Reference to USB stick in the application

Problem description: Digitization in civil proceedings

Digitalization is advancing – also in civil proceedings. According to the law (see Section 130a (1) ZPO), attachments to statements of claim or other pleadings may be submitted to the court as “electronic documents” subject to certain requirements. § Section 130a (1) ZPO reads:

“Preparatory pleadings and their annexes, applications and declarations to be submitted in writing by the parties as well as information, statements, expert opinions, translations and declarations by third parties to be submitted in writing may be submitted to the court as electronic documents in accordance with the following paragraphs.”

The problem is that the permission cited above is limited to the digital submission of objects that also exist or can be produced in written form. In reality, however, we are increasingly dealing with purely digital objects or facts. For this increasingly common constellation, the BGH has now provided valuable clarification for practical use.

The BGH ruling of 14.07.2022 (Case No. I ZR 97/21) – The digitalization of civil proceedings also includes the reference to a USB stick in the application for action

In its judgment of 14.07.2022 (case no. I ZR 97/21), the Federal Court of Justice clarified that reference to a USB stick is also permitted in a claim that is to be enforced in the event of success. The BGH stated:

“The specificity of the application must also be examined ex officio in appeal proceedings by
(BGH, judgment of 16. December 2021 – I ZR 201/20,
GRUR 2022, 229 [juris para. 21] = WRP 2022, 318 – ÖKO-TEST III, mwN). According to
Section 253 (2) no. 2 ZPO, an application for an injunction – and according to Section 313 (1)
no. 4 ZPO a conviction based on it – must not be worded so vaguely that the subject matter of the dispute and the scope of the court’s power of review and decision (Section 308 (1) ZPO) are not clearly delineated, the defendant is therefore unable to defend itself exhaustively and the decision as to what it is prohibited from doing is ultimately left to the enforcement court (st. case law; see BGH, judgment of September 9, 2021 – I ZR 90/20, BGHZ 231, 38 [juris para. 19] – Influencer I, mwN). Sufficient certainty is usually given if reference is made to the specific infringing act and the claim, at least by referring to the claim, unambiguously indicates the characteristics of the challenged conduct in which the basis and the connecting factor for the infringement of competition and thus the injunction should lie (cf. BGH, judgment of November 8, 2018 – I ZR 108/17, GRUR 2019, 627 [juris para. 15]=WRP2019,731 – Deutschland-Kombi; decision of February 4, 2021 – I ZR79/20,K&R 2021, 333 [juris,para.12]).

Accordingly, the Court of Appeal correctly assumed that
the reference to the USB stick submitted by the plaintiff as Annex K 1 to the files , which indisputably fully documents the telemedia offer complained of as a specific form of infringement, is sufficient to substantiate the plaintiff’s applications for injunctive relief.”

My assessment of the admissibility of the reference to a USB stick in the application

The ruling makes it clear in a welcome way that the digitization of civil proceedings does not stop at the submission of documents in the context of court proceedings.
§ Section 130a (1) ZPO does not help if the actual subject matter of the dispute in the proceedings is a digital product. In this case, it is simply not possible to dispense with a reference to a digital source outside the judgment (here: USB stick) in a judgment.

Commercial law

Degree of completion of the work

The standards relating to the right to refuse acceptance (Section 640 (1) sentence 2 BGB, Section 12 (3) VOB/B) state that acceptance of the work may not be refused due to insignificant defects. There is no statement on the required degree of completion of the work as a prerequisite for acceptance.

However, the question of what degree of completion the work must have reached in order to be considered ready for acceptance is very important, particularly in the case of plant construction, which is usually very complex.

Major deficiency in plant engineering

Answering the question of whether there is a significant defect is very difficult, especially in often very complex plant construction. The absence of major defects is the decisive prerequisite for acceptance. The latter has considerable legal and practical significance: the start of the warranty periods is regularly linked to this. In addition, the due date of a considerable part of the agreed remuneration generally depends on acceptance.

Formal acceptance under building law

Particularly in the case of complex (plant) construction projects, the contracting parties often agree – usually on the basis of the VOB/B – to carry out a so-called formal acceptance. The following article deals with the question of what such a formal acceptance is actually all about.

LEGAL+ NEWS

Problem description: Digitization in civil proceedings

The BGH ruling of 14.07.2022 (Case No. I ZR 97/21) – The digitalization of civil proceedings also includes the reference to a USB stick in the application for action

My assessment of the admissibility of the reference to a USB stick in the application

LATEST ARTICLES

Degree of completion of the work

Major deficiency in plant engineering

Formal acceptance under building law

CONTACT

+49 (40) 57199 74 80

+49 (170) 1203 74 0

BleichenBrücke 11 D-20354 Hamburg

kontakt@legal-plus.eu

Benefit from my active network!

Imprint

Data protection