Progress – for the time being: first employee organisations, now court proceedings may temporarily use video conferencing – but what will remain after coronavirus?

27. April 2020

27. April 2020 – Kontakte vermeiden und Abstand halten, so lauten die Gesundheitshinweise bezüglich COVID-19. Gerichtsverfahren beruhen hingegen auf den Grundsätzen der Öffentlichkeit und Mündlichkeit, wobei gerade letzterer für das arbeitsgerichtliche Verfahren von wesentlicher Bedeutung ist. Da diese Prämissen nur schwer in Einklang zu bringen sind, finden derzeit nahezu keine mündlichen Gerichtsverhandlungen statt. Um diesen Widerspruch zu beseitigen und einen ordentlichen Gerichtsbetrieb zu ermöglichen, hat das Bundesarbeitsministerium (BMAS) nun den Referentenentwurf zur Sicherung der Funktionsfähigkeit der Arbeits- und Sozialgerichtsbarkeit während der COVID-19-Epidemie sowie zur Änderung weiterer Gesetze (COVID-19 ArbGG/SGG-AnpassungsG) vorgelegt. Dabei stellt sich – wie auch schon bei dem seit längerer Zeit im Entwurfsstadium feststeckenden Gesetzesentwurf zur Beschlussfähigkeit von Betriebsräten per Telefon und Videokonferenz- vor allem zwei Fragen: Wo bleibt der Datenschutz und warum sind die geplanten Regelungen nur vorübergehend?

I. Oral proceedings by video transmission

According to the previous legal position, parties, their representatives and their advisors can participate in oral proceedings from another location (§ 128a Par. 1 ZPO). But this always requires their consent. With the introduction of a new § 114 ArbGG for industrial tribunal proceedings and a similar § 211 SGG for the jurisdiction of social courts, the need for consent is no longer there. A similar possibility for honorary judges to take part virtually has also been created for the first time. The prerequisite for these arrangements is always the existence of an epidemic situation of national import as defined in § 5 of the Infection Protection Act. Once the coronavirus pandemic is over, the permissibility of video transmissions will be based once again solely on § 128a ZPO.

II. Excluding the public

In another first, § 114 Par. 3 ArbGG envisages that industrial tribunals will be able to exclude the public contrary to § 52 ArbGG, if there is no other way of protecting health. This regulation is especially hotly debated in the public discourse, since the principle of public proceedings touches upon one of the foundations of the rule of law. But the new regulation takes this concern into account by only permitting a complete exclusion of the public as a last resort, when other measures cannot guarantee the effective protection of health.

III. Waiving oral proceedings

State industrial tribunals are now to be allowed to reach their verdicts without oral proceedings pursuant to § 128 Par. 2 ZPO with the consent of the parties, for reasons of infection protection. In such instances, the proclamation of the verdict will be replaced by its delivery. The German Federal Labour Court will even be able to reach verdicts without oral proceedings and without the consent of the parties.

IV. Collective pay negotiations, minimum wages and working from home

The Collective Agreement Act (TVG), the Minimum Wage Act (MiLoG) and the Law on Working from Home (HAG) are also to be adapted to the unusual circumstances of the coronavirus pandemic. The problems around employee organisations reaching a quorum and being able to pass resolutions by video conference have recently been recognised, and the way has been paved for an amendment to the law as part of a proposal by the Committee for Work and Social Welfare on 9 April. An exception is now to be made to the duty to be present in person at collective pay negotiations. According to § 5 Par. 2 TVG, the employees affected are to be given the opportunity to state their opinions in oral and public proceedings before any declaration of general application of a collective agreement. Another clause is to be added so that the Federal Ministry of Labour and Social Affairs can organise attendance at proceedings by video conference or telephone conference in justified cases. But the law’s reasoning says that physical presence on site will remain the rule rather than the exception.

The draft bill also envisages the possibility of participating by video conference or telephone conference in sittings of the Minimum Wage Commissions and the Work From Home Committee, and in the resolutions they pass.

The new regulations in TVG and MiLoG are the only planned measures not to demand the existence of an epidemic situation of national import as defined in § 5 of the Infection Protection Act, and are therefore the only ones not to be temporary, as the reasoning behind the laws also demonstrates. Unfortunately, this reasoning does not explain why such a differentiation has been made. Once again it is clear that the legislative, while seeing the necessity of technologisation, either cannot or does not wish to translate it to the judiciary.

V. Extending the time limit for bringing an action in dismissal protection suits

Furthermore, according to the draft bill, the three-week time limit for bringing an action under § 4 S. 1 KSchG is to be extended to five weeks by a new § 25a KSchG in the event of an epidemic situation of national import as defined in § 5 of the Infection Protection Act. According to the reasoning behind the draft, this is because the restrictions connected to an epidemic situation could make legal enforcement more difficult for employees. Missing the deadline for bringing an action under § 4 S. 1 KSchG, it says, affects employees “especially severely” because of the associated Wirksamkeitsfiktion (implication of applicability) in § 7 KSchG. The reasoning behind the draft does not say anything about whether this problem may already be contained by the retroactive admission of claims pursuant to § 5 KSchG.

VI. Data protection

A close look at the standards and reasoning behind the draft could be bitterly disappointing to those concerned about data protection, since the draft law fails altogether to comment on it. Germany’s Federal Data Protection Act and the GDPR apply to the judiciary as well as everyone else, so it would have been appropriate to issue standardised guidelines to ensure that the various courts remain compliant. The health threat of COVID-19 is often used as an argument to trump data protection considerations. Health protection is doubtless an important and legitimate legislative objective, but it should not be used to jettison considerations of proportionality. Health protection and data protection need to be balanced, even in a crisis. So it is disappointing that there are no data protection guidelines about the planned video conferences. Court hearings using Skype or Zoom? Already legally problematic for businesses, this should be the subject of special attention in the courts. The legislative procedure urgently needs to improve here.

Looking at the lived reality of many courts, one wonders how the planned changes are going to be put in place anyway. Many courts are lacking the necessary facilities to hold video conferences, and even those that do have enough equipment are running outdated operating systems and communication tools on it.

VII. Summary

The federal government declared its willingness to change the law on employee organisations reaching resolutions at the beginning of the month, so it was disappointing that this did not end up getting debated in the Bundestag until 22.04.2020. The planned legal amendment, which was supposed to be done at such short notice as a powerful response to the rapidly changing circumstances of coronavirus, has been gravely delayed. Legislative procedure finally got into gear after 22.04.2020, the draft was sent to the Committees straight afterwards and debated to a finish by the Committee for Labour and Social Affairs. Second and third readings are scheduled in the Bundestag for today, 23 April.

Swift legislative procedure is essential to the planned amendment of the jurisdiction of industrial and social tribunals. The draft bill, which has been available since 9 April, has not even had a single reading so far. That is compromising the viability of the judiciary.

The main points of criticism around this draft bill in the public discourse are how necessary and appropriate some of the proposed regulations are. But criticism of the most contentious regulation, the exclusion of the public pursuant to § 114 Par, 3 ArbGG, can be refuted as explained above.

Much more fraught – and so far barely discussed – are questions surrounding data protection, which the draft law leaves unanswered. It would be appropriate not to relate these issues purely to the epidemic, and to retain digital possibilities for the time after coronavirus.

Many businesses and private individuals already live in a world in which video conferences are an indispensable and efficient means of communication, whereas the judiciary is embracing them only very slowly. The legislative is thus passing up another opportunity to permanently modernise court proceedings and bring them into line with the needs of an increasingly digital society.

In the end we can but hope that the judiciary takes these temporary new regulations as an opportunity to upgrade in those places where legal possibilities exceed actual ones, and that the temporary regulations prove so effective that a permanent solution begins to be discussed at last. As in many other areas, COVID-19 could drive digitalisation across the board.


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