Excessive substantiation requirements constitute a violation of the right to be heard in court

Authors: Georg Zander/Helena Gallinger


In civil law court proceedings, the principle of production of evidence applies. According to this principle, all facts that are relevant to the decision must be introduced into the proceedings by the parties on their own initiative and only these facts may be taken into account by the court in its decision-making.

In addition, the court must grant the parties the right to be heard. This right is laid down in German constitutional law, in Article 103(1) of the German Basic Law (Grundgesetz – GG), and in European law, in Article 6(1) of the European Convention on Human Rights. It results from the principle of the rule of law stipulated in Article 20(3) of the German Basic Law and, in addition to the hearing, also includes the assessment and consideration of the contents of the parties’ submissions in the decision-making process.

In practice, these two procedural principles may compete with each other if a party disputes a fact, but does not substantiate its statement. This raises the question of whether and to what extent a court is under obligation to clarify the facts without undermining the principle of production of evidence.

The courts have, therefore, developed principles for disputing a party’s submissions. The more concrete a party’s submissions are, the more substantiated the other party’s submissions disputing the relevant facts must be. A simple denial is not sufficient in these cases.

If a party has contested a submission in a substantiated manner and made an offer of evidence, it has fulfilled its duty to produce evidence and the court is obliged to clarify the facts of the case through the taking of evidence. The duty to grant a party the right to be heard in court in conjunction with Section 286 of the German Code of Civil Procedure finally also includes the duty to exhaustively examine the evidence presented.

In individual cases, the question often arises as to when the disputing of facts by a party is to be considered substantiated. Recently, the German Federal Court of Justice (Bundesgerichtshof– “BGH”) also had to deal with this question.


After a railway accident in which several wagons became detached from the front part of the train and derailed, the parties argued in an action for damages about who was to blame for that accident.

Through the accident, the superstructure, the overhead contact line systems and the control and safety systems sustained damage in the approximate amount of EUR 2,100,000.

The claimant, a railway infrastructure company, claimed that the train driver had applied a so-called parking brake on one wagon when the train was parked beforehand and that this had caused the derailment. The claimant substantiated its submissions by presenting an expert opinion on the accident that had been prepared by the Federal Railway Authority and two reports from the Federal Police Inspectorate.

The defendant, a railway transport company, disputed this course of events leading up to the accident, stating several possible alternative causes of derailment which were not within its own but rather within the claimant’s sphere of responsibility, including, for example, a defect in the railway infrastructure, such as objects lying around in the track area or defects in the points or in the brake blocks.

The defendant further argued that the ascertained damage to the wheelsets of the derailed wagon was inconsistent with the claimant’s submissions. Assuming that the claimant’s submissions were correct and a parking brake applied by the train driver had caused the accident, the damage to the wheelsets should have been identical. However, the wheelsets were damaged to different degrees.

The defendant offered to obtain an expert opinion by way of evidence.

In the first instance, the Regional Court of Verden largely upheld the claim and refrained from taking evidence to clarify the cause of the accident. The Higher Regional Court of Celle dismissed the subsequent appeal against this decision as being unfounded. It held that the defendant’s denial in the first instance had been unsubstantiated and, therefore, irrelevant from a procedural point of view and arrived at the conclusion that the Regional Court’s decision not to take evidence had, therefore, been lawful and did not constitute a procedural irregularity.

The defendant then filed a non-admission complaint with the Federal Court of Justice.


The Federal Court of Justice ruled that the dismissal of the appeal violated the defendant’s right to be heard in court under Article 103(1) of the German Basic Law in a manner relevant to the decision and referred the case back to the Court of Appeal.

According to the Federal Court of Justice, Section 138(2) of the German Code of Civil Procedure imposes the obligation on the parties to judicial proceedings to comment on the alleged facts stated by the respective opposing party. Where submissions are sufficiently disputed, the ruling court must make use of the parties’ offers of evidence. The requirements for the substantiation of a party’s submissions depend on the submissions made by the party that bears the burden of demonstration. If the requirements for disputing the opposing party’s submissions were too demanding, this would violate the right under Article 103(1) of the German Basic Law, which entitles the parties to comment on the facts of the case and the legal situation.

The substantiation requirements are excessive if submissions presuppose the knowledge of an expert.

A party meets its duties to substantiate, according to the Federal Court of Justice, if it states facts which, in conjunction with a legal rule, are suitable to make the right asserted by the other party appear to be non-existent. The statement of further individual facts beyond this scope cannot be required. Furthermore, it is irrelevant how probable the submissions are and whether they are based on a party’s own knowledge or on conclusions drawn from circumstantial evidence.

In the case at issue, the defendant sufficiently fulfilled its duty to substantiate: it made clear why it considered the claimant’s reasoning as to the cause of the derailment to be incorrect, specifically challenged the statements contained in the private expert opinion and pointed out possible other explanations.

The Federal Court of Justice finally pointed out that the taking of evidence could not be dispensed with either on the grounds that the facts for which evidence was being offered were based on a private expert opinion whose accuracy was disputed by the opposing party without substantiating the shortcomings of such opinion (cf. Federal Court of Justice, NJW 2009, 2894).

According to the Federal Court of Justice, there is no obligation for the defendant to put forward expert knowledge in response to submissions by the claimant which are supported by a private expert opinion and technical details. The ruling court was responsible for clarifying the facts of the case and it was not permissible for that court to disregard the defendant’s submissions without taking evidence.


With this decision, the Federal Court of Justice has once again emphasised the importance of guaranteeing the right to be heard in court and made it clear that while the statutory judge is free in his/her judicial decision, he/she must imperatively comply with the procedural principles guaranteed by the German Basic Law in reaching his/her judgement.

The requirement to hear the parties is intended to ensure that the decision to be made is made without any procedural errors that are based on failure to take note of and consider the parties’ submissions as to the facts of the case.

If the substantiation requirements defined by the court are too demanding and the court ignores a request for the taking of evidence, this constitutes a breach of the duty to grant the parties the right to be heard in court.

Restricting the constitutionally guaranteed procedural principle is only permitted in a few exceptional cases. Requests for the taking of evidence may be rejected, for example, if the fact for which evidence is being offered is irrelevant, has already been proven or is obvious, or if the evidence offered is inadmissible, inaccessible or completely unsuitable.

If a court wants to refrain from obtaining an expert opinion outside these groups of cases, it must demonstrate its own expertise in detail in the judgment (Federal Court of Justice, NJW 2000, 1946).