New law on filing protective pleadings

With the switchover to electronic legal communication with the courts, a new regulation Section 945a Code of Civil Procedure – on submitting protective pleadings came into force on 1 January 2016. As part of the Act to Promote Electronic Legal Communication with the Courts of 10 October 2013 (Federal Law Gazette I, page 3786), the procedure for filing protective pleadings with the court is to be simplified as well.

Previously: Expensive and complicated legal custom

Before any motion for an injunction is filed, protective pleadings under German law allow the opposing party to defend against potentially unjustified injunctions as a precautionary measure. Until recently, protective pleadings were merely established as an instrument in legal practice. In addition, a protective pleading was only valid at the court at which it was filed. This meant that the pleading had to be filed in paper format with all courts before which injunction proceedings could potentially be commenced. The procedure therefore often involved considerable costs and organisational effort as well as legal uncertainty. Even the protective pleadings register organised under private law and kept since 2007 (www.schutzschriftenregister.de) did not completely eliminate these difficulties, as participation by the courts concerned was exclusively voluntary. The register was actually used by just 44 of the total of 115 German regional courts.  

Is the electronic register procedure efficient in terms of time and cost?

By introducing the new Section 945a(1) sentence 2 Code of Civil Procedure, the legislator has for the first time created a basis for protective pleadings as “preventive defences against expected motions for seizure or an interim injunction”. The revision provides for the establishment of a centralised electronic register for protective pleadings by the federal states of Germany. These have agreed that the national register will be maintained by the judicial administration of the state of Hesse. Unlike before, the courts’ participation is compulsory. The Act establishes in Section 945a(2) sentence 1 Code of Civil Procedure a legal fiction in the sense that filing a protective pleading in the protective pleadings register is considered equivalent submitting it to every single regional court. Therefore, the procedure will be much easier for the submitting party now that filing with various courts is no longer necessary. In addition, the central register makes it easier to locate protective pleadings filed.

Section 945a Code of Civil Procedure also specifies the following:

• Deletion of submitted protective pleadings after six months
• Retrieval rights limited to the courts
• Documentation of retrievals

Technical requirements

The individual requirements for setting up and keeping the register are set out in the Regulation on the electronic protective pleadings register of 24 November 2015. This defines that a protective pleading filed must contain an official electronic signature or must be filed via a secure communication route. Secure communication routes are specified by Section 2(5) of the Regulation as being the De-Mail account, the special electronic lawyers’ mailbox (not yet set up) or a corresponding mailbox between lawyer and register. The central register then enters the protective pleadings without any further checking of the content. From 1 January 2017, a new version of Section 49c German Federal Lawyers’ Act comes into force under which lawyers are obliged to submit protective pleadings only by having them entered in the protective pleading register.

Due to data protection considerations, Section 945a(3) Code of Civil Procedure limits inspection and retrieval rights to the courts. The courts will be provided with a search function with which they will be able to locate protective pleadings if required. Once the court has found a protective pleading, the sender will receive an automatic notification within three months specifying the retrieving court and the file number.

Preliminary conclusion

Although the Regulation, contrary to Section 945b Code of Civil Procedure, contains no rule on levying fees, the legislator has made things much easier and above all cheaper in practice with its new provision in Section 945a Code of Civil Procedure.