A decision of the Higher Regional Court of Nuremberg of 24 October 2023 (Ref.: 3 U 965/23) concerns, among other things, the question of whether the full utilisation of the legal deadlines for filing and substantiating an appeal in preliminary injunction proceedings is detrimental to the urgency of the matter.
The defendant arranges insurance and other products on a commercial basis. The plaintiff is a self-employed insurance broker. A customer of the plaintiff sent an e-mail to the defendant in which she withdrew her previously given consent to be contacted. The defendant confirmed receipt of this letter by email on the same day. Despite the revocation, an employee of the defendant called the customer in order to arrange a consultation appointment for the exemption from contributions for her Riester pension. The defendant responded to the plaintiff's warning with a letter from a lawyer in which the attorney of record stated: “In the aforementioned matter, we indicate that we are legally representing X. (...) Furthermore, we are authorised to accept service.”
By way of a preliminary injunction, the Regional Court of Regensburg prohibited the defendant from calling or having third parties call consumers for advertising purposes without their prior consent. The plaintiff served the court order on the defendant, but not on her attorney of record. The Regional Court of Regensburg set aside this court order following an objection by the defendant on the grounds that the court order had not been properly served within the time limit for enforcement. The plaintiff in the injunction proceedings filed an appeal against this.
In its decision “Riester pension advice”, the Higher Regional Court of Nuremberg granted the appeal. The claimant's claim for an injunction arises from Section 7 para. 2 no. 1 of the German Act against Unfair Competition (UWG). The advertiser bears the burden of presentation and proof for the existence of consent. In the case of telephone advertising, the advertiser must, according to Section 7a UWG, document the consumer's prior express consent in an appropriate form and, according to Section 7a para. 2 sentence 1 UWG, store it, which the defendant in the injunction proceedings was unable to prove.
Furthermore, the presumption of urgency under Section 12 para. 1 of the UWG has not been refuted. This is only the case if the plaintiff in the injunction proceedings itself shows by its behaviour that it is not in a hurry. This can be assumed if the plaintiff waits for a longer period of time although it is aware of the competition violation and the person responsible or is not aware of it due to gross negligence. The decisive factor is the point in time at which the plaintiff became aware of the relevant facts. However, the full utilisation of the legal deadlines for filing an appeal and filing the grounds of appeal does not adversely affect the urgency, since this is granted by law to the appellants. Only in very limited exceptional cases can a self-revocation due to delayed pursuit of the proceedings, even if the deadlines for the appeal are met, cause the urgency to lapse. A special case may be considered in the context of the overall consideration if the factual and legal circumstances of the case are extremely simple, no further factual investigations need to be carried out and no further means of substantiating the claim need to be procured, and the plaintiff in the injunction proceedings expresses, by his conduct, that the matter is not urgent for him either. The Higher Regional Court of Nuremberg did not find such a special case.
Furthermore, the court order for enforcement had been duly served within the enforcement period, since, in principle, the notice of representation in the pre-judicial warning procedure does not automatically include an order for subsequent court proceedings. This applies even if the defendant was informed prior to the proceedings that the lawyer had been granted power of service. In the present case, the unspecified notification in the lawyer's letter was not sufficient, which is why service on the defendant was permissible.
