In a decision dated November 30, 2023 (case no. III ZB 4/23), the Federal Court of Justice made fundamental statements on the formal requirements pursuant to Section 130a (3) sentence 1 Alt. 2, sentence 1 no. 2 of the German Code of Civil Procedure (ZPO) for legal pleadings in court.
The facts
In appeal proceedings, the plaintiff's statement of grounds of appeal was received by the court of appeal on July 15, 2022, although the deadline had already expired on July 14, 2022. Prior to this, the deadline for submitting the grounds of appeal was first extended by one month and then, in agreement with the defendant, by a further week.
Shortly after 02:00 a.m. on July 15, 2022, the Court of Appeal received an application from the plaintiff to extend the deadline for filing the grounds of appeal by a further day. This was rejected by the court, as was the application for restitutio in integrum against the failure to meet the deadline for filing the grounds of appeal, with the result that the plaintiff's appeal was dismissed as inadmissible. The plaintiff appealed against this with a legal complaint.
The reason for the delay in sending the statement of grounds of appeal was that a previously unknown error had occurred in the office printer of the attorney of record when attempting to print it and the print command was not executed. It was not possible to rectify the error before midnight and the "back-up printer" would not have printed the extensive pleading by midnight due to the slower printing speed.
Therefore, the plaintiff's attorney once again applied for an extension of the deadline, which was only granted at 02:04 after three attempts shortly before 24:00 allegedly failed due to a technical fault in the beA system.
Decision of the Court of Appeal
The Court of Appeal accused the plaintiff's legal representative, whose fault the plaintiff must accept pursuant to Section 85 (2) ZPO, in particular of not having attempted at all on July 14, 2022 to transmit the notice of appeal to the Court of Appeal via a special electronic lawyer's mailbox (beA). Rather, he had only attempted to do so for the request for an extension of the deadline, which, however, could not have been promising due to the lack of consent from the other party, which could not realistically have been obtained. There was no comprehensible explanation as to why the statement of grounds of appeal had to be printed out.
However, the appeal on points of law, which was lodged and substantiated in due form and time, was dismissed as inadmissible because, in particular, a decision by the Senate was not required to ensure uniform case law (Section 574 (2) No. 2 Alt. 2 ZPO) and there was also no violation of the right to a fair hearing under Article 103 GG or the procedural ground for effective legal protection arising from Article 2 (1) GG in conjunction with the principle of the rule of law.
Decision of the Federal Supreme Court
The Federal Court of Justice confirmed the decision of the Court of Appeal and stated that a prior "printed copy" of the pleading is not necessary for sending a pleading to a court via beA. Rather, pursuant to Section 2 (1) sentence 1 of the Electronic Legal Transactions Ordinance (ERVV) in conjunction with Section 130a (2) sentence 2 ZPO, an electronic document in PDF file format must be transmitted, for which the document does not have to be printed out and then scanned.
It is also not necessary to print out the document in order to affix the simple signature required pursuant to Section 130a (3) sentence 1 Alt. 2, para. 4 sentence 1 no. 2 of the German Code of Civil Procedure (ZPO), since no handwritten signature is necessary for this, but rather the typewritten reproduction of the author's name at the end of the text is sufficient. With regard to the request for an extension of the deadline, the Federal Court of Justice also stated that the extension of the deadline for filing the grounds of appeal requires a request made before the deadline expires, as the extension of a deadline that has already expired is not conceptually possible. Irrespective of this, the appellant may not rely on being granted a second extension of the time limit for filing the grounds of appeal without the consent of the opposing party.
