Germany's Federal Labour Court dismissed a leave-to-appeal complaint because its brief, with non-existent case citations, did not come from the signing lawyer

Key takeaways

• The Second Senate held the grounds of the complaint did not come from an authorised counsel under section 11(4) ArbGG, so the complaint was inadmissible.
• It reasoned from the brief's form and from largely non-existent or misdescribed citations that counsel had not reviewed it.
• The opinion does not find that AI wrote the brief, and it names no sanction against the lawyer.
• It cites BRAK guidance (December 2024) on checking AI output.

What did the Federal Labour Court decide in 2 AZN 339/26?

The Second Senate of the Bundesarbeitsgericht (BAG) dismissed a leave-to-appeal complaint (Nichtzulassungsbeschwerde) as inadmissible, with costs on the claimant. The complaint was directed at the non-admission of an appeal on points of law in the judgment of the Landesarbeitsgericht Baden-Württemberg of 15 May 2026, file 7 Sa 17/26. The order is dated 30 September 2026 and sets the value of the matter at EUR 9,951.00.

The lead ground is not the merits. The Senate held that, in its conviction, the grounds of the complaint did not come from a representative authorised under section 11(4), first sentence, of the Labour Court Act (ArbGG), and that this followed from both the form and the content of the brief of 18 June 2026. It added a second, separate ground: the grounds also failed the substantiation requirements of section 72a(3), second sentence, ArbGG.

Why did the Senate conclude the brief was not the signing lawyer's own work?

The Senate started from the rule that a filing counts as made by counsel only if it is the result of counsel's own intellectual work. Where a third party drafts it, the Senate requires that the signing lawyer at least review it independently and take full responsibility, in its words that counsel "zumindest selbständig prüft und aufgrund der Prüfung die volle Verantwortung für diesen übernimmt". The court said the law is normally satisfied by the signature, unless the outward circumstances leave no doubt that counsel signed a document not his own without reviewing it.

It pointed to three kinds of indicator. On form, the brief lacked the firm's usual letterhead and was formatted almost throughout in bold underlined type, unlike the lawyer's other filings in the case. On content, it opened with a heading the court could not place legally and closed with an unusual addition after the lawyer's name. On citations, the Senate said it was "schlechthin ausgeschlossen, dass der Prozessbevollmächtigte der Klägerin die Beschwerdebegründung in der gebotenen Weise überprüft hat", because the decisions cited in the brief were "in weiten Teilen um nicht existente Entscheidungen" ("largely non-existent decisions" in our rendering), so-called "Halluzinationen", or were given a content they do not have.

The order lists the citations at issue by name and page of the brief. It also records that a BAG decision of 23 January 2020 does exist, under file number 8 AZR 484/18, but that it has neither the file number the claimant gave, nor comes from the Second Senate, nor deals with the balancing of interests.

Did the court find that artificial intelligence wrote the brief?

Not in terms. The operative reasoning is about authorship and review: the Senate had no doubt that the brief did not come from the claimant's counsel and was signed and sent through the special electronic lawyer mailbox (beA) without review. The opinion uses the word hallucination for non-existent decisions and, in a citation, refers to the Federal Bar (BRAK) guidance on the use of artificial intelligence, status December 2024, for the need for responsible checking of AI output. It also cites two journal articles on lawyers' duties of care regarding hallucinations.

The defendant had suspected that the claimant's husband, who had acted as an additional representative at first instance, wrote the brief. According to the order, counsel replied on 11 August 2026 that the suggestion was absurd because the husband is not legally trained ("kein Jurist"), and that he was fully responsible for the filing. The Senate held that statement did not rebut the circumstances it relied on. It made no finding about who actually drafted the brief.

What does the order mean for lawyers who file at the BAG or other apex courts?

The order treats unreviewed, non-existent citations as evidence that a filing is not the lawyer's own work, and the consequence it draws is procedural: where counsel's own act is required, an act without it is ineffective. The Senate cited commentary for the proposition that a procedural act without the capacity to appear is ineffective without more. In this case the leave-to-appeal complaint was dismissed as inadmissible, which, as our editorial assessment and not a statement in the order, is a heavier outcome than a costs order or reprimand; the Senate also found the complaint independently inadmissible for inadequate substantiation.

Two limits apply to what can be read from it. The order concerns the special representation requirement before the BAG in leave-to-appeal proceedings, and the disposition concerns this BAG proceeding. Paragraph 4 cites a Federal Court of Justice (BGH) decision on the comparable rule in section 78(1) of the Code of Civil Procedure (ZPO), but the holding here concerns section 11(4) ArbGG in leave-to-appeal proceedings. And it is one Senate's order on one brief, with the added second ground that the brief would have failed in any event. A firm elsewhere in Europe could still treat it as a signal of how an apex court may reason when a brief shows signs of no lawyer review, which is our reading and not a statement in the opinion.

What should lawyers and firms do now?

The order does not set a checklist. The steps below are the desk's suggestions, drawn from what the order treats as decisive, namely independent review and full responsibility by the signing lawyer.

• Pull and read every decision cited in a brief from an official or recognised report before signing, and confirm the file number, court, date and holding.
• Where a client, assistant or software tool supplies draft text, consider recording that the signing lawyer reviewed it and who is responsible; the order prescribes no documentation requirement.
• Treat the lawyer's own substantive review as the test the Senate applied; the form of a document is only an indicator the Senate weighed, and formatting does not substitute for review.
• Read the BRAK guidance on AI use that the Senate cited, and compare it with your firm's AI policy.

What are the key dates and parties?

What we did not verify

What we opened: the BAG decision page for 2 AZN 339/26, with the order's operative part and reasons, on 2026-10-25 (UTC).

What we did not open: the brief of 18 June 2026, the Landesarbeitsgericht judgment, the BRAK guidance and the journal articles the order cites, the PDF version of the order, any BAG press release, and any media report on the order. We did not check the cited decisions ourselves; we rely on the Senate's statements about them. We read the German original and the English renderings of quoted phrases are ours.

What we refuse to claim: that the court found the brief was generated by AI, that the lawyer was sanctioned or referred to a bar body, that the order binds any court other than as between these parties, or that the order sets a duty beyond what the opinion states.

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