Bundesverfassungsgericht

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Preliminary legal protection

A preliminary injunction is a provisional decision intended to ensure that the subsequent decision of the Federal Constitutional Court in the principal proceedings is effective and can be implemented. In particular, it is designed to prevent irreversible situations.

Example

The applicants challenge a court decision ordering their child to be returned to another state. Without deciding on the constitutional complaint itself, the Federal Constitutional Court may temporarily suspend the execution of the court order.

Requirements

When an application for a preliminary injunction is lodged, principal proceedings in the matter do not have to be pending. It is sufficient that principal proceedings could be initiated subsequently that would not be inadmissible or manifestly unfounded from the outset. Such isolated proceedings for preliminary legal protection are registered under “BvQ” file references; otherwise, an application for a preliminary injunction has the same file reference as the application in the principal proceedings. If principal proceedings are already pending, a preliminary injunction can be issued ex officio.

Pursuant to § 32 of the Federal Constitutional Court Act, a preliminary injunction is issued if this is urgently required to avert severe disadvantage, to prevent imminent violence or for another important reason in the interest of the common good. Thus, the standard of review is different from the one used in the principal proceedings. It is not the prospects of success in the principal proceedings that are decisive but a weighing of the consequences: the consequences that would arise if the preliminary injunction were not issued but the application in the principal proceedings were successful must be balanced against the disadvantages that would arise if the preliminary injunction sought were issued but the application in the principal proceedings were unsuccessful. Other rules only apply if principal proceedings are inadmissible or manifestly unfounded from the outset; in this case, issuing a preliminary injunction cannot be considered at all.

Decision

Generally, a preliminary injunction may order anything that is urgently required for making a provisional arrangement. Therefore, an application for a preliminary injunction may not be aimed at the relief sought in the principal proceedings. By way of exception, seeking this relief through a preliminary injunction is possible if legal protection might come too late otherwise and if the applicant cannot be granted sufficient legal protection by any other means.

A preliminary injunction ceases to have effect after six months, but it may be renewed. If a decision is made in the principal proceedings, any applications for a preliminary injunction become moot. With regard to constitutional complaints, this also applies if the Federal Constitutional Court does not admit a complaint for decision without giving reasons.