Justitia 4.0 – the pros and cons of digital court proceedings and notarial records in Germany

According to the provision of Section 128a of the ZPO (Zivilprozessordnung [Code of Civil Procedure]), a hearing by way of image and sound transmission for civil proceedings has already been permitted for a long time. The same applies to the administrative (Section 102a VwGO (Verwaltungsgerichtsordnung [Administrative Procedures Act])), financial (Section 91a FGO (Finanzgerichtsordnung [Fiscal Courts Procedures Act]), employment (Section 46 Para. 2 ArbGG (Arbeitsgerichtsgesetz [Labour Courts Act])) and social court proceedings (Section 110a SGG (Sozialgerichtsgesetz [Social Courts Act])). According to the aforementioned regulations, not only discussion meetings, but also hearings of witnesses, experts or a participant can be carried out upon request. For the area of criminal law, different regulations apply on the use of video technology in order to comply with the public policy and in view of a fundamental obligation of the parties to be present. For example, witness statements by video are only possible in very rare exceptional cases if this serves to protect victims or to defend against the risk of loss of evidence.

On 10.06.2021, the German Bundestag passed the law on the implementation of the Digitalisation Directive (Digitalisierungsrichtlinie, DiRUG). The law enters into force on 01.08.2022. The law introduces an online certification procedure for the establishment of limited companies (GmbHs) and an online certification procedure for certain commercial register applications. The reason for the introduction of the notarial online procedure is the implementation of the European Digitalisation Directive. In the future, the online procedure will be available exclusively for cash establishments of limited companies (GmbHs) and registrations to the commercial register regarding stock corporations, sole proprietorships and branches of domestic and foreign stock corporations.

According to the aforementioned regulations, not only discussion meetings, but also hearings of witnesses, technical experts or a participant can be carried out upon request. From a technical perspective, it is necessary that the hearing or examination is transferred “simultaneously in picture and sound” to the other location and to the meeting room. In the case of video hearings, the public principle is regularly maintained in practice by setting up a screen in a courtroom. However, the transmission is not recorded or streamed online. Irrespective of whether stationary videoconference systems are used on the part of the court or are based on software-based cloud solutions, no special technology is usually required at the “other location”. Participation is generally possible with any standard internet browser and webcam.

According to Section 16a Para. 1 of the BeurkG new version (Beurkundungsgesetz [Notarisation Act]), online certification is only permissible via the video communication system operated by the Federal Council of Notaries in accordance with Section 78p of the BNotO new version (Bundesnotarordnung [Federal Notarial Code]). Accordingly, the Federal Council of Notaries has the obligatory task of developing and operating such a video communication system. The obligatory use of the video communication system of the Federal Council of Notaries excludes the use of other video communication systems on the market.

From our experience, we have only made isolated use of the possibility of negotiation by way of image and sound transmission. In the process, the parties involved in the proceedings are connected to the large screen in the courtroom in which the judges are personally present and can participate in the oral hearing. However, corresponding hearings have so far occurred without major technical problems so that after an initial familiarisation phase, it is to be expected that the number of video hearings will increase in the future for all participants. Based on previous experience, it is obvious that certain procedures are better suited for videoconferences than others. Hearings that are essentially limited to the discussion of legal issues are, of course, better suited than those in which the perception of participants plays an important role within the framework of hearings or examinations.

Notarial video certifications are currently not possible in Germany for legal reasons. Certifications of declarations of intent and signature certifications are provided exclusively in-person. For this reason, there are not (yet) reports of experience in this regard. The only exception to this is the notarial support (creation of notarial general meeting minutes) of general meetings, which can already be held by videoconference since spring 2020.

Autor: Dr. Axel Berninger