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The Lawyer's court Berlin did not allow the Federal Bar Association to activate the beA for Mr. Hoppe ready-to-receive without his explicit consent. A the same time the lawyer's court threatens to impose a penalty in case of infringement (administrative sanction up to 250.000,-- € and order detention). The amount in dispute is 5.000,-- €.
The lawyer's court explains his decision as follows:
The admissibility of the application follows from article § 112a paragraph 1 BRAO (factual) and from article § 112b p 1 Hs. 2 BRAO (local). This was already pointed out by the Lawyer's court in the previous hearing (see below the reports) and click here.
The claim - as a public cease and desist order is based on the attack on the professional freedom of a lawyer in accordance with article 12 paragraph 1 GG (constitution). The attack is not justified by any legal basis. The article § 31a paragraph 1 p 1 BRAO(statutes of the FBA) obliges the FBA to install for every attorney a beA, but not to activate it ready-to-receive. The lawyer's court Berlin, in the ruling, specifies the potential damage of a beA installed ready-to-receive against the attorney's will. In the following the II senate shoes that there is no legal basis to install a facility ready-to-receive. Only the article § 31a BRAO (statutes of the FBA) can be taken into consideration as a legal basis. The existence of the beA ready-to-receive is not apparent from the wording and the sense and purpose of the guideline. Nor can this be assumed by a systematic interpretation: The legislator choose so far the wording 'accessibility' when he wanted to install an electronic facility ready-to-receive, e.g. in § 3a paragraph 1 VwVfG, § 5 paragraph 5 p 1 VwZG, § 36a SGB I or § 87a paragraph 1 p. 1 AO. A simple ' installation' as provided in article § 31a BRAO (statutes of the FBA) is not sufficient to justify a compulsory access.
The Lawyer's court gives the thumbs down to the occasionally mentioned ' comparison to the letter box' (see among others the article LTO and LG Bonn, ruling from January 10, 2014, reference number15 O 189/13). The II senate explains that we need a subjective element for an accessibility, a kind of ' dedication'. After setting a mailbox by whomever the receiver must put his name on it. This is not the case when we talk about a compulsory installation of the beA.
According to current law there will be from December 31, 2017 on no change in the legal appraisal. The II senate refers to the alternatives as provided by article n § 130a ZPO. ( from January 01, 2018 on): DE-mail and beA.
The lawyer's court leaves the question open whether the attorney violates his obligations and is liable for damages against his client if he does not control the beA that has been installed ready-to-receive without his intervention. The II senate is doubtful about the liability.
The arguments put forward by the FBA, as well as the negative consequences fully described (a so called automatism when installing the beA, current costs of 500.00,-- per month, substantial effort to press the signature cards (BNotK) the attorneys' interest in the beA) are rejected by the II senate as inadequate, unconvincing and lack adequate substantiation.
According to the II senate the adjudicatory basis can be applied as follows:
The ruling has legal force. The decision was taken pursuant to article § 112c paragraph 1 p 1 BRAO in relation with article § 123 paragraph 4 VwGO by the Lawyer's Court. In accordance with article § 112a paragraph 2 BRAO it is not possible to appeal against the order. As legal means there are only the proceedings in the main action or the constitutional complaint.
The FBA has to accept the decision taken as soon as it is delivered to them in a formal way. The notification has already been made by court (see Pressemitteilung 7/2016 der BRAK).
The FBA remains true to its line. They state in the above mentioned press release nr. 7 from June 09, 2016 that from a technical point of view it is impossible to install the beA system so that some of the beAs are ready-to-receive and others not. It is therefore highly appropriate that the FBA postpones the introduction of the beA, in other words they stop it until further notice (see. Pressemitteilung 7/2016 der BRAK).