News

Principle of equality of arms in ex-parte preliminary injunctions and the Enforcement Directive: Germany.

13 April 2021

Does the German Federal Constitutional Court's case law on equality of arms in preliminary injunction proceedings also apply in the field of the Enforcement Directive? What are the requirements of European law in this regard? Morten Petersenn and Nils Peters answer these questions in the latest issue of GRUR, a leading German legal magazine.

Key takeaways from the publication are:

Enforcement Directive

The Enforcement Directive covers the enforcement of the whole range of IP rights and related rights.

German case law in principle in line with the Enforcement Directive

The latest case law of the German Federal Constitutional Court is in line with the Enforcement Directive when interpreted in the sense that obtaining a preliminary injunction without a hearing for the defendant is still possible under certain circumstances.

European fundamental rights

The balancing of European fundamental rights supports the aforementioned situation. Here, the right to be heard and the right to an effective legal remedy must be weighed against each other. This means that, in general, it is reasonable to warn the other party beforehand.

The full publication on beck-online (German language) can be found here and our related publications are linked under related materials. If you require further information, please get in touch with Morten Petersenn.

Authored by Morten Petersenn and Nils Peters