Receipt of the warning notice by the addressee need not be proven

Proof of receipt of a warning notice is not a prerequisite for its effectiveness, since effective legal protection can only be achieved through swift action. The basic possibility of sending it as a notification letter does not change this.

The defendant in the injunction, after service of the injunction – which he accepted in the matter by way of a settlement statement – objects solely to the cost order against him. He does so on the grounds that the warning notice sent as an ordinary letter did not reach him, and that he therefore cannot be ordered to bear the costs of the injunction proceedings. The claimant in the injunction, on the other hand, has credibly demonstrated that she sent the warning notice correctly addressed and in proper fashion by ordinary mail.

The decision of the court

The decision of the Higher Regional Court (OLG Braunschweig) (order of 13.08.2004 – 2 W 101/04) addresses the question of when an immediate acknowledgement i.S.d. §93 ZPO exists, which results in the injunction claimant / person issuing the warning notice having to bear the costs of the proceedings themselves. Ultimately, what is decisive is whether the defendant gave cause for the action or not, which he must prove.

According to the correct view of the court, the warning notice is not a declaration of intent, but rather a duty of the person issuing the warning notice as a result of a balancing of interests. Proof of receipt is therefore in principle not a prerequisite for the effectiveness of the warning notice. However, without service, the warning notice cannot fulfil its warning function either.

Nevertheless, the court proceeds on the assumption that, beyond the duty to issue a warning notice, the person issuing the warning notice can only be reasonably expected to bear further disadvantages to a limited extent, since effective legal protection in cases of competition law infringements can only be achieved through swift action due to the urgency of the matter. The person issuing the warning notice has thus basically fulfilled his obligations by setting a deadline and waiting for this deadline to expire, since proof of receipt of the warning notice would often be associated with delays that do not accord with the urgency of the matter.

According to the view of the Higher Regional Court (OLG), nothing different follows from the possibility of sending it as a notification letter. This would indeed allow proof of receipt. However, this can only be done after appropriate inquiries with the respective dispatch company (Post AG), which would lead to further delays.

The recipient of the warning notice or infringer has thus also given cause for the court proceedings i.S.d. §93 ZPO if he did not receive the warning notice, but its despatch has been credibly demonstrated. An immediate acknowledgement in the form of a settlement statement does therefore not exempt him from the burden of costs.

The Higher Regional Court (OLG) Dresden was of a contrary view, NJWE-WettbR 1999, 16 (Ulrich, WRP 1998, 124).