Our subsequent client had wrongfully issued a warning to a competitor before the start of a court proceeding for an alleged breach of competition law. Because a dispute then arose between the competitors, we were then hired by the client and we had recommended to our client, due to the unjustified nature of the claim asserted by him, to declare a comprehensive procedural and substantive waiver with regard to the claim asserted out of court. Additionally, we had advised our client to sign a cease-and-desist declaration with a penalty clause to the effect that he would no longer assert this claim against the competitor in the future.
Nevertheless, our client’s competitor brought an action for a declaratory judgement before the Regional Court of Frankfurt am Main. The competitor wanted it judicially determined that the claim asserted out of court by our client did not exist. To our surprise, the Regional Court in Frankfurt am Main affirmed the plaintiff’s interest in a declaratory judgement for these legal proceedings, despite the comprehensive waiver and the declaration of discontinuance with the penalty clause in it signed by our client (defendant).
We appealed against this first-instance court ruling to the Frankfurt am Main Higher Regional Court (OLG). The OLG Frankfurt am Main corrected the (erroneous) opinion of the first instance court after just a few weeks. In the view of the OLG Frankfurt am Main, our client’s comprehensive declaration of waiver was already sufficient to render the plaintiff’s interest for his action of a declaratory judgement to be null and void. The declaratory action was already inadmissible in this respect. Both parties subsequently declared the legal dispute to be settled. The (erroneous) first instance declaratory judgement thus became invalid.