Reformatio in peius

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Reformatio in Peius (orthographically also lower case letters allowed; from the Latin reformatio “change” and peius “the worse”; German terms: deterioration, anger ) is a legal term. It means that

The legal prohibition of such a worse position is called a deterioration prohibition .


Civil and criminal litigation

In civil proceedings , the Reformatio in Peius is only permitted if the other party has also filed an appeal.

In criminal proceedings , this applies equally to one procedural situation: the public prosecutor's office has a dual role. If she files an appeal in favor of the accused, a reformatio in peius is inadmissible, as is the case with an objection to a penalty order if the objection is limited to the amount of the individual daily rate in accordance with Section 411 (1) sentence 3 StPO and the court over this objection decides by way of a resolution (without a main hearing).

Administrative procedure and process

Reformatio in Peius in opposition proceedings

If an objection is lodged against the administrative act of an authority, then - if the exit authority does not remedy the objection - it will be checked by the objection authority, which issues a notice of objection (jurisdiction by virtue of suspensive devolving effect). It is undisputed that the exit authority may not add an additional complaint to the administrative act in opposition proceedings . It can only remedy the contradiction . It is very disputed whether the notice of objection may contain an additional independent complaint in relation to the initial notice.

Differentiation from the initial complaint

If the objection authority makes a decision that is more burdensome for the opponent than the original decision, either a case of reformatio in peius or self- intervention comes into consideration. There is no remedy if the appellant is complained for the first time in the notice of objection rather than in a new administrative act that may be linked to the notice of objection. A distinction must be made between whether the appellant is additionally obliged qualitatively (then: first complaint) or quantitatively (then: additional complaint). In the case of a first-time complaint, the objection authority acts as the relevant specialist authority on the occasion of the objection procedure.

Opinion level

The following aspects must be taken into account:

According to § 88 VwGO , the court is bound by the applicant's application. That corresponds to the principle ne ultra petita . From this one could logically infer that the opposition authority is also bound by the opposition's objection. Then only the request according to the (possibly partial) complaint should be remedied. However, this view is contradicted by the fact that § 88 VwGO only applies to court proceedings from the first instance onwards . The opposition procedure is subject to a dual legal nature, which means that it is also an administrative procedure. This is already clear from the fact that the opposition proceedings are not handled by a judicial panel, but by an administrative authority. Even if one qualified the objection procedure exclusively as a preliminary judicial remedy (which is hardly justifiable), § 79 para. 2 VwGO would stand in the way of § 88 VwGO , which apparently assumes the possibility of evil.

If an objection notice is admissible, it is to be feared that the person concerned will be deterred from using the objection. This could limit the effectiveness of legal protection ( Art. 19 (4 ) GG ).

It is not worthy of protection that the opponent's confidence is not worse than it would be if he had not initiated the opposition proceedings. From the effectiveness of the administrative act, the addressee has a kind of "expectation" of the future validity of the decision, because the authority can no longer unilaterally prevent the future validity of the administrative act (apart from Sections 48 f. VwVfG , which the authority also has To be available). The appellant himself gave up this position by submitting the appeal and giving the matter to the opposition authority for a further decision.

The objection authority has to carry out a comprehensive legal and expediency check. Because the administration is bound by the law ( Article 20 (3) of the Basic Law), the opposition authority must also be able to decide at the expense of the objector.

Section 79 (2) VwGO is obviously based on the admissibility of a reformatio in peius ; In the absence of a regulatory context at the federal level and legislative competence at the state level, Section 79 (2) VwGO can only regulate the admissibility of the dissolution to the extent that the objection procedure is concerned as a procedural preliminary remedy. If the objection procedure is an administrative procedure, Section 79 (2) VwGO is irrelevant. Section 79 (2) VwGO therefore does not regulate whether the objection authority is responsible for issuing an evil objection notice in the matter. Only if, according to administrative procedural law, the objection authority is also responsible for issuing the decision in question on the matter, it can also criminalize it.

According to the prevailing opinion, Section 79 (2) VwGO only regulates the procedural consequences of an erosion in the event that an erosion is permitted under administrative procedural law. This is the case when the objection authority is authorized to act against the citizen in the matter. How the authority of the objection authority arises to impose an independent additional complaint on the matter is to be assessed differently.

Identity of the exit authority and the objection authority Divergence of the exit authority and the objection authority
  • in the event of contradictions against administrative acts by intermediate authorities
  • generally in the event of contradictions against administrative acts by self-governing bodies; national legal deviations are permissible
for administrative acts of state sub-authorities
Opinion level general opinion BVerwG VGH Baden-Württemberg VwGO commentary Kopp / Schenke
Admissibility of an evil formal: organ responsibility by virtue of the same rule regarding jurisdiction if the objection authority is also the supervisory authority of the exit authority Responsibility arises from the suspensory devolution effect ( § 73 VwGO) if the objection authority is authorized to act against the citizen through a possible right of self-entry (in Bavaria e.g. Art. 3b BayVwVfG)
material: authority to intervene Occasionally, the regulations on revocation and withdrawal ( §§ 48 f. VwVfG) are used as a basis for intervention ; it is also argued that the basis for the intervention is the same as that which comes into consideration for the exit authority

The prevailing view today follows the Federal Administrative Court and, in the event of a difference between the exit and objection authorities, the objection authority is then responsible for the dissolution of the objection notice in the matter if it is also the specialist supervisory authority of the exit authority. According to the controversial opinion, the right to intervene in the rights of the citizen arises either analogously from the rules on the revocation and withdrawal of administrative acts or from the same basis for intervention that comes into consideration for the exit authority.

Lawsuit against the malicious notice of objection

The appellant can defend himself against the reformatio in peius by the opposition authority by means of a legal challenge . The following peculiarities exist in the admissibility:

  • Permissible type of action: According to the application for action ( Section 88 VwGO), it must be clarified whether the plaintiff is burdened with an initial complaint ( Section 79 (1) VwGO) or with an additional complaint as a result of the appeal decision ( Section 79 (2) VwGO). In the first case, the object of the challenge is always the administrative act of the objection notice. In the second case, the plaintiff can challenge the initial notice and the notice of objection or only the notice of objection.
  • Preliminary proceedings: No further objection can be filed against the notice of objection. The legal concept of Section 68 (1) No. 2 VwGO - namely the self-regulation of the executive - is also extended to cases of Section 79 (2) VwGO.
  • Respondent: If the initial decision and the objection notification are challenged, the respondent is the legal entity of the authority that issued the initial decision. If only the objection notice is attacked, the legal entity of the objection authority is the respondent.

In the justification, the following special features must be observed:

  • Formal legality: In terms of competence, a distinction must be made between "Reformatio in Peius" and "self-entry". In the case of self-participation, the objection was only the reason for the onerous regulation. The objection authority issues its own administrative act in place of the exit authority. It is only allowed to do this if it is legally authorized to do so (e.g. because the exit authority was incorrect or not executed at all) or the administrative act it issued is within its original responsibility (i.e. the exit authority was not even called upon to make a decision). In the Reformatio in Peius, the objection authority decides within the examination framework opened by the objection. The objection authority is only responsible for the deterioration if it was the exit authority itself, or if the exit authority is subject to its supervisory instructions.
  • If only the objection notice is attacked, the exit notice may not be examined (→ ne ultra petita )
  • Authorization to intervene: Section 68 VwGO formally authorizes the objection authority to comprehensively examine the initial decision, but does not provide any material legal basis for the deterioration. It is disputed what the basis for intervention is in these cases. In one view, the deterioration is to be seen as a partial repeal of the exit notice. Therefore, the special are lifting standards of the special administrative law or subsidiary to § 48 and § 49 of the respective Administrative Procedure Act as engaging authorization. According to the prevailing opinion, the deterioration is to be based on the authorization basis of the initial decision. The argument for this is the wording of § 68 VwGO: "Legal and expediency check"

In terms of procedural law, a hearing with regard to the deterioration is required in all cases in accordance with Section 71 VwGO.

Reformatio in Peius in the lawsuit

Reformatio in Peius by administrative courts is generally not permitted. It is exceptionally permissible in the following cases:

  • in the event of a counterclaim ( Section 89 VwGO)
  • in the event of a different request from a necessary party to the dispute ( Section 64 VwGO)
  • in the event of a different request from a necessary accessory ( Section 66 sentence 2 VwGO)
  • in the case of cross-appeal ( § 127 , § 141 VwGO)
  • in the absence of procedural requirements and a decision in the first instance, the appellate court may revoke the initial decision and & Completely pick up and
    • decide for yourself if no further clarification of the facts is necessary, although the determination of the facts and / or the gathering of evidence on the process requirements is admittedly permissible or
    • refer the matter back to the court of origin
  • if ancillary provisions to administrative acts are contested, if the basic administrative act would be unlawful if unlawful ancillary provisions were repealed
  • in the cost decision ( §§ 154 ff. VwGO), the decision on the provisional enforceability of a judgment ( § 167 para. 1 VwGO), unless applications by the parties are required (cases of § 710 sentence 2, § 712 ZPO ) and the Determination of the amount in dispute

Tax court process

In the opinion of the Federal Fiscal Court, no higher tax should be set in proceedings before the tax courts than in the tax assessment challenged with the complaint.

Social court process

The regulations for administrative courts apply accordingly in the social process ( § 123 SGG ).

Labor court process

In proceedings before the labor courts, the same principles apply via the referral in Section 46 (2) sentence 1 ArbGG as in general in civil proceedings .

Patent procedure

In the complaint procedure, only reasons for revocation that were the subject of the first instance may be examined. Failure to observe this limited seizure effect would lead to a violation of the principle of the prohibition of deterioration (reformatio in peius) applicable in legal remedies.

According to a fundamental decision by the Federal Court of Justice , the German Patent Office can, for procedural reasons, at its dutiful discretion, instead of these reasons or in addition ex officio or with the consent of the patent holder analogous to Section 263 of the German Code of Civil Procedure (ZPO), include other reasons for revocation in accordance with Section 21 PatG and, if necessary, as the basis for a revocation do. This applies in particular if third parties join the opposition proceedings as opponents after the opposition period has expired ( Section 59 (2) PatG).

The Federal Patent Court, on the other hand, has no power of disposal over the appeal procedure. Therefore, a decision in the appeal procedure according to Change § 99 PatG, §§ 308, 528, 557 ZPO like a civil court only to the extent that an amendment is requested. Nor may it award the complainant more than the latter requests.

For the appeal against decisions of the European Patent Office apply to the European Patent Convention own rules (EPC).

If the patent proprietor is the sole appellant against an interlocutory decision on maintaining the patent in amended form, neither the Board of Appeal nor the non-appealing opponent can question the wording of the patent in accordance with the interlocutory decision. If the opponent is the sole appellant, the patent proprietor is primarily limited to defending the patent in the version on which the opposition division based its interlocutory decision. Amendments proposed by the patent proprietor himself can be rejected by the Board of Appeal if they are neither relevant nor necessary. In a further decision, the Enlarged Board of Appeal decided that a reformatio in peius was not completely ruled out due to the lack of a provision on cross-appeal under the EPC because it could serve to avoid unnecessary disputes and at the same time satisfy the parties' right to be heard.


In Austria, the prohibition of reformatio in peius always relates to an appeal brought by the accused. This must never worsen the starting position of the accused. If, on the other hand, the opposing party (e.g. public prosecutor in criminal proceedings) raises an appeal, the penalty can very well be increased.

Tax law:

In Austrian tax law , the prohibition of deterioration means that no worse position due to a supreme court interpretation of the law may arise in terms of tax effects.

The prohibition of deterioration in § 117 of the Federal Tax Code (BAO) was repealed as unconstitutional by the Constitutional Court.

Criminal law:

In criminal proceedings, the reformatio in peius is explicitly forbidden in Section 16 of the Code of Criminal Procedure if an appeal is only brought in favor of the accused.

Administrative criminal law:

In administrative criminal proceedings, a basic distinction must be made between ordinary proceedings and the abbreviated proceedings of the VStG.

Ordinary procedure according to §§ 40ff VStG:

If a punishment is contested by the accused in the ordinary course of proceedings (penalty judgment) before the regional administrative courts , a reformatio in peius according to § 42 VwGVG is prohibited if the appeal is brought by the accused or in his favor.

Abbreviated procedure according to §§ 47ff VStG:

The prohibition of deterioration is not anchored in all types of the abbreviated procedure.

In the case of penal orders, a prohibition of deterioration is explicitly stated in Section 49 (2) VStG .

In the case of anonymous rulings according to § 49a VStG and organ penal orders according to § 50 VStG, no legal remedies are provided. Failure to pay the prescribed cash benefit will result in a penalty order or the initiation of the due process. In both cases, the imposition of a higher penalty is permissible.

Civil proceedings:

In the appeal proceedings, the court of the 2nd instance examines the decision of the first court only within the limits of the contestation applications ( Section 462 (1) ZPO). The higher court may not change the decision further than requested. Therefore, nothing worse can happen to the appellant than that his appeal is dismissed. This does not apply if both complained parties (plaintiff and defendant) file an appeal. In this case, the success of one appellant automatically worsens the legal position of the other.


The reformatio in peius is prohibited in civil proceedings. It is the result of the disposition maxim. This principle is broken if the official maxim (disputes regarding child support payments) or if the other party makes a cross appeal in accordance with Art. 313 E ZPO .

In military criminal proceedings, an objection to a criminal mandate is followed by due process before a military court , in which a reformatio in peius is permissible.

See also


  • Walter Hess: Reformatio in peius: the deterioration in opposition proceedings , Nomos-Verlagsgesellschaft, Baden-Baden 1990, ISBN 3-7890-2096-6 . (At the same time dissertation at the University of Tübingen, 1989, under the title: The Reformatio in peius in contradiction proceedings ).
  • Axel Kuhlmann: The prohibition of reformatio in peius in civil procedure law , Duncker & Humblot, Berlin 2010, ISBN 978-3-428-13259-1 . (At the same time dissertation at the University of Passau 2008/09).
  • Peter Nogossek: The prohibition of the reformatio in peius in the proceedings of the voluntary jurisdiction , university publication in the SWB catalog no .: 028287231. (At the same time dissertation of the University of Münster (Westphalia), 1991).
  • Johannes Wittschier: The prohibition of Reformatio in peius in the criminal procedural decision- making process, Stoytscheff, Darmstadt 1984, ISBN 3-87790-017-8 .

Individual evidence

  1. BFH, decision of March 10, 2016, Az.XB 198/15, Rn. 8 with further evidence
  2. ^ Rainer Engels: Patent, trademark and copyright law. 9th edition, Munich 2015. ISBN 978 3 8006 4753 8 . Reading sample , margin no. 402
  3. ^ Judgment of January 10, 1995 - X ZB 11/92 = GRUR 1995, 333 - aluminum trihydroxide
  4. General structure for the appeal procedure in patent matters
  5. Ralf Sieckmann: The assertion of further grounds for opposition after expiry of the opposition period before the German and the European Patent Office, in particular in the complaint GRUR 1997, 156
  6. ^ BGH, decision of February 23, 1972 - X ZB 6/71 = GRUR 1972, 592, 594 - sorting device
  7. Complaints procedure ( Memento of the original from May 19, 2016 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. Case Law of the Boards of Appeal, website of the European Patent Office, accessed on 19 May 2016 @1@ 2Template: Webachiv / IABot /
  8. Convention on the Grant of European Patents (European Patent Convention) of October 5, 1973 in the version of the Act revising Article 63 EPC of December 17, 1991 and the Act revising the EPC of November 29, 2000. Website of the European Patent Office, Retrieved May 19, 2016
  9. R. Schulte: Reformatio in peius and subsequent complaint before the EPO , GRUR edition 10–11 / 2001
  10. G 9/92 and G 4/93 (OJ 1994, 875)
  11. T 239/96
  12. Binding to the applications - prohibition of the "reformatio in peius" ( memento of the original from May 19, 2016 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. Case Law of the Boards of Appeal, website of the European Patent Office, accessed on 19 May 2016 @1@ 2Template: Webachiv / IABot /
  13. Federal Law Gazette I No. 2/2005 , published on January 14, 2005.