A preliminary injunction is a provisional regulation. It is intended to ensure that the following decision of the Federal Constitutional Court in the principal proceedings is effective and can be implemented. In particular, it is to prevent irreversible situations.
The applicants challenge a court order by which their child is returned to another state. Without yet deciding the constitutional complaint itself, the Federal Constitutional Court may preliminarily suspend the court order’s execution.
For a preliminary injunction to be issued, it is not necessary that principal proceedings are already pending at the time of the application. It is sufficient that an application concerning the principal proceedings could be filed afterwards that would not from the outset be inadmissible or manifestly unfounded. Such isolated proceedings for preliminary legal protection are registered under “BvQ” file references; in other cases, an application for a preliminary injunction has the same file reference as the principal proceedings. If principal proceedings are already pending, a preliminary injunction may be issued ex officio.
§ 32 of the Federal Constitutional Court Act requires preliminary injunctions to be urgently necessary to avert severe disadvantage, prevent imminent violence, or to be for another important reasons urgently required in the interest of the common good. Thus, the standard of review is different than that of the principal proceedings. It is not the prospects of success in the principal proceedings that are decisive but a balancing of consequences: The consequences that would arise if the preliminary injunction were not issued but the constitutional complaint were successful afterwards must be balanced against the disadvantages that would arise if the preliminary injunction sought were issued but the constitutional complaint were unsuccessful. Other rules only apply if principal proceedings were inadmissible from the outset or manifestly unfounded; in this case, a preliminary injunction is out of the question from the outset.
Contents of the Decision
Generally, a preliminary injunction may order anything that is urgently needed to deal with a matter in a provisional way. Consequently, an application for a preliminary injunction must not be aimed at the relief sought via the principal proceedings. By way of exception, this is possible if otherwise legal protection would possibly come too late and if the applicant cannot be granted sufficient legal protection in another way.
The effect of a preliminary injunction is limited to a maximum of six months. However, the injunction may be repeated. If a decision is made in the principal proceedings, this disposes of any applications for preliminary injunctions. With regard to constitutional complaints, this also applies if a complaint is not admitted for decision – even without the Court pointing out this consequence.