The decision of the BverfG was based on the following set of facts. The appellant to the BverfG had been unsuccessful in several claims for unfair dismissal before the Schwerin Arbeitsgericht. On appeal to the Landesarbeitsgericht the grounds of appeal, prepared by her legal representative, a lawyer from Hamburg, reached the Landesarbeitsgericht in Rostock the day after the expiry of the extended deadline for filing those grounds. The appellant brought an application for reinstatement of the case within the time allowed and, as justification for this, explained that on the last day of the period allowed for filing the grounds of appeal, unsuccessful efforts had been made right up until 20.31 in the evening to send the relevant information by fax from Hamburg to the court in Rostock. It remained unclear whether this lack of success was attributable to a defect or absence of paper in the receiving fax machine at the Landesarbeitsgericht, or rather to a fault in the line. A telephone check on the fax line had indicated that the line was free.
The appeal to the Landesarbeitsgericht was rejected as inadmissible, without clarifying the cause of the failed fax transmission. An appeal on a point of law was also unsuccessful, but the appeal on a point of constitutional law succeeded. If a court permitted documents that must be received within a prescribed period to be transmitted to it by fax, then in the view of the BverfG the special risks that arise from the technical features of this means of communication - such as, in particular, problems with the receiving machine but also line faults - should not have to be borne by the person using this means of communication, but should instead be the responsibility of the court. By choosing an authorised method of communication, making appropriate use of a properly functioning machine for transmission and dialing the recipient's number correctly, the user has done all that is necessary on his part to meet the procedural deadline as long as he begins the transmission sufficiently early that under normal circumstances it can be anticipated that transmission will be finished before 24.00. It cannot be expected of a lawyer who has arranged his work timetable in the expectation of making a fax transmission of his written arguments that when the chosen method of transmission fails, because of a defect in the receiving machine or because of line faults, he should instantly secure a means of contacting the court other than his chosen method, which was after all officially authorised by the court.European Review of Private Law