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Preliminary Injunction: report of the hearing before the AGH Berlin

We hereby give a detailed report of the hearing at the II Senate of the Lawyer's Court in occasion of the proceedings against the practice of the Federal Bar Association to install the attorney's electronic mailboxes ready-to-receive. The hearing took place on February 24, 2016 and latest about three hours from 01.00 pm to 04.00 pm.

Mr. Hoppe was represented by his colleagues, Dr. Werner, Mr. Pusep and Mr. Oberste Dommes ( all attorneys of the law office Werner RI)  The defendant was represented by the president Schaefer, the vice president Dr. Abend, the managing director Weltmann and the agent of the case Prof.Dr. Kirchberg. In the audience were about ten people, most of them were interested colleagues.

At the beginning the II Senate confirmed its legal opinion, stressing the three controversial arguments of the proceedings: the jurisdiction of the AGH Berlin, the adjudicatory basis and the right to seek an injunction.

As for the jurisdiction of the AGH Berlin, the II Senate states that there is an administrative lawyers' matter and so the case falls under the jurisdiction of the AGH. Every lawyer has a legal relationship with the Local Law Society. On the contrary the Federal Bar Association (BRAK) is an umbrella organisation of the local law societies. With regard to the attorney's electronic mailbox (beA) the legislator assigned a specific duty to the BRAK, which might have consequences for the lawyers. In the urgent procedure there are two important points, the interpretation of article § 31a BRAO and the question how to handle the issue of the beA. According to article § 112a paragraph 1 BRAO the present case falls within the geographical and functional jurisdiction of the AGH Berlin.

The Court was convinced that there was an adjudicatory basis for a decision in this injunction proceeding. The applicants cannot be expected to defend their rights only in the main action because the 'beaA' could be introduced at any time. Despite of the reassurances of the Federal Bar Association (BRAK) to announce in due time the introduction of the 'beA', it was useful to make use of the urgent legal procedure. However the Federal Bar Association stated that the lead time between the announcement and the introduction of the 'beA' and should be sufficient to procure the 'beA' cards. The Federal Bar association did not explain that the lead time would be sufficient to conduct proceedings. Currently lawyers can defend themselves against the 'beA' only in the temporary injunction proceedings.

As for the main point of the proceedings (the right to seek for an injunction) the II Senate states that they cannot recognize an obligation to use the 'beA'. This shall apply until December 31, 2017. From the January 1, 2018 on there will be only electronic legal relations between lawyers and courts. For this reason it was created the so called 'beA', if necessary there will be also the DE-mail. Due to the lack of the obligation to use the 'beA', as requested by the BRAK, the II Senate does not see the need to use the 'beA'. Both the current practice of the 'beA' and the interpretation of the law given by the BRKA are to be considered an infringement of the fundamental right of the lawyers according to article 12 GG (Federal Constitution).

Before the President of the Senate, the representatives of the BRAK insisted that there is an obligation to use the 'beA'. The 'beA' by law should be installed and ready-to-receive. As soon as the 'beA' is installed it is the lawyer's duty to exercise his profession conscientiously a monitor the incoming emails. According to article § 43 paragraph 1 BRAO the law establishes the obligation to use the 'beA' (citation: the lawyer has to exercise the profession conscientiously).

Subsequently the II Senate asked the representatives of the BRAK if it possible, from a technical point of view, that a lawyer who decided not to use or did not made the registration of the 'beA',  not to receive emails. The representative of the BRAK negated the question and underlined on the other hand that if they choose to find such a technical solution,  it would lead to additional costs (about 500.00€).

It was also questioned whether it was possible to install automatic email for those who use the 'beA. Those emails could advise that the 'beA' in question is not being used and would be sent to those who send an email to a non activated 'beA'. However the BRAK specified that this was not possible due to the end-to-end encryption, which does permit neither to the BRAK nor to the technical adviser to read the incoming messages of a 'beA' to find out the sender.

The II Senate asked if there is in general a will to reach a settlement. The BRAK was willing to settle the dispute and proposed not to install the 'beA' before September 01, 2016. This way all lawyers would have enough time to prepare themselves to install the 'beA' in due time. The applicants objected to this proposal. The parties involved agreed that all points raised in the present dispute should be examined by a higher court. In this context the II Senate stated that they decide in the first and in the last instance the administrative lawyers' matters in fast track proceedings (in a decision according to article § 123 paragraph 4 VwGO). Only during the main proceedings it will be the Federal Supreme Court to come to a final decision. Therefore the II Senate proposes the following compromise agreement:

  1. The BRAK does not install the 'beA' until the main proceedings is not fixed.
  2. The main proceedings have to be brought until April 06, 2016.
  3. All parties involved can revoke the compromise agreement.

You can find the minutes of the hearing here.

The applicants have reached their goal: the 'beA' will not be installed and be ready-to-receive. The II Senate indicated that they will hand down a judgment in the main proceedings.  Between summer and autumn 2016, if necessary, it will be possible to contest the ruling in the Federal Supreme Court.