Digitisation and civil procedure in Germany
Professor Dr. Dr. h.c. Astrid STADLER

Digitisation and civil procedure in Germany........................................................................................... 1
I. Introduction ..................................................................................................................................... 1
II. Electronic communication between courts and lawyers, electronic file management ................. 2
1. Step-by-step progress ................................................................................................................ 2
2. Electronic file management ........................................................................................................ 3
III. Virtual court hearings .................................................................................................................... 4
1. Situation during the pandemic ................................................................................................... 4a) Legal basis for virtual court hearings ...................................................................................... 4b) Scope of application ............................................................................................................... 5c) Restrictions for virtual court hearings..................................................................................... 6
2. The future of virtual court hearings ............................................................................................ 6a) Proposals for a reform of virtual court hearings November 2022 ......................................... 7b) Proposals for a reform of virtual court hearings May 2023 ................................................... 8aa) Virtual court hearings as a rule? ....................................................................................... 8bb) Full virtual court hearings and the right to publicity ........................................................ 8c) Evidence taking by virtual court hearings? ........................................................................... 11d) Virtual court hearings in a cross-border setting .................................................................. 11
IV. Conclusions .................................................................................................................................. 12

I. Introduction
Germany is a highly industrialized country, but – what has been know for a long time – became obvious
during the COVID19 Pandemic: Germany is in many respects way behind international standards whenit comes to digitisation and online communication between authorities, courts, public regulators andcitiziens. In many parts of Germany there is no area-wide reliable and well-functioning Wifi available
and the expansion is only progressing slowly. With respect to the courts one may still say: the judiciaryis seeking to catch up with the digital age.1
When we are talking about digitisation of German civil procedure, a first observations must be that
there has been a considerable gap between legal provisions and the situation in courts. Since a reformof the year 2002, the German Civil Procedure Code has provided several provisions on digital
1

Greger NJW 2019, 3429.

1

communication between courts, lawyers and parties and on virtual court hearings. The use in courts,
however, was not wide-spread because of the lack of electronic equipment and a certain resistanceamong judges. Although at least the big law firms were fully equipped and able to file pleadings inelectronic form, courts often printed the documents and still used paper-based files. Despite the factthat our Civil Procedure Code has allowed virtual court hearings since 2002, courts did not have theequipment to do so and the situation changed only considerably during the pandemic. When it
suddenly became clear that an orderly operation of the justice system could only be maintained byvirtual hearings, the judicial administrations of the German Länder were ready to make the necessary
investments.
The provisions one electronic communication in the Civil Procedure Code have been amended over
the years in order to provide full digitisation of civil proceeings, but some of the rules on the electronic
submission of pleadings have become mandatory only recently. Today many German courts use
electronic file management, but not all of them.
During my presentation I will briefly decribe the situation of electronic communication between courts
and lawyers and electronic file management. The focus of my presentation will then be on virtual
court hearings and the latest reform of German civil procedural law in this respect.

II. Electronic communication between courts and lawyers, electronic file management
1. Step-by-step progress
New provisions on electronic communication were enacted in 2013. The rules came into force,
however, in a step-by-step manner from 1.1.2014 to 2022 to ensure that the necessary infrastructure
for courts and lawyers can be established. Since 1.1.2018, lawyers, notaries, tax advisors, bailiffs etc.
should be accessible for electronic service. Electronic filing was initially still optional in addition topostal service and fax – and German lawyers loved to work with old-fashioned fax machines when
they had to file application in the last minute. Only since 1.1.2022 the use of electronic transmission
has been mandatory for lawyers, public authorities and legal persons.2 Electronic filing has also been
introduced in parallel to the civil procedure code in labour, financial, social and administrative court
proceedings3.
The development was slow for several reasons: in order to oblige lawyers to submit pleadings anddocuments electronically, a new and secure platform had to be established. The so-called "special
electronic lawyer's mailbox" (besonderes elektronisches Anwaltspostfach - beA) had to be set up by
the German Federal Bar Association for every lawyer4. It went into operation in September 2018 withconsiderable delay after a couple of safety issues and interruptions. Some lawyers had even tried tostop the system before the Constitutional Court. The Constitutional Court, however, held that thenecessity for lawyers to maintain the corresponding technical facilities for the “special electronic
mailbox” and to use it for service and submission of documents is unobjectionable underconstitutional law and does not violate the freedom of legal profession.5 From this you can see thatthe resistance to digitalisation was considerable, and not only in the judiciary. Particularly, small law

2Sec. 130d CPC.
Sections 46c ArbGG, 65a SGG, 46c VwGO, 52a FGO)
4
Section 31a BRAO (Bundesrechtsanwaltsordnung- Federal Lawyer’s Act), since 1 August 2022, section 31b
BRAO also includes professional practice companies.
5
BVerfG (1 BvR 2233/17) BeckRS 2017, 136094.
32

firms did not want to “jump into the digital age”. They struggled considerably at the beginning withthe technical requirements and courts apply strict standards when mistakes are made.
Since 1 January 2022 the electronic filing of pleadings, motions and declarations has been mandatory
for lawyers. 6 Only then was the basis created for the courts to be able to work with completely
electronic records and an electronic file management system without media discontinuity.

2. Electronic file management
In March 2023, the Bavarian Minister of Justice announced that all Bavarian courts now use exclusively
electronic file management. This is worth being mentioned because the use of electronic file
management which requires significant investment in each judge’s workplace differs considerably
over Germany. It depends on the financial strength of the Länder and Bavaria is one of the rich Länder,
but nevertheless had only had one pilot project on electronic file management at the Court of Appealsin Munich since 2021.
According to the German CPC, court files will only have to be kept electronically everywhere from
1.1.2026.7 With a change of generations in the judiciary, the acceptance of electronic record keeping
has also increased. However, many complain that the judicial work is not facilitated by electronic file
management, but causes additional burdens. However, these will be a transitional problem, partly
due to technical reasons. Nevertheless, with electronic records, the digital possibilities for civil
proceedings are far from being exhausted. The electronic file management system essentially aims todigitally map the familiar paper file and this is of course due to the fact that the ZPO originated in thepaper world and was further developed in it.8 It will take further steps to adequately take digitalprogress into account.
One suggestion which has lead to a pilot project in Bavaria is the following:9 In the future, the parties
should no longer file separate pleadings, but will draw up a joint document under judicial guidance via
an online platform set up at the court. The so-called “basic document” will follow a fixed structure forfacts, legal arguments etc. The basic document would allow cooperative working and a presentationof the litigation material that is concentrated on the essentials. The factual presentation contained in
the basic document is intended to form the basis for the court's decision and thus take over thefunction of the facts in the judgment. It would make the courts work much easier.
There is, however, considerable resistance to this project in the legal profession, as there are fears
that it will curtail the freedom of lawyers to present their work. Lawyers consider it their main task topresent to the court facts and evidence in a way they think is the best way of representing their client’s
interest and of wining the case. This includes strategic action. Court and opponent are sometimes tobe distracted from relevant facts. In major commercial disputes lawyers are currently complicating
the work of the courts by constantly submitting pleadings of considerable length (100-150 pages),which are often repetitive in content. The lawyers’ strategy may be in the individual interest of theparty, but it does not serve an effective settlement of the dispute. Currently, German courts have nopower to limit the length of pleadings. At some courts there are pilot projects which use AI to
6

Sec. 130d CPC.
Sec. 298a CPC.
8
Richter, NJW-Editorial 28 Jan. 2021 (https://rsw.beck.de/aktuell/daily/magazin/detail/der-modernezivilprozess); also very critical in this respect Greger NJW 2019, 3429.
9
The project is located at the University Regensburg: https://www.uni-regensburg.de/forschung/reallaborparteivortrag-im-zivilprozess/das-vorprojekt/index.html; the proposal has been supported e.g. by Greger NJW
2019, 3429
73

systematically search and filter the parties’ submissions. This allows to separate essential from nonessential submissions more quickly, but the software programms are still under development.
The pilot project on the “basic document” has started only recently and it will face vivid debates in
the near future. It will indeed be necessary to avoid a too rigid structuring of the documents so thatlawyers cannot claim a violation of their party’s right to be heard. There is no uniform structure for allcases. Instead the document must be designed for each type of case. This will require some input fromthe court in the beginning of the proceedings, but that pays off. In any case, the “basic document” will
limit the lawyers’ possibilities of strategically presenting facts and evidence only in bits and pieces andof distracting the court with unnecessary and repetitive statements.

III. Virtual court hearings10
1. Situation during the pandemica) Legal basis for virtual court hearings
During the pandemic, there were numerous restrictions on contact and public trials were hardly
possible. The vast majority of German civil courts first generously resorted to the instrument of
postponing trials and hearings and, wherever possible with the consent of the parties11, switched topurely written proceedings. However, as the pandemic progressed, it became clear that this was nota lasting solution.
The implementation of virtual court hearings not only required a legal basis, but also the necessary
technical equipment for the courts and the legal profession. While the German Code of Civil Procedure
has provided a legal basis for video conferencing in civil proceedings since 2001, the courts lacked
sufficient technical equipment at the beginning of the pandemic. The provision of section 128a of theCode of Civil Procedure, which the legislator had included in the law very early and with foresight, only
came to life during the pandemic. Although there had been numerous pilot projects for the
introduction electronic case files, videoconferencing technology had not been a priority before thepandemic. This changed abruptly in the spring of 2020 and the judicial administration tried to equip
their courts as quickly as possible so that the judiciary could at least conduct virtual court hearings insome specially equipped rooms. At the beginning, it was not uncommon for judges to bring their own
laptops and work with software programmes they had procured themselves. There are no reliable
studies to what extent German courts held virtual court hearings during the pandemic. A survey ofthe Association of German Judges exploring the practice in the district of the 24 Cour of Appeals inGermany came to the conclusion that in 2021, courts held more than 50.000 video conferences. In
some courts in 50-75% of civil proceedings video conference technique was used.12
While other countries such as Austria or Switzerland had to create an ad hoc legal basis for virtual
court hearings in the pandemic situation, Germany was able to fall back on Sec. 128a ZPO, which reads
as follows:"Court Hearing by way of video and audio transmission.

10

See also Stadler, Virtuelle Gerichtsverhandlungen im deutschen Zivilprozess, in: Koshiyama
Takata/Teshigahara Shinzansha (Hrsg.), Liber Amicorum Yasunori Honma on the occaion of his 70th birthday,
Tokio 2022 (translated into Japanese by Prof. Dr. Takada, Waseda University), p. 533-452
11
Sec. 128 para 2 CPC.
12BRat Drs. 228/23, 26.5.2023, p. 21; DRiZ vol 4/2022.

4

(1) 1The court may, on application or ex officio, allow the parties, theiragents and assistants to be present at another place during a hearing
and to perform procedural acts there. 2The hearing shall be transmitted
simultaneously in sound and vision to that 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 betransmitted simultaneously in sound and vision to that place and to thecourtroom. 3If parties, authorised representatives and assistants havebeen permitted to be at another location in accordance with subsection
1 sentence 1, the hearing shall also be transmitted to that location.
b) Scope of application
Paragraph 1 of the provision regulates the performance of procedural acts by the parties fromoutside the courtroom and paragraph 2 provides the possibility of also taking evidence withwitnesses, experts or in the form of party hearings by way of video conferencing. Since a reform in
2013, an order under paragraph 1 can be made ex officio and does not require the consent of theparties, while the virtual taking of evidence is still only possible at the request of a party or the person
giving evidence concerned.
According to section 128a para 3 ZPO, the hearing may not be recorded. Moreover, the technicalframework conditions of such a hearing must, of course, comply with the European data processing
requirements according to the General Data Protection Regulation (DSGVO), i.e., among other things,
only servers located in the European Union may be used and certain encryption techniques must be
applied.13
At the end of 2020 and in 2021 many courts have already regularly conducted virtual court hearings.
This was done mainly on the basis of section 128a para 1 of the Code of Civil Procedure when the
court wanted to discuss with the parties the state of the dispute and the legal situation without theneed for taking evidence. Video conferencing has proven to be useful for this purpose and is hardly
inferior to a real court hearing.
On the other hand, the courts are still reluctant to hold hearings of evidence by video conference
under section 128a para 2 of the Code of Civil Procedure. To the extent that this is done, it mostly
concerns hearings of expert witnesses. Witness hearings are only carried out very sporadically andonly in cases where the court has no doubt about the credibility of the witness from the outset.
However, when it comes to assessing the truthfulness of a witness's testimony, the courts prefer apersonal examination in which one gains a direct impression of the person of the witness, which isimportant for the assessment of evidence. There are also some practical issues: for example, if thewitness is not in the courtroom, it is difficult to ensure that the testimony is not influenced, e.g. byreading from documents or by other people present in the room. It also takes further technical effort
to ensure that the court cannot only see the witness him- or herself, but also the whole room inwhich he or she is located. Verifying the identity of the witness requires digitalised procedures forthe authenticity of identification documents. In the future, deep fakes may also allow
misrepresentations of the witness’ identity. Many judges also fear that they are more likely to be lied
to if the witness is not physically present in the court room. Indeed, psychologically, the assumption

13

Reuß JZ 2020, 1135, 1139; Rühl JZ 2020, 809, 814.

5

may remain that witnesses are more likely to dare to lie if they only look into a camera and not into
the face of the judge.14c) Restrictions for virtual court hearings
Section 128a CPC requires that the court itself is in the courtroom. Only the other persons mentioned
in the provision may be called in from outside. Section 128a CPC does not allow an exception to thepriniciple that the oral proceedings take place at the "place of the court".15 This means that parties,
lawyers or persons providing evidence who do not agree to the proceedings being conducted as avideo conference always have the option of going to the courtroom after all and acting from there.
On the other hand, this restriction has proved to be a hindrance in the pandemic situation. Whileotherwise authorities, courts, universities and many companies completely switched to home office
work, judges had to be in court at least during a virtual trial. With panels of three judges, theirsimultaneous presence did not always comply with the restrictions from the Corona regulations.16
The fact that the virtual court hearing is controlled and conducted from the courtroom, so to speak,has an important legal background: this makes it possible to comply with the regulations on the
publicity of the hearing from the German Courts Constitution Act and Art. 6 ECHR as well as Art. 47of the European Charter of Fundamental Rights. Spectators have the possibility to enter the
courtroom at any time - even during the pandemic - and follow the trial there. The technicalimplementation must be designed in such a way that the spectators can follow the actions of thepersons connected from other places in picture and (at least in) sound via screens. In this way, thecontrol function by the public is also maintained in such forms of court hearings.
Courts ordering a video conference will sometimes specify from where parties or lawyers are allowed
to participate. If they do not specify the location, in particular lawyers may have more flexibility tojoin a virtual court hearing not only from their office, but maybe also in exceptional cases e.g. fromtheir car (if he or she is in a traffic jam), from their home office etc. Courts should not impose too
many restrictions. As long as the lawyer or party participates from a location where confidentialityof the communication is guaranteed, where he or she is not disturbed by other persons or too loudnoice etc. the court should accept the participation.

2. The future of virtual court hearings
After the end of the pandemic, the German legislator is now trying to make the partially very goodexperiences fruitful for the future.17 In particular, video conferencing is to change from the exception
to the rule in many cases.
The increased use of video conferencing technology would not only save the lawyers time and travel,
it would also give the courts a high degree of flexibility in scheduling and conducting hearings,
14

Vgl. Stadler, Der Zivilprozeß und neue Formen der Informationstechnik, ZZP 115 (2002), 413 ff; for a detailed
analysis see Seigfried, Die virtuelle Teilnahme an der Hauptverhandlung im Zivilprozess – quo vadis?
Bestandsaufnahme und Zukunftsperspektiven der Verhandlung im Wege der Bild- und Tonübertragung, PhD
thesis Konstanz, 2023 (forthcoming).
15
Sec. 219 German CPC.
16
The German legislator only spontaneously made a legal exception for lay judges in labour courts. For a limited
period until the end of 2020, they could be connected from another location if they could not reasonably be
expected to stay in the courtroom. The (individual) professional judge who participates in the labour courts, on
the other hand, had to continue to be present in the courtroom.
17
Many judges highly estimated the possibility and flexibility of virtual court hearings, see Rebehn DRiZ 2021,
90; Schupp DRiZ 2021, 66; Fries GVRZ 2020, 27.

6because in the often very cramped German courthouses, there is regularly a need for very preciseorganisational coordination among the judges. European legislators are now also increasingly
pushing for the use of modern communication technology in cases of cross-border taking of evidence.
a) Proposals for a reform of virtual court hearings November 2022
A reform proposal from the Federal Ministry of Justice from November 2022 wanted to expand thepossibilities of using video conferencing technology in the CPC beyond the current legal situation.
This included the following changes:- The court should no longer only be able to permit a video hearing, but to order it. It would thus bemandatory for parties and lawyers to participate in the virtual hearing. This was intended to facilitate
the scheduling of oral hearings and to contribute to accelerating the proceedings. The parties to thelitigation should be able to apply within a time limit to be determined by the chairperson to exempt
them from the ordering of a video hearing.
- Vice versa if both parties apply for a video hearing, it will no longer be in the court’s decision-making
discretion to grant the requests. On the contrary, it is suggested that in such a situation a video
hearing must generally be ordered by the court. An exceptionally negative decision needed to bejustified by the court and is subject to appeal. The legislator thus wants to overcome a certain
hesitancy and convenience of the courts.
- Furthermore, the proposal suggested the possibility of conducting a fully virtual hearing, in which
the court is no longer present in the courtroom. In order to ensure publicity in these cases as well,
the video hearing was to be transmitted to a room in the court house that is accessible to the public
at any time.
- With regard to the taking of evidence the proposal also allowes for an inspection by way of video
evidence. In order to ensure that persons providing evidence cannot be influenced by third parties
during a video examination, the court should be able to additionally order witnesses and parties tobe present during their examination in a court room with court officers present. So a witness would
not be required to travel to the court where the case is heard. He or she could go to the court houseof his home town for a video conference, but he would not be allowed to participate from his privatehouse or rooms.
- Finally, the prohibition of recording the video hearding will be deleted and the regulations on the
preliminary recording of the minutes are to be expanded. An audio-visual recording could be used to
draw up the minutes. However, recordings should only be possible for this purpose and only by the
court. Any other recording is expressly prohibited in order to protect the personal rights of theparticipants. The recording would allow judges to refresh their memory of the hearing, but the draft
does not allow that Court of Appeals may use, e.g. the recordings of a witness hearing instead ofhearding again the witness themselves, if necessary.
Some parts of the proposal met with fierce resistance from the judiciary. The judges mainly resisted
having to conduct a video conference if the parties agreed to do so and having to justify a negativedecision.18 They pointed out that the proposal reflected an unfounded distrust of judges for being
technophobic, that there should be no obligation for courts to hold virtual trials and hearings. They18

The statements are published on the Website of the Federal Ministry of Justice:https://www.enorm.bund.de/SharedDocs/Gesetzgebungsverfahren/DE/Videokonferenztechnik.html

7

claim that the necessary facilities were still lacking at the courts and that the additional effort would
be considerable. The Association of District Judges, e.g., pointed out:
“The statement that video hearings and video evidence recordings made possible a faster, more costeffective and resource-saving decision-making process in many cases, and resource-saving conduct ofproceedings, currently misses the reality. In many cases, the equipment of the courts is characterisedby under-performing hard and software, frequent system crashes and a cumbersome booking
procedure for virtual rooms. The systems currently offered for use are unsuitable to ensure thesmooth running of a hearing. Furthermore, the control effort of the technology is too high without
technical assistance.”19b) Proposals for a reform of virtual court hearings May 2023aa) Virtual court hearings as a rule?

In a revised draft of May 2023, the Ministry maintains that judicial discretion should be limited. In thecase of joint requests by the parties, the court should as a rule have to order a video conference andmay only refuse it in exceptional cases - for example, with reference to a lack of technical equipment.
The proposal has not been discussed in the Parliament yet and this part will probably still meet a lotof criticism.
bb) Full virtual court hearings and the right to publicity

On another point, the Ministry withdrew its proposals. A fully virtual court hearing, in which none ofthe participants is in the courtroom, should only be able to be tested in pilot projects on the basis of
an opening clause20, but should not be the normal case.
Sec. 128 para 3 CPC is suggested to have the following wording:“The presiding judge conducts the video hearing from the courtroom. He may allow other members of
the court to participate in the oral proceedings by video and audio transmission if there are substantial
reasons for doing so.”

The explanatory memorandum states:“As a rule, a panel of judges should act as a unit in the courtroom and also be perceived as a unit

by the parties to the proceedings.”21
What are the reasons behind the backdown of the Ministry?
One important consideration was that it would be difficult to guarantee the right to publicity in a fully
virtually trial. There are only two options: (1) The video hearing can be made available as a live stream
on the internet. (2) The video hearing will be transmitted to a special viewing room in the courthouse,
to which spectators and media representatives will have access. Both options have their downsides.
(1) No public access to video conferences?
Another solution – to exclude the public completely from virtual court hearings – was not seriously
considered, because it would violate the procedural guarantees under Article 6 of the European
Convention on Human Rights and German constitutional law.22 Public court hearings are an essential
instrument of control in modern democracies. There are, of course, some exceptions to the right of

19

Statement of the Association of District Judges, p. 3; in the same line lies the Statement of the German
Judges’ Association.
20
Sec. 16 ZPOEG-E (Introductory Act to the CPC).
21
BRat Drs. 228/23, 26.5.2023, p. 24.
22
BVerfGE 70, 324, 358 = NJW 1986, 907; BVerfG NJW 2001, 1633, 1635.

8

public access to court hearings, but they are limited to situations in which a balancing of interests
dictates that priority be given to the protection of the rights of the litigants. This is also in line withthe case law of the European Court of Human Rights which struggeled in the past, especially in cases
where a purely written procedure takes place, that exclusion of the public was well justified in theindividual case and does not become the rule.23(2) No live broadcast of video conferences on the internet
The option of a live transmission on the internet was also quickly discarded because it has weighty
disadvantages:
There has been a general debate in Germany over the last decades of whether the court room shouldbe opened to media broadcasting. Despite the general importance of media in modern society, thelegislature has always been very reluctant to broadcasting court hearings in television or on theinternet.
Sec. 169 para 1 of the Judicial Act (2017) reads as follows:“Sound and television broadcast recordings as well as sound and film recordings for the purpose of
public presentation or publication of their contents are prohibited. The transmission of sound into aworking room for persons reporting for the press, radio, television or for other media may bepermitted by the court. The transmission of sound may be partially prohibited in order to protect theinterests of the parties or third parties or to ensure that the proceedings are conducted in an orderly
manner.”

The prohibition of media broadcasting goes back to a regulation of 1964 and was confirmed by theFederal Constitutional Court in 2001.24 More than 20 years later moving images have become much
more important for media reality, especially in the online age. In a democratic public, the judiciary
should definitely be perceived more intensively. In reality there are not many spectators in the court
room, very often not a single one. Nevertheless, the only progress made was that today the
pronouncement of judgments at the Federal High Court can be filmed upon special order of the court.
Against this background broadcasting of video conferences on the internet would have meant to fallfrom one extreme to the other. An unlimited number of viewers via the internet impairs the personal
rights of all participants in the virtual court hearing. There is too much publicity here, so to say. The
argument that anyone can go to the court room and listen what is happening there does not carrymuch weight, because the impairment of personal rights has a completely different quality if hearings
are available on the internet compared to a public court hearing in a court room with a limited
number of listeners.
Extensive measures would have to be taken to protect personal rights. In theory and from atechnological point of view, it is possible to anonymise the parties, witnesses, etc. during such ahearing streamed on the internet. Faces can be made unrecognisable and, for example, the mentionof names can be hidden.25 This, however, requires to be technically controlled and monitored by an
IT technician during the entire hearing. Without such a filter to protect personal rights, there would
be a considerable danger that private recordings, on which the persons can be identified, would bemade by way of screen recording and later misused. Technically, such screen recordings cannot be

23

ECtHR, 15 October 2009, 17056/06 (Micalle/Malta); for details see Morscher/Christ, Grundrechte auföffentliche Verhandlung gem. Art. 6 EMRK, EuGRZ 2010, 272 ff.
24
Constitutional Court (BVerfG) BVerfGE 103, 44 = NJW 2001, 1633 = BeckRS 2001, 30157298.
25
Paschke, Digitale Gerichtsöffentlichkeit, 2018, 264 ff.; Reuß JZ 2020, 1135, 1139.

9

prevented at present.26 Compared to the situation in the court room there remains a considerable
risk for the personal rights of all participants. Again: the situation in the court room is different:
unauthorized film recordings from the auditorium with a mobile phone that are later posted on theinternet can be prevented either by the court in the courtroom or, if a video conference isbroadcasted to a special room for spectators by a supervisor.
Another argument against broadcasting video conferences on the internet is a psychologcial one:
Many feared that there is the risk that lawyers and judges could act differently in the face of media
publicity and that the objectivity of the proceedings could suffer. There is a danger that the court
hearing will become an entertainment show. The Constitutional Court held in 2001 with respect tomedia broadcasting of court hearings:"Media publicity is an aliud compared to publicity in the courtroom. Many people change their
behaviour in the presence of the media."

Despite today's ubiquitous media and the completely unbiased way many people deal with theirpersonal data in the context of social media platforms, this statement is probably still essentiallycorrect 20 years later. Nevertheless one has to be aware of the fact there is trend to the contrary ininternational courts. At the European Court of Human Rights in Strasbourg, at several international
courts, for example the International Criminal Court in The Hague27 the entire trial is recorded andput on the internet with a delay of 30 minutes. The cases heard before these courts are, however, ofa general and global importance which may justify access via internet. This does not apply to a local
traffic accident or a rental dispute.
(3) Broadcasting video conference to a special room in the court house?
For Germany, it therefore seems obvious to resort to the option according to which the videoconference is transmitted to a publicly accessible room in the courthouse. It can be a goodcompromise between digitial progress and constitutional guarantees. Apparently the Ministry ofJustice did not share that opinion: they wanted to have the panel of judges present in the court roomin order to emphasize and support their authority which may be less powerful if the judges are
reduced to a single pictures on the screen. Furthermore, doubts may have prevailed that it is not
attractive for the public to go to the court house in order to watch only a video conference there.
Today you will not find too many spectators in German court rooms because civil proceedings are
sometimes too boring for the public who is not familiar with files. This number may even be reduced
if there is no “live” court hearing.
There is, however, also a downside to the solution as it is now suggested. If the presiding judge
conducts the hearing from the court room, parties and lawyers cannot be prohibited from also
coming to the court room instead of participating virtually. We will therefore probably see a large
number of hybrid videoconferences. Based on the experience of the pandemic there are several
studies which clearly state that hybrid heardings or conferences have many disadvantages. There isalways a tendency to focus on the persons physically present in the court room and to “forget” those
who are only “a picture on the screen”. It requires much more attention for the presiding judge totreat all participants equally and there still is a risk that the remotely participating lawyers or parties
will not be heard in the same way.
26

Reuß JZ 2020, 1135, 1139. In England, the Corona Virus Act 2020 implemented sec. 29ZB and sec. 29ZC tothe Tribunals, Courts and Enforcement Act 2007 and criminalised the unauthorised recording court
proceedings.
27
Regulations of the Court (ICC) as amended on 12 November 2018, Regulation 21, ICC-BD/01-05-16.

10

We will now probably see some pilot projects until 2030 and then the debate will continue.
c) Evidence taking by virtual court hearings?
Currently Sec. 128 CPC allows the use of video conferencing techniques for the taking of evidence
only for the hearing of witnesses and expert witnesses. We have already discussed the disadvantagesof the hearing of witnesses that are not physically present in the court room. A virtual hearing ofexpert witnesses, on the contrary, has many advantages. Experts may improve their presentations if
they can easily use videos, animations, etc. to illustrate their findings. Expert witnesses areprofessionals and very often used to video conference techniques.
The reform proposal now suggests to also allow the visual inspection of things by video conference,but it still maintains a prohibition for documentary evidence during a video conference.28 The main
field of application of this new rule will probably be evidence by electronic documents. Electronic
documents are not to be considered “documents”, but have always been treated as evidenciaryobjects for a visual inspection by the court. I would even recommend to restrict visual inspections
during video conferences in pratice to electronic documents. For the inspection of other things or, inparticular, for the inspection of a property or an accident scene courts need to get a comprehensive
impression in reality. To asses noise or odour immissions in a neighbour dispute there is no way to
avoid a physical inspection in reality.
d) Virtual court hearings in a cross-border setting
The reform proposal does not address an issue which has been very controversially discussed inGermany for some while.29 It is the question of whether a court may order a hearing of witnesses orparties who are located abroad by video conferencing without asking for legal assistance of the statein which the person is located during the virtual court hearing. It is settled under public international
law that no court is allowed to become active beyond the national borders of its own country without
the permission of the foreign state involved. There is therefore an international consensus thatmembers of a court cannot simply travel to another country and hear a witness or inspect premises.
Courts must instead take resort to the mechanism of international legal assistance. On a global scale
there is the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters thatentered into force in 1972. Courts from one signatory state may ask for assistance by letters rogatory
to another signatory state. As a matter of course the Convention could not take into account videoconferences, because the technique was not widely used at that time. But the basic idea behind theConvention to protect national sovereignty also applies to video conferences: if conducting a transnational video conference with participants from abroad must be considered as the exercise of thecourt’s power abroad, it is illegal without the consent of the foreign state. The question is not easy toanswer. Some argue that during the video conference the court does not leave its own country andtherefore acts only on its own territory,30 others emphasize that there is undoubtedly a transbordereffect if the witness or party heard is located abroad. Courts should aopt a cautious attitude in thisrespect . Any official court hearing, albeit virtually, is the exercise of judicial power and must be
restricted to the court’s national territory. Transnational video conferences do have a cross-bordereffect that is not neglectable.
In the European context, the situation seems to be clear thanks to the European Regulation on
Evidence Taking. The new version of the regulation came into force in 2022 and it has a strong focus
28

Sec. 284 para 2 sentence 5 CPO (draft version).
An overview is provided by Knöfel RIW 2021, 247.
30
Heck ZIP 2022, 1529; Sturm/Schulz ZRP 2019, 71 (74); Administrative Court Freiburg NJW 2022, 7267 (forinformal hearing of a party).
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on video conferences because they are an easy and less expensive way for courts to communicate
directly with a witness abroad. Nevertheless, even in Europe where sovereignty of the Member Statesis less important today, the Regulation maintains the principle that a video conference ordered by acourt of one Member State requires the permission of another Member State if a witness or party is
located in that state (Articles 12, 19). One may therefore conclude that courts must use themechanisms provided by the Evidence Regulation in order to conduct a cross-border videoconference. If this is the rule within the European Union with its close judicial co-operation of Member
States, it applies a fortiori in relation to countries outside the EU. Recently, the Federal High Court has
also referred to the Hague Evidence Convention for the video examination of a foreign witness andthus apparently excludes a directly ordered video conference for this purpose.31
For these reasons, the prevailing opinion in German literature is cautious and rejects cross-border
video hearings and recordings of evidence, even if a person from another EU country is toparticipate.32 According to some authors, it should at least be allowed to connect only parties andtheir lawyers for a mere informal hearing. This is also provided for in Article 7 of a proposed EU
Regulation COM (2021) 759 for parties (not for their legal representatives). However, this distinction
is not convincing. The gathering of information through the hearing of parties is also part of sovereign
judicial activity and highly problematic across borders. Lawyers who participate in video conferences
make procedual declarations and applications that are important for the litigation – there is no“informal” interaction between the court and the lawyers. It therefore does not seem reasonable todifferentiate under international law between video hearings for the taking of evidence and for“informal” consultation of a party or interaction with a lawyer.

IV. Conclusions
Germany civil courts are still struggeling to find their way into the digital age. The possibilities ofelectronic file management are not yet fully exploited and where they collide with the professional
freedom of lawyers we will see fierce debates in the future. With respect to virtual court hearings
there is some progress based on the experience made during the pandemic, but the legislature is
rightly wary of sacrificing the rights of litigants in favour of the curiosity of an unlimited internet
community. Courts must also currently resist the temptation to use videoconferencing technology too
hastily in cross-border situations.
A completely digitalised or virtual conduct of civil proceedings is not in sight. There are such proposal
for small consumer disputes, but so far the legislature has not taken them up so far.

31

Federal High Court (Bundesgerichtshof) MDR 2021, 1406 n. 23.
Stein/Jonas/Kern, ZPO, Commentary 23rd edition, Sec. 128a, n. 35; BeckOK ZPO/Selle, online commentary,Sec. 128a n. 16, Zöller/Greger, ZPO commentary, 34th ed. n. 10; Musielak/Voit/Stadler, ZPO commentary, 20thed. 2023, Sec. 128a n. 8; Reuß JZ 2020, 1135 (1136); Windau/Irskens BJ 2020, 281 (282); Lorenz MDR 2016, 956(957); for a differentiated view see Windau jM 2021, 178, NJW 2020, 2753 (2754).
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Handout
Present version of § 128a CPC (since 2013)
Section 128a Hearing by means of video and audio transmission(1) The court may allow the parties, their representatives and assistants, on application or ex officio,
to be present at another place during oral proceedings and to perform procedural acts there. The
hearing shall be transmitted simultaneously in sound and vision to that place and to the courtroom.
(2) The Court may, on application, allow a witness, an expert or a party to be present in another place
during a hearing. The hearing shall be transmitted simultaneously in sound and vision to that place
and to the courtroom. If parties, authorised representatives and assistants have been permitted to beat another location in accordance with subsection 1 sentence 1, the hearing shall also be transmitted
to that location.
(3) The transmission shall not be recorded. Decisions under subsection (1) sentence 1 and subsection(2) sentence 1 shall be final.
Draft proposal May 2023
§ 128a Video hearing(1) The oral proceedings may be held as a video hearing. An hearing shall be held as a video hearing if
at least one party or at least one member of the party to the proceedings or at least one member ofthe court participates by video and audio transmission. Parties to the proceedings under this provision
are the parties and intervening parties, their agents as well as representatives and advisers.
(2) At the request of a party to the proceedings or ex officio, the chairman may allow or order thatduring the oral proceedings by video and audio transmission one party, several or all of the parties tothe proceedings participate in the video hearing. If all parties to the proceedings request their
participation by audio-visual transmission, the chairman shall order it. In case of a refusal of a request
reasons shall be given.
(3) The presiding judge shall conduct the video hearing from the courtroom. He may, if there aresubstantial reasons, allow other members of the court to participate in the participate in the oralproceedings by video and audio transmission.
(4) The parties to the proceedings and third parties shall be prohibited from recording the video
hearing. This shall be pointed out to them at the beginning of the hearing. The video hearing may berecorded in whole or in part for the purposes of section 160a. The parties to the proceedings shall be
informed of the beginning and end of the recording.
(5) The addressee may lodge an objection against an order pursuant to paragraph 2 within a period of
two weeks. The chairman shall point this out with the order. If the objection is lodged in due time, thechairman shall revoke the order for all parties to the proceedings. In all other respects, decisions under
this section shall be incontestable.
Sec. 284 Taking of Evidence
13Para 2 & 3:
(2) The court may permit or order the taking of evidence by video and audio transmission inaccordance with section 128a. Section 128a (2) sentence 2 shall not apply. The right of application
under section 128a(2) sentence 1 also applies to witnesses and experts. The objection under section
128a(5), first sentence, is only available to the parties and witnesses to be parties to be heard andwitnesses. Sentence 1 does not apply to evidence by documents.
(3) In respect of parties to be heard, witnesses and experts may additionally be ordered in the case of
a taking of evidence pursuant to paragraph 2, that they remain at a court location to be specified by
the court during the hearing.
Sec. 16 Introductory Act to Civil Procedure Code(1) The Federal Government and the governments of the Länder shall be empowered to authorise, byordinance, fully virtual video for the purpose of testing them. A video hearing (section 128a of the Civil
Procedure shall take place as a fully virtual video hearing if all parties to the proceedings and all
members of the court participate in the hearing and the presiding judge conducts the video hearing
from a place other than the court. …
2) The admission of fully virtual video hearings may be limited to individual courts or proceedings. ..

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