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Joint Senate of the Supreme Courts of the Federation

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The individual branches of the specialised courts in Germany with the Joint Senate.

The Joint Senate of the Supreme Courts of the Federation (GmS-OGB), also referred to as the Joint Senate for short, is an institution for safeguarding the uniformity of the jurisdiction of the supreme courts of the Federation referred to in Art. 95 Paragraph 1 of the Basic Law.

Legal basis for its establishment is Art. 95 Para. 3 GG

The Joint Senate shall have its seat in Karlsruhe (§ 1 Paragraph 2 RsprEinhG).

Legal regulation

Basic data
Title: Act on the Preservation of the Uniformity of the Jurisdiction of the Supreme Courts of the Federation
Short Title: Uniformity of Jurisdiction Act (not official)
Abbreviation: RsprEinhG
Art: Federal Law
Scope: Federal Republic of Germany
Enacted pursuant to: Article 95 (3) sentence 2 GG
Legal Matter: Administration of justice
Finding aid: 304-1
Issued on: 19. June 1968
(BGBl. I p. 661)
Effective Date: 1. July 1968
Last modified by: Art. 144 VO of 31 August 2015
(Federal Law Gazette I p. 1474, 1497)
Entry into force of the
latest amendment:
8. September 2015
(art. 627 VO of 31 August 2015)
Weblink: Text of the law
Please note the reference to the current version of the law.

Tasks

Although the jurisdiction of the individual branches of the courts is precisely delimited, it cannot be avoided that one and the same legal question is the subject of the decisions of several supreme courts and is judged differently by them. Since the establishment of the higher federal courts with the foundation of the Federal Republic of Germany in 1949, 29 divergences had become known, most of which were based on a different appreciation of the facts of life on the particularities of the fields of law for which the individual higher federal courts had jurisdiction.[1][2]

With effect from 23 June 1968, therefore, Article 95 of the Basic Law was revised[3] and the Act on the Preservation of the Uniformity of Jurisdiction of the Supreme Courts of the Federation regulated the details of the Joint Senate.[4]

The task of the Joint Senate is to maintain the uniformity of jurisdiction in the specialised courts. Insofar as the deviations are due to a different interpretation of the Basic Law, the Federal Constitutional Court ultimately decides

The Joint Senate shall decide a question of law if a supreme federal court wishes to deviate from the decision of another supreme federal court or the Joint Senate on a question of law (§ 2 Paragraph 1 RsprEinhG). It decides only on the disputed question of law (§ 15 Paragraph 1(1) RsprEinhG) and thus only to the extent that it is necessary in the individual case for the elimination of the divergence in the case-law of the supreme courts

Like the Federal Constitutional Court, the Joint Senate is not a super-revision instance, but is rather established as a mediating body between the highest federal courts. This does not prolong the legal proceedings before the non-constitutional courts.[5]

Composition

The Joint Senate shall be composed of the Presidents of the Federal Court of Justice, the Federal Administrative Court, the Federal Labour Court, the Federal Social Court and the Federal Finance Court, supplemented, as the case may be, by the Presidents and one other judge of each of the participating Senates (§ 3 RsprEinhG). The joint senate is chaired by the most senior president of the non-participating supreme courts (§ 5 RsprEinhG). The referring senate and the senate of the supreme court from whose decision the referring senate wishes to deviate are involved (§ 4 Paragraph 1, Sentence 1 RsprEinhG).

Decision

The decision of the Joint Senate in the present case is binding on the cognizing court (§ 16 RsprEinhG).

Cases heard and decisions rendered

If the senate of the supreme court from whose decision a deviation is to be made joins the legal opinion of the referring senate by order within one month, the proceedings shall be discontinued (§ 14 RsprEinhG). Otherwise, a decision on the merits of the case is taken by the Joint Senate (since its foundation in 1968 on average about every two years, with a decreasing tendency).

GmS procedure Date Decision of the GmS submit.
Court
Output
Procedure
GmS-OGB 1/10 22.Aug. 2012 The German rules on the pharmacy selling price also apply to prescription-only medicinal products which pharmacies established in another Member State of the European Union supply to final consumers by mail order in Germany. BGH I ZR 72/08
GmS-OGB 1/09 27.Sep. 2010 An action brought by the insolvency administrator against an employee of the debtor for restitution of remuneration paid by the debtor pursuant to section 143 (1) InsO shall be subject to the jurisdiction of the labour courts. BGH IX ZB 182/08
GmS-OGB 1/98 5.Apr. 2000 In proceedings with compulsory representation, determinative pleadings may be transmitted in due form by electronic transmission of a text file with a scanned signature to a fax machine of the court. BGH XI ZR 367/97
GmS-OGB 1/92 27.Apr. 1993 A judgment which has not been fully drafted at the time of delivery is not reasoned within the meaning of section 138 no. 6 VwGO if the facts of the case and the reasons for the decision have not been set down in writing, specially signed by the judges and handed over to the registry within five months of delivery. BVerwG GrSen 1/91
GmS-OGB 1/91 30.June 1992 Apartments and other rooms in existing buildings can also be self-contained within the meaning of § 3 (2) sentence 1 WEG if the partition walls and partition ceilings do not comply with the requirements imposed by the building code of the respective federal state. BGH V ZB 12/90
GmS-OGB 1/88, 2/88 10.July 1989 Legal disputes between a substitute health insurance fund and a general local health insurance fund on the admissibility of measures in the field of membership recruitment are subject to the jurisdiction of the courts of social jurisdiction. BGH I ZR 116/85
GmS-OGB 6/86 12.March 1987 The term “those employed for their vocational training” in Sec. 5 (1) BetrVG and Sec. 4 (1) BPersVG has different regulatory contents and can therefore be interpreted differently by the Federal Labour Court and the Federal Administrative Court. BAG 6 ABR 8/83
GmS-OGB 3/86, 5/86 29.Oct. 1987 Legal disputes between non-medical service providers and statutory health insurance institutions concerning the remuneration of medical bathing services can be brought before the ordinary courts, irrespective of whether the relationship between service providers and insurance institutions is based on contract or not. BSG
GmS-OGB 2/86, 1/86, 4/86 29.Oct. 1987 Legal disputes between the providers of the specialised trade and the institutions of the statutory health insurance on the admissibility of the reuse of aids belonging to the health insurance funds (e.g. wheelchairs, forearm supports, bed-wetting devices) and their renewed transfer for use to persons entitled to benefits are subject to the ordinary course of law. BSG
GmS-OGB 1/85 10.Apr. 1986 Legal action for approval to supply insured persons with therapeutic appliances and aids on the basis of a contract between statutory health insurance providers or their associations and service providers may be brought before the ordinary courts. BSG
GmS-OGB 2/83 17.Apr. 1984 If an appeal filed without a power of attorney is dismissed as inadmissible by a trial judgment because no power of attorney for the appellant’s representative was submitted despite the court setting a deadline, this defect cannot be remedied retroactively in appeal proceedings by a power of attorney now granted and the approval therein of the previous conduct of the proceedings. BVerwG
GmS-OGB 1/83 24.Oct. 1983 If an appeal against a judgment, which in itself is admissible and has been lodged in due time, is dismissed after expiry of the time limit for appeal, the judgment shall become final within the meaning of section 705 of the Code of Civil Procedure when the decision dismissing it becomes final. BSG
GmS-OGB 2/82 27.Jan. 1983 The training relationship of a nurse who has successfully passed the final examination pursuant to Section 13 of the Nursing Act before the expiry of the three-year training period provided for in Section 9(1) of the Nursing Act shall end on the date of the examination pursuant to Section 14(2) of the Vocational Training Act. BAG
GmS-OGB 1/82 25.Nov. 1982 The maintenance allowance paid to civil servant candidates in the period from 1 April 1943 to 30 September 1944 is not remuneration within the meaning of § 160 para. 1 sentence 1 of the Reich Insurance Code in the version applicable at that time. BSG
GmS-OGB 1/78 30.Apr. 1979 The statement of grounds of appeal of a corporation or institution under public law or of a public authority shall comply with the statutory written form even if the name of the author, reproduced in typewritten form, is accompanied by a notarisation. BSG
GmS-OGB 2/75 9.Nov. 1976 If the postal employee omits to mark the day of service on the item as required by section 195(2), second sentence, of the Code of Civil Procedure, service is not invalid, but the time limits referred to in section 9(2) of the VWZG (section 187, second sentence, of the Code of Civil Procedure) are not set in motion. BFH I R 236/74
GmS-OGB 1/75 16.March 1976 The jump appeal pursuant to § 134 VwGO, § 161 SGG (old and new version) does not require the consent (approval) of the defendant. BSG
GmS-OGB 2/74 6.May 1975 A person who, as the fiancé of a persecuted person, was also affected by National Socialist measures of violence and who married the persecuted person only later is not considered to be a close relative within the meaning of Sec. 1 (3) item 4 of the Federal Act on the Creation of a Family. BGH IX ZR 135/71
GmS-OGB 2/73 4.June 1974 The claim to the employer’s allowance under section 405 of the Reich Insurance Code is subject to recourse to the courts of social jurisdiction. BSG
GmS-OGB 1/72 6.Feb. 1973 A federal supreme court, if it has since changed its legal opinion on which the remand was based and the same case is again before it, is not bound by its initial legal opinion. BFH GrS 8/70
GmS-OGB 2/71 6.July 1972 When calculating the one-month period of display pursuant to § 2 (6) sentence 1 BBauG, the first day of the display shall be counted. BGH III ZR 115/70
GmS-OGB 3/70 and others 19.Oct. 1971 It is not within the scope of discretion available to the authority not to regard the summoning of an insurance general agent with mixed activities to pay trade tax with the income earned from administrative activities for the years before 1962 as inequitable within the meaning of § 131 (1) sentence 1 AO. BVerwG
GmS-OGB 1/70 15.March 1971 Section 9 (1) sentence 2 of the Law on Telecommunications Installations (FAG) of 14 January 1928 (RGBl. I 8) also opens legal recourse before the ordinary courts after the entry into force of Section 40 VwGO with regard to the reason and the amount of the fees. BGH

Literature

  • Fritz Baur: Der Gedanke der “Einheitlichkeit der Rechtsprechung” im geltenden Prozessrecht. JZ 1953, PP. 326-329.
  • Martin Schulte: Rechtsprechungseinheit als Verfassungsauftrag: Dargestellt am Beispiel des Gemeinsamen Senats der obersten Gerichtshöfe des Bundes. Duncker und Humblot, Berlin 1986, ISBN 3-428-06069-5.
  • Ober, Oberst. In: Der Spiegel. No. 18, 1970, p. 81(online ).

Web links

Individual references

  1. Draft of a law to preserve the uniformity of the jurisdiction of the supreme courts of the Federation BT-Drs. V/1450 of 20 February 1967.
  2. Divergences in the Jurisprudence of the Higher Federal Courts, BT-Drs. V/1450 of 20 February 1967 (Annex).
  3. Sixteenth Act amending the Basic Law of 18 June 1968, BGBl. I p. 657
  4. Act on the Preservation of the Uniformity of the Jurisdiction of the Supreme Courts of the Federation
  5. Draft of a law to preserve the uniformity of the jurisdiction of the supreme courts of the Federation BT-Drs. V/1450 of 20 February 1967, p. 6.