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The fact that courts must also guarantee procedural equality of arms and the right to be heard in summary proceedings under competition law has now been clarified in several decisions by the Federal Constitutional Court.
Nevertheless, violations of the principle of procedural equality of arms occur time and again and have considerable consequences for the respective defendant.
This was also the case in the present case, in which the court ignored a protective letter and was also negligent in conducting the hearing and, with the preliminary injunction nevertheless issued, made the operation of the defendants’ business model impossible overnight – as it then turned out, wrongly.
Unambiguous guidance from the Federal Constitutional Court
There are now numerous decisions on the subject. We reported here, among others:
- BConstitutional Court on “procedural equality of arms”: No interim injunction may be issued without a hearing
- The BVerfG on equality of arms in preliminary injunction proceedings: Equal treatment of the unequal?
- BVerfG: Principle of procedural equality of arms also applies in summary proceedings under competition law
Despite the clear instructions of the Federal Constitutional Court, compliance with these principles is often neglected in day-to-day court practice. In the present case, several things went wrong with the court appointed to decide on the preliminary injunction proceedings.
The defendants represented by us had been warned, but had not issued a cease-and-desist declaration, but had instead filed a protective letter in anticipation of an application for an interim injunction. The creditor then filed this application.
The district court was negligent in its hearing, a protective letter was ignored
The Regional Court sent us the notice of motion – in principle in compliance with constitutional principles – giving both parties the opportunity to comment. However, this order only reached us after the date that the court had announced as the date for the decision on the application. In addition, the court had disregarded the protective letter.
Nevertheless, the Regional Court issued the requested interim injunction, which in our opinion not only should not have been issued at all, but also wrongly made the operation of the defendants’ business model completely impossible.
In addition to filing an objection against the interim injunction and an application for a temporary suspension of enforcement, we therefore filed a constitutional complaint on behalf of our client due to the violation of procedural equality of arms and the right to be heard.
Constitutional complaint was not accepted
As a result, the BVerfG did not accept the constitutional complaint for decision (BVerfG, Beschluss v. 23.7.2021, Az. 1 BvR 1653/21). Nevertheless, the procedure was a complete success for our clients.
It is true that the preliminary injunction was issued incorrectly. However, these were merely errors in individual cases, which did not indicate gross negligence revealing indifference to the procedural rights of the applicant. There was therefore a lack of the necessary special interest in a declaratory judgment.
Such an order could exceptionally be dispensable as long as an interim injunction issued in manifest violation of procedural law is still in effect, the related appeal proceedings before the specialized courts have been initiated swiftly and are still ongoing and serious disadvantages that are significant in terms of fundamental rights are asserted, which require the Federal Constitutional Court to intervene while the specialized court proceedings are still ongoing. However, such a constellation does not exist, as the applicant could have applied for an extension of the deadline despite the procedural errors and the expiry of the deadline set for her to comment. It has not been submitted that this was not possible in the present case.
Nevertheless, clear indications
Nevertheless, the Federal Constitutional Court – and this is not self-evident in the case of a non-acceptance decision – has given the Regional Court – with the necessary restraint and in a somewhat coded manner – some instructions on how to proceed:
It can be assumed that the Regional Court, as is required in the case of a procedural error affecting the procedural equality of arms, immediately examined the objection raised by the complainant and the application for suspension of enforcement to determine whether a suspension of enforcement was necessary on the basis of the defendant’s new submission and, in any case, immediately and promptly set a date for the hearing on the objection, which – should a revocation of the interim injunction be considered – would also have to be done at very short notice to ensure judicial review. The complainant has not submitted anything to the contrary.
Regional court suspends execution and suggests withdrawal of application
This advice was not without effect.
The Regional Court then immediately issued an order temporarily suspending enforcement of the interim injunction without the provision of security and giving the applicant the opportunity to state within five days whether he wished to adhere to his application. After examining the applicant’s submission, an abuse of rights could be assumed, among other things because the action against the defendants in the form of two warnings had been artificially split up.
Lawyer Arno Lampmann from the law firm LHR:
“The decision of the Federal Constitutional Court shows that it is almost always worthwhile to take action against violations of constitutionally enshrined procedural principles. What is regrettable about the present matter is that the Regional Court had to be reminded of its duty of care by the Federal Constitutional Court and only then took the necessary measures.”
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