Sat, 27 Dec 2008
FSIA and Italian Enforcement
CK - Washington. A German-Italian dispute related by the International Court of Justice in a press release may eventually affect the construction of the Foreign Sovereign Immunities Act in the United States and similar statutes elsewhere. With its December 23, 2008 petition, Germany seeks the clarification of enforcements of judgments against non-commercial property of a foreign sovereign. The petition of follows proceedings in Italy and Greece resulting in judgments against Germany and subsequent enforcement action in Italy, including a judicial mortgage recorded against German sovereign real estate. The Italian view of international law in this respect is broader than the American and German views. Therefore, a decision by the World Court may produce implications exceeding the reach of the nations involved. The court intends to publish the German petition soon.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. A German-Italian dispute related by the International Court of Justice in a press release may eventually affect the construction of the Foreign Sovereign Immunities Act in the United States and similar statutes elsewhere. With its December 23, 2008 petition, Germany seeks the clarification of enforcements of judgments against non-commercial property of a foreign sovereign. The petition of follows proceedings in Italy and Greece resulting in judgments against Germany and subsequent enforcement action in Italy, including a judicial mortgage recorded against German sovereign real estate. The Italian view of international law in this respect is broader than the American and German views. Therefore, a decision by the World Court may produce implications exceeding the reach of the nations involved. The court intends to publish the German petition soon.
© 2003-2008 German American Law Journal :: Washington USA
Fri, 12 Dec 2008
Nazis and Free Speech
AK - Washington. A preliminary injunction barring the publication of a satirical piece in the satire paper Rüsselsheimer Echo mocked the city of Rüsselsheim for two recent Nazi demonstrations--held there after a court ordered it to tolerate them--and its alleged openess to such events, was lifted on December 8, 2008.
The District Court Darmstadt had found the article defamatory and not entitled to constituational free speech protection, granting Rüsselsheim's move for injunctive relief. The Court of Appeals in Frankfurt disagreed in the matter 22 U 23/08. It held the article to be clearly satirical and, therefore, an expression of opinion rather than a factual statement of a misleading nature.
The case goes to the heart of German constitutional law. In deciding whether statements are constitutionally protected, the most important distinction is whether they constitute factual allegations or simple personal judgments without a claim of truthfulness. While the latter are generally protected as free speech, factual allegations have to be accurate to enjoy constitutional protection.
© 2003-2008 German American Law Journal :: Washington USA
AK - Washington. A preliminary injunction barring the publication of a satirical piece in the satire paper Rüsselsheimer Echo mocked the city of Rüsselsheim for two recent Nazi demonstrations--held there after a court ordered it to tolerate them--and its alleged openess to such events, was lifted on December 8, 2008.
The District Court Darmstadt had found the article defamatory and not entitled to constituational free speech protection, granting Rüsselsheim's move for injunctive relief. The Court of Appeals in Frankfurt disagreed in the matter 22 U 23/08. It held the article to be clearly satirical and, therefore, an expression of opinion rather than a factual statement of a misleading nature.
The case goes to the heart of German constitutional law. In deciding whether statements are constitutionally protected, the most important distinction is whether they constitute factual allegations or simple personal judgments without a claim of truthfulness. While the latter are generally protected as free speech, factual allegations have to be accurate to enjoy constitutional protection.
© 2003-2008 German American Law Journal :: Washington USA
Thu, 11 Dec 2008
Laptops Enjoined
CK - Washington A court may keep laptops out of the courtroom, the Federal Constitutional Court in Karlsruhe ruled on December 11, 2008 in the matter 1 BvQ 47/08. A journalist sought mandamus on the grounds that the criminal matter is of substantial public interest.
The constitutionally guaranteed freedom of the press would outweigh ministerial concerns the lower court had raised. The Supreme Court disagreed, in part because of the PC's ability to record video and audio. Notetaking, as needed by the press, can be accomplished with pen and paper.
The restriction imposed is marginal while the potential for violations of housekeeping rules in the statute on the constitution of the courts, §168 Gerichtsverfassungsgesetz, is great, the high court held.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington A court may keep laptops out of the courtroom, the Federal Constitutional Court in Karlsruhe ruled on December 11, 2008 in the matter 1 BvQ 47/08. A journalist sought mandamus on the grounds that the criminal matter is of substantial public interest.
The constitutionally guaranteed freedom of the press would outweigh ministerial concerns the lower court had raised. The Supreme Court disagreed, in part because of the PC's ability to record video and audio. Notetaking, as needed by the press, can be accomplished with pen and paper.
The restriction imposed is marginal while the potential for violations of housekeeping rules in the statute on the constitution of the courts, §168 Gerichtsverfassungsgesetz, is great, the high court held.
© 2003-2008 German American Law Journal :: Washington USA
Berlin Accords, a Diplomatic Effort
CK - Washington. Germany, the United States, six other sovereigns, an international organization and many German businesses concluded the Joint Statement of the Berlin Accords on claims for slave labor and reparations on July 17, 2000.
As a result, it constitutes a diplomatic effort that justifies its review under treaty law as opposed to federal common law in litigation over the disputed enforcement by private parties of interest payments due under the terms of the statement, the United States Court of Appeals for the Third Circuit determined in Elly Gross et al. v. The German Foundation Industrial Initiative et al., docket number 07-3726, on December 10, 2008.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. Germany, the United States, six other sovereigns, an international organization and many German businesses concluded the Joint Statement of the Berlin Accords on claims for slave labor and reparations on July 17, 2000.
As a result, it constitutes a diplomatic effort that justifies its review under treaty law as opposed to federal common law in litigation over the disputed enforcement by private parties of interest payments due under the terms of the statement, the United States Court of Appeals for the Third Circuit determined in Elly Gross et al. v. The German Foundation Industrial Initiative et al., docket number 07-3726, on December 10, 2008.
© 2003-2008 German American Law Journal :: Washington USA
Wed, 10 Dec 2008
Constitutional Commute
CK - Washington. The federal legislator reduced constitutionally a politically sensitive tax deduction for commuters. Germany used to allow generous deductions for commuting expenses and drastically changed that rule for 2007.
On December 9, 2008, the Federal Constitutional Court in Karlsruhe ruled new §9(2)(1) of the Income Tax Statute, Einkommensteuergesetz, compatible with the equal protection standard established in Art. 3(1) of the German Constitution. The decision in the matters 2 BvL 1/07, 2 BvL 2/07, 2 BvL 1/08 and 2 BvL 2/08 comes with an official press release in English.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. The federal legislator reduced constitutionally a politically sensitive tax deduction for commuters. Germany used to allow generous deductions for commuting expenses and drastically changed that rule for 2007.
On December 9, 2008, the Federal Constitutional Court in Karlsruhe ruled new §9(2)(1) of the Income Tax Statute, Einkommensteuergesetz, compatible with the equal protection standard established in Art. 3(1) of the German Constitution. The decision in the matters 2 BvL 1/07, 2 BvL 2/07, 2 BvL 1/08 and 2 BvL 2/08 comes with an official press release in English.
© 2003-2008 German American Law Journal :: Washington USA
Tue, 02 Dec 2008
End of Engagement
CK - Washington. When does the attorney-client relationship, specifically the contract with its warranties, end? On termination, expiration or other terms of the contract, of course. But how about the situation where a contract does not specify a term or its end?
There is no hard and fast rule, the German Supreme Court for Civil Matters, Bundesgerichtshof, in Karlsruhe ruled on November 13, 2008 in a decision published today in the matter IX ZR 24/06.
The inquiry for a court must be facts-centric, it held. The perception of the attorney when the matter is concluded is an important factor, the billing date usually not. The engagement of counsel is not susceptible to the establishment of general rules as to its termination. A court may determine that an engagement is terminated even if an objective fact-finder may conclude that additional activities by the attorney appear warranted.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. When does the attorney-client relationship, specifically the contract with its warranties, end? On termination, expiration or other terms of the contract, of course. But how about the situation where a contract does not specify a term or its end?
There is no hard and fast rule, the German Supreme Court for Civil Matters, Bundesgerichtshof, in Karlsruhe ruled on November 13, 2008 in a decision published today in the matter IX ZR 24/06.
The inquiry for a court must be facts-centric, it held. The perception of the attorney when the matter is concluded is an important factor, the billing date usually not. The engagement of counsel is not susceptible to the establishment of general rules as to its termination. A court may determine that an engagement is terminated even if an objective fact-finder may conclude that additional activities by the attorney appear warranted.
© 2003-2008 German American Law Journal :: Washington USA
Sat, 29 Nov 2008
Rhythm Sampled for Free Use
CK - Washington. A two-second rhythmic stretch, sampled by musicians from another musicians' recording, triggered litigation for a copyright violation and a judgment in favor of the original creators. On November 20, 2008, the German Supreme Court for Civil Matters in Karlsruhe remanded the matter to the Hamburg Court of Appeals for an examination of the free use doctrine as applied to music sampling.
While §85 of the German Copyright Act protects the first work, its §24(1) contains exceptions permitting the free use of others' creations. A recycled melody remains protected but the sound bit at issue deserves further factual exploration and legal analysis which the appellate court had failed to perform, the court explained in Metall auf Metall, docket number I ZR 112/06.[German Law, German Copyright, Urheberrecht, Sampling, Supreme Court, Bundesgerichtshof]
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. A two-second rhythmic stretch, sampled by musicians from another musicians' recording, triggered litigation for a copyright violation and a judgment in favor of the original creators. On November 20, 2008, the German Supreme Court for Civil Matters in Karlsruhe remanded the matter to the Hamburg Court of Appeals for an examination of the free use doctrine as applied to music sampling.
While §85 of the German Copyright Act protects the first work, its §24(1) contains exceptions permitting the free use of others' creations. A recycled melody remains protected but the sound bit at issue deserves further factual exploration and legal analysis which the appellate court had failed to perform, the court explained in Metall auf Metall, docket number I ZR 112/06.
© 2003-2008 German American Law Journal :: Washington USA
Fri, 28 Nov 2008
Defendant Unidentified in News
CK - Washington. May German media publish the names of criminal defendants in their court reports? That is the central issue in the matter 1 BvQ 46/08, involving media concern N24 and the presiding judge of the Oldenburg court, addressed by the German Constitutional Court in Karlsruhe on November 27, 2008.
The Karlsruhe court declined to issue a TRO in favor of N24 that challenged a lower court order disallowing media reports without an anonymized or pixelated identification of a defendant.
The constitutional basis for the challenge is article 5 of the federal constitution, the guarantee of freedom of the press. That guarantee is subject to a balancing against other constitutional protections, in this instance the so-called personality rights of the defendant.[German Law, German Constitution, Press Freedom, Injunction, Supreme Court, Bundesverfassungsgericht]
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. May German media publish the names of criminal defendants in their court reports? That is the central issue in the matter 1 BvQ 46/08, involving media concern N24 and the presiding judge of the Oldenburg court, addressed by the German Constitutional Court in Karlsruhe on November 27, 2008.
The Karlsruhe court declined to issue a TRO in favor of N24 that challenged a lower court order disallowing media reports without an anonymized or pixelated identification of a defendant.
The constitutional basis for the challenge is article 5 of the federal constitution, the guarantee of freedom of the press. That guarantee is subject to a balancing against other constitutional protections, in this instance the so-called personality rights of the defendant.
© 2003-2008 German American Law Journal :: Washington USA
Thu, 27 Nov 2008
Constitutional Rulings in Germany
CK - Washington. The German Federal Constitutional Court in Karlsruhe recently published the following decisions. The dates follow the day, month and year format. Cases are not cited by party names. Instead, German citation rules rely on the docket numbers. The court publishes its decisions in German although it releases some press statements in English.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. The German Federal Constitutional Court in Karlsruhe recently published the following decisions. The dates follow the day, month and year format. Cases are not cited by party names. Instead, German citation rules rely on the docket numbers. The court publishes its decisions in German although it releases some press statements in English.
- 1 BvR 2456/06 dated 12.11.2008: Nuclear storage permits.
- 1 BvQ 41/08 dated 06.11.2008: Appointment of notary.
- 1 BvR 1008/08 dated 05.11.2008: Constitutionality of statute.
- 1 BvR 2587/06 dated 04.11.2008: Civil litigation in employment matters.
- 2 BvR 270/08 dated 03.11.2008: Employment litigation involving civil servant.
- 1 BvR 256/08 dated 28.10.2008: Injunction against surveillance.
- 1 BvR 2147/08 dated 23.10.2008: Dismissal of constitutional petition.
- 2 BvR 749/08 dated 22.10.2008: Criminal protective measure.
- 2 BvR 2028/08 dated 22.10.2008: Extradition to Russian Federation.
- 1 BvR 1217/08 dated 22.10.2008: Statute of limitations in Civil Code.
- 1 BvR 1218/08 dated 22.10.2008: Statute of limitations in Civil Code.
- 1 BvR 1219/08 dated 22.10.2008: Statute of limitations in Civil Code.
- 1 BvR 2275/08 dated 20.10.2008: Parental custody.
- 1 BvR 1138/06 dated 15.10.2008: Tax enforcement after changed precedent.
- 2 BvR 236/08, 2 BvR 237/08 dated 15.10.2008: Surveillance and data storage in telecommunications.
© 2003-2008 German American Law Journal :: Washington USA
Sat, 22 Nov 2008
RAF and Guantanamo
CK - Washington. Was German due process afforded its RAF terrorists better or worse than the Guantanamo response to terror? That is one of the many questions The Baader Meinhof Complex movie generated at its East Coast premiere last night at the AFI in Silver Spring, Maryland.
Stefan Aust of the influential Der Spiegel magazine presented an eyewitness account of the Red Army Faction period and the making of the film. Unfortunately insufficiently prepared for explaining with proper legal terms matters such as detention, transcripts or due process, he inferred that German anti-terror authorities deviated from due process standards of the German legal system but not as badly as the Bush administration does with Guantanamo.
Overall, the film--which plays again on Sunday--places the state in the dock, without defense counsel, next to the terrorists. In the 1970s, American police seemed scarier than German police and some could remind foreign visitors of the Gestapo rather than the expected enlightened implementers of the famed American due process of the law. Much has changed in both countries, and Guantanamo is probably not the fairest contrast to German anti-terror policy of thirty years ago.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. Was German due process afforded its RAF terrorists better or worse than the Guantanamo response to terror? That is one of the many questions The Baader Meinhof Complex movie generated at its East Coast premiere last night at the AFI in Silver Spring, Maryland.
Stefan Aust of the influential Der Spiegel magazine presented an eyewitness account of the Red Army Faction period and the making of the film. Unfortunately insufficiently prepared for explaining with proper legal terms matters such as detention, transcripts or due process, he inferred that German anti-terror authorities deviated from due process standards of the German legal system but not as badly as the Bush administration does with Guantanamo.
Overall, the film--which plays again on Sunday--places the state in the dock, without defense counsel, next to the terrorists. In the 1970s, American police seemed scarier than German police and some could remind foreign visitors of the Gestapo rather than the expected enlightened implementers of the famed American due process of the law. Much has changed in both countries, and Guantanamo is probably not the fairest contrast to German anti-terror policy of thirty years ago.
© 2003-2008 German American Law Journal :: Washington USA
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