When the pandemic started and court hearings by video became a real thing, German lawyers found, sometimes to their surprise, that the law was actually quite advanced: Already back in 2002, Section 128a ZPO was introduced to allow the conduct of court hearings using videoconferencing technology and the law was updated in 2013 (see our earlier post “Remote Courts in Germany” for details). The law in action has since caught up with the law on the books: Courts have been equipped with the necessary hardware and hearings by videoconferencing have become a regular feature in many court rooms across the country – and they are likely to stay in a post-pandemic world. However, there remains some uncertainty regarding the use of videoconferencing in a cross-border context.
Position under German Law
One position taken in the legal literature deems cross-border hearings using videoconferencing to be inadmissible under international law without some form of approval or consent of the other state concerned. The argument is made that the German court by letting a party or a witness join a hearing by video link from outside Germany exercises its sovereign powers at the place were these attendees are physically located. Thus, the German court would violate the territorial integrity of the foreign state concerned. There is no case law to that effect. The Federal Ministry of Justice, the Federal Office of Justice (Bundesamt für Justiz) and the Foreign Ministry issued a joint proposal on how to handle requests relating to cross-border hearings by video link. They took the position that the participation from outside Germany would only be permissible after prior authorisation by the authorities of the state concerned. The joint statement does not convince me. More importantly, it technically not bind the courts (and they do not feel bound in practice, as we will see), but still it does have some weight.
This position that the German court exercises sovereign powers in the other state concerned by simply by allowing parties, party representatives or witnesses to dial into a hearing from abroad is disputed – keep in mind we are talking only about cases of voluntary participation. In particular, the patent senate of the Federal Supreme Court (Bundesgerichtshof) on a regular basis invites foreign parties and other participants to join hearings without the permission of the foreign state. From my personal practice, I can confirm that other courts follow that example and allow foreign parties and their lawyers to participate via video link. Finally, even if that were to constitute a violation of the other state’s territorial integrity, it would have no procedural consequences (see Benedikt Windau’s post for a more detailed discussion).
The Commission’s Proposal
For cross-border matters within the European Union, the Commission has put forward a draft Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation that addresses the issue. The relevant part of the draft reads as follows:
Hearing through videoconferencing or other distance communication technology in civil and commercial matters
1. Without prejudice to specific provisions regulating the use of videoconferencing or other distance communication technology in proceedings under the legal acts listed in Annex I, and upon request of a party to proceedings falling under the scope of these legal acts or in other civil and commercial matters where one of the parties is present in another Member State, or upon request of their legal or authorised representative, competent authorities shall allow their participation to a hearing by videoconferencing or other distance communication technology, provided that:
(a) such technology is available, and
(b) the other party or parties to the proceedings were given the possibility to submit an opinion on the use of videoconferencing or other distance communication technology.
2. A request for conducting an oral hearing through videoconferencing or other distance communication technology may be refused by the competent authority where the particular circumstances of the case are not compatible with the use of such technology.
3.Competent authorities may on their own motion allow the participation of parties to hearings by videoconference, provided that all parties to the proceedings are given the possibility to submit an opinion on the use of videoconferencing or other distance communication technology.
4. Subject to this Regulation, the procedure for requesting and conducting a videoconference shall be regulated by the national law of the Member State conducting videoconference.
5. Requests under paragraph 1 may be submitted via the European electronic access point and through national IT portals, where available.
The EU Commission’s proposal would give parties the right to participate by video link in hearings in civil and commercial matters in another member state. It would be for the court concerned to allow this participation without further need to seek authorisation from the other member state. That the courts should decide on using videotechnology following a consultation with the parties appears to be reasonable and does not create an undue burden. So, seen in isolation, the EU Commission’s proposal is a welcome step, as it provides a legal basis for video hearings across the EU.
However, there is one potential downside, as Dr Hartmut Rensen, a judge at the Federal Supreme Court (Bundesgerichtshof), warned in his interview with zpoblog.de on the Federal Supreme Court’s use of videoconferences. In this interview, he not only pointed out that he and the colleagues in his senate did not agree with the position taken by the Federal Ministry of Justice, the Federal Office of Justice (Bundesamt für Justiz) and the Foreign Ministry referred to above. He also warned that a legislative initiative such as the one by the EU Commission could be counterproductive, when it comes to allowing the attendance of participants from outside the EU:
“Creating a legal basis for conducting videoconferences with parties from abroad could very easily hinder the granting of effective access to justice. For example, one could draw the conclusion from an EU regulation to that effect that the participation in video conferences pursuant to Section 128a ZPO of persons residing abroad would, in the view of the legislature, always be a matter that requires formal judicial cooperation and an express legal basis. Such a basis may possibly be created in the near future with regard to the European Union, but not with regard to the US and other countries that are of high practial relevance. Any amendment to Section 128a ZPO and any intervention by the legislature with regard to the aspect of territorial sovereignty may therefore result in a serious impediment to effective legal protection, regardless of good intentions.”
Now that the EU Commission has taken action, we can only hope that future court practice in Germany and abroad not follow the line of thinking that Dr Rensen fears it could.