The Higher Regional Court of Stuttgart has decided that the immediate appeal against the rejection of an application for a temporary injunction pursuant to Section 78 Paragraph 1 Sentence 1 of the Code of Civil Procedure is subject to compulsory representation by a lawyer (Beschl. v. 17.04.2024, Az. 3 W 18/24).
The parties are neighbors on the same property. One of them requested an interim injunction to prohibit the other from removing or changing a border structure during an independent evidence-taking procedure. The district court rejected the application. The neighbor immediately lodged an appeal against this via the special electronic citizens’ and organizations’ mailbox (eBO).
OLG Stuttgart: Form of the application does not remove the requirement to have a lawyer
However, the Stuttgart Higher Regional Court rejected this as inadmissible because it had not been filed by a lawyer in accordance with Section 78 Paragraph 1 Sentence 1 of the Code of Civil Procedure. The law does offer the possibility of declaring the application for a temporary injunction to be recorded in the court registry without a lawyer (Section 920 Paragraph 3, Section 936 of the Code of Civil Procedure or Section 78 Paragraph 3 of the Code of Civil Procedure). However, this only affects the form of this application and does not remove the requirement for a lawyer for the entire procedure. This view also corresponds to what is now the predominant case law of the higher regional courts.
According to the wording, Section 78 Paragraph 3 of the Code of Civil Procedure regulates exclusively the form of a procedural action and not the question of whether the underlying proceedings are proceedings involving a lawyer. The Stuttgart Higher Regional Court follows the case law of the Federal Court of Justice, according to which the legal possibility of making statements for the record of the registry cannot be used to conclude that there is no obligation to have a lawyer for the proceedings as a whole. This regulation only applies to the application
(BGH Beschl. v. 12.07.2012, Az. VII ZB 9/12The freer form is intended to take account of the situation that in individual cases, due to the particular urgency, there may not be sufficient time to seek legal assistance to initiate the proceedings.
