A preliminary injunction is a provisional arrangement intended to ensure that the subsequent decision of the Federal Constitutional Court in the principal proceedings is effective and can be implemented. It is designed to prevent situations that can no longer be reversed.
Example
The applicants challenge a court decision ordering their child to be returned to another state. Without deciding the constitutional complaint itself, the Federal Constitutional Court may temporarily suspend the execution of the court order.
Prerequisites
When an application for preliminary injunction is lodged, principal proceedings in the matter do not have to be pending. It is sufficient that an application for a decision in principal proceedings could be lodged subsequently, and that the application would neither be inadmissible from the outset nor clearly unfounded. Such isolated preliminary injunction proceedings receive their own file reference (‘BvQ’); in all other cases, an application for preliminary injunction has the same file reference as the application in the principal proceedings. In pending cases, the Court can also issue a preliminary injunction ex officio even if no application for preliminary injunction has been made.
Pursuant to § 32 of the Federal Constitutional Court Act, the Court issues a preliminary injunction if this is urgently required to avert severe disadvantage, prevent imminent violence or for other important reasons in the interest of the common good. The standard of review thus differs from the one used in the principal proceedings. The Court does not decide on the basis of the matter’s prospects of success in the principal proceedings, but on the basis of a weighing of consequences: the potential consequences that would arise if the preliminary injunction sought were not issued but the application in the principal proceedings were later successful are weighed against the disadvantages that would arise if the preliminary injunction sought were issued but the application in the principal proceedings were ultimately unsuccessful. The Court only foregoes such weighing of consequences if the case in the principal proceedings is inadmissible from the outset or clearly unfounded. There is then no scope for issuing a preliminary injunction.
Decision
Generally, the Court can issue a preliminary injunction that provisionally orders anything that is urgently required. This means that an application for preliminary injunction may not be aimed at the relief sought in the principal proceedings. By way of exception, seeking such relief through a preliminary injunction is possible if legal protection might otherwise come too late 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 rendered in the principal proceedings, any applications for preliminary injunction become moot. With regard to constitutional complaints, this also applies if the Federal Constitutional Court does not admit a complaint for decision in an order issued without reasons.