CK - Washington. Relaxed rules will become effective very soon, Simon's Blawg notes. The Stuttgart Chamber of Commerce provides a useful summary in German.
Companies not older than four years may now conclude temporary employment agreements, for up to four years. The rules on the termination of employees are substantially clearer: There are fixed severance structures for terminated employees who waive their right to challenge a termination in court. In addition, workable criteria apply to the selection of employees for termination based on business developments, and the standard of judicial review of adherence to the criteria is no longer simple negligence. While employees may generally not be required to work more than an average of 48 hours per week over a six month term, new collective bargaining agreements may deviate from this standard.
The effective date of the new employment rules is January 1, 2003. Internationally, they should make the work force in Germany more competitive. The special rules for new ventures should enable international businesses to test the German market for a good number of years without incurring the previously substantial penalties for terminating employees when leaving the market. The severance criteria render the costs of an engagement in Germany greaty more predictable.
CK - Washington. A Christmas present is what a German law blog calls a ruling by the German Supreme Court BGH: Lawyers may now bring laptops into jail for client conferences as long as the laptop is not stuffed with a network card or other accessories. The order, dated December 15, 2003, occurred in the course of an investigation against a certain I.G., case numbers 2 BGs 315/2003, 2 BJs 11/03-5, involving a terrorist conspiracy.
CK - Washington. The Federal Employment Court in Kassel, the highest German court responsible for industrial relations, recently decided that theft and conversion by an employee of property owned by the employer constitute cause for immediate termination. In another development, the planned tax reduction statute has caused the government to a concession in the area of employment law.
The new employment rules exempt employers with less than 10 employees from the strictest forms of employee protection against the termination of employment contracts. Currently, the exemption covers very small employers with up to five employees. Ten is a more reasonable number in the international experience where a startup should be able to ascertain its future before reaching the new limit.
The BAG decision 2 AZR 36/03 of December 11, 2003, published by Beck, is important because theft and conversion by themselves were not always deemed to constitute cause for termination. Employers were often unable to fire personnel on such grounds. Of particular significance is the court's holding that such conduct constitute cause not only among other factors. In other words, theft and conversion by themselves will constitute cause. The court clarified that other factors may be essential in terms of procedure and timing of the termination, but "other factors" are not to be interpretated as qualifiers of the cause.
CK - Washington. Four judges were appointed to the following divisions of the Federal Supreme Court in Karlsruhe:
The appointments were announced on December 11, 2003. The court known as the BGH is one of several federal supreme fora spread over several cities in the federation. The one in Karlsruhe is generally deemed the most important and is charged with civil and criminal matters. Other supreme courts exist, for instance, for administrative law, employment relations, and tax law. The ultimate supreme court in Germany is the constitutional court, also located in Karlsruhe, the capital of the law in Germany.
SW - Washington. The German Supreme Court (Bundesgerichtshof/BGH) recently clarified the requirements for the admission to the German bar. The court held that a German national residing in the United Kingdom who passed the First but not the Second Legal State Exam in Germany and who is admitted to the practice of law in New York, after addional U.S. law studies, could neither gain admission to the practice of law in Germany nor enjoy the privileges of an established European lawyer. Such a lawyer may, however, practice in Germany using the foreign title; this practice may include the laws of the country that conferred the degree and granted the bar admission as well as a focus on international law.
The decision resolves a controversy between a German national and regional bar administrators. The plaintiff, the German national, had passed the first, but not the second comprehensive state exam in Germany. In addition, he gained admission to the New York bar after attending a U.S. law school. When the dispute arose, he resided in London and had not been admitted there as a barrister, solicitor or advocate. He applied for admission to the German bar which rejected the application, resulting in this lawsuit.
The BGH confirmed the rejection because he qualified neither under BRAO (Bundesrechtsanwaltsordnung), the rules governing the admission to practice law based on the standard legal education in Germany, nor under EuRAG (Europäisches Rechtsanwaltsgesetz), the European Union rules controlling the practice of European attorneys in Germany, as follows:
(1) The plaintiff did not qualify for admission under § 4 BRAO which requires the Referendar and Assessor degrees because he completed only part of the standard education.
(2) He failed to meet the alternative requirements of sections 11 Abs.1 S.1 EuRAG. While a candidate who establishes an actual and systematic practice as a European attorney in Germany for three consecutive years covering German and European law will be admitted as an attorney in Germany, the plaintiff did not prove such a practice.
(3) Candidates qualified for the European attorney practice may be admitted under § 16 Abs.1 EuRAG after passing an exam to evaluate the fitness for the practice of German law. The plaintiff's petition failed that test.
As applied to the instant facts, the court concluded that his admission was lawfully denied. The ruling is important because it clarifies that German nationals may not circumvent the standards for a qualifying legal education in Germany by seeking admission abroad. Whether it will control in the long term remains to be seen. Currently, the two-step system of legal education underlying the ruling is under review and a reform may follow.
AC - Washington. This week, German finance minister, Hans Eichel, and attorney general, Brigitte Zypries, presented a bill for a new statute concerning the auditing of financial statements. The act would introduce a so-called "enforcement procedure" to monitor the auditing of financial statements of German businesses.
Under current law, financial statements of corporations are audited by a CPA and the supervisory board of the corporation. Some cases have illustrated, however, various deficiencies in that process. Thus, to rein in corporate abuse and to restore investor confidence, the new law would create a private organization to ensure the quality of audits. In a first step, the organization would review financial statements of corporations listed on national exchanges, randomly or if an initial investigation suggests wrongdoing. This review is dependent on the consent by the corporation. In the event that an corporation should deny the request for a review by the organization, the Treasury Department may issue an order to compel the audit. In the event that the Treasury Department should question the resulting audit or procedure, it may also directly intervene in the proceedings.
The new organization will be funded through fees collected from nationally listed corporations. The legislation has been drafted in cooperation with German business organizations.
AC - Washington. Yesterday, the Munich Court of Appeals decided in Kirch v. Deutsche Bank a controversy arising out of comments by former Deutsche Bank chief Rolf Breuer. Two months before the filing of KirchMedia's petition for bankruptcy Breuer doubted in an interview with Bloomberg TV Kirch Group's creditworthiness. Given the facts, he said, he does not see that the financial markets would provide more funds to the media affiliate, the most important Kirch affiliate. After these statements other banks declined to deal with Kirch.
The court found Breuer to have violated privacy laws, and confidentiality agreements between Kirch and its lender Deutsche Bank, resulting in the bank's liability, because Breuer had made these statements in his capacity as chairman of the board of Deutsche Bank and not as a private person, as Breuer had alleged. The court, however, overruled the decision of the lower court with respect to Breuer's individual liability and found that he is not personally liable to Kirch.
The amount of damages have not yet been determined. Reportedly they could
exceed one billion Euros. An award of this amount would be a blow against
the German bank and support critics of the substantial involvement of banks in
German corporations.
JN - Recklinghausen. Real estate owned by a foreign sovereign and used solely for diplomatic purposes enjoys protection under German law. In a recent decision (BGHR 03, 1041), the German Supreme Court in Civil Matters (Bundesgerichtshof - BGH) prevented such property from going into foreclosure. The question whether such real estate is governed by German law or not is a matter of international law, according to Art. 25 Grundgesetz (Constitution - GG) and § 20 Abs. 2 Gerichtsverfassungsgesetz (Constitution of the Courts - GVG). Under the principles of international law adapted into German law, it is not generally undue that a foreign sovereign's property may become subject foreclosure, as the German Constitutional Court (Bundesverfassungsgericht - BVerfG) stated in the matters BVerfGE 46, 342, 388, 392; 64, 1, 23, 40. But there is an international principle according to which property situated in Germany may not be executed into without the express consent of the foreign state, provided the property is being used chiefly for political or diplomatic purposes.
Because of the obvious difficulties in determining the property's main purpose, international law requires the broad application of this rule. Therefore, any property used for consular or diplomatic missions is inviolable. This includes an embassy's real estate (Art. 22 ff. of the Vienna Convention on Diplomatic Relations; Art. 31 of the Vienna Convention on Consular Relations), the court confirmed.
CK - Washington. Various NS and discriminatory logos, songs, expressions and other material can trigger criminal prosecution in Germany. In an attempt to clarify the sanctioned items and expressions, a state government agency has published a list. Under the federal constitution of the United States, nearly all of the material listed here would benefit from freedom of expression principles. Unlike the United States which has not comprehensively addressed past and present discriminatory behaviour or the extermination of segments of its population in a criminal context and has limited sanctions primarily to acts defacing or deriding national symbols, Germany and other European nations have moved toward the other extreme of criminally prosecuting the glorification of barbaric or discriminatory systems, attitudes and their symbols.
CK - Washington. An American software product that forms a valuable line of defense against hackers is the reported cause of an unintended
Similar incidents, also some involving German software used in the United States, caused distress among network administrators when software buggily pinged servers at high rates or its designers failed to realize that users might modify the software so that it could accidentally or maliciously ping certain targets in a harmful manner. In some cases, demands from were made on the software makers for vast amounts of damages.
Perhaps there is a need to absolve protective software from product liability claims in the same manner that government procurement rules exempt government-specified products from such claims or Homeland Security exemptions cover goods for the defense against terrorism.
ZY - Washington. The Second Bavarian IT Day focused on contracts on the internet under §312 b of the German Civil Code, the new Value-Added Service statute as a response to abuse by so-called dialer software and sniper software, an overview of the amended German Copyright Act, and the new supplemental terms of contracts for securing services from private IT companies. Stephan Meyer provides an English conference report.
FS - Washington. Transatlantic attorney Gunter von Conrad of Washington, DC died suddenly during a recent visit to Germany, as Hauptstadt::Washington reports. A memorial service arranged by the German Lutheran Church will be held at Pilgrim Lutheran Church in Bethesda, on December 13, 2003.
SW - Washington. Since a national court of a member state of the European Union is bound by European law, it has to interpret its national law in conformity with the supreme European law. To assure an accurate interpretation, a national court can make a request to the European Court of Justice (ECJ) to pronounce on the interpretation of European law.
In a new case, the Frankfurt Civil Court, a court at the district level, asked the ECJ if businesses may prohibit the use of their "infrastructure", in this instance an internally-used software program designed to gather and evaluate data.
The court provided the following facts to the ECJ: Plaintiff, market survey firm IMS Health GmbH & Co.OHG, filed suit against Defendant, NDC Health GmbH & Co. KG, a firm run by a former CEO of Plaintiff for an alleged infringement of its copyrights.
Plaintiff had developed a program to gather and evaluate data on regional sales of pharmaceuticals. The program is being used since 1970 by pharmaceutical businesses and constitutes the standard in this industry.
Defendant intended to start a business and developed a program for the same purpose. Its system failed, however, and Defendant began to use Plaintiff's program to develop a new system with it. Plaintiff then sued Defendant for violation of its copyrights in a German court and requested injunctive relief.
Based on the facts provided, before the final interpretation of European law is pronounced by the ECJ, an EU advocate general makes a closing statement.
In this case, the advocate general argued in favor of a permission to use the infrastructure of a competitor under certain conditions to prevent abuse of a monopoly. As guideline when such an abuse in violation of European law is present, he enumerated the following factors:
(1) The refusal to permit the use of the infrastructure is objectively not justifiable,
(2) the use of the immaterial good is indispensable for a related, but different market and
(3) the owner of the good would prevent competition by refusing to license.
However, the prerequisite for opening the market to compulsory licensing of innovations is that the competitor does not intend to use the license exclusively to imitate or develop similar products with view to the licensor. Rather, the licensee may use the infrastructure only to develop distinguishable products.
If all these requirements are satisfied, a copyright owner might be obligated to license his innovation.
In the present case, the German court would have to verify, therefore, which objective Defendant pursues by using Plaintiff's infrastructure.
In the event that the ECJ shares the view of the advocate general, its decision may have significant consequences if put into practice. Here, at first sight, the consequences might not seem too grave but only an application over time can reveal to what extent this compulsory licensing principle may hurt IP owners. At least, the condition that the innovation being the subject of the compulsory license has to be an industry standard as well as the other restrictions appear to ensure that a core of copyright protection remains untouched.
CK - Washington. Like Australians and soon Americans, EU citizens now enjoy coherent region-wide anti spam rules. The new EU rules of the Privacy Protection Directive 2002/58/EC had to be transposed into national member-country laws by October 31, 2003. A description in English is this official notice and in German this Heise Online update.
CK - Washington. A list German statutes in English translations is at the Carob translation service's website. TransBlawg's blogger and master translator for German-English text recommends the site. With two translation experts endorsing the material, these resouces would appear to be reliable for many purposes.
WM - Schongau. According to the highest German court for administrative law, the Conference on Jewish Material Claims against Germany (JCC) must meet certain requirements in order to effectively register restitution claims under the restitution law covering East German property, the Vermögensgesetz.
This statute grants restitution to victims who suffered financial losses due to acts of nazi-terror within the borders of the former GDR and the Soviet sector of Berlin. Under the Vermögensgesetz, the JCC may claim restitution for deceased Jewish beneficiaries and their successors, who failed to file claims, thereby claiming the restitution of expropriated real property. In order to meet the statutory registration deadline of December 31st, 1992, the organization first made a global registration of claims for any and all properties.
The court held, however, that claims must identify expropriated real property, its value and former owner(s) by referring to files and documents of authorities, archives, institutions or companies made accessible after the collapse of the GDR. Therefore, the court turned down the request for a global registration of claims. It upheld a subsequent filing that that met the statutory burden, see BVerwG 7 C 62.02 and 8.03, Oct 23, 2003).
CK - Washington. BVerwG 6 C 23.02, a decision of October 22, 2003 by the highest German court for administrative law in Dresden, analyzed here, waives the requirement for sellers of prepaid cell phones to collect customer data. The court held that the agency requiring the collection of user data violated the constitutional right to informational self-determination.
German criminal investigators are outraged because they consider prepaid phones a common tool for criminals. The decision assures buyers of anonymity and foils their tracing when such phones are used in crimes.
The argument may lead to a revision of the statute, §90(1) TKG, in a manner compatible with the constitutional mandate of Art. 2 GG which embodies the principle of informational self-determination and, thereby, protects the privacy of individuals.
CK - Washington. Typical mistake in the German press: Tagesschau.de discusses a spam conviction in California and refers to some statute, as if there were a federal anti-spam statute.
This type of reporting will have much of Germany believe that the U.S. now has a precedent and statute. The press usually perpetuates such confusion by omitting corrections or updates.
For instance, whenever juries deliver astounding verdicts, the German press points to them as examples of American excessiveness, without noting that such verdicts frequently suffer a remittitur. As a result, even 10 years later you hear Germans refer to that verdict as typifying the American legal system, without the benefit of knowing at least foggily what they are talking about and how wrong and embarrassing such statements are.
As to spam on the federal level, Eva Wagner has an analysis of the current legislative developments, and Zeynep Yilmaz recently reported on a Missouri case.
Unfortunately, misinformation on the law is a two way street. In the United States, Germans cringe when they hear the matter of factly stated comment that in Germany and the Continent, an accused would be guilty until proven innocent which is about as wrong as confusing motherhood with apple pie.
A blogged discourse may help on occasion.
JN - Recklinghausen. Regardless of dot-com bubbles and internet hypes, Intellectual Property often is one of the most valuable corporate assets. For instance, Business Week estimates the current monetary value of the Coca-Cola brand at US$70.45 billion, representing up to 70% of the total market capitalization of the company. For small and medium enterprises the valuation of IP assets is also important, as the World Intellectual Property Organization (WIPO) points out. Win-win situations in licensing negotiations, M&A or securization require proper knowledge of the true value of a company's assets, including the tangibles and intangibles.
For example, a company should know the value of its IP before entering into a reasonable licensing agreement. But some 75% of Fortune 500 companies admitted in a recent survey that they do not assign a value to their IP in their annual reports. In large part, this results from their difficulties in valuing intangible assets.
Several approaches based on common methods of valuating tangible property lend themselves to IP valuations. The income approach considers the income an IP asset could generate through its economic life, for instance by estimating the amount of money the company saves by not having to obtain a license from another party. The market approach compares the value of similar IP as determined by actual sales of intellectual property assets. This approach is more limited because it requires a public market to compare such assets. More recent valuation approaches treat IP, in particular patents, like transactions involving options in capital markets. Similar to options, patents also contain a right, but no obligation, to make use of an innovation in a given period of time. Most option-based valuation methods derive from the Black-Scholes options pricing model.
In general, these methods apply as well in Germany. However, German accounting regulations do not permit the treatment of intangibles as assets unless the intellectual property has been purchased.
CK - Washington. The German rules requiring detailed information on web publishers have been abused greatly by cease and desist specialists who send demands to alleged violators and charge them a fee for their service. In one case, a court condoned the practice when a web publisher failed to make the information available with two mouse clicks from the main page. Another court defined the screen resolution which controls where a compliant link to the information should reside. Other courts have addressed the issue of "commercial purpose" as a criterion to subject web sites to the requirement, and the trend there appears to deem commercial any third party advertising banners even if the site does not display any other commercial purpose.
A recently released Frankfurt decision of March 28, 2003 applies the rules of § 6 of the Tele Data Statute to a Welsh company whose website is directed at readers in Germany. A competitor of the company argued that even if the Welsh company cannot display required German corporate information to identify the publisher, it would still be required to meet the statutory burdens. The Frankfurt court agreed and ordered the company to display its foreign corporate data. The court took into account that the management of the Welsh company operated in Germany.
With Germany being data protection heaven, the urge to publish easily abused information surprises. The pertinent statutes practically force confidential information into the hands of crackers and identity thieves; and the outrageous cease and desist rules reward blackmailers and snitches, at least when viewed from a foreign perspective.
The example of this compliant statement lists not only email and other contact information but also tax IDs and other business data. Imagine a mistake, and the German equivalent of ambulance chasers will hound the poor net citizen.
JN - Recklinghausen. Germany makes another attempt to get rid of the self-proclaimed "Kalif of Cologne". Up to now, Turkish radical Islamist leader Metin Kaplan, convicted on appeal for murder and released from prison after having served a four year sentence, has successfully challenged every attempt by German officials to expel him. Although his immigration status as a legal asylum-seeker has been revoked, German courts continue to prevent Kaplan's deportation.
As the Cologne Administrative Court Cologne now held, a deportation is unlawful if there is evidence that the deportee might suffer torture or could be subject to a procedure violating the rule of law in his home country. Despite Turkey's latest efforts at complying with human rights, the court disallowed Kaplan's deportation because of the probabalities of future violations. It found sufficient evidence that Kaplan might be criminally convicted on the basis of statements made under torture.
The case attracts attention in German media because it highlights Germany's
inability to deal with asylum seekers who are convicted criminals. German Secretary of the Interior, Otto Schily, even
travelled to Turkey to secure official guarantees that Kaplan would enjoy a fair trial. In Turkey, Kaplan is accused of subversive activities. As he frequently stated in his radical
speeches, his organization hopes to convert Turkey into a state
exclusivley governed by the rules of Islam. After Schily's return from
Turkey, his department challenged the case before the Court of Appeals
of Münster. The court confirmed that the case,
which is said to put the efficacy of German asylum law to the acid
test, will be handled speedily and without delay.
ZY - Washington. In a surprising development, the European Court of Justice opened the door to legal recourse for business harmed by the European Union's failure to complate with a World Trade Organization mandate. A few days ago, the court found that the direct applicability of WTO rules in EU law may allow new remedies for damages suffered by its citizens for violations by the EU bodies. A new analysis by Werner Berg of Gleiss Lutz explains how the new rulings constitute a potential third prong for a direct WTO effect in EU law.
By imposing an EU import embargo of hormone-treated cattle and beef from non-EU-Member States, the EU infringed upon several provisions of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Later, the EU failed to comply with a WTO ruling ordering the EU to terminate the embargo. Traders suffered damages as a result of the embargo. The ECJ dismissed the current cases seeking their redress of grievances but announced the above trend which is favorable for its citizens injured by the EU's failure to comply.
Dr. Berg, the author of the analysis, is a trade expert who advises international businesses in transatlantic trade disputes, including the Banana War, and the upcoming threats--and preventive planning--from E.U. sanctions for the U.S. tax rebate program held illegal under WTO rules, and recently discussed the EU trends with Bloomberg.
CK - Washington. stern.de offers theses and papers on various subjects, including law, on its online site, as Handakte WebLAWG points out. WebLAWG also praises a German patent law site.
TD - Heidelberg. The German Parliament enacted a statute to address copyright law in the information society--Gesetz zur Regelung des Urheberrechts in der Informationsgesellschaft--as an amendment to the German Copyright Statute. Beyond the revisions of the copyright law, the statute adjusts the Urheberrechtswahrnehmungsgesetz and the Unterlassungsklagengesetz. Both statutes lack a direct counterpart in the United States. The Code of Criminal Procedure (Strafprozessordnung) required a few modifications. The 2003 amendment is now effective and available for download.
Three changes warrant particular attention. The law places signifcant emphasis on restrictions on copies made of works protected by copyright, such as downloads of music and carbon copies of printed works. This change is somewhat similar to the controversial American Digital Millenium Copyright Act of 1998.
a) §53: This section restricts copies in the form of digital data or regular hard copies from digital data or regular hard copies from books if the source from which the copies are made is obviously unlawful. The section is intended to prevent pirated copies, principally in the field of music in the MP3 format downloaded from the internet. An unlawful source is any origin of data for which the creator has not granted a use to replay such data. In essence, this section does not modify existing Copyright law but it clarifies that only authorized dulications are lawful.
b) §95a-d: The legislator added a new regime which prohibites the manipulation or evasion of mechanisms designed to protect against unauthorized copies. The production of copies of any regularly purchased music compact disk for oneself is prohibited if the CD contains an anti-copy feature. Computer programs do not fall under this regime. §69a provides that a single backup copy may be made of software. In addition, the law renders illegal the trade of programs designed to manipulate anti-copy features; even guidance or advice on such defeating measures would be improper.
c) The remedies in §108 b include the criminal prosecution of violations. The statutes clarifies, however, that a criminal offense committed solely for personal use falls outside of the criminal area. In other words, no go to jail card for the CD ripper who assembles his own CD for the car or party. But such a copy would still expose the offender to a claim for damages under §97 of the civil law regime.
The revisions to the Copyright Act do not carry a retroactive effect.
They do not control copies made in the past.
In the future, CD covers will require a statement advising customers whether the data is copy protected or not, so that the customers understand the legal requirements attached to a purchase.
EW - Washington. On September 24, 2003, the German Supreme Court in Karlsruhe decided the case of a muslim whose application for an appointment to the position of a teacher in a public school was denied by the State of Baden-Württemberg. The state based its rejection on the doctrine of neutrality of the state. Fereshta Ludin, a German of Afghan origin, argued that her constitutional right to religious freedom should prevail and insisted on keeping her head covered also in class.
The highest court in Germany ruled that a muslim teacher enjoys the constituonal right to wear a headscarf in class, deciding its second key case involving neutrality and religion. Thereby, the court put an end to an ongoing discussion on how to solve the conflict between the right to religious freedom and the imperative of neutrality, both codified in the German Constitution. It also ruled, however, that the states may pass new laws banning the practice.
CK - Washington. The Luther movie coming out nationwide on Friday has me thinking about its legal angles. The film is enthralling. When you see it, the action keeps moving rapidly through decades and locales and lives. There is hardly any time for reflection. You soak in the events, in their historical context, and sort things out later.
At its core, this movie is about a sometimes crazy, sometimes supremely logical lawyer and cleric who questions even the holiest unquestionable. Almost from the outset, Luther confronts a canon law that has been corrupted by recent political developments within the hierarchy of the Roman Catholic Church and is used as a tool to control the behavior and finances of dumb believers through numerous layers of administration. Questioning amendments to the canon law enacted over the preceding 150 years or so, Luther is found to question Pope Leo although the papacy was not on his radar.
With that determination, his life unraveles, and so does the empire and the Church. The rules he establishes are not explained in the movie as law per se, but he appears to be laying the foundation for democratic principles and equal justice for all. The Church ends up getting an awfully bad rap, and Luther gains stardom status. Not totally in kilter but, after all, this is a movie--and an action movie at that--, and for many quite interesting.
The Better Homes and Gardens copyright in a story about homey Hitler is gaining immortality. LA-Legal and the-crease make certain that nobody will violate that copyright. The explanations of the legal issues and their context are worth reading.
CK - Washington. FAZ Weekly has a fine report on the E.U. court decision to confirm the antitrust fine imposed on Volkswagen. The anti-competitive charges had been directed also against several other manufacturers. FAZ has the details.
CK - Washington. Transblawg publisher Margaret Marks discusses the difficulty many German speakers without US legal training have with the English terms remedies and jurisdiction. Her elucidating analysis is especially useful because it is not limited to the proper terms but also addresses the frequently-found mistakes. The examples extend in their validity beyond the UK jurisdctions to those of the United States.
CK - Washington. The German Supreme Court in Karlsruhe decided in the matter BVerfG, 1 BvR 2108/02, on August 4, 2003 that attorneys with major credits in active sports may advertise their sports accomplishments in their specialized practice.
Ines Brzank, a former member of the former East German national team and now a sports counsel in private practice, advertised this fact in a brochure. Competing attorney Kay Achtelik found that to constitute a violation of professional ethics but the Supreme Court sided with her.
The court pointed to Art. 12 (1) of the constitution which permits professionals to publish factual, non-misleading information which demonstrates the professional's life experience even if unrelated to the practice of law.
The court went beyond the mere acknowledgement that the constitional rights of the professional may be impermissibly violated by unreasonable restrictions.
The court also expressed the view that unrelated information may be an important service to the potential customer or client who looks for the comfort that an expert in his field can provide. It referred the case back to the lower court for further factual analysis.
WM - Washington. Today, Gerhard Wegen, Esq., partner at the Gleiss Lutz lawfirm and law professor at Tübingen University Law School, spoke at the German American Law Association, Capital Area Chapter, Washington D.C. His presentation, The Evolving Nature of Corporate Practice in Germany, focused on the differences in corporate law between Germany and the United States.
Wegen stressed that German corporate law imposes a strict seat requirement which results in difficulties for cross-border mergers and corporate relocations. Unlike the American corporate governance concept, the continental concept is based on corporate, not capital market law. A securities and exchange commission does not exist in Germany, which has a different tradition of security regulations.
In the context of the evolving European community law, German corporate governance changed also. In the "Centros" and "Überseering" opinions, the European Court of Justice favored creditor protection by means of disclosure and transparency as opposed to a system of a fixed minimum capital that forms the bedrock of German corporate law .
Following his instructive presentation, Prof. Dr. Wegen fielded questions from the audience. He pointed out that under German law single shareholders can challenge corporate resolutions, including those for mergers, more freely than in the United States, and some minority shareholders and their attorneys specialize in bringing nuisance suits to extract payments from the corporation before they acquiesce in corporate restructurings. Another interesting aspect is the practical problem of cross-border relocations. They are being opposed by unions afraid of losing the co-determination control granted them by German corporate law.