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The preliminary injunction in competition law

In competition law, summary proceedings in the form of an interim injunction are used to quickly enforce claims for injunctive relief.

Claims for injunctive relief under competition law are generally directed against a competitor’s current and ongoing behavior. If a competitor wishes to enforce its claim in court after an unsuccessful out-of-court warning, the method of choice is usually to initiate preliminary injunction proceedings.

Temporary injunction requires urgency of the matter

But be careful: the enforcement of claims in summary proceedings is only possible if the matter is urgent in addition to the actual claim for injunctive relief under competition law. Urgency is generally presumed in competition law. As a result, it will generally not be necessary to make any special statements in this regard. In individual cases, however, this urgency can also be refuted.

This is where the timing of events comes into play. A large number of courts assume that the presumption of urgency is rebutted if the competitor allows more than one month to pass since becoming aware of the competitor’s competition law infringements before asserting its claims in preliminary injunction proceedings.

Credibility is regularly sufficient

The preliminary injunction procedure allows the applicant in competition law to benefit from reduced requirements for convincing the court of relevant facts. For example, the applicant only has to provide prima facie evidence and not – as in ordinary proceedings – prove these to the full satisfaction of the court. As a rule, credibility is established by submitting an affidavit as part of the application for a preliminary injunction.

Decision in preliminary injunction proceedings without an oral hearing

Another advantage of preliminary injunction proceedings is the speed with which the courts usually decide on the claim. The decision is regularly made without an oral hearing and without (re)hearing the opponent. In practice, such a speedy decision by the court often contributes to the final settlement of the case.

However, due to the fundamental right to procedural equality of arms, the opposing party must at least have a chance to comment on the matter in the same way as the applicant (BVerfG, decisions of 30.09.2018, 1 BvR 1783/17 and 1 BvR 2421/17). This may have happened in the context of the prior warning. In cases where there was no prior warning, the court will therefore usually allow the defendant to submit a written statement. The defendant may even have filed such a statement with the court as a precautionary measure: The so-called protective letter.

Objection and appeal against preliminary injunction in competition law

If the opposing party wishes to defend themselves against an interim injunction that burdens them, they have various options available to them. For example, they can lodge an objection against the court order. This will force an oral hearing in the matter, after which the court will rule on the matter in a judgment. The party who is then charged can then appeal against this.

Alternatively, the opposing party can request the claimant to enforce their alleged claim by way of an action on the merits. This can force the claimant to conduct the ordinary proceedings and convince the court of the relevant facts using the evidence available there. This can make sense in individual cases, as the claimant is not eligible as a witness in the main proceedings, for example, whereas in the preliminary injunction proceedings he could still affirm facts in lieu of an oath to establish credibility.

Final declaration after preliminary injunction in competition law

Once a preliminary injunction has been issued, the competition law matter is usually concluded. This is done by submitting a so-called final declaration, with which the opposing party accepts the regulation of the preliminary injunction as permanent. A separate settlement is then often reached regarding the competitor’s claims for reimbursement of costs under competition law.

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