GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
6.3 Availability of Injunctive Relief on an Ex Parte Basis An application for an interim injunction does not nec- essarily have to be served on the opposing party so that the order can be issued ex parte without a hear- ing. Such ex parte decisions are common practice. A potential opponent can ensure that its arguments are heard from the outset by filing a protective brief beforehand. The court will then consider the opposing party’s arguments set out in the protective brief when issuing the injunctive order. If the court deems it necessary before issuing an injunctive order, or upon protest by the opposing party after the order was issued, it will schedule a hearing. After this hearing, the order may be set aside or con- firmed by a judgment. 6.4 Liability for Damages for the Applicant The applicant seeking an interim injunction is exposed to the risk of comprehensive strict liability. Such lia- bility is triggered when an interim order executed by the applicant is thereafter set aside upon protest or appeal by the opposing party. The applicant will be held liable on a no-fault basis for any damage suffered by the opponent in connection with the execution of the order. Such liability will not be recognised auto- matically but only upon request of the opposing party in regular court proceedings. In general, the applicant is not obliged to provide security for such possible claim for damages by the opposing party. The opponent may, however, arrange for an interim injunction of its own regarding such costs. 6.5 Respondent’s Worldwide Assets and Injunctive Relief German courts may issue interim orders and judg- ments concerning worldwide assets, at least if the court of the main action has international jurisdiction – eg, through international treaties. If the German courts do not have jurisdiction to hear the main action because the main action falls within the jurisdiction of a foreign court, the German courts nevertheless have jurisdiction to issue injunctive
tions 16 to 20 of the Trade Secrets Protection Act ( Geschäftsgeheimnisschutzgesetz ) applies accord- ingly. As in trade secret litigation, all parties to the pro- ceedings are then obliged, from the time the action is pending, to treat as confidential any information clas- sified as requiring confidentiality, and not to use or disclose it outside the court proceedings unless they had also acquired knowledge of it outside the pro- ceedings. This obligation generally continues to apply even after the proceedings. In the event of a breach, the court may impose a fine of up to EUR100,000 or a prison sentence of up to six months and enforce it immediately. In addition, the court may, upon request, restrict access to procedural documents and infor- mation to a certain number of reliable persons and otherwise exclude the public, particularly during the oral proceedings. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief A party may claim for injunctive relief if the sub- stantive law grants the injunctive relief. Due to their urgency, injunctive relief claims are often asserted in interim proceedings such as preliminary injunctions and attachments. Both remedies serve to secure a possible future judgment or the temporary regulation of a legal relationship before a final judgment can be issued. The type of interim injunction available depends on the nature of the claim. An attachment secures mon- etary claims, while preliminary injunctions can secure all other types of claims. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Interim proceedings are very quick. If required, an interim injunction can be obtained within a few hours. The content of an application for an interim injunction is subject to lower standards than the content of a statement of claim. In particular, the applicant does not have to provide complete evidence. The presenta- tion of prima facie evidence is sufficient.
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