· An article by Dr. Norman Dauskardt

With a preliminary injunction in competition law, a market participant (competitor) can be provisionally prohibited from engaging in an unfair commercial act. If the market participant again violates the competition rules in the same manner despite the prohibition order, they can be penalised, e.g. by means of a substantial coercive fine (up to €250,000) or even coercive detention (more on this under 11. Breach of a preliminary injunction – the penalty procedure).

Summary

  • A preliminary injunction is a provisional judicial order prohibiting (unfair) competitive conduct in the future.
  • Preliminary injunctions are only issued when the matter is urgent. Urgency is presumed, but the applicant must not delay the application (four weeks (strictly) to two months (at most) between knowledge and application, depending on the competent court of appeal).
  • All allegations must be substantiated (made credible) in preliminary injunction proceedings (e.g. with sworn declarations from witnesses or parties).
  • Protective notices serve as preventive defence in preliminary injunction proceedings. They must be lodged at the central protective notice register before a feared application.
  • The legal remedies of opposition or appeal may be available against preliminary injunctions.
  • Preliminary injunctions must be enforced (= served on the respondent) within a one-month period.
  • A preliminary injunction is in general followed by a conclusion procedure (conclusion letter and/or conclusion declaration).

1. What is a preliminary injunction?

A preliminary injunction is a provisional judicial measure intended to provisionally secure the applicant's rights. It is regulated in the Code of Civil Procedure (ZPO) in §§ 935 et seq. In competition disputes, preliminary injunctions are almost always provisional prohibitions that forbid the respondent a certain conduct (e.g. advertising in a certain manner).

When is a preliminary injunction issued?

The proceedings for a preliminary injunction are therefore also called interim legal protection or – not entirely correctly but commonly – expedited court proceedings. Preliminary injunctions are issued by a competent court whenever, without an urgent, swift decision, there is a risk that the claimant, if waiting until a decision in the main proceedings (i.e. the actual action), would no longer be able to obtain their legal rights, or the infringement would continue until then, causing considerable damage. Interim legal protection is an expression of our fundamental right to effective legal protection under Art. 19 para. 4 GG.

How quickly can a preliminary injunction be obtained?

In competition law, in which in particular the rules of the Act against Unfair Competition (UWG) apply, preliminary injunctions are very common and are actually the norm compared to main proceedings (and are usually preferable). This is also because a decision in a "normal" action can often take months to years. It is not acceptable if competition violations are simply continued in the meantime. A preliminary injunction by which the infringer is within a few days to weeks prohibited from competition violations with immediate effect is a very effective means here of maintaining and enforcing fair competition.

2. The preliminary injunction procedure in competition law

In the vast majority of cases, preliminary injunction proceedings are preceded by a competition law cease-and-desist notice to the alleged infringer. Only when the cease-and-desist notice is unsuccessful, i.e. no penalty-backed cease-and-desist undertaking is given, will the party issuing the notice initiate preliminary injunction proceedings. A prior cease-and-desist notice is not, however, mandatory in competition law. The competitor or a legally capable association can immediately apply to a court, but then bears the risk of having to pay the costs if the respondent immediately acknowledges the claim and has not otherwise given cause for the court proceedings (§ 93 ZPO).

Preliminary injunction proceedings begin with an application by a person entitled to bring proceedings, e.g. a competitor or a legally capable association for the promotion of commercial or independent professional interests (e.g. the Verband Sozialer Wettbewerb e.V.) to the competent court. The court then decides on the further course of proceedings at its own discretion. It can immediately grant the application and issue a preliminary injunction without hearing the respondent. In competition law, this is even the norm where the court considers the conditions for the order to have been substantiated. However, it can also first give the respondent an opportunity to comment or order an oral hearing. If the court sees grounds for not issuing the requested preliminary injunction, it will generally first give the applicant an opportunity to improve the application. If it considers the application definitively inadmissible and unfounded, it will reject it by resolution or judgment. Against all decisions of the court, the party adversely affected is entitled to legal remedies and appeals (e.g. immediate complaint, opposition or appeal – more on this later). Decisions of the regional courts can be reviewed by the higher regional courts (in Berlin: Kammergericht).

Goal of the preliminary injunction

With a preliminary injunction in competition law, only injunction claims can be provisionally enforced, not also, for example, claims for reimbursement of legal fees (§ 13 para. 3 UWG) or disclosure (§ 242 BGB) or payment of damages (§ 9 UWG). These claims must be pursued in main proceedings (an action), because they are generally not considered urgent and preliminary injunction proceedings must not anticipate the main proceedings. If, for example, disclosure claims were already granted in interim legal protection, this could not be corrected by ordinary court proceedings ("a thing, once said, cannot be made unsaid").

3. Requirements for the issuance of a preliminary injunction

For a preliminary injunction to be issued, various requirements must be met. The most important requirements for a preliminary injunction are the filing with the competent court, the existence of grounds for the order (urgency) and a right to an order (i.e. an injunction claim arising from a competition violation).

a) Competent court for preliminary injunctions in competition law

A preliminary injunction may only be issued by a competent court. Courts applied to examine their own jurisdiction (ex officio). Under § 937 para. 1 ZPO, the court of the main proceedings is competent to issue preliminary injunctions. The competent court is therefore always the court that would also be entitled to decide in an ordinary action in competition law.

In competition law, only regional courts (Landgerichte) are empowered to decide, to the extent that a claim is asserted on the basis of the UWG (§ 14 para. 1 UWG). Accordingly, regional courts always decide on injunction claims arising from a competition violation. Applications for orders to local courts (Amtsgerichte) are in competition law generally inadmissible (exceptions are only very rare, particularly urgent cases – in those cases the local court of the location of the matter can also be competent).

Local jurisdiction arises from § 14 UWG:

"(2) The court is competent for all civil disputes in which a claim is asserted on the basis of this Act within whose district the defendant has their general place of jurisdiction. The court is also competent for all civil disputes in which a claim is asserted on the basis of this Act within whose district the infringement was committed. Sentence 2 does not apply to

1. disputes concerning infringements in electronic commerce or telemedia, or
2. disputes asserted by those entitled to assert an injunction claim pursuant to § 8 para. 3 nos. 2 to 4, unless the defendant has no general place of jurisdiction within the country."

In principle, therefore, those regional courts are called upon to decide within whose districts the respondent (the infringer) either has their registered office (§ 14 para. 2 sentence 1) and/or within whose district the infringing act was committed (§ 14 para. 2, sentence 2, place of commission jurisdiction). Between several locally competent courts, the applicant may choose.

In cases with an internet connection, place of commission jurisdiction until the UWG amendment in 2020 meant that the creditor could bring proceedings before any regional court in Germany, because websites can be accessed worldwide and thus also at every location in Germany. This option was referred to as the "flying venue" (fliegender Gerichtsstand). Until then, the application for the issuance of a preliminary injunction was filed with the regional court where the party issuing the notice itself or their attorneys were located and/or where the case law of the competent court of appeal was favourable. Since the UWG amendment entered into force on 2 December 2020, the court within whose district the infringement was committed is, however, no longer competent for disputes concerning infringements in electronic commerce or telemedia (§ 14 para. 2 sentence 3 no. 1). In practice, there is much controversy about how this exception is to be understood. While some regional courts (LG Hamburg, LG Düsseldorf) assume that the restriction of place-of-commission jurisdiction only applies to violations of statutory information and labelling obligations, other courts (LG München and OLG Düsseldorf) consider the "flying venue" for competition violations on the internet to have been abolished.

An exception to the option to choose also exists under § 14 para. 2 sentence 3 no. 2 UWG for those entitled to bring proceedings who are not competitors of the infringer (i.e. for example legally capable associations for the promotion of commercial or independent professional interests or chambers of commerce). These must in principle bring proceedings at the place where the infringer is located.

An incompetent court must indicate that it may not decide on the matter and give the applicant the opportunity to apply for referral to the competent court (cf. § 281 ZPO).

b) Urgency of a preliminary injunction

A preliminary injunction may only be issued if the matter is urgent. Under § 935 ZPO this is the case "if it is to be feared that a change of the existing situation would frustrate or substantially complicate the realisation of a party's right." Urgency is absent if no disadvantages are apparent for the applicant in the event of referral to the main proceedings (the normal action with its longer duration). The existence of grounds for an order must be examined by the court ex officio.

In competition law, there is a special feature regarding urgency that makes preliminary injunctions attractive for the applicant in the first place. The existence of grounds for an order is namely presumed. This is stated in § 12 para. 1 UWG:

"To secure the injunction claims designated in this Act, preliminary injunctions can be issued even without demonstrating and substantiating the requirements designated in §§ 935 and 940 of the Code of Civil Procedure."

The enforcement of injunction claims in competition law is therefore generally always considered urgent and expedient. This means that in the application for the order, the applicant is in principle not obliged to present and substantiate that the matter is particularly urgent and that it cannot be expected to wait until a decision in the main proceedings.

The presumption of urgency under § 12 para. 1 UWG can, however, be rebutted. If it is rebutted, the applicant must specifically present and substantiate urgency. The presumption of urgency is primarily rebutted when the applicant by their own conduct indicates that "they are not in a hurry". This is the case when they wait for a longer period before making an application for an order, even though they know of the competition violation and the infringer, or are grossly negligently ignorant of this knowledge.

The assessment of the permissible period of delay is highly controversial. In the various court of appeal districts, different court practices have developed for the period of delay that is detrimental to urgency. In principle, it must be decided for each individual case how long an applicant can wait before making a court application without the presumption of urgency lapsing. The type of infringement, the need for investigations or the response of the infringer to a cease-and-desist notice (UWG) can be taken into account. However, the individual courts of appeal have mostly developed standard periods as a guide, ranging from four weeks (strictly) to two months (at most). As a standard period, it can currently be stated that a delay of no more than one month between knowledge of the competition violation and the preliminary injunction application is not detrimental to urgency.

In summary, however, it can be stated that no time should be lost when wishing to take action against an infringer in expedited proceedings. In general, the infringer should beforehand be given the opportunity to resolve the matter out of court by means of a cease-and-desist notice and the associated demand for a cease-and-desist undertaking. A prior cease-and-desist notice is not mandatory, but is an obligation of the claimant, if they do not want to have to bear the procedural costs in the event of an immediate acknowledgment of the preliminary injunction (§ 93 ZPO).

c) Right to an order – substantiation of a competition violation

A preliminary injunction may furthermore only be issued if the applicant substantiates a right to an order. All facts supporting a competition violation by the respondent and a resulting injunction claim by the applicant must accordingly be presented and substantiated. This is usually the main hurdle for the issuance of a preliminary injunction.

Nevertheless, the requirements for substantiation are lower than the requirements for full proof in main proceedings. There is a relaxed form of evidence. Compared to the action procedure, the court does not need to be convinced of the truth of the asserted facts, but rather a predominant probability is sufficient. The right to an order is therefore substantiated if the existence of all prerequisites for it appears predominantly probable from the court's perspective.

Means of substantiation under § 294 ZPO are all present means of evidence, namely inspection, submission of documents, examination of witnesses, including sworn or attorney declarations and submission of expert opinions or official information. In competition law order proceedings, facts are overwhelmingly substantiated by means of sworn declarations, which can also be given by the applicant themselves as a party (whereas statements of the claimant in main proceedings cannot readily serve as "evidence").

For the case of misleading (untrue) advertising, this means, for example: the court applied to (competent) will issue a preliminary injunction applied for by a competitor, provided

  • it is presented and substantiated that there is a competitive relationship between the parties and the applicant can in principle demand an injunction;
  • the challenged advertising itself is presented and substantiated, whereby a sworn declaration by the applicant will in most cases be sufficient for this purpose;
  • the court assesses the challenged advertising as misleading and therefore unlawful.

The greatest care and caution must be exercised when giving sworn declarations before the injunction court. False sworn declarations are a criminal offence (§ 156 StGB).

4. The protective notice – preventive defence against an application for an order

If one has been served with a cease-and-desist notice for an alleged competition law violation and considers one's own conduct to be lawful (or at least potentially so), and therefore no competition violation and thus no injunction claim by the party issuing the notice exists, the preventive filing of a protective notice may be advisable.

Preliminary injunctions are popular in competition law, inter alia, because they are very often issued without a hearing of the respondent (so-called resolution order) and are immediately "effective". Once a prohibition order has been issued, the respondent must immediately comply with it, otherwise substantial penalties are threatened (more on this under 11. Breach of a preliminary injunction – the penalty procedure). Unlawful advertising must be immediately stopped; a prohibited product may no longer be produced, advertised and/or sold from that point on. Preliminary injunctions can therefore lead to significant revenue losses and cause great damage. Admittedly, the applicant is liable for unjustified preliminary injunctions for damages under § 945 ZPO. Nevertheless, court measures with high damage potential should if possible be preventively prevented, because even an opposition against a preliminary injunction does not cause its effect to lapse until a decision in the opposition proceedings – and who knows whether a damages claim will still have any value after the conclusion of protracted proceedings. It frequently happens that competitors overreach themselves in disputes with their competitors and have to file for insolvency during years of court disputes. The party unjustly served with the cease-and-desist notice then in principle only has a claim against the insolvent party.

The lodging of a protective notice is suitable for preventive protection. In a protective notice, the potential respondent defends themselves preventively against the allegations made in a cease-and-desist notice and presents those facts and arguments that argue against a violation of competition law provisions or against an injunction claim by the applicant.

The protective notice was for a long time only recognised under customary law, but since 2016 has been regulated by statute in §§ 945a, 945b ZPO. There are two options for filing a protective notice. It can be filed in paper form at the court likely to be involved. Alternatively, it can be entered into the central electronic protective notice register (ZSSR). Attorneys are even obliged to file protective notices only electronically at the central protective notice register. Under § 945a para. 2 sentence 1 ZPO, a protective notice is deemed to have been filed with all ordinary courts of the states as soon as it has been entered in the protective notice register. Before the intended issuance of a preliminary injunction without a hearing and without an oral hearing, a court must examine whether a protective notice has been lodged in the protective notice register and, if this is the case, take the content of the protective notice into account.

It is very important that the protective notice is received before an application for an order, because only then is it ensured that it will also be taken into account by the deciding court. If, for example, a deadline for giving a cease-and-desist undertaking has been set in the cease-and-desist notice (which is common), then the protective notice should ideally be lodged before this deadline expires. After the deadline expires, an application for the issuance of a preliminary injunction must be expected at any time.

If the court applied to considers an application for an order to be inadmissible and/or unfounded, e.g. because it does not see a competition violation in the conduct of the respondent, it can reject the application without an oral hearing by resolution (so-called rejection resolution).

The resolution must be reasoned and against it the applicant can file an immediate complaint under § 567 para. 1 no. 2 ZPO. It must be noted that the complaint can only be raised within a two-week, non-extendable urgent deadline. The complaint document can be transmitted to the court of first instance or to the complaint court. First, the court of first instance is given the opportunity to correct its decision itself ("remedy"); if it maintains its legal view, it must refer the matter to the complaint court (§ 572 ZPO). The complaint court in competition matters is always the higher regional court subordinate to the regional court (in Berlin: Kammergericht). The complaint court can decide without – as is usually the case in practice – or on the basis of an oral hearing.

If the respondent was already granted a hearing in the first instance, they are also to be involved in the complaint instance. If they have not yet been heard, it is in the proper discretion of the complaint court to involve the respondent. If a hearing of the respondent would involve an impermissible warning to the respondent, it must also be omitted in the complaint proceedings.

If an oral hearing has already been held in the first instance, the court can no longer reject the application for an order by resolution, but must pronounce a judgment against which the applicant can appeal.

6. Opposition against a preliminary injunction

If a resolution order has been issued, the affected respondent can file an opposition against it. The opposition is the central legal remedy for challenging a preliminary injunction that was issued without an oral hearing (or even without a hearing of the respondent). The opposition against a preliminary injunction can be filed without a time limit. It does not, however, suspend enforcement from the already issued preliminary injunction. This remains in principle enforceable until the preliminary injunction is overturned, whereupon it also ceases to have effect. A provisional stay of enforcement is only considered in exceptional cases, e.g. if the decision is obviously erroneous. The respondent must therefore comply with the prohibition from the preliminary injunction despite the opposition. For this reason, it may be advisable to defend against a preliminary injunction preventively by means of a protective notice (see: 4. The protective notice – preventive defence against an application for an order).

After an admissible opposition, the injunction court must hold an oral hearing. In general, before the oral hearing, the respondent will present their arguments in favour of overturning the preliminary injunction in an opposition document. The possible grounds for opposition are so varied that a presentation here would exceed the scope. The most common allegations made against a preliminary injunction in opposition proceedings are that:

  • the deciding court does not have subject-matter and/or local jurisdiction,
  • the matter is not urgent for the applicant and urgency is therefore lacking (see: 3. Requirements for the issuance of a preliminary injunction),
  • the parties are not competitors (prerequisite for the injunction claim under § 8 para. 3 no. 1 UWG),
  • the respondent is not at all responsible for the legal violation,
  • the challenged conduct is not anti-competitive,
  • the applicant is acting abusively and therefore has no injunction claim (§ 8c UWG).

After the oral hearing, a final judgment must be rendered. The preliminary injunction can be confirmed (the applicant prevails) or it can be overturned and the application for its issuance rejected (the respondent then prevails).

If a party disagrees with the final judgment, they can appeal against it and the competent higher regional court (in Berlin: Kammergericht) will decide on the appeal.

Against an issued preliminary injunction or against the rejection of an application for the issuance of a preliminary injunction, there are further legal remedies and appeals that can be raised depending on the type of decision issued and the stage of proceedings. It should always be borne in mind that the preliminary injunction procedure represents "only" the provisional expedited proceedings and cannot anticipate the main proceedings. Even if, for example, the competent higher regional court has decided as the final instance in the preliminary injunction proceedings, the legal dispute is not thereby settled. The applicant can initiate the main proceedings as claimant; the respondent can force the applicant into the main proceedings.

a) Appeal

The party adversely affected in each case can file an appeal (§ 511 et seq. ZPO) to the competent higher regional court (in Berlin: Kammergericht) against final judgments in preliminary injunction proceedings, which are only rendered after oral hearings. The appeal period is one month from service of the first instance judgment with reasons (§ 517 ZPO). Filing the appeal also does not in principle suspend the enforceability of the preliminary injunction. The affected respondent must therefore continue to comply with the prohibition from the preliminary injunction until it is overturned. A provisional stay of enforcement is only considered in exceptional cases, e.g. if the decision of the first instance is obviously unlawful.

The appeal court can review the first instance decision of the injunction court almost completely. Thus, the respondent burdened with a preliminary injunction can argue that the court of first instance wrongly affirmed a right to an order and/or grounds for an order, or that the application should have been dismissed for other reasons (e.g. lack of a procedural prerequisite). The applicant can argue on appeal that their application for the issuance of a preliminary injunction was wrongly rejected and the requested order should be issued.

b) Application for setting a deadline to bring an action (§ 926 para. 1 ZPO)

As already stated, the preliminary injunction procedure only represents a provisional procedure. The respondent burdened with a preliminary injunction can therefore force the applicant into main proceedings. The respondent can make a corresponding application under § 926 para. 1 ZPO, which is possible without a deadline.

The court of the main proceedings will then set the applicant an appropriate deadline for bringing the main action. The application for setting a deadline to bring an action makes sense for the respondent when they believe they will prevail in the main proceedings, for example because the applicant can substantiate the facts founding the claim, but cannot fully prove them as required in the main proceedings.

c) Application for setting aside the preliminary injunction due to failure to bring a main action (§ 926 para. 2 ZPO)

If the applicant does not bring a main action despite the deadline being set, a preliminary injunction is to be set aside on the respondent's application on that ground alone. Considerable pressure can therefore be exerted on the applicant here.

d) Application for setting aside the preliminary injunction due to changed circumstances (§§ 936, 927 para. 1 ZPO)

The respondent can apply for the preliminary injunction to be set aside due to changed circumstances as long as the preliminary injunction is still in effect and effects can still flow from it. This application is also not subject to any deadline. In the proceedings it must be examined whether the preliminary injunction can still be maintained in the future. Changed circumstances exist where the prerequisites for the emergency measure (e.g. the right to an order or grounds for an order) have subsequently lapsed.

For example, the following reasons may exist:

  • the extinction of the secured injunction claim due to the giving of a penalty-backed cease-and-desist undertaking,
  • the final dismissal of the main action,
  • a change in law or a change in the highest court case law, under which the conduct prohibited by the preliminary injunction can no longer be prohibited.

8. The enforcement of the preliminary injunction

The issuance of a preliminary injunction alone is not sufficient. The applicant must enforce it if they want to maintain its legal force and pursue enforcement from it. Concretely, this means that under § 929 para. 2 ZPO they must have the preliminary injunction served on the respondent within one month of pronouncement of the judgment or service of the resolution (so-called service by the party). Service by the court is not sufficient. The order must contain a threat of coercive measures, i.e. for example the threat of a coercive fine or coercive detention in the event of a violation.

Service of the preliminary injunction is in principle effected by the bailiff; transmission by letter is not sufficient. If the parties are represented by attorneys, the (relaxed) provisions for service from attorney to attorney also apply. At least a certified copy of the official copy of the prohibition order must be served. Errors are very frequently made in the enforcement of preliminary injunctions, even among attorneys.

If service errors cannot be cured or service (and therefore enforcement) occurs late, the preliminary injunction is irremediably invalid and must be set aside in opposition, appeal or setting-aside proceedings on that ground alone. Great importance should therefore be attached to correct and timely service. For the respondent, however, enforcement errors frequently offer opportunities to attack the preliminary injunction.

9. The costs of the preliminary injunction

For preliminary injunction proceedings, costs are incurred, in particular court fees and, if the parties are legally represented, also attorney fees. The deciding court must decide on the allocation of costs ex officio. The principle applies under § 91 para. 1 sentence 1 ZPO that the unsuccessful party must bear the costs of the proceedings. If, for example, the applicant obtains a preliminary injunction by way of resolution without prior hearing of the respondent, the court will automatically impose the costs of the preliminary injunction on the respondent. If it rejects an application for the issuance of a preliminary injunction, it will decide that the applicant must bear the procedural costs.

Exceptions to the principle of cost liability

There are exceptions to the principle that the unsuccessful party bears the costs. The most important exceptions in competition law order proceedings are costs on resolution of the main claim under § 91a ZPO and costs on immediate acknowledgment under § 93 ZPO.

Under § 91a ZPO, the court decides on the costs by resolution, taking into account the previous state of the case and the dispute and exercising equitable discretion, when the parties have declared the dispute to have become settled. The provision covers here primarily cases in which the respondent gives a penalty-backed cease-and-desist undertaking after the application for an order, so that the risk of repetition lapses and therefore no preliminary injunction can be issued. The court will then examine whether the application for the issuance of a preliminary injunction was originally well-founded and necessary, and impose the costs on the party that would probably have lost without resolution of the main claim.

Under § 93 ZPO, the claimant (here applicant) bears the costs of the preliminary injunction proceedings if the defendant (here respondent) has not given cause for bringing the action through their conduct, provided the claim is immediately acknowledged. This provision covers those situations where the applicant fails to first send a competition law cease-and-desist notice to the alleged infringer and request them to give a cease-and-desist undertaking. If the applicant directly applies for the issuance of a preliminary injunction order and the respondent immediately acknowledges the preliminary injunction, the costs may fall on the applicant if the respondent's out-of-court conduct has given no cause for the application and the applicant had no other legitimate reasons to forgo a prior cease-and-desist notice. The cost decision of the court contrary to § 93 ZPO can be challenged by the respondent in isolation with a cost opposition and an application that the procedural costs be imposed on the applicant.

Dispute value in preliminary injunction proceedings

On the basis of a cost decision of the injunction court, a cost assessment resolution can be applied for against the party bearing the costs, on the basis of which enforcement for payment of the assessed costs can be pursued. The amount of the costs to be reimbursed depends on the one hand on the dispute value and on the other hand on the individual procedural events. Court costs are calculated on this basis under the Court Costs Act (GKG), attorney fees under the Attorney Remuneration Act (RVG). The dispute value is assessed under § 51 para. 2 GKG according to the significance of the matter as it results for the claimant from the application. Courts are afforded very broad discretion in estimating the dispute value. Courts in competition law are not "timid". Dispute values below €5,000 are rarely set, but dispute values above €75,000 are frequently set.

Example of the costs of a preliminary injunction

The following example is intended to give an initial impression of the costs arising in preliminary injunction proceedings:

  • The applicant applies against the respondent for a preliminary injunction in respect of misleading advertising. Both parties are legally represented. The competent regional court initially issues the preliminary injunction by way of resolution without hearing the respondent. The respondent files an opposition against it. An oral hearing is held, but the preliminary injunction is confirmed. The court sets the dispute value in the expedited proceedings at €75,000. The respondent must then bear (and reimburse) the following costs:

Incidentally, the costs of a cease-and-desist notice in competition law do not form part of the costs of the preliminary injunction proceedings. If the applicant requests reimbursement of the attorney fees, they must if necessary claim these separately (in main proceedings).

10. The conclusion procedure: conclusion letter and conclusion declaration

As already mentioned, the preliminary injunction procedure only represents a provisional procedure. The injunction claim asserted has not thereby been finally decided. To avoid costly main proceedings, legal practice has developed the so-called conclusion declaration, by means of which the respondent can recognise the preliminary injunction issued against them as final and main proceedings thereby become unnecessary.

A conclusion declaration by the respondent is frequently preceded by a so-called conclusion letter from the applicant. The conclusion letter contains the request to give a conclusion declaration. This allows the applicant to gain clarity about whether they still need to bring a main action after the preliminary injunction proceedings. The applicant does not have to send a conclusion letter, but should do so if they want to avoid an immediate acknowledgment by the defendant in the main proceedings, which would mean they have to bear the procedural costs (§ 93 ZPO). The applicant can demand reimbursement of the costs for sending the conclusion letter (e.g. the attorney fees) if it was necessary and they comply with a few rules. The most important rule is: before sending, the applicant must grant the respondent a waiting period (generally two weeks) within which the respondent must be able to give a conclusion declaration of their own accord.

The conclusion declaration must, if the respondent wants to prevent main proceedings, place the applicant in the same position as if they had obtained a final title (a legally binding judgment) instead of the provisional title (the preliminary injunction). For this, the declaration requires a waiver of the possible legal remedies against the preliminary injunction. If the conclusion declaration is substantively sufficient, the applicant's need for legal protection in main proceedings lapses. Their action would then be dismissed.

11. Breach of a preliminary injunction – the penalty procedure

It occurs that competition violators do not comply with the prohibition laid down in a preliminary injunction issued against them. In this case, provided the preliminary injunction was properly enforced (see: 8. The enforcement of the preliminary injunction), the applicant has the option by application to the court of first instance of having the respondent penalised within the framework of enforcement. Thus, for example, if a competitor simply continues the misleading advertising, this can become expensive for them (coercive fine) or they can in the worst case even be imprisoned (coercive detention).

Enforcement is governed by § 890 ZPO and requires that there is:

  • an enforceable injunction title (this is the preliminary injunction),
  • a threat of coercive measures by the court (it is in general contained in the preliminary injunction),
  • the title and threat have been served on the debtor (enforcement of the preliminary injunction),
  • and a culpable breach of the prohibition from the preliminary injunction exists.

Whether the conduct constitutes a breach of the prohibition order is determined by the scope of the injunction title as established by interpretation. Fault on the part of the injunction debtor exists where they intentionally or negligently breach the preliminary injunction. They must therefore at least have failed to observe the care required in commercial dealings in order to be penalised. The debtor must not only refrain from everything that can lead to a violation, but must also do everything that is required and reasonable in the specific case to prevent future violations. This can also include instructing employees or exerting influence on third parties (e.g. affiliate partners). The courts are very strict here. Only in very rare cases does a penalisation fail for lack of fault.

In choosing and assessing the coercive measures, the trial court has a discretionary power. They must be assessed at least at a level where further violations are no longer worthwhile for the respondent. The type, extent and duration of the violation, the degree of fault, the benefit for the infringer (e.g. revenue increase) and the risk for the person harmed must also be taken into account when assessing the amount. Under § 890 ZPO, a single coercive fine can amount to up to €250,000 and coercive detention can last up to two years in total. If the debtor repeatedly breaches the preliminary injunction, coercive measures can again be imposed against them.

12. Attorney for preliminary injunctions

Competition law is a very complex area of law in which knowledge of a wealth of case law developing the law is also required. Furthermore, there is a compulsory representation by an attorney before regional courts (§ 78 para. 1 ZPO). A company, a trader, a craftsperson or a business operator therefore cannot represent themselves in preliminary injunction proceedings, which in competition law almost always take place before regional courts, and must engage an attorney to represent their interests. For the reasons stated above, it is highly advisable, should one have received a preliminary injunction or wish to obtain an order against a third party, to seek the advice of a specialised attorney and be represented by them.

As specialist attorneys for competition law, we can advise our clients purposefully and represent their interests at every stage of the preliminary injunction proceedings. Core services include:

  • the examination of and defence against competition law cease-and-desist notices, as well as the drafting and issuance of competition law cease-and-desist notices (upstream of the order proceedings),
  • drafting and filing of an application for the issuance of a preliminary injunction against a competitor,
  • the drafting and filing of a protective notice for the preventive defence against a preliminary injunction from a competitor or another institution entitled to bring proceedings,
  • filing of the immediate complaint and representation in the complaint proceedings against rejecting court resolutions that dismiss applications for preliminary injunctions,
  • filing of an opposition and representation in the opposition proceedings against preliminary injunctions (this includes primarily the drafting of an opposition document and attending the oral hearing),
  • filing of a cost opposition and representation in these proceedings,
  • filing of further legal remedies (e.g. appeal) and representation in the proceedings,
  • representation in the conclusion procedure, including the drafting of conclusion letters and conclusion declarations,
  • filing of penalty applications (coercive fine, coercive detention), as well as defence against penalty applications.

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