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COVID-19 consequences for civil-law proceeding

05/12/2020 - Reading time: 3 minutes

Author

Michael Fink

Attorney at Law

The measures taken to contain the spread of SARS-CoV-2 (coronavirus) have reached civil-law courts. Therefore, the following regulations apply to civil proceedings and to court´s opening hours for the public:

In civil-law proceedings (also enforcement and insolvency proceedings), many procedural activities are linked to time limits. Some of the most important time limits (e.g. periods for appeal) cannot be extended by the court. Non-observance of procedural time limits might entail negative legal consequences. Due to limitation periods it is still necessary that claims (e.g. for damages and warranty) are filed in due time; the same applies to certain claims (e.g. compensation due to dismissal without good cause, contestation of terminations or resolutions by the general meeting of shareholders or members which can only be asserted within a statutory time limit.

Some of the above-mentioned time limits start running upon service of the respective document to the person concerned (e.g. payment order or judgement). If the relevant document cannot be delivered to the mailing address (for example due to interruptions of operations or remote working), it can, in general, be deposited at the post office for collection. In such a case, the time of service is deemed to be the first day on which the document is available for collection.

The interruption of proceedings would mean that all current time limits (including non-extendable time limits) expire and start to run anew as soon as the interruption is discontinued; such interruption occurs automatically if the court suspends its activity due to war or some other event. Furthermore, the court may interrupt proceedings upon request or ex officio if a party is cut off from contact with the court due to an official instruction (isolation or quarantine) or other circumstances.

In order to ensure a uniform solution for all civil-law proceedings and prevent legal disadvantages caused by the measures taken to contain the spread of SARS-CoV-2 to the extent possible, several amendments to legislation have entered into force since 23 March 2020. Among other things, these amendments provide for the following measures:

  • Since 6 May 2020 the courts can conduct oral hearings again, even if there is no particular urgency. The protective regulations and hygiene rules issued by the federal government apply in the court buildings; therefore, a safety distance of at least one metre must be kept from other persons and hand hygiene must be observed. In addition, it is compulsory to wear a protective mask.
  • Until the end of 2020, there is also the possibility of conducting oral proceedings in the form of video conferences. This decision is left to the discretion of the judge, but the consent of all parties to the proceedings is required for a video hearing to take place. In execution and insolvency proceedings the consent of the parties is not required.
  • Court´s opening hours for the public are limited until 30 June 2020; therefore, inspection of court files, applications and submissions are only permitted after prior notification by telephone.
  • General interruption of time limits in civil-law and enforcement proceedings (such as objection, appeal to a judgement of a first instance court or appeal against court decisions) until 30 April 2020; such interruption shall concern time limits that have not expired until 23 March 2020 as well as time limits for which the event triggering the term occurs between 23 March 2020 and 30 April 2020. These time limits thus begin to run anew on 1 May 2020.
  • Time limits in insolvency proceedings which have not expired until 23 March 2020 or for which the event triggering the term occurs between 23 March 2020 and 5 April 2020 had been interrupted until 5 April 2020. These time limits thus began to run anew on 6 April 2020. However, the insolvency court may adequately extend some time limits which have not been interrupted.
  • Time limits observed by submitting a complaint, an application or a statement with the civil-law court (e.g. complaint claiming damages or warranty as well as contestation of a termination, dismissal or a shareholders’ resolution) are extended by the period between 23 March 2020 and 30 April 2020.
  • The time limit for filing an application, submitting a statement or taking an action based on the Trademark Protection Act (Markenschutzgesetz), the Designs Protection Act (Musterschutzgesetz), the Patent Act (Patentgesetz), the Registered Designs Act (Gebrauchsmustergesetz), Semiconductor Protection Act (Halbleiterschutzgesetz), the Protection Certificates Act (Schutzzertifikatsgesetz) and the Patent Agreements Introduction Act (Patentverträge-Einführungsgesetz) is extended by the period between 16 March 2020 and 30 April 2020; in particular periods for appeal and time limits related to EU law are exempted from the above.
  • If the reason for insolvency is the inability to pay, the entrepreneur is obligated to file an insolvency application as soon as possible but no later than within 120 days (instead of within 60 days so far). The Debtor’s obligation to file an insolvency application due to over-indebtedness is interrupted for the period between 30 March 2020 and 30 June 2020.

It can thus be concluded that the suspension as well as the interruption of the time limits have ended and the courts are scheduling oral hearings again. The courts may conduct oral hearings also via video conferences.

Author

Michael Fink

Attorney at Law