Legal Basis for Remote Court Hearings and Procedure in Germany

Case Presentation A good old school friend calls you in the morning. He asks for help for his daughter who has been sued by her ex-partner for 30,000 euros in damages. The separation had taken place after several incidents of domestic violence. An initial response must be sent to the court today in defence of the claim, otherwise it will be too late.You promise to help because he is a really good friend. He emails you the court correspondence and his daughter's contact details. Shortly after lunchtime, you can finally reach her by phone. She still seems sleepy and tells you that she is overseas. On behalf of a client, she is staying there in his hotel complex and reports on this to her 1 million followers on social media every day.She says she is too busy as an influencer to return home because of this dispute.She wants a court hearing to be held on Zoom so that she does not have to travel home.However, if there is no other way and she has to appear in person, she wants her followers to be with her live via social media during the court hearing.Either way, she expects to make a spectacular appearance. After all, she wants the whole world to see what a bad guy this person is. He cheated on her with her best friend.For that matter, it could never have cost that much money to fix his favourite car.She deliberately drove it into the wall at the garage entrance.She has also thought about suing him, because he has spread very, very private photos of her on the internet. Question 11.1 Is it permissible to have a court hearing on Zoom, etc.? Europ isches Anwaltstreffen in Erlangen 25. bis 28. Mai 2023

Legal basis: 128a Code of Civil Procedure Section 128a Hearing for oral argument using image and sound transmission (1) The court may permit the parties, their attorneys-in-fact ,and advisers, upon their filing a corresponding application or ex officio, to stay at another location in the course of a hearing for oral argument, and to take actions in the proceedings from there. In this event, the images and sound of the hearing shall be broadcast in real time to this location and to the courtroom. (2) The court may permit a witness, an expert, or a party to the dispute, upon a corresponding application having been filed, to stay at another location in the course of an examination. The images and sound of the examination shall be broadcast in real time to this location and to the courtroom. Should permission have been granted, pursuant to subsection (1), first sentence, for parties, attorneys-in-fact and advisers to stay at a different location, the images and sound of the examination shall be broadcast also to that location. (3) The broadcast images and sound will not be recorded. Decisions given pursuant to subsection (1), first sentence, and subsection (2), first sentence, are incontestable. Europ isches Anwaltstreffen in Erlangen 25. bis 28. Mai 2023

Legal possibility already since 2001 (!) Request of a party Reformed in 2013 also by order of the court Until 2020 Sleeping Beauty Covid-19 pandemic Advantageous in international comparison, as legal basis had already been created - - - - Court Procedure Sole decision of the courtNot contestable by appeal 128a: Simultaneous video and audio transmission (live) to any location.But: Court in courtroom Principle: oral proceedings with simultaneous and personal presence Europ isches Anwaltstreffen in Erlangen 25. bis 28. Mai 2023

Requirements: Technical equipment for image + sound in case of technical problems Termination of the hearing Complied with GDPR Zoom in direct application not GDPR compliant Court chooses system No exclusion of the public Judge in courtroom at court No person abroad Violation of state sovereignty (Exception: Verordnung (EG) Nr. 861/2007 EuGFVO with limit up to EUR 5.000,00) - - - - Europ isches Anwaltstreffen in Erlangen 25. bis 28. Mai 2023

Conclusion: - - YES, a court hearing may also be held via video call. NO, not in this case, as the plaintiff is abroad. Europ isches Anwaltstreffen in Erlangen 25. bis 28. Mai 2023

1.2 Is it permissible to broadcast a court hearing live via public/private media?or have it recorded? 128a ZPO (3) The broadcast images and sound will not be recorded. Decisions given pursuant to subsection (1), first sentence, and subsection (2), first sentence, are incontestable. 169 Courts Constitution Act (1) Hearings before the adjudicating court, including the pronouncement of judgments and rulings, shall be public. Audio and television or radio recordings as well as audio and film recordings intended for public presentation or for publication of their content shall be inadmissible. Audio transmissions to a workspace for persons reporting for the press, radio, television or other media may be authorised by the court. Audio transmissions may, in part, be prohibited in order to protect the legitimate interests of the parties or of third parties or to ensure the proper course of proceedings. In all other respects, sentence 2 shall apply to audio transmission to a workspace accordingly. It is not permitted to make a "livestream" out of it. Recording is also prohibited. Europ isches Anwaltstreffen in Erlangen 25. bis 28. Mai 2023

Question 2: What do you have to do to send your pleading to court within the time limit? - besonderes elektronisches Anwaltspostfach = beA (engl: Special electronic lawyer's mailbox) Mandatory system for communication with courts Since 01.01.2022 - - 130d ZPO Duty of use for lawyers and public authorities Preparatory pleadings and their annexes as well as applications and declarations to be submitted in writing which are filed by a lawyer, by an authority or by a legal person under public law including the associations formed by it for the performance of its public duties shall be transmitted as an electronic document. If this is temporarily impossible for technical reasons, the transmission shall remain admissible in accordance with the general provisions. The temporary impossibility shall be substantiated at the time of the substitute submission or immediately thereafter; an electronic document shall be submitted subsequently upon request. Europ isches Anwaltstreffen in Erlangen 25. bis 28. Mai 2023

Alternative submission: - - - Personal deposit in letterbox of the court Fax Letter Attention: - - Credibility of the disruption Immediately immediately with substitute submission or max. 1 week (III. Zivilsenats des BGH vom 15. Dezember 2022 III ZB 18/22; IX. Zivilsenats des BGH vom 17. November 2022 - IX ZB 17/22) Europ isches Anwaltstreffen in Erlangen 25. bis 28. Mai 2023

DANKE! Hannes H rber Rechtsanwalt Europ isches Anwaltstreffen in Erlangen 25. bis 28. Mai 2023