The German Federal Constitutional Court has handed down several landmark decisions which strengthen defendant rights in interim injunction proceedings (Federal Constitutional Court decision of  27 June 2020, case no. 1 BvR 1379/20; decision of 3 June 2020, case no. 1 BvR 1246/20; decisions of 30 September 2018, case no.  1 BvR 1783/17 and 1 BvR 2421/17). The judges ruled that an interim injunction can only be granted if the defendant was able to reply on the initial request for interim injunction of the claimant.

In various previous cases, mainly in the field of IP and press law, German courts regularly granted interim injunctions without giving prior notice to the defendant or requesting its statement (so called “ex-parte” injunction). Therefore, the defendant was generally confronted with an enforceable decision without having been able to put forward any facts or arguments which could have impeded the grant of the interim injunction. As a matter of principle, filing an appeal against an interim injunction has no suspensory effect, which means that the interim injunction remains enforceable. Appeal proceedings require an oral hearing, however the respective scheduling regularly takes certain time, up to several weeks, which delays the proceedings to the disadvantage of the defendant.

Furthermore, it was common that judges, after receiving the request for interim injunction, had telephone calls with the claimant to exchange information regarding concerns or uncertainties as to the request. The claimant was thereby put in a position to specify or withdraw its request. In case the request was then withdrawn, no notice was given to the (potential) defendant.

In its decisions, the German Federal Constitutional Court refused the application of this practice of the lower instance courts due to violation of a defendant’s constitutional right of equal treatment in court proceedings (so called “principle of procedural equality of arms”). The principle of procedural equality of arms obliges the judge to ensure the equality of the parties by conducting proceedings in an objective and fair manner, by an unbiased willingness to exploit and evaluate each other’s submissions, by applying the law impartially and by correctly fulfilling his other procedural obligations towards the parties to the proceedings. To comply with this principle, the defendant must be provided with the possibility to reply to the request of interim injunction. In order to provide the parties equal possibilities to file statements, the Constitutional Court considers that requesting a statement of the defendant is even possible via email or telephone (decision BvR 1246/20, margin no. 21).

However, there are remains some exemptions where an injunction may be rendered without the defendant being heard. When the request for interim injunction and the respective prior warning letter are identical and the response of the defendant to the warning letter is submitted with the request, the principle of procedural equality of arms is not considered to be violated by granting an ex parte injunction.

Although these are not expressively stated by the Constitutional Court, further exemptions are assumed by leading experts (cf. Bornkamm, in GRUR 2020, 715 – “The end of ex-parte-injunctions even in competition and IP law”) in the event such an act would be very urgent (e.g. imminent trade fair) or if the purpose of the interim injunction would be impeded by requesting a statement of the defendant (e.g. seizure of assets). For such exceptional cases, where no prior statement of the defendant could be requested, the Constitutional Court ruled that oral appeal hearings against the interim injunction must be scheduled without undue delay.