In unprecedented times, litigation in Germany is seeing a number of responses to the crisis. Firstly, the justice ministry has encouraged citizens to only contact the courts if cases are urgent. Court cases involve bringing a number of parties together in a confined space. These parties include the lawyers, the judge, the lay judge (if applicable), the parties involved and an audience. Such gatherings carry greater risk of easier transmission of COVID-19 coronavirus. Disputes involving small sums of money have been encouraged to be resolved outside of court.
Some cases are still taking place and different courts have responded in a variety of ways to ensure that the work of justice can continue. In the Amtsgericht (the district court) in Hagen, the court has only allowed for cases to proceed once the parties involved have access to respiratory masks. Should parties refuse to do so they will face disciplinary action including the termination of the case. In this instance the court has relied on § 176 Court Constitution Act (GVG) which states: “The maintenance of order in the sitting shall be incumbent upon the presiding judge.” This step may in practice be unrealistic as not everyone has access to respirators. However, this is just one example of how courts are attempting to keep going.
A recognised approach to dealing with parties with infections is by having them deliver their evidence from behind glass in a separate room. In these cases, the parties in questions communicate with the court through microphones and loudspeakers. However, with the deadly nature of COVID-19 coronavirus, some courts have taken another approach. In Hamburg and Hesse the courts are refusing entry to people who show signs of the symptoms of the virus as well as those who have recently been in “a hotspot” or have come into contact with a person with COVID-19 coronavirus.
One of the most serious series of cases happening in Germany at the moment are the so-called “Cum-Ex” cases. These cases are the biggest and most complex tax fraud cases that Germany has ever seen. The court in Bonn found the defendants guilty of tax fraud and handed down suspended prison sentences as well as a fine of €14 million to one of the defendants.
The sheer importance of this case meant that it proceeded even during this crisis. However, the manner in which the proceedings demonstrated how courts are responding to COVID-19 when it comes to current litigation in Germany. For one, the case in Bonn was resolved quicker than is usual. The court reasoned that the sooner the case was resolved the less likely the chance that one of those involved would contract COVID-19 coronavirus. Furthermore, the court only allowed for a maximum of 40 people to attend the case, in a courtroom that would normally hold around four times that many people. It was also noticeable that the parties involved kept distances from each other. Sensible steps to avoid transmission of the virus.
Other cases are also being accelerated around Germany. The courts are fearful of how delay and disruption will lead to parties involved in cases falling ill and disrupting the cases further. Many cases are being postponed until later in the year when hopefully the COVID-19 coronavirus outbreak will be more under control.
Litigation in Germany: How the Justice System is responding
The justice system is making changes as to how it is run to combat the threat of COVID-19 coronavirus, like all other industries. The German Ministry for Justice has stated that all workers in the court system whose presence is not strictly required will work from home. For the workers whose presence is required, their working hours will be more flexible so as to ensure that there is not excessive social contact. This will also allow staff to have more flexibility when it comes to issues around childcare. However, this crisis may lead to other changes in how cases are heard in court.
According to § 128a Code of Civil Procedure, elements of cases such as witness statements and oral arguments can be made through video and audio transmissions from other locations. This reduces the number of people who need to be in the courtroom. In practice this is rarely used by courts as many courts lack the facilities to do so. In practice, this may speed up cases and also greater facilitate the statements of witnesses and experts from further afield.
As cases continue during the COVID-19 coronavirus crisis it may be that courts with such facilities will make greater usage of them. Going forward it would be prudent for courts to consider whether greater emphasis should be placed on having greater facilities in this area.
With supply chains disrupted, borders closed and workers becoming ill and / or working from home in large numbers, it is a difficult time for all companies. For many companies it has become impossible to complete the terms of their contracts. The COVID-19 coronavirus has disrupted the manner in which business is conducted in a manner we have not experienced in a very long time.
In the aftermath of this crisis, commercial disputes may arise due to the disruptions caused and our clients may be worried about this. In this instance companies may be able to rely on the legal principle of force majeure or a so-called “Act of God”.
In our article “COVID-19 Coronavirus, Commercial Law and Force Majeure” we have outlined how this principle applies and what actions companies should take. Force majeure is a legal principle that concerns actions outside the control of the business, which they could not have predicted, having a huge effect on how a contract is carried out. A successful application of force majeure can ensure that the company is found not liable for the resulting breach of contract. Read our article for more information.
Litigation in Germany: Schlun & Elseven Attorneys
Currently times are difficult. At Schlun & Elseven Attorneys, we are fully aware of the challenges facing our clients during the COVID-19 coronavirus crisis. Furthermore, we acknowledge that the conclusion of this crisis will bring issues that may result in litigation. Some may even have issues which should be resolved by litigation now but as can be seen may be best not brought to court in the present time. Contacting a German litigation lawyer may provide the best insight as to how best to proceed.
At Schlun & Elseven Attorneys, we are a multidisciplinary law firm with offices in Cologne, Aachen and Düsseldorf. Our lawyers are very experienced when it comes to contending with the German legal system and can help you navigate German courts. Should you require legal assistance at this time our lawyers can be reached from distance through phone, video conferencing and by email. We provide our services in English, French, Spanish, Portuguese, Chinese and Turkish as well as German.
We will advise you on the best course of action when it comes to litigation in Germany in the present environment. Contact us directly for more information. We look forward to working with you.