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Statement: The FBA cannot make the 'bea' of an attorney ready-to-receive without the attorney's first registration

On January 01, 2016 the Federal Bar Association (FBA) will install the electronic mail box for all attorneys registered in Germany. The FBA intends to make the 'beA' ready-to-receive, without considering if the attorney has made a registration and thus has access to the 'beA'.

You can read for this purpose our statements, which you can download here:

Ladies and Gentlemen,

First of all I would like to clarify that I am in favour of the institution of the specific electronic mail box (beA) and the development and implementation of the electronic dealings with the courts.

I

  1. I have considerable reservations about the intention of the FBA to make all 'beA' ready-to receive from January 01, 2016 on even if an attorney did not make the registration before.
  2. I consider the legal view taken by the colleagues Brosch und Sandkühler (NJW 2015, 2760, 2761; FBA -magazin 4/2015, 3: there is a passive monitoring obligation under liability aspects) not to be correct.


In my analysis I will concentrate on these two points. I will not discuss the following questions which, in my opinion have to be clarified:

  • If it was correct to transfer the process of ordering the 'beA' cards to the National Association of Notaries.
  • If pursuant to article 31a paragraph. 1 p. 1 BRAO the specific identification procedure for every attorney has been carried out.
  • If article 31a paragraph 1 p. 1 BRAO is constitutionally correct.
  • What is the legal framework for local Bar Associations once the 'beA' has been installed.

I find it definitely necessary that the FBA ensures that only in case the attorney has completed the correct registration procedure his 'beA' will the be 'ready-to-receive.
I will argue as follows:

A. Initial situation

Due to the law of electronic legal relations from October 10, 2013 (BGBl I p. 3786), the electronic dealings with courts will be effective starting January, 01 2022.  With the 'beA' that the FBA will make ready-to-receive for all lawyers starting January 1st 2016, it is a convenient way for them not only to receive all paperwork from courts (except for criminal courts and constitutional court) but also to send it to them.  To make use of the 'beA' it is necessary to make a first registration with a so called 'beA' card.  Since the end of august 2015 it is possible to order the 'beA' card at the National Association of Notaries and to make the first registration with this card.

The FBA engaged the French company Atos as well as the Governikus GmbH & Co. KG to handle the technical realisation of the beA. As one of the results of the technical realisation the 'beA' will be ready-to-receive starting January 1st 2016. The FBA explains this in their webpage as follows:

The legislator has given the Federal Bar Association in the new § 31a BRAO (law of electronic legal relations) the task to install for every registered attorney a specific electronic legal mail box.. There are no exceptions to this rule. Therefore the FBA in accordance with its mandate will install for all attorneys a 'beA' ready-to-receive.


A special 'beA' card is necessary for access.  Irrespective of whether the card has been ordered and the first registration has been made, the mailbox can be reached by courts, colleagues and the FBA.
(source: bea.brak.de/question-and-answer)

All attorneys can participate starting January 1st 2016 with the 'beA' at the electronic legal relations. To be more precise all colleagues from 2016 on can receive documents and messages. This means also that all attorneys can be reached by courts that participate in the electronic supported transmission of documents.
(source: bea.brak.de/was-ist-das-bea/teilnehmer)

The law of electronic dealings with courts  (or any other legal provision) does not contain any rules,

  • Which says that starting January1st 2016 the 'beA' can receive messages.
  • which states that an attorney is obliged to make the registration process,
  • which says that the attorney must check if his 'beA' receives messages or not
  • Which says that the attorney is obliged to use his 'beA'  for sending or receiving documents related to judicial and extrajudicial activity.

As for the obligation of using the 'beA', the FBA communicates on its webpage the following information:

The FBA recommends, though there is no legal obligation, to order the 'beA' card, that is necessary to make the registration process and thus to avoid the risk of consequences with regard to liability in case the attorney forgets to read important emails.

The managing director of the FBA,  Thomas Fenske, made clear in reply to my question, that the FBA will register all attorneys that are at January 1st 2016 on the list of German attorneys in the directory of users of the 'beA'.
For technical and logistical reasons only those who requested to make the registration process can be then listed in the directory of the user of the 'beA'.

B. My opinion

1. The FBA has no right, starting January 1st 2016, to install for all attorneys the 'beA' ready-to-receive without the collaboration of the attorney involved.

I am of the opinion that

  • there is no formal and express legal basis for the 'beA' that the FBA intends to install
  • § 31a paragraph 1 p. 1 BRAO (the law of electronic dealings with courts) cannot be interpreted as we have seen: all 'beAs' shall receive electronic messages even if the respective attorney did not make the registration process.

There is no formal and express legal basis

The law of electronics dealings with courts regulates the rights and obligation of all parties involved. The law does not contain any rules that the 'beA' must be installed ready-to-receive starting January 1st 2016.

Especially as far as the central regulation of the 'beA' is concerned see  31a paragraph. 1p  1 BRAO (law of electronic legal relations) the law, which is as follows, lacks the necessary clarity and definiteness:

The FBA will install for every attorney registered in Germany an electronic mailbox after the verification of the registration as well as of the identification procedure made by every attorney pursuant to article 31. The electronic mailbox shall be barrier-free, accessible and easy to use.
 
b) The article31a paragraph 1 p. 1 BRAO (the law of electronic dealings with courts) as interpreted by the FBA gives rise to divergent interpretations

The article 31a paragraph 1p. 1 BRAO (law of electronic dealings with courts) cannot be interpreted as referring to all 'beAs' being ready-to-receive from January 1st 2016 on, even if an attorney has not yet made the first registration.

The article 31a paragraph. 1 p. 1 BRAO (law of electronic dealings with courts) is the key provision according to which the FBA has the right and the obligation to install a ' beA' (in the presence of circumstances warranting such action) for every single attorney. The provision does not contain a wording that the 'beA' must be installed ready-to-receive. In this view it is questionable whether the legislator wants the 'beA' to be installed ready-to-receive. The legislator's intention can be found out only by a correct interpretation. For this purpose we can use various common interpretation methods. (see. BVerfGE 82, 6, 11; 93, 37, 81; 105, 135, 157) namely

  • from the wording of the clause (grammatical interpretation) (see point aa)),
  • out of the context  (systematic interpretation) (see point  bb)),
  • out of the materials and its evolutionary history (historical interpretation) (see point cc)) and
  • by its purpose (teleological interpretation) (see point dd)).

aa) grammatical interpretation

The grammatical interpretation of the article 31a paragraph 1 p. 1 BRAO (law of electronic dealings with courts) especially of the wording 'to install', taking into account also the IT linguistic interpretation, suggests that all 'beA' from January 1st 2016 on can receive electronic messages even if the respective attorney has not made the first registration. According to the grammatical interpretation law rules have to be interpreted as it may result from a general or a legal and technical use of language. (see Staudinger-Coing/Honsell, BGB, new edition 2004, Berlin 2004, introduction BGB Rdnr. 139).

Neither the article 31a paragraph 1 p. 1 BRAO (law of electronic dealings with courts.) nor the law of electronic legal relations with courts contain any legal or technical use of language in terms of legal provision, so that only the general use of language is important.

According to the definition of the wording ' to install we find in the 'Duden' it can be interpreted like the preparation, the providing facilities (source: www.duden.de/rechtschreibung/einrichten). What the interpretations have in common is that all refer to the use of something. It is however not necessary that by installing something you also refer immediately to the possibility of using it. Normally it is possible to make use of a public institution in exchange for a usage fee.

Especially as for the information technology and the providing of email accounts and email  boxes we have to understand the wording ' to install' in a broader sense. Usually email mail boxes are installed in a way that they can immediately receive electronic messages even if the user has not yet unlocked the account through a special code or a link.

The article § 31a paragraph. 1 p. 1 BRAO (law of the electronic dealings with) gives the FBA the precise IT order to install for every attorney the 'beA'. Therefore it is appropriate to extend the general use of language to the IT terminology and to the understanding of highly specialised information technology workers. Due to the extension of the general use of language the wording ' to install' also includes the possibility of an immediate use of the 'beA'  and thus of receiving electronic messages.

bb) systematic interpretation

The systematic interpretation of the article § 31a paragraph 1 p. 1 BRAO (law of the electronic dealings with courts) especially of th wording 'to install' argues against the fact that all 'beA' mailboxes from January 1st 2016 on can receive electronic messages if the respective attorney has not made the first registration.

The systematic interpretation requires that parts of the law that are connected with each other, should be interpreted in a way that these parts can be linked from a logical point of view (Federal Court 48, 246, 257; 124, 25, 40). The article 31a paragraph 1 p. 1 BRAO (law of the dealings with courts) is not an end to itself. In reality the 'beA' is one of the four possible secure ways of transmission pursuant to article § 130a paragraph. 4 ZPO (code of civil procedure). in this respect the provision of article  31a paragraph 1 p. 1 BRAO (law of electronic dealings with courts) must be in compliance with the other regulations of the law of electronic legal relations with courts  (see point (1)). Account should also be taken of the fact that there is  a logical relationship between article 31a paragraph 1 p. 1 BRAO (law of the electronic dealings with courts) with the other regulations of the BRAO (see point (2)).

(1) The relationship to the other provisions of the law of electronic dealings with courts

The Act of electronic dealings with courts from October 10, 2013 (Federal Supreme Court l I p. 3786) includes modifications especially of the code of civil procedure and of the BRAO. The amendments of the code of procedure as well as of many laws are of no importance in our opinion. The most important regulations that regard the attorneys are as follows.

  • article 130a ZPO (code of civil procedure),electronic document,
  • article 130d ZPO (code of civil procedure), the obligation of use for attorneys,
  • article 174 ZPO (code of civil procedure), delivery with the respective confirmation of receipt or an automatic confirmation,
  • article 195 ZPO (code of civil procedure), delivery of documents from attorney to attorney,
  • article  31a BRAO, specific electronic mailbox for attorneys,
  • article  31b BRAO, power to issue statutory ordinances
  • article  26 of the law of electronic dealings with courts, (coming into effect, announcement of termination).

For the systematic interpretation of the law of electronic dealings with courts it is necessary to explain the provision as follows:

  • article 130a ZPO (code of civil procedure), electronic document
  • article 130a paragraph 1, code of civil procedure provides that in a legal proceeding the  procedural documents can be submitted as electronic documents. The article 130a paragraph 3 ZPO (code of civil procedure) provides the way how electronic documents can be submitted: in accordance with article § 130a paragraph 3 ZPO (code of civil procedure) the electronic documents must be provided with an electronic signature (independent of the way or means ) or pursuant to article 130a paragraph 3 p. 1ZPO (code of civil procedure) these documents are signed easily and transmitted by a secure means of communication in accordance with article 130a paragraph 4 ZPO (code of civil procedure). In article  130 a paragraph 4 ZPO (code of civil procedure) two means of communication are considered as secure: the DE-mail (German email service) and the 'beA'.
  • The article 130a ZPO (code of civil procedure) does not limit the attorney' choice of a secure means of transmission. The attorney has the alternative to send electronic messages both by the DE-mail and by the 'beA'.
  • Pursuant to article  26 paragraph 1 of the law of electronic dealings with courts the article 130 a ZPO (code of civil procedure) will come into effect on January 01, 2018.
  • § 130d ZPO (code of civil procedure), the usage obligation for attorneys
  • § 130d ZPO (code of civil procedure) provides that written documents as well as motions and declarations made by an attorney are to be sent as electronic documents,
  • § 130d code of civil procedure obligates the attorneys to submit to court all communications related to legal proceedings exclusively as electronic documents.
    Pursuant to article 26 paragraph 7 of the law of electronic dealings with courts the article § 130a ZPO (code of civil procedure) will come into effect at the latest on January 1st 2022.
  • article § 174 ZPO (code of civil procedure), delivery with confirmation of receip
    article § 174 paragraph 3 p. 3 ZPO (code of civil procedure) provides that courts can submit a pleading to all parties involved in legal proceedings as electronic documents by using secure means of communication pursuant to article § 130a paragraph 4 ZPO (code of civil procedure)
    article § 174 paragraph 3 p.4 ZPO (code of civil procedure) provides that attorneys, to receive documents by courts, have to use secure means of communication in accordance with article  § 130a paragraph 4  code of civil procedure. Thus the attorneys have to use either the DE-mail or the 'beA'.
    Pursuant to article 26 paragraph 1 of the law of electronic dealings with courts the article  § 130a ZPO (code of civil procedure) will come into effect at the earliest on January 1st 2018.
  • article § 195 ZPO (code of civil procedure) delivery from attorney to attorney
    The article  § 195 ZPO ( code of civil procedure) refers to the provisions of article§ 174 ZPO (code of civil procedure) with no specific differences. As for the delivery of documents that are used in a legal proceeding the attorney must use the DE-mail or the beA to send them to another attorney

To resume the above-mentioned rules they regulate that

  • the attorneys at the earliest from January 1st 2018 on have to use a secure communication channel( DE-mail or 'beA' when they receive documents or by court or by other attorneys pursuant to § 130a paragraph 4 ZPO (code of civil procedure).
  • the attorneys, at the latest from January 1st 2022 on, have to submit to court all relevant documents regarding legal proceedings as electronic documents (with an electronic signature or sent by using the DE-mail or the 'beaA').

There are no other legal provisions that oblige an attorney to have ready-to-receive one or one specific secure means of communication in accordance with article § 130a paragraph 4 ZPO (code of civil procedure) before January 1st 2018 in order to receive pre-trial and trial documents.

Considering the above-mentioned provisions the following conclusions are reached:  

  1. If once installed the 'bea' by the FBA the attorneys would also receive all electronic documents by court, the attorney would indeed participate in electronic legal relations before January 1st 2018. They would not have other choice because according to the FBA the 'beA' is ready-to-receive from January 1st 2016 without input from the attorney. This, however, contradicts with what has decided the legislator:  from January 1st 2018 all attorneys are obliged to participate in electronic legal relations (to receive electronic documents).
  2. The recent publications made by the FBA concerning the 'beA' may mean that  the 'beA' will prevail as unique secure means of communication pursuant to article§ 130a paragraph 4 ZPO (code of civil procedure). Especially the announcement that there is no obligation to use the 'beA' but it is only highly recommended to use it  to avoid to become embroiled in liability cases might convince a lot of attorneys to make use of the 'beA'. Most probably, not only because of additional costs, the attorneys will decide for no other alternative means of communications in accordance with article § 130a paragraph 4 ZPO (code of civil procedure).  The chairman of the committee 'electronic legal relations' of the FBA is of the opinion that about 165.00 attorneys will use the 'beA'. Nobody would use anymore the DE-mail. This, however contradicts the decision made by the legislator pursuant to § 130a paragraph 4 ZPO (code of civil procedure) regarding the choice the attorneys have between several secure means of communication to receive at the earliest from January 1st 2018 documents by courts and to send at the latest from January 1st 2022 documents to courts. The federal government in its draft decree from March 06, 2013 (BT-Drs. 17/12634, p 55)  assumes that the 'beA' will be the most important but not the only means of communication between attorneys and courts.  The possibility the attorneys have to choose between several means of communication will be almost eliminated because of the FBA focusing on the 'beA'.

(2) The relations with the other provisions of the statutes of the FBA

From the systematic position of the article  § 31a paragraph 1 p. 1 statutes of the FBA (law of electronic dealings with courts) within the statutes of the FBA we can come to the following conclusions:

(a) Only the attorney can decide when he will start to receive electronic messages with the 'beA'.

Although, in accordance with article § 31 paragraph 3 p. 1 statutes of the FBA in the register of the attorney will be entered from January 1st 2016 on also the address of the 'beA', we cannot conclude that the 'beA' will be ready-to-receive without the input from the lawyer.  On the contrary it is apparent due to the amendment on the statutes of the FBA and especially due to the revisions of the article § 31 paragraph 3 p. 1 statutes of the FBA that certain telecommunication data can only be registered if the attorney has communicated these data to the competent Bar Association (BT-Drs. 16/11385, p. 8 number 12 c) aa)). By communicating certain telecommunication data to the competent Bar Association the attorney expresses at the same time that he wants to receive o send electronic messages. The attorney does this on his own will.  Telecommunication data that are not revealed cannot be published (see Gaier/Wolf/Göcken-Siegmund, Anwaltliches Berufsrecht, 2. editon, Köln 2014, § 31 Statutes of the FBA number 63). This validation of the legislator can be applied on the 'beA'. The attorney cannot prevent the FBA from entering his 'beA' address in the register but only by making the registration process he expresses that with the 'beA' he will receive and send electronic messages.

(b)  From the systematic position of the article  § 31a paragraph 1 p. 1 statutes of the FBA (law of electronic dealings with courts) within the statutes of the FBA we can see the legislator's intention to create only a legal basis for the technical set-up of the 'beA'. The legislator did not want to produce other legal effect, especially the obligation to act.

The article § 31a paragraph 1 p. 1 statutes of the FBA (law of the electronic dealings with courts) is in part 2 paragraph 2 of the statutes of the FBA. The part 2 paragraph 1 of the statutes of the FBA  regulated the preconditions of the process of admission as a lawyer. The part 2 paragraph 2 of the statutes of the FBA regulates the constitution of a law office as well as the management of the register of  all attorneys. The article § 31a paragraph 1 p. 1 of the statutes of the FBA (law of electronic dealings with courts) is only a supplementary regulation to the register of lawyers.  In the regulations regarding the register of lawyers (article § 31 ff statutes of the FBA)  there are no rules that concern the attorneys. The regulations are related to the local Bar Associations and the FBA.

If the legislator had set up the article  § 31a paragraph 1 p. 1 statutes of the FBA (law of electronic dealings with courts) as a commitment norm for the lawyers, he would have regulated also the creation of the 'beA' in part 3 paragraph 1 of the statutes of the FBA, where we find the professional obligations of the attorneys. But he has not done this.

cc) historical interpretation

The historical interpretation of article  § 31a paragraph 1 p. 1 statutes of the FBA (law of electronic dealings with courts) and especially of the wording 'to install' is unproductive: if the single attorney has not made the registration process not all 'beA' can receive electronic messages from January 1st 2016 on.

(1) The legislative materials (e.g. draft law, plenary protocol) do not state that the 'beA' has to be installed ready-to-receive from January 1st 2016 on.

(2) In the Federal Counsel's draft law from November 28 2012 (BT-Drs. 17/11691, p. 1) they assume that the 'beA' can be used only after an identification process. In the draft law there is no statement how we can understand the wording ' to be used'. The Federal Counsel also states that with the 'beA' the aim is to create the technical infrastructure and technical framework for the electronic dealings with courts. However it is not clearly stated in the draft law that by installing the 'beA' there might also be an obligation to use it.

(3) In the government's draft law from December 21, 2012 (BR-Drs. 818/12, p. 38) one assumes that the attorney can be contacted by the courts thanks to the 'beA'. However in the draft law it is not stated that it must be possible to contact the attorney thanks to the 'beA' from January 1st 2016 on and that the attorneys must receive electronic messages  from this date on.

dd) Teleological interpretation

Following the teleological interpretation of the article § 31a paragraph. 1 p. 1 statutes of the FBA (law of the electronic dealings with courts) and especially of the wording 'to install' there is no reason why all 'beA' should receive electronic messages if the respective attorney has not made the registration process.

The purpose of the law of electronic dealings with courts is the universal use of electronic means of communication with courts. To this end the legislator decided that the parties involved in legal proceedings and the courts have to send to each other electronic documents by a secure means of communication pursuant to  article § 130a paragraph 4 ZPO (code of civil procedure) (e.g the DE-mail service and especially the 'beA'). If and when the attorneys are obliged to use a secure means of communication in accordance to  article § 130a paragraph 4 ZPO (code of civil procedure) depends on the provisions pursuant to articles §§ 130a, 174 and 195 ZPO (code of civil procedure) in relation to the entry into force pursuant to article 26 of the law of electronic legal relations with courts.

The sense and purpose of article § 31a paragraph 1 p. 1 statutes of the FBA (law of the electronic dealings with courts) is  limited due to the legislator's intention (the electronic dealings with all courts)  and therefore only the legal basis for the FBA to install the 'beA'.

The law of electronic legal relations with courts and especially the article  § 31a paragraph 1 p. 1 statutes of the FBA  (law of electronic dealings with courts) cannot be interpreted in such a way that the secure means of communications pursuant to article § 130a paragraph 4 ZPO (code of civil procedure) could be used for other purposes than those defined by the legislator. In accordance with article § 174 paragraph 3 p. 4 ZPO (code of civil procedure) all attorneys are obliged to use a secure means of communication from January 1st 2018 on (DE-mail or 'beA'). The start of electronic legal relations with the 'beA' would be anticipated on January 1st 2016.  The extension of the access to the beA to third parties that are not involved in legal proceedings goes beyond the legislator's objective (electronic dealings with courts). It should be pointed out that it is the FBA's intention to install for every local Bar Association a 'beA' so that every association can communicate with its members. (see bea.brak.de/was-ist-das-bea/teilnehmer). To my opinion, by law there is no possibility to install a 'beA' for local Bar Asscociations. According to the case law of the Federal Supreme Court a teleological interpretation should not result in a modification or even falsification of the legislator's purpose (see BVerfGE 133, 168 Rdnr. 66). But this would exactly be the case if the FBA decided  to install the 'beA' ready-to-receive from January 1st 2016 on.

ee) Let us examine all methods of interpretation

No method of interpretation takes precedence over another one (see. BVerfGE 105, 135, 157; 133, 168 Rdnr. 66), so that we will make an overall evaluation of all methods of interpretation.

Only by taking into account the IT speech comprehension the literal interpretation of article § 31a paragraph 1 p. 1 statutes of the FBA (law of electronic dealings with courts) makes us understand that the wording 'to install' means that the 'beA' can receive electronic messages from January 1st 2016 on even if the respective attorney has not made the first registration. The historical interpretation is unproductive. The systematical and also the teleological interpretation clearly show that the wording 'to install' means that the 'beA' can receive electronic messages even if the respective attorney has not made the first registration. As the arguments of the literal interpretation with respect to the systematical and teleological interpretation do not convince me at all, I therefore conclude to prefer the systematical and the teleological interpretation.

c) The attorney's right of use of the 'beA' from January 1st 2016 on

To the view represented here, the FBA is not allowed to install the 'beA' ready-to-receive from January 1st 2016 on, because the article § 31a paragraph 1 p. 1 statutes of FBA (law of electronic dealings with courts) does not require this.
However this does not mean that the 'beA' cannot receive electronic messages from January 1st 2016 to December 31 2017. As a matter of fact every attorney can make the first registration and get access to the 'beA', that is, he can send and receive electronic messages. After the first registration the attorney is obliged to check regularly all incoming messages in his 'beA'.

2. There is no passive monitoring obligation with regard to liability aspects.

According to my legal view there is no monitoring obligation with regard to liability aspects.

The FBA is not allowed to install the 'beA' from January 1st 2016 on to receive electronic messages even if the respective attorney has not made the first registration. The acting of the FBA is unlawful so that the attorneys cannot be obliged to do anything.
 
The study has been created together with my colleague  Julius Oberste-Dommes LL.M., specialist lawyer for IT law,  law office  WERNER attorneys computer scientists.

Best regards

Dipl.-Inform. Dr. jur. Marcus Werner
Attorney
Specialist lawyer for IT law, commercial law, company law