Thu, Dec. 30, 2004

Constitutional Export

CK - Washington.   The German constitution, developed in the late fourties under the influence of the occupational forces to incorporate modern constitutional principles and benefit from lessons learned with older constitutions in Germany and abroad, has become an export. Jutta Limbach, a former chief justice at the Constitutional Court in Karlsruhe and currently head of the Goethe Institut extolled the virtue of the constitution as a cultural export in a forum at the Federal Diet in Berlin. Her presentation is available as a RealPlayer file.



Wed, Dec. 29, 2004

2004 Accomplishments

CK - Washington.   The German statute providing for the European corporation became effective today. A Justice Department press release summarizes the benefits of the so-called Societas Europaea.

In another press release, Attorney General Brigitte Zypries recounts the legislative accomplishments of the year. The release contains links to the major statutory changes.



Mon, Dec. 27, 2004

Legislation by BBS

CK - Washington.   Can a bulletin board system assist the government in developing new copyright legislation? Brigitte Zypries, Attorney General, announced the new forum today. There are a few entries in the system, debating consumer perspectives on backup copies of software and other copyrighted material. The forum complements the governmental web site kopien-brauchen-originale.de which has been running since October 2004.



Wed, Dec. 22, 2004

Expiring Claims and Other Changes

CK - Washington.   The rush to German court houses continues: The need to file claims before the beginning of the New Year is more pressing than ever. The changes affecting the statutory rules on the statutes of limitations are far-reaching, as reported here earlier. Additional resources in German, explaining the laws: Bräuer, Verjährung nach BGB zum 31.12.2004?, Anwaltsblatt 12/2004, p. 720 et seq.; Und wieder eine Reform: Anpassung der Verjährungsvorschriften, Anwaltsblatt 1/2005, p. 65 et seq.; provided with thanks to colleague Michael Seidlitz in Berlin who also recommends this book.

A host of additional new rules enters into force on January 1, 2005, as colleague Michael Heng, Hamburg, notes.



Sat, Dec. 18, 2004

Published Tax IDs: Problem

CK - Washington.   Proof that the publication requirements for web site owners in Germany can do real harm: Heise.de reports on the potential for abuse of tax IDs and unauthorized access to the tax filing system. Mischievous parties can easily use tax ID numbers which are required to be published under Impressum* laws on the Internet and the federal tax code on invoices. They can access the federal tax filing and reporting system with those numbers and file declarations for others. Such declarations would enter the tax administration system and result in unrealistic, and potentially ruinous, tax bills. Combined with the new rule requiring electronic estimates and return beginning early in 2005, a major headache may be in the offing.

From an American perspective, the tax ID disclosure requirements seem irreconcilable with the European principles on privacy and the protection of data. By requiring such disclosures, government may be biting the hand that feeds it.

* Impressum is the short, unofficial name for the identification of content providers on the Internet and in other media. While non-Internet media had been subject to this requirement for some time, the extension of this anti-privacy rule to the Internet is of more recent origin. Austria has similar rules. Such rules would violate the American ordre public which considers anonymity sacrosanct ever since the Federalist discussions, see Jonathan Wallace, Nameless in Cyberspace: Anonymity on the Internet. American courts invalidate laws that attempt to outlaw the anonymous exercize of free speech.



Wed, Dec. 15, 2004

Gettings Claims Filed in Time

CK - Washington.   The enormous changes in the German laws affecting the statutes of limitations continue--some with urgent effect. Just yesterday, a new statute was published in the federal gazette, Bundesgesetzblatt, that contains numerous changes to the expiration rules in numerous statutes, ranging from bankruptcy via real estate, foods, pharma products, commercial activities, corporations, telecommunications all the way to fees for attorneys, patent counsel and tax advisors. The new statute, Gesetz zur Anpassung von Verjährungsvorschriften an das Gesetz zur Modernisierung des Schuldrechts came into force on the day after its publication, as per its article 25, which would be today.

The new statute complements the many new rules that currently overwhelm attorneys in Germany. Anybody with claims that used to expire after 30 years will have to get their claims filed in court by the end of this year, if the claims existed before January 1, 2002. Many other claims with shorter statutes of limitations are equally affected.

Generally, the rule still applies that claims can be filed with the court through the end of the year during which a period measured in years would expire. That rule explains the annual rush to the courthouse between Christmas and New Year's. This year, it is much worse because of all the shortened claims that under the old law may have had to be filed as late as 2032. On top of that, last minute rule changes--for which the courts will have years to sort out.



Non-Discriminination Bill

CK - Washington.   Berlin Attorney General Zypries announced today agreement in the ruling parties on an anti-discrimination bill that governs relations between state and citizens and among citizens in contractual and similar settings. The statute would formalize the recognition of protection from discrimination as a human right.



Tue, Dec. 14, 2004

Direct Mail Advertising

CK - Washington.   A German mailing list closed a recent discussion of possible legal remedies against unwanted mails, faxes, and emails with an authoritative list of links prepared by Berlin attorney Michael Seidlitz. His list includes references to other explanations of the various legal bases for several forms of advertising as well as guides for consumers.
www.vz-nrw.de
www.verbraucherzentrale-berlin.de
www.frankfurt-main.ihk
www.frankfurt-main.ihk
www.frankfurt-main.ihk
www.stuttgart.ihk24.de
Generally, Seidlitz notes that direct mail advertising remains legal in Germany until a recipient opts-out by notifying the sender. A note attached to a mailbox to distributors of fliers can be binding and subject the distributor or the sender to liability. Faxes, emails and SMS mobile text messages are subject to tight restrictions. Generally, they require an opt-in on the part of the recipient or an ongoing business relationship. Violations often result in cease-and-desist demands where the legal fees of the recipient are shifted to the originator of the advertisement.



Sun, Dec. 12, 2004

Friends and Perjury

CK - Washington.   A criminal investigation for perjury is a rarity in Germany because witnesses are hardly ever examined under oath. But just that happened in a triangular case involving a chief judge at a district court, her live-in boyfriend from the ministry of justice and her allegded suitor, a chief judge at an appellate court. The appellate judge is alleged to have given her colleague a ruinous recommendation after she spurned his advances so that she could not advance in her career. The state is investigating the matter because it assumes that one of the parties lied when they supported and denied allegations of ulterior motives.

That appears to be the gist of reports at lawblog and newspapers which love the story.



Mon, Dec. 06, 2004

Advance to Jail

CK - Washington.   A criminal court convicted an Emmerich attorney who had requested and accepted advance payments from his clients without stating in the engagement letters that the payments were to constitute an advance. A prosecutor argued that the acceptance of funds for services not yet provided could constitute fraud. The court considered the lack of the term advance a flaw that caused clients to be deceived. The attorney was sentenced to a penalty of 22 days, each to be paid at the ratio of his average daily income, or served in jail. The lawyer noted an appeal.

The name of the lawyer remains unpublished as is customary in Germany. While there is no rule that prohibits the publication of names of parties in litigation, the custom developed on the basis of a majority of published views on the subject matter. For a different view, see Kerr, Die Namensnennung bei der Publikation gerichtlicher Entscheidungen, JurPC Web-Dok. 73/2004, January 19, 2004.



Collecting Debt: Tight Limits

CK - Washington.   New rules on the terms of the statute of limitations cut short the terms for collecting on old debts. For instance, the 30-year term governing the expiration of claims under old law--if those debts existed at the end of 2001--expire at the end of 2004. That is true even if the old law would have allowed the claim to be enforced until 2031.

The federal justice department in Berlin urges creditors in a circular of December 6, 2004 to examine any claims or contracts, such as loan agreements, for the need to file a collection complaint before the end of 2004 in order to preserve their rights. Sending a reminder to a debtor is usually insufficient to toll the statute.



Sun, Dec. 05, 2004

Domain Contact Liable

CK - Washington.   Irrational as it may appear, German courts are beginning to hold administrative contacts for domain names civilly liable for omissions of legal requirements and violative acts. The HeymsBahr blog reports of an August 24, 2004 Local Court Bonn case, docket 4C252/04, in which an attorney who as a trustee for an American domain registrant served as its administrative contact with DeNIC, the country TLD registrar for Germany, and was found liable for anti-competitive content on the web site.

The HeymsBar blog reports also of earlier German case law that laid the foundation for the Bonn decision. In March 2003, a Frankfurt court had held an administrative contact responsible for the domain owner's failure to comply with the Impressum requirement. This odious rule runs counter to general German principles which strongly protect privacy. By contrast, the Impressum rule carves out an exception and demands on commercial web sites the disclosure of owners' private information. The Frankfurt holding expands an exception to the general principle, embodied in statutes, that ISPs and similar intermediaries are not liable for the acts of their customers, except in very narrow circumstances.

In the Bonn case, the court created a deemed knowledge standard for the administrative contact. The trustee would have imputed knowlege of the content at the offensive web site and should have taken steps against the violation of competition law, even if the trustee learned of the alleged violation only through a cease-and-desist letter from the plaintiff. HeymsBahr notes that this decision, which imposes contributory liability on the domain contact, flies in the face of the majority views in Germany on the responsibility of administrative domain contacts.



Similar Business Name

CK - Washington.   The similarity of business names as an issue of trademark law, competition law and the law of names proper arises in a list discussion. In addition to standard resources such as Palandt on section 12 of the Civil Code, the following introductory material is being recommended: The Gewerblicher Rechtsschutz (I) script, and Markengesetz--Onlinepraxiskurzkommentar, both in German. Basic facts: Same city, same business name, priority with unregistered business, business incorporated as GmbH claims better rights although established later. The Anwalt list's hunch is that priority rules. An internet resource on section 12 case law is dejure.org.



Mon, Nov. 29, 2004

International Arbitration

MS - Washington.   Gabrielle Kaufmann-Kohler, President of the Swiss Arbitration Association, and Blaise Stucki, both as editors of International Arbitration in Switzerland, released this handbook with contributions from experienced practitioners. Since the Alabama case, in which the U.S. government raised claims against Great Britain for the damages inflicted on merchant ships during the Civil War with the support of British interests, Switzerland's neutrality makes it a desirable location for international arbitration.

The articles written by Swiss lawyers explain the procedures of such arbitration, from drafting of the arbitration clause to the challenge of the arbitration award. The practical manual is helpful for decisions on ad hoc and institutional arbitration, for petitions for specific types of interim measures, for estimates of the duration of setting aside proceedings before the Federal Tribunal, and for appraising the costs of such proceedings. Swiss Arbitration is frequently embodied in German American contracts, and the handbook comes highly recommended for practitioners in that field.



Sun, Nov. 28, 2004

Statutory Share in Estate

CK - Washington.   Under the inheritance rules of the Civil Code, heirs may be entitled to a statutory share in an estate. Certain gifts made before the death of the decedent reduce the estate in a manner that affords heirs a claim to their return in order to increase their statutory share. The MCNeubert blog reports on such a claim against a charitable institution that was resolved on November 26, 2004.

The matter involves a charitable donation to a charity in Dresden, chartered as a foundation, Stiftung Frauenkirche. The donation reduced the assets of the estate by some 2.5 million Euros. An heir claimed the refund of this amount under §2329(1) of the Civil Code, Bürgerliches Gesetzbuch. The foundation countered that the gift did not enrich it because it served as a trustee for the Dresden building known as Frauenkirche and the moneys went directly into the reconstruction of the building. The lower courts agreed with the foundation.

The Supreme Court held that the foundation was enriched because the building is its major asset and remanded the matter for a revised decision to the appellate court in Dresden, judgment of December 10, 2003, docket number IV ZR 249/02. MCNeubert reports now that the parties settled the dispute on Friday: The foundation will pay 785,000 Euros to the heir.



Sat, Nov. 27, 2004

Celebrating the Civil Code

CK - Washington.   Several years after its precursor, the Code de Rohan, entered into force in then French-occupied Malta with its hybrid legal system, the famous Code Civil became the law of the land in France and an influence in other nations. At the time, Germany was splintered into numerous legal systems with a variety of codifications of the law. The Saarland University celebrated the introduction of the French code 200 years ago with a special event on November 26, 2004.



Treadmill Career

CK - Washington.   Anonymous Lawyer finds plenty of applicants for entry level jobs in big law firms. Die Welt carries an article on careers in big German law firms. It contrasts the disillusioned life of a Clifford Chance associate with that of a solo lawyer whom a grateful little old lady rewards with a bottle of champaign. The middle ground is presented with the description of life at Gleiss Lutz, a major home-grown German firm that is not the result of confusing mergers and enjoys a stellar reputation for mastering challenging international assignments while maintaining a sense of style and humaneness.

Bits also at jurabilis!, D-Recht and Handakte WebLAWg.



Thu, Nov. 25, 2004

Extradition Stopped

SWM - Berlin.   The German Constitutional Court, Bundesverfassungsgericht, stopped the extradition of German citizen Mamoum D. to Spain. D. is suspected of supporting terroristic groups, including Al Quaida, since the late nineties. Most of the allegations are inadmissible before a German Court because it was not illegal before 9/11 in Germany to support violent organizations abroad. Nonetheless, a Spanish court applied for his extradition. D. is not suspected of supporting terroristic acts in Spain.

The case is one of the first practical tests of the European Union treaty on extradition, also known as the European arrest warrant. German critics of the treaty and laws based on it call it a violation of German constitutional law. They fear extradition could be used to circumvent fair trials in the surrendering state.



Sat, Nov. 20, 2004

Call for Papers: Privacy

CK - Washington.   Privacy issues, criminal considerations, data protection obligations and a variety of other legal issues affect efforts to protect technical systems against gainst invasions. Systems such as honeypots, used to analyze unauthorized access or the functionality of malware or misguide hackers into fake systems designed merely to induce their illegal explorations, raise entrapment concerns.

To define links between the law and technology in this field, the security section of the German society of information technology, Gesellschaft für Informatik, has issued a call for papers under the heading Privacy Respecting Incident Management, PRIMA, due for its satellite workshop on April 6, 2005 in Regensburg.

The intersection of such, ultimately defensive, technologies and the law poses numerous legal issues, especially in the international arena. Honeynet mailing lists continue to address legal concerns and reflect approaches that differ by nations and techologies under examination. Although the PRIMA program will be mainly in German, the call for papers extends to English-speaking contributors.



Thu, Nov. 18, 2004

3D Trademarks In Euroland

WO - Boston.   The Court of Justice for the European Communities confirmed in its decision in the matter August Storck KG v. Harmonization Office for the Internal Market (Marks, Patterns and Models), EuG November 10, 2004, docket numbers T396/02, T-402/02, that a Community trademark registration for a three dimensional trademark may be granted. According to the ruling, the applicant for registration of a 3D mark must show that the three dimensional object is distinctive and is, therefore, capable of distinguishing the goods of the user from those of others.

This ruling could not help the applicant in Storck. In Storck, the applicant sought to register the shape of its hard candies, claiming that the color and shape of its candy was distinctive and would, therefore, allow consumers to distinguish their candies from those of other manufacturers. The court found that the both the shape and color of applicant's candies were not unusual for candies and, therefore, could not act to distinguish one candy from another. Lastly, the Court noted that the candies are sold individually wrapped, so that the consumer could not view the shape and color of the candy when making a purchase. In that event, the color and shape of the candies could not acquire distinctiveness.



Mon, Nov. 15, 2004

Sütterlin Resources

CK - Washington.   Old German legal documents used to be hand-written in a variety of standard writing styles. Graphic designer L. Sütterlin created a new style (now likely called font) which became popular in the early 1900s. A new resource helps readers decipher the old script.

Students who learned the script in school before 1950 often used it as the standard form of writing and continue to use it in correspondence as well as legal documents, such as holographic wills. Therefore, as the author of TransBlawg with her international outlook confirms, awareness of the script retains practical relevance. Some high schools trained students in Sütterlin as late as the 1960s, alongide Latin and Greek, to lend them a basic facility in reading correspondence from their elders.

The Sütterlin script site teaches the script and also points to other resources, such as translation and transscription services.


Mon, Nov. 08, 2004

$1,000 Fine for Decryption Sale

CK - Washington.   German trade associations representing sound industries note on their joint website today the conviction of a person who sold anti-copy software through an internet auction site. The Paderborn court of first instance assessed a fine of 800 Euros. Based on a prior cease-and-desist order the person had signed and which required him to abstain from such sale, he was also ordered to pay liquidated damages of $10,000 Euros. Presently, the sound and pictures industries are on a propaganda march through Germany. Politicians are known to adopt claims of phantom sales allegedly lost to internet downloads. The decision may be published at the Institut für Urheber- und Medienrecht site.



Sat, Nov. 06, 2004

Relief for Websites

CK - Washington.   The Fachschaft-Jura blog reports of an appeals court ruling from Hamm that appears to reduce the obligations imposed on website operators under German law. The court held no statutory or other rule in German or European Union law requires the publication of a telephone number on a commercial website.

This ruling means relief from the threats of ever popular cease-and-desist orders directed against allegedly non-compliant operators of websites with commercial contexts. See also Kochinke, Abusive Cease and Desist Demands.

A new threat develops, however, in the area of liability for links. Simon's Blawg and KMU-Blog note the case of a cease- and-desist demand directed at a website operator who maintains a link to a search engine, and the search engine displays links to improper material. Such liability, if it existed, would mean a liability for links in the second degree.

Currently, there is a wave of deceptive links set by third parties to referrer lists on blogs that appear to connect quite plainly to search engines. A detailed examination of the link displays, however, a query connected with the link tag that triggers a search result with objectionable content--and no link that could have made a visitor visit the blog from that search result. Accordingly, there is a substantial likelihood that the referrer link has been manipulated--easy to do with a standard tool such as curl. It would seem immensely unreasonable to hold a website operator responsible for a third party's manipulation of a referrer link list. For these reasons, the documentation on second degree link liability is an important contribution to the development of link liability law--in German at the attacked Kefk.net site.



Thu, Nov. 04, 2004

eBay Users to Provide Right of Return

WO - Boston. The Federal Supreme Court of Germany, Bundesgerichtshof ruled in the matter VIII ZR 375/03 on November 3, 2004, that purchasers of goods on the eBay website have the right to return goods purchased on the site during the statutory 14 day period after the sale. The court ruled that a purchase made from a business via the internet is similar in nature to a Fernabsatzvertrag, a contract for goods sold from a distance. In its decision, the court found that goods sold on eBay were not sold by means of a true auction where the final purchaser is determined by the gavel of an auctioneer, but rather by offer and acceptance, just like a typical agreement for the sale of goods.

Since goods are sold via the eBay site by means of an offer and acceptance, the court determined that the laws governing the sale of goods apply. According to those laws, a purchaser has a 14 day right of return. In the event that the purchaser of goods is advised of his right of return after the sale has been concluded, the right of return is extended to 30 days.



Mon, Oct. 25, 2004

Managing Politicians

MS - Washington. Kathrin Schmidt and Olaf Herrmann contributed the chapter Management des Abgeordneten to a new manual, Handbuch Politisches Marketing, published by Volker J. Kreyher, editor, in September 2004. Schmidt and Herrmann focus on managing the careers of elected representatives with the objective of ensuring their political future. The authors stress that success in political life is the result of preparing carefully an optimal positioning of candidates. They explain the role of campaign managers in identifying and characterizing candidates. Campaigns become permanent because voters need to know the candidates' points of view as distinguished from potential or actual competitors.

Herrmann's Washington experience shows in this hands-on guide. The theories of political management are similar in the United States and Germany. The article appears to be a useful tool for current and future politicians and their legal and political advisers.



Thu, Oct. 21, 2004

Nondestructive Fax

CK - Washington.   advobLAWg links to an appellate ruling from Frankfurt, docket number 2Ss 39/03, that holds an unsolicited telefax not destructive for purposes of the criminal law. Paper, power and ink used for this type of correspondence are de minimis even though their use technically renders them destroyed or damaged.



Wed, Oct. 20, 2004

Vetter Wins One For Olbertz

CK - Washington.   Blogger.de-provider Olbertz provides blog services to bloggers. Novitel has problems. Presumably, an employee blogged about working conditions. Novitel sued Olbertz, arguing, inter alia, that he should release servers and data for seizure and inspection, and that he is personally liable for the acts of the blogger.de writers. Attorney Udo Vetter, of law blog fame, won the injunction proceedings for Olbertz today at the Berlin local court. Olbertz and Vetter agreed that Vetter would provide a report on the matter on his blog.

The court declined to hold the blog service provider personally responsible for the writings of users. In particular, it found that the lack of compliance with the Impressum requirement by users does not enable a third party to pierce the shield afforded the service provider under the ISP statutes. The requirement is an odius anti-anonymity rule that has caused fears of non-compliance even when compliance is not required, such as in non-commercial internet activities. Some lawyers and organizations specialize in the pursuit of web writers, which can be a lucrative line of business. Congratulations to Vetter and Olbertz in convincing the court where to draw the line!



Hamburg Court: ISP to Reveal Data

CK - Washington.   A Hamburg court granted the petition of a copyright claimant against an internet service provider to release customer data relative to an alleged copyright violation involving audio material, basing its decision on §101(a) of the Copyright Statute. It thereby pierced the veil of limited liability created by a special ISP statute in §§8 et seq. TGD, the so-called remote services statute. The Heyms-DrBahr blog and Thomas Stadler web site provide more detailed analyses of the July 7, 2004 decision in the matter 308 O 264/04.

In this case, copyright was determined to trump the statute protecting service providers. By contrast, in a Berlin case, the court found the IPS protection statute to trump non-copyright claims against a blogging service provider, see Vetter Wins One For Olbertz, nearby. Whether the Hamburg ruling stands remains to be seen.



Mon, Oct. 18, 2004

Unfree Deutsche Welle

CK - Washington.   German news group Deutsche Welle broadcasts world-wide and currently sponsors a blog contest called BOBs where DW proclaims its status as a champion of free speech and a free press.

Free speech in its home country has suffered lately, however, particularly in the internet space. An anti-anonymity and anti-privacy requirement called Impressumspflicht and the recent Odem.org decision from Stuttgart that criminalizes a satirical website are two examples out of a range of censorship measures that cover a substantial amount of internet activities.

Clearly, Deutsche Welle is to be commended for lauding Bosnian, Iraqi or Iranian bloggers as courageous champions of freedoms. Hopefully, DW has the courage to look in the mirror and report on the censorship in its own reporting environment. Censorship takes many forms, and what lawmakers in Washington and Berlin do when grasping at straws to deal with internet issues--whether in the name of security or consumer protection--is not always compatible with the fundamental precepts of the American or German constitutions. It is easy to become blind to creeping censorship growth. Perhaps it's time for censorship czars.



Sun, Oct. 17, 2004

Court Knocks Queen

CK - Washington.   In its decision of September 9, 2004 in the matter 6 U 50/04, the Cologne Court of Appeals addressed the issue of proof of citizenship of European Union artists in connection with the enforcement of the artists' copyrights in the EU. Musicians known collectively as Queen attempted such an enforcement action to stop the infringement of their New York City performance of the title We Will Rock You against a party in Germany. According to the court's press release of October 15, 2005, the court dismissed the complaint because the members of the group failed to establish their citizenship which they sought to prove by excerpts from the internet and an expert opionion. The court did not deem such evidence suitable.

The law blog questions the decision. If the German copyright law were to be construed as protecting only citizens of the European Union, does the court mean to say that works of others could be pirated in Germany? Is the decision defective because the court surprised the plaintiff without an adequate opportunity to present evidence? Or were the musicians so arrogant as to ignore basic evidentiary rules? law blog surmises that the decision does not rock.

The decision is important for American plaintiffs who may run into similar difficulties proving their citizenship, although birth certificates and a recent passport should be useful first steps to convince a German court that a complaint should not be dismissed and instead lead to evidentiary rulings that may allow for the submission of additional material supporting a citizenship claim, such as a Certificate of Citizenship issued by the U.S. Citizenship and Immigation Services agency within the Department of Homeland Security.



Sat, Oct. 16, 2004

Celebrating the Justice System

CK - Washington.   Karlsruhe, the capital of the German judiciary, hosts the Supreme Constitutional Court, Bundesverfassungsgericht, the Supreme Court in Civil and Criminal Matters, Bundesgerichtshof and numerous other courts. Today, the city concludes a week to celebrate the justice system, Woche der Justiz. Performances included presentations in courts, jails and other institutions as well as in theaters and cabarets. They ranged from mock trials to readings and auctions.



Phantom Lawmaker

CK - Washington.   A phantom lawmaker introduces the reader in a new blog, Geschichten aus dem Bundestag, to the workings of the Berlin parliament, Bundestag. In the initial entries, Hausgeist Mierscheid illustrates the underground system that connects various buildings of the diet, which seems similar to the tunnels in Capitol Hill except that it lacks a railroad. The blog does not limit itself to the physical structures. A recent entry addresses salaries of the 601 members of the parliament and muses about their work and stature.



Fri, Oct. 15, 2004

Statute of Limitations Changed

CK - Washington.   Statutory changes that occurred in 2002 will soon affect the statute of limitations to various claims which used to benefit from rules granting a 30-year period. The new general statutory period expires after three years and applies where no other statutory rule offers a different term. The Berlin Department of Justice published a general reminder which notes several changes.

Generally, under German civil law, the statute of limitations runs through the end of the calendar year. For instance, a claim subject to a two year statute of limitations that arises on February 1, 2001 may be raised through December 31, 2004, and not only through January 31, 2004. Under the new rules, certain claims for the delivery of goods are no longer covered by the 30 year term but are now subject to a shorter term. Claims accrued before 2002 with longer terms may now fall under the three year rule and expire at this end of this year. Therefore, December 31, 2004 may become a busy year for counsel and courts because filings that otherwise would have be necessary some time before the end of 2032 need to be filed before January 1, 2005 or would be subject to challenge under the new provisions governing the statute of limitations.



Tue, Oct. 05, 2004

DAJV Annual Meeting in Berlin

CK - Washington.   From October 8 through 10, 2004, the annual meeting of the Deutsch-Amerikanische Juristen-Vereinigung takes place in Berlin. The agenda is published on its web site. Its membership is considerably stronger than that of the German American Law Association, its sister organization in the United States. The DAJV meeting this weekend is expansive and covers a range of transatlantic law issues in parallel workshops. Outside of the annual meetings, DAJV offers regional educational and informational activities throughout the year. By contrast, GALA is currently limited to actvities in Washington, DC, New York City and Boston.



Wed, Sep. 29, 2004

Copyright Amendments

CK - Washington.   Attorney General Brigitte Zypries announced today the plans for substantial amendments to the copyright statute. A major set of amendments entered into force on September 1, 2003. Those amendments implemented European Union rules. The second set represents a German effort to bring the copyright law in line with advances in technology and practice.

The web site of the Department of Justice presents an overview of not only the intended revisions but also the input to the department from the public.



Tue, Sep. 28, 2004

Censorship Trial for a Web Link

CK - Washington.   Alvar Freude founded ODEM.org, a German website that promotes online demonstrations. Freude will be tried in a Stuttgart court on October 7, 2004. The offense: ODEM.org discussed censorship. The article contains a link to a right wing web site. The web site had been outlawed by a Düsseldorf court under laws prohibiting certain activities such as the glorification of Nazis. Apparently, the latter court launched a criminal investigation into offering that link.

The LAWgical alerts readers to the trial and notes that the suppression of links runs counter to the web principles enunciated by Technical Advisory Group des W3C, in particular its September 11, 2003 findings on deep links.

Freude's team comments that courts and the justice system got lost in the net. Their comment includes a recital of the charges which equate links with providing illegally access to censored material. ODEM argues that the censorship law does not apply to web links when the topic is a current event issue of public interest, such as the censorship laws themselves which by necessity address censoring. ODEM charges also that the authorities disregarded the blatant satire on censorship on a second site that also forms a basis for the charges against Freude.




Wed, Sep. 22, 2004

Judicial Assistance

CK - Washington.   The cabinet in Berlin approved today for ratification the new European Union directive on judicial assistance in criminal matters and a protocol to the directive. The new measures enhance means for cross border investigations, telephone tapping, video conferencing and the pursuit of criminals. Significant improvements are anticipated in international financial investigations.After its cabinet approval, the implementing statute will be sent to the federal diet in Berlin.



Tue, Sep. 21, 2004

Germany to Ratify Cybercrime Pact

SSL - Washington.   The Internet's borderless approach to information and commerce continues to push the boundaries of international cooperation. In this spirit, the Council of Europe held its Challenge of Cybercrime conference on September 15 through 17, 2004 in Strasbourg, France, sought to promote the prompt ratification of the Council of Europe Cybercrime Convention. The Convention aims to standardize international laws on computer-related crime and allow for cross border investigation of criminal activities.

Cybercrime, whether threatening privacy, committing fraud or IP infringement, or involving content-based offenses, continues to expand exponentially. The nature of the medium allows for disproportionate affects. Germany, for instance, cites economic crime, often in the form of cybercrime, as accounting for 1.3 per cent of total crime, but 57 percent, or 6.8 billion Euros, of financial damage, according to the Organized Crime Situation Report 2004: Focus on the Threat of Cybercrime.

Despite the obvious risks of cybercrime the Convention is not without its critics. Some cite the loss of privacy, but others point to the forced cooperation and unregulated information sharing with so-called oppressive regimes. Despite these concerns, 30 nations have signed the Convention, including the United States, Germany and Britain, and eight nations have thus far ratified it. Germany plans to ratify the Convention during the current parliamentary term. The United Kingdom is still studying the policy implications and while the President of the United States has recommended the proposal to the Senate there has been no response. The CoE's latest push hopes to encourage more wide-spread ratification and effective implementation of the Convention.




Sun, Sep. 19, 2004

Complaints Filed by EMail

CK - Washington.   A complete overview of the rules governing the filing of civil complaints by EMail is the topic of Dirk Lindloff's Klageeinreichung in elektronischer Form. The site lists, in German, the federal and state rules. The federal statutes address primarily the procedural laws governing the filing for the various specialty courts, such as general civil, employment, administrative, or trademark. The states provide the implementing provisions to establish the acceptable and required systems for electronic filing, such as the Baden-Württemberg Attorney General's Regulations on the Introduction of Electronic Communications in Legal Matters.



Sat, Sep. 18, 2004

Massive Copyright Violations?

CK - Washington.   Criminal defense counsel Udo Vetter published a memorandum on his law blog addressing the criminal copyright issues that could affect buyers of movies, software and songs downloaded from the now-defunct website ftpwelt.com. ftpwelt.com was the very up-and-up looking commercial site that sold unlicensed products and was supported, among others, by a well-known attorney who specialized in the pursuit of copyright violators, see Sebastian Wolff-Marting, Fox Loose in the Henhouse.

Vetter establishes that the ftp-welt customers should have nothing to fear although the prosecution had publicly stated that it would prosecute the downloaders. Of course, the caveat applies that not all the facts are known.



Thu, Sep. 16, 2004

Fox Loose in the Henhouse

SWM - Berlin.   According to German media reports, Bernhard S., attorney at law and partner in a notorious law firm in Munich, was arrested today. He was charged with violations of copyright and pornography laws. German prosecutors believe that he is one key members of an elaborate international network that sells illegal copies of movies and software on the internet.

This case appeared even on German nationwide television news, because his law firm specializes in copyright protection and internet law. In the eighties, his law firm partner became famous for devising schemes to entrap teenage computer gamers with false letters, tempting them to send illegal game copies to a factitious Tanja.

For this reason, German computer nerds planned parties to celebrate the event in major German cities tonight, and the story is over all the blogs: Schadenfreude.


Sat, Sep. 11, 2004

German Law Dictionary

CK - Washington. A German law dictionary with sources going back to the sixth century is located at Heidelberg University. The online dictionary with some 75,000 terms is a work in progress and currently done from A through Q.

jurabilis! lists also the Grimm Dictionary.



Mistaken Internet

CK - Washington.   eRecht24 published a list, in German, of ten common misunderstandings of the law governing internet activities. The topics include copyrights on published material, the law applicable to transnational consumer transactions, domain names and trademarks, and the liability of trading portals as well as diclaimers on web sites. The author is an attorney who explains several key issues from the perspective of German law. (Hint from Sevriens).



Wed, Sep. 08, 2004

Phone Customer Data

CS - Bonn   On August 18, 2004, the Thuringia Court of Appeals in case number 2 U 1038/03 upheld a lower court decision to confirm that telephone companies must keep confidential customer data secret if so demanded. The court held that the publication of customer data, such as telephone numbers or addresses, infringes on the right to privacy and, therefore, may entitle them to damages and even, in principle, for damages such as suffering.

The civil claim involves a police officer who had ordered an unpublished number, for security reasons. He argued that he might have to move after the company published his number because he feared threats from delinquents. The officer won before the trial court, but the defendants, a telephone company and a publisher of a local directory, appealed. They argued that their responsibility was insignificant and that the claim for damages was insufficiently substantiated.

The Court of Appeals confirmed that the publication severely violated the right to privacy. It concluded, however, that the infringement was insufficiently severe to justify immaterial damages. Since the companies update annually about one third of their customer entries, a single wrongful publication would constitute only minor negligence. The plaintiff received an award of EUR 1,000 in damages but not for the infringement of his privacy rights and instead for the harm to his health.

The court found the officer to have sufficiently demonstrated health problems such as pain, sleeplessness, and other trauma, as a result of the wrong publication. In addition, the plaintiff would be entitled to compensation for damages that arise in the future as a result of the publication, for instance if the plaintiff would, in fact, need to move. The Court of Appeals reasoned that the plaintiff's desire to change his residence was an immediate and foreseeable result of safety threats caused by the disclosure of his data.



Fri, Sep. 03, 2004

Fees for Criminal Defense Counsel

MC - Washington.   The Supreme Constitutional Court, Bundesverfassungsgericht, in Karlsruhe safeguards in its decision of March 30, 2004 the right to counsel and the exercise of the legal profession. Its recent redefinition of the money laundering statue of section 261 of the Criminal Code implies that only funds definitively known to be tainted at the time of their receipt by counsel are subject to the statute. Defense counsel need not undertake a specific investigation about the origin of fee payments. Clemens Kochinke reviews the decision comprehensively, see 20 International Enforcement Law Reporter 403 (October 2004).



Thu, Sep. 02, 2004

Open Source Courage

CK - Washington.   Stephan Meyer shows courage and creativity. He created a wiki application and plans to publish the source code. He shares his displeasure with the OSI-approved licenses with others, including this author, and developed his own. Sensibly, the license provides some protection for the interests of the original author and subsequent contributors. As Meyer is based in Germany and German copyright ownership would attach to the software, his license also addresses special issues that arise under German law and that so-called standard open-source licenses with the OSI seal of approval do not address either adequately or at all. Sourceforge rejected his release of the program because it is not GPLd. Meyer started a list discussion (license-discuss (a t) opensource.org) and a blog to hear more views on the issue. His copyright-protected license is found at both sites.

Disclosure: Meyer interned with CK in 2002.



Tue, Aug. 31, 2004

Outbound Extradition

CK - Washington.   On August 23, 2004, the new European directive on arrest warrants came into effect for Germany, and two days later, a German court extradited a German citizen for the first time to a foreign jurisdiction. The new directive trumps the constitutional barrier against extraditing citizens. Details at the jurabilis! blog.



Sat, Aug. 28, 2004

Law Firm of the Year

CK - Washington.   The strange phenomenon of attempting to gauge law firms in a top firm of the year format finds its German result in a JUVE list of nominees. Among the firms without an American presence but great name recognition is a firm that has supported the Capital Area Chapter of the German American Law Association with speakers, among them the energetic head of its winning dispute resolution division: Gerhard Wegen, Gleiss Lutz.



Wed, Aug. 25, 2004

Compliance on Lawyer Sites

CK - Washington.   The state of the art and of compliance with statutory requirements of web sites by lawyers are the topics of a comprehensive note, in German, by Mathias Lorenz: An Analysis of Internet Presentations of Lawyers. The results of his survey indicate that compliance is deficient. For instance, many lawyers who advertise their services in Germany disregard the need for an Impressum, i.e. an easily accessible list identifying the provider of the website, tax numbers, addresses and other contact information. Lorenz examines the requirements that may apply to lawyer web sites in detail which adds significant value to the evaluation of the survey.



Tue, Aug. 24, 2004

Caught Red Handed

CK - Washington.   A corporate membership association representing the interests of audio-visual rights exploiters was caught red-handed by German attorney Udo Vetter as holding itself out as an expert witness assisting police in the analysis of CDs seized from a PC user. The association also holds itself out as the industry representative that causes police to seize such material and to prosecute alleged violators of their rights to exploit the musical works of artists under contract with its members.

Persuasively and passionately, Vetter points out in a written submission to the prosecution the illegality of appointing such an organization as an expert. At its most basic, expert witnesses are by law required to be individuals; organizations do not qualify. Most obviously, there is an inherent bias. From the perspective of evidence management, releasing evidence to an unqualified outsider can break the chain of custory.

Currently, the group is soliciting tips--by email to antipiracy@gvu.de, telefax or telephone--on flee markets and internet sales. The group promises to collect such information in a database. Query whether the data collection meets applicable data protection laws.



Mon, Aug. 23, 2004

Transatlantic Testament

CK - Washington.   Recht-in.de published a recent decision, IV ZR 135/03, dated July 7, 2004, by the German Supreme Court on the validity of a holographic will made by a German testator with respect to real estate in Florida. The last will does not meet the requirements of Florida law which the court found to apply substantively under the German conflicts of law rule in Art. III(3), XXVI(1)(1)(b) EGBGB. Yet, the court found the will to meet German statutory requirements, §2247 BGB, and to be valid under conflicts of laws rules established by the Hague Convention on the recognition of testaments, dated October 5, 1961, Art. I(1)(b). Although neither the United States nor Florida signed the convention, its rules are accepted as "universal law", the court acknowledged.

As a result, the testamentary provisions will govern the distribution of the estate among its beneficiaries. The court recognized that Florida may not accept the will and may not grant the intended beneficiaries the right to administer the property within Florida's borders. Therefore, the will may have a "limping" effect, to be resolved once the parties continue the matter in the lower court, but in any case with the effect of the distribution of the estate in the shares established by the decedent.



Sat, Aug. 21, 2004

Regulator Stalls VoIP

CK - Washington.   As if life were not complicated enough, the German FCC-equivalent, RegTP, decided to make VoIP a little more complex. Fearing the deception of customers calling VoIP consumer numbers, the RegTP decided to limit the availability of city codes and related numbers of VoIP customers to where those customers reside. The current practice of VoIP providers, such as SipGate, to offer its customers numbers in the several cities where it maintains crossover access to the traditional telephone network, would be curtailed as a result. Sipgate users, for instance, can select a Berlin area code number regardless of their physical location, and they can use that number whether they are in Pawpaw or Las Palmas. The Heyms-Bahr blog offer additional links to the regs and comments. American providers such as SipPhone may benefit from the shortsightedness of the agency because they can offer customers worldwide access to its VoIP system. By contrast, SipGate is now limited to provisioning customers who reside in cities where it maintains access points. While that number increases steadily, there are no such access points in every locale with a city code.

Disclosure: The author is a happy subscriber with the companies mentioned here, currently at SIP 1 747 555 5555.



Fri, Aug. 20, 2004

No Alcohol for Kids

SWM - Idstein.   The Supreme Constitutional Court, Bundesverfassungsgericht, denied certiorari in the preliminary injunction matter 1 BvQ 28/04 which involves a new tax on sweetened alcoholic beverages. A new statute intends to deter teenagers from the fad of ready mix long drinks which contain liquor. Studies had shown that teenagers may become dependent on alcohol after consuming such drinks.

The plaintiff, a distiller, argued that the enforcement of the law would cause the significant loss of employment and irreparable damage to its business. The Court ruled that the plaintiff had not shown enough evidence to support its petition for review.



Sat, Aug. 14, 2004

Inheritance, Assets in Germany II

CK - Washington.   The initial assumptions and steps to recover assets in Germany in a probate proceeding involving an American decedent, discussed in Inheritance, Assets in Germany I, lead to the issues of the satisfaction of tax obligations and obtaining proper papers from the German probate court, such as a certificate of inheritance, Erbschein, or letters of administration, Testamentsvollstreckerzeugnis.

The same applies to German citizens who died in the United States after obtaining American residence status--which may be a permanent residence, as it is defined under immigration law, or resident status as defined under federal tax law or under state estate, inheritance, probate, family or tax law, or a mix of factors that take into account all of these aspects. Again, as stated before, this note does not advise you on what applies to your situation. You need to obtain the advice from your attorney.

With a German citizen who had acquired resident status in the United States, things get a bit more complicated because the applicable American probate law may subject the entire estate to American law while the German law subjects all of the estate to German law. Even more complicated could be cases where the decedent had dual citizenship from birth. Finally, the cases involving persons of German citizenship who acquired American citizenship and retained German citizenship raise complex conflicts of laws issues. They can be resolved, but heirs and administrators need to be aware of them from the beginning because important deadlines relate to each particular set of circumstances.

That is true also where the decedent had only American citizenship but acquired residence status in Germany. The person may have become a resident in Germany for probate purposes, often after moving there, dissolving the household in the United States and establishing all important societal relationships in Germany while losing or relinquishing them in the United States.

Then, there are Americans who die in Germany after establishing legal residence there, for instance by registration for the public records, Meldeamt, with the intent of living there only temporarily and whose connection with America remains strong. Those factors influence the decisions required to determine the appropriate tax compliance on both sides of the Atlantic as well as the type of probate proceedings needed to get hold of assets from abroad.

For instance, in some cases, the certificate of inheritance, Erbschein, or letters of administration, Testamentsvollstreckerzeugnis, needed under German law to recover funds from German bank accounts may be limited, gegenständlich beschränkt, to the German assets while the principal probate matter is handled before an American probate court.



Thu, Aug. 12, 2004

Winnetou at Intersection

CK - Washington.   Winnetou, a fictional character in Karl May novels, often stood at the intersection of good and evil. Carolin Schosser and Julia Gehrke place him at the intersection of copyright and trademark law. Their article Winnetou'r Return at the Intersection of Copyright and Trademark Law examines a recent German Supreme Court decision that resolves conflicts arising out of expired copyrights and continuing trademark claims. The German facts are similar to those in Dastar Corporation versus Twentieth Century Fox Film Corporation decided by the Supreme Court of the United States around the same time, which the authors had examined earlier.



Tue, Aug. 10, 2004

Ghostwritten Exam

CK - Washington.   A pointer at the Handakte blog notes a decision by the Cologne Court of Appeals confirming an administrative decision against a law student who failed her comprehensive finals. Today's court press release explains that the student was barred from retaking the exam, the harshest penalty possible within the educational track.

The student was found to have based a four week take-home assignment on a ghost written opinion procured through a ghost-writing agency for more than $2,000. She failed all the written exams and--by way of an initial decision--was refused admission to the orals. Investigative authorities later came across the ghost-writing evidence on her PC, when examing a criminal drug matter involving the student and her husband. In applying the sanctions of §17(3) of the Juristenausbildungsgesetz, Law Education Statute, the examining office, which is associated with appellate courts, decided to revoke the earlier decision and to impose instead the harsher sanction in light of the student's deception.

The press release adds that the ghost-writing agency complied with the examining agency's cease-and-desist demand to abstain in the future from supplying exam assistance to law students.



Antitrust Order re National Geographic

CK - Washington.   The German antitrust authority, Bundeskartellamt, disallowed retroactively publisher Gruner + Jahr's distribution of a German-language edition of the National Geographic magazine.

With two dominant geo-style magazines, G+J is already the major player in that segment, and adding National Geographic to its portfolio violates the antitrust rules, the agency determined. The statute violated is probably §40 GWB, Gesetz gegen Wettbewerbsbeschränkungen, of August 26, 1998, BGBl. I 2546.

G+J began circulating the German-language edition after obtaining a license in 1999 from the Washington-based society that publishes the English-language original. The agency learned of the salient facts only in 2003. G+J had not filed for an exemption under the antitrust laws. According to news reports, G+J has announced its intent to appeal the ruling in the Düsseldorf circuit court on the basis that it did not acquire an existing business and instead built a new business from scratch. The agency views this point differently, alleging that G+J could was able to rely on the name recognition the magazine had established with its English-language edition.



Thu, Aug. 05, 2004

Retired Judge May Counsel

CK - Washington.   The Federal Supreme Court decided in an order, case number 1 BvR 737/00, on July 29, 2004 that a retired judge without admission to the bar or other permission to counsel in legal matters, such as under the Rechtsberatungsgesetz, the statute governing permission to work professionally as a legal advisor (RBG), is not criminally liable even in a persistent activity involving the representation and counsel of others free of charge.

The court noted that the statutory limitation of representation only by members of the bar or others authorized to advise in certain legal matters is constitutional. It also held that the court had not yet ruled on the commercial aspect of the prohibition. The statute renders criminal the provision of such services in a commercial manner. The instant case gave the court ammunition to declare that the commerciality requirement necessitates a case-by-case factual analysis. In this case, none of the pertinent constitutional values appeared to have been violated, and the constitutionally protected right to pursue professional activities trumps the statutory restriction of the RGB.



Sun, Aug. 01, 2004

Law Blogs in Germany VI

CK - Washington.   The number of law blogs in German has grown in the spring and early summer and now comprises almost 30 blogs in the OPMLed listing at Handakte.de.

The new blogs include student blogs and blogs of lawyers going through their education in the judicial systems which is required before admission to the bar. There is even a blog by a future law student. A reliable high point of German law blog reading is, however, the advocatus.de blog. Also known as advobLAWg and counted among the oldest blogs in German, its author has assembled an encyclopedia of case law in a broad range of subjects. There is frequent digression, when technical issues interfere with the legal analysis. This makes advobLAWg an acquired taste if you dislike such material in a topical blog but, overall, it should be on the worth-reading list.

Speaking of technical issues, Muepe.de recently adapted a PHP script that enables the automatic integration of the OPML file into PHP-enabled blogs which would render a complete blog list. Die Blogelei is an embryonic GALJ attempt at separating technical and organizational issues from topical news in the German American Law Journal, currently in the blosxom blog format and tentatively in the wiki format.



Sat, Jul. 31, 2004

The law of Things

CK - Washington.   Somewhere on the web I came across a list of chapters in the German Civil Code. The third chapter was described as the Law of Things. Here is my rundown of English terms for the German originals, thrown out for discussion, and based primarily on an American perspective:

  I. Allgemeiner Teil: General
 II. Schuldrecht: Law of Obligations
III. Sachenrecht: Chattel, alternatively, Property Law
 IV. Familienrecht: Family Law
  V. Erbrecht: Inheritance and Estates




Fri, Jul. 30, 2004

No Vouchers for Books

JN - Wellington.   The Frankfurt Court of Appeals, Oberlandesgericht, had to decide a case involving online book retailer amazon.de's common practice of issuing rebate vouchers to new customers. In Germany, books must not be sold, under the Buchpreisbindungsgesetz statute, under a certain minimum price. The court held that the issuance of coupons violated the statute by granting customers an unlawful discount.

In a second ruling, the same court was concerned with German flight carrier Lufthansa's Miles&More program. Upon purchase with Lufthansa or one of its cooperation partners, "Miles" are credited to the customer account, granting them a discount on a subsequent purchase. "Miles" earned through the purchase of a book with Lufthansa's cooperation partner buch.de, an online book store, must not be used for the purchase of another book, the court held. However, "Miles" otherwise acquired may be used for a discount on books, because the book retailer is able to collect compensation from the distributor of the "Miles", thus obtaining the full price of the book ultimately.

A press release in German is available on the court's website. See also Kochinke, Offloading New Books and Nebel, Auction Sellers Anticipate Appeals Ruling.



Thu, Jul. 29, 2004

Free Speech for Offensive Views

CK - Washington.   The Constitutional Court in Karlsruhe published an order and a press release today, covering a decision of June 23, 2004 in docket number BVerfG, 1 BvQ 19/04. The court held in its order that in free speech cases, the government may not deny a permit for a demonstration which it fears might lead to crime.

In the instant case, such a permit was refused a group with assumed ties to neo-nazis planning to protest public expenditures for a temple. The government believed in a threat of offensive speech that might violate prohibitions on anti-semitic and racist statements. The court acted in an injunction procedure; thus, the order is not as revealing as a final decision based on a complete record.

The core holding is the court's view that Article 5 of the constitution guarantees free speech and assembly rights to demonstrators who express clear minority views which may offend the vast majority, because the court believes in the purpose of a constitution to protect minorities in a democratic and pluralistic society.



German Domain Practice Manual

CK/MC - Washington.   The .de domain is one of the largest country domains and important also for American business with activities in German-speaking countries. Certain unexpected pitfalls, such as restrictions under the statutory rules for names and the unfair trade laws, can make .de domains tricky. The second edition of Handbuch Domain-Namen--Alles über Internet-Domains by Florian Huber and Daniel Dingeldey provides highly recommended information on practical and legal aspects of .de domain registration, defense, purchase, lease, sale, grabbing, dispute resolution as well as licensing.

In fifteen chapters, the authors address all relevant legal issues and summarize the case law which has matured to the extent that most practical issues can now be answered authoritatively. Of 364 pages, 124 comprise an addendum which includes sample contracts in English and German for a variety of domain transactions. This useful encyclopedia of German domain law is available for some $35 at domainbuch.de.



Wed, Jul. 28, 2004

EU-Wide Enforcement

CK - Washington.   The recognition and enforcement of decisions in the area of family law will be improved with the enactment of legislation to implement the European Union directive 2201/2003 by Germany. Berlin's Brigitte Zypries announced that the Cabinet approved a bill to that effect today. It covers marital as well as custody issues, eliminates superfluous reviews of final decisions rendered in the participating nations and enhances the Hague Convention against the abduction of children.



Impressum Blackmail

CK - Washington.   German law requires in §6 of the Tele Services Act that certain internet content providers recite on websites detailed operator data--some of which criminals can use for identify theft purposes.

There are a number of operators who use an organized system of cease and desist demands and civil complaints to blackmail content providers into compliance. A recent case illustrates the operation and potential defense, as outlined in a string of forum notes, in German, at www.recht-in.de. In that case, a certain Gottfried Stoiber is alleged to have demanded 425 Euros plus tax for violations of the disclosure obligation. Forum users quickly detected that Stoiber's purported organization, ISWI e.V., did not validly exist and was unauthorized for such activities. Among the groups fighting such blackmail, Abmahnwelle.de is the best known and most informative. See also Christiane Krüger's article Private Case-and-Desist Orders and Susanne Kreis' recent report on a Supreme Court decision.



Liability of Directors

SK - Washington.   On July 19, 2004, the Supreme Court in Karlsruhe decided three cases, docket numbers II ZR 217/03, II ZR 218/03 and II ZR 402/02 on the issue of personal liability of corporate board members for alleged deliberate deceptions of investors by publishing incorrect announcements. The court published a press release and the ruling should appear soon on its web site.

Plaintiffs, investors in the defendants' companies relied on the accuracy of statements disclosed in so-called Ad-Hoc notices. Stocks purchased in such reliance soon became worthless. The Court determined that not only corporations but also board members may be liable under torts principles if they have knowledge of incorrect announcements. The publication of Ad-Hoc reports which were known to be inaccurate meets the statutory requirement of "deliberate immoral damage”. Plaintiffs bear the burden of proof for the causation between incorrect announcements and individual buying decisions, which becomes lighter with the temporal proximity between the stock purchase and the inaccurate Ad-Hoc notice.

The decision is significant because of the improved protection for investors. Directors will not carelessly or deliberately publish false information to investors because their acts could fall under established fraud laws, as the court clarifies here.



EMail Filing

CK - Washington.   Brigitte Zypries, the Berlin Attorney General, announced today that the Cabinet approved a Justice Communications Bill to complete the transformation of the filing system by 2005. Documents capabable of electronic transmission are supposed to be filed in that manner. The necessary technical means exist in the courts and do not require any special tools on the part of users. The existing statutes require some tweaking because they focus on paper transactions.



Sun, Jul. 11, 2004

After Tomorrow No Copyright Violation

CK - Washington.   Institut für Urheber- und Medienrecht reports on a July 7, 2004 ruling by the Cologne District Court in favor of Twentieth Century Fox and its German release of a movie titled The Day After Tomorrow. Acting on a petition for an injunction by Ubaldo DiBenedetto who alleged a violation of his copyright--in a novel titled Polar Day 9 which he published under a pseudonym, Kyle Donner,--by the movie which he believes incorporates significant elements of his book, the court determined that the petition failed to provide sufficient support for the relief sought, i.e. naming DiBenedetto as a co-author of the movie. The Institut's report does not appear to foreclose further action by DiBenedetto.



Fri, Jul. 09, 2004

Cannabis Statutes Constitutional

CK - Washington.   The German criminal statutes prohibiting the possession, importation and distribution of Cannabis remain on the books. The Constitutional Supreme Court in Karlsruhe published an order of June 29, 1004 with a press release dated today in the matter 2 BvL 8/02. The order is based on a referral from a criminal court which requested that the court determine whether--in light of more recent scientific evidence disputing the danger formerly associated with cannabis--the current prohibition could remain constitutional. The lower court had to determine whether the possession of 3 grams of cannabis were still of any criminal significance. The Supreme Court addressed the issue of proportionality as well as the broad statutory question. It found the existing laws, and precedent developed thereunder, to control the instant facts. It determined the question presented to be overbroad in terms of covering the entire range of criminally sanctioned substances. As a result, it declined to reinterpret the law. This ruling does not appear to foreclose a more limited submission of the cannabis issue to the Supreme Court for constitutional review. Handakte Weblawg has additional links.



Thu, Jul. 08, 2004

Inheritance, Assets in Germany I

CK - Washington.   Someone dies in the United States and has assets in Germany, perhaps with a bank. That could be the scenario that drives a few visitors via search engines to this site. The search engines tell web sites what terms visitors want, not who the visitors are or what motivates them, but I assume that if they came here, they found no help elsewhere. Although not a current event or novel issue, I will discuss the topic for these visitors. As always, you do not find legal advice on this site. See a lawyer for such advice.

In a common scenario, a person passes away here or in Germany, had set up a will under American law or had a last permanent residence in, or citizenship of, the United States, and left assets with a German bank, insurer, pension fund or brokerage. In most cases, the matter would begin with a probate proceeding in the United States and the resulting appointment of a representative for the estate, such as a personal representative, an executor and an administrator (or executrix, administratrix). That person is charged, among many things, with collecting assets, including accounts abroad, paying taxes abroad, and discharging debts related to the estate.

In Germany, the representative of the estate will need to obtain a special authorization before a bank would release funds to the estate. For purposes of simplified illustration, you can compare the German procedures to an ancillary administration for real estate located in state B when the probate case is handled in state A. The bank would normally require a certificate of inheritance. This certificate of inheritance is somewhat similar, in its purposes, to the letters of administration that a probate court would issue in the United States: Serve as evidence of a particular person to act on behalf of an estate, or - even more simplified - as a power of attorney. In German, this document is called Erbschein.

Now, mind you, the bank, like this website, is not in the business of providing legal advice. It may not inform you that German law offers additional avenues, for instance, a document with a properly long name called Testamentsvollstreckerzeugnis which in some ways is akin to the letters of administration that a probate court in America issues to the representative of the estate. Which of the avenues works best for you depends on numerous factual circumstances. There are also practical and cost considerations. Sometimes, the solution depends on what judges, notaries and attorneys are familiar with when it comes to international law.

Before you can apply for the appropriate document that satisfies the bank's requirements, usually you need to jump through a few hoops, among them the satisfaction of taxes. Those hoops will be the topic of a follow-up to this note.



Wed, Jul. 07, 2004

Unfair Trade Statute

CK - Washington.   The revised Unfair Trade Statute or Gesetz gegen den unlauteren Wettbewerb will become effective tomorrow, advobLAWg reports.



Tue, Jul. 06, 2004

Mobbing Harassment

CK - Washington.   A new German word, Mobbing, describes things such as workplace unpleasantries and harassment. das-beratungsnetz.de includes psychological terror in a multi-faceted diagnosis of the term and offers therapies. Mobbing-Hilfe-Recht focuses on assistance with resulting legal issues. In addition, it offers information and support on Bossing, another new German term. It offers definitions of the first but not the second term and explains civil and criminal consequences. See also Transblawg, Apparent anglicisms in German/Scheinanglizismen.



Mon, Jul. 05, 2004

Naked Jogging

CK - Washington.   Streaking can be subject to a civil penalty of 600 Euros, the second senate of the Karlsruhe Court of Appeals decided on June 29, 2004 in Dr. N's appeal 2 Ss 73/04. A press release explains the statutory basis for the offense under §118 of the Ordnungswidrigkeitengesetz.

The court rejected Dr. N's claim that naked jogging would constitute the exercise of a protected civil right. The court noted that the applicable standard changes over time alongside shifts in moral values and their expression. Thresholds for tolerance depend on location and expectations. For instance, some nudity may be appropriate at beaches. By contrast, nudity in the streets would be an imposition on the unsuspecting. In that situation, others have not had an opportunity to make a choice on their potential exposure to naked people. Springing nakedness on others in a generally modest setting violates the prevailing sense of modesty at such locations and constitutes, therefore, a violation of §118 OWiG, the court explained.

The court also refused to reverse another conviction of Dr. N. for six similar events. During those, Dr. N. had covered his genitals with nylons.



Law School Open House

CK - Washington.   Saarbrücken Law School held an open house over the weekend. Its information technology department offered presentations ranging from an introduction to blogging to substantive topics such as copyright violations as crimes. The LAWgical blog has a special report and pictures. The school has been at the forefront of German legal technology for many years and is home to Juristisches Internetprojekt Saarbrücken and Neueste Geklaute Nachrichten, among others.



Admiralty Commission

CK - Washington.   By 2007, an admiralty and maritime commission of experts established today by Attorney General Brigitte Zypries will present a reform proposal to move the law from the era of wind-propelled vessels to modern merchant shipping. The focus of the reform will be the fifth book of the Handelsgesetzbuch or commercial code. Over time, the code experienced numerous updates but they were limited to the transformation of international law while the main body of the law remained untouched, and now seems out of touch with present-day commerce.



Fri, Jul. 02, 2004

Procedural Reforms

CK - Washington.   The federal diet passed procedural reforms in the criminal area, covered chiefly by the Strafprozessordnung, the criminal procedure code. We were going to provide an analysis here, but the MCNeubert blog has already a detailed description, in German. (Correction: Neubert repeats the Berlin DOJ press release.) Unlike Neubert, we believe the reforms were passed yesterday. The reform affects a variety of rules, such as the use of documents as evidence and the taking of oaths from witnesses, and we will introduce specific features here after further analysis.



Wed, Jun. 30, 2004

Online Market Liability

SK - Washington.   On June 28, 2004, the JurPC legal site published the December 16, 2003 decision of Brandenburg's Court of Appeal, case number 6 U 161/02, on the liability of online markets for carrying third party information which may give rise to cease-and-desist-orders because of content that violates statutes intended to protect children or to prevent crime.

The key point of the ruling is that under the statute on services by telecommunications providers, Teledienstgesetz (TDG)--an act which includes exceptions for the liability of internet service providers (ISPs)--online sales fora are liable only if they have knowledge of the existence of the relevant information and if they fail to promptly remove any offending information of which they become aware. The court established that an ISP usually would have knowledge if it adopted the contents as its own. To that end, the court applied the standard of the perception of the average consumer.

Three months later, however, on March 11, 2004, the Supreme Court in Karlsruhe decided in case number I ZR 304/01. It held that TDG exceptions from liability apply only to damages and not to injunctions. Nevertheless, the court pointed out that ISPs are liable for removing the content under basic principles of civil law, provided that they have an opportunity to acquire the prerequisite knowledge. They are not required to monitor, make inquiries, or keep records of Internet content which they host or carry. But as soon as they become aware of illegal content, they must remove it and possibly prevent future offenses.





Sun, Jun. 27, 2004

Telecom Statute

CK - Washington.   The advocatus.de and jurabilis blogs note that the revisions to the telecommunications statute have now been published in the German federal register, Bundesgesetzblatt, 2004, Part I, page 958, and portions became effective yesterday. Vertretbar.de refers to a list of statutory changes that will become effective on July 1, 2004.



Sat, Jun. 26, 2004

Lawyer Marketing

CK - Washington.   Under articles 3 and 12 of the German constitution, Grundgesetz, lawyers may publish revenue figures in their marketing, the Nürnberg Court of Appeals decided on June 22, 2004. As a result, certain restrictions in §6(3) of the statute governing attorneys, Berufsordnung der Rechtsanwälte (BORA), are unconstitutional.

That section of the statute, published at the advobLAWg site, expressly outlaws the use of such figures for marketing purposes, as follows: §6 Werbung... (3) Die Angabe von Erfolgs- und Umsatzzahlen ist unzulässig, i.e. figures pertaining to success or turnover may not be stated [in advertising]. Handakte WebLAWg has additional links.



Guerilla Marketing

CK - Washington.   The legal environment of Guerilla Marketing is a new focus of the Sevriens blog. A conference report is the first part of a series in which Sevriens will develop the legal issues under German law. On Monday, his conference presentation will be on the blog site.



Fri, Jun. 25, 2004

Law Blogs in Germany V

CK - Washington.   Some law blogs annoy by lecturing on IT matters as if blawgs served the technology-challenged. I prefer those who treat IT like love. Enjoy it, master it, no need to blab about it in court. Here are some gBlawgs that stay the legal course.

staatsrecht.info maintains, sporadically, but with a renewed promise of increased frequency, a discourse on constitutional and administrative law. Despite an emphasis on the law relating to educational institutions, you will find examinations of recent cases involving money laundering, privacy or the right to avoid the draft.

mindermeinung.de offers a mix of straight and humorous insights into major legal developments and matters related to careers and expectations from the vantage point of law students. The focus of immateriblog.de is IP law and policy--or is it entertainment law? Well done, interesting positions, topically a bit discombobulated, but worth visiting. By contrast, expect to get clobbered by recurring but well-articulated opinions at the professorial Lenz Blog Deutsch. Patent law, and especially no patent law for software, is the theme that holds much promise if only there were more frequent updates.

Needless to say, blawgs devoted to IT issues for lawyers without electric thumbs should keep up their good work, and my link to Handakte WebLawg which OPMLs the German-language law blogs falls, naturally, outside of the scope of the rule proclaimed above.



Tue, Jun. 22, 2004

Shop and Stop

SK - Washington. On June 9, 2004, the Federal Constitutional Court in Karlsruhe published its decision in case number 1 BvR 636/02 in response to a complaint about the constitutionalty of the statute governing store hours, Ladenschlußgesetz.

As stated in more detail at recht-in.de, in German, the act imposes quiet times during which stores remain closed, such as on Sundays and Saturday nights. Exceptions exist, such as for sales to travelers and tourists. The petitioner appeals a cease and desist order which prevents her from selling jewelery designed and marked for tourists beyond general store hours. She claims a violation of her constitutional rights by the statute.

The Court found the Ladenschlußgesetz to conform, however, to the constitutional mandates for equality, personal liberty and the freedom to work. The act, it points out, is justified by concerns for the welfare of personnel, particularly with regard of its work hours. In addition, the statute serves the purpose of ensuring a free and equal competitive playing field as well as manageable monitoring for compliance. In sum, the Court disappointed stores that had hoped for a relaxation.



Ex-Judge Cannot Be Attorney

CK - Washington.   A retired appeals court judge is not automatically qualified for admission to the bar of the appeals court, the German Supreme Court ruled recently. The decision seems odd, because German lawyers train to be judges before they can seek admission to the bar.

The case involves a judge who retired from the appeals court and, after admission to the bar, sought an additional admission to the bar of the court of appeals. Only experienced lawyers qualify for such admission. Experience is demonstrated by having practiced in the lower courts for a period of five years. The Supreme Court decided to hold the judge to the same standards as other lawyers, docket number AnwZ (B) 77/03, decided January 12, 2004.

The Court interpreted the statute governing the practice of law, Bundesrechtsanwaltsordnung, sections 20(I)(1) and 226(2). It found no discretion to exist which would permit the admissions board to apply an exception from the requiement of the required five year term which the judge had failed to meet. Since there was no room for discretion, the Court abstained from determining whether a 20 year term on the court of appeals would be equivalent to practicing law at the trial level. For the same reason, the Court did not address the issue of whether her affiliation with the court precluded her admission to the same court of appeals.

Unrelated: Vertretbar Weblawg disputes the notion that inexperienced lawyers abuse clients and argues that experienced lawyers are less familiar with the law.



Mon, Jun. 21, 2004

Superlative Advertising

SK - Washington.   On June 17, 2004, the Supreme Court in Karlsruhe decided case number I ZR 284/01, American Online Inc. vs. T-Online International AG. The latter is a subsidiary of Deutsche Telekom AG, a telephone company with activities in the United States. The Lawgical blog discusses the case in German. The court published a press release and the ruling should appear soon on its web site.

The Court affirmed a cease-and-desist order issued under unfair competition laws against T-Online. In 1999 and 2000, the company had promoted itself with the German equivalents of statements such as T-Online is Europe's greatest Internet-Provider or Today, T-Online is already one of the world greatest Internet corporations.

The Court pointed to clear precedent by which it would apply the standard of the perception of the average consumer to issues of advertising. In the instant case, it held that such a consumer would have been led to believe that T-Online was the most frequently used Internet provider. That was not true at the time, and the advertising was, therefore, over the top, enabling AOL to step in. See also, Sevriens, Irreführende Werbung.



Sun, Jun. 20, 2004

Publish or Perish

CK - Washington.   In a decision of significant impact on publishers as well as translators, and possibly authors, the Supreme Court's First Civil Senate interpreted the obligation of publishers' contracts with translators under the publishing and copyright acts, on June 17, 2004, in the matter of the Piper publishing house and translator Karin Krieger, docket number I ZR 136/01. A press release and Transblawg, in English, set out the pertinent facts and conclusions.

The decision means more protection for translators, but also authors, who sign contracts with publishers promising not only per-page compensation but also a share in the profits in the event of a commercial success. Once the book meets the threshold for commercial success, the publisher may not defeat the element of conditional compensation by replacing the translator with another translator. With respect to authors, the decision would limit the flexibility of publishers in replacing authors and contributors in similar situations.

While individual results will depend on statutory construction, the court interpreted the statute to mean that works produced on demand, unless expressly agreed otherwise, would create a obligation for a reasonable effort at publishing the work. With respect to reprints, however, the court did not find an obligation that would require a publisher to exhaust the commercial potential of a literary work by releasing reprints, especially if the publisher can return the copyright for reprints to the translator, which is the rule the Publishing Act (Verlagsgesetz) already applies to authors. The decision which should appear soon on the court site does not impair the right of publishers to terminate translation contracts for breach.



Transparent Vicar

CK - Washington.   News reports indicate that his drive for transparency caused friction between Berlin vicar Wehr and his archbishop. Possibly as a result, Generalvikar Wehr has been appointed to lead the German-speaking catholics in Washington, beginning in the fall of 2004. By the time he returns to Germany, he may have become also a master in corporate governance, if he is not already, and an even pricklier thorn in the bishop's side.

Addendum: Berlin diocesan press release.



Sat, Jun. 19, 2004

Law Blogs in Germany IV

CK - Washington.   Among the OPML'd gBlawgs, a few sleeper blogs surprise periodically. Others are stalwarts of steadiness.

Law Blog belongs to the first group, handsomely designed, with occasional, well-researched entries on new IP developments. Similarly, Christian Säfkens Weblog picks a topic of broad concern and publishes thoughtful analyses and commentary, or presents a novel perspective, such as criminal and constitutional aspects in pharma matters. Simon's Blawg serves usually like a radar-scope, catching blips and furnishing links in German and English. Now and then, sparing, reasoned annotations follow.

Vertretbar Weblawg covers the middle ground. Well-researched material is extensively reported, and then, it seems, the author wants to let it sink in. The fact that these blogs experience marked ebbs and flows does not detract from their obvious quality.

jurabilis!, a full power blog, easily offsets one or two sleeper blogs. Like Handakte, it is quick to discern trends, to mirror, or point to, newstickers and to add personal observations and handy reference lists.

When speaking of the characteristics of the gBlawgs in this series, one characteristic applies across the board: Humor, and sometimes levity or irony, help these authors, some of whom should be fierce and possibly cynical competitors, achieve a collegial spirit.



Thu, Jun. 17, 2004

Attorney Time Management

SK - Washington.   Benno Heussen published the second edition of Time Management für Anwälte (ISBN 3-406-51958-X) to rave reviews. Time is money. The highly successful author, attorney and law professor appreciates its meaning for lawyers, even in Germany with its traditionally value-based fee system. Heussen focuses on managing time for attorneys so that they can tap into their full potential. He offers valuable clues on how to deal with clients, schedules and deadlines. His tips range from handling daily mail and appointments to drafting briefs.

His qualification of mastering three careers simultaneously enables Heussen to authoritatively explain how to gain more time, improve the quality of work and cut expenses by using simple tools. Numerous illustrations serve to clarify his ideas, such as the basic concepts of time management; work techniques (e. g. speed reading, calling and the use of organizer and computer); avoidance of disturbances and irrelevant information; traditional time management such as scheduling working weeks and days and preparing checklists for contracts, pleadings, opinion memorandums and client correspondence.

Suggestions, such as an extensive list of web pages and recommendations of organizer hardware and software, add to the value of the second edition. Even though one may not conduct one's life under a strict regimen of time management, this book is enjoyable and encouraging.



Law Blogs in Germany III

CK - Washington.   Two blogs in Germany deserve praise for original content and plenty of supporting links: Transblawg and LAWgical.

Ladies First: Transblawg is not strictly a law blog and is instead run by an English solicitor who specializes in German to English translations. Her trademark topics are language trends and Gerglish terminology, some of which are not merely educational but also quite humorous. Frequently, she delves into brilliant analyses of German and English legal terms, covering a geographical range that extends beyond the namesake nations, and lays out the root causes of confusion in translations as well as solutions appropriate for various legal systems.

LAWgical provides a constant flow of in-depth analysis with plenty of references, usually in matters relating to technology, such as the current discussion of value added communications services and vendor evaluations at eBay, often with a sprinkling of technical recommendations.

log.handakte.de OPMLs the German-language law blogs.



Wed, Jun. 16, 2004

EU Arrest Warrant

CK - Washington.   Today, the Federal Diet in Berlin overrode a veto by the Senate against a bill to implement the European Union directive for a unified arrest warrant. The E.U. agreement simplifies the determination of 50 listed offenses deemed to meet the requirement of double criminality.



Law Blogs in Germany II

CK - Washington.   Among the law blogs listed in the Handakte-OPML are Bakraç, Muepe.de and Sevriens.

The Rechtsanwalt Mustafa Bakraç blog is one of the newest blogs in German. Its topics, immigration law and sports law, should interest a good number of American readers. Despite its promise, however, the blog suffers from the scarcity of updates.

By contrast, two other blogs have recently acquired prominent status by virtue of their frequent updates and proprietary entries: Muepe.de and Sevriens. Dennis Sevriens mirrors rarely and, instead, offers proprietary content, in a broad range of civil matters and with a focus on IP. Der Chef kocht selbst, and the food is tasty and hearty. As a result, many bloggers have taken to quoting him. Peter Müller offers insightful analyses into IP developments, is especially strong in domain and ISP law and keeps on top of open source licenses, often with supplementing mirrors.



Tue, Jun. 15, 2004

Offloading New Books

CK - Washington.   German law protects small book vendors and publishers by enforcing minimum retail prices established by publishers. Today, the Frankfurt Court of Appeals decided the issue whether the retail sales price also applies to sales of new books on eBay. Sevriens analyzes the decision in detail, and he, law blog, Handakte, and IUM, among others, discuss it further and provide background information, in German. A Culture Council expressed satisfaction.

The basic elements are simple. A journalist frequently sold books he received for free for reviews, on eBay. The court determined such sales to fall under the statutory principles that apply to the first sale of new books. A significant factor is the frequency of the sales which turns the seller into a book dealer. In this case, docket number 11 U (Kart)18/04, offering 40 new books over a period of six weeks was sufficent to render the journalist subject to the §3 of the Buchpreisbindungsgesetz.

See Nebel, Auction Sellers Anticipate Appeals Ruling, (May 24, 2004).



Mon, Jun. 14, 2004

Law Blogs in Germany I

CK - Washington.   The number of law blogs in Germany has grown substantially in the past year. In this series, I will highlight a few of them.

Handakte WebLAWg is reportedly the most active German-language blog. A mirror master, Handakte is quick to pick up current developments from a variety of sources and to devotes a good bit to commentary and analysis. The focus is broad, ranging from the coverage of newsworthy items to legal insight and technical developments. Reporting appears to run around the clock. It offers a good start in the morning to get the lay of the land. Its author has been called the pope of blawgs. He is also involved in a new service called Newest Ripped-Off News.

law blog is always entertaining, mixing bits of wisdom with witty stories: The reality show of gBlawgs. From the field reporting endears the author to his readers. Each entry is a self-contained topical unit, and many entries trigger trails of comments. This is the blog for when you crave to know what the main character experienced over the past few hours--before you turn to the lay of the land.

German language blogs are OPML'd at log.handakte.de



Thu, Jun. 10, 2004

Award of Counsel Fee

SK - Washington.   On May 6, 2004, the Supreme Court in Karlsruhe published its May 6, 2004 decision in case number I ZR 2/03, see also Sevriens, in German. It determines that an award of attorney fees is inappropriate where the attorney is the plaintiff and seeks to enforce a cease and desist order under unfair competition laws. Generally, counsel fees may be awarded a plaintiff in such matters where plaintiff is deemed to provide a public good or to work for the benefit of another party (Geschäftsführung ohne Auftrag (GoA)).

The GoA doctrine embodies principles of compensation and of providing a service to another on his behalf and beneficial to him, without any express instruction and is statutorily defined in §677 Civil Code (BGB). The Court pointed out that instructing an attorney for a warning of this kind is unwarranted when the plaintiff possesses adequate knowledge of the applicable competition law. Issues involving competition among attorneys do not raise difficult questions for members of the same profession. Therefore, hiring an attorney, especially oneself, and expecting an award of fees is illusory.

Christiane Krueger had discussed the business of cease-and-desist orders here.



Wed, Jun. 09, 2004

Links to Gambling Sites

CK - Washington.   Yesterday, the Supreme Court in Karlsruhe published its April 1, 2004 decision, case number I ZR 317/01, on links from web sites to gambling sites. The ruling illustrates the supreme understanding of the Zivil Senat when it comes to the facts of life and life on the internet under the rule of law. As a result, it has generated a lot of buzz in Germany and abroad.

The key point of the ruling is that a party with a commercial web site may maintain, without fear of civil liability, a link to other sites, including a foreign site offering services that would require special permits under German law or else is illegal in Germany. In the particular setting, the German web site pointed to an Austrian gambling site. The Austrian site may cater to German customers and lacks a German gambling permit.

Understanding the realities of the marketplace and the internet, the Court stated that the link is an informational tool; it does not mean an endorsement of potential criminal activity. The German web site did not set the link to promote or otherwise assist the Austrian site or to benefit commercially from the link.

For these reasons, none of the statutory rules for civil liability under unfair competition laws, internet and communications laws, or general civil law, all of them within the context of the relevant European Union directives, and also including those that relate to acts of principal or to principles of aiding and abetting and joint tortfeasors, would operate to imply anything illegal in setting and maintaining such an informational link that serves as a technical convenience and does not financially benefit the operator of the site.

The ruling does not permit web site operators to wholly abdicate any responsibility for links. For instance, a link that would trigger an illegal effect immediately upon clicking on it, such as displaying criminal sex, would continue to expose the linker to liability, based on my initial reading of the ruling -- to be corrected if I am wrong.



Sat, Jun. 05, 2004

Computing Fees and Costs

CK - Washington.   Prozesskostenrechner, Fee and Cost Computer, is a Javascript web service by insurance carrier Allianz. After entering a case ID in line 1 and the amount in dispute in line 2, a visitor will receive an estimate of costs and fees computed under the terms of the German cost and fee statutes. The federal legislature recently reformed the fees for attorneys.

Allianz' interest is in financing legal action. Champerty anyone? Marktplatz-Recht.de provides more information, in German, about the statutory reforms and implications for attorneys.



Sun, May. 30, 2004

Parliamentary Transcripts

CK - Washington.   On May 26, 2004, the press office of the federal diet in Berlin released a statement in defense of its speaker, Wolfgang Thierse, whom the Bild paper accused of changing a parliamentary transcript.

The press office explains that transcripts need not be verbatim; rather, it has always been standard practice to correct mistakes and eliminate redundancies. If I remember correctly, the Congressional Record does not reflect every utterance verbatim, and members have, or used to have, an opportunity to replace their statements with more accurate versions. Perhaps there is a good reason to distinguish the treatment of testimony by witnesses and experts and statements from politicians, although it escapes me right now.



Sat, May. 29, 2004

Gaseous Emissions Deal

CK - Washington.   Yesterday, the Conference Commission for the Federal Diet, Bundesrat, and the Upper Chamber, Bundestag, submitted a Conference Bill to both chambers which would reduce red tape in the trade and permit process for gaseous emissions, the Gesetz über den Handel mit Berechtigungen zur Emission von Treibhausgasen, which implements the E.U. Directive 2003/87 on climate change as a Kyoto Protocol mechanism.

Instead of introducing a separate permit system, the Upper Chamber representing the states, Länder, wanted to combine the administration of the permits law with the process already in place for other emissions, and won. Next, the diet will review, and possibly pass, the bill. Then, the Upper Chamber may pass the bill at its next plenary session on June 11, 2004.



Help in Austria

CK - Washington.   Help.gv.at, an Austrian government site, explains numerous legal issues involving citizen interaction with government agencies. I recommend to German-reading readers, as an entry page, the official report of the Rotkäppchen, Red Riding Hood, incident which Margaret Marks of the translation blog TransBlawg noticed first. In the left margin, each page lists links to topics ranging, in German, from Adoption to Zivildienst and, in English, from Authorities through Working.

The authors advise that the English-language material is still incomplete. Not being admitted in Austria and Austrian law being as dissimilar from German law as Canadian law is from American law, I cannot vouch for the quality of the material but the site presents very interesting and practical introductions to many facets of Austrian law.



Wed, May. 26, 2004

Last Call: GDR Takings

CK - Washington.   On June 16, 2004, a final deadline to file claims for the recovery of compensation of lost property within the territory of the former German Democratic Republic will expire. Such claims fall under the GDR Compensation Performance Statute, DDR-Entschädigungserfüllungsgesetz (CPS), of December 17, 2003, see BGBl. I No. 59, 2471. The Federal Justice Ministry advised of the statutory deadline in a press release.

Claims under the CPS relate to real estate expropriated by the former East German government for which no compensation was made under East German, occupational or West German law. The interaction between the various statutes by the various sovereigns is fairly complicated. In certain instances, such as when a claim has been filed under the pan-German statute and has not been finally resolved, filing a claim under the CPS may not be needed. By contrast, filing a new claim within the deadline is required if the GDR authorities rejected a claim for compensation under its law but a claim could validly exist under the CPS.

Various states, such as Sachsen-Anhalt, provide contact information on the internet.



Tue, May. 25, 2004

Terms in Online Auctions

CK - Washington.   "No Refund, no Exchange - Private Sale Under E.U. Law" - such statements accompany many offers on online auction systems in Germany. Jens Henke examines the validity of such disclaimers under German contract law. If used repeatedly by sellers who regularly offer merchandise of like kind, such disclaimers are misleadingly false, and invalid, he concludes.



Mon, May. 24, 2004

Auction Sellers Anticipate Appeals Ruling

JN - Wellington.   Tomorrow, arguments before the Frankfurt am Main Court of Appeals, Oberlandesgericht, are expected to affect eBay's German subsidiary significantly. Plaintiff, a bookseller, sued an eBay powerseller for violation of the Price Control on Books Act, Buchpreisbindungsgesetz. The statute lets publishers fix a price for books which, with few exceptions, booksellers must respect. The trial court found the defendant to have auctioned large stocks of books at prices starting at 1 Euro, in violation of the statute. Therefore, it ordered the defendant to desist from such auctions.

The defendant appealed. A dismissal would imply that such auchtioneers are deemed commercial traders as defined by the Commercial Code , Handelsgesetzbuch, which requires them to publish their name, corporate form and tax identification number, see Nebel, Clarifying the Corporate Form in Germany. EBay may need to revise, therefore, its policies and no longer permit powersellers to act anonymously. The ruling may affect the tobacco industry because the sale of cigarettes is also subject to price controls.



Sat, May. 22, 2004

Inhope Bi-Annual Report

CK - Washington.   Sometimes, clients and even attorneys wonder where to report illegal material offered on the internet, as a professional mailing list currently reflects. In the German-American context, inhope.org is a useful first contact. Both German and American internet hotline subscribers joined this international network. On May 14, 2004, inhope published its bi-annual report and launched its Code of Practice. The official mission of inhope [...] is to coordinate and facilitate the work of Internet Hotlines in responding to illegal and harmful use and content on the Internet..



Mon, May. 17, 2004

Compulsory Software Licensing

CK - Washington.   In our Articles Edition, Susanne Wagner-Pham discusses the hotly debated April 29, 2004 decision by the European Court of Justice which in its first instance found European competition law to suggest the controversial remedy of compulsory software licensing.



Virus Liability Issues

CK - Washington.   Jens Henke discusses in his note Schadensersatzpflicht für Virenprogrammierer, The Liability of Virus Programmers, some aspects of the civil liability of programmers of harmful viri as it may arise in German law, Peter Müller notes in his blog. Henke's starting point is the Sasser virus and the time line of its release and of the release of warnings and measures to remedy defects in the Microsoft operating systems. Henke argues these key points:

  • The programmer of the virus is liable under principles of tort law.
  • The programmer's liability is limited by the intervening contributory negligence of users of the affected operating systems who failed to apply corrective measures promptly.
  • Such users are not liable for the harm caused to third parties when they permitted the virus to invade and enabled Sasser to spread.


  • Programmer Liability: Tortious liability results from the Sasser release which is capable of the intentional invasion of randomly selected systems. While randomness may cause questions with respect to the intent requirement of §823 of the Civil Code, Henke argues that the programmer demonstrated intent by knowingly tolerating random harmful effects. Therefore, liability rests on §823 (1) which, among other things, protects against damage to property.

    Limitation of Liability: On April 13, 2004, long before the Sasser release, warnings of defects in the Microsoft operating systems alerting to the specific risks associated with the likes of Sasser as well as remedies for defects in the operating systems were widely published. Henke suggests that German law requires commercial users to promptly take preventive action to prevent harm; in an IT environment, prompt should mean within one day from acquiring knowledge of the defect. The negligence of third parties in repairing the defects in the operating systems could trigger, beginning on April 14, 2004, i.e. one day after release of an effective remedy by Symantec, contributory responsibilities by third parties that allowed Sasser to invade and spread Sasser to others. Such contributory negligence could partially exculpate the programmer from liability under §823(1).

    Liability of Propagators: Sasser hosts who propagated the worm after failing to repair their copies of the faulty operating systems may appear liable, Henke argues, but their lack of intent renders §823 (1) inapplicable. They might be liable under §823 (2) which triggers a liability in tort based upon the violation of criminal statutes but Henke finds that there is no criminal statute that would trigger liability for purely negligent propagation.

    Looking beyond Henke's thoughtful analysis, an argument could be made that §830 of the Civil Code may render third party hosts of Sasser liable for damages. In addition, justified apprehension of IT users in applying fixes to their copies of the Microsoft operating systems may excuse their failure to act. Such apprehension could be justified by prior experience with Microsoft patches which are frequently reported to do more harm than good. In any case, the defects in the Microsoft operating systems may shift the ultimate responsibility to its producer unless its terms of sale or license should prove more fortified than its products, or the almost natural bugginess of software is such that programmers should always be free from liability.



    Thu, May. 13, 2004

    Reforming Costs and Fees

    JN - Wellington.   The Federal Diet, Bundestag, in Berlin passed major revisions to the rules on court costs and attorneys' fees, called Gesetz zur Modernisierung des Kostenrechts. The act aims at simplifying the provisions currently governing the law of attorneys' fees. Under the new rules which will come into effect on July 1, 2004, attorneys may no longer charge an extra fee for introducing evidence into proceedings. This fee will be offset by a slight increase in the basic fee. The law also recognizes as statutorily chargeable certain types of legal services, such as mediation and arbitration, tax matters, or counselling witnesses. Significantly for business lawyers, new provisions on matters handled out of court will come into effect on July 1, 2006. Unlike under current law, the issue of compensation for such work will be left entirely to the disposition of the parties. This rule will strenghten fee agreements between attorneys and clients. Link to background information on the fee reform bill, in German.



    Tue, May. 11, 2004

    Berlin Spam Rulings

    CK - Washington.   Handakte WebLAWg found a comprehensive list, by Carsten Hoenig, Esq., of anti-spam rulings rendered by the Berlin District Court. Courts all over Germany appear fed up with spam and tend to confirm cease and desist orders against mailers of a single unwanted commercial email. The Supreme Court had encouraged such decisions with its March 11, 2004 ruling in the civil matter 1 ZR 81/01.



    Mon, May. 10, 2004

    Rule of Law in Times of Terror

    CK - Washington.   Today, German Attorney General Brigitte Zypries addressed a varied group of guests invited by Friedrich Ebert Foundation, one of the advisory groups to the German political parties. Its director, Dieter Dettke, explained that the German AG, unlike the U.S. counterpart, exists principally to guard citizens from state action and to protect their constitutional rights. The enforcement role which characterizes the AG in Washington is held in Germany by the Secretary of the Interior.

    Zypries' remarkable presentation Freedom, Democracy and the Rule of Law in an Era Marked by International Terrorism will be on the Internet at the foundation's and the Bundesministerium der Justiz web site for downloads in English and German. Her main point is the balance to be struck between the protection of citizen rights and preventive and enforcement action against terrorism. German terrorism in the 1970's generated a benefit for the current wave of international terrorism in that that balance had been struck back then, by the enactment of new, hotly debated laws and the resulting scrutiny applied by the legal system.

    Another side effect is that while courts cannot deviate from the German and international principle of in dubio pro reo even when a suspect appears guilty of participation in terrorism, Germany has learned to be open to negotiating on a case by case basis means to strengthen international cooperation. For instance, restrictions imposed by the United States on evidence supplied to Germany forced a court to free a criminal defendant already convicted of terrorism, but both German and the United States authorities, as well as their counterparts elsewhere, recognized the need to elevate international cooperation in criminal matters. Some fruit of that awareness has been born in the new Schengen/European Union cooperation efforts, such as in the mutual recognition of arrest warrants.

    An overriding theme of Zypries' presentation and her answers to numerous questions from the audience was that societies need to abide by Prime Minister Blair's appeal to preserve the universal values of humanity. This objective can be accomplished within the rule of law, without resort to extraordinary treatment of enemies and suspects or to extraordinary adjudicative fora. Germany's own history causes her to believe that extraordinary fora are less desirable than solid efforts to address even extraordinary crime within the ordinary, constitutionally mandated system of justice governed by the rule of law.



    Transparency in Internet

    CK - Washington.   A two-day conference, Suchmaschinen - Neue Herausforderungen für die Medienpolitik, Search Engines--New Challenge for Media Policy, sponsored by Bertelsmann Foundation in Berlin explores transparency in the internet. The focus of Bertelsmann efforts are search engines. The foundation developed a code of conduct for search engines and presented it in the fall of 2003. Four German-language search engines adopted the code.

    The conference begins today. Search engines tend to mislead consumers, the foundation's researchers discovered. At least users in German-speaking countries understand search engines to function as neutral information sorting systems and remain unaware of biased algorithms, engine spamming and other factors designed or suitable to influencing search results. The code of conduct is supposed to enhance transparency and quality in the search field. Although speakers include participants from the United States, the Bertelsmann Foundation incentive appears limited to the German-speaking markets and similar legal systems.



    Fri, May. 07, 2004

    License Battles

    CK - Washington.   The more the merrier. Both Handakte WebLAWg and muepe.de blog note efforts to provide a creative commons type license that will hold up in German law. In addition to a draft translation of the Creative Commons terms for copyright and reciprocity, there are four mutually complementary licenses known as Lizenz für Freie Inhalte, or License for Free Content, by Centrum für eCompetence in Hochschulen NRW known as CeC. Muepe.de lists the four CeC types and summarizes their purposes.

    The next question is which of these licenses, if any, will survive the scrutiny of American law? It's Friday afternoon, the weather is great, and I am not going to offer an opinion ...



    Nothing to Hide

    CK - Washington.   Nothing to Hide v. Privacy sums up the topics of a conference held tomorrow at Mediakulturzentrum Dresden in Saxony. The title Datenspuren - Privatsphäre war gestern, The Data Trail - Privacy is so Yesterday (my translation), covers presentations from numerous experts that range from public video surveillance via trusted computing to file sharing and data protection under Saxon and European law. The materials linked to the web invitation are examplarily useful introductions, and it is hoped that the resulting papers will be published at the same site which offers an RSS feed.



    Wed, May. 05, 2004

    Victims' Rights Reform

    CK - Washington.   Bills by the Diet and the Upper House on victims' rights in criminal cases moved to the next stage in conference. The conference of both federal houses in Berlin produced a result that provides victims with improved access to non-public hearings even if they fail to file for ancillary prosecutor status. Persons who formally participate as ancillary prosecutors, Nebenkläger, have always had the right to file motions, offer statements and suggest conviction and punishment.

    In addition, the conference bill strengthens victims' rights for damages claims that may be raised as an ancillary claims in criminal proceedings which helps avoid a separate civil trial. The conference agreed that such ancillary claims may now include compensation for pain and suffering, as is the case in a pure civil matter. Although the standard of proof is different in criminal and civil cases, judges apply and document the proper standards.

    By way of background, civil matters in Germany law are non-jury cases. In fact, Germans tend to be perplexed when they realize that American law provides for a jury in civil matters. Attorney General Brigitte Zypries who will visit Washington next week introduced the bill in November 2003 as the Victims Rights Reform Statute, Opferrechtsreformgesetz.



    Mon, May. 03, 2004

    Off Topic: Punchcard Lawyer

    CK - Washington.   Quite off-topic. Ran into another lawyer with a punchcard history. It has become rare to meet lawyers who know how to operate a telex machine, what an eight inch or five and quarter floppy is, remember shiny fax foil and LP-sized hard drives or who can appreciate a 300 baud acoustic modem. Punchcards seem prehistoric but sure help connect. Settled an IT/IP conflict that could have blown into a protracted affair, in a day, like back when punchcards prevailed.



    Conference At Bundesrat 5-5

    CK - Washington.   Several bills will go into conference on May 5, 2004. The web site of the Upper House lists them. (The content at that link may not be persistent.) Among the bills is one on the reform of the telecommunications law, one on restrictions of the use of mammals for research, one on gene-modified foods under E.U. rules, one on taking a poll that does not constitute a politically impalatable census, but should produce results for planning and statistical purposes and is called Mikrozensusgesetz 2005 (micro census statute), and finally a bill to ratify a standardized European arrest warrant.



    Sun, May. 02, 2004

    Links to German Courts

    CK - Washington.   The jurabilis! blog assembled several useful links to the German judiciary. One leads to Jusline-Suchmaschine, a search engine that helps with the identification of the courts in Germany with jurisdiction for addresses of potential defendants. Upon entry of the street name and address and the city, the engine spits delivers the information for the various courts at the local, district and appeals levels, in the areas of civil, criminal, social and administrative law. Another link leads to metalaw.de which contains additional information on the courts, including telephone and telefax numbers.



    Sat, May. 01, 2004

    No Private Pictures

    CK - Washington.   The Diet in Berlin completed an intimacy amendment to the criminal code. The amendment will add §201a which criminalizes violations of privacy in one's home or in enclosures that offer an enhanced assurance of privacy, such as restrooms. The change is intended to protect the most intimate settings from invasion by photographers and does not contain an exception for the press. Currently, remedies for victims are limited to civil actions for damages and injunctions. German blog Handakte offers additional links.



    Wed, Apr. 28, 2004

    Trade Mark and Business Name

    CK - Washington.   The Law Blog in München discusses a German Supreme Court decision from the fall of 2003, case number I ZR 65/00, involving the equally strong rights in trade names under trademark law and business names under the law of names in §12 of the Civil Code. The author cautions never to assume that a trademark could be stronger than a business trade name and alerts to a the case now pending in the Supreme Court involving the claim by a business against the owner of a conflicting trademark. A key aspect of the October 9, 2003 ruling is the indication of origin which is a characteristic of both types of protection.



    Tue, Apr. 27, 2004

    Stop Lease for Tear Down

    CK - Washington.   Today, the Upper House in Berlin introduced a bill authorizing the termination of a building lease when the premises are to be razed. The government opposes the bill, 15/2951, which, if enacted, would become a provision in the Civil Code. A discussion in German, Ein neuer Kündigungstatbestand in das Bürgerliche Gesetzbuch aufnehmen(sic), explains the counterveiling positions.



    Mon, Apr. 26, 2004

    Air Security Issues in Hearing

    CK - Washington.   The Federal Diet, Bundestag, in Berlin published a note today about a hearing of the Committee for the Interior on air security issues. The Executive under Chancellor Schröder had presented draft legislation 15/2361. The committee heard various expert witnesses detail the need for, and effect of, measures to protect air traffic against hijacking, sabotage and other dangerous interventions, including the use of military force in the event that the police authorities should be unable to assist. A competing bill submitted by the opposition would amend the Constitution in articles 35 and 87, with .the objective of more effectively combatting terrorism. The note entitled Notwendigkeit einer Grundgesetzänderung unter Experten kontrovers diskutiert, Experts Discuss Controversively Need for Constitutional Amendment, contains summaries of the witnesses' statements.



    Fri, Apr. 23, 2004

    German GPL Ruling not That Influential

    CK - Washington.   Addendum to the GPL decision discussed on Wednesday: In a commentary, GPL Gains Clout in German Legal Case, Stephen Shankland attaches greater precedential significance to the injunction than may be warranted. Yet, he paints a vivid and useful contextual picture of the international legal environment surrounding the GPL.

    I would disagree with a quote Shankland includes about the German and American legal systems of contract law being similar. They are really quite different and the differences exert a marked influence on the validity of the GPL. In addition, without an opinion from the court, any interpretation of the Munich ruling may eventually find support. That would include the view that the court may have disregarded, and found unnecessary to explore, the GPL and simply ensured that the creator of a copyrightable work may impose any legal terms for its distribution while a distributor may not give the false impression that a work is in the public domain or in his own ownership. The same result would hold true for any of the multitude of distribution schemes involving published source code and for those prohibiting the publication of source code.

    Depending on whether one advocates a philosphy favoring or abhorring the publication of source code for software, one may arrive at different conclusions. When you descend from the clouds of licensing philosophy and reenter the vibrant reality of drafting, selecting or using licenses, with or without the publication of source code depending on business model and many other important factors, the Munich decision is not all that useful.

    Addendum May 6, 2004: See discussion at Slashdot.



    Thu, Apr. 22, 2004

    Reforming the Corporate Law

    ASG - Washington.   The Schröder cabinet announced yesterday that it initiated the legislative process to amend the German corporate law. It approved amendments to corporate financial disclosure obligations.

    Two bills, Bilanzrechtsreformgesetz (BilReG) and Bilanzkontrollgesetz (BilKoG), intend to strengthen corporate governance and the protection of investors, improve the transparency of disclosures and to implement some European Union directives.

    For instance, the drafts contain conflict rules for services provided by accountants, permit an election to apply the IAS standard instead of the German HGB accounting rules and conceptualize private boards of review for suspicious financial statements of listed companies.

    These bills are anticipated to become effective in 2005 after three hearings in the federal diet, Bundestag, and, potentially, the advice and consent of the upper house, the Bundesrat.



    Wed, Apr. 21, 2004

    Judicial Enforcement of GPL Terms of Distribution

    CK - Washington.   On April 19, 2004, the German Institute for Legal Issues Involving Free and Open Source Software reported on the first court case that compels the enforcement of the GNU General Public License terms for distribution of open source software. Although the decision as an injunction is of limited value and does not include an opinion, it could be an important step in the recognition of the GPL. This is particularly true in legal systems such as Germany which raise grave doubts about the implied or waived acceptance features of the GPL.

    ifrOSS' Axel Metzger discusses, in German, the particulars of the April 2, 2004 Munich District Court decision in the matter 21 O 6123/04. The product at issue is netfilter/iptables developed by a developer consortium of the same name. Sitecom Deutschland GmbH distributed its software, allegedly after receiving it from Taiwan, without source code, attribution or reference to the GPL license. The court ordered Sitecom to comply with the terms of the license. The purported receipt of the software from a third party does not excuse Sitecom's failure to abide by the GPL distribution terms. At this time, the decision has not become final.

    For an open source license developed for compliance with German law, see the Bremer Lizenz für freie Softwarebibiliotheken.



    Mon, Apr. 19, 2004

    No Advertising Spam in Germany

    CK - Washington.   This fine Monday morning brings a March 11, 2004 decision by the German Supreme Court in Karlsruhe against commercial spam. Based on the unfair competition statute, UWG, the court ruled in the matter I ZR 81/01 that such spam may create an unfair competitive advantage for some businesses and encourage others to follow suit, ultimately causing significant damages. The München court of first instance had approved a cease and desist demand by the addressee of such mails. The München court of appeals had dismissed the complaint after the sender promised not to send spam to two of the addressee's email addresses because it found no violation of the UWG.

    The Civil Chamber of the Supreme Court evaluated unwanted commercial email (UCE) in a broader context than just the parties which happened to be competitors, and found it to constitute an unacceptable annoyance for any affected party. Therefore, any mass UCE, regardless of the addressee's domain or address, sent without the consent of the addressee, can constitute a violation of §1 UWG. That includes UCE sent by third parties where the apparent sender fails to take appropriate precautions against mistakes.

    The latter aspect may lead eventually to new responsibilities for web sites offering to generate emails to third parties, but the decision focuses on more limited facts. In this case, the defendant had argued that a third party had mistyped or wrongly selected the addressee's email address which differs from the setting of web-site generated mail actually triggered by visitors, such as e-cards.



    Reforming the Insurance Contract Law

    CK - Washington.   The Berlin Attorney General announced today the completion of a four-year effort by insurance experts to analyze the current law of insurance contracts. Minister Zypries stated her intent to submit to parliament, by early 2005, a reform package. The effort appears to target measures to enhance the protection of consumers. At present, consumers may contact an ombuds service for insurance matters in Berlin.



    Sun, Apr. 18, 2004

    Disclaimer for Links

    CK - Washington.   Law Blog, a.k.a. law blog 2, states the obvious: Disclaimers for links are futile under German law. Un-endorsing an endorsed link by way of disclaimer will not fly. Conversely, an un-endorsed link remains un-endorsed and requires no disclaimer, and a bad disclaimer might do more harm than good. Quite appropriately, therefore, Law Blog warns the German public of the silly nature of link disclaimers which have become as popular as the English term itself.

    The very aesthetically designed Law Blog itself is an example of the anglicized culture of naming German weblogs. There are now two using that title: Law Blog in München and the provocatively entertaining law blog in Düsseldorf. Confusing, but not as much as what Transblawg found in another context.

    For an ancient topical discussion, see Kochinke/Tröndle, Links, Frames and Metatags, CR 1999, 190. For technical background in German, see Links & Law, a thesis in German. See also The Link Controvery Page.



    Supreme Patent Court Cites Wiki

    CK - Washington.   The Supreme Federal Court in München chided the German Patent and Trademark Office for failing to consider current sources in trademark examinations. The court determined that the mark Explorer may not be trademarked, as advobLAWg notes. intern.de adds that the court cited the open-source Wiki-based encylopedia, WikiPedia, as of January 19, 2004, not just leather-bound prints.



    Sat, Apr. 17, 2004

    Umlaut Domain Grabbing

    CK - Washington.   The Cologne District Court decided in case number 31 O 155/04 on March 12, 2004 a case involving the new Umlaut domains, muepe.de reports. The use of extended characters in domain names was recently sanctioned. The defendant grabbed touristikbörse24.de and offered it to the plaintiff, the operator of touristboerse.de touristikboerse24.de in exchange for a free vacation. When plaintiff declined, defendant tried to sell the domain name on eBay. The court found defendant's activities to constitute unfair competition under §1 UWG, the unfair trade statute, and confusion of customers under §4 UWG. (Corrections gracefully supplied by Peter Müller of muepe.de added 4/19/2004 and 4/20/2004)



    Fri, Apr. 09, 2004

    Abusive Cease and Desist Demands

    CK - Washington.   A German thesis by Hamburg lawyer Martin Bahr on the abuse of cease and desist demands in the internet context, especially under German competition law, published in 2003, is now available for download on the internet. Despite changes in the competition statute, such abuse continues to be a problem in Germany. For an introduction, see Christiane Krüger's 2000 analysis The Business of Private Cease-and-Desist Orders.



    Fri, Apr. 02, 2004

    Punitive Disgorgements in Germany

    CK - Washington.   An interesting twist in the revisions to the German statute on unfair trade, Gesetz gegen den unlauteren Wettbewerb, that passed the federal diet, Bundestag, yesterday introduces an element that appears similar to concepts integral to the American concept of punitive damages.

    Considering that Germany will not enforce foreign judgments with punitive awards on the basis of a violation of public policy, BGHZ 118, 312; see also Germany: Federal Court of Justice Decision Concerning the Recognition and Enforcement of U.S. Judgments Awarding Punitive Damages, 32 I.L.M. 1320, (1993), this change could open the door slightly to the argument that German public policy no longer bars the recognition and enforcement of such awards. The result may no longer be "a result manifestly irreconcilable with fundamental principles of German law" under section 723 (2) of the Code of Civil Procedure. The amendment authorizes the disgorgement of illicit profits made from a class of consumers that extends beyond individual plaintiffs, according to a blurb published by the Department of Justice.

    A significant difference to punitive damages in the United States is the assignment of the recovery to the federal treasury, not the private plaintiff. The amendment will next be reviewed by the upper house, Bundesrat.





    Dual Citizenship Germany - United States

    CK - Washington. The citizenship story at debwire leads to this primer on dual citizenship for German Americans which will do in a pinch.



    German Inheritance II

    CK - Washington.   An overview in German complements my earlier blog note on collecting German assets for an American estate. Its focus is the domestic German procedure, not the international issues. Handakte WebLAWg found the article.



    Thu, Apr. 01, 2004

    New Rules Henceforth

    CK - Washington.   The German government published a list of new rules coming into effect today, among them an increased penalty for mobile telephony on bicyles.



    Wed, Mar. 31, 2004

    Systemic U.S. Violations of Vienna Convention

    CK - Washington.   Today, the International Court of Justice decided the matter of Avena and Other Mexican Nationals between Mexico and the United States of America in favor of Mexico after finding persistent and systemic violations by the United States system of justice. Links to the various opinions by the justices are at Findlaw's database of the case history.

    The instant case, number 128, concerns the mandates of Article 36 of the Vienna Convention of April 24, 1963 which also protects American citizens abroad by requiring that foreign arrests of Americans be reported to the American consul, among other things.

    The United States opposed the complaint by referring to its change of practices after the ICJ case LaGrande (Germany v. United States of America) which related to German citizens executed in the United States without consular notification. Mexico's complaint involves similar circumstances affecting 52 Mexican citizens arrested and convicted in nine states of the United States in violation of the Convention.

    The court disagreed with the United States procedurally and substantively, except for one vote. With 14 votes, it found the United States to violate systemically and persistently the Convention through various, major flaws in its criminal justice system.





    Tue, Mar. 30, 2004

    Sexual Harassment and Dismissal

    CK - Washington.   Sexual harassment will justify the termination of an employee with immediate effect under German law, the Supreme Labor Court in Kassel ruled on March 24, 2004, case number 2 AZR 341/03. It also determined that consent may constitute a viable defense under §2 (2) of the Employee Protection Statute, Beschäftigtenschutzgesetz, or BSchG. It remanded the case to the lower court for a factual determination of the employee's claim that the alleged sexual activity with another employee was consensual. This distinction would appear similar to American principles under Title VII of the Civil Rights Act of 1964 which includes sexual harassment among the forms of sexual discrimination and requires an act to be unwelcome to qualify for statutory sanctions.



    Telecom Antitrust Ruling

    ASG - Washington.   The German Supreme Court ruled today that former telecom monopolist, Deutsche Telekom, abused its dominating power in the market for conventional telephone networks in 2000.

    Deutsche Telekom bundled its ISDN lines and access to the Internet without base charges. Its subsidiary T-Online provided the Internet service. Its competitor, America Online Germany, claimed that Deutsche Telekom which provides 80% of the conventional telephone lines abused its market domination to develop the market for Internet access and excluded competitors.

    The Supreme Court agreed and ruled that Deutsche Telekom acted unfairly, without any objective necessity for bundling such services. As a result, Deutsche Telekom faces a damages claim by AOL.





    Attorneys Subject to Money Laundering Law

    CK - Washington.   Today, the Constitional Court in Karlsruhe ruled that the money laundering law of §261 StGB as applied to attorneys is constitutional. Handakte Weblawg notes that lawyers need to have positive knowledge of the illicit origin of funds before the criminal statute applies to them.



    Fri, Mar. 26, 2004

    GALJ in Multi Media Law Journal

    CK - Washington.   German law journal, MultiMedia und Recht, of major law periodicals publisher Beck Verlag, reports of the existence and history of the German American Law Journal in its March 2004 edition. Thank you! Thanks also for explaining its strengths and skipping the embarrassing shortcomings in the visual presentation.



    Wed, Mar. 24, 2004

    GALA Seminar on European Company

    ASG - Washington.   On March 24, 2004 RA Joachim Maiss, of feb Rechtsanwälte in Mannheim, Germany spoke at a German American Law Association seminar, hosted by Peter Esser of the Representative of German Industry and Trade in Washington, DC, on the topic of the new “European Company, Societas Europea, (SE).

    After describing details of formation, worker's rights and co-determination issues Maiss concluded that the SE is no ideal option for U.S. companies not yet active in the European Union to overcome the various national law. Although the SE is based on a European Commission directive, the SE remains bound by the laws of the jurisdiction where it is domiciled.

    In its CENTROS, Ueberseering and Inspire Art, Ltd. holdings, the European Court of Justice seems to follow a rule that entities established in other countries of the EU may be relocated into every other EU nation without prior liquidation, Maiss suggested. But because it is not yet clear which law applies to those companies, he added, as business should not establish, for instance, a limited company in the United Kingdom when doing business in Germany is intended.

    Maiss added that director's obligations can lead to personal liability, not coverable by regular insurance and special attention to this issue is important.





    Tue, Mar. 23, 2004

    Collection of Inheritance in Germany

    CK - Washington.   The collection of German assets in an inheritance by an American estate often runs into confusing issues. Cases involving an executor, like the one decided by the German Supreme Court in IV ZR 28/03 of December 17, 2003, are the exception. The rule in Germany is that the assets of a deceased do not fall into an estate but title to the assets vests directly in the heirs. A multitude of heirs would jointly effect the distribution. A certificate of inheritance would prove the title held by the heirs.

    Contrast this with the American approach of an estate becoming the owner of the assets until distribution and the appointment of a personal representative, executor or administrator responsible for the administration of the estate. Thus, German-American inheritance cases represent a classic clash of legal systems.

    The American estate needs to jump through various hoops, often expensive ones, to collect assets located in Germany. The ownership may be simple, and the right to represent an estate may be clear, but transforming the American legal concepts into corresponding German concepts, for the purposes of proving ownership and representation and for ultimately collecting German assets, requires significant effort.

    The collection of assets on deposit with German banks used to be fairly streamlined. But the world-wide rush to strenghten and enforce money-laundering and tax-evasion rules has banks scared of even the most slightly unaccustomed issue. As a result, banks apply a variety of procedures to ensure compliance and often require complex external and internal legal opinions and papers, from notarial documents to tax clearances, before releasing funds to American estates. In practice, this becomes a significant burden on the American estate. The only consolation may be that things are not simpler in the opposite direction, involving the collection of American assets for a German estate.


    Mon, Mar. 22, 2004

    Practical Issues in Copyright Law

    CK - Washington.   Sascha Kremer, at Vertretbar.de, points to a 2001 thesis now available on the Internet for a free download: Junker, Anwendbares Recht und Internationale Zuständigkeit bei Urheberrechtsverletzungen im Internet. The issue of the law applicable to, and jurisdiction appropriate for, copyright infringement cases that occur on the Internet remains an important topic that this practical analysis examines in detail. A recent, not yet final, decision in Hamburg notes, for instance, that German fair use principles in copyright law will not permit the use of a thumbnail representation of a copyrighted work in a link directing visitors to the owner's site. That is the rule for Hamburg, and only until a final resolution of the issue. It illustrates nicely the need for clarification and some common sense.



    Cell Phone for Lawyers

    CK - Washington.   Building upon earlier attempts at making cell phones useful for professionals, such as the Nokia 9000 smartphone series, Germany's Dictanet now introduces a phone that combines various useful functions: dictation, computation of fees and costs under the German statutory rules, and display of the most important codes in an optimized version for cell phone displays.



    Sun, Mar. 21, 2004

    feb Partner Maiss on Corporate Law

    CK - Washington.   Joachim Maiss, Esq. of feb Rechtsanwälte will speak on Wednesday at the German American Law Association Capital Area Chapter in Washington about corporate law developments in Germany. The Mannheim counsel is active in the international area and will focus on the European Corporation that is a new option under E.U. law.



    Fri, Mar. 19, 2004

    Trademark Violation on Trading Site

    ASG - Washington. On March 12, 2004 the German Supreme Court (BGH) ruled in a trademark matter launched by manufacturers of "ROLEX"-watches against ricado.de, a now closed internet trading site.

    Ricardo supported private and commercial vendors and received transaction fees. Clearly designated knock-offs of "ROLEX" watches appeared on ricardo at prices far below those of the regular products. The Cologne District Court granted the plaintiffs's prayers for removal of these offers and compensation.

    The BGH remanded the case for retrial. It determined that the tele services statute (Teledienstegesetz, TDG)--which exempts the provider of technical infrastructure from liabiliy for content--does not ban claims for cease and desist orders.

    The court outlined the requirements for such an order: (1) The seller would be a professional trader because the unauthorised use of trademarks is only illegal in commercial settings. (2) The defendant's technical means enable it to identify and remove illegal offers. A manual effort would go beyond the scope of the statute.

    The court rejected the claim for damages because ricardo.de had neither infringed upon the trademark by merely providing the trading service nor contributed to the infringement of the mark.





    Thu, Mar. 18, 2004

    Liability for Software

    CK - Washington.   Ulrich Bäumer, a GWU graduate and partner with the Heussen law firm in Frankfurt, provides a useful checklist of German software contract issues in his article Wie Sie Haftungsschäden vermeiden--just in time for the major IT trade show CeBit in Hannover. His discussion is a useful introduction into liability issues that can arise with the development and distribution of software under German law.



    Thu, Mar. 11, 2004

    Wiretap in Germany

    CS - Bonn   Major parts of the new wiretapping statute are unconstitutional. On March 3, the Constitutional Court (Bundesverfassungsgericht) in Karlsruhe declared most of the wiretapping rules adopted 1998 in a so-called Grosser Lauschangriff (literally: big eavesdropping attack) inconsistent with the guarantees of human dignity and the inviolability of the home under Art. 1 and 13 of the constitution. The court ruled that the inviolability of the home is tightly connected with the legal principle of respect for human dignity guaranteed by Art. 1 of the German constitution, known as the Basic Law. As a result, every citizen has, and is entitled to, a space of intimacy where he may conduct private communications without fear of state intrusion.

    The specially protected area of intimacy covers conversations between the target and his closest family members or otherwise other closely connected persons of trust (i.e. priests, physicians or criminal defense attorneys). The right to privacy in this area is untouchable and, therefore, cannot be counterweighted by the interest of the state in prosecuting criminal offenses.

    Not every audio surveillance, however, violates the principle of human dignity. Conversations about crimes already committed and those about to be committed or the planning of future crimes do not fall under this absolutely protected area of privacy. The Court argued that all statues authorizing the eavesdropping of communication in private homes must operate under strict scrutiny. Surveillance of these specially protected conversations between the suspect and his persons of trust is permissible only when there is strong reason to believe that the content of conversation does not fall in the area of intimacy as described above. Any eavesdropping activities must be terminated immediately once a specially protected intimate conversation begins. Records that are already produced of such conversations must be deleted promptly and none of information collected about such conversations may be used for prosecution.

    All provisions of the "eavesdropping attack"-statute that fail to meet these requirements are unconstitutional. The Court gave the legislators until June 2005 to amend such provisions to comply with constitutional requirements.

    This decision represents an important clarification of the right of privacy for private communications in Germany. The standards for eavesdropping within the sphere of one's intimate domain are now set so high that this type of surveillance has now become no more than a theoretical tool for prosecutors. Although the Grosser Lauschangriff-statute had become law before the 9/11 attacks on Washington and New York, the court´s decision will make it in the future politically more difficult to enact any laws restricting civil rights for the sake of preventing terrorism in Germany and, presumably, also in the member states of the European Union.



    Tue, Mar. 09, 2004

    Territoriality in Copyright Law

    ASG - Washington.   The German Supreme Court rendered an important opinion on the scope of German copyright law in a criminal matter.

    The defendant is the managing director of a CD manufacturer that produced and exported audio CDs for a company in Bulgaria. As he knew no copyright holder had authorized the reproduction.

    The Frankfurt District Court sentenced the defendant to two years imprisonment, on probation. On March 3, 2004, the German Supreme Court (BGH) dismissed the appeals by both the defendant and the prosecution and confirmed the decision.

    It began its analysis by defining the applicable law. Applying the principle of territoriality, only German copyright law could apply to the instant facts, it held. Under the German Copyright Act (Urheberrechtsgesetz) and the WIPO Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, the German copyright law covers copyrights of companies domiciled in the United States and European Union including such entities located in Germany if the media is distributed in Germany.

    The Supreme Court qualified the shipping of the CDs to Bulgaria as placing them into commerce in Germany. By doing so, for the first time, the Court transposed the long-standing territoriality principle from trademark law into copyright law.





    Mon, Mar. 08, 2004

    New El Motassadeq Trial

    ASG - Washington.   On March 4, 2004, the German Supreme Court in Karlsruhe (BGH) quashed the conviction of El Motassadeq and remanded the case for retrial.

    The Hamburg District Court had sentenced the defendant to fifteen years in prison after finding him guilty of aiding the 9/11 terrorists, despite his denial of any involvement.

    At his trial, the prosecution failed to produce the witness Ramzi Binalshib who remained in the custody of the United States which refused to make him available for the Hamburg trial. The FBI had refused to let an FBI agent testify. The FBI transcripts sent to German authorities were remained unavailable to the trial court.

    The Supreme Court ruled that the lack of such crucial testimony warrants utmost caution in weighting the balance of any circumstantial evidence. The trial court violated due process by having not exercized it.


    Thu, Mar. 04, 2004

    Fujitsu-Siemens Applies GPL

    CK - Washington.   The out-of-court settlement between the netfilter developers and Fujitsu-Siemens provides for the companies' observing the terms of the GNU General Public License after an allegation of violation. Click for the netfilter press release. The settlement is unfortunate in that it avoids a court ruling on the questionable validity of this license. The GNU license has earned much respect for generating interest in open source work but among the many open source licenses it is also the license most likely to cause confusion and concern at the intersection of commercial and open source licensing.



    Tue, Mar. 02, 2004

    Pixel Picky

    CK - Washington.   The pixel-pickiness of German courts lives on. Not disapprovingly, blogs Vertretbar.de and advobLAWg note that the Munich court of appeals decided on October 10, 2003 in a now final ruling that the identification of persons responsible for the content of websites needs to meet certain display requirements. Four pages of scrolls to reach a link to the Impressum provided under the Tele Data Statute is too much of an imposition on the user, the court found, when the screen display is set to a 1024 x 768 pixel resolution. Rare is the comment in Germany that the requirement for disclosure in an Impressum seems diametrically opposed to the otherwise strong protections of private data. Simon's Blawg, at least, affords some space to the issue of anonymity on the internet under freedom of speech principles.



    Fri, Feb. 27, 2004

    Court on Meta Tags and Trademarks

    SWM - Washington.   The Düsseldorf appellate court decided on February 17, 2004, file number I 20 U 104/03, that the use of meta tags in file headers of a website does not violate the trademarks or other rights of a competitor. Meta tags are words used within the code of websites which can not be seen by normal internet users. They perform numerous purposes and can include keywords for the content of a site which search engines, like Google, may use, or for filtering software, used by schools, libraries or parents to protect children under COPPA. The defendant's website contained meta tags consisting of business names and trademarks of the plaintiff, a competitor. As a result, internet users who searched for this trademarks or names through a search engine found both, the webpage of the of the trademarks owner and the competitor's.

    The court determined that the use of a word as a meta tag does not connect the word with a product or service because meta tags are invisible to the average consumer. In addition, average internet search engine users do not expect results for only one company, the court noted. There can be no resulting likelihood of confusion with the trademarks if meta tags cause search results favorable to the defendant.

    The court also rejected plaintiff's claims based on the Unfair Competition Statute. Only manipulations to move his own website ahead of that belonging to his competitor in the search engines may have constituted an act of unfair competition, the court stated.

    In the end, this well-reasoned decision affects only the legal fees and court costs because the defendant had voluntarily abstained from the further use of the meta tags while the case pended in the lower court. But its holdings on the substantive issues stand in stark contrast to many older decisions that bar trademarks from the meta tags of competitors. It may trigger a change in the German case law on meta tags. See also Wagner, Internet-Meta-Tags und Markenrecht in den USA and Kochinke and Tröndle, Links, Frames und Meta-Tags, CR 1999, p. 195 ff.



    Thu, Feb. 26, 2004

    Client Records and Transatlantic Practice

    CK - Washington.   Influential German daily Frankfurter Allgemeine Zeitung alerted German business readers with an article by Gleiss Lutz partner Stephan Wilske to the risk of foreign business releasing data to U.S. law firms in light of growing tendencies by U.S. courts to order the release of client data to third parties. In Ratliff v. Davis Polk & Wardwell, a foreign CPA firm sent business records of a Dutch business for a voluntary submission to the SEC into the custody of a U.S. law firm. A third party unsuccessfully attempted to obtain the data from the SEC and the CPA firm and then to subpoena the data from the law firm. Because attorney client privilege would likely not apply, the law firm refused compliance on the basis of recent case law that would protect such data as not falling within the jurisdiction of American courts.

    The Second Circuit ordered compliance [PDF], however, on the basis of the law firm being subject to its jurisdiction. Wilske cautions in his commentary that non-U.S. companies retain custody of business records outside of the jurisdiction of the United States when such records require examination for voluntary submissions to U.S. agencies. As a practical solution, he suggests that U.S. law firms review such records while they remain in the custody of firms outside of the United States.

    The Ratliff ruling may ultimately exclude American law firms and their foreign branches as well as foreign law firms with U.S. branches from taking custody of foreign business records, although Wilske does not necessarily dictate that conclusion.



    Wed, Feb. 18, 2004

    Career Forum in Frankfurt

    CK - Washington.   A number of German law firms join in a career forum in Frankfurt on April 29, 2004. The forum attracts beginners into law firm careers. The Juracon web site does not indicate opportunities for foreign candidates but the firms are known to hire American lawyers with strong German language abilities. A similar fair is scheduled for Munich, on March 25.



    Sat, Feb. 14, 2004

    Website Mail May Violate Spam Statute

    CK - Washington.   On February 13, 2004, the Munich Court of Appeals ruled, according to a published Heise report, on the legality of email sent through a form on a website and found the web site owner co-responsible for a violation of the anti-spam statute.

    Some web sites spawn the visitor's own email program which renders the sender identifiable. At web sites with forms known as e-cards, the server hosting the web site sends the email. On such systems, the sender may be an imposter, may use a screenname or may be anonymous, depending on the settings of the web form.

    In the instant case, docket number 8 U 4223/03, an anonymous visitor triggered an e-card from the SPD party's web site to, out of all people, a notoriously litigious lawyer who made a name for himself by targeting numerous defendants with cease and desist orders, a generally profitable undertaking, and a line of business despised by much of the public and many attorneys.

    The court of appeals decided that the operator of the web site that enables the mailing of anonymous mail which may be undesired by the recipient, may be liable under the anti-spam act as a joint tortfeasor. The fact that the operator is a political party makes no difference, the court held. Its uninvited mail is just as violative as unwanted email from commercial entities. Even a single instance of abuse may confer liability. The addressee's ability to filter email and avoid the annoyance does not exculpate the operator of the web site.

    The Bavarian decision builds on several other rulings by courts throughout Germany against spam and email from political parties. These holdings may warrant a need for politicians to familiarize themselves with the technical issues underlying spam before jumping on the anti-spam bandwagon with unrealistic statutes.



    Fri, Feb. 06, 2004

    DVD Copy Software Banned

    SWM - Washington.   The Munich District Court issued an injunction, Vertretbar.de blog reports, among others, against software producer S.A.D., banning a copy count patch for its DVD copy software, MovieJack. The patch enables MovieJack users to make no more than three copies of copy-protected DVDs. A June 2003 amendment to the copyright statute (Urhebergesetz) prohibits the sale of software designed to circumvent anticopy measures under §95a UrhG. By contrast, § 53 UrhG grants the owner of CDs or DVDs the right to create copies for personal use. S.A.D. argues that there is a need for software to enable users to exercize that right. In its view, three copies would be appropriate under §53 UrhG. It presented a downloadable opinion on the constitutionality of copies for personal use.

    The court accepted plaintiff's view. RIAA-like Bundesverband der phonographischen Wirtschaft argued that the right to personal copies exists only for media without copyright protection. S.A.D. announced its intent to appeal all the way to the Supreme Court, in order to clarify the legal issues definitively. Most of S.A.D.s competitors removed any tools designed to circumvent copy protections.



    Thu, Jan. 22, 2004

    Compensation for Expropriated GDR Real Estate

    JN - Recklinghausen.   Today, the European Court of Human Rights held in a written opinion in the matter of Jahn et al. v. Germany, case nos. 46720/99, 72203/01 and 72552/01, that Germany violated its duty of protection of property as required by Article 1 of Protocol No. 1 to the European Convention of Human Rights.

    Five German plaintiffs had inherited plots of land that had been assigned to their families, subject to encumbrances on transfer rights, by the German Democratic Republic (GDR) after the 1945 agrarian reform. On March 16, 1990, before reunification, the Modrow Act, named after GDR parliamentary president Hans Modrow, came into effect, lifted assignment restrictions and granted such landowners full ownership. After reunification, the plaintiffs were required to transfer their land to tax authorities under Germany's Second Property Rights Amendment Act ("PRAA") of July 14, 1992, without compensation.

    Later, as a statute enacted by the GDR's first freely-elected parliament, the Modrow Act became part of German domestic law. The court held that, notwithstanding the situation before the Modrow Act, the plaintiffs had acquired full ownership in 1990. While the court acknowledged the legislature's objective of correcting the results of the Modrow Act, it ruled that the PRAA illegally deprived the plaintiffs of their property because the PRAA failed to provide for adequate compensation. Article 1 of Protocol No. 1 of the European Convention of Human Rights requires a fair balance between the protection of property and the requirements of general interest.

    The ruling is likely to trigger a wave of claims for compensation valued at billions of Euros.


    Wed, Jan. 21, 2004

    No Non-Compete for Competing Computer Expert

    CK - Washington.   The Munich district court released yesterday its ruling on the validity of a non-competition agreement barring a programmer engaged by a corporation as an independent contractor from doing the same type of work for competitors, during the term of his engagement and for a year after its termination.

    The programmer terminated the agreement and went to work for his former company's client to perform the same type of work. The first company sued him for violating the non-competition agreement, case number 6 O 12790/03.

    On December 5, 2003, the court held the non-compete unenforceable for lack of any compensation for the programmer's forebearance of jobs in his field, thus clarifying a requirement under German law for such agreements. The contract impeded unconscionably the programmer's ability to exercize his right to work, Judge Brychcy ruled. The judgment also relies on a comparison of independent contractors with trade representatives for which special E.U. and German rules require compensation upon termination.


    Tue, Jan. 20, 2004

    Expert Witness Liability in International Context

    CK - Washington.   Wolfgang Hau, professor of law at Passau University in Bavaria, examines in his recent article Gerichtssachverständige in Fällen mit Auslandsbezug, 49 Recht der Internationalen Wirtschaft 822 et seq. (2002), the liability of court-appointed expert witnesses in international cases. Unlike other commentators, Hau appears to encourage courts to use foreign experts if the circumstances warrant. In the context of the German procedural rules, he explains the use of experts, which generally are appointed by the court and not by the parties, and then turns to a detailed analysis of international conflicts of laws rules that bear on the liability for expert opinions. He examines the power of the courts to make experts accept assignments, or, in the case of experts residing abroad, the lack of such power, as well as the use of experts in manners that potentially violate the sovereignty of other nations or avoid such violations.

    Hau's analysis is in-depth and persusasively presented in a very readable manner. In light of the American trend to withdraw immunity from expert witnesses, his article is recommended in the German-American setting for lawyers who engage expert witnesses and for those taking on expert witness assignments on issues of law.


    Mon, Jan. 19, 2004

    Bill To Facilitate Shareholder Suits

    SW - Washington.   On January 19, 2004, the Federal Ministry of Justice (Bundesjustizministerium) proposed a new law to facilitate shareholder suits brought against the management board and the supervisory board of a corporation. The proposed law is designed to broaden minority rights of shareholders.

    As prerequisite for a suit, a shareholder would need to have a minimum amount of shares of one percent of the basic capital or shares of an actual trading value of 100,000 Euro. The rights of shareholders in the general meeting, however, would be restricted. As a measure to prevent frivolous shareholder suits, claims for damages would have to be certified in an admission procedure in order to proceed to trial.

    As as a balance to the extension of shareholder rights, the proposed law suggests to accord discretion to the management board as long as the business decision is made on an informed and diligent basis. Moreover, liability is restricted to gross negligence and intent. An example for a case when liability is not excluded is the event that a member of the management board of a bank publicly provides information about the creditworthiness of a client, and the bank, in consequence, is exposed to claims for damages.

    The Federal Ministry of Justice is planning to go forward with the legislative project before the summer break.


    Fri, Jan. 16, 2004

    Match Drawn or: the Forbidden Domain

    SWM - Washington.   The appellate court of German's federal state Niedersachsen ruled that nobody may use the domain www.schulenberg.de. The domain is registered and was used by a Mr. Schulenberg. A German town of the same name sued him, claiming stronger rights in the name. The plaintiff asked Mr. Schulenberg to drop the domain so that the town could register it and in court also prayed for a cease and desist order on his use of the domain.

    Under the civil code, the bearer of a name, such as a family name or a city name, has some rights to protect it against unauthorized use. This provision in the code had minor relevance until the internet started its triumphal procession throughout Germany. Since every name can be registered for a domain only once an enormous number of law suits arose, based on the right to bear a name. The German Supreme Court for Civil Matters ruled that a name of outstanding prominence may confer on its owner a strong, and legally superior, right to claim it as a domain name, despite the fact that the court recognized the domain name principle of first come first served.

    While the judges found the town of Schulenberg to be nice and offer some appealing touristic facilities, they did not deem it prominent enough to merit Schulenberg's domain. The court found also that an even more prominent bearer of the name may possess a stronger claim to it. Therefore, they recognized no absolut right in it to be held by the town. But the town's legal position was still strong enough to force Mr. Schulenberg not to use his domain "in public", because the town is older than Mr. Schulenberg and better known outside the internet. In addition, Mr. Schulenberg had had diminished his legal position by allowing other bearers of the name Schulenberg to place a hyperlink to their sites on his.

    The appellate decision upheld the ruling of a German district court, but stands in contrast to judgments by other German courts and has been criticized by German lawyers for not being "practically useful".


    Tue, Jan. 13, 2004

    European Commission Sues Council of Ministers

    SWM - Washington.   For the first time in history, the EU Commission has sued the EU Council of Ministers. The European Court of Justice will have to decide whether the secretaries of the various member treasuries were authorized to suspended the sanctions mechanism of the EU's stability and growth pact in November 2003.

    Under the terms of the pact, an EU member states participating in the EURO currency regime may not exceed three percent of its GDP in its budget deficit. Both Germany and France violated that term for the second time in fiscal 2002. The Commission investigated and sanctioned the violators but itssanction was then suspended. The Commsission said that legal certainty is needed in that issue.

    The suspension had caused concern among smaller EU members that European law could become meaningless as applied to the larger members. By contrast, some member states noted through their officials that drawn-out litigation would poison upcoming tasks such as the EU expansion. After the disappointing end, last December, of plans for an EU constitution the suit is considered an additional hurdle for European unification.

    The Commission asked the court to "fast-track" the case toward a decision within six months. This would be the third "fast-track" hearing in the court's history. Normally, these suits take two years or longer.


    Fri, Jan. 09, 2004

    Does German Government play foul with its tax payers?

    SWM - Washington.   Iris Ebling, first female president of the Bundesfinanzhof, Germany's supreme tax court, harshly criticizes the German government for not transforming the decisions of her court into binding instructions for the tax administration. By statute, its ruling need to be published in the Bundessteuerblatt ("Federal Tax Bulletin") before they become binding on the agencies. Ebling stated in an interview with the German weekly magazine "Focus" that there was no reason why simple decisions in favor of taxpayers were published after a delay of three years or more. "That should be done in three month" she declared, according to "Focus". In her view, the number of unpublished decisions has grown into a "critical mass". In one case, the court had determined an administrative interpretion of the tax law illegal; the government "played foul" with both court and taxpayers by reinstituting the illegal practice by way of a statutyory amendment, thus overruling the court. In addition there had been 42 orders from the Secretary of the Treasury during the last few years which barred the agencies from applying the decisions of the court.

    The Government denied that there was an intentional delay.


    Thu, Jan. 08, 2004

    Civil Code: Law of Obligations

    CK - Washington.   Several German law blogs note the release of an English translation of the German Law of Obligations, a significant segment of the Civil Code of 1900. The law of obligations underwent significant amendments. The most recent massive change became effective on January 1, 2002. The translators invite comments and corrections. The Vertretbar.de blog announces a salient commentary on the trends of the law since the recent changes.



    Wed, Jan. 07, 2004

    Moves to Euro Zone

    CK - Washington.   The Wall Street Journal reports today of a growing trend by small and medium-sized U.S. business to move production abroad. Roger Krieger, a German-trained lawyer with operations near Boston, confirms the trend. He observes, and assists, Europe-bound bound investments by U.S. companies seeking to establish a presence in the Euro zone. "The recent changes relaxing tax and employment law in Germany, for instance, really favor companies venturing into the Euro Zone for the first time," he notes. "You used to be almost wedded to your employees, but now a new business can operate with up to ten employees under rules much more similar to U.S. practices. And the recent tax relief is substantial." Industrial Investment Council, a public-private partnership, "provides additional incentives for companies interested in testing the waters in former East Germany," adds Dr. Schmidt in IIC's Washington office.


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