Urgency in emergency proceedings: Higher Regional Court of Schleswig sends a clear message – delay leads to loss of legal protection, even in the Meta case

The Higher Regional Court of Schleswig (OLG) has clarified in the Meta case: whoever waits too long before filing for a preliminary injunction loses the protection of emergency proceedings – even in the event of clear infringement of rights. Companies should strategically utilise announcements and optimise internal processes for swift action.

Preliminary injunctive relief is a sharp instrument in competition and data protection law. It enables undertakings to obtain cease and desist orders against competitors within the shortest time – often before the contested action takes effect in the market. However, for this instrument to apply, special urgency must be present. If this urgency is lacking, the proceedings fail on procedural grounds alone – even if the alleged infringement of rights is clearly substantiated on the merits.

The Schleswig-Holstein Higher Regional Court (OLG) has in a recentdecision of 12 August 2025 (Az. 6 UKI 3/25) impressively confirmed and clarified this principle. The central question was not whether the alleged data processing was actually unlawful, but whether the applicant had waited too long to proceed in emergency proceedings.

What was the case about? – Announcement rather than surprise

The starting point was a public announcement by Meta, the operator of Facebook and Instagram, on 14 April 2025. In it, the company announced that it would henceforth use public content from adult users and their interactions with AI to train its own AI models. This information was communicated to all users via press releases, emails and in-app notifications. Even at that time it was clear that the measure would also have platform-wide effect (Facebook and Instagram) and that the data would be used outside the platforms, for instance in Meta's own Llama AI.

Despite this early and precise announcement, the applicant waited more than two months before filing for a preliminary injunction on 27 June 2025. By that time, the announced data processing had already been running for one month.

The decision – the date of notice is decisive for urgency

The Higher Regional Court of Schleswig (OLG) clarified: for the purpose of assessing urgency, what matters is not when the infringement actually occurs, but when the applicant obtained definite knowledge of the impending action. A clear announcement that reveals the intended scope is sufficient to trigger the running of the deadline. The common benchmark in the courts' case law is approximately one month. If this period is exceeded without good reason, urgency is eliminated – with the result that an application for preliminary injunctive relief is inadmissible.

The senate furthermore emphasised that the commencement of implementation does not trigger a new deadline. Whoever knows of the planned measure cannot wait for it to be implemented and then start emergency proceedings anew. The court also rejected the argument that the precise scope only became apparent later. In particular in competition and data protection law, applicants are expected to respond quickly on the basis of the available information.

EU law framework does not change the emergency standard

It is also interesting to note the court's engagement with the objection that EU law – in particular the GDPR – does not recognise urgency deadlines. The Higher Regional Court of Schleswig (OLG) clarified that effective legal protection underArt. 79 GDPRdoes not mean dispensing with the examination of special urgency. Member States are permitted to establish urgency requirements to ensure that preliminary injunctive relief is in fact available only for time-critical constellations.

Significance for undertakings

For undertakings, the decision is relevant in two respects. On the one hand, it illustrates that in defending against preliminary injunctions, the assessment of urgency can be a decisive lever. If it can be shown that the applicant knew of the contested measure weeks or months before filing the application, this can bring down the entire proceedings – regardless of the substantive legal position. In particular, for planned market launches of new products or features, it can therefore be strategically sensible to communicate in advance in a deliberately documented manner in order to inform potential adversaries early and thus trigger the urgency deadline.

On the other hand, the decision warns undertakings that wish to proceed against competitors to act consistently. Whoever delays too long – whether due to internal coordination, market observation or tactical considerations – runs the risk that protection in emergency proceedings is lost and the only option remaining is a lengthy main proceedings.

Our recommendation

Undertakings that are confronted with allegations of infringement of competition, data protection or consumer protection law should examine at an early stage whether a belated filing of an application by the other party can be raised. Careful documentation of announcements, advance information and public notices is a crucial defensive tool for this purpose. However, it should not be forgotten that there isno general market monitoring obligationon competitors! Conversely, the following applies: whoever wishes to avail themselves of preliminary injunctive relief themselves must structure internal processes in such a way that legal assessment takes place within days of becoming aware of a threatened infringement of rights and, if necessary, an application is filed immediately.

AVANTCORE Solicitorsin Stuttgart has many years of experience in the strategic defence of andenforcement of competition and data protection law claims– both in emergency proceedings and in the main action. We understand the procedural tools to bring applications to naught on grounds of lack of urgency from the outset, and we advise undertakings on how to structure their communication and documentation to ensure they are optimally protected in legal terms. Those who engage our expertise in good time can not only avoid proceedings, but also strategically secure their market position.