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Preliminary Injunction: The decision of the Lawyer's Court Berlin is expected for May 2016

Soon the lawyers' court Berlin will come to a decision in the matter of the specific electronic mail box ready-to-receive (beA). The hearing before the lawyer's court ended with a court settlement with which the FBA has now disagreed. Now that both parties had an opportunity to state their positions, we are sure the final decision will be taken by the end of May 2016.

To see our schedule click here.

Until April 18, 2016 the FBA could give its on view on the indications given by the II. Senate during the hearing. In its opinion the FBA states that it is not possible to realize a special arrangement for several attorneys. The FBA submits a declaration under oath of its IT director. He says, among other things, that the deactivating of several beA would mean the cancelation. This statement has to be seen in relative terms when he states that in contrast to a definitive cancelation a reactivation is possible. From a technical point of view the beA system is programmed to assign two roles to the attorneys: attorney and applicant (in case of application for admission). The role shifts from applicant to attorney when the Bar Association (RAK) puts in your IT system an approval date and this information will also be in the beA system. A beA system with the role attorney is ready-to-receive. This might be explained by the fact that the role of the attorney is made in a way that the beA can be reached by every participant of the electronic dealings with courts. Furthermore the written pleading of the FBA contains some legal interpretation of the constitution, but as, in our opinion, there is no need to comment on this, we will not summarize them.

Until May 04, 2016 we had an opportunity to state our position to these considerations. We took this opportunity, to read our statement click here.

In our statement you can find the following considerations:

According to the FBA it is not possible, from a technical point of view not to install the beA ready-to-receive for single attorneys. It follows that every attorney has to use the beA. We consider the question to be wrong, from the technical point of view there is nothing that cannot be realised. (e.g. it would be possible to have more than two roles in the beA system). Also we argue that the FBA has the beA programmed due to its erroneous legal views. The technical implementation is not appropriate to change the legal position according to which there is no obligation to use the beA.

During the hearing of the case the II senate of the lawyer's court explained that there is no obligation to use the beA before January 01, 2018. From this time on the attorneys must be within reach for the courts by a secure electronic means of communication. We pointed out that the ZPO provides several methods of communication. Apart from the beA attorneys can also make use of the   as a secure communication system. If the attorney decides in favour of the DE-mail  – as the applicant in the present proceeding –there is no legal obligation to use also the beA. This also applies from January 01, 2018.

We can explain our opinion with the following consideration: if the beA should not be secure or functional for whatever reason all attorneys must use the DE-mail as an alternative (obliged by the ZPO), so that they are within reach for the courts by a secure electronic means of communication.
At the moment there is a draft bill of the Federal Ministry of Justice  according to which there will be an obligation to use the beA. In article l § 31a BRAO there will be the new paragraph 5 with the following text:

The owner of the specific electronic mail is obliged to meet the necessary technical conditions as well as to make sure to receive messages with the specific electronic mail box.

It is worth considering if it is useful and admissible on constitutional grounds to offer the attorney an alternative in the ZPO and at the same time withdraw it for occupational legislation reasons. This is what draft bills are for. It remains to be seen if the persons responsible will take the opportunity and think it over. We will see...and report!