BGH on time limits and costs and closing letters for preliminary injunctions.

Introduction

The landscape of German law is constantly in flux, characterized by ongoing adjustments and clarifications. A central role in this dynamic development is played by the case law of the Federal Court of Justice (BGH), which, as the highest court in the Federal Republic of Germany, plays a key role in creating legal certainty in complex legal issues. In particular, its recent decision I ZR 61/22 provided essential clarifications in the area of preliminary injunctions, which are of great importance for legal practice.

The BGH’s decision does not create any sensations or dramatic upheavals in the law of preliminary injunctions. Rather, it largely confirms existing law and established case law, which was to be expected. But it also provides us with equally valuable clarifications and specifications that contribute to the further consolidation and standardization of case law in this area. In particular, the comments on existing deadlines and procedures are of particular relevance, as they further flesh out and concretize the legal framework.

In this context, it becomes clear that it is crucial for legal actors to correctly comply with the given deadlines and procedures in order to avoid unnecessary costs and disputes. This decision by the BGH once again underscores the need for careful and knowledgeable handling of the rules set forth by the court.

In this blog post, I will detail the key points and findings from this BGH decision and show what concrete implications it has for legal practice. A detailed analysis of this decision will not only deepen the understanding of current case law, but also raise awareness of the importance of proper compliance with deadlines and procedures. Because that’s essential to effectively litigate and avoid unnecessary costs.

The details of the case

The core of the case revolved around the issue of liability and the related obligations regarding knowledge of an objection. The plaintiff claimed that it sent the closing letter without being aware of the defendant’s objection. The lower courts had taken different views on this, which left it to the BGH to clarify the question of who bears the burden of proof for the fulfillment of an obligation to provide information in such situations.

The question of the burden of proof in such cases is of central importance. It decides which party bears the risk in the event that the facts of the case cannot be clearly clarified. In the present case, this means in concrete terms: must the plaintiff prove that it had no knowledge of the defendant’s objection, or is it up to the defendant to prove that the plaintiff knew or should have known of the objection?

In this context, it is important to emphasize that the court takes very seriously the parties’ duty to clarify the relevant circumstances of the case. It is not enough to merely make assertions. Rather, the parties must be able to substantiate and, if necessary, prove their statements.

This case also sheds light on the need for careful and timely communication between parties, particularly in the context of preliminary injunctions. It shows that every step in the process, from initiation to completion, is of the utmost importance and must be carried out carefully and conscientiously. This is the only way to avoid unnecessary costs and disputes.

Dealing with deadlines

The ruling of the BGH also emphasized that the debtor of an injunction has a duty of disclosure to the creditor. After the expiration of the waiting period of usually two weeks, which the creditor must observe before sending a final letter, the debtor must inform the creditor of the decision to file an opposition to the preliminary injunction.

If the debtor fails to provide this information and if this information, which was omitted in breach of duty, is the cause of the costs of an objectively no longer necessary closing letter from the creditor, this may give rise to a claim for damages by the creditor pursuant to Section 280 para. 1, § 241 para. 2 BGB trigger.

The calculation of costs

This decision of the BGH also underlines the importance of the correct calculation of costs in connection with the preparation and sending of a closing letter. According to the ruling, these costs are generally to be assessed according to the value of the object. In its decision, the BGH confirmed that the closing letter normally triggers a 1.3-fold business fee pursuant to No. 2300 VV RVG. However, depending on the circumstances of the individual case, a letter of a simple nature pursuant to No. 2302 VV RVG could also be considered.

Conclusion

In sum, the decision of the Federal Court of Justice in case I ZR 61/22 provides important clarifications and confirmations regarding existing procedures and deadlines for preliminary injunctions. It sheds light on how to accurately calculate closing letter costs and emphasizes the importance of meeting deadlines. Above all, however, it strengthens the debtor’s obligations with regard to the clarification of an objection.

Even if the decision offers little that is surprising in its core statements, the precise clarifications are of great importance for practice. They underscore the importance of acting carefully and prudently when dealing with restraining orders and the obligations that come with them.

The ruling serves as a reminder to all those involved in restraining orders to pay close attention to the applicable deadlines and procedures in order to avoid unnecessary costs. Because it is clear: failure to comply with these obligations can lead to significant financial consequences.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.