On February 29, 2024 (Case No. 5 W 140/23), the Berlin Higher Regional Court once again addressed the legal question of whether the existence of a risk of recurrence is necessary to impose sanctions for a violation of an injunction obligation. The ruling contributes to further clarifying the interaction between enforcement law and claims for injunctions.
Initial Situation: Injunction Obligation and Sanctions
The focus was on the situation where a debtor violates their obligation under an injunction order and the creditor resorts to enforcement measures to implement the court order. According to §§ 890, 891 ZPO, the competent court may impose a fine or substitute detention for contempt in case of breach of an injunction.
The legal debate concerned whether a risk of recurrence must continue to exist for the imposition of sanctions after the initial violation—an element generally viewed as essential for enforcing injunction claims on a substantive legal level.
The Decision of the Berlin Higher Regional Court
The Berlin Higher Regional Court considered the argument that a risk of recurrence is also necessary to impose sanctions under § 890 ZPO. The court rejected this view. It clarified that in enforcement proceedings, it is sufficient to establish an objective violation of the prohibited act. The presence of further subjective conditions—such as the ongoing risk of recurrence—is not required.
Reasoning of the Decision
Referring to the structure of enforcement law, the court argued that the primary purpose of sanctions is to ensure the enforcement of court injunctions and to prevent further violations. Upon the first breach of the court order, the necessity of separately demonstrating an ongoing risk of recurrence becomes unnecessary according to the intent and purpose of the provisions.
The “repetition” of the act, as argued by the debtor, is not subject to discussion within the scope of the specific enforced injunction. Sanctions are solely based on the already established violation.
Legal Context in the Overall Framework
Distinction Between Substantive and Procedural Levels
The Higher Regional Court emphasizes the distinction between the initial assertion of an injunction claim and the enforcement of an already judicially confirmed injunction through enforcement proceedings. While the risk of recurrence is indispensable for substantiating the substantive claim, it is not a prerequisite for enforcing sanctions. The decisive factor in enforcement is the debtor’s culpability, proven by the violation of the order.
Practical Consequences and Significance
The decision clarifies that debtors may not argue that the risk of recurrence has disappeared after a first violation. Thus, the threshold for sanctioning is not artificially raised, strengthening the effectiveness of court injunction orders. Courts retain the necessary tools to effectively sanction violations regardless of the question of risk of recurrence.
Conclusion and Outlook
With this ruling, the Berlin Higher Regional Court aligns itself with the prevailing literature and case law. Treating the risk of recurrence solely as a substantive requirement and not as a criterion for ordering sanctions in enforcement proceedings enhances legal certainty for creditors and ensures a practical application of injunction orders.
Note on Ongoing or Similar Cases
Due to ongoing developments in this area of law, further clarifications by the courts may follow in the future. The statements of the Higher Regional Court explicitly apply to the constellation assessed in this decision. Exceptions for particularly complex cases remain subject to individual assessment.
Source Citation
Decision of the Berlin Higher Regional Court dated 29.02.2024, Case No. 5 W 140/23; published on www.urteile.news.
As a nationwide and internationally active law firm, MTR Legal Rechtsanwälte advises clients on all matters related to injunction claims and their enforcement. For questions regarding the reported topic or related issues, the attorneys at MTR Legal are available for legal evaluation.
