Status quo
Virtual participation in oral hearings has become an important part in German civil proceedings. Conducting oral hearings, examining witnesses, or questioning experts or parties via video and audio transmission has been available for more than 20 years, although it was rarely used prior to Covid-19. In recent years, however, the use of video hearings and video evidence has become an indispensable additional tool for modern and efficient proceedings. After extensive discussions between the two legislative bodies, the Bundestag and Bundesrat, the new law on virtual participating in civil proceedings has now been implemented (the Act on the promotion of the use of videoconferencing technology in civil and specialised courts). This law will reform virtual participation in civil proceedings. In particular, Section 128a German Civil Procedure Code (ZPO) has been reformed and is now supplemented by: (i) a separate provision on the virtual participation of persons giving evidence in Section 284(2) ZPO, and (ii) the possibility of virtual participation during the pronouncement of judgement in Section 310(1) ZPO.
What will change?
Now, courts will be able to allow participation by video and audio transmission for one, several, or all parties to the proceedings “in appropriate cases and insofar as sufficient capacity is available”. Any application to participate virtually can be granted by the presiding judge, and any refusal must be briefly justified. However, the final decision on the form of participation remains with the parties. The principle of voluntary virtual participation remains in place. If virtual participation is ordered and the parties wish to object to this form of participation as a binding decision and retain their right to decide at a later stage, they must lodge an appeal against the order (“Einspruch”) within two weeks. If this appeal is lodged, the court must revoke the order for the appealing party. This is because, even if an appeal is lodged, it is always possible for the court to authorise virtual participation. This gives the parties the right to vote right from the outset.
Very similar rules will also apply to the taking of evidence by video and audio transmission. In addition to the ex officio authorisation and the right of the parties to request virtual participation, the persons giving evidence will also have their own right to request virtual participation. They also have the right to appeal against a binding order for virtual participation.
The new law does not include a right to virtual participation, a right to provide the court with the necessary technical equipment, or a corresponding objective obligation.
Further step towards digitalisation
In addition to these changes, the reform will introduce a number of other innovations:
The most controversial of these is the possibility of testing “fully virtual hearings”, where even the judge will no longer conduct an oral hearing in the courtroom, but from outside the courtroom, e.g. from their home office, provided that all members of the court agree and all other parties to the proceedings also participate virtually on a binding basis. The new law explicitly provides for this to be tested by selected courts or selected proceedings for a period of 10 years; it remains to be seen whether and which courts will use this opportunity.
It is now possible to attend the pronouncements of judgements virtually, if authorised by the court. Provided that the courts offer this possibility, this can certainly be helpful for parties.
Our assessment
Our experience with virtual participation in oral hearings has been largely positive. In particular, the use of videoconferencing technology plays an important role and can be advantageous in mass proceedings. However, there are also numerous proceedings in which virtual participation is simply not appropriate. The new rules take these differences into account by not forcing any party or person giving evidence to participate virtually, but by giving them the right to appeal and to remain in a hearing which they can attend in person. However, if an appeal is lodged, the risk of an unintended hybrid oral hearing remains even after the reform. This risk should always be taken into account when considering the form of participation.
The fact that it will now be possible to virtually attend the pronouncement of judgments is certainly a positive innovation, although it is still subject to the court's authorisation.
Overall, the increased use of video conferencing technology is a further positive step towards greater digitalisation of the justice system.
