The enforcement of claims in competition law usually begins with the sending of a warning letter. If the affected party becomes aware of possible claims against them as a result of this or other facts, they can obtain a legal hearing by filing a protective letter.

Safeguarding the right to be heard by filing a protective brief in competition law

If the warned party does not respond to the out-of-court warning or if the claim for injunctive relief is not fulfilled, the claimant (usually a competitor) can enforce the claim by way of summary proceedings. In practice, if the facts of the case are conclusively presented, a court order is issued, which the affected party must initially accept. As long as the court application does not go beyond the facts on which the warning is based, the court will consider the legal right to be heard of the person affected by the warning to have been respected.

If you want to prevent the court from proceeding in this way, you can preventively – i.e. in the event that a preliminary injunction is applied for – communicate your own version of the facts and your own legal assessment. In competition law, this is regularly done by filing a protective brief. Put simply, this pretends that you are already involved in the court proceedings. In addition to describing the facts of the case from your own perspective, the content of the protective letter also includes the associated means of establishing credibility (e.g. an affidavit). In competition law, the protective letter usually also contains legal explanations as to why a potential application for an interim injunction should not be granted.

Electronic filing in the nationwide register of protective documents

The protective writ is filed electronically in the nationwide register of protective writs (administered by the Hesse State Administration of Justice). Protective writs deposited there are deemed to have been deposited with all ordinary courts in Germany and are deleted after six months. The courts are obliged to check whether a protective letter has been filed before issuing an interim injunction. If this is the case, the content must be included in the examination. This can prevent a preliminary injunction from being issued.

Disadvantages of filing a protective brief in competition law

Whether it makes sense to file a protective letter in individual cases must be carefully considered. It is true that the right to be heard can be safeguarded in this way. Your own statement of facts and legal opinion can also be presented to the court in the context of a filed protective brief.

However, this also regularly facilitates the necessary service of a possible court order (the authorized lawyer is regularly named in the protective letter). In addition, fees are incurred for the professional formulation and filing, which – in the event that no interim injunction is applied for – are also not reimbursed. It also makes no sense to file a protective letter if the alleged claim is clear. In this case, you should rather consider submitting a modified declaration to cease and desist.