How is the procedural indemnity amount determined?

The judge determines the amount of the procedural indemnity based on a list of set amounts approved by the government. This list contains three categories:

1. A base amount: The standard amount that serves as a starting point.
2. A minimum amount: In some circumstances, the judge may decide to award this lower amount.
3. A maximum amount: In other cases, the judge may decide that a higher amount is justified.

The choice between these amounts is at the judge's discretion. The base amount is the default: only in exceptional cases, and with explicit reasoning, may the judge deviate to the minimum or maximum amount.

Article 1022, third paragraph, of the Judicial Code lists the four criteria that the judge must apply in that assessment:

1. The financial capacity of the losing party: a lower amount may be awarded if the losing party cannot demonstrably afford to pay.
2. The complexity of the case: a particularly complex case may justify a higher amount.
3. The contractual fees agreed for the winning party: if the winning party is entitled to a higher attorney fee under an agreement, this may be taken into account.
4. The manifestly unreasonable character of the situation: if a claim or defence was manifestly unreasonable, the judge may take this into account when choosing the amount.

It is important to know that a party cannot simply ask for the maximum amount. The party must show that the case was exceptionally complex or that there is another lawful reason to deviate from the base amount. The judge will explain in the ruling why a particular amount was chosen.

The procedural indemnity amounts also depend on the type of claim (monetary or non-monetary) and on the amount claimed. The higher the amount in dispute, the higher the applicable bracket. For claims that cannot be expressed in money — such as claims for an injunction or for the delivery of property — fixed lump sums apply.