In a conflict between two police trade unions regarding the right of expression, one had issued a warning letter to the other. The union issuing the warning letter had subsequently filed a motion for an interim injunction. Although the reply of the trade union that had been warned off was attached to this application for an injunction, its extensive annexes were not. Moreover, the applicant extended its presentation of the facts in the application for an interim injunction and also extended it to other statements that had not previously been the subject of the warning letter. The Regional Court issued the order without hearing the defendant, rejecting the originally filed motion and partially granting the auxiliary motion.
As a result, the Federal Constitutional Court suspended the enforcement of the order because the defendant had not been heard.
It was known from earlier decisions (in particular 1 BvR 1783/17) that the Federal Constitutional Court also requires a legal hearing in the injunction proceedings (with very few exceptions in which the purpose of the injunction proceedings would otherwise be undermined). This can be done in the injunction proceedings, for example by giving the parties an opportunity to submit written comments or by means of an oral hearing. However, the Federal Constitutional Court also provides for the possibility of an earlier hearing, for example, by the applicant issuing a warning letter before legal action is taken and the defendant responding to the warning letter.
For the warning letter and the reply letter to satisfy the requirement of the right to be heard as a prior hearing, the Federal Constitutional Court requires that
– the facts of the case for which the warning letter has been issued and the reasons for the requested injunction are identical to those of the application for an injunction submitted to the court,
– the application for an injunction is filed without delay after the expiry of the reasonable period of time granted for the declaration to cease and desist, and
– the reply by which the defendant rejects the request for an undertaking to cease and desist is submitted together with the application.
It is not sufficient if the warning letter does not comply with the required form or if the application is substantiated differently from the warning letter or with additional presentation.
Furthermore, a hearing is required if the court gives the applicant information pursuant to § 139 of the German Code of Civil Procedure (ZPO) of which the defendant does not otherwise become aware or only becomes aware after the issuance of an order. The Federal Constitutional Court put it in a nutshell: “A unilateral secret procedure over a period of several weeks, in which the court and the applicant exchange information on legal issues without involving the defendant in any way, is in any case incompatible with the procedural principles of the Constitution”.
With the present decision, the Federal Constitutional Court confirms these principles and clarifies that in the case of a previous warning letter, the reply of the later defendant must be submitted in full, i.e. including the annexes. This was not done here, which the Federal Constitutional Court criticized as the first mistake.
In addition, the applicant had broadened its argumentation to include further legal aspects and had extended the application for an injunction to other statements that had not been included in the warning letter. The Federal Constitutional Court criticised this as a second mistake because it was constitutionally required to hear the defendant also on these arguments and facts. Especially regarding the newly introduced attacks and arguments, the court should have heard the defendant because there was no longer any congruence between the application on which the decision was based and the pre-litigation warning letter. This applied even more to the newly attacked facts that had not yet been the subject of the warning letter.
It is also remarkable that the court sees no reason to depart from this principle even in the special situation of corona control measures. It was still possible to be heard by telephone.
Especially remarkable is the comment of the Federal Constitutional Court that the duty to conduct proceedings in a timely and balanced manner does not end with granting the preliminary injunction. In particular, the hesitant scheduling of a date for the oral hearing after the opposition had been filed was to be objected to as a violation of the equality of arms in the proceedings in the case of a preliminary injunction issued exceptionally without the involvement of the other party. The practice of many regional courts will therefore have to change here, which previously court orders relatively quickly, but then only scheduled the opposition hearing after months.
All in all, this case law will therefore have a significant impact on the work of lawyers in injunction proceedings:
– One essential consequence is that the warning letter – previously a rather formal written document in legal practice – as well as its substantiation and justification become considerably more important in material terms.
– At the same time, the categories under which according to the previous case law of various courts of instance it was possible to waive a warning letter are likely to be limited almost completely to the case of the possible frustration of claims. This concerns in particular the cases of asserting the sequestration claim or the claim to be handed over to the bailiff for the purpose of safekeeping and securing a subsequent claim for destruction. The categories of the unreasonableness of the delay associated with the warning letter and the foreseeable unsuccessfulness of the warning letter should be irrelevant with this case law.
In the preparation of the warning letter, much more emphasis will now have to be placed on completeness and particularly on the legal arguments. It is therefore necessary to provide reasons for warning letters (if an injunction procedure is intended) and also to make the legal explanations more clearly recognisable. Basically, one must already formulate those positions that are to be presented later in an injunction procedure. This applies not only to the facts, but also to the legal arguments. The result must therefore be that the application for an injunction must already be in view when the warning letter is formulated and justified.
– In this connection, it is not advisable to follow the current practice of including the response of the warned defendant in the application with further arguments for an injunction, on which the defendant has not had the opportunity to comment. If it appears necessary for the success of a ruling to comment on the reply and to present further arguments, this should be done in a further extrajudicial (warning) letter. With this second (warning) letter, the person being warned should be requested again to submit the required cease-and-desist declaration within a short period of time. The possible (second) letter rejecting the request must also be enclosed with the application for injunction. In particular, the application for injunction must then be filed immediately. The time factor is thus becoming more and more important and significant in practice – one must therefore pay even more attention to the requirement relating to urgency.
– Conversely, on the liabilities side, each of the arguments of the warning letter must also be answered. Instead of a protective brief, the arguments can be included in the reply. For this purpose, all legal and factual aspects must be dealt with and answered. This increasingly raises the question of setting a time limit for a warning letter. A deadline set in the warning letter which does not allow a substantiated reply must be answered on the liabilities side by stating that a substantiated statement will be made within a reasonable period. A court will then certainly have to wait this deadline in order to avoid being accused of violating the right to be heard and of the principle of equality of arms.
– To date, the Federal Constitutional Court has not decided the case in which an applicant has issued a warning letter prior to the proceedings, but the defendant has not responded to the warning letter. It is therefore unclear whether the warning letter alone and the opportunity for a pre-litigation reply that is thus given to the defendant is sufficient to satisfy the fundamental right to be heard in the proceedings. This would certainly require an obligation to respond to a warning letter. Such an obligation could possibly be derived from the (tortious) legal relationship on which the application for an injunction is based. This, however, presupposes that the warning letter is justified, which is not the case with an unjustified warning letter by definition.
– Since the right to be heard must be granted before the decision on the claim for injunction and thus on the justification of the warning letter, a court seized may have to give the defendant the opportunity to comment in the absence of an answer. Otherwise, the court would de facto impose a duty to reply to every warning letter, even if it is unjustified and however abstruse.
– This question of how a court deals with an application for an injunction, to which the warning letter is attached but to which the defendant has not replied, will be the key question as to how the warning letter and the injunction proceedings will develop. If the courts come to the conclusion that the theoretical possibility of a reply to the (out-of-court and pre-litigation) warning letter is already the granting of the right to be heard, a court order could be issued even without a reply from the defendant. If, however, the right to be heard and procedural equality of arms is more than the opportunity for an out-of-court response, the court will have to make up for the hearing in the injunction proceedings.
The answer to this question would entail significant changes in the behaviour of the respective attacked party. If a court would have to grant the right to be heard in an intra-judicial proceeding because the defendant had not yet commented prior to the proceedings, the defendant will not comment at all prior to the proceedings and will not deposit a protective brief. This is because the defendant would then open the way to the court order in the first place. It would thus be much more advantageous for him not to respond to the warning letter and instead to rely on the hearing in the injunction proceedings in order to be able to respond precisely to the specific application for an injunction and its annexes.
However, it seems unlikely that the courts will choose this path. The decision of the Federal Constitutional Court is also likely to point in a different direction. The Federal Constitutional Court considers it to be constitutionally unobjectionable if the defendant has merely been granted the opportunity of a counter-statement before the proceedings. The decision expressly states that the constitutional principle of equality of arms in the proceedings is satisfied if the opportunity to reply to a warning letter is given and the reply is then submitted in full.
The courts are therefore likely to consider the absence of a reply by the defendant to the warning letter (with a sufficient period to reply) as a sufficient grant of the right to be heard.
This makes it even more important for the defendant to reply to the warning letter.
The decision of the Federal Constitutional Court will therefore have to entail substantial changes in procedural law and in particular in the practice of lawyers prior to injunction proceedings.
