According to German law the service of judgments and other official documents normally is being done by the court. But since there’s no rule without exception, the service of preliminary injunctions has to be done by the applicant himself. Usually, he has to give it to a bailiff who has to bring it to the opponent. As you might imagine, this requirement could be quite hard to meet if the opponent is abroad. This is why the German civil procedure says that in such cases the court itself has to serve the injunction. But how does it work?
According to the German civil procedure any written statement which starts a trial has to be delivered in accordance to the international rules of service. We believe that this principle is also applicable to the delivery of temporary injunctions since the injunction is usually the first official document the opponent receives at all.
As the German civil procedure law refers to the international rules, the service is regulated by the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters”. Following to this convention, some very strict rules have to be observed. For example the document has to be served by the recipient state’s “central authority” as defined by article 2 of the convention.
However, the convention also allows it to send the judicial document by postal channels directly to persons abroad as long as the state of destination does not object. The United States, for example, did not – but Germany did. According to article 21 of the “Vienna convention on the law of treaties” such an objection “established with regard to another party modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation and modifies those provisions to the same extent for that other party in its relations with the reserving State”. The legal effect of Germany’s objection is that the objection prevails for the service of German documents in the United States (and anywhere else) as well. This means that an injunction cannot effectively be served to U.S. entities by simply using postal channels.
Unfortunately, the district court of Berlin is not of this opinion. According to a recent ruling a preliminary injunction can be effectively served in the United States by just sending it via certified mail. While this is a huge benefit for claimants, it puts defendants in quite an unfortunate position, even more so considering that, according to the new judgment, the injunction does not even have to be translated. So chances are high that the defendant will receive a simple letter without having an idea that that he just got an official document which he has to observe immediately. Could it get worse? Anyway – as long as there is only the Berlin district court’s ruling on this question we will have to deal with it.