Both parties’ right to be heard in court is a central aspect of equal arms. It has been decades of practice that defendants in injunction proceedings are only heard in the oral hearing if they object, i.e. when the preliminary injunction has already issued – and had to be observed. The German Constitutional Court already partly put paid to this practice in September 2018 (1 BvR 1783/17). The defendant had to be heard before a decision was made. Suitable means for this are, for example, a cease-and-desist letter sent out of court or an oral hearing being conducted before judgement is entered into.
In a very recent decision from June 2020 the German Constitutional Court developed a second, even stronger bolt (1 BvR 1246/20). If a cease and desist letter was sent but the court order is then sought on extended or different legal aspects, the defendant must be heard again before a decision is issued in favour of the plaintiff.
The possibility of dispensing with an oral hearing in urgent cases under § 937.2 of the Code of Civil Procedure does not allow the defendant to be kept out of the proceedings until the order has been issued. Even in urgent cases it is possible for the court to pick up the phone or even communicate with the defendant by e-mail.
Both parties must be involved in the proceedings on an equal footing. Secret proceedings are not acceptable. Subsequent procedural rights only after the injunction issued do not cure violations of procedural rights beforehand.
The German Constitutional Court grants not only the bolt, but also, so to speak, the lock for the disadvantaged defendant to fence in court and plaintiff: the direct constitutional complaint against the order for the preliminary injunction, when it is contrary to constitutional rights! And that without the need to obtain in advance, for example, the suspension of the enforcement or a declaratory judgment at the Regional Court.
It is advisable to hear defendants comprehensively before court proceedings or to have very good reasons for not doing so. The possibilities of scoring “surprise hits” have been further significantly restricted.