Decision of the Federal Constitutional Court of March 12, 2024, Case No. 1 BvR 605/24
Procedural equality of arms is a crucial cornerstone in court proceedings. In its decision of March 12, 2024, the Federal Constitutional Court made it clear that equality of arms must also be maintained when issuing a preliminary injunction (Case No.: 1 BvR 605/24).
Procedural equality of arms is a high value in court proceedings to reach a fair judgment. Procedural equality of arms aims to ensure the equality of the parties in court. This means that the parties are entitled to a fair hearing in court, as explained by the law firm MTR Legal Rechtsanwälte, which has extensive experience in litigation and procedural law.
However, sometimes courts need to make decisions quickly, and for the plaintiff, it can be of immense importance to obtain a court decision swiftly to protect their rights. In such cases, the possibility of expedited proceedings exists. The defendant then does not have much time to respond to a lawsuit. This can lead to the principle of equality of arms not being sufficiently considered in expedited proceedings.
Equality of Arms Must Be Maintained in Preliminary Injunctions
In its recent decision, the Federal Constitutional Court (BVerfG) made it clear that the principle of equality of arms must also be maintained when issuing a preliminary injunction.
The case concerned the reporting of a major newspaper on the accidental death of a businessman. In the photos accompanying the report, only the eye area of the deceased was obscured. The widow objected to this reporting and obtained a preliminary injunction from the Hamburg Regional Court. Although the court had given the newspaper publisher the opportunity to comment, it only allowed three days to respond to a brief of more than 60 pages. The newspaper publisher also presented its view in detail. Moreover, due to the length, it was not a case in which an oral hearing could be waived according to § 937(2) ZPO.
Nevertheless, the Hamburg Regional Court issued the decision to prohibit the publication of the images via a preliminary injunction without an oral hearing.
Publisher Files Constitutional Complaint
The publisher filed a constitutional complaint against the decision to partially prohibit the reporting without an oral hearing and requested the suspension of the effectiveness of the Hamburg Regional Court’s decision. The publisher argued that its right to procedural equality of arms had been violated by the Hamburg Regional Court.
The BVerfG granted the publisher’s request for a preliminary injunction against the Hamburg Regional Court’s decision. The constitutional complaint was justified regarding the alleged violation of procedural equality of arms in the preliminary injunction proceedings.
Press law is generally characterized by the need for a swift response to potentially unlawful reporting. This is even more true given the possibility of rapid dissemination of the report on the Internet, the BVerfG acknowledged. However, the assumption of increased urgency does not make the opponent’s hearing dispensable. Waiving an oral hearing under § 937(2) ZPO is only justified to the extent that the urgency requires it, according to the BVerfG.
Waiver of Oral Hearing Must Be Justified
The constitutional judges further stated that preliminary injunctions against press publications often have to be decided initially without an oral hearing due to urgency. However, waiving an oral hearing does not entitle the court to exclude the other party from the proceedings until a decision is made on the application for a preliminary injunction. Rather, a preliminary injunction can only be granted if the opposing party has had the opportunity to respond to the allegations made, according to the BVerfG.
The BVerfG noted that the Hamburg Regional Court’s decision did not explain why it had waived an oral hearing.
From the Federal Constitutional Court’s decision, it is clear that courts must justify waiving an oral hearing. General phrases such as “particular urgency” are not sufficient.
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