The later plaintiff had obtained an interim injunction against the debtor and later defendant due to an infringement of competition law. However, when the debtor violated the interim injunction and the creditor learned of this, he did not initially file an application to initiate summary proceedings.

Creditor offers to waive the application for an administrative remedy in return for a monetary payment

Instead, he wrote to the debtor out of court. He offered to waive an application for an order in return for payment of a sum of money. According to the creditor’s explicit statement, the amount offered was significantly lower than the amount that would be set by a court. When the debtor did not accept this offer, the creditor applied to the court for an injunction.

Regulatory measures should prevent violations instead of enriching those affected

The Berlin Regional Court had refused to impose an order against the debtor in the proceedings. The creditor lodged an appeal against this with the Berlin Court of Appeal. In its ruling dated December 17, 2020 (case no. 5 W 1038/20), the Berlin Court of Appeal confirmed the decision of the Regional Court.

The order is intended to permanently prevent further breaches of the conditions imposed by the court. However, the court was not convinced that this was the creditor’s intention. In the opinion of the Berlin judges, the out-of-court offer to pay a significantly lower amount than would ultimately have been ordered in court proceedings indicates that the creditor was not primarily concerned with preventing further infringements. It’s about generating your own income, i.e. enrichment.

Berlin Court of Appeal: Petition for an administrative remedy is an abuse of rights

The court therefore found that the application for an administrative order did not serve the purpose intended by the law. It was therefore an abuse of law and inadmissible. The decision thus makes it clear once again that legal protection can be denied if legally unacceptable purposes are pursued.