Abusive application for injunctive relief in competition law

It is an abuse of rights and therefore inadmissible if a creditor offers a debtor to waive the initiation of proceedings in return for payment of a sum of money before the initiation of regulatory proceedings.

The later plaintiff had obtained a temporary injunction against the debtor and later defendant due to an infringement of competition law. However, when the debtor violated the injunction and the creditor learned of this, he initially did not file an application to initiate administrative remedy 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 the application for an order in return for payment of a sum of money. According to the creditor’s express statement, the amount offered was significantly lower than the amount that a court would set. When the debtor did not accept this offer, the creditor applied to the court for an administrative order.

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 decision 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. Rather, it was to generate its own income, i.e. to enrich itself.

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 illustrates once again that legal protection can be denied in the pursuit of legally unacceptable purposes.

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