Fax transmission in legal correspondence: Loss of deadline preservation in court submissions
Technological developments in the field of electronic communication are increasingly affecting the legal profession. In particular, the transmission of legal documents to courts is subject to strictly defined rules, which can have significant consequences for the observance of deadlines. With the ongoing digitalization of legal communication, the fax as an outdated technology is becoming further marginalized. A recent decision by the Frankfurt Higher Regional Court (OLG Frankfurt, decision dated 14.07.2022, Case No. 26 W 42/22) has addressed this development in a practical context and issued a clear statement regarding deadline preservation when submitting documents by fax.
Legal background: Requirements for the preservation of deadlines in civil proceedings
Development of communication channels
Civil procedure law stipulates strict deadlines for numerous procedural actions. The proper and timely submission of legal documents to the court can be decisive for the outcome of proceedings. While the fax machine served for decades as an accepted means for transmitting legal correspondence, current legal requirements for communication with courts increasingly focus on electronic submissions.
Legislative objectives
With the introduction of the special electronic mailbox for attorneys (beA) and the compulsory active usage for lawyers in effect since January 2022 (§ 130d ZPO, § 32a BRAO), fax submission has become largely obsolete as a filing method. The legislative changes are primarily intended to ensure faster and more tamper-proof communication between attorney and court.
Recent decision of the OLG Frankfurt: No deadline preservation by fax anymore
The OLG Frankfurt had to consider whether the transmission of a legal document by fax can still have a deadline-preserving effect, particularly when attorneys are required to use electronic legal communication. In the case at hand, the court saw no justifiable technical obstacle that might have warranted an exception from the obligation to use beA.
Content of the decision
The court made it clear that the active obligation to use the special electronic mailbox for attorneys (beA) no longer permits transmission by fax, unless statutory exceptions apply—notably verifiable disruptions or technical faults. A document submitted by fax in violation of the electronic transmission obligation therefore fulfills neither the statutory form nor preserves the deadline.
The decision is embedded in a line of supreme court jurisprudence highlighting the importance of electronic submission. At the same time, it is emphasized that technical disruptions preventing transmission via beA must be thoroughly documented. Only in such exceptional cases will alternative means of transmission, such as by fax or for recording at the court office, continue to be accepted.
Consequences for legal practice and businesses
Increased requirements for organizing electronic legal communications
Attorneys must implement appropriate organizational measures to ensure reliable access to the beA. Careful monitoring of deadlines and technical access to the electronic mailbox thereby become even more important. Delays or errors in transmission, for instance caused by user mistakes or lapses in technical maintenance, can lead to serious legal disadvantages.
Significance for companies and investors
In particular, companies and investors frequently involved in complex, time-sensitive legal disputes should focus on uninterrupted electronic communication with legal representation. Internal monitoring and coordination with representatives thus gain considerable importance in this context.
Technical failures in beA: Requirements for substantiation
The decision of the OLG Frankfurt expressly emphasizes that resorting to alternative transmission methods, such as fax, is only permissible if technical disruptions objectively make access to the beA impossible. Here, too, the lawyer is required to document the incident plausibly and to demonstrate that all reasonable efforts to transmit via beA have been exhausted.
In case of dispute, it can be expected that courts will set a high standard for explaining and substantiating such circumstances. Merely alleging a technical failure is generally not sufficient.
Significance of the decision in the overall context of electronic legal communication
The consistent exclusion of deadline preservation via fax transmission represents another milestone in the modernization of legal communication. The decision enhances the efficiency and reliability of legal transactions, but also leads to higher diligence requirements for all involved. In the future, it can be expected that courts will handle exceptions to electronic submission restrictively.
For any questions regarding electronic communication with courts, deadline management, and the legally secure submission of documents, MTR Legal Rechtsanwalt and their team offer comprehensive support for companies, investors, and private clients.
