Germany: Preliminary Injunction Proceedings In Germany: Equality Of Arms And Hearing The Respondent

Last Updated: 13 December 2018
Article by Armin Schwitulla, Daniel Seitz and Simon Schopper

The decisions of the Federal Constitutional Court relate to the involvement of the respondent in preliminary injunction proceedings. Accordingly, the issuance of a preliminary injunction violates the respondent's right to procedural equality of arms equivalent to a fundamental right if the respondent has not been involved beforehand.

1. Regarding preliminary injunctions

A preliminary injunction – as opposed to principal proceedings – allows for fast enforcement – sometimes within a few days, depending on the case – in particular of the claim for injunctive relief. In the field of intellectual property, this is particularly relevant if infringing products are exhibited at a trade fair or launched on the German market for the first time. 

2. Previous preliminary injunction practice

A request for issuance of a preliminary injunction is usually immediately presented to the Presiding Judge after receipt by the court. If the initial examination of the request by the court yields that it only has a low prospect of success, the court usually informally informs the applicant of this by telephone and recommends withdrawing the request or, if applicable, further substantiating the submission or demonstrating it to the satisfaction of the court. In case of withdrawal of the request, the court fees are significantly reduced and the respondent is not informed of it. This limits the risk for the applicant.

If, after initial examination, the court considers the request justified, there are two alternatives: On the one hand, it can issue a preliminary injunction without hearing the respondent first (ex parte). To date, this is especially the case in trademark and design matters as well as in trade fair matters. In contrast to this, in matters under patent law, an ex parte injunction – in particular according to the case law of the important patent litigation courts of Düsseldorf and Mannheim – generally only comes into consideration in case of uncomplicated facts and circumstances where the infringement is evident and the legal validity is sufficiently certain or where a fast decision is obligatorily required to avert irreparable damage, as the preliminary injunction after hearing the adversary would regularly be too late. The last aspect is particularly affirmed by case law in pharmaceutical cases dealing with the question of patent infringement by early market entry of generics companies. In all other cases, the court as a rule schedules an oral hearing to provide the adversary with the opportunity to comment on the matter (inter partes proceedings). 

3. The decisions of the German Federal Constitutional Court

3.1 Facts and circumstances

The subject matters of the decisions of the German Federal Constitutional Court were an order for preliminary injunction by the Regional Court of Cologne as well as a preliminary injunction to print a counter statement by the Higher Regional Court of Hamburg, both in press matters.

In the first injunction proceedings, by its request for preliminary injunction filed with the Regional Court of Cologne, the applicant requested the respondent, a journalistic/editorial research network, to cease and desist from reporting about a supervisory board meeting of the applicant without having issued a warning to the respondent first. The Regional Court granted the request for preliminary injunction without providing a reasoning or hearing the respondent first.

In the second injunction proceedings, the applicant repeatedly requested before the Regional Court of Hamburg that the respondent, a press publisher that reported about letterbox companies of the applicant, be obliged by way of a preliminary injunction to print a counter statement. The applicant did issue a warning to the respondent prior to the proceedings; however, it did not present the respondent's rejection letters to the court. After the Regional Court of Hamburg had rejected the request – without the respondent being informed of this – the Higher Regional Court of Hamburg issued the requested order to print a counter statement in accordance with the request without first involving the respondent. The respondents respectively filed constitutional complaints against the preliminary injunctions before the German Federal Constitutional Court. The Federal Constitutional Court found for the parties filing the constitutional complaints in both cases.

3.2 Grounds for the decision

As a reasoning, the German Federal Constitutional Court stated that the issuance of the two preliminary injunctions without a prior warning or hearing in court proceedings violates the respondents' right to procedural equality of arms equivalent to a fundamental right laid down in Art. 3 (1) German Basic Law in conjunction with Art. 20 (3) German Basic Law. This principle is further said to be related to the right to a fair hearing pursuant to Art. 103 (1) German Basic Law, which represents a specific manifestation of the procedural equality of arms.

According to the court, the principle of procedural equality of arms, which also applies in press law and freedom of speech, requires that the court hears the adversary prior to finding for the plaintiff and hence gives it the possibility to affect the imminent court decision. It further stated that a previous hearing could only exceptionally be dispensed with if it were to obstruct the purpose of the preliminary injunction proceedings. As an example of this, the Constitutional Court mentioned the seizure procedure according to the principles of the German Code of Civil Procedure, the ordering of custody or apartment searches. However, the German Federal Constitutional Court emphasized that the principle of procedural equality of arms does not obligatorily require an involvement of the respondent in an oral hearing. It explained that in preliminary injunction proceedings, a sufficient involvement of the respondent could also be ensured if the respondent has the possibility to respond to a pre-trial warning if it is, on the one hand, guaranteed that the request (in the second case the printing request) and the reasoning (in the second case the requested counter statement) are identical and, on the other hand, that the respondent's pre-trial responses were fully presented to the court. It is stated that this pre-trial possibility of rendering a statement can also be carried out by filing a protective brief.

Ultimately, the German Federal Constitutional Court found that an involvement of the respondent in conformity with fundamental rights also requires that the court does not only fully and comprehensibly document in the court file potential legal notes which it provides to the applicant, but also that it promptly informs the respondent of these before a decision is rendered.

4. Applicability to the field of intellectual property?

It is questionable whether the decisions of the German Federal Constitutional Court also apply to circumstances in the field of intellectual property. The fact that the German Federal Constitutional Court primarily focused on fundamental rights considerations in this respect, which are not specifically conditioned by press law, militates for this. What militates against this is that, other than in press law, in trademark, design and patent law a claim for provisional seizure of goods infringing intellectual property rights, which secures a possible claim for destruction in subsequent principal proceedings, is principally awarded besides the claim for injunctive relief. In this respect, it is acknowledged by case law that a previous involvement of the respondent could result in the possibility of the respondent removing its stocks concerned, in particular due to a warning, and thus obstructing the purpose of the seizure.

Consequently, it is to be awaited whether and how the case law of courts of lower instances will transfer the findings of the German Federal Constitutional Court to cases of intellectual property. 

Comments

Should the courts assume applicability to the field of intellectual property, this would possibly have a major impact on the previous practice in particular in the field of trademark, design and competition law, as to date, ex parte injunctions without previous involvement of the respondent were the rule in this regard. In this case, courts would – in the absence of a warning – henceforth have to at least hear the respondent first, either in written form or in an oral hearing. Moreover, courts would be obliged to place potential legal notes to the applicant on record and to forward these to the adversary such that the adversary would be informed of the pending request for preliminary injunction. 

In contrast to this, the impact on the field of patent law is likely to rather keep within limits, as ex parte injunctions already have been the exception to date. 

As regards trade fair matters, it is to be assumed that the findings of the German Federal Constitutional Court will likely not affect the field of intellectual property, as the German Federal Constitutional Court explicitly found that ex parte injunctions are still possible if the purpose of the proceedings is otherwise obstructed. This is assumed to regularly be the case in trade fair matters – in particular international, short trade fairs. Whether this exception also applies to pharmaceutical matters under patent law is assumed to currently still be open. However, in our opinion, an exception is to be made in this regard too, as the infringement of pharmaceutical patents by early market entry of generics companies can generally lead to very substantial and irreparable damage to the patent proprietors (original manufacturers), which can only be effectively prevented by means of issuance of an ex parte injunction within a few days after the request for preliminary injunction was filed. In any event, these considerations would also be in line with the previous established case law of the Higher Regional Court of Düsseldorf, which in these cases assumes an exception to the demonstration to the satisfaction of the court of the sufficient certainty of legal validity of the patent-in-suit.

As regards protective briefs which are merely deposited at the Central Register for Protective Briefs in anticipation and without knowledge of the specific challenge in the request for preliminary injunction, the decisions of the German Federal Constitutional Court are assumed not to have an essential influence. In this context, we still recommend depositing protective briefs if (and only if) there are in fact good arguments for defending against a challenge by the applicant. This approach is assumed to be even more relevant now that the German Federal Constitutional Court has found that an involvement of the respondent in conformity with fundamental rights can be given even if the respondent has filed a protective brief. Consequently, it is to be assumed that courts will still issue ex parte injunctions in this case if they do not consider the arguments the respondent brings forward in the protective brief convincing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions