Updating Civil Procedure: Ideas for Reforms

Germany elects a new federal parliament (Bundestag) on 26th September 2021. Christine Lambrecht, the federal minister of justice is not running again. So irrespective of the outcome of the election, we will see a new face at the helm of the ministry. There is no shortage of ideas for the incoming minister to choose from if he or she goes about reforming civil procedure. Proposals range from the introduction of international commercial courts to dozens of proposals around the digitisation of civil procedure.

Within Germany‘s federal structure, procedural law and the administration of justice are allocated as follows: Procedural law is federal law, and hence, any changes need to resolved by the federal parliament, the Bundestag. The administration of justice and the practical day-today implementation of any changes to the law are almost exclusively a matter for the federal states, the Länder. They are funding the vast majority of the courts, only the federal courts at the top of each of the branches of the judiciary such as the Federal Supreme Court (Bundesgerichtshof) or the Federal Labour Court (Bundesarbeitsgericht) fall within the remit of the Federal Republic and its budget.

The ministers of justice of the sixteen Länder meet twice a year for the Justizministerkonferenz. Traditionally, the Conference is a forum in which initiatives are being discussed and put forward, if there is sufficient consensus amongst the various ministers of justice. Some of these initiatives are formalised and introduced into the legislative process via the Bundesrat, others just call for the federal ministry of justice to become active. As far as civil procedural was concerned, these were the resolutions worth noting at this year’s spring conference on 16 June 2021:

Facilitating Cross-Border Hearings within the European Union by Video Technology

The ministers noted that the Covid 19 pandemic highlighted the need for the use of video technology not only domestic civil matters, but also across the member states of the European Union.

The ministers called upon the Federal Minister of Justice to support the creation of a legal basis at European level that would allow for efficient cross-border proceedings using videoconferencing technology.

In their resolution, the Justizministerkonferenz noted that the Evidence Regulation allowed for cross-border taking of evidence by means of videoconferencing technology., but only the Small Claims Regulation contained an express legal basis for cross-border hearings.

I believe that this resolution, whilst well intended, may actually be counter-productive at least in the short to medium term, until a European Union instrument expressly providing for cross-border hearings in civil and commercial matters has been created. As Benedikt Windau has argued convincingly, the mere fact that parties or party representatives attend a virtual court hearing from outside Germany does not infringe upon the territorial sovereignty of the country from which they attend. There is no need for an express legal basis to allow parties, party representatives as well as witnesses and experts to attend from outside Germany, as long as they do so voluntarily.

Unfortunately, there are no published court decisions on this issue. In my practical experience, courts who share this point of view simply make the video link available to the parties and party representatives. There is no formal court order supporting that decision, and even less a decision providing legal reasons for doing so.

Some persuasive authority can be found in an interview with Hartmut Rensen*, a judge at the Federal Supreme Court, who describes the current practice of his court regarding the use of video technology in patent matters. The patent senate of the Federal Supreme Court has no hesitation to invite parties and party representatives based outside Germany to attend hearings via video link:

„When we started the practice [of using video technology] we discussed the participation in an oral hearing by video link locations abroad. The outcome of our discussions is reflected in our continued practice [of allowing such participation]. One can argue, for example, that the territorial sovereignty is not affected by merely granting permission pursuant to Section 128a para 1 ZPO, as the place of the hearing pursuant to the law remains the place where the court is located.”

Implementation of Representative Actions Directive

One of the major items on the to do-list of the new minister of justice will be the implementation of the Collective Redress Directive into German law, which is due by the end of 2022. In this context, the ministers of justice suggest that at the same time, the instruments under domestic law such as the Act on Model Proceedings (Musterverfahrensgesetz), should be modernised as well. This resolution ties in with the next one:

Preliminary Rulings by the Federal Supreme Court

Finally, the recent surge of mass proceedings, in particular triggered by the Diesel scandal, has led to a suggestion which is quite radical, even if it is still rather vague, namely the introduction of some kind of advance ruling procedure (Vorabentscheidungsverfahren). At first sight, it looks like it is an idea modelled on Article 267 TFEU, under which the European Court of Justice can provide preliminary rulings on points of law if requested so by a court in a member state.

The starting point for this idea is the observation that the efficient and speedy resolution of tens of thousands or hundreds of thousands of individual cases does require guidance in the form of leading cases decided by the Federal Supreme Court.

“The Ministers of Justice note, however, that the clarification by the highest courts sometimes takes a considerable amount of time, especially if a litigant affected by mass actions directs his or her procedural tactics towards avoiding a final judgment which would have precedent effect.

The Ministers of Justice support, in the context of the implementation of the Collective Redress Directive, the implementation of a referral procedure to the Federal Supreme Court in civil procedure law or of comparable measures, pursuant to which the lower courts could obtain a – comparatively speedy – “preliminary ruling” by the highest court on fundamental legal questions of significance for a large number of individual cases.”

If such a concept were to be introduced into German law, it would be a very significant change. In particular, it would severely restrict party autonomy in civil proceedings.

* Matthias Weller has published an English language summary of the interview at ConflictsofLaws.net.

Photo: Jula2812Justizministerium NRW Portal, DüsseldorfCC BY-SA 4.0

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