Squaring the Circle: Individual Rights and the General Interest Before the Supreme Courts of the German-Speaking Countries

Abstract

In the German-speaking jurisdictions, the supreme courts have a hybrid role. They are expected to ensure the uniform application of the law and to contribute to the development of the law. In addition, they are still very much perceived as guardians of individual rights. The rules on access to the supreme courts have gradually been modified with the aim of ensuring that only matters of general importance come before these courts. The perception of what makes a case important enough to qualify for an appeal to the supreme courts has changed as well. Today, financial criteria play a smaller role than they used to, while the general importance of the legal questions at hand is increasingly becoming the main filtering mechanism. In particular, this is the case in Germany and Austria. When deciding whether a legal question is of fundamental importance, the supreme courts still often take into account individual interests. This approach contributes to the heavy caseload of these courts. While it is likely that future reforms will continue to impose further restrictions for appeals to the supreme courts, one may, at least for the foreseeable future, expect incremental changes rather than a radical system shift.