In February 2022, we covered the proposed legislation that would relax Germany’s position on the discovery of documents under the Hague Evidence Convention (see here). The draft bill that contained this proposal alongside a whole host of other issues has been reviewed in depth by two Max Planck Institutes (MPI), namely by the Hamburg Institute for Comparative and International Private Law and the Luxembourg Institute for International, European and Regulatory Procedural Law. The combined academic fire power was aimed at two bills in the field:
Scope of the proposed legislation
The Ministry of Justice has put forward a draft act that primarily implements the EU Service Regulation of 2022 and the EU Evidence Regulation of 2022. This bill also adresses the cross-border taking of evidence outside the European Union. It includes the proposal referred to above that would allow German courts to execute requests for pre-trial discovery of documents (Gesetz zur Durchführung der EU-Verordnungen über grenzüberschreitende Zustellungen und grenzüberschreitende Beweisaufnahmen in Zivil- oder Handelssachen, zur Änderung der Zivilrechtshilfe, des Vormundschafts- und Betreuungsrechts sowie sonstiger Vorschriften).
The second draft bill deals with the implementation of the Hague Judgments Convention (Gesetz zur Durchführung des Haager Übereinkommens vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Entscheidungen in Zivil- und Handelssachen sowie zur Änderung der Zivilprozessordnung). This bill would essentially implement Germany’s obligations as an EU Member state arising under the Hague Judgments Convention.
Key aspects
Here is a high-level summaryof the MPI opinion:
“Besides effecting service through a qualified electronic registered delivery service provider, which is relatively cumbersome, the researchers suggest (and the EU Service Regulation envisions) allowing documents to be delivered via email in commercial settings as long as the addressee has expressly consented in advance. The researchers also welcome that the proposed legislation would drop Germany’s declaration under the Hague Evidence Convention that it will not under any circumstances execute letters of request issued for the purpose of obtaining pre-trial discovery of documents. At the same time, the researchers indicate that the proposed public policy/ordre public exception for such requests is unnecessary to protect privacy and trade secrets and is even counterproductive for purposes of the Hague Evidence Convention.
As for the planned amended rules on recognition and enforcement of foreign judgments, the research team notes that it would generally make more sense to create EU-wide implementation rules instead of relying on national legislation. However, since nothing has been done so far to enact such a unified system, the team welcomes the ministerial draft and suggests changes to more tightly circumscribe certain non-mandatory and discretionary areas. For example, the panel recommends that the form provided by the Hague Conference be made obligatory for use in certifying enforceable domestic judgments. The authors also suggest adopting statutory grounds for refusal or postponement of enforcement rather than leaving it up to the discretion of the courts.”
On softening Germany’s Article 23 objection, the MPI opinion raised the question why the discovery of documents in the possession of third parties has been carved out:
“It is not clear from the draft bill why this why this special approach is being taken. On the contrary: a general exclusion of third parties would contradict the stated aim of the draft bill (p. 34 f.), namely to stop treating disclosure obligations in the context of letters of request differently from disclosure obligations under the Code of Civil Procedure.
German procedural law today, unlike at the time of the conclusion of the Hague Convention, provides for third party document production under Section 142 para. 1 ZPO. This is subject to conditions which are designed to protect the third party: Third parties cannot be obliged to produce documents according to Section 142 para. 2 ZPO, if it would be unduly burdensome (unzumutbar) or if they have a right to refuse to testify under Sections 383 to 385 of the Code of Civil Procedure.”
In relation to service in the European Union, the MPI opinion suggests that Germany should allow direct service (Parteizustellung) in accordance with Article 20 of the 2020 Service Regulation (Article 15 of the 2007 Service Regulation), as this would allow in particular German parties to efficiently serve the statement of claim themselves in order to ensure the priority of lis pendens for German proceedings and to protect the recognition of German judgments across the European Union.
Comment
As matters progress (and time allows), we will come back to these proposals. For the time being, I note that allowing service by email and direct service would both amount to a fundamental change and a deviation from Germany’s litigation culture. Germany’s concept of service relies on service to be performed by the courts, not by the parties. However, from a practitioner’s view point, I would welcome both proposals. On allowing pre-trial discovery under the Hague Evidence Convention, I am on the same page as regards the inclusion of third parties.
The MPI’s joint opinions are available on the Ministry’s website (see here and here).
The photo shows the Hamburg Institute (© MPI für Privatrecht)