律所要闻 / 重要主題
Modernisation of civil proceedings: digitisation at the German pace
An appeal for more pragmatism
The Federal Ministry of Justice has taken up the cause of promoting the comprehensive digitisation of the judiciary as an agile initiator. The latest attempt in this context is the draft bill for the development and testing of an online procedure in civil jurisdiction, which has now also been introduced to the Bundestag as a draft bill of the Federal Government.
The Ministry’s digitisation initiative is to be driven forward by testing an online procedure in a ‘real-world laboratory’. The plan is to initially create a new offering alongside the usual procedural channels at selected local courts: digitally conducted court proceedings for everyone via a platform developed by the federal government.
This procedure is to be offered by a limited number of local courts (currently eleven ‘pilot courts’) for a ‘test period of 10 years’ to collect data and develop and test a permanent online procedure. The bill is intended to represent a first milestone in the federal government’s ‘real-world laboratory strategy’ with this approach.
Ministry relies on the ‘real-world laboratory’ turbo, how about pragmatism?
There is no question that the aim of further shifting civil proceedings into the digital space is to be welcomed. The proposed procedure could also simplify and accelerate court proceedings conducted without lawyers in which the amounts in dispute are comparatively small.
However, the planned ‘test phase’ of 10 (in words: ten) years again shows how difficult Germany is finding the overdue digitisation of the justice system in particular.
In the vast majority of cases before German civil courts – those in which both parties are represented by lawyers – the additional online procedure proposed would change little: lawyers already correspond with the court via the electronic lawyer mailbox. The only addition here would be a platform for the parties to jointly process documents. Oral proceedings can also be conducted digitally. This is only possible if the court plays along, but a pleasingly large number of judges are now willing to do so.
PASCHEN always makes use of this in suitable cases; the number of civil proceedings conducted digitally here has now increased to 43% of proceedings, and the trend is still rising. The resulting efficiency gains for all parties involved, including the climate, are enormous.
The consistent digitisation of civil proceedings could be simplified and sped up by a decade by creating a binding right for the parties to a digital hearing before the court. A corresponding regulation at the federal level would also have the side effect of forcing the federal states to comprehensively equip the judiciary under their jurisdiction with the necessary technology.
The fact that legislators have just amended the relevant provision in § 128a of the Code of Civil Procedure shows that a corresponding change could be implemented quickly and easily. However, the regulation is now more than twice as long, but a digital hearing can still be rejected without serious justification.
The ‘real-world laboratory’ as a symptom
The law planned for online proceedings in civil courts is exemplary for the vast majority of the projects of the Federal Ministry of Justice for digitisation.
The project to develop a nationwide ‘justice cloud’, for example, is proving to be equally costly and protracted. It has been decided for a year and a half now that the Federal Ministry of Justice should investigate the ‘feasibility’ of such a cloud, but no conclusion on this has yet been reached.
The establishment of a digital legal application centre, for which the BMJ is responsible, has also been ongoing since 2020. After more than four years of investigating the feasibility, design and exploration of the project, the only application that can now be completed digitally is the application for legal aid.
The project to establish an enforcement database for paperless enforcement is likely to suffer a similar fate. In this regard, the BMJ has so far only made ‘preparations for the start of development’, which should enable the development of a concept for setting up an enforcement database. The fact that a judgment for enforcement must always be available in original written form at all offices, which leads to a lot of postal traffic between all parties involved, is therefore not likely to change in the near future as a result of the planned establishment of an enforcement database.
Appeal to parliamentarians
The draft law on the further digitisation of enforcement shows that there is another way. This provides for the small change that PASCHEN has been suggesting at every opportunity for years, namely that the sending of an electronic copy of the title to enforcement courts and bailiffs, at least by lawyers, without the previous restriction to enforcement orders of up to €5,000, should be considered sufficient. In the largely digitised enforcement proceedings, several weeks are regularly lost because the original of the other enforcement titles must be sent by post at the request of the enforcement authority.
Eliminating this media discontinuity not only saves valuable time, but also conserves precious human resources that are so urgently needed elsewhere.
The draft was submitted in March of this year and has since been discussed without any apparent effort to speed up the legislative process. The recent referral to the Bundestag’s Legal Affairs Committee offers the legislature the opportunity to finally show the necessary drive and quickly bring the project to a close. Parliament has impressively demonstrated that this is actually possible during the pandemic.
The slow progress, even with this minimally invasive change, shows all too clearly the German problem: endless discussions about the perfect overall solution instead of a faster, bolder and sustainable approach in smaller steps.
In our view, such an approach, which challenges the apparatus but does not overburden it, is the right way to implement digitisation at the necessary speed. That is our idea of speed, in the country that is known worldwide for setting no speed limit.
Our PASCHEN Team Trade & Services will keep you informed on further developments in this area.