Accelerated proceedings

Accelerated proceedings / Einstweiliger Rechtsschutz

August 06, 2024

Asserting a claim by filing a lawsuit involves a lengthy process. After all, as a plaintiff, you have no influence on the court's workload and speed of work. In some cases, however, speed is of the essence because there is a risk that a situation will deteriorate or that you will lose a currently existing right.

The German Code of Civil Procedure (ZPO) helps claimants with an accelerated procedure, the so-called interim legal protection. The legal institution of interim legal protection is regulated in Sections 916 et seq. ZPO.

Interim legal protection is a manifestation of the guarantee of effective legal protection under Article 19 (4) of the German Constitution (GG).

In civil procedural interim legal protection, a distinction is made between attachment, regulated in sections 916 to 934 ZPO, and interim injunction, regulated in sections 935 to 945b ZPO.

The aim of both forms is to secure a claim. It is important to understand that securing a claim is always only a temporary situation, as opposed to satisfying a claim that may create irreversible facts. This is only possible in provisional legal protection in exceptional cases, for example when vital claims are at stake, such as in maintenance law.

Interim legal protection pursuant to sections 916 et seq. ZPO is a so-called summary judgment procedure. This means that only a limited judicial review of the actual proceedings takes place. However, this is by no means superficial.

Seizure pursuant to sections 916 - 934 ZPO

The attachment serves to secure the compulsory enforcement of a monetary claim or a claim that can be converted into a monetary claim.

An attachment requires a so-called attachment claim, which is directed towards the payment of money. In addition, a so-called reason for attachment is required. This means that there must be a particular urgency in the matter. This can be assumed if the claimant cannot reasonably be expected to pursue the claim in court due to the particular urgency. Pursuant to Section 920 (2) ZPO, the claim for attachment and the reason for attachment must be substantiated. The prima facie evidence is the "light" version of the regular evidence procedure. A prima facie case can be made by submitting an affidavit. The submission of such a written witness statement significantly speeds up the proceedings.

With regard to the reason for attachment, a distinction is made between attachment in rem pursuant to Section 917 ZPO and personal attachment pursuant to Section 918 ZPO. The latter is subsidiary and rarely occurs in practice.

The attachment in rem pursuant to Section 917 ZPO is used if there is a fear that the enforcement of the judgment could be frustrated or made considerably more difficult, for example if assets are removed.

Personal attachment pursuant to Section 918 ZPO is considered if enforcement against the debtor's assets is jeopardized and in rem attachment is not sufficient. As personal attachment represents a significant encroachment on the debtor's legal position, the chosen means of attachment, e.g. compulsory registration, withdrawal of identity documents or imprisonment, must be proportionate.

In the first case, the debtor's assets are "frozen", in the second case, the debtor's capacity to act is "frozen".

Injunction §§ 935 - 945b ZPO

The interim injunction is the second form of interim legal protection. A distinction is made between a protective order, a regulatory order and a performance order. Like the attachment, the interim injunction also requires a claim for an injunction and a reason for the injunction, which must be substantiated.

The protective order pursuant to Section 935 ZPO serves to secure an individual claim, the realization of which would be thwarted or made considerably more difficult without a protective order. Typical cases of application include claims for the surrender or processing of an object, the entry of a lis pendens notice, the provision of security, the obtaining of a priority notice or an objection pursuant to sections 885, 899 ZPO, claims arising from a landlord's lien and the submission of a declaration of intent.

The regulatory order pursuant to Section 940 ZPO serves to regulate a disputed legal relationship to avert significant disadvantages or the threat of violence and can be important in the context of continuing obligations. In various legal situations, interim injunctions may be necessary to take urgent measures. For example, it may be necessary to prohibit the intended inappropriate use of the rental property in order to protect it from damage. It is equally important to ensure that the rented premises are properly heated in order to protect tenants from health problems. In some cases, the tenant's consent to necessary maintenance measures is only required in the event of acute danger to the rented property.

In addition, the withdrawal of management and representation powers or the imposition of a temporary ban on representation can be an appropriate measure to prevent abuse or misconduct in a company. The temporary regulation of company relationships, such as a ban on entering business premises or inspecting company books, may also be necessary in certain situations. It may also be necessary to prohibit the holding of a shareholders' meeting or the implementation of a resolution of the shareholders' meeting in order to prevent damage to the company.

In the area of competition law, injunctions can be used to prohibit even truthful but disparaging statements made to a competitor's customers. Equally important is the prohibition of misleading statements about one's own business circumstances or about the competitor and its products in order to ensure fair competition and protect consumers from false information.

Exceptionally, a performance injunction can be used to satisfy vital claims if the creditor is urgently dependent on their fulfillment, such as the payment of maintenance or the supply of electricity, gas or water. The applicant can also demand protection against prohibited personal power in accordance with Section 858 BGB.

The court may not anticipate the possible decision in the main action by issuing the protective or regulatory order.

Pursuant to Section 936 ZPO, the provisions on attachment apply to the interim injunction, unless otherwise stated in Sections 935 et seq. ZPO do not provide otherwise.

Procedure

An application pursuant to sections 920 (3) and 936 ZPO is required for the application for attachment and the interim injunction.

Pursuant to Section 919 ZPO, the court of the main action or the local court in whose district the object to be seized or the person whose personal freedom is to be restricted is located has jurisdiction for the attachment.

On the other hand, the court of the main action has jurisdiction for interim injunctions pursuant to Section 937 (1) ZPO. In urgent cases, the local court can be called upon as an exception, Section 942 Para. 1 ZPO.

The interim injunction or the attachment can be issued or rejected by the court by order without an oral hearing. A court order that is not preceded by an oral hearing saves time. However, it is necessary for everything relevant to the court's decision to be submitted in the application. The affidavit is particularly relevant here. If an oral hearing takes place, the court does not make a decision by order, but issues a judgment. Whether the court schedules an oral hearing or decides without an oral hearing is at its discretion. In doing so, it weighs up the creditor's need for urgency against the debtor's right to be heard.

The attachment and the interim injunction are enforcement orders. However, they do not contain a clause as they are enforceable by operation of law and an enforcement clause is therefore unnecessary.

The attachment order and the interim injunction are not served ex officio. Pursuant to Section 922 (2) ZPO, the applicant must effect service in party proceedings itself. There are two ways of effecting service as a party: either through the bailiff or with acknowledgement of receipt from lawyer to lawyer if both parties are represented by a lawyer.

Pursuant to Section 929 (2) ZPO, the attachment and the interim injunction must be executed within one month.

In the case of judgments on interim injunctions or arrest orders, the period begins from the date of pronouncement and in the case of arrest orders or interim injunctions from the date of service on the creditor. Enforcement can take place before the title is served, but the attachment order or interim injunction must be served on the debtor within one week of enforcement, section 929 (3) ZPO.

Legal remedies against an attachment order or interim injunction

The objection pursuant to Section 924 ZPO is the admissible legal remedy if the attachment or interim injunction was issued without an oral hearing, as the court has decided by means of an order. If the defendant lodges an objection, the court must set a date for an oral hearing. It shall then decide by judgment, against which an appeal is admissible pursuant to Sections 511 et seq. ZPO is admissible.

If the court has exercised its discretion and immediately scheduled an oral hearing, it must issue a judgment that can be appealed.

Furthermore, the defendant has the option of pursuing the annulment proceedings. The court will revoke the attachment order or the interim injunction if the applicant has not complied with the court's request to file the main action pursuant to Section 926 ZPO or if the circumstances have changed pursuant to Section 927 (2) ZPO.

According to Section 945 ZPO, the defendant has a claim for damages against the party who obtained the order if the order proves to be unjustified from the outset or if the order is revoked in the annulment proceedings.

*In future, we will only use the generic feminine or masculine for the sake of readability.