In a press law case, the Federal Constitutional Court overturned a decision of the District Court of Cologne that had prohibited a press organ from making certain statements without the defendant having received a preceding warning letter or been heard in the court proceedings.
The Federal Constitutional Court makes it clear that the fundamental right of the rule of law and equality (Article 3 of the Constitution) normally requires that the defendantnt in an injunction proceeding is heard before the court decision. Such a hearing can also take place through the warning letter because the respondent then has the opportunity to file a protective brief. If a warning letter has not been issued and the respondent has therefore not been able to comment on it, the court must at least grant a written hearing on short notice.
Exceptions can only arise if special circumstances of the proceedings require the defendant to be taken by surprise, for example in the case of arrest, pre-trial detention, apartment searches or, according to prevailing case law, probably also in the sequestration of infringing objects.
Apart from these exceptional cases, however, the defendant must be heard.
This case law is likely to have considerable effects, particularly in the area of competition law and industrial property law. There the legislator has already ordered in the Unfair Competition Act that a warning letter shall be issued before court actions. However, the legislator has not imposed an obligation to do so. The Federal Constitutional Court is now de facto introducing this warning letter burden; otherwise the judge must hear the debtor in the ongoing injunction proceedings.
