FAQs on court proceedings in times of the corona crisis

(Last update: 3 April 2020)

The current developments with regard to the spread of the novel coronavirus (SARS-CoV-2) also represent a major challenge for the judiciary. Although press releases from various ministries of justice state that the courts are still operating, there are nevertheless considerable restrictions and delays because only an emergency team is still present in the courts, there are access restrictions for the public and the courts are instructed to conduct only those hearings that cannot be postponed.

The impact on ongoing and pending proceedings if courts can only conduct absolutely mandatory operations is explained by way of the following frequently asked questions:

1.         Are ongoing court cases being suspended because of coronavirus?

There is no blanket suspension of current court proceedings due to coronavirus at present. The German Code of Civil Procedure [Zivilprozessordnung - ZPO] does provide that, in the event of a standstill in the administration of justice due to war or other events, court proceedings are automatically interrupted for the duration of the standstill. However, there has not yet been any such standstill, as the courts are maintaining an emergency operation, in particular for remand cases, family matters and summary proceedings.

The parties are at liberty to agree on a suspension of the proceedings. If the parties are unable to reach agreement on this, the court may order the proceedings to be stayed, but only if the party requesting the stay is cut off from contact with the procedural court. This also cannot be assumed at present.

Lawyers or the parties themselves, if they are not represented by a lawyer, must therefore observe deadlines and time limits and may not automatically assume that proceedings will be suspended on grounds of the restrictions imposed by the crisis.

2.         How are proceedings being continued during existing contact bans?

Scheduled hearings can be cancelled or postponed. In the case of imminent hearings, the courts have already taken this into their own hands in order to be able to implement social distancing and in the light of existing contact bans. Lawyers or parties may otherwise apply for a rescheduling. Important grounds are required for this and, if there is a need for urgency, a rescheduling is not possible on grounds of the right to effective legal protection.

However, proceedings can also be continued without an oral hearing. If the parties agree, the court can order written proceedings (§ 128(2) ZPO). This makes particular sense if an oral hearing has already been held and there is no need for evidence to be heard.

Courts can also already issue or execute an order to take evidence prior to an oral hearing (§ 358a ZPO). This option is normally only rarely used, but the courts can use it to reduce procedural delays.

In addition, the ZPO has already permitted oral proceedings to be conducted by means of image and audio transmission since 2013 (§ 128a ZPO). However, it is an indispensable prerequisite that the courts have the necessary technical equipment. This is still not the case at all courts. Irrespective of this, video conferencing has not been greatly tested to date. This is likely to change as a result of the crisis. Numerous courts are upgrading their technology or have already announced that they will now be making greater use of their video conference systems. The parties can actively initiate this by making a corresponding request and can themselves thus avoid procedural delays caused by the rescheduling of hearings.

Where a hearing is to take place quite "normally" in court despite the current situation, this raises the question of whether the principle of the public nature of court proceedings applicable in Germany is being upheld despite the lockdowns. This is unclear. Since the court can exclude the public on grounds of the health of the parties, a lockdown imposed for health reasons will not constitute a breach of the public nature of the hearing if the hearing is so urgent that it cannot wait until after the lockdown has been lifted.

3.         What is the best way to deal with ongoing deadlines?

As always, as soon as it is foreseeable that a deadline cannot be met, an application for an extension of the deadline should immediately be made. This is particularly important at present, as the court offices are not fully staffed and judges are no longer regularly on site. At present, this can delay the decision-making process and reasons for extensions can be that the capacities at clients are tied up elsewhere with crisis management measures as opposed to with the required clarification of the facts or any other necessary coordination. We assume that courts will currently be favourably disposed towards requests for extensions of deadlines.

It should be noted that so-called emergency deadlines, e.g. the deadline for filing a statement of defense and the deadline for lodging an appeal, cannot be extended. Lawyers must observe this deadline - come what may. If this cannot be achieved, the sole remaining option is an application for reinstatement of the case. However, such application only has prospects of success if the lawyer is not at fault for the failure to meet the deadline. Since lawyers are not prevented from exercising their profession by coronavirus and since they are professionally obliged to prepare themselves in good time for any corona-related obstacles - for example they must regulate their representation in the event of their own infection with coronavirus - this will only occur in exceptional cases.

4.        Should I initiate proceedings to suspend the statute of limitations if my claim otherwise threatens to become time-barred?

In principle, the statute of limitations may be suspended due to force majeure in accordance with § 206 German Civil Code [Bürgerliches Gesetzbuch - BGB]. § 206 BGB applies to various preclusive periods and deadlines for bringing an action, such as the contestation period pursuant to § 142 (2) BGB, for example, but not to the period for filing a notice of defects pursuant to § 377 (1) German Commercial Code [Handelsgesetzbuch - HGB] or the period for challenging a resolution pursuant to § 246 (1) German Stock Corporation Act [Aktiengesetz - AktG]. However, a suspension of the statute of limitations according to § 206 BGB can only be considered if circumstances exist which make the pursuit of the claims absolutely impossible and which could not have been foreseen and averted with even the utmost expected care. This is the case, for example, when the administration of justice comes to a standstill and the courts with respective jurisdiction cease their activities completely, but not when the processing and service of claims received is merely delayed, when the conducting of hearings at court is suspended or when court buildings are closed to the public. Hence, a suspension of the statute of limitations according to § 206 BGB at present certainly does not exist.

In order to avoid legal disadvantages, it is therefore currently necessary to take measures to suspend or extend the statute of limitations where limitation periods are about to expire. Possible measures here are initiating dunning or court proceedings and obtaining a declaration of waiver of the statute of limitations by the debtor.

When initiating court proceedings by filing a legal action, it is not harmful if the action is not served on the debtor until after the expiry of the limitation period because of possible delays in processes at the court. According to § 167 ZPO, the date of receipt of the action by the court is decisive in this respect.

5.        Is interim legal protection guaranteed in spite of the restricted court operations?

In principle, all urgent matters are still being handled and decided, including applications for an interim injunction. The courts always have an emergency team of judges to handle the decisions on applications for interim relief - as far as legally and factually possible without conducting an oral hearing. Additionally, emergency court offices have been set up to ensure that the applications and incoming mail also reach the competent judges.

In times of crisis, interim legal protection can become increasingly important, for example in the following case constellations:

• Press reports about companies in crisis, e.g. to uncover irregularities in the observance of hygiene or occupational safety measures or concerning (imminent) illiquidity, may require correction.
• The population’s concern about not being sufficiently supplied with food, medical and hygiene products in the long term could become a platform for unacceptable - in particular misleading - advertising claims and sales promotion measures. Competitors or associations may thus feel forced to take legal action to enforce an injunction as quickly as possible.
• Should it actually come to supply bottlenecks or even a discontinuation of supplies in certain sectors of the economy, performance injunctions aimed at the continued or renewed supply could become more relevant. The reason for the injunction, the special urgency, can currently definitely be justified above all when a social interest is involved, because it concerns areas of supply (food, pharmaceuticals, medical and hygiene products).

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