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The interest on the court fees paid in advance

In civil proceedings the plaintiff is obliged in the first instance pursuant to article 12 GKG to advance the court fees. If he wins the case he can request the defendant to pay him the advanced payment. According to the procedural law the plaintiff has the right to an interest on the amount paid at the end of the proceedings (see § 104 paragraph 1 S.2 ZPO). It is also possible to bring an action in order to have an interest on the advanced payment on court fees.

Starting position
If a debtor is late in his payments he is pursuant to article §§ 286, 288 BGB under an obligation to pay default interest for the period of delay. Thus the debtor shall compensate for damages caused by the delay; the creditor is deprived of the possibility of making use of his money. If the creditor wants to assert his claim he can use legal action and must pay the court fees at the beginning of the proceedings at first instance. At the end of the proceedings he has the right of an interest on the amount paid in advance. During the proceedings he is not able to make use of his money. The same applies for other fees or advanced payments e.g witnesses and experts (hereinafter only mentioned as court fees). Until the end of the proceedings - if one party involved appeals - years can pass. Especially when the economic value of the dispute is high, this means that the plaintiff has to forego possible profits of interest.  If the amount in dispute is 300.000, --€, the court fees to pay in advance are 7.386,--€. In case of a four year legal battle the plaintiff would lose an interest amount of about 1.500,-- €.

2. Legal basis

Once submitted the application for taxation of the costs pursuant to article § 104 paragraph 1 p. 2 ZPO (code of civil procedure) the creditor can ask for an interest rate of five percent above the base rate in accordance with article § 247 BGB. The only precondition is that the plaintiff makes an application pursuant to article § 104 paragraph 1 p. 2 ZPO (code of civil procedure).

In the procedural law there is no disposition that there is an interest to be paid on the advanced payment on court fees during the main proceedings.  For this period of time we have to consider the substantive law regulations of delay. As we have an interest on the amount advanced pursuant to article §§ 286, 288 BGB we assume there is a claim for payment.

a) Payment claim

The payment claim is the entitlement to be refunded the advanced payment of court fees pursuant to article §§ 280 paragraph 1, 286 BGB. The court fees are legal cost and are like attorney's fees part of the damage due to delay in accordance with article § 286 BGB (see  Lüttringhaus, NJW 2014, 3745, 3746 m.w.N.). Paying the court fees in advance the plaintiff has the right to be refunded at first instance by the court cashier

b ) Delay

The defendant must be in default of the payment of the court fees.  He is exactly in default when the plaintiff sends him a reminder in accordance with article § 286 paragraph 1 p. 1 BGB or when it is not necessary to remind him pursuant to article § 286 paragraph. 2 BGB.

After paying in advance the court fees the plaintiff should claim for refund outside the court system. The defendant would be in default of the payment of the amount pursuant to article § 286 paragraph 1 BGB. The plaintiff might bring this in the action and ask an interest on the amount paid in advance.

According to us this is not a good solution, we suggest at the time the action is filed to ask for an interest on the amount paid in advance.  The defendant is in default pursuant to article § 286 paragraph 2 nr. 3 BGB when he seriously and definitely refuses the service. Such a serious and definite refusal is evident when he files a motion to dismiss. With this motion to dismiss the defendant expresses his will not to pay the principal sum. He also puts in evidence that he does not want to refund the court fees (see Lüttringhaus, a.a.O., 3746; BGH, ruling from December 8, 1983, reference number VII ZR 139/82 = NJW 1984, 1460, 1461). The serious and definite refusal is evident pursuant to article § 286 paragraph 2 nr. 3 BGB at the moment when the plaintiff is given notice of the motion to dismiss.

Thus the plaintiff loses a certain amount of interest after paying in advance the court fees and after the notice of the motion to dismiss has been issued to him. This advantage in terms of interest would be cancelled by the costs of an extrajudicial warning. In our present case (value in dispute: 300.000, --€) the interest on the court fees (7.386, --€) would be after two months about. 60, --€. The attorney's fees in case of an extrajudicial warning (value in dispute: 7.386,    € advanced payment of court fees) would be 592, 80 €.

c) Previous criteria in case-law

In previous legal proceedings the delay conditions have not been examined very precisely. The courts found that the defendant has to pay an interest on the amount of court fees paid in advance, because he is in delay of performance.  (See OLG Düsseldorf, ruling from July 18, 2007, reference number. 2 U (Kart) 11/05 = openJur 2011, 57053, number B. III. 3.; OLG Hamm, ruling from December 16, 2011, reference number 19 U 154/10 = openJur 2012, 83890, number III. 4. b); LG Bielefeld, ruling from August 29, 2007, reference number 4 O 293/06 = openJur 2011, 54778, number 5.). In the previous case-law the courts did not distinguish sharply between the delay and the main claim and the delay and the reimbursement of the court fees paid in advance as part of legal costs (negative: OLG Karlsruhe, ruling from July 10, 2012, reference number 8 U 66/11 = NJW 2013, 473, 474; LG Saarbrücken, ruling from July 29, 2013, reference number 13 S 41/13 = BeckRS 2013, 15583).

d) Legal consequence: the interest rate is five percent above the prime rate

The plaintiff pursuant to article  § 288 paragraph 1 BGB can request an interest rate of five percent above the prime rate in accordance with article§ 247 BGB, because the defendant is in delay with the payment of the court fees advanced by the plaintiff from the moment on he issues the motion of dismiss.  It is not possible to have an interest rate of nine percent above the prime rate pursuant to article § 288 paragraph 2 BGB because the refund claim is not a claim for remuneration.

The amount which the defendant has to reimburse is fixed in the decision closing the proceedings. Only after the decision has been made by the court can be decided upon the interest rate that has to be paid on the amount of the court fees paid in advance.

3. Suit for performance or declaratory action?

In both literature and case-law there is no consensus among the parties on whether it is better to claim for default interest in a suit for performance or in a declaratory action.
   
a) Declaratory action

The advantage of bringing an action for a declaratory judgment is that at the beginning of the proceedings the exact amount that is demanded cannot be quantified. For the one none knows the exact amount of interest. For the other no one knows the exact moment in which the court fees have been paid and when the application for taxation of costs has been submitted. Neither do we know the amount for which interest is to be calculated. (See. Lüttringhaus, a.a.O., 3748; OLG Brandenburg, ruling from June 07,2012, reference number 12 U 234/11 = NJW-RR 2013, 23, 25; LG Düsseldorf, ruling from January 11, 2006, reference number 12 O 165/05 = openJur 2011, 37788, Rdnr. 40; AG Bad Segeberg, ruling from  November 08, 2012, reference number. 17a C 256/10 = NJW-RR 2013, 864, 865). Hereinafter courts decided that the complaint for declaratory judgment is procedurally permissible and also well-founded on the merits.

  • OLG Schleswig, ruling from March 26 2013, reference number. 2 U 7/12, number III. = BeckRS 2013, 05660
  • HansOLG Hamburg, ruling from March 25 2004, reference number 3 U 184/03, number IV. = BeckRS 2004, 07309
  • AG Lebach, ruling from February 22 2013, reference number 14 C 43/12 = BeckRS 2013, 04934
  • AG Kaiserslautern, ruling from February 19 2014, reference number 4 C 514/13 = BeckRS 2014, 06351
  • AG Frankfurt am Main, ruling from July 25 2013, reference number. 31 C 120/13 = BeckRS 2013, 17687
  • AG Offenburg, ruling from October 31 2013, reference number. 3 C 205/12, = BeckRS 2013, 22191
  • LG Berlin, ruling from May 27, 2014, reference number. 14 O 529/12 = BeckRS 2014, 14564 (the plaintiff applied for entitlement to benefit)
  • AG Diez, ruling from April 17, 2013, reference number 8 C 4/13 = BeckRS 2013, 09581
  • AG Buchen, ruling from June 28,2013, reference number 1 C 113/13
  • AG Diez, ruling from October 23, 2013, reference number. 13 C 151/13 = BeckRS 2013, 01129
  • AG Darmstadt, ruling from December 21, 2012, reference number. 311 C 207/12 = BeckRS 2013, 01128
  • AG Darmstadt, ruling from December 21, 2012, reference number 311 C 208/12 = BeckRS 2013, 01129
  • AG Oberkirch, ruling from April 18 2013, 1 C 183/12
  • AG Dietz, ruling from February 07, 2012, reference number 8 C 233/11 = BeckRS 2012, 05587
  • AG Trier, ruling from November 17, 2009, reference number 6 C 122/09 = BeckRS 2010, 13321
  • AG Düsseldorf, ruling from April 01, 2014, reference number 23 C 3876/13 = BeckRS 2014, 07991

b) Action for performance

According to us the action for performance is admissible (see also OLG Düsseldorf, a.a.O., B. III. 1.; LG Bielefeld, a.a.O., number 5.). The plaintiff can establish the period of time for which interest has to be calculated by presenting an official document pursuant to article § 726 ZPO (code of civil procedure): the application for taxation of costs together with the receipt stamp (see OLG Düsseldorf, a.a.O., B. III. 1.). The amount for which interest has to be calculated is the amount fixed in the final decision of the proceedings. The exact moment the court fees are paid in advance can be established by court because it is known at the end of the hearing before court as well the time lis pendence takes place in relation to interest in case of pending proceedings. The following Courts justified the lawsuit:

  • LG Koblenz, ruling from February 05, 2013, reference number 6 p 192/12 = BeckRS 2013, 03596 (in the second instance)
  • AG Bochum, ruling from April 18, 2013, reference number 47 C 527/13 = BeckRS 2013, 07659

4. We suggest the following wording

a) Motion
We suggest, on filing a legal action, to submit the following application:

...to ask the defendant to pay an interest rate of five percent above the base interest rate in accordance with article § 247 BGB on the court fees paid in advance. The exact period of time for which interest has to be calculated is to be fixed taking into account the date of the notification of a motion to dismiss and the date of receipt of an application for taxation of costs in accordance with the expenses ratio.

b) Legal appraisal
The plaintiff is entitled to an interest to be calculated on the court fees paid in advance pursuant to article §§ 286, 288 BGB. The claim to reimbursement of the court fees paid in advance is part of the legal costs and arises from defendant's delay with meeting of the principal claim. (see Lüttringhaus, NJW 2014, 3745, 3746; OLG Düsseldorf, ruling from July 18,2007, reference number 2 U (Kart) 11/05 = openJur 2011, 57053, number B. III. 3.; OLG Hamm, ruling from December 16, 2011, reference number 19 U 154/10 = openJur 2012, 83890, number III. 4. b); LG Bielefeld, ruling from August 29, 2007, reference number 4 O 293/06 = openJur 2011, 54778, number 5.). As soon as the defendant submits a motion to dismiss, he seriously and finally refuses to refund the court fees paid in advance in accordance with article 286 Abs. 2 Nr. 3 BGB. By submitting the motion to dismiss he also expresses that he does not want to pay the court costs. (See. Lüttringhaus, a.a.O., 3746; BGH, ruling from December 08, 1983, reference number VII ZR 139/82 = NJW 1984, 1460, 1461). The final amount of the interest is defined pursuant to the rules of article § 288 paragraph 1 p. 2 BGB.

To download the article in format PDF click here.

Amendment dated October 12, 2015:

With the ruling from April 01, 2014 the local Court Düsseldorf joined the ranks of the courts that grant the plaintiff's application for the taxation of costs after the late one having paid in advance the courts fees. (AG Düsseldorf, ruling from April 01, 2014, reference number. 23 C 3876/13 = BeckRS 2014, 07991). The court also decided that the defendant is obliged to pay an interest on the amount of court fees paid by the plaintiff until he submits an application for the taxation of costs. The local court also stated, referring to a decision taken by the Federal Supreme Court from April 19, 2000, that the delay is the basis of a determinable legal relationship between the parties involved. (See BGH, ruling from April 19, 2000, reference number. XII ZR 322/97, number 1. = NJW 2000, 2280, 2281). The application for assessing the obligation to pay default interest is admissible as provided by article § 256 paragraph 1 ZPO (code of civil procedure), because it is not a preliminary question to establish if there is a legal relationship between the parties involved. All the other prerequisites were satisfied: the plaintiff has an interest on bringing proceedings, because there is no other way to obtain an enforceable judgment against the defendant. The application was admissible, because the amount of the court fees paid in advance as part of the legal costs is to be considered a damage caused by delay. The duty of costs reimbursement pursuant to article §§ 91 ZPO (code of civil procedure) does not exclude the claim for material compensation from delay in accordance with article §§ 280 paragraph 1, 286 paragraph 1, 288 paragraph 1 BGB

We added the ruling in our PDF database.