Amicus Curiae

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Amicus Curiae (also Amicus Curiae , Pl. Amici curiae , lat. Friend of the Court , English. Friend of the Court , abbreviated amicus ) is used in particular in US law to describe a disinterested person or body of persons which it is permitted to important Comment on any pending litigation .

The amicus curiae highlights essential technical aspects of the legal dispute and possible decisions. He can provide in-depth information and expertise to the deciding court. However, he does not need to be completely independent. It is important not to be a party. Often the interests of the amicus are indirectly affected by the legal dispute and the decision. It is also permissible to sharpen an interest page or a partial aspect and present it in a pointed manner. Especially in the conflict and in the weighting of the arguments, he shows the court a "service of friendship".

The amicus curiae has no independent procedural rights, making him one of interveners and by way of third party notice or cargo involved in the procedure third parties is different (see. § 67 second half of the sentence, § 74 para. 1 ZPO, § 66 Code of Administrative Procedure). Unlike a court-appointed expert , he is not limited to the factual question (question of fact) specified in the decision on evidence . He is also allowed to raise legal questions, and he is not obliged to be impartial.

Legal history

The involvement of outside third parties in judicial decision-making goes back to the legally educated assessors who advised the emperor on his jurisdiction in classical Roman antiquity and the related procedure of sending files in common law . The legal institute of the amicus curiae, however, comes from Anglo-American procedural law.

United States

meaning

In common law , the amicus acts as a kind of partisan expert in the public interest , for example in proceedings involving civil rights, capital crimes, environmental protection or questions of equality. For example, if a company is involved in a legal dispute, other companies with similar interests can express themselves as well as interest groups, trade unions, employers' organizations or the American Civil Liberties Union .

Litigation position

Access to the procedure

Amici curiae can be natural persons, legal persons, interest groups or state authorities. Parties to other pending lawsuits that deal with comparable legal issues can also be considered as amicus. The prerequisite for admission is that this

  • shows an interest in the matter
  • the parties agree, the court orders participation as an amicus or the court grants an application for approval of the amicus (motion of leave); Government agencies are free to comment on the procedure
  • the amicus' opinion can be helpful for the court.

A legal regulation can be found in Rule 37, Paragraph 1 of the Rules of Procedure of the US Supreme Court and in Rule 29 of the Federal Rules of Appellate Procedure.

No legal remedy is possible against a rejection as amicus by the court. 80% of the applications for approval are successful, but the court has the discretion to consider the content of an amicus in its decision.

Procedural rights of the amicus

The amicus communicates its legal opinion to the court in a brief similar to a private opinion. The pleadings must meet certain formal requirements and can usually only be submitted by a lawyer who is capable of postulating at the court concerned . Prominent examples are Lori Fisler Damrosch and the British law firm Allen & Overy . The brief is referred to as a brief 'amicus curiae' or amicus brief . This must represent a new point of view, which the parties have not or not fully put forward so far. Both factual and legal questions can be dealt with in the written submission .

However, the amicus has no right of application and is not allowed to take any legal action. He is only allowed to express himself in the context of the party’s presentations.

The amicus is seen as a friend of the court , but in practice is usually interested in a certain outcome of the process and thus supports one of the parties to the proceedings. So he does not argue independently and neutrally.

Practice, the amici in the US mainly due to the proceedings before the courts of higher instance such as the 13 federal appeals courts ( Federal Courts of Appeals ), the US Supreme Court and the appellate and supreme courts of the individual states concentrated the correspondingly greater importance for a particular interest group or the general public when it comes to interpreting the law or constitution of a state or that of the United States. Critics criticize the lobbyism of certain non-governmental organizations and other interest groups in their role as amici and their influence on the judiciary.

The courts can award an amicus compensation for its work in individual cases.

Germany

Constitutional jurisdiction

A legal figure like the amicus curiae is alien to German procedural law. "Approaches" can only be found in Germany in proceedings before the Federal Constitutional Court.

With the law of July 16, 1998, Section 27a and Section 23 (2) were newly inserted into the BVerfGG . The Federal Constitutional Court can then give “knowledgeable third parties” the opportunity to comment and request them to express their views within a certain period.

For thepractice of the Federal Constitutional Court,which until then was based only on the rules of procedure of the Federal Constitutional Court (BVerfGGO), § 27a BVerfGG also creates theopportunity for knowledgeable third parties (e.g. social groups, associations) to broaden its decision-making basis beyond the group of those entitled to join and express themselves To give an opinion (cf. § 22 para. 4, § 41 BVerfGGO), an express legal basis. However, the competent third parties requested by the Federal Constitutional Court in accordance with this provision in individual cases - and differing from procedure to procedure - do not receive the information specified in Sections 77, 82, Paragraphs 1 and 3, Section 83, Paragraph 2, Sections 84, 85, Paragraphs 2, Sections 88 and 94 (1) BVerfGG, the persons entitled to make statements have a comparable procedural position, in particular no own procedural rights.

The statements of knowledgeable third parties are requested in particular in constitutional complaint proceedings and in norm review proceedings .

In the first years after the establishment of the Federal Constitutional Court, the Bundestag, the Bundesrat, the Federal Government and the Federal President could request the plenary session of the BVerfG to provide a legal opinion on a certain constitutional issue, until the First Senate decided in 1955 to put an end to this "alien" opinion.

Specialized jurisdiction

In certain proceedings, knowledgeable third parties are enabled to conduct litigation themselves, in particular through the right of group actions . In the case of legal litigation , the association has its own right of action by virtue of the law (cf. e.g. § 64 BNatschG or § 15 BGG ); in the case of arbitrary litigation, an association is authorized to do so by the party authorized to conduct litigation (cf. § 85 SGB IX).

The assistants provided for under certain procedural rules, on the other hand, only support the claiming party without being a party to the litigation themselves (cf., for example, Section 23 (2 ) AGG ).

However, these forms of participation by third parties are to be distinguished from the legal status of an amicus.

In the interest of a uniform application of European antitrust law in the entire internal market, regulated in Art. 101, 102 TFEU since December 1, 2009 , the European Commission works together with the national competition authorities and courts. The legal basis is Article 11 et seq. Of Regulation (EC) No. 1/2003 of the Council of December 16, 2002. A German court can request the European Commission for an opinion on questions relating to the application of Articles 101 and 102 TFEU ( Section 90a (3 ) GWB ).

Austria

According to Austrian procedural law, the use of an amicus curiae is only possible to a very limited extent. From a procedural point of view, this is the submission of a private opinion by a third party, who is not a party to the proceedings, in support of one of the parties to the proceedings.

The approval of an Amicus Curiae in Austria (the “Association of Austrian Defense Lawyers”) was applied for for the first time in a procedure before the Constitutional Court and the decision was negative: “Participation is out of the question because nothing like this is provided for in the VfGG for the legal and ordinance review procedure is and a (derived from § 35 VfGG) analogous application of provisions of the Code of Civil Procedure (such as that on secondary intervention [§ 17 et seq. ZPO]) is not possible in the absence of a similar situation ” .

Liechtenstein

The Liechtenstein law of civil procedure is largely from Austria rezipiert and it is therefore the assistance of an amicus curiae also very limited. So far, however, the Supreme Court and the State Court have not dealt with the issue. In practice, doctrines and case law from Austria are taken into account in case law in Liechtenstein.

International jurisdiction

EFTA Court of Justice

According to Art. 20 of the Statute, the governments of the EFTA states, the EFTA surveillance authority, the European Union and the European Commission can submit pleadings or written statements on pending proceedings to the EFTA Court of Justice . One example is the Kottke proceedings from 2010, in which, in addition to the plaintiff and the defendant, the Principality of Liechtenstein, the EFTA surveillance authority and the European Commission also made statements.

European Court of Justice

In preliminary ruling proceedings under Art. 267 TFEU , in addition to the parties to the main dispute, the Member States, the European Commission in its role as guardian of the Treaties, and the bodies from which the act, the validity or interpretation of which is in dispute, originated, may submit pleadings to the ECJ or submit written declarations, under certain conditions also the contracting states of the EEA Agreement and the EFTA Surveillance Authority as well as third states that are contracting states of an agreement concluded by the European Council on a specific area.

European Court of Human Rights

According to Art. 36 ECHR in conjunction with Art. 44 of the Rules of Procedure of the European Court of Human Rights (ECHR), the High Contracting Party , of which the complainant is a national, is entitled to submit written statements in individual and state complaint proceedings and in oral hearings to participate. In the interests of the administration of justice, the President of the Court of Justice may give any High Contracting Party not party to the proceedings or any person concerned who is not the applicant the opportunity to submit observations in writing or to take part in the oral proceedings. In addition, the Council of Europe's Commissioner for Human Rights can give written opinions and take part in the oral proceedings.

The data subjects who are not complainants include international organizations , NGOs , national associations and companies as well as private individuals. In 2011, the German Institute for Human Rights participated in the procedure for sterilization without consent.

The persons or organizations appearing before the ECHR do not act neutrally and independently. On the contrary, they are interested in a specific outcome of the proceedings and also state this openly. In doing so, however, they do not join one of the parties to the proceedings. These third parties do not receive any compensation for their work before the ECHR.

International courts and arbitration

The International Court of Justice (ICJ) , the International Criminal Court (ICC) as well as interstate arbitration such as the international arbitration tribunals for investment disputes indicate that the role of a knowledgeable third party in international proceedings has been established.

Rule 103 of the Rules of Procedure for the International Court of Justice expressly provides for a written or oral submission by an amicus curiae designated as such . Art. 34 in conjunction with Art. 65 ff. Of the statutes of the International Criminal Court provide for written and oral statements by international organizations in the form of advisory opinions , including the ILO , the WHO or UNESCO .

Art. 13 of the rules of procedure for the settlement of disputes before the Dispute Settlement Body of the WTO permits requests for information and technical advice from knowledgeable third parties.

literature

  • Andreas Zuber: The EC Commission as amicus curiae; The cooperation between the Commission and the civil courts of the Member States in applying the competition rules of the EC Treaty. Heymann Verlag, Cologne 2001, ISBN 3-452-25200-0 .
  • Sören Segger: The Amicus Curiae in International Business Law. A comparative study of US, German, European, world trade and investment protection law and the Principles of Transnational Civil Procedure . Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155077-5 .

Web links

Wiktionary: amicus curiae  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Ulrich Kühne: Amicus Curiae. Judicial information procurement through the participation of third parties . Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-153147-7 .
  2. ↑ 9 current and exciting dissertations. Who brings the knowledge of the law into the judge's brain? , LTO , accessed on June 29, 2017 on Ulrich Kühne: “Amicus Curiae. Judicial procurement of information through the participation of third parties ”, dissertation 2014 Freiburg im Breisgau. Published in 2015 by Verlag Mohr-Siebeck.
  3. ↑ Ulrich Falk: In dubio pro amico? On expert opinion practice in common law , forum historiae iuris, August 14, 2000.
  4. ^ Thomas Ruthemeyer: The amicus curiae brief in international investment law . Nomos, 2014, ISBN 978-3-8487-1827-6 .
  5. ↑ Maria Berentelg: The Act of State doctrine as a future model for Germany? For review of foreign sovereign acts by state courts. Mohr Siebeck, Tübingen 2010, p. 224.
  6. ↑ Amicus Curiae , The free Dictionary by Farlex, accessed June 29, 2017.
  7. ↑ Rules of the Supreme Court of the United States , adopted April 19, 2013, effective July 1, 2013, accessed June 29, 2017.
  8. ^ Rule 29th Letter of an Amicus Curiae , Federal Rules of Appellate Procedure, accessed on June 29, 2017.
  9. ↑ Peter Heath Berger: The Amicius Curiae Brief. RIW 1996, p. 918.
  10. ^ Brendan Koerner: Do Judges Read Amicus Curiae Briefs? , accessed on June 29, 2017.
  11. ↑ Shon R. Hopwood: Both Style and Substance: The Anatomy of a Supreme Court Brief Cover , The Cockle Bur Blog, accessed June 29, 2017.
  12. ↑ Ronald B. Standler: Use of an Amicus Brief , January 16, 2007 (English).
  13. ↑ Maria Berentelg in: The Act of State Doctrine as a future model for Germany ?: for reviewing foreign sovereign acts by state courts. Mohr Siebeck 2010, p. 224.
  14. ↑ Hanspeter Dietzi: The 'amicus curiae letter' in American procedural law. Schweizerische Juristen-Zeitung (SJZ) 1985, Vol. 81, H. 6, P. 91 and 93
  15. ↑ Peter Heath Berger: The Amicius Curiae Brief. RIW 1996, p. 918 f.
  16. ↑ Kenneth Jost: The Amicus Industry. California Lawyer 21 (October 2001): 40.
  17. ↑ See Kansas City v. Kindle, 446 SW 2d 807 [Mon. 1969].
  18. ↑ Jürgen Basedow : The procedural framework for judge-made law - An Introduction , RabelsZ 2016, pp. 237-253
  19. ↑ Amicus curiae , Proverbia Iuris, accessed June 30, 2017.
  20. ^ Act amending the Federal Constitutional Court Act and the Act on the Official Salary of Members of the Federal Constitutional Court, Federal Law Gazette I 1823
  21. ^ Draft of a law amending the Federal Constitutional Court Act and the Act on the Official Salary of the Members of the Federal Constitutional Court , BT-Drs. 13/7673, p. 10.
  22. ↑ Example: Statement by the Legal Psychology Section in the BDP on the "Third Option" ( memento of the original from January 14, 2018 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. on the subject of civil status registration of intersex people , January 25, 2017. @1@ 2Template: Webachiv / IABot / www.bdp-verband.de
  23. ↑ Example: Statement of the office of the German Association as a competent third party ( [https://www.buzer.de/s1.htm?g=BVerfGG&a=27a § 27a BVerfGG) in the procedure BVerfG 1 BvL 7/16 ] on the question whether § 31a i. V. m. §§ 31 and 31b SGB ​​II with Art. 1 Para. 1 GG i. V. m. Art. 20 para. 1 GG and the resulting basic right to guarantee a decent subsistence level is compatible.
  24. ↑ BLL statement on § 40 Paragraph 1a LFGB , statement of the Federation for Food Law and Food Science (BLL) within the framework of the standards control procedure for the review of § 40 Paragraph 1a LFGB (official consumer information on health-endangering foods).
  25. ↑ § 97 BVerfGG in the version of March 12, 1951, Federal Law Gazette I 243.
  26. ^ Hans Vorländer : Does Karlsruhe co-rule? The Federal Constitutional Court between Law and Politics , Federal Agency for Civic Education / bpb, August 19, 2011.
  27. ^ Wiebke Blanquett, Chiara Casser: Amicus Curiae in Germany. Third-party involvement of associations and institutions through Amicus Curiae statements in court proceedings of the lower instances , Humboldt Law Clinic Grund- und Menschenrechte (HLCMR), 2016, p. 12 ff.
  28. ↑ Regulation (EC) No. 1/2003 of the Council of 16 December 2002 on the implementation of the competition rules laid down in Articles 81 and 82 of the Treaty, OJ. No. L 001 of January 4, 2003 p. 1
  29. ↑ According to Austrian procedural law, such a private opinion is usually evidence (a document ) that is submitted by the parties in support of their position (possibly also a party prelude). In other words, no third party who, more or less independently of the parties, represents his interests directly in court or who himself submits a pleading to the court or appears in the proceedings.
  30. ↑ Constitutional Court Act 1953, ÖBGBl. 85/1953.
  31. ^ VfGH, decision of December 1, 2011, reference number G85 / 11 et al .; V77 / 11 including guiding principle: Inadmissibility of an application for admission as an amicus curiae or intervener in an ex officio legal and ordinance review procedure .
  32. ↑ Protocol 5 of the Surveillance Authority / Court of Justice Agreement on the Statute of the EFTA Court of Justice as of 2010
  33. ^ Judgment of the Court of Justice of December 17, 2010 , Case E-5/10 regarding the interpretation of Article 4 of the Agreement on the European Economic Area
  34. ↑ Eckart D. Stratenschulte : European Commission , bpb, December 4, 2014.
  35. ↑ Art. 23 Statute of the Court of Justice of the European Union ( Memento of the original dated February 17, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. in conjunction with Art. 61, 93 ff., 96 Rules of Procedure of the Court of Justice , consolidated version of 25 September 2012 @1@ 2Template: Webachiv / IABot / www.europarl.europa.eu
  36. ↑ Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950
  37. ↑ European Court of Human Rights - Rules of Procedure , working translation by the Federal Ministry of Justice and Consumer Protection, July 1, 2014
  38. ↑ 2011, sterilization without consent, ECHR, complaint no. 61521/08 , Gauer and others v. France, website of the German Institute for Human Rights, accessed on July 3, 2017.
  39. ^ Wiebke Blanquett, Chiara Casser: Amicus Curiae in Germany. Third-party involvement of associations and institutions through Amicus Curiae statements in court proceedings of the lower instances , Humboldt Law Clinic Grund- und Menschenrechte (HLCMR), 2014, p. 11.
  40. ↑ See Rule 103 of Procedure and Evidence of the International Criminal Court (PDF), International Criminal Court, 2013 (English).
  41. ↑ Statutes of the International Court of Justice (PDF), accessed on July 4, 2017 (English).
  42. ↑ Advisory Opinions ( Memento of July 15, 2017 in the Internet Archive ), The International Court of Justice, Handbook, ISBN 978-92-1-071170-8 , p. 81 ff. (English).
  43. ↑ Philippe J. Sands, Ruth Mackenzie: International Courts and Tribunals, Amicus Curiae , Oxford Public International Law, accessed on July 4, 2017.
  44. ↑ Understanding on Rules and Procedures Governing the Settlement of Disputes , WTO website, accessed on July 4, 2017 (English).