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.

Compliance

Guide to GmbH law: The duties and liability risks of the managing director of a GmbH

In the external relationship, only the GmbH is liable, which can indemnify its managing directors. However, this does not mean that external liability of the managing directors is excluded.

In addition to personal liability in the area of tax and social security law, the managing director may also be liable on the basis of his own contractual obligations, on the basis of an induced legal appearance, on the basis of (personal) culpability when concluding the contract and in tort.

For the aforementioned reasons, every managing director of a GmbH is urgently recommended to be familiar with the requirements for proper managing director activities.

Estimation of fictitious defect rectification costs

For some time now, a landmark decision by the Federal Court of Justice has clarified that the contractual claim for damages in lieu of performance pursuant to Sections 437 No. 3, 280, 281 BGB can be assessed on the basis of the “fictitious” defect rectification costs that are likely to be necessary but have not yet been incurred, see BGH ruling of 12.03.2021, Ref. V ZR 33/19. In practice, it is of particular relevance how the court called upon to decide in an individual case is to determine the amount of such fictitious damage costs.

EUGH ruling “LKW Walter”

The possibility of being able to enforce one’s own rights as easily and quickly as possible in cross-border EU business transactions, which is very welcome in principle, has some pitfalls. The author’s experience shows that traders are often overwhelmed when they receive legally relevant mail from abroad. This is not least due to the fact that court documents received from abroad often do not meet the requirements of European law.

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

Guide to GmbH law: The duties and liability risks of the managing director of a GmbH

Estimation of fictitious defect rectification costs

EUGH ruling “LKW Walter”

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