The decision was based on the following facts:
The defendant, which is domiciled in Great Britain, was warned by the applicant for an infringement of competition law. Thereupon, the applicant obtained a preliminary injunction based on para. 4 No. 3 of the German Unfair Competition Act on 9 June 2017. After receiving the injunction on 13.06.2017, the applicant applied within a few days for service in Great Britain. On 07.08.2017, the court registry sent the translated order to the defendant by registered letter with acknowledgement of receipt, whereby the application for preliminary injunction had not been translated.
The defendant submitted a cease-and-desist declaration with penalty clause through its representatives by letter on 09.08.2017. On 10.10.2017, the defendant filed an objection against the preliminary injunction. The objection was based on the fact that the injunction had not been effectively served because the form pursuant to Annex II to the Brussels I Regulation and a translation of the application were missing. In addition, there had been no return receipt and the application had been signed illegibly.
After both parties mutually declared the proceedings to be settled, the Regional Court ordered the defendant to bear the procedural costs in accordance with para. 91 a ZPO. The respondent filed an immediate appeal against this decision.
According to the Higher Regional Court of Düsseldorf, it is not relevant for the consequence of costs whether the service was actually effected, but whether it was still required to be executed at the time of execution.
First, however, the Higher Regional Court found that the notification in the present case was in fact ineffective because of the lack of a form pursuant to Annex II to the Brussels I Regulation. But according to the case law of the European Court of Justice, this lack of service can be remedied by submitting the form subsequently.
In this respect, the Higher Regional Court also clarified that a lack of acknowledgement of receipt does not result in the ineffectiveness of the service, as this only serves as proof of service and does not constitute a requirement for effectiveness. Furthermore, it was not necessary to enclose the translated application in order to grant the right to be heard or to establish equality of arms, since the court had given detailed reasons for the injunction.
Crucial was, however, that – regardless the possibility of curing – the enforcement of the injunction was no longer necessary. According to the prevailing opinion, enforcement is dispensable in particular if the claim to injunctive relief has been settled by a sufficient declaration of cease-and-desist. This requires that either the declaration of cease-and-desist is made within the time period for enforcement or that the applicant has at least undertaken the necessary steps for enforcement within the time period for enforcement.
In the relevant case, the applicant had taken all the necessary steps within the enforcement period by requesting service abroad from the competent Regional Court. In case of international service, it is generally acknowledged that the service itself does not have to be effected within the deadline for enforcement, it is sufficient if the applicant requests the court in due time to serve the preliminary injunction abroad.
Furthermore, the Higher Regional Court did not consider it to be detrimental to the urgency of the case that the applicant had not served the injunction on the extra-judicial counsel and that the application had not been translated. None of these actions had been necessary. From this, it cannot be concluded that the applicant was not intending to effectively enforce its claims. In particular, the missing translation could have been made up for without any significant delay.
