Application for Preliminary Injunction Against S21 Demolition Works Dismissed!

The demolition of the heritage-protected Bonatz building as part of the major project 'Stuttgart 21' has begun at the north wing of Stuttgart Central Station. The application for preliminary injunction by Bonatz heir Dübbers has been dismissed with costs.

Mr Peter Dübbers, grandson of the architect of Stuttgart Central Station, Prof. Paul Bonatz, failed in the first instance before the Regional Court (LG) Stuttgart – judgment dated 20.05.2010 – Az. 17 O 42/10 – with his copyright-based application for preliminary injunction against the demolition of part of Stuttgart Central Station decided upon as part of the major project 'Stuttgart 21', against which he has lodged an appeal.

The Bonatz heir now sought to prevent the carrying out of demolition works at the north-west wing of Stuttgart Central Station until the decision of the Higher Regional Court (OLG) Stuttgart in the appeal proceedings by means of the application for preliminary injunction filed on 5 August 2010 with the Higher Regional Court (OLG) Stuttgart. In support of the alleged exceptional urgency, Mr Dübbers argued that the partial demolition of Stuttgart Central Station by Deutsche Bahn AG would create a fait accompli before the decision on his appeal, which he had lodged.

Court Decision
The Fourth Civil Senate of the Higher Regional Court (OLG) Stuttgart has in itsorder dated 11.08.2010 – Az. 4 U 106/10 dismissed the application by claimant Dipl. Ing. Peter Dübbers for the issue of a preliminary injunction against Deutsche Bahn.

The Higher Regional Court (OLG) Stuttgart decided that the claimant waited too long before filing his application for a preliminary injunction, and therefore filed it belatedly, so that urgency for a decision on the application could not be established. In preliminary injunction proceedings, an application lacks substantive grounds if the claimant, after obtaining knowledge of the material circumstances of the alleged infringement – in the present case the copyright-based claims for cessation and their threatened prejudice by the demolition – waited too long before applying for the preliminary injunction. According to the practice of the Higher Regional Court (OLG) Stuttgart, this is regularly the case if two months have elapsed, and in all cases if the grounds for urgency have been known for more than three months.

Although the claimant assumed that he could not achieve a preliminary injunction with the action filed on 29 January 2010 and that he would have to pursue his claims, if necessary, through three instances up to the Federal Court of Justice (BGH), which experience has shown typically requires a period of several years, he deliberately decided from the outset not to file an application for a preliminary injunction, which would have been necessary to obtain a construction stop.

Conclusion

The Senate left open on account of the expiry of the time limit whether the Bonatz heir has a claim for cessation of the partial demolition of the station on the basis of copyright provisions.
The application for preliminary injunction was dismissed on purely formal grounds. Mr Dübbers should have filed his application within the applicable time limits. In that case, a different outcome might have been possible.

This case once again demonstrates the importance of complying with statutory time limits. In particular, to prevent the creation of a fait accompli, Mr Dübbers should have filed the application for preliminary injunction already upon submission of the first-instance action.