Section 128a of the German Code of Civil Procedure (ZPO), which remained a rarely used tool for years, has quickly become a central component of judicial practice. While the provision, in the version in force between 2013 and 2020, went largely unnoticed, it suddenly took on greater significance with the outbreak of the Covid-19 pandemic. Unlike in many other legal systems, German procedural law already had the necessary legal basis for video hearings at that time, so it did not have to be created at short notice.
With the Act on Promoting the Use of Videoconferencing Technology in Civil and Specialized Courts of 15 July 2024, which took effect on 19 July 2024, the legislature revised Section 128a ZPO. The revision of Section 128a ZPO has deliberately consolidated developments of previous years. It represents one of the most far-reaching steps taken to date towards the digitalisation of civil proceedings. Today, video hearings are no longer merely an exception but an equivalent form of oral hearing. They address the practical need for efficient conduct of proceedings. In particular, they save time and costs. At the same time, they remain embedded within the fundamental structures of civil procedure. The fundamental procedural principles governing oral proceedings are thus preserved.
The resulting questions regarding the admissibility of taking evidence abroad, hearing parties from abroad, and the legal basis under EU and international law for cross-border proceedings and remote participation from abroad will be addressed in greater depth in a follow-up article.
Section 128a ZPO allows the court to permit or order parties to the proceedings to take part in the oral hearing via video and audio transmission. A video hearing is deemed to take place if at least one party to the proceedings or one member of the court is connected via this means.
The scope of application is broad and encompasses all parties to the proceedings, in particular the parties, intervening parties, and their authorised representatives and counsel. At the same time, the provision is designed to be functionally open-ended. It applies not only to the oral hearing itself but also, via Section 284 ZPO, to the taking of evidence.
An unwritten prerequisite for a video hearing is that the proceedings are suitable for this format as not every legal dispute can be conducted virtually to the same extent. In particular, video hearings may be unsuitable in cases involving complex evidentiary hearings or in situations where personal impressions are decisive. Suitability is not merely a factor to be considered within the scope of judicial discretion but rather an independent requirement for admissibility; thus, a video hearing is inadmissible if the legal dispute is unsuitable for this format.
In addition, there are minimum technical requirements. The transmission must be simultaneous, uninterrupted, and of a quality that enables all participants to perceive one another both audibly and visually. Only in this way can fair proceedings be guaranteed.
Whether a video hearing is held is at the court’s discretion. In this regard, the court must weigh, in particular, the gains in efficiency against the loss of immediacy. Where the parties’ applications are in agreement, this discretion is generally restricted. However, there is no entitlement to a video hearing as it is subject to the availability of sufficient technical and organisational capacity.
Finally, the principle of public access must be upheld. The hearing must therefore also be accessible to the public when held via video link. This is usually achieved by broadcasting the proceedings to a publicly accessible room within the courthouse. In doing so, it must be ensured that the hearing can be followed both audibly and visually.
The digitalisation of civil proceedings reaches its limits where fundamental procedural principles are concerned. This applies in particular to the principle of public access. Article 6 (1) of the European Convention on Human Rights requires effective and generally accessible scrutiny of court proceedings. By contrast, conducting proceedings entirely online carries the risk of de facto restrictions on access and thus of a ‘privatised public sphere’.
In light of this, the legislature has deliberately retained a physical point of reference. The obligation to broadcast the hearing in a publicly accessible room within the courthouse serves not merely organisational purposes but also the safeguarding of a fundamental procedural right. Video hearings are thus not a rejection of existing structures, but rather their adaptation.
In addition to these legal limitations, practical considerations may also be an argument against video hearings. In particular, during the taking of evidence, it can be difficult to form a personal impression of witnesses or experts, as nonverbal reactions and the context of the questioning are conveyed only to a limited extent. Added to this are potential effects on communication dynamics, the ability to concentrate, and the equivalence of participation in hybrid hearings.
The possibilities of video hearings are not limited to discussing the legal dispute with the parties. Under Section 284 ZPO, video technology may, in principle, also be used in the context of the taking of evidence. It is precisely in this context that the suitability of the specific proceedings takes on particular significance.
If witnesses are to be examined or experts are to be heard, video conferencing can eliminate travel expenses and facilitate scheduling. However, this is offset by the potential disadvantage in terms of forming a personal impression. Whether video conferencing is appropriate therefore depends, among other things, on the significance of the testimony, the nature of the evidence at issue, and the extent to which the direct perception of the witness is necessary for the assessment of evidence.
However, a distinction must be drawn between these issues of domestic implementation and the situation where a party, a witness or an expert is located abroad during the video hearing. In this case, in addition to the requirements of Section 128a ZPO, a further consideration comes into play: the territorial limits of German jurisdiction. The related issues of international legal assistance, the taking of evidence within the European Union and the admissibility of a party’s hearing from abroad are the subject of a separate article.
Section 128a ZPO is a prime example of the modernisation of civil procedure. The provision opens up considerable potential for greater efficiency and allows for a more flexible structure of the oral hearing without compromising fundamental procedural safeguards.
Whether a video hearing is appropriate and admissible, however, always depends on the specific case. In addition to technical feasibility, particular consideration must be given to the suitability of the legal dispute, the preservation of public access to proceedings and the requirements of procedural fairness. In the taking of evidence, the formation of personal impressions is of particular relevance.
Video hearings are not merely a technical alternative to the courtroom, but rather an independent form of procedural organisation, the use of which requires a careful balancing of efficiency against the requirements of proceedings under the rule of law.
