July 1, 1993 in the case C-20/92 (Hubbard, ECR 1993, I-3777).

Section 116 No. 2 ZPO generally does not apply to foreign legal entities. For natural and legal persons from EU member states and the EEA , Sections 1076 to 1078 ZPO apply in accordance with Directive EG / 2003/8. Therefore, EEA citizens and Union citizens can basically obtain legal aid in Germany like nationals.

Austria

The core elements of the Austrian Code of Civil Procedure (ÖZPO) dates from 1895.

The actuarial deposit was and is subject to considerable scientific criticism. Thus, Gustav Walker already established over 100 years ago that a process cost security

" An institute on which the rust lies for several centuries and which looks strangely enough under the modern, shiny armament of the new (Austrian) civil procedure law "

is. This statement was made 2 years after the Austrian Code of Civil Procedure came into force in 1895 and is said not to have lost any of its relevance to this day.

In Austria, the actuarial deposit is retained as a cover fund to enforce reimbursement of costs obtained against the applicant. The act of bail in accordance with Section 57 (1) ÖZPO is intended to ensure the protection of the defendant against abusive or cost-causing legal presumption by non-privileged foreigners (SZ 70/86 = ZfRV 1997, 167; ÖBA 1996, 719; SZ 67/237).

Art 57 para 1 ÖZPO therefore stipulates that if “ foreigners appear as plaintiffs before a court located in the area of ​​application of this law, they must provide the defendant with security for the litigation costs at his request, unless otherwise stipulated by international treaties ”. Due to the large number of international agreements (state treaties) that Austria has concluded and some exceptional provisions (for example in matters of marriage law, with regard to refugees, in mandate and exchange proceedings, etc.), the scope of this provision is severely limited, as in Germany.

As a result of membership in the European Union and the various agreements and legal acts under Community law, the provisions on the actuarial deposit i. d. Usually not applicable to Union citizens or EEA citizens.

Liechtenstein

A code of civil procedure ( FL-ZPO ) applies in Liechtenstein , which in the most essential areas and partly literally corresponds to the Austrian code of civil procedure (ÖZPO). In contrast to Austria, Liechtenstein has so far hardly concluded any bilateral international agreements on the possibility of enforcing legal costs abroad and there are no relevant (contractual) obligations or agreements under EEA law. As a result, in practice, almost all foreign plaintiffs who sought legal protection in Liechtenstein had to provide security for the costs of litigation at the defendant's request.

An exemption from the performance of the security for costs is also responsible for legal entities and foundations in the context of legal aid is not expressly provided for.

Articles 56 to 62 fl-ZPO (actuarial bail) were repealed in Liechtenstein with the decision of the State Court of Justice (StGH 2006/94, decision of June 30, 2008). In this ruling, the State Court of Justice abandoned its longstanding case law on the admissibility of the security of litigation costs and qualified the actuarial bail as non-EEA because this security of litigation directly and indirectly discriminated against EEA citizens and these regulations are not compatible with the EEA Agreement (Liechtenstein is member of the EEA since May 1, 1995). The trigger for the change in the case law of the State Court of Justice was a treatise and criticism by Anton Schäfer and the case law and criticism of the EFTA Court and the decisions of the Second Senate of the Liechtenstein Higher Court based on this to deviate from the permanent case law of the State Court of Justice.

LGBl 206/2009 implemented the provisions on the actuarial bail in the Principality of Liechtenstein in a slightly modified version in the code of civil procedure (Art 56 to 62 fl-ZPO, come into force on July 14, 2009 - the state parliament has declared this law to be urgent and the renewed enactment also applies to ongoing procedures and procedural steps that will be implemented after its entry into force). Since then, the actuarial deposit has to be applied again to all persons who request legal protection in court in the Principality of Liechtenstein and who cannot prove a place of residence or sufficient assets in Liechtenstein.

literature

Sources and References

  1. ^ Compare Max Kaser , Karl Hackl : Das Römische Zivilprozessrecht , Verlag CHBeck, 1978.
  2. ↑ Rs C-43/95, Data Delecta Aktiebolag , ECJ judgment of September 26, 1996, Slg 1996, I-4661.
  3. ↑ Margin no. 15 of the ECJ ruling cited above.
  4. ↑ See also Art. 21 para. 2 of the (still non-binding) EU Charter of Fundamental Rights , OJ 2000 C 364, p. 1ff.
  5. ↑ See ECJ Rs Saldahna, C-122/96, judgment of October 2, 1997 on process cost security.
  6. ↑ Zuleeg in von der Groeben-Schwarze (Ed.) In Commentary on the EGV and EUV, 6th edition, margin no. 3 on Art 12 of the EC Treaty. See also ECJ judgment in case C 147-03, margin nos. 48 ff and case C-323/95, Hayes, judgment of March 20, 1997, margin nos. 24.
  7. ↑ Judgment of the ECJ of July 7, 2005. - Commission of the European Communities v Republic of Austria. Case C-147/03, Rz 48.See also the judgments of November 24, 1998 in Case C274 / 96, Bickel and Franz, ECR 1998, I-7637, Rz 27, and D'Hoop, Rz 36.
  8. ↑ See also ECJ judgment in Rs Gravier, Slg 1985, p. 593, Rs Commission against Belgium, Slg 2004, I-6427.
  9. ↑ Law of August 1, 1895, RGBl 1895/113 including introductory law RGBl 1895/110. The basis for this code of civil procedure comes from the General Court Code of January 5, 1781 (JGS 13), which introduced a uniform civil law for the first time in the entire then crown lands of the Austrian monarchy.
  10. ↑ Gustav Walker in " Disputes from the international civil procedural law with special consideration of the new civil procedure laws ", Manz Verlag, Vienna, 1897, p. 65ff, quoted from LES 1986, 3, p. 85.
  11. ↑ With regard to the actuarial bail, the following correspondence existed between the fl-ZPO and the ÖZPO until it was repealed by the StGH: Section 56 (1) and (2) ZPO largely in agreement, Article 56 (3) ZPO in agreement. Section 57 of the ZPO was largely consistent with some deviations from various Austrian state treaties . Section 57a ​​and Section 57b ZPO was a new creation from Liechtenstein that was introduced by LGBl 4/1954. § 58 ZPO was extended in the fl-ZPO to appellants (ÖZPO only plaintiffs). Section 59 of the ZPO was largely consistent in terms of content, even if a few more details were regulated in the fl-ZPO. Section 60 (1) of the ZPO was almost literally the same. Section 60 (2) and (3) ZPO largely agree, but some details have been changed in the fl-ZPO. Section 61 ZPO was almost literally the same, but was also extended to appellants in the fl-ZPO. Section 62 (1) of the ZPO was expanded by one sentence in the fl-ZPO, and (2) was literally the same.
  12. ↑ The ZPO is therefore a legal provision that was largely in force in this form when the EEA Agreement came into force and in this respect does not constitute a violation of Article 8 (1) of the EEA Agreement. This also applies to §§ 57f of the ZPO which came into force in 1954.
  13. ↑ The granting of legal aid exclusively for natural persons is similar to the EU Legal Aid Directive , Art 3 (1) (Council Directive 2002/8 / EC of January 27, 2003 to improve access to justice in disputes with cross-border implications common minimum rules for legal aid in such disputes ).
  14. ↑ Anton Schäfer , The process cost security - a discrimination? Liechtenstein Legal Journal (LJZ) 3/2006, 17ff.
  15. ↑ Opinion of the EFTA Court in Case E-10/04, Piazza vs. Schurti and the report for the hearing in this case, para. 89 and the opinion of the European Commission .
  16. ↑ see OGH LES 2005, 62, 65 and OGH LES 2006, 233, 235 each with further references. The second Senate of the Higher Court, building on the cited paper by Schäfer and the case law of the EFTA Court of Justice, considered the regulation of the actuarial bail (Art 56 ff ZPO) to be unlawful to the EEA and decided to no longer apply this provision (see decisions of the Higher Court of January 13, 2006 to 02 CG.2005.266-20 and from May 10, 2006 to EX 2005.4305-43 and from May 10, 2006 to 04 CG.2004.415-50)
  17. ↑ With case E-5/10 (Dr. Joachim Kottke versus Presidial Anstalt and Sweetyle Foundation ), introduced by the Princely Higher Court on May 27, 2010, the provisions of Art 57 fl-ZPO were again submitted to the EFTA Court for examination Expertise submitted. Even after their (re-) introduction in 2009, the provisions of Art. 57 ff fl-ZPO are viewed in Liechtenstein very critically and in some cases as still incompatible with the EEA Agreement. With the opinion of December 17, 2010 in case E-05/10, the EFTA Court of Justice ruled (Rz 53 - Zif. 1), " A national procedural regulation, according to which non-resident plaintiffs in civil disputes must lay down security for the costs of litigation, while resident plaintiffs are not obliged to do so constitutes indirect discrimination within the meaning of Article 4 EEA . (Rz 53 - Zif. 2) " Such discrimination is justified for reasons of general interest if the national provision is both necessary with regard to the achievement of the intended purpose as well as being proportionate . "