In its decision of 30 September 2018 (1 BvR 1783/17), the German Federal Constitutional Court [Bundesverfassungsgericht – BVerfG] ruled that a preliminary injunction issued in a press-law dispute by the District Court [Landgericht – LG] of Cologne without the appellant previously having received a cease and desist letter or been heard violates the appellant’s right to procedural equality of arms [prozessuale Waffengleichheit] as set out in art. 3 para. 1 in conjunction with art. 20 para. 3 of the German Basic Law [Grundgesetz – GG], which is equivalent to a basic right.

Background

The appellant, a journalistic-editorial research network, published on its website an article reporting on corruption allegations against a company, in places citing from spoken comments at a supervisory board meeting. In response, without previously sending a cease and desist letter to the appellant, the company applied to the District Court of Cologne for a preliminary injunction to be issued to the appellant. The application was to prohibit publication of the minutes of the supervisory board meeting, be it as literal citations or summaries providing the gist.

The District Court granted the application – without giving reasons or hearing the appellant beforehand – in line with its customary practice. The appellant lodged a constitutional complaint against the decision, citing as grounds the fact that the District Court of Cologne intentionally disregarded the appellant’s rights under procedural law. The appellant stated that the District Court’s preliminary injunction – issued without an oral hearing and without a cease and desist letter having been sent beforehand – infringes its rights to due legal process, to procedural equality of arms, and to a fair trial, as well as breaching the rights to freedom of speech and of the press.

German Federal Constitutional Court Decision

In its decision, the Constitutional Court confirmed that there had been an infringement of the appellant’s right to procedural equality of arms as set out under art. 3 para 1 in conjunction with art. 20 para. 3 GG, which is equivalent to a basic right.

The principle of procedural equality of arms ensures that the parties have an equal procedural position before the judge. The Court states that the judge is obliged to ensure the equality of the parties by conducting the proceedings in an objective, fair manner:

• by unbiased readiness to use and assess the parties’ submissions,
• by the impartial application of law,
• and by the correct fulfilment of his/her other procedural obligations to the parties.

This includes always hearing the opposing party in court proceedings prior to issuing a decision, and thus ensuring they are given the opportunity to influence an imminent judicial decision. In the case of interlocutory relief, not hearing a party prior to issuing a decision is likewise justified only if a hearing would impair the purpose of the interlocutory relief. This, however applies only in exceptional cases, such as attachment proceedings, orders for pre-trial custody or house searches.

By issuing a preliminary injunction without hearing the party beforehand and without the applicant for the preliminary injunction first sending a cease and desist letter giving sufficient warning, the appellant’s procedural position is no longer equal to that of the opposing party.

In the case of cease and desist claims in the area of press and expression law it cannot be assumed, as a rule, that it is necessary to take the opponent by surprise. At least in cases where a statement has already been published, there is, usually, no reason to not hear a respondent before a preliminary injunction is issued.

While it is generally possible to issue a preliminary injunction without an oral hearing (sec. 937 para. 2 of the German Code of Civil Procedure [Zivilprozessordnung – ZPO]), this possibility does not provide justification for excluding the opposing party from the proceedings until a decision has been made on the application for a preliminary injunction. The principle of procedural equality of arms can also be sufficiently satisfied by a pre-procedural cease and desist letter, provided the applicant submits to the court with its application any rejection letter received from the respondent. This ensures that the respondent had sufficient opportunity to comment in due scope before court on the applicant’s submissions.

Furthermore, the principle of equality of arms requires that the opponent must also be informed promptly of court notices, in particular ones concerning necessary amendments to the injunction application, even if the application is rejected. One-sided secret proceedings between the court and the applicant on points of law does not comply with procedural principles of the German Basic Law.

Comment

Several German courts, in press and expression law as well as intellectual property law, still issue preliminary injunctions with no prior involvement of the responding party. In such cases, the respondent not only has to defend against the preliminary injunction itself, but also must convince the court that its first decision was factually and/or legally incorrect. In order to avoid this, there are many courts which issue preliminary injunctions only after a prior cease and desist letter and/or hearing the respondent party. It is likely that, following this decision, the remaining courts will also adopt this approach. Furthermore, the requirements set out by the Constitutional Court concerning the submission of any statements by the respondent in response to a cease and desist letter, and the passing on of any court notices, indicate that in future surprising decisions for respondents in preliminary injunction cases will be rare. The respondent’s position is likely to be strengthened considerably by this decision.

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