On February 20, 2013, the German Parliament (Bundestag) has passed a law aimed at facilitating the use of video conferences (Gesetz zur Intensivierung des Einsatzes von Videokonferenztechnik in gerichtlichen und staatsanwaltschaftlichen Verfahren) across the various branches of the judiciary. It will enter into force on November 1, 2013.
Sec. 128a German Code of Civil Procedure (Zivilprozessordnung, ZPO) has been amended to the abolish the current requirement that the parties consent to the use of video technology. The judge may now order a hearing to be held by video conference, if one party suggests this approach, even if the other party does not consent.
The changes are not applicable only to civil and commercial litigation, but cut across the various codes of procedure. They had been in the making for years, having first been introduced into the legislative process during the last parliamenty period. In January 2013, the Bundestag had heard experts on the topic, and the German (Deutscher Anwaltsverein) commented – primarily from a criminal law perspective – on the proposals.
Does It Work Across Borders?
What about the international dimension? It is not specifically addressed in the changes to the ZPO.
Cross-border video conferencing affects the territorial sovereignty of the foreign state and thus limits the jurisdiction of German courts to use that technology. The German courts may use it only within the formal legal framework of legal assistance. Within the European Union, video conferencing is permitted, if courts are taking of evidence in accordance with Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.
Practically speaking, there are two options: The German court can request the competent court of another Member State to take the evidence and then participate in the taking of evidence by the requested court via video conference (Section 1072, 1073 German Code of Civil Procedure (ZPO) in conjunction with Art 10 (4) of the Regulation). Secondly, the German court may, on a voluntary basis (Article 17(2) of the Regulation), also request to take evidence in another Member State directly and may do so by means of video and audio transmission (Section 1073 ZPO in conjunction with Article 17(4) of the Regulation).