CMS Expert Guide to Digital Litigation in Germany

In recent years, the digitisation of the German civil justice system has made some progress although changes were mainly limited to the transformation of analog means of communication to digital means.

The 2013 Act on the Promotion of Electronic Legal Matters (Gesetz zur Förderung des elektronischen Rechtsverkehrs) introduced several provisions on the use of electronic documents and the filing of electronic evidence into the German Code of Civil Procedure (Zivilprozessordnung, ZPO). A key element was the introduction of an electronic mailbox for lawyers (besonderes elektronisches Anwaltspostfach, beA), which started in 2016. Since 1 January 2022, lawyers and public authorities are obligated to file submissions exclusively as electronic documents unless this is not possible for technical reasons (sec. 130d ZPO). However, the courts themselves are not obligated to serve submissions electronically to the parties. Although many courts have already introduced an electronic file management system (e-Akte), an obligation to manage the case files electronically will only exist as of 1 January 2026 (sec. 298a ZPO). The e-Akte brings many advantages and efficiency gains for the courts but also for the parties and their attorneys. For example, attorneys may inspect case files online without having the actual documents physically transferred from the courts to law firms and back (sec. 299 para. 3 ZPO).

In light of the introduction of the electronic filing of submissions, the German legislator further introduced provisions that deal with the evidentiary effect of electronic documents (sec. 371a, 371b ZPO). Hereafter, electronic documents, which are signed by means of a qualified electronic signature (qualifizierte elektronische Signatur, qeS), are deemed to have the same evidential value as physically signed documents (sec. 416 ZPO). If created by a public authority, their evidential value is equal to the evidential value of public records (sec. 417, 416 ZPO), even if they are not signed by means of a qeS. Electronic documents of private individuals, which are not signed by a qeS, are subject to the free judicial assessment of evidence (freie richterliche Beweiswürdigung) under sec. 286 ZPO. It is assumed that electronic documents without qeS are considered to be of equal evidential value to copies of physical documents.

Already since 2001, the German Code on Civil Procedure provides the option to hold an oral hearing by means of a videoconference (“image and sound transmission”, sec. 128a ZPO). However, this option was seldom used before the COVID-19 pandemic. Since the start of the pandemic, however, oral hearings by videoconference have become more and more common.

Under sec. 128a ZPO, the court may permit the parties, their attorneys and advisers, upon request or ex officio, to stay at another location during the course of an oral hearing and to take actions in the proceedings from there. In this event, the images and sound of the hearing shall be broadcasted in real time to this location and to the courtroom. Furthermore, under sec. 128a para. 2 ZPO, the videoconference may also be used for the examination of witnesses, experts or of the parties to the dispute upon request.

There are a variety of digital and technical measures currently available in litigation. The use of these tools varies between the different stakeholders (i.e. parties, lawyers and courts, the latter in both their judicial and administrative function).

On the side of the courts, the most prominent and key tool in use is the electronic file management system (e-Akte), which allows for the organisation and administration of electronic submissions. Furthermore, oral hearings may be conducted via videoconference under sec 128a ZPO. The use of videoconferencing techniques, however, depends on the approach taken by the judge in the relevant case at hand. Many judges are proactively proposing videoconferences whereas others may have strong reservations and thus refrain from using this option.

On the part of the lawyers, electronic submissions are filed and received via the electronic mailbox of lawyers (besonderes elektronisches Anwaltspostfach, beA). Other digital or technical measures may include the use of electronic discovery tools to search and review large amounts of electronic data, or the use of videoconferencing technology to conduct oral hearings remotely. Additionally, there are a number of legal software applications and online platforms that can help parties manage and organise their legal documents and case materials, streamline the litigation process, and facilitate communication and collaboration between attorneys and other parties.

Recently, as a result of the high workload of the courts in connection with mass litigation proceedings (e.g. diesel-related claims or claims under the passenger rights regulation), efforts were made to make use of AI capabilities in order to assist judges in their decision-making. In cooperation with private companies, some courts have developed digital tools that act as assistants to the judges. It should be noted that the use of AI and algorithmic systems is currently limited to more formalised and standardised areas of law and is confined to an assisting role only.

Furthermore, courts have recently started to make use of virtual reality goggles. Although these cases were limited to specific criminal matters, it is likely that courts will use VR capabilities in litigation in the future (e.g. when assessing defects in construction disputes or assessing the cause of a traffic accident).

In general, the use of digital tools or measures is not mandatory with one exception. As of 1 January 2022, the use of the electronic mailbox for lawyers (besonderes elektronisches Anwaltspostfach, beA) is mandatory for lawyers when filing documents with the courts.

In proceedings in which the parties are not represented by a lawyer (e.g. in civil matters before the local courts) but rather represent themselves, the parties are not obligated to file their submissions electronically. However, citizens and organisations may use the electronic court and administration mailbox (EGVP), the electronic mailbox for citizens and organisations (besonderes elektronisches Bürger- und Organisationenpostfach, eBO), the user accounts under the Online Access Act (Onlinezugangsgesetz) and the so-called De-Mail for secure and legally binding electronic communication with the judiciary. The establishment of these communication channels between citizens and the judiciary requires the implementation of an identification procedure.

As already stated, the courts are currently not under an obligation to manage case files electronically. A corresponding obligation only comes into existence as of 1 January 2026 (sec. 298a ZPO). Furthermore, the possibility of conducting oral hearings via videoconference is optional as well. First, the courts need to permit the parties and their lawyers to attend the hearing via videoconference. Currently, this decision by the court is made at the discretion of the judge. In cases where attending the oral hearing via videoconference is permitted, the parties and their lawyers are not obligated to do so, but can still attend the hearing in person in the courtroom. The judge is currently required to be present in the courtroom (see Question 5 for potential amendments in this regard).

In light of the above, litigation in Germany currently cannot be considered a fully digitalised process. Whereas some proceedings are mostly or even completely conducted through digital communication, this does not mean that Germany has a fully and integrated digital process for litigation in place.

Firstly, this is because the use of an electronic file management system is not yet mandatory for German courts. Today many courts still lack the necessary equipment or the necessary technical support to conduct hearings via videoconferencing.

Secondly, digital transformation should not only be understood to refer to the mere conversion of existing (i.e. analogue) processes to digitalised processes, but rather as a chance to reimagine existing processes. However, the reforms that (at least in part) deal with the digital transformation of the litigation process appear not to follow an integrated approach, but rather provide for a more or less one-to-one transfer of existing analogue processes into the digital sphere.

Besides the above-mentioned laws and regulations, there are no specific rules in place that specifically address the use of technology in litigation. However, according to the coalition agreement of the Social Democrats, the Greens and the Liberal Party, the German government plans to further promote the digitalisation of judicial proceedings.

In this light, the federal government has developed a digital strategy with the aim to fully digitise the justice system by 2025. This strategy inter alia includes the development of software that can be used nationwide for accessing judicial services via a digital legal application office (Digitale Rechtsantragsstelle), the introduction of a law providing for digital recordings of proceedings with automated transcripts (initially in criminal proceedings only), the roll-out of a federal video platform that allows for ease in accessing video proceedings and scheduling court dates, the implementation of an interface for the controlled transfer of judicial data in order to enable AI-assisted cloud-based judicial services and the development of a nationwide judicial cloud service.

Furthermore, the federal government has recently published a draft bill to further promote the use of videoconferencing for oral hearings. According to the proposed bill, section 128a ZPO is to undergo an overall change in concept. Under the proposed law, judges are no longer in a position to permit participation in the oral hearing by videoconference. Rather, judges have the discretionary option of ordering individuals or all parties to participate via video and audio transmission. If both parties have requested the hearing to be held by means of videoconferencing, conducting the hearing virtually will be the norm. As a result, the judge’s discretion is condensed. If the judge rejects a request, the decision must be substantiated and may be subject to an appeal (sofortige Beschwerde). If attending the hearing by videoconferencing is ordered, the parties may request to be exempted from this order and the court must comply with such a request.

In cases where all parties attend the hearing by videoconference, the judges would also be able to conduct the hearing from a location other than the courtroom. This would allow for true ‘online proceedings’ for the first time. However, in order to comply with the rules on publicity (Öffentlichkeitsgrundsatz, Art. 169 GVG), the hearing is to be broadcasted to a publicly accessible venue in the courthouse. Whether the draft bill will pass with the above amendments is uncertain. The draft has been criticised for not recognising the reality of the technical equipment currently available to the courts, overcomplicating the process of holding a hearing via videoconference overall and – by allowing the parties to appeal the judge’s order – potentially contributing to an overall delay of proceedings, particularly before local courts where judges must handle a mass of proceedings simultaneously.

The digitalisation of the justice system in general and litigation in particular is currently a ‘hot topic’ in Germany. Given the need to follow-up on the overall process of digital transformation, several projects addressing options for a more digitalised litigation process are currently up for discussion.

The federal government has established the DigitalService GmbH des Bundes, which develops digital applications for the state and its citizens. Regarding litigation, the DigitalService GmbH is currently working on the development of a digital legal application office (Digitale Rechtsantragsstelle) and a new type of litigation proceedings: online proceedings in civil matters (zivilgerichtlichen Onlineverfahren). Both projects implement the agreement on digitisation from the coalition agreement (see Question 5 above).

The establishment of a digital legal application office is intended to provide citizens with uncomplicated access to easily understandable legal information. The creation of online proceedings in civil matters aims at enabling citizens to assert low value claims in a completely digital judicial process. In addition to the establishment of the necessary technical and organisational prerequisites, the project also intends to develop a legal framework, which is likely to be based on a test clause (Erprobungsklausel).

Besides the proposed changes described above, many states or even single courts have engaged in the development and use of digital tools in order to facilitate the daily workload within the current legal framework. Some of the projects specifically address the challenges the courts are facing through mass litigation proceedings (e.g. ‘diesel litigation’) by assisting the judges in structuring and assessing case files (e.g. by automatic keywording, indexing, text comparison or pattern recognition tools). Another project is targeted at the low publication rate of court decisions and aims at developing a tool that allows for an automatic anonymisation of judgments. Other projects are intended to facilitate the use of the electronic file management system (e-Akte) (e.g. by automatically providing a chronological summary of the date and time information contained in a case file) and its overall administration by the court offices (Geschäftsstellen) (e.g. automated categorisation, document separation and metadata collection).

There are currently no rules in place that specifically address the use of AI in litigation. 
However, the use of AI, depending on the specific case, could be subject to and limited by the general rules of German Basic Law (Grundgesetz, GG) as far as the judicial decision-making process is concerned. According to Article 92 GG, judicial power must be vested with judges. This inter alia means that judicial decision-making must be exercised by natural persons and thus cannot be outsourced to AI systems. The limitations of AI use may further derive from Article 97 GG (judicial independence), Article 103 para. 1 GG (fair trial) and Article 19 para. 4 (effective legal protection), and from fundamental rights.

Furthermore, the EU’s recent proposal for an Artificial Intelligence Act (COM/2021/206 final, AI Act) specifically addresses the use of AI systems in the judiciary by classifying it as a high-risk system. According to Annex III, no. 8 of the draft regulation, AI systems that are intended to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts are considered to be high risk and are therefore subject to specific regulatory requirements under Articles 8 to 15 of the draft AI regulation.

Unfortunately, important questions on the use of AI in the judicial process remain unanswered. The per se classification as a high-risk AI system would also cover purely supportive acts in judicial proceedings where there is most likely no minimal potential danger. Thus, there is still a considerable need for specification in order to make the regulation a proportionate set of rules.

There is no information on specific measures addressing the issues of unwanted access or IT-security breaches.

Regarding rules applying to the use of data, it should be noted that, in principle, the General Data Protection Regulation (GDPR) applies to the activities of courts and other judicial authorities as well. However, in order to protect the independence of the judiciary and judicial proceedings, restrictions on the provisions of the GDPR are possible (Article 23 GDPR). EU or member state law may specify the details of processing operations and processing procedures when personal data are processed by courts and other judicial authorities (Recital 20).

The legal basis for data processing operations of the judiciary is Article 6 para. 1 (c), (e) and, where applicable, (a) of the GDPR as well as the relevant provisions of the respective procedural rules applicable in each specific case. In addition, the Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) applies to judicial matters and the relevant Data Protection Acts of the states (Länder) may apply to administrative matters of the courts.

Based on the GDPR, data may be processed even after the completion of the proceedings to fulfill specific legal obligations (e.g. statutory obligations on record keeping). The publication of judicial decisions can be based on Art. 6 para. 1 (e) GDPR in connection with the applicable data protection acts of the states. Unfortunately, few judgments and decisions are actually published by the courts. With a view to the use of AI systems in general, a more proactive approach regarding their publication is needed in order to provide for the necessary data basis for training AI systems and thus foster their development and use in the judiciary.

With the rise of legal tech companies, there has been an increase in the use of automated systems to manage and process legal claims. These systems can help legal tech companies quickly and efficiently identify potential claims, gather and analyse relevant data, and pursue legal action on behalf of consumers. However, this can also create new risks for businesses since these automated systems may be less reliable or accurate than human review. In addition, they may not always consider the specific circumstances of each case. Additionally, the use of digital and automated processes can make it easier for legal tech companies to scale up operations, potentially resulting in a higher volume of legal claims being filed against businesses. This can create additional challenges and costs for businesses since they may need to devote more resources to defending themselves against these claims. Overall, the use of digital tools in litigation can introduce new risks for businesses, and it is important for businesses to be aware of these risks and take steps to manage and mitigate them.

Following up on the development of the chatbots ‘C-19’ and ‘Brexit-Bot’ by the federal government that were used to provide a first point of contact for citizens for questions in connection with the COVID-19 pandemic and the withdrawal of the UK from the EU (‘Brexit’) respectively, there are currently plans to develop a digital assistant in the form of a chatbot that generally aims at facilitating access to justice for citizens seeking legal assistance. The chatbot is planned to be part of the development of a digital legal application office (Digitale Rechtsantragsstelle) and shall act as a first point of contact providing citizens inter alia with information on (i) court proceedings in general, (ii) the relevant documents that need to be filed with the courts in specific matters, and (iii) the prerequisites of requesting legal aid (Gerichts- und Prozesskostenhilfe).