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Since the outbreak of the coronavirus pandemic, the legal world has successfully navigated a colossal shift to remote working, both within law firms and the court system. In one of our previous articles (which can be found here), we discussed the English courts’ approach to remote hearings and potential future developments. In this article, we consider the German perspective.

Statutory background

Surprisingly, the German Code of Civil Procedure (Zivilprozessordnung, hereafter “ZPO”) included a statutory provision on the conduct of remote hearings in its Section 128a long before the pandemic. However, while the provision, introduced in 2002 and updated in 2013, has been available for a relatively long time, it was rarely used in practice. It was not until the year 2020 when this changed dramatically and the conduct of remote hearings became commonplace.

Pursuant to Section 128a ZPO, the court may permit the parties and their attorneys to join an oral hearing from another location. Images and audio from the hearing will be broadcast between this location and the courtroom in real-time. However, the German regulation does not authorise a completely virtual hearing, but only permits the parties to stay at another location during the hearings. The court itself must stay in the courtroom. In addition, the court must ensure that physical public access to the hearing, which is an important cornerstone of German public policy, is maintained, so the images and audio of the parties connected online must be transmitted to the courtroom in a way that the audience can follow the hearing. Other than that, no broadcasting or internet streaming is permitted and the video and audio signal of the parties participating in the hearing from outside the courtroom must not be recorded, mirroring the requirements of in-person hearings.

Moreover, Section 128a ZPO leaves the granting of remote hearings entirely to the court’s discretion. Although a party may file an application for a remote hearing, the final decision as to whether a hearing takes place remotely or in person rests with the judge. For this reason, the practical use and frequency of remote hearings is not consistent throughout all courts in Germany. The willingness of a judge to conduct a hearing with remote-access for the parties depends highly on the technical equipment of the competent court and how confident the court is with using the technology, which varies considerably.  However, during the coronavirus pandemic, most courts were equipped with new digital devices and are therefore at least in principle able to facilitate remote hearings more easily than before. It follows that in practice, remote hearings pursuant to Section 128a ZPO are now more widely granted and adopted in practice in Germany than before the pandemic.

Practical considerations

With the new prominence of the application of Section 128a ZPO, a few practical issues have been discussed in legal literature and have been subject to recent court decisions:

• The court cannot compel the parties to participate in the hearing remotely. For instance, the Local Court of Lüneburg was found to have denied one party access to an oral hearing in a family law dispute following an order to grant and require a remote hearing. However, the competent Higher Regional Court of Celle overruled this decision, expressly describing the earlier decision as a substantial violation of procedural law. The court emphasised that regardless of the local court’s order for a remote hearing, each party may decide to attend the hearing in-person. This opens the stage for tactical considerations, whether the clients’ interests are best served through in-person advocacy (which brings advantages in clear communication, the possibility of interpreting a judge’s body language, and having all parties present in the same place at the same time) or whether the benefits of remote hearing (e.g. cost-savings) prevail. The same applies for witness examinations, which may also be conducted remotely according to Section 128a ZPO.

• Within the context of Section 128a ZPO, “another location” means any place that allows for the uninterrupted conduct of the hearing and the transmission of audio and video. However, some courts (e.g. the Cologne Regional Court) may require the lawyer to be in the office of their law firm when joining a hearing remotely. At this stage, and in the absence of clearer direction, it is advisable to follow this approach for greater legal certainty. Besides, participation from a location outside of Germany appears questionable, as the court is not legally authorised under international law to exercise its public powers on the territory of foreign states. Therefore, any participation by the parties or counsel from abroad (e.g. the lawyers’ vacation homes or international offices) must be avoided.

• If a party fails to appear at the remote hearing, the court may deliver a default judgment to the detriment of the (absent) defaulting party.  However, the court will refrain from doing so if it is of the opinion that the party is prevented from appearing at the hearing through no fault of its own. With that in mind, it is in the parties’ best interests to thoroughly test its technical equipment, and all participants’ access to the remote hearing software provided by the court, ahead of the time fixed for the remote hearing. In the case of unforeseen technical difficulties, the party must notify the court of the technical malfunction as soon as possible to avoid penalty.

Conclusion

In conclusion, the pandemic has resulted in a discovery of Section 128a ZPO for many judges and lawyers, offering a flexibility that was not frequently used pre-2020. Therefore, we expect that remote hearings in Germany will continue to be requested and conducted often, even after the pandemic. It is clear that litigants will continue to benefit from the enhancement in court technology and associated resources developed during the pandemic for many years to come.

Trainee Associate Dzmitry Krupadziorau assisted in the preparation of this article.