GER: BGH on Lawyers E-Mailbox Malfunctions

Jan 12, 2024 Benn-Ibler Rechtsanwälte

A screenshot is enough to prove that the electronic mailbox program for German lawyers (besonderes elektronisches Anwaltspostfach, hereinafter beA) failed for several hours. This was decided by the German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH). In order to meet the formal requirements of Section 130d sentence 3 of the German Code of Civil Procedure (Zivilprozessordnung, hereinafter ZPO), an additional lawyer's statement of proof is not necessary.

The original case concerned the termination of a consumer credit agreement. The plaintiff filed an appeal against the regional court’s dismissal of the case. The deadline for filing an appeal was then extended upon request until 24 November 2022. On the day the deadline expired, the plaintiff’s legal representative faxed two written submissions to the competent higher regional court at 10:18 pm. In one, she requested a further extension of the deadline for filing the grounds of appeal. In the other, she explained the current malfunction of the beA which had made it impossible for her to submit the statement via the electronic mailbox programme. Although she did not provide any official legal confirmation of this fact, she attached a screenshot of the beA’s malfunction message.

The competent higher regional court subsequently announced its intention to dismiss the appeal as inadmissible. The disruption of the beA had not been substantiated in accordance with Section 130d sentence 3 of the ZPO which would have required an official attorney’s statement. The representative’s application for restitutio in integrum was subsequently unsuccessful.

The BGH, which heard the appeal on points of law, has now ruled: 

The screenshot of the website to prove the alleged disruption of the beA was suitable in accordance with Section 130d sentence 3 ZPO. The content of the screenshot corresponded to the information in the beA disruption documentation on the website of the German Federal Bar Association.

A lawyer’s official statement of the circumstances of the interruption was not required in this case. The BGH thus did not follow the opinion of the higher regional court which had overstretched the requirements for prima facie evidence of temporary impossibility for technical reasons by ruling that a lawyer’s official statement of the failure of the transmission to be mandatory in the present case, without taking into account the screenshot submitted.

BGH XI ZB 1/23 (10 October 2023)