GERMANY Law and Practice Contributed by: Tanja Pfitzner, Fabian von Schlabrendorff and Niklas-Arne Hecht, Pfitzner Legal
6.4 Liability for Damages for the Applicant
6.6 Third Parties and Injunctive Relief An applicant may apply for an injunctive order against any party. It is not necessary that the opponent is a party to the main action. However, an injunctive order is only granted if the applicant has its own claim against the third party. The lat- ter is the case – eg, if a third party can be held liable vis-à-vis a party for the negative outcome of the main action. 6.7 Consequences of a Respondent’s Non-compliance A party that does not comply with the provisions of an injunction faces the same consequences as a party that does not comply with a regu- lar judgment. In addition, if a party violates an injunctive order, the other party may request a fine of up to EUR250,000 or, in rare cases, arrest. In German civil proceedings usually an oral hear- ing takes place. A purely written procedure is the exception. In the oral hearing, the presiding judge will open the proceedings with a summary of the view of the court regarding the factual and legal issues of the case, usually followed by a discussion with the parties and their attorneys. Since the oral hearing is prepared to a large extent by the written pleadings of the parties, generally the discussion will focus on the points raised by the court. The essentials of the hearing are recorded by the presiding judge in the pres- ence of the parties. 7. Trials and Hearings 7.1 Trial Proceedings The court and the parties are under an obligation to conduct the proceedings as expediently as possible and to limit the number of hearings to a minimum. Therefore, generally only one hearing
The applicant seeking an interim injunction is exposed to the risk of comprehensive strict lia- bility. Such liability is triggered when an interim order executed by the applicant is thereafter set aside upon protest or appeal by the oppos- ing 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 pro- vide security for such possible claim for dam- ages 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 judgments 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 orders if the assets covered by the order lie, within the German jurisdiction. In general, injunctive orders and judgments of German courts can be enforced abroad under international conventions. However, conventions such as the Recast Brussels Regulation or the Lugano Convention 2007 often do not allow ex parte orders to be enforced or at least impose an additional burden on the applicant if the order was issued ex parte.
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