JUNG v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
The applicant, Ms Meike Jung, is a German national who was born in 1970 and lives in Berlin. Together with Mr W., the applicant held shares in a limited liability company which in 2001 took out several loans from the Berliner Volksbank eG for which both the applicant and Mr Weiβ provided directly enforceable guarantees (selbstschuldnerische Bürgschaft). In July 2002 the bank terminated the loans on account of arrears and claimed the outstanding debts from the applicant. After the applicant had refused to pay, the bank invoked the guarantees and in 2004 brought an action claiming partial payment of 50,000 euros (EUR). Together with its statement of claim the bank submitted, inter alia, a deed signed by the applicant on 16 March 2001 guaranteeing an overdraft of the company’s account in anticipation of a current account advance (Kontokorrentkredit) of EUR 200,000. On 13 September 2004, following an oral hearing, the Regional Court found the bank’s claim to be justified in view of the guarantee. The applicant brought an appeal against the judgment. On 15 February 2005 the Court of Appeal advised the parties that it had doubts as to the action’s conclusiveness (Schlüssigkeit). In the opinion of the Court of Appeal, the guarantee of 16 March 2001 did not cover the bank’s claim since it was in anticipation of a current account advance and had therefore expired once the advance had been authorised. On 23 August 2005 the bank’s lawyer submitted a deed guaranteeing the actual current account advance signed by the applicant on 26 April 2001. The applicant did not dispute the newly submitted guarantee; however, she alleged that its submission constituted an inadmissible amendment of claim (Klagänderung) and that a claim based on the new guarantee was moreover time-barred. In September 2005 the presiding judge of the competent chamber, Mr W., fell ill. He has been unfit for service because of illness (dienstunfähig krank) since then. By decision of the Court of Appeal’s presidium of 30 August 2005 Mr G. was appointed regular deputy presiding judge (regelmäβiger Vertreter des Vorsitzenden). By letter of 17 October 2005 Mr G. informed the parties that in view of the new submission of the bank the chamber intended to dismiss the applicant’s appeal in accordance with section 522 § 2 of the Code of Civil Procedure (see Relevant domestic law and practice, below) without an oral hearing for lack of prospects of success. The court considered that from the beginning the bank had based its claim on an undisputed guarantee for the current account advance and had simply submitted the wrong deed. For this reason the claim could not be time-barred either. In reply, the applicant submitted that, because of the amendment of claim, a decision under section 522 § 2 of the Code of Civil Procedure was no longer admissible and an oral hearing was necessary. On 25 January 2006 the Court of Appeal, by unanimous decision, dismissed the appeal under section 522 § 2 of the Code of Civil Procedure, referring to the reasons set out in the letter of 17 October 2005. On 7 February 2006 the applicant submitted a complaint that she had not been heard (Gehörsrüge), arguing, inter alia, that the Court of Appeal had neither dealt with her arguments regarding a modification of the matter in dispute (Wechsel des Streitgegenstandes) nor the question whether a decision under section 522 § 2 of the Code of Civil Procedure was still admissible. On 27 February 2006 the Court of Appeal dismissed the applicant’s complaint. The court held that it did not view the bank’s submission on appeal as new or as an amendment of claim. However, even if it had considered it as such an oral hearing would not have been necessary. The new submission had been undisputed and was therefore admissible in any event on appeal. An amendment of claim would have been relevant (sachdienlich) and therefore also admissible, irrespective of the applicant’s objection. Finally, the bank’s claim was not time-barred as argued by the applicant: the current account advance had not been terminated until 2002 so the statute of limitations ran until the end of 2005 and the correct guarantee had been submitted in time. In a constitutional complaint of 3 April 2006 the applicant alleged a violation of her right to be heard and a violation of her right to the legally competent judge. In connection with the latter argument, she submitted that because of the long-term illness of Mr W. a new presiding judge should have been appointed. Furthermore, the decision of the presidium of 30 August 2005 was unlawful because there had been no material cause (sachlicher Grund) for the appointment of Mr G. as deputy presiding judge and thus a change in the distribution of business (Geschäftsverteilungsplan) in the course of the business year. On 26 July 2006 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for examination (file no. 1 BvR 1194/06). The relevant domestic law is described in the Court’s decision in the case of Rippe v. Germany (dec.), no. 5398/03, 2 February 2006.