1. Current Developments
As the corona virus progressively spreads, the German federal and state governments have made urgent appeals to avoid social contacts. Numerous public institutions are already closed. Recently, cities and communities have issued "Restricted Traffic" orders. The resulting massive restrictions on public life also affect the administration of justice. Countries such as Italy and Switzerland have already reacted to the crisis with legislative interventions in the judicial system. In Switzerland, the Federal Council has enacted a temporary judicial standstill in the debt collection system as of 19 March 2020. The background to this is the (expected) liquidity bottlenecks being experienced by companies as a result of the recent drastic measures imposed – and not just in Switzerland. The order of the judicial
standstill, which is limited to the area of enforcement, is intended to give a temporary pause to litigious debt collection.
This will bring some relief for companies. The Italian government has ordered even more far-reaching measures. Oral hearings and deadlines in civil matters have been suspended by decree. The postponement initially applied until 22 March 2020, but was meanwhile extended until 15 April 2020. Only certain matters characterized (typically) by urgency are exempted.
In Germany, the federal government has not yet taken any such measures. In contrast to criminal cases, there is currently no legal provision for the interruption of civil proceedings in civil matters. The introduction of general court vacations is also not to be implemented at present.
2. The Institution of a "Judiciary Standstill"
Section 245 of the German Code of Civil Procedure ("ZPO") in fact contains a provision on the "standstill of the administration of justice". A standstill of administration of justice is deemed to exist when the activities of the court (effectively) come to a standstill. Such a standstill can also be triggered by epidemics. The consequence is the suspension of the proceedings. Upon suspension, a time limit ceases to run. The period does not begin to run again until the suspension has ended (Section 249 (1) ZPO). The standstill can affect an individual court, such as e.g. the local courts affected by the Elbe flood in 2002. The administration of justice in Germany came to a complete standstill in 1945 when all German courts closed upon the invasion by the Allies.
Closely connected with the institute of a judiciary standstill in the administration of justice is the statute of limitations as a institute of substantive (not procedural) law. This is because a standstill in the administration of justice constitutes a case of "force majeure" within the meaning of § 206 German Civil Code with the consequence that the limitations period is suspended for the duration of the standstill.
However, this is only the case if the creditor is prevented from enforcing his claims before all courts having jurisdiction.
The Corona crisis has not (yet) brought about a standstill in the administration of justice nationwide. The courts and the legal profession are continuing work in proceedings (for the time being) despite the serious disruptions.
For civil litigation, this means that two closely interwoven and, at the same time, somewhat contradictory questions arise. On the one hand, there is the question of how to deal with approaching deadlines, and on the other hand, there is the question of how to advance further proceedings efficiently (especially against the background of postponed or extended deadlines).
3. Handling Judicial Deadlines
An obvious means to address this situation are applications for extensions of time limits (Sections 224 (2), 225 ZPO). Substantial reasons must be named to justify the extension. Illnesses, but also personnel and organizational bottlenecks, difficulties in communication (in the case of authorized representatives or the parties indispensable for the procurement of information) etc. can be sufficient for an extension if the statutory time limit regulations are applied reasonably, i.e., as they should be.
An extension is not permitted in the case of emergency deadlines (such entering a defense appearance under Section 276 (1) sentence 2 ZPO). If the deadline is not met, a reinstatement of the status quo ante may be possible under Section 233 ZPO. The prerequisite for a reinstatement is that the failure to meet the deadline is not due to the fault of the party. Serious psychological and physical burdens can satisfy that prerequisite. In the present situation, the party or its attorney of record may also not be at fault in the event of quarantine. This is also conceivable in view of the current restrictions that have been imposed with their significant impacts on public movements and contacts.
Looking at upcoming deadlines and hearing dates, a motion for adjournment may be appropriate (Section 227 ZPO). As with requests for extension of time limits, this requires substantial reasons. In the current crisis, such reasons are likely to be affirmed, as otherwise the hearing would require travel and public contacts. In particularly urgent matters (typical for interim relief) the court may extend a deadline, but the requirement that there be effective legal recourse may provide grounds to oppose the extension. If successful, the hearing would then have to be conducted with sufficient protective measures to minimize the health dangers.
The current crisis may cause difficulties for either the plaintiff or the defendant to meet a deadline. In individual cases, therefore, a
request for the order of suspension of the proceedings according to Section 251 ZPO could be appropriate.
On the other hand, it is unclear under what conditions the corona crisis results in an affected party being cut off from participation in public affairs within the meaning of Section 247 ZPO. If that occurred, the consequence would be an order to suspend the proceedings. Illnesses or travel abroad of a party is not sufficient for this, however. That is true, in any case, so long as written or telephone communication is still possible. Section 247 ZPO could apply however if a party is cut off from all communication because of the pandemic.
4. Litigation Management in Times of Crisis
The considerable restrictions on the administration of justice can negatively affect effective litigation management –possibly even effective legal protection. In critical cases it may be the best course to deviate from standard procedures. The Code of Civil Procedure contains instruments for litigation management the use of which should be considered. It can be expected that these instruments will be used more extensively in the current situation. The courts are certainly endeavoring to continue to conduct proceedings without disruption – adapted to the current situation – especially since the possibility to obtain interim legal protection must remain guaranteed (for example to maintain the viability of the supply chain for medical care and the production of medication and medical equipment).
One possibility to adapt to the current situation is to transition to a written proceeding under Section 128 para. 2 ZPO. However, this requires the consent of both parties. Even without the agreement of the parties it is possible - provided the appropriate technical equipment is available - to conduct hearings by telephone by means of image and sound transmission (Section 128a para. 1 ZPO).
With the agreement of the parties, it is also possible to take evidence through informal procedures (Section 284 sentence 2 ZPO). This can also include, for example, testimony over the telephone. Telephonic witness questioning can also be considered based on Section 128a para. 2 ZPO.
Further possibilities include an order for a written witness hearing (Section 377 paragraph 3 ZPO) or a written expert opinion (Section 411 ZPO). However, it must be remembered that the written examination does not permit the witness to be assessed by direct perception. Also, the party cannot exercise its right to ask questions directly after the judge has questioned the witness.
Finally, the settlement of the legal dispute by can be achieve by a written settlement agreement (see Section 278.6 ZPO).
In the current situation, it is advisable to apply for an extension or postponement for upcoming deadlines and hearings. Since the further development cannot be reliably predicted at present, the extensions should be generous in order to minimize the burden of having to make follow-on extension requests.
In doing so, it should be borne in mind that the courts are likely to be dealing with a large number of such applications at present. An early decision is therefore possible but not always guaranteed.
In addition, the courts are also not fully staffed at present, so that the decision may be delayed even further. In the case of tight deadlines or imminent hearings, it is therefore dvisable to contact the court by telephone in order to at least obtain an extension
of the deadline. This should then be documented accordingly.
If a deadline is nevertheless missed, an application for reinstatement (Section 233) should be considered.
In view of the difficulties caused by the corona virus, it may also be appropriate to order the proceedings to be suspended (Section 251 ZPO). This could be requested by both parties jointly.
In these times of restricted public contacts, the possibility of conducting proceedings without being physically present is becoming increasingly important, particularly in interim relief cases. As explained above, with the consent of the parties, a written procedure, an informal taking of evidence as well as a hearing and taking of evidence by way of electronic image and sound transmission is possible. In appropriate cases, seeking consent or making an application for these instruments may therefore be recommendable. It may also be appropriate to inform the court of the possibility of taking written testimony from witnesses or a written expert opinion.
In addition, it may be appropriate to explore the possibility of concluding a written settlement to end the proceedings (cf. Section 278 (6) ZPO).
Also, some courts are appealing to lawyers to use the besonderes elektronisches Anwaltspostfach (beA), the special electronic attorney mailbox, to submit briefs, as this reduces the amount of work and the risk of infection as compared via the physical mail route.
This client information is only an overview about the addressed subject matter and without commitment. It does not replace legal advice. The following attorneys are gladly available to provide additional information on the topic and to provide legal advice: