GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
takes place if no taking of evidence is necessary. If evidentiary proceedings are necessary, these usually take place on a separate date. Based on the introduction of the case and the discussion with the parties and their attorneys, the court will usually try to settle the case. This applies at every stage of the proceedings. The possibility already contained in the Code of Civil Procedure to hold an oral hearing as a videoconference where only the court has to be present in the courtroom while the parties, their attorneys, witnesses and experts can be else- where, was given life in recent years and was partially amended by law in 2024. In addition, new rules for cross-border video hearings in civil proceedings have been in force since 1 October 2024. German courts can now connect parties and their representatives by video conference for court hearings within the EU and hear them without the need for a letter rogatory. This is made possible by a new regula- tion in Article 5 of the EU Digitalisation Regula- tion, which Germany is the first member state to apply. The new regulation does not cover the examination of witnesses, nor does it apply to the hearing of experts in a videoconference. In these cases, the legal assistance route under the EU Evidence Taking Regulation must still be fol- lowed – ie, authorisation from the other member state must be obtained. 7.2 Case Management Hearings German procedural law so far has not express- ly provided for case management hearings. In practice, the court mainly structures the pro- ceedings through written court orders, in which the court sets deadlines for written pleadings and prepares the oral hearing. However, the court also has the option of ordering an early first
hearing in which it discusses the case with the parties at an early stage and, on basis of these discussions, can decide on the further course of action. This possibility has been strengthened by the legislature in recent years and is also used by some courts as a case management hearing. The law on the new Commercial Courts and Commercial Chambers to be established from 1 January 2025 explicitly provides for an early organisational meeting (Case Management Con- ference) at which agreements can be reached on the structuring and conduct of the proceed- ings (see 14.1 Proposals for Dispute Resolution Reform: Commercial Courts ). 7.3 Jury Trials in Civil Cases There are no jury trials in civil cases in Germany. 7.4 Rules That Govern Admission of Evidence In civil proceedings, each party is responsible for presenting the evidence in support of its case. The court will only consider evidence submitted by the parties and will not investigate the facts itself. Therefore, the initial written pleadings of the parties must already contain detailed factual statements and specify the evidence on which the party intends to rely. There are five types of evidence under German civil procedural law: documents, inspection by the court, witness tes- timony, expert opinions, and party testimonies. Comparative Analysis To streamline the proceedings, the court will only take evidence relevant to the decision on the case. By applying the method of “comparative analysis”, the court determines which facts are relevant for the resolution of the case, which of those facts are undisputed and which are con- tested. The court then determines which party bears the burden of proving the facts in question
483 CHAMBERS.COM
Powered by FlippingBook