A recent decision by the Hechingen District Court states that certification, if it is carried out according to the DIN EN ISO/IEC 17024 standard, represents a proof of competence comparable to a public appointment and is to be equated with it (Hechingen Regional Court, decision of July 19, 2017, Az. 1 OH 19/15).
The applicant had requested that the expert be canceled and a new expert commissioned because the court-appointed expert was not publicly appointed and sworn in. After the application was rejected by the Hechingen Regional Court, the applicant lodged an immediate appeal against the decision with the Stuttgart Higher Regional Court. The Higher Regional Court of Stuttgart rejected the applicant’s complaint on the grounds that:
“With his appeal, the applicant is ultimately attacking the appointment of the court-appointed expert. However, this is a decision that is not contestable under Section 490 (2) sentence 2 ZPO, as this affects the order of evidence. On the other hand, there is no decision that would have affected the applicant’s right to select an expert. Because the person of the expert is determined by the court (§§ 492 Abs. 1, 404 ZPO)“.
This can also be an expert certified according to DIN EN ISO/IEC 17024.
The provision of Section 404 (3) ZPO (priority of the publicly appointed expert) is a mere regulatory provision. The court that commissions a certified expert is therefore not acting incorrectly, according to the Hechingen district court with reference to Zöller-Greger, ZPO, § 404 para. 2 and the judgment of the OLG Hamm of June 7th, 2010, Az . The Düsseldorf Higher Regional Court also decided accordingly in its judgment of December 4th, 2012, Az. I-23 U 181/11.
If an expert is certified but not publicly appointed, the lack of public appointment according to this decision does not justify a presumption of a lack of specialist knowledge. Rather, the expertise results from its certification.
