In its decision of 30 September 2018 (1 BvR 1783/17), the German Federal Constitutional Court [Bundesverfassungsgericht – BVerfG] ruled that a preliminary injunction issued in a press-law dispute by the District Court [Landgericht – LG] of Cologne without the appellant previously having received a cease and desist letter or been heard violates the appellant’s right to procedural equality of arms [prozessuale Waffengleichheit] as set out in art. 3 para. 1 in conjunction with art. 20 para. 3 of the German Basic Law [Grundgesetz – GG], which is equivalent to a basic right.
The appellant, a journalistic-editorial research network, published on its website an article reporting on corruption allegations against a company, in places citing from spoken comments at a supervisory board meeting. In response, without previously sending a cease and desist letter to the appellant, the company applied to the District Court of Cologne for a preliminary injunction to be issued to the appellant. The application was to prohibit publication of the minutes of the supervisory board meeting, be it as literal citations or summaries providing the gist.
The District Court granted the application – without giving reasons or hearing the appellant beforehand – in line with its customary practice. The appellant lodged a constitutional complaint against the decision, citing as grounds the fact that the District Court of Cologne intentionally disregarded the appellant’s rights under procedural law. The appellant stated that the District Court’s preliminary injunction – issued without an oral hearing and without a cease and desist letter having been sent beforehand – infringes its rights to due legal process, to procedural equality of arms, and to a fair trial, as well as breaching the rights to freedom of speech and of the press.
German Federal Constitutional Court Decision
In its decision, the Constitutional Court confirmed that there had been an infringement of the appellant’s right to procedural equality of arms as set out under art. 3 para 1 in conjunction with art. 20 para. 3 GG, which is equivalent to a basic right.
The principle of procedural equality of arms ensures that the parties have an equal procedural position before the judge. The Court states that the judge is obliged to ensure the equality of the parties by conducting the proceedings in an objective, fair manner:
- by unbiased readiness to use and assess the parties’ submissions,
- by the impartial application of law,
- and by the correct fulfilment of his/her other procedural obligations to the parties.