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Leading judgment of the Federal Supreme Court on the calculation of time limits of 13 August 2024 (5A_691/2023)

Please note: The period for monthly deadlines now starts on the day of delivery and not on the following day.

| Katharina Lux, Simon Fricker

In practice, one-month time limits have so far been calculated in the same way as daily time limits, i.e. the time limit began to run on the day after delivery. A Federal Supreme Court ruling regarding this practice, which was left open in the Code of Civil Procedure (“CPC”), was pending. The Federal Court of Justice now has the opportunity to rule on this issue.

The issue was the relationship between Art. 142 para. 1 CPC and Art. 142 para. 2 CPC. Art 142 para. 1 CPC which provides that time limits, which are triggered by notification or the occurrence of an event, begin to run on the following day. By contrast, Art 142 para. 2 CPC provides that a period measured in months, ends in the last month, on the day which has the same number as the day on which the period began.

Since then, the crux of the matter has been whether paragraphs 1 and 2 of Art. 142 CPC are to be understood in combination, i.e. that for the ‘day on which the period began to run’ referred to in
Art. 142 para. 2 CPC, Art. 142 para. 1, is to be applied so that the following day, a notification or the occurrence of an event is the day on which the period begins to run.

Explaining the recognised methods of interpretation, the Federal Supreme Court now comes to the conclusion that Art. 142 para. 1 CPC, cannot be invoked for the “day on which the time limit began to run”, but must be based on the day of the event triggering the time limit (and thus not on the following day). This marks a departure from previous practice and means that monthly deadlines will be shortened by one day. This is particularly important in the case of the entitlement to claim, issued by the conciliation authority after a failed attempt at conciliation.

The entitlement to claim is valid for three months. Previously, the period started on the following day if served by post and on the day of delivery if served personally. If the claim is filed on the last day of the time limit according to the old calculation, there is, in our opinion, a significant risk that the claim will no longer be admissible due to the lack of a procedural requirement.

Katharina Lux
Ass. iur., LL.M., Attorney at Law
[email protected]
Simon Fricker
Attorney at Law Certified Specialist SBA Employment Law
[email protected]

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