Case No. D2015_035 ¦ Decision of 08 March 2016 ¦ “Schutzschrift, Rückzug”
HEADNOTE
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A protective letter may not be withdrawn (r. 5).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.
Inofficially translated:
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 Instead, the FPC held that a protective letter cannot be withdrawn.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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What about the principle of party disposition? We are talking about a protective letter here. When the potential defendant is expressly not interested in being protected anymore, why should he nevertheless be forced to be protected? My understanding of Art. 270.3 CPC has always been that it constitutes an upper limit rather than a fixed term. In fact, it is not even an upper time limit since you can prolong this term by simply paying a fee. Does this decision mean that you can only get protection in consecutive six months steps, ie not for 6+3 months (on request)?
The decision holds that the opposing party has the right by law to be served with the protective letter if he or she initiates the relevant proceedings. The FPC found that is would be unacceptabel that the court had at least skim-read the protective letter on the one hand (and thus maybe implicitly considers it on the merits), while on the other hand to withhold it from the opposing party upon initiation of the relevant proceedings. It would indeed be interesting to see how the FPC would deal with a prolongation request for e.g. 3 months. (+) There is no need anymore to again skim-read it for a mere prolongation, ie the opposing party is not deprived of a document that the court has still in mind. (-) Nevertheless, the term of six months is codified in the law.