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Presumption of Urgency of Section 12 (2) UWG (Presumably) Not Applicable to Proceedings Under the GeschGehG 

by Ruben A. Hofmann

Published: September, 2019

Submission: November, 2019

 



In its decision of 8 August 2019 (Ref.: 29 W 940/19), the Munich Higher Regional Court commented for the first time on the German Act on the Protection of Business Secrets (GeschGehG). In court proceedings in which claims arising from the law which came into force at the end of April 2019 are asserted, urgency should not be presumed pursuant to Section 12 (2) German Law against unfair competition (UWG) (analogously). For this, both the relevant provision in the GeschGehG and the prerequisites for analogous application are lacking.


THE CASE


In the underlying case, a former employee of the applicant had illegally copied an address directory belonging to the applicant, which the respondent was now using unlawfully to attract business. The Munich Regional Court rejected the applicant's right to an injunction based on Section 6 GeschGehG, which was asserted by way of an interim injunction, for lack of grounds for the injunction. In the judicial proceedings, a court order was issued pointing to the need to substantiate the application within a period of one week, which elapsed unsuccessfully. The Munich Regional Court dismissed the applicant's immediate appeal against this decision.The Munich Higher Regional Court also supported this decision and rejected the applicant's immediate appeal against the decision of the Munich Regional Court.


THE GROUNDS


For one, the applicant acted in a way which was harmful to urgency by allowing a period set by a court order for the petition to be substantiated to elapse unsuccessfully. This would already refute a presumption of urgency in favour of the applicant, as for example in Section 12 (2) UWG. Moreover, the GeschGehG does not contain any presumption of urgency in interim relief which could have benefited the applicant. As Sections 17 to 19 UWG were replaced when the GeschGehG came into force, which were valid until that point, the court stated that an analogous application of Section 12 (2) UWG could be considered. In the absence of relevance to the decision in the specific case, this was not decided by the Munich Higher Regional Court.However, the Court makes clear its rejection of an analogous application of Section 12 (2) UWG in the absence of an unintended loophole and comparable interest situation. It states that the legislator had deliberately decided against the inclusion of a presumption of urgency in the GeschGehG. This becomes clear, for one, because other procedural issues, such as the abolition to the greatest possible extent of the jurisdiction for the site of a crime, are now explicitly regulated, cf. Section 15 (2) GeschGehG. Furthermore, this is supported by the most recent draft law of the German Federal Government (BT-Drs. 19/4724, p. 34). This states that, in proceedings based on the GeschGehG, the general procedural provisions remain applicable, unless special provisions are made.


OUTLOOK


Although the court has not expressly decided on the question of an analogous application of Section 12 (2) UWG in the present ruling, it can be inferred from this for the proceedings under GeschGehG, in particular with regard to interim relief, that the applicant must prove the urgency of the ground for an injunction under general procedural law, see Sections 935 and 940 ZPO [German code of civil procedure]. A corresponding application of the presumption rule of Section 12 (2) UWG would not appear to be inconclusive, as the GeschGehG has, inter alia, replaced Sections 17 to 19 UWG, the assertion of which also presumed urgency in the interim relief. Nevertheless, the aforementioned explanatory memorandum, which states that general procedural rules are to apply in proceedings under the GeschGehG, and the general scheme of the GeschGehG, in particular the absence of a provision on the presumption of urgency in interim proceedings, argue against an analogous application of the presumption provision under the UWG.


 



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