This content is from: Germany

USB stick meets sufficiently specific test in Germany

Christian Meyer of Maiwald discusses a case concerning the domain muenchen.de, in which a reference to a USB stick was found to be admissible in an application for an injunction

Section 253 (2) of the German Code of Civil Procedure obliges the plaintiff in a legal action and the applicant in injunction proceedings to formulate a claim in a sufficiently specific manner. On the one hand, the court must be able to recognise what it is deciding on. On the other hand, the defendant or respondent must be able to ascertain what conduct is still permitted, and what conduct risks them being served with court-ordered fines.

Any doubts about the scope of the court sentence should not be left to the measures of compliance (such as fines or detention) or enforcement proceedings. Particularly in competition law proceedings, the question therefore frequently arises as to the possibility of adequately describing, for example, the challenged competitive conduct in order to ensure that the claim is sufficiently specific. 

The muenchen.de case

In this case, several Munich and national newspaper publishers (specifically the companies responsible for their respective online operations) issued a warning letter in 2019 to the operators of the website muenchen.de. 

This warning concerned the anti-competitive infringement of the requirement of "state neutrality of the press", pursuant to Article 5 (1) sentence 2 of the German Basic Law in connection with Section 3a UWG. As a consequence of the respondent’s refusal to submit to the requested cease-and-desist declaration with a penalty clause, the plaintiffs asserted a corresponding claim for injunctive relief before the Regional Court of Munich I. 

The website muenchen.de, which has been accessible since 2004, is the official city portal of the City of Munich, one of the most popular service portals and German city portals – according to the defendant – with several million hits per month. 

The Regional Court affirmed the asserted claim for injunctive relief under competition law. In its final judgment on November 17 2020, the Regional Court ordered the defendants "to refrain from disseminating/allowing to be disseminated and/or making/allowing to be made publicly accessible the tele media offering muenchen.de if this occurs as in the recording of the offering made between August 16 and September 19 2019, reproduced on the USB stick Annex K1" (Case No. 33 O 16274/19). 

The final judgment of the Higher Regional Court upheld the decision of the Regional Court on September 30 2021 (Ref. 6 U 6754/20), with minor amendments to the operative part of the injunction (omission of the words "to disseminate/allowing to be disseminated and/or"). The appeal was dismissed in all other respects.

The Higher Regional Court’s reasoning

According to the Higher Regional Court, the Regional Court was right to assume that the application for injunctive relief was sufficiently specific. In particular, the fact that the application refers to a USB stick submitted as an attachment, which contains over 170,000 individual pages of the aforementioned website, does not preclude the specificity of the claim for injunctive relief.

It is true that a judgment must be visibly set out in such a way that it remains identifiable even after delivery and must therefore in principle it must be set out in a single document. However, special cases permit deviations from this in particular if, as in the present case, the subject matter to which the injunctive relief relates cannot be included in the judgment, given its nature and scope, because it can neither be described in words nor be sufficiently represented by including a picture of the subject matter in question in the judgment.

The Higher Regional Court further clarified that in such special cases reference may also be made in the operative part of the judgment to attachments that have been placed on file. 

In this case, both the Regional and the Higher Regional Court assumed that such a special case existed. Neither the defendant’s objection with regard to the fundamental changeability of the contents of the USB stick nor their objection with regard to the lack of connection with the judgment was successful. 

According to the Higher Regional Court, also in the case of the subsequent enforcement of injunctions, one can generally rely on attachments referred to and submitted with the files, without further ado.

Practical problems

In practice, despite the possibility of enforcement affirmed by the Higher Regional Court, the preparation and execution of the enforcement of such a decision is likely to be most relevant. This poses some practical problems, for example with regard to the execution of an interim injunction (i.e. direct service upon the opposing party within the one-month period). 

In this context, for example, the question arises as to whether the applicant may independently make copies of such a storage medium, such as a USB stick, in preparation for enforcement or whether they must send it to the court beforehand so that the court can examine its contents and then attach the data carrier to the enforceable copy of the decision. 

Additionally, one cannot rule out technical difficulties in the readability of a corresponding medium (USB stick or other storage medium such as CD or DVD) and the documents deposited there, for example, by the defendant or respondent or the bailiff enforcing the decision (should further claims have been asserted in addition to the injunction, the enforcement of which fall within the range of authority of the bailiff). 

These difficulties may include possible display problems (details, colours, etc) of electronic images of infringing objects, which may be stored on a corresponding storage medium but cannot be clearly recognised on a terminal device (for example, a laptop, tablet or other mobile device with possibly low resolution or similar), or are not clearly readable. 

In addition to the question of the definiteness of the claim for injunctive relief, the decision contains further interesting legal comments. In particular, there are comments on the question of the permissibility of press activities of public officials, taking into account the freedom of the press granted by Article 5 (1) sentence 2 of the German Basic Law. The decision is worth reading.

A further appeal to the Federal Court of Justice has been admitted. It can therefore be expected that the Federal Court of Justice will address these questions. 

Christian Meyer
Principal, Maiwald

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