Initially, each party shall bear the costs caused by its procedural acts itself. If costs are caused by both parties or the court undertakes a procedural act in the interest of both parties, the costs thereby incurred shall be borne proportionately by the parties.
Which party ultimately has to bear the costs of the proceedings is generally determined by the so-called “loser-pays” principle. A distinction can be made between complete and partial success.
Thus, the completely unsuccessful party shall reimburse the successful party for all costs caused by the conduct of the proceedings and necessary for appropriate legal representation and defense. The court shall determine which costs are to be considered necessary. An intervening party involved in the proceedings shall also be entitled to such reimbursement of costs. For example, representation by several attorneys is not necessary—i.e. if one party to the proceedings calls in several attorneys, the resulting additional costs are not subject to reimbursement. The result is that the action that causes the least costs must always be compensated, provided that it leads to the same result. If, nevertheless, another, more expensive action is chosen, only that part is compensable which would have been incurred by a less expensive action. It is important to note that reimbursement depends on the victory in the last instance. Victory in lower instances is irrelevant.
In the event of partial victory, the costs may either be set aside or shared proportionately.
When costs are set aside, none of the parties to the proceedings shall be liable for compensation, but conversely shall also not receive compensation for costs.
The costs will be set aside in particular if there is an approximate balance in the degree of success between the winning and the losing parties. In the case of cost sharing, the costs are reimbursed in proportion to the extent to which the party prevails—i.e. if the party prevails by 80% and the opponent by 20%, then the prevailing party is entitled to 60% reimbursement of costs. If, however, a party has only been unsuccessful to a minor extent, it may be awarded compensation for the entire costs despite the fact that it has only been partially successful. Such insignificance can be assumed at about 10%.
