Definition and Nature of the Preliminary Injunction
Die preliminary injunction is a particularly structured protective instrument of German procedural law. It is a court decision that regulates a provisional state regarding a disputed legal relationship in order to prevent significant disadvantages or to secure existing conditions. Thus, the preliminary injunction serves for the quick and effective enforcement of interim measures until a final resolution of a legal dispute in the main proceedings.
Legal Basis for the Preliminary Injunction
Code of Civil Procedure (ZPO)
The preliminary injunction is anchored in several areas of law. In civil proceedings, it is primarily regulated in Sections 935 et seq. of the Code of Civil Procedure (ZPO). Here, the law distinguishes between a protective injunction (§ 935 ZPO) and a regulatory injunction (§ 940 ZPO).
Code of Administrative Court Procedure (VwGO)
In administrative court proceedings, the regulations are found in § 123 VwGO. This provision enables protection claims against administrative acts or regulations of legal relations with authorities.
Social Court Act (SGG) and Fiscal Court Order (FGO)
In parallel, the Social Court Act (§ 86b SGG) and the Fiscal Court Order (§ 114 FGO) contain adapted provisions pertaining to the preliminary injunction in their respective procedural rules.
Requirements for the Issuance of a Preliminary Injunction
Reason for Injunction
Der Reason for Injunction exists if, without the injunction, there is a risk that the enforcement of the claim or right would be frustrated or significantly impeded. The applicant must therefore convincingly demonstrate to the court that there is an “urgent need” for a prompt judicial decision.
Claim for Injunction
Ein Claim for Injunction requires the overriding probability that the substantive claim asserted in the main proceedings exists. Probable demonstration is sufficient, not full legal proof; this can be provided by statutory declarations, documents, or other evidence.
Subsidiarity of the Preliminary Injunction
The court will examine whether milder means are sufficient to secure the asserted need for protection of the applicant. The preliminary injunction is subsidiary and not permissible if the purpose could also be achieved by an attachment (Arrest), protective enforcement, or other prescribed measures.
Types of Preliminary Injunctions
Protective Injunction
The protective injunction under § 935 ZPO serves to provisionally maintain the existence of a claim or object, thereby preventing its frustration (protective purpose).
Regulatory Injunction
According to § 940 ZPO, the court may establish a provisional state by means of a regulatory injunction if this is necessary to avert significant disadvantages or to prevent impending violence (regulatory purpose).
Special Forms
Depending on the legal field, a multitude of special provisions exist for certain circumstances, for example in family law (§ 49 FamFG), labor law, or public law (e.g., §§ 32, 123 VwGO).
Procedure and Jurisdiction
Filing the Application
The preliminary injunction is issued upon application. The written application must set out the claim and reason for the injunction in detail and provide credible evidence.
Decision and Procedure
As a rule, the court decides in summary proceedings, often without oral hearing (written procedure), but may schedule an oral hearing. The decision is issued by way of a court order and must be served upon the respondent.
Urgency and Immediate Effectiveness
The preliminary injunction is characterized by particular urgency and, in exceptional cases, may be issued even without a prior hearing of the opponent (“without oral hearing,” § 937 para. 2 ZPO). It is immediately enforceable, but usually limited in duration and remains effective until a decision is made in the main proceedings or until it is lifted by the court.
Effects and Enforcement of the Preliminary Injunction
Binding Effect and Provisional Nature
The effect of the preliminary injunction is provisional. It obliges the parties and, if applicable, third parties to comply with the imposed measures but does not alter rights in the main proceedings. The binding effect ends with the decision in the main proceedings or upon explicit revocation.
Compulsory Enforcement
The injunction constitutes an enforceable title (§ 929 ZPO). Its enforcement is carried out through compulsory enforcement according to the provisions of the ZPO or the respective specialized court orders.
Legal Remedies
Legal Recourse
Appeal against the preliminary injunction is usually possible by immediate complaint (§ 567 et seq. ZPO), or in administrative proceedings by complaint or other legal remedies (e.g., an application for a preliminary suspension of enforcement). The respective deadlines and requirements are legally regulated.
Application for Revocation or Modification
The preliminary injunction can be modified or lifted by the court upon application by an affected party if the actual or legal circumstances have changed materially.
Abuse and Liability
Protection Against Abuse
The court may make the injunction contingent upon the applicant providing security (§ 921, § 936 ZPO), in order to compensate for possible damages to the opponent if the injunction later proves to be unjustified.
Obligation to Pay Damages
If the preliminary injunction subsequently turns out to be unjustified, the respondent may have a claim for damages against the applicant (§ 945 ZPO).
Examples of Application
Preliminary injunctions are widely used in civil, administrative, social, and fiscal procedures, for example, to secure maintenance claims, for provisional protection against governmental measures, to secure employment relationships, or to enforce injunctive relief when there is a threat of violation of intangible rights such as name, trademark, or copyright.
Distinction from Other Protective Instruments
The preliminary injunction is to be distinguished from attachment (Arrest), which is aimed solely at securing monetary claims, and from provisional enforceability in a judgment, which is based on the decision in the main matter. In contrast, the preliminary injunction is broader and enables individual provisional orders to protect a wide variety of legal positions.
Summary:
The preliminary injunction is a central instrument of interim legal protection in numerous forms of proceedings under German procedural law. It enables effective protection of conflicting interests and compensates for the slow pace of the main proceedings. The injunction is subject to strict requirements and scrutiny to prevent abuse and to create legal clarity. Knowledge of the relevant regulations and practical procedures is fundamental for the correct handling of the instrument of the preliminary injunction.
Frequently Asked Questions
How does the procedure for issuing a preliminary injunction work?
The procedure for issuing a preliminary injunction is generally characterized by urgency. The application is usually filed in writing with the competent court and must contain specific details regarding the requested interim legal protection and a comprehensive justification. The applicant must convincingly demonstrate that there is a claim for an injunction (the substantive claim) and grounds for an injunction (the urgency or risk of irreparable harm). Proof can be provided by statutory declarations, documents, or other evidence. The court often decides without oral hearing (“by way of order”), but may, in individual cases, hold a hearing of the parties or conduct further investigations. If the matter is particularly urgent, the court may, upon application, also decide without prior hearing of the opposite party (ex parte). The decision on the preliminary injunction is usually made by court order and is immediately enforceable. An immediate complaint may be filed against this order, which is then decided by the next higher court.
By what criteria does the court examine a preliminary injunction?
When ruling on a preliminary injunction, the court specifically examines the existence of the so-called claim for an injunction and grounds for an injunction. The claim for an injunction refers to the substantive claim that is to be secured by the injunction—for example, a claim for injunctive relief, surrender, or for suspensive effect. The applicant must present sufficient factual indications establishing the claim as predominantly probable. Grounds for an injunction exist if, without an immediate court order, significant disadvantages, threatened loss of rights, or frustration of the sought legal protection are to be feared. The court also assesses the proportionality of the requested measure and weighs the protective interests of both parties against each other, particularly with regard to possible consequences for the respondent if the preliminary injunction later proves to be unfounded.
What are the consequences if the right to be heard is violated in issuing a preliminary injunction?
If a preliminary injunction is issued without granting the respondent the right to be heard, this certainly constitutes an interference with procedural rights, but is generally permissible in urgent cases. However, the court must subsequently—at the latest following issuance of the injunction—give the other party the opportunity to comment, and may then retrospectively revoke or amend the injunction if appropriate. A complete denial of the right to be heard would violate Art. 103(1) GG (Basic Law) and may be objected to by immediate complaint. In some cases, the law expressly provides for a hearing in advance, for example in custody matters; in other cases, this requirement can be dispensed with when exceptional urgency exists and a hearing would thwart the purpose of the injunction. The precise procedure is determined by the individual case and the specific legal basis.
How long is a preliminary injunction valid and how can it be revoked?
A preliminary injunction is generally limited to the period until a final decision is reached in the main proceedings. It is intended from the outset as a provisional measure, i.e. it remains in effect until a decision or settlement in the main matter, but at any rate as long as the grounds for the injunction persist. The injunction can be revoked or amended by the court ex officio or upon application as soon as the requirements for its issuance cease to exist, new facts arise, or the respondent has adequately stated his position in the main proceedings. Furthermore, the injunction can already be limited in time in the order itself. Objections or defenses against the injunction can be raised by means of legal remedies (in particular immediate complaint) or by initiating opposition and revocation proceedings before the issuing court.
What costs are incurred in connection with a preliminary injunction?
The costs of proceedings for the issuance of a preliminary injunction are based on the value in dispute, which is determined by the court. Generally, court fees are incurred and—if represented by a lawyer—legal fees. The procedural fees in interim legal protection proceedings are set lower than in main proceedings, but additional costs may arise due to urgency and possible multiple applications. The losing party is usually required to bear the costs of the interim proceedings as well as its own legal costs. If the main proceedings are not continued, the court will decide after hearing the parties who is to bear the costs, usually based on the prospects of success of the application.
In which areas of law is the preliminary injunction applied?
A preliminary injunction is applied in many different areas of law. It is especially important in civil procedure (e.g., injunctions, securing claims), family law (e.g., custody, visitation, protection against violence), administrative law (e.g., safeguarding residence permits or social benefits), and labor law (e.g., protection against dismissal or employment protection). The prerequisite is always that an interim order is urgently necessary or that securing a claim is required until a decision is made in the main proceedings. The legal basis varies according to the rules of procedure, for example §§ 935 et seq. ZPO in civil law, § 123 VwGO in administrative law, or § 49 FamFG in family law. What these legal fields have in common is that interim legal protection does not provide a final decision but ensures an interim arrangement.
