Germany : Constitutional Court Requires Equal Arms in Preliminary Injunction Matters

The parties’ right to be heard in court is a central aspect of due process. It has been decades of routine practice that the defendant in preliminary injunction proceedings has been heard only in the oral hearing upon objection, i.e., after the preliminary injunction had already issued - and was to be observed. The German Constitutional Court already put paid to specific parts of this practice in 2018 and just recently reaffirmed and extended its wake-up call to the court practice in June and July 2020. The defendant has to be heard before a decision is made, and specifically about what is subject matter and line of argument in court. Both parties must be involved in the proceedings on an equal footing. Secret proceedings are not acceptable. The German Constitutional Court grants not only the bolt, but also, so to speak, the lock for the disadvantaged defendant to fence in the court and against the plaintiff, which is a direct Constitutional complaint against the issuance of a preliminary injunction! The Constitutional Court has power to provisionally suspend the validity of the preliminary injunction and this power is exercised as the recent examples drastically prove