Case No. D2015_035 ¦ Decision of 08 March 2016 ¦ “Schutzschrift, Rückzug”
Art 270 CPC; Protective letter, withdrawal.
A protective letter may not be withdrawn (r. 5).
Soon after the decision of 09 February 2016 in the same matter, this is yet another decision on the dos and don’ts after filing of a protective letter — featuring one of the shortest headnotes I have ever seen.
It had been requested to withdraw the protective letter before the end of its regular term of consideration (6 months). In support of this request, it had been relied on a commentary (BSK ZPO — Hess-Blumer, Art. 270, no. 33), saying:
Selbstverständlich ist es dem Hinterleger auch möglich, die Schutzschrift vor Ablauf von sechs Monaten zurückzuziehen oder bereits in der Schutzschrift eine kürzere Aufbewahrungsdauer zu beantragen.
It is of course possible for the party that had submitted the protective letter to withdraw it before having reached its term of six months, or to request a shorter term already in the protective letter itself.
The practical test failed. Instead, the FPC held that a protective letter cannot be withdrawn. No way! When the protective letter is on file, the consequences are codified in Art. 270 CPC itself, ie (i) the opposing party shall be served with the protective letter only if he or she initiates the relevant proceedings (Art 270(2) CPC); and (ii) the protective letter becomes ineffective six months after it is filed (Art 270(3) CPC). It is held in the decision that these consequences are simply out of the submitter’s control.
Reported by Martin WILMING
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