An anticompetitive violation gives the entrepreneur the right with or without a written warning to get a restraining order against an infringer or to bring an action for a injunction. The infringer can avoid both legal proceedings by signing a cease and desist declaration with a penalty clause pursuant to article 12 paragraph. 1 p. 1 UWG. If he violates the law he has to pay a contractual penalty to the entrepreneur. Otherwise the infringer can choose an alternative and issue a notarially attested cease and desist declaration. In case of an infringement of this provision the infringer must pay an administrative fine imposed by the court. The court will order the administrative fine only if before in relation to the notarially attested cease and desist declaration the competent court threatens the administrative fine and delivers the communication either personally or by registered mail to the infringer. The notarially attested cease and desist declaration offers the infringer two advantages. For the one the infringer can choose the notary and thus knows which court is entitled to make decisions concerning the matter (threatening of an administrative fine). For the other, in case of violating the cease and desist declaration the administrative fine is paid directly into the government treasury and not in the "war chest" of the entrepreneur.
The regional supreme court Köln dealt with the interest in bringing proceedings and with the question if an entrepreneur can bring an action for injunction (or seek an injunction) after the infringer already made a cease and desist declaration. Also the court dealt with all legal items related to the risk of repetition and the question about the conditions under which the notarially attested cease and desist declaration can definitely exclude the risk of possibly infringing activities in the future.
In case of violation of competition law there is a gap in the enforcement procedure as far as the notarially attested declaration of submission and the order with penal notice attached are concerned. In the meantime there might occur further violations that cannot be sanctioned even if we are in presence of a cease and desist order. Therefore there is an interest in bringing the appeal so that further violations might be sanctioned as quickly as possible. The plaintiff, despite the notarially attested cease and desist declaration made by the defendant, obtained an interim injunction. (she has already done this successfully in the parallel proceedings, cf. Regional Court Köln, reference number 33 O 271/13).
There was no interest in bringing proceedings in case of an action for injunction because the plaintiff could come to a result in a more simple and quicker way. A restraining order is to be considered like a notarially attested cease and desist declaration with a penal notice attached, both are enforceable. If there is a notary declaration of submission made by the infringer, the entrepreneur can obtain an order with a penal notice attached against him in a simpler way than ending up with a successful injunction. The plaintiff should not have brought an action for an injunction. In the present case she could do that exceptionally because the court fixed her the period of time allowed for commencing proceedings. If she had led the legal deadline go by the court would have quashed the injunction. (article 926 paragraph. 2 ZPO code of civil procedure). Thus there would be a gap in the enforcement procedure because there were still no order with a penal notice attached.
The action for an injunction was substantiated by the circumstances. The discriminatory behavior of the defendant was anticompetitive. Due to the infringing act there was indeed a risk of repetition. This could be eliminated by delivering an order with a penal notice attached. From this precise moment onwards it was possible to close the omission in the enforcement procedure and the injured party could be protected against further infringements. The regional supreme court Köln pointed out, contrary to its former interpretation of the law, that the risk of repetition is not eliminated by a notarially attested cease and desist declaration (cf. reference number 6 W 43/14).
The regional supreme court Köln allowed an appeal due to the importance of the two legal questions (the effect of a notarially attested cease and desist declaration and the risk of repetition in relation to the interest in bringing proceedings). The Federal Court will subsequently decide upon the appeal. (. I ZR 100/15).
In practice the notarially attested cease and desist declaration is less important than the cease and desist declaration with penalty clause pursuant to article 12 paragraph 1 p. 1 UWG ( unfair competition act) . The notarially attested cease and desist declaration is suitable for avoiding the proceedings action for an injunction. It is still possible to institute judicial proceedings for an interim injunction. Only the cease and desist declaration with penalty clause can convince the infringed party to desist from bringing an action because it eliminates, in contrast to the notarially attested cease and desist declaration, the risk of repetition. However if the infringer is interested in the advantages of the notarially attested cease and desist declaration, he must offer further protective measures to avoid a preliminary injunction. Such a measure as well as a measure that eliminates the risk of repetition is the issuing of the cease and desist declaration with penalty clause which ceases to have effect once an order with a penal notice has been delivered. (resolutory condition in accordance with article 158 paragraph 2 BGB).
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