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Procedural Equality of Arms in Injunction Proceedings

by Susanna Heurung

On 27 July 2020, the Federal Constitutional Court found in a further decision on preliminary injunction proceedings that the principles of procedural equality of arms in press law, as established in earlier rulings, also apply to preliminary injunction proceedings in the area of unfair competition law (BVerfG, Order of 27 July 2020 - 1 BvR 1379/20). The decisive issue here is the issuing of injunctions without the participation of the defendant.

Facts of the case

In the proceedings underlying this case, a preliminary injunction was applied for based on the provisions of the German Unfair Competition Act and the German Medical Devices Act. The competent judge called the petitioner and gave certain indications how the request should be amended. After the respective amendments were filed, the injunction was issued by the court. The defendant was not involved in the proceedings before the injunction was issued.

Judgment

The Constitutional Court saw two procedural errors here. Firstly, the content of the warning letter was not identical with the later application for a court order. Secondly, it would violate the principle of procedural equality of arms if the court gave the petitioner judicial instructions prior to issuing the injunction without informing the defendant.

Practical effects

It remains to be seen what practical effects this decision will have. For example, the Federal Court of Justice and the Federal Constitutional Court have long been very critical of the issuing of preliminary injunctions without the participation of the defendant. Courts of first instance, on the other hand, often point out that they regularly protect the interests of the defendant by placing high demands on the issuing of injunctions and that the pragmatic execution of injunction applications is in the interest of all parties involved. As an applicant, one will nevertheless be well advised in the future to attach a possible statement by the defendant to the application for a restraining order and to keep the application congruent with the previous warning letter. 


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