European Disputes
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Background

German civil procedural law and, in particular, its application by the courts, have up until now offered sufficient flexibility to enable applicants to obtain preliminary injunctions without conducting an oral hearing – a special characteristic that is not found in many other jurisdictions. This is one of the reasons why, in the past, parties have readily agreed to use the jurisdiction of the German courts where they wanted to keep open the possibility of obtaining a preliminary injunction as quickly as possible.

At the same time, the right to be heard, which is a cornerstone of German procedural law and a right guaranteed by the rule of law, is an important rule of procedural due process which also applies in fast-track injunctive relief proceedings. Enshrined in Art. 103 para. 1 of the German Constitution and an integral part of all proceedings in all courts, the right to be heard is afforded to everyone. Even in urgent interim proceedings, there is, in principle, a requirement to conduct an oral hearing before a decision can be made, as provided for in Sec. 937 para. 2 of German Code of Civil Procedure.

In the past, various courts were generous when granting exceptions to this general rule; issuing summary decisions in urgent cases without conducting an oral hearing and without providing specific explanations for doing so. Having repeatedly criticized this approach in the past, the German Constitutional Court now intends to change judicial practice with its decision of March 12, 2024 (case no.: 1 BvR 605/24).

The Guiding Principles of the German Constitutional Court

In the case decided by the German Constitutional Court, the complainant – a major German daily newspaper – filed a constitutional complaint seeking to set aside a previously issued preliminary injunction preventing the complainant from using certain photographs to illustrate two news articles. The case related to certain reporting on the complainant’s website about the accidental death of a prominent person. The published articles had been illustrated with photographs showing, among other things, the deceased – unpixelated except for the eye area.

Although the complainant had been given the opportunity to make written submissions, the court refrained from conducting an oral hearing. However, an oral hearing was especially required here because the respondent (the original applicant for the preliminary injunction), following extrajudicial correspondence with the complainant, had waited a relatively long time before it filed the motion for the preliminary injunction.

The German Constitutional Court held that the constitutional complaint lodged by the complainant had merit, arguing as follows:

• The complainant’s quasi-constitutional right to procedural equality was violated, as their procedural rights were deliberately and systematically disregarded in the preliminary injunction procedure at issue.
• Although the right to be heard does not automatically mean that an oral hearing must be conducted, it needs to be given sufficient consideration and an oral hearing can only be dispensed with in exceptional cases.
• Where a court intends to deviate from the general rule of conducting an oral hearing on the grounds of urgency, it must, in any case, provide sufficient reasoning for making such an exception. Unparticularised or generic reasons alone are not sufficient to satisfy this requirement.

Conclusion and Impact on Practice

The German Constitutional Court’s decision provides a reminder for courts deciding on preliminary injunctions not to disregard the statutory rule of conducting an oral hearing, which also applies in summary proceedings. Nevertheless, lawyers still have sufficient argumentative scope to request that the courts grant a preliminary injunction promptly, and without an oral hearing, depending on the circumstances.

By way of example, shortly after the decision of the German Constitutional Court, the German Weil Team was able to successfully obtain a preliminary injunction without an oral hearing for a client who wanted to secure their property rights. However, the application for a preliminary injunction without an oral hearing needs to take into account the increased requirements as to the lawyer’s and also the court’s explanations for why an oral hearing can be dispensed with. It remains to be seen to what extent the courts’ practice will be influenced by the decision of the German Constitutional Court in the long term.