In the latest in a series of decisions concerning two preliminary injunction (PI) applications brought by Valeo against its competitor Magna, and after some back-and-forth between the Düsseldorf Local Division (“LD”) and the Court of Appeal (“CoA”), Panel 2 of the Court of Appeal has given a final order on the Magna’s application for suspensive effect.
Recap
The Court of First Instance Düsseldorf LD had granted PIs against Magna, but subject to certain carve-outs which allowed Magna to fulfil existing obligations to BMW on existing delivery models: X1, X2, 1 Series, 1 Series Active Tourer, and Mini Countryman.
Magna had sought to include the “BMW2 Series Gran Coupé” in this list of exempted models, arguing that is was omitted by mistake. The Dusseldorf LD, however, dismissed the requested rectification.
Magna then appealed and requested suspensive effect (R. 223.4 RoP) to include the “BMW2 Series Gran Coupé” in the exemption.
Valeo was given the opportunity to comment on Magna’s request for suspensive effect.
Panel 2 of the Court of Appeal has now decided on Magna’s request for suspensive effect. The panel consisted of Rian Kalden, as Presiding Judge and judge-rapporteur, judge Ingeborg Simonsson, Judge Patricia Rombach, and two Technically Qualified Judges: Jeroen Meewisse and Max Tilmann.
The Court of Appeal’s decision
The Court of Appeal has suspended the effect of the impugned order, insofar as the PI covers the “BMW2 Series Gran Coupé”, until the Court of Appeal has decided on Magna’s appeal against the impugned order. This means that Magna is allowed to fulfil orders with respect to the “BMW2 Series Gran Coupé”.
In its reasoning, the Court of Appeal determined that from the affidavits and exhibit filed by Magna, it was already clear that there were six models already on the market, or soon to be introduced on the market that were fitted with the attacked embodiment. Therefore, the Court of Appeal concluded that ‘there is no valid reason given or apparent why the 2-series Grand Coupé model should be excluded from the list of car models that were exempted from the injunction due to proportionality considerations.’
According to the Court of Appeal, the Court of First Instance could and should have deduced from the affidavits and exhibit that the 2-series Grand Coupé should have been on the list of exempted models. It even emphasised that in the case the Court was uncertain, it should have asked Magna at the hearing which models should be included, if such a list with exempted car models was going to be drawn up. For that same reason, the Court of Appeal concluded that the Dusseldorf LD was ‘obviously wrong not to correct the impugned order by adding the 2-series Grand Coupé to the list of exempted cars’.
More active participation from the Courts?
This is a pragmatic and litigant friendly decision, with the Court of Appeal’s conclusion being quite the opposite from that of the Court of First Instance, which had emphasised that the Court is ‘not obliged to search for further information in the exhibits if it is not expressly referred to in the briefs and pleadings’.
Furthermore it is interesting to note that the Court of First Instance had concluded that ‘a search would have led nowhere’ and that the Court did not have the information to link any vehicle codes to any of the models. It appears that the Court of Appeal expects a more active participation of the Court, during the proceedings.
The order can be found here.
