Justitia 4.0 – the pros and cons of digital court proceedings and notarial records

The contact restrictions introduced to contain the coronavirus pandemic have led to considerable upheavals in legal practice in many European Union countries. In particular for the areas of forensic activity and the creation of notarial documents, the irrevocable principle of attendance in person has continued to apply practically without restriction disregarding the progress in communication made possible by progressing digitalisation - whether it is to be able to get a personal picture of the parties (court proceedings), whether it is to confirm the personal identity of the persons appearing without doubt (notarial documents).

Digital court proceedings

The attendance in person in front of the judge, direct witness interviews “face to face”, the ritual of taking a seat in the “right” place in the courtroom: from the point of view of justice, the contact restrictions sometimes call into question centuries-old principles and traditions, some of which exist for good reasons of the rule of law, but some of which are certainly also due to a certain preference for traditions. From the point of view of the client concerned, however, the question arises as to whether the now inevitably triggered push for modernisation might also bring advantages: Can I save myself a long journey to a court that is located far from the company’s registered office when ordered to attend in person? If the lawyer requests extensive information and documents for the substantiation of the pleadings, are there now also possibilities for non-paper-based formats for the presentation?

Depending on the status of the digitalisation of justice, the question arises as to how the experiences gained within the framework of the pandemic can also be made fruitful for the future in the interest of effective and modern legal protection.

Digital notarial acts

It is now hard to imagine many areas of business life without videoconferencing – at least until notarial certification is required: the involvement of a notary always required attendance in person. The pandemic forced the legislator to become creative in this area as well and to put existing traditions and principles to the test: if it is possible to hold a shareholders’ meeting by videoconference, why shouldn’t it be possible to conclude a contract for the transfer of shares also by videoconference and using digital corporate identification? The notarial and the respective certification requirements are also fundamentally not subject to standardisation in the European Union so that each country could and had to develop its own solutions here in principle; however, the implementation of the digitalisation directive, which will certainly also have an effect on the notary, must be taken into account. The range of solutions for a digital notarial records now introduced is correspondingly diverse.

Autor: Dr. Axel Berninger
Autor: Florian Bünger