It is a contested issue whether it is admissible for parties to attend German court hearings by videolink whilst being abroad. Many, if not the majority of legal commentators argue that this is not admissible without prior approval from the foreign state concerned, because the German court thereby exercises Germany’s sovereign on foreign soil and thus violates the sovereignty of the foreign state where the parties are located.
In practice, the courts appear to be taking a more modern approach. A recent decision by the Freiburg Administrative Court (Verwaltungsgericht) has allowed Swiss parties to attend a court hearing in Freiburg by video link without first seeking the aproval of the Swiss authorities. In my practice, I have also experienced courts allowing the attendance of parties from outside Germany without prior approval. Court orders allowing attendance by videolink from abroad are rather mundane procedural decision that typically never get published, nor do they come with reasons.
The Freiburg decision is therefore interesting for two reasons: First, it is, to the best of my knowledge, the first published case on the topic. Secondly, it convincingly argues the case for allowing parties to attend from abroad without having to go down the time-consuming route of judicial assistance.
The plaintiffs in an administrative in Freiburg Administrative Court were domiciled in Switzerland. They had applied for permission to participate in a hearing in the administrative court in Freiburg by way of videolink from their Swiss domicile.
The Administrative Court granted the permission. The court first recognized that “the view is predominantly held that, in order to safeguard territorial sovereignty, videoconferences with a foreign country in the exercise of sovereign powers (in this case, powers of the judiciary) as a matter of principle are only permissible under the formal route of judicial assistance.”
The court then set out the reasons why it does not agree with that position:
“By granting the application of the plaintiff and their repesentatives, respectively, to attend the hearing in Germany by videolink from their domicile in Switzerland does not result in this Court exercising sovereign powers in Switzerland. The fact that the plaintiffs attend by videolink does not alter the place of the court hearing. It is only that the physical presence in the courtroom is substituted by a video and audio transmission into the courtroom.
Nor can one argue that the video and audio transmission (indirectly) results in effective exercise of sovereignty in Switzerland. Certainly in this case, that is true, because the plaintiffs, who had no duty to appear in court, were only given the option to (voluntarily) make statements in the hearing; no formal hearing of the parties or note taking of evidence is going to take place, and furthermore, procedurally relevant actions can be taken by the legal counsel, who joined by video link from a location in Germany.”
As noted above, to the best of my knowledge, the decision of the administrative court in Freiburg is the first published decision that expressly deals with the issue of attending a German court hearing via video link from abroad. The patent senate at the Federal Supreme Court (Bundesgerichtshof) adopts a similar approach. Whilst there aren’t any decisions that have been published, one of the judges did share their approach in an interview.
I am fundamentally of the option that the argument put forward by the Freiburg court is right, not only because it is a pragmatic decision that allows courts to considerably speed up proceedings with foreign parties, whilst at the same time saving parties significant travel costs that otherwise would need to be incurred.
The truth however is that on the non-judicial side of the judiciary, that is within the administration, be it at the Federal Ministry of Justice or the Federal Office of Justice (Bundesamt für Justiz), that approach is not shared. They have developed guidelines on how to obtain prior permission from the foreign country concerned.
The Freiburg court decision itself points to a significant restriction in the scope of its position: It only applies to the attendance of parties and their representatives, but not to a formal taking of evidence by hearing witnesses. In that case, prior permission from the state of residence of the witnesses must be sought.
P.S.: 95% of the copyright for this post belong to Benedikt Windau, as I have only adapted his German language post over at zpoblog.de. For those of you who read German and are interested in the topic, I highly recommend reading the original, which contains links to further German language sources on the topic.