GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
• professional secrecy – eg, attorney-client, tax consultant, doctor privilege; • civil servant privilege; • family privilege; • subject matter privilege – eg, trade secrets; • the information is not available; or • the disclosure represents an unreasonable burden for the party. As of 1 January 2025, business secrets will be even more comprehensively protected in Ger- man civil proceedings. Upon request, courts will be able to classify business secrets as confiden- tial, which means that Sections 16 to 20 of the Trade Secrets Protection Act ( Geschäftsgeheim- nisschutzgesetz ) shall apply accordingly. As in trade secret litigation, all parties to the proceed- ings are then obliged, from the time the action is pending, to treat as confidential any information classified as requiring confidentiality, and not to use or disclose it outside the court proceedings unless they had also acquired knowledge of it outside the proceedings. This obligation general- ly 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 informa- tion 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 prelimi- nary injunctions and attachments. Both reme-
dies 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 monetary 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 par- ticular, the applicant does not have to provide complete evidence. The presentation of prima facie, evidence is sufficient. 6.3 Availability of Injunctive Relief on an Ex Parte Basis An application for an interim injunction does not necessarily have to be served on the opposing party so that the order can be issued ex parte without a hearing. 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 confirmed by a judgment.
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