Are temporary injunctions constitutional

BVerfG on equality of arms in urgent legal protection: In case of doubt, for the hearing - now also in competition law


Courts are not allowed to issue an injunction if the addressee does not have exactly the same information as the applicant. As the BVerfG has now decided, this also applies to competition law - in principle.

The standards of procedural equality of arms and the right to be heard in urgent civil law protection also apply in principle to competition law. If the application for an interim injunction (e.V.) deviates from the injunctive relief asserted in the warning, the court must hear the opponent. If it gives the applicant information, this must also be communicated to the opponent before the decision is made. This was decided by the Federal Constitutional Court (BVerfG) on Tuesday, the as yet unpublished decision (dated 07/27/2020. Az. 1 BvR 1379/20) lies LTO in front.

With the decision, the 2nd Chamber of the First Senate did not accept a constitutional complaint against an injunction by the District Court of Munich I for decision. The Karlsruhe judges emphasize that a constitutional complaint is not admissible against every temporary injunction that has come about in violation of the legal hearing.

It is already the third decision on the subject of procedural equality of arms within a few weeks. The BVerfG extends its jurisprudence on the violation of the right to be heard in urgent civil law proceedings from press and expression rights to competition law.

Note from the court, application changed - all without the opponent

The main proceedings before the LG Munich I concerned a competition law dispute over product labeling in the medical field. The warned company, represented by the Cologne media law firm Höcker Rechtsanwälte, took the position of adequately labeling its products and did not issue a cease and desist declaration.

In response to the injunction requested by the company issuing the warning, the Regional Court Munich I informed the company that issued the warning that it had concerns about the application made and the plausibility of the claim. The applicant added to her application, the LG Munich I issued the preliminary injunction in accordance with the amended application without involving the warned company in the legal proceedings. His application to stop the foreclosure was rejected, and an oral hearing was set for seven weeks later.

That is not enough for a successful constitutional complaint, stated the BVerfG. It is true that the temporary injunction violates procedural equality of arms and the right to a fair hearing, because the injunction request was not identical to the injunction request from the warning and the court had not informed the opponent of his reference to the requests before the e.V. was issued. However, it lacks both a fundamental constitutional significance and a sufficient interest in making a statement.

The fundamental right to procedural equality of arms

The legal questions have already been clarified, according to the BVerfG. The standards that the Federal Constitutional Court developed for the right to be heard and for procedural equality of arms in civil law urgent legal protection for the press and the right to speak also apply in principle to interim injunction proceedings in fair trading law.

In October 2018, the BVerfG had clarified that both the mirrorPublishing house as well as the research network Corrective should have been heard before the courts issued injunctions in favor of people and companies who felt their personal rights had been violated by planned reports by the two media outlets.

According to the Chamber at the time, the fundamental right to equality of arms prescribes "that a court must grant the opposite party the right to be heard before an admissible decision on the application of a party [...] in terms of press and speech rights". The judges recalled that a decision could be made without an oral hearing if the particular urgency of the matter so dictated. To exclude a party completely from the procedure and to deny it any reply before the decision is made is not compatible with the Basic Law.

Now also applies to competition law - in principle

So far it was unclear whether this case law on equality of arms in urgent civil law proceedings also applies to the area of ​​industrial property protection. The BVerfG formulated a bit more generalized in two decisions from the past few weeks, but there too it was about press law. The current decision from Karlsruhe was made by Dr. Johannes Gräbig from the law firm Höcker. "It is now certain that the constitutional guarantee of the right to be heard must also be implemented in competition law: If the application for injunction deviates from the injunctive relief asserted in the warning, the court must hear the opponent The decision will also be communicated to the opponent, "explains the specialist lawyer for industrial property protection LTO.

However, the Karlsruhe judges still leave it open as to whether these requirements will also be rolled out without restriction to the entire area of ​​intellectual property. This so-called green area is regulated by the EU directive on the protection of intellectual property rights (RiLi 2004/48 / EG). Article 9 (4) of the directive expressly provides that interim measures for the protection of intellectual property rights can also be ordered without hearing the other party, "especially if a delay would cause irreparable damage to the rightholder". The parties can then only be informed after the measures have been taken.

However, according to the BVerfG, the guideline is not applicable to the breach of law in Section 3a of the Act against Unfair Competition (UWG). It has therefore not been clarified whether the more precise requirements for the realization of the legal hearing also apply to industrial property rights and copyright. Other competition law facts to which the directive applies could also be an exception to the principle now postulated.

An e.V. is not yet interested in making a statement

The BVerfG also seems to have further specified its case law in other respects. The constitutional complaint was also unsuccessful because the Karlsruhe judges did not see a sufficiently weighty interest in making a statement. According to the decision, not every violation of the right to be heard, not even a procedural error such as the one made by the Munich Regional Court I, can be asserted by way of a constitutional complaint. Although this has been consistent with case law for several years, many lawyers had read a relaxation of the requirements from another recently issued decision from Karlsruhe, which also obtained Höcker lawyers.

For Gräbig, the decision from Karlsruhe therefore also gives cause for criticism: "In relation to the interest in establishing a statement that is now being demanded, the BVerfG at the beginning of June was still based on the fact that the legal impairment by the temporary injunction in the form of a still enforceable cease and desist order continues - and nothing special from the complainant weighty determination interest required. Rather, it is sufficient for the court that he is still adversely affected by the challenged order. " From Gräbig's point of view, the situation was comparable to that in the competition law proceedings that have now been decided.

The lawyer pointed LTO another difference: "While the BVerfG in the decision on press law still described a time limit for the oral hearing of around two months after filing the objection as too long, in the competition law proceedings it still considered a deadline seven weeks after filing the objection to be sufficient. "

Regardless of this, from Gräbig's point of view, the decision is "a milestone because it has now been made clear that the principles of urgent proceedings also apply in competition law."