Digitisation and Civil Procedure in Germany
Prof. Dr. Dr. h.c. A. Stadler
University of Konstanz

Outline

I.

Introduction

II. Electronic communication between
courts and lawyers, electronic filemanagement
III. Virtual court hearings

1. Situation during the pandemic
2. The future of virtual court hearingsa)
b)
c)
d)

Proposals for a reform November 2022
Proposals for a reform May 2023
Evidence taking in videoconferences?
Virtual court hearings in a cross-border setting

IV. Conclusions

I. Introduction• Standard of digitisation in Germany
quite low compared to internationalstandards• COVID19 pandemic showed thatschools, universities etc. had difficulties
to switch to efficient online tools• Digitisation / Civil Procedure➢

gap between legal provisions andsituation in courts➢

Lack of electronic equiments (hardware& software)➢

Virtual court hearings enshrined in CPC
since 2002, but not used in practice
until COVID19 pandemic➢

Electronic communication not fully
implemented‚Sleeping Beauty‘awakens

II. Electronic communication between courts & lawyers• provisions enacted in 2013, came into force step-by-step
2014-2022• since 2018: lawyers, notaries, etc. must be accessible forelectronic service• since January 2022: electronic submission of pleadings
etc. mandatory for lawyers• establishment of electronic platform for lawyers turned
out to be difficult• mandatory use by lawyers was challenged before theFederal Constitutional Court• resistance among lawyers and in courts• electronic filing of pleadings etc. basis for complete
electronic file management

Electronic file management• Since 2022: approx. 90% of civil proceedings based on electronic filemanagement (regional differences across Germany)• Completely electronic processing of court files mandatory as of Januar 2026
• Slowly growing acceptance among judges• One step further ?

=> electronic „basic document“=> shared document for submission of facts and arguments instead ofindividual pleadings by lawyers=> pilot project in Bavaria=> party submissions to be limited and structured=> great resistance from Bar Associations

III. Virtual court hearings
1. Situation during the COVID19
pandemic• until 2020 no priority forvideoconferencing techniques• legal basis has been providedsince 2001

• increased used during thepandemic• judicial administration ensured
better equipment in courts
step-by-step• particularly used if no evidence
taking was necessary§ 128a ZPO
Court Hearing by way of video and audio
transmission.
(1) 1The court may, on application or ex officio, allow
the parties, their agents and assistants to be present
at another place during a hearing and to perform
procedural acts there. 2The hearing shall betransmitted simultaneously in sound and vision tothat place and to the courtroom.
(2) 1The court may, on application, allow a witness,an expert or a party to be present at another place
during a hearing. 2The hearing shall be transmitted
simultaneously in sound and vision to that place andto the courtroom. 3If parties, authorised
representatives and assistants have been permitted
to be at another location in accordance withsubsection 1 sentence 1, the hearing shall also betransmitted to that location.
.

III. Virtual court hearings
Scope of application

Restrictions- § 128a (1): parties and lawyers
connected via videoconference forcourt hearing• judges must be present in court room- § 128a (2): witnesses, experts,parties connected via
videoconference or taking ofevidence- no recording allowed!

- Courts reluctant to use
videoconference technique for thehearing of witnesses, preferred forgeneral discussion of case &exchange of legal arguments• no fully virtual hearings• no telephone conferences• background: constitutional guaranteeof public access to court hearings(art. 6 ECHR, art. 47 European Charterof Fundamental Rights)• connection from everywhere?

The future of virtual court hearings
Post-pandemic use and consolidationof videoconferencesProposal November 2022

• Draft bills from 2022 & 2023

➢ courts can order mandatory participation invideoconferences• not yet enacted➢ mandatory in case of joint application of parties• Why?

➢ completely virtual hearings (judges also remote, notin the court room)✓ Most participants appreciateadvantages✓ Saves time and travel for lawyers✓ High flexibility in schedulinghearings➢ evidence taking via videoconferences: witness
hearing, experts, inspection of evidence objects(such as electronic documents)➢ preliminary recording of videoconferences as abasis for court minutes

The future of virtual court hearings
Revised Proposal May 2023
➢ virtual hearings to be refused only in
exceptional cases (e.g. lack of technicalequipment)➢ complete virtual hearings only in selectedpilot projects:„Panel of judges should act as a unit in thecourtroom“

How to guarantee access of public?
o no publicity at all? (e.g. Swiss COVID-Act
April 2020 (20.4.20-1.1.2022)
o Live broadcasting of videoconferences on
the internet?
(protection of personal rights/
unauthorized screen recordings/behaviourof participants)
o broadcasting videoconference to a special
room in the court house with public access

Article 6 § 1 of the European Convention on
Human Rights – Right to a fair trial“In the determination of his civil rights andobligations or of any criminal charge against
him, everyone is entitled to a fair and public
hearing within a reasonable time by anindependent and impartial tribunal
established by law.
Judgment shall be pronounced publicly but
the press and public may be excluded from allor part of the trial in the interests of morals,
public order or national security in a
democratic society, where the interests ofjuveniles or the protection of the private lifeof the parties so require, or to the extent
strictly necessary in the opinion of the courtin special circumstances where publicity
would prejudice the interests of justice. ...

The future of virtual court hearings
Videoconferences in a cross-border
setting?
▪ limited/prohibited by public internationallaw?
▪ violation of foreign state‘s sovereignty bycourts exercising sovereign authority abroad?
▪ highly controversial issue in Germany▪ European Evidence Regulation Art. 12:
permission by foreign Member State requiredfor videoconference▪ proposed EU legislation: videoconference
without permission exclusively for hearing ofparties

IV. Conclusions• German courts are still
struggeling with the digitial world• Electronic communication: achance for new ways ofstructuring and standardizing
party submissions?
• Use of videoconferencing
technology must be wellconsidered – not suitable for all
situations• Currently: no completely digitalcourt proceedings