Subject
As a rule, the service of interim injunctions must be effected within one month of the applicant's (representative's) receipt of the interim injunction. The formalities to be observed are complex. In our many years of practice, we have been able to achieve the annulment of a large number of preliminary injunctions due to formal delivery errors.
This year, there was a particularly tricky case in this regard.
Most preliminary injunctions are issued as a decision without oral proceedings and without the participation of the defendant, and the decision is only handed over to the applicant by the court. The applicant must then arrange for the decision to be served on the defendant within the one-month time limit.
However, if a preliminary injunction is only issued by way of a judgment after an oral hearing, the court will serve the judgment on the defendant. From the point of view of the applicant, it is then not very clear why the judgment has to be additionally served on the defendant. However, the law takes a different view and requires this service in order to document the so-called will to execute.
The question of whether a certified copy of an official copy or a certified simple copy must be served is now being debated. A court clerk has only checked the content of an official copy against the original judgment.
Recent judgment of the Higher Regional Court of Düsseldorf in the light of case law
In its judgment of February 6, 2013 – 15 U 2848/12, the Higher Regional Court of Munich had taken the view that the service of a certified copy of the judgment by party-internal delivery is sufficient for the effective enforcement of a preliminary injunction issued by judgment.
The Higher Regional Court of Düsseldorf, in a more recent judgment of April 21, 2015 – I-20 U 181/14, which we obtained for our party, and in doing so, addressed the judgment of the Higher Regional Court of Munich, disagrees with this. According to the Higher Regional Court of Düsseldorf, at least for the legal situation up to July 1, 2014, the service of a preliminary injunction in party operations must be carried out by serving a copy or certified copy of the copy. Section 928 ZPO refers to the enforcement provisions, which, in the interest of legal clarity, are characterized by formal constraints. The principle of formalization also makes sense in the case of section 929 (2) ZPO in order to provide the parties with legal certainty and clarity.
At the same time, the Higher Regional Court of Düsseldorf expresses the view that this also applies if a provisional injunction issued and properly executed in the court of first instance is changed in terms of content in the court of second instance. In this case, renewed enforcement is required. Even if the will to enforce has been properly expressed in the first instance by serving a copy, it is not sufficient to enforce the Higher Regional Court judgment by serving a simple copy.
Recent judgment of the Higher Regional Court of Düsseldorf in light of the amendment of the Code of Civil Procedure as of July 1, 2014
Although the Higher Regional Court of Düsseldorf repeatedly emphasizes the date 1 July 2014 in its decision, thereby seemingly indicating that the legal situation has changed since then, this is not convincing for the issues at hand.
Since July 1, 2014, a simple copy is sufficient for the court to deliver a judgment (see Section 317 (2) sentence 1 of the German Code of Civil Procedure (ZPO)). However, the enforcement provisions of §§ 724 (1), 750 ZPO, on which the Higher Regional Court of Düsseldorf relies with reference to § 929 (2) ZPO, have not changed. Sections 724 (1) and 750 (1) sentence 2 ZPO continue to require the service of a copy in order to initiate enforcement. Since the Higher Regional Court of Düsseldorf, with regard to the enforcement period under section 929 ( 2 ZPO, the view is decisively represented that § 929 para. 2 ZPO has its background in the law of compulsory enforcement, in order to comply with the enforcement period, enforcement must continue to be "initiated" in the future. In the case of cease-and-desist orders, this period continues to begin with the service of a copy in accordance with §§ 724 (1), 750 (1) sentence 2 ZPO. The standard of § 317, Subsection 2, Sentence 1 ZPO, which was amended on July 1, 2014, is not a standard of the relevant law of enforcement.
Practical tip
In preliminary injunction proceedings, a request should be made to the court in all instances for the issuance of official copies in accordance with § 317 (2) sentence 1 ZPO. Only the official copies should be used for service by party organization.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.