Enforcement: BGH on breaches of the injunction order

In compulsory enforcement actions, there are often – repeated – violations of an injunction. The German Federal Supreme Court (BGH) has ruled on this in a leading decision – with tactical consequences for the proceedings.

Compulsory enforcement and the assessment of the remedy

The judgement of the BGH (decision of December 2020, I ZB 99/19) on compulsory enforcement deals with the assessment of the order in the case of compulsory enforcement. In this respect, the BGH already ruled in 2009 (BGH, GRUR 2009, 427 para. 14) that in the case of repeated infringements, the multiple of the sanction deemed appropriate for a single infringement should not be imposed. Moreover, several courses of conduct can be considered as a natural unity of action, as one act – although the legal concept of a continuing act was declared inapplicable in the German law of contractual penalties as well as in relation to compulsory enforcement as early as 2001 and 2008, respectively.

In the opinion of the BGH, the present case clearly involved such a natural unity of action – e-mails with identical content were sent to two different interested parties within an interval of only 19 seconds, although a cease-and-desist order had been issued against this e-mail sending. The debtor’s appeal on points of law challenged the imposition of an administrative fine totalling €30,000. The legal complaint of the creditor, on the other hand, asserted the setting of a higher administrative fine – but both were in vain, the BGH rejected the claims of both parties.

Only such behaviour can be summarised that violate the same prohibition can be combined into a natural unity of action, the BGH said. By sending the two e-mails, which was a violation of the injunction and the enforcement order, a brochure was enclosed in each case – thus there were three infringements in total, the BGH ruled.

Fines must be proportionate

In turn, administrative penalties are to be assessed with regard to their purpose, the court explained, administrative penalties under § 890 of the German Code of Civil Procedure (ZPO) also serve as a preventive measure to prevent future offences. According to the principle of proportionality, however, there must be a fair relationship between the seriousness of the offence and the culpability, and the economic circumstances of the offender must also be taken into account. Overall, the judgement therefore shows that only moderately high fines are to be applied as means of order.

In addition, however, the BGH’s ruling also has a procedural impact with regard to the statute of limitations, or more precisely, the statute of limitations for prosecution.

How does this relate to the statute of limitations?

The creditor filed another complaint claiming that more than two years had passed since the offences were committed and that the so-called statute of limitations for prosecution pursuant to Article 9 (1) EC Criminal Code had thus occurred.

But in vain, this complaint was also rejected by the BGH. It is true that, as a rule, a two-year statute of limitations applies to the means of order under § 890 ZPO as soon as the act has ended; the statute of limitations also precludes the imposition of a fine and imprisonment. Moreover, there is no provision that the limitation period does not expire before the time when the proceedings are legally concluded (as they exist, for example, in the StGB (German Criminal Code) or OWIG (German Administrative Offences Act)).

Therefore, the BGH explained, the statute of limitations for prosecution can only be suspended if the prosecution cannot be started or continued according to the law. Therefore, the statute of limitations for prosecution could no longer apply if the trial court, as the court of enforcement, had already set an order, the BGH stated. In such a case, only the statute of limitations for enforcement could be considered (Art. 9 para. 2 EGStGB (Introductory Act to the Criminal Code)).

Thus, if an order is imposed within a period that is not barred by the statute of limitations, the statute of limitations for prosecution ends – and the final conclusion of the proceedings to determine the order is irrelevant.

Tactical effect on proceedings with regard to the statute of limitations

In practice, this opens up the situation that in the case of a compulsory enforcement and violations of the injunction, the proceedings can be protracted in time. This has consequences for debtors as well as for creditors in a compulsory enforcement.

Debtors can deliberately try to prolong the proceedings – because neither the filing nor the service of an application for an injunction can suspend the limitation period. Creditors must also take this into account in a compulsory enforcement action. They must therefore pursue violations of the injunction immediately and vigorously.