Video hearings also in review proceedings under public procurement law?

Since the beginning of the COVID-19 pandemic, courts have increasingly made use of the possibility of conducting hearings in the form of “video hearings.” This allows them to ensure an appropriate balance between public interest in containing the COVID-19 pandemic and the parties’ individual interest to be heard by the courts in their oral presentation as well. In view of the once again increasing number of infections, video hearings are particularly worth considering if the parties were faced with expensive travel when a conventional hearing would have to be held.

Video hearings also permitted without explicit provisions?

In procurement law practice, this also raises the question of whether video hearings are admissible in review proceedings. When setting up review proceedings under public procurement law, it is also important to find an appropriate balance between aspects of protection from infection on the one hand and the parties’ interest in holding a hearing on the other hand. In contrast to most of the procedural rules of specialized courts, however, the provisions of review proceedings under public procurement law do not contain explicit rules on video hearings. This applies both to first instance proceedings before public procurement tribunals and to appeal proceedings before the Public Procurement Divisions of Higher Regional Courts. In practice, there is increasing request for video hearings to be admissible before public procurement review boards, at least with the parties’ consent.

Germany’s first video hearing in review proceedings under public procurement law

Recently, the public procurement division of Karlsruhe Higher Regional Court concurred in a procurement law appeal case, in which Dr. Martin Schellenberg and Moritz Ahlers are participating as party representatives. The two lawyers from the “Public Sector & Public Procurement” practice group took part in what appears to be Germany’s first video hearing in review proceedings under public procurement law at the end of October. Following the hearing, all parties, including the members of the Public Procurement Division, agreed that under the given circumstances video hearings are a useful alternative to the traditional hearings and are preferable to proceedings in writing.

In his essay entitled “The admissibility of ‘consensual video hearings’ before public procurement tribunals” (NZBau 2020, 628-632), lawyer Moritz Ahlers discussed in detail the issue of the extent to which video hearings are admissible in first instance review proceedings under public procurement law, even in the absence of express statutory provisions.

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