Wed, 13 Aug 2008
Lost Between the Lines
MJW - Washington. A peculiar aspect of German labor law is the letter of recommendation known as Arbeitszeugnis. It reflects part of an employment record issued with an employer and provides details on the term and scope of employment. The letter is also expected to contain information on performance and conduct. Generally, prospective employers expect to receive copies of such letters with an application.
Therefore, the exact wording is important and sometimes hotly disputed in employment litigation. As a result, personnel managers have developed codes to convey information in a manner that meets the legal requirements for such letters as laid down by statute in § 109 Gewerbeordnung or § 630 Bürgerliches Gesetzbuch and construed in a long lines of precedent by Germany's Federal Labor Court, Bundesarbeitsgericht.
Employees fear that such codes, including omissions of specific language, may contain kind words that a prospective employer may decypher in a way they themselves do not understand. Others believe that certain carefully crafted nuances may be lost on a less sophisticated HR department.
On August 12, 2008, the Federal Labor Court laid out general guidelines in the matter 9 AZR 632/07. A journalist, dissatisfied with his Arbeitszeugnis, sued his former employer. His complaint focused on a statement regarding his performance and conduct that he thought was deliberately omitted. The letter did not mention his ability to work under pressure.
The court used the case to reiterate the basic principles governing such letters. The employee's performance and conduct must be described favourably and truthfully, Grundsatz der Zeugniswahrheit, it held. Excluding certain elements that prospective employers usually expect from their employees without proper justification collides with this principle.
The omission itself can serve as a secret message which--depending on usages in particular trades and professions--may adversely reflect on the employee. In such instances, an employee may demand from the employer an amendment of the letter of recommendation, the supreme labor court held.
© German American Law Journal :: Washington USA
MJW - Washington. A peculiar aspect of German labor law is the letter of recommendation known as Arbeitszeugnis. It reflects part of an employment record issued with an employer and provides details on the term and scope of employment. The letter is also expected to contain information on performance and conduct. Generally, prospective employers expect to receive copies of such letters with an application.
Therefore, the exact wording is important and sometimes hotly disputed in employment litigation. As a result, personnel managers have developed codes to convey information in a manner that meets the legal requirements for such letters as laid down by statute in § 109 Gewerbeordnung or § 630 Bürgerliches Gesetzbuch and construed in a long lines of precedent by Germany's Federal Labor Court, Bundesarbeitsgericht.
Employees fear that such codes, including omissions of specific language, may contain kind words that a prospective employer may decypher in a way they themselves do not understand. Others believe that certain carefully crafted nuances may be lost on a less sophisticated HR department.
On August 12, 2008, the Federal Labor Court laid out general guidelines in the matter 9 AZR 632/07. A journalist, dissatisfied with his Arbeitszeugnis, sued his former employer. His complaint focused on a statement regarding his performance and conduct that he thought was deliberately omitted. The letter did not mention his ability to work under pressure.
The court used the case to reiterate the basic principles governing such letters. The employee's performance and conduct must be described favourably and truthfully, Grundsatz der Zeugniswahrheit, it held. Excluding certain elements that prospective employers usually expect from their employees without proper justification collides with this principle.
The omission itself can serve as a secret message which--depending on usages in particular trades and professions--may adversely reflect on the employee. In such instances, an employee may demand from the employer an amendment of the letter of recommendation, the supreme labor court held.
© German American Law Journal :: Washington USA
Sun, 03 Aug 2008
Free Speech Victory for Blog
CK - Washington. The pendulum swings again: At least non-commercial German bloggers are not responsible for third-party comments, a Frankfurt court decided on July 16, 2008 in the matter 31 C 2575/07-01. The decision flies in the face of some rulings from other German courts which came close to imposing on bloggers a requirement for real-time censorship.
Veteran German blogger and fresh lawyer Sascha Kremer published the Frankfurt decision, in German, on his firm site. The judge in the case appeared to understand the medium and the dangers of censorship as well as the remedies applicable to online defamation. For another view, see Mouse Roars, Stops Comments.
© German American Law Journal :: Washington USA
CK - Washington. The pendulum swings again: At least non-commercial German bloggers are not responsible for third-party comments, a Frankfurt court decided on July 16, 2008 in the matter 31 C 2575/07-01. The decision flies in the face of some rulings from other German courts which came close to imposing on bloggers a requirement for real-time censorship.
Veteran German blogger and fresh lawyer Sascha Kremer published the Frankfurt decision, in German, on his firm site. The judge in the case appeared to understand the medium and the dangers of censorship as well as the remedies applicable to online defamation. For another view, see Mouse Roars, Stops Comments.
© German American Law Journal :: Washington USA
Wed, 30 Jul 2008
Collection on Civil Judgments
CK - Washington. Efforts in the enforcement and collection on civil judgments should be supported by the German customs service, Zoll, Berlin attorney general Brigitte Zypries suggests with a bill likely to pass as federal law. The role of customs will be limited to providing its online auction service platform. Without the currently-required petition by a judgment creditor or debtor for an online auction, the new statute will permit the sheriff to sell attached goods at www.zoll-auktion.de. In addition, the platform will service tax collection efforts. On July 29, 2008, Zypries argued that online sales will enhance revenues for the benefit of both creditors and debtors.
© German American Law Journal :: Washington USA
CK - Washington. Efforts in the enforcement and collection on civil judgments should be supported by the German customs service, Zoll, Berlin attorney general Brigitte Zypries suggests with a bill likely to pass as federal law. The role of customs will be limited to providing its online auction service platform. Without the currently-required petition by a judgment creditor or debtor for an online auction, the new statute will permit the sheriff to sell attached goods at www.zoll-auktion.de. In addition, the platform will service tax collection efforts. On July 29, 2008, Zypries argued that online sales will enhance revenues for the benefit of both creditors and debtors.
© German American Law Journal :: Washington USA
Thu, 17 Jul 2008
Beware the German Domain Rule
CK - Washington. In the dim ages of the Internet, trademark law and domain law were two separate branches of the law. Trademark law addressed priorities and the domestic, territorial nexus of vendor and goods or services. Domain law resolved issues of a global first come, first served addressing system for web and other Internet techniques. Trademark lawyers didn't understand the domain name system and began to apply trademark law to it, then prevailed on legislators to outlaw the first come, first served foundation of domain law.
Germany and the United States went parallel paths in that evolution. Now, a German court vigorously pedales ahead of the peleton by applying German trademark law extraterritorially. It tells a Gulf state corporation to use .ae domains, not .com domains. Its .com domain would indicate commercial activity. Its commercial activity is noticeable in Germany. In Germany, there is a trademark owner with a mark akin to the domain name. The .com domain violates the trademark in Germany, a .ae domain would not.
The Düsseldorf Court of Appeals sticks its neck pretty far out. Germany tends to complain of American adventures into the extraterritorial application of laws. In its ruling 1-20 U 93/07 of April 22, 2008, the German court does not do only that but gratuitously volunteers a redefinition of domain extensions. Certainly, .com has always been understood to cover any use that is not .mil, .gov, .edu and to some extent .net and .org, although the latter two went through evolutions where they now allow for any use.
Generally, .com has not been understood as principally representing global commercial as the Düsseldorf court makes it out to be. Global commercial activity was one of the activities the .com extension could cover, but its principal characteristic was that it was not .edu, .mil and .gov.
As a result, any .com use can now be challenged under German trademark law in a German court, especially where the web site is maintained in a subsidiary German language version. The court found such a version indicative of targeting customers in Germany, despite the fact that German is used not only in Germany. To be on the safe side, web designers may want to use a Liechtenstein flag to point to a German-language presentation on a .com web site.
© German American Law Journal :: Washington USA
CK - Washington. In the dim ages of the Internet, trademark law and domain law were two separate branches of the law. Trademark law addressed priorities and the domestic, territorial nexus of vendor and goods or services. Domain law resolved issues of a global first come, first served addressing system for web and other Internet techniques. Trademark lawyers didn't understand the domain name system and began to apply trademark law to it, then prevailed on legislators to outlaw the first come, first served foundation of domain law.
Germany and the United States went parallel paths in that evolution. Now, a German court vigorously pedales ahead of the peleton by applying German trademark law extraterritorially. It tells a Gulf state corporation to use .ae domains, not .com domains. Its .com domain would indicate commercial activity. Its commercial activity is noticeable in Germany. In Germany, there is a trademark owner with a mark akin to the domain name. The .com domain violates the trademark in Germany, a .ae domain would not.
The Düsseldorf Court of Appeals sticks its neck pretty far out. Germany tends to complain of American adventures into the extraterritorial application of laws. In its ruling 1-20 U 93/07 of April 22, 2008, the German court does not do only that but gratuitously volunteers a redefinition of domain extensions. Certainly, .com has always been understood to cover any use that is not .mil, .gov, .edu and to some extent .net and .org, although the latter two went through evolutions where they now allow for any use.
Generally, .com has not been understood as principally representing global commercial as the Düsseldorf court makes it out to be. Global commercial activity was one of the activities the .com extension could cover, but its principal characteristic was that it was not .edu, .mil and .gov.
As a result, any .com use can now be challenged under German trademark law in a German court, especially where the web site is maintained in a subsidiary German language version. The court found such a version indicative of targeting customers in Germany, despite the fact that German is used not only in Germany. To be on the safe side, web designers may want to use a Liechtenstein flag to point to a German-language presentation on a .com web site.
© German American Law Journal :: Washington USA
Wed, 09 Jul 2008
LLM in Restructuring
CK - Washington. Heidelberg University Law School announced a new type of LLM program for corporate restructuring. The program targets both domestic and foreign students and covers, among other topics, international insolvency and associated tax and corporate issues.
© German American Law Journal :: Washington USA
CK - Washington. Heidelberg University Law School announced a new type of LLM program for corporate restructuring. The program targets both domestic and foreign students and covers, among other topics, international insolvency and associated tax and corporate issues.
© German American Law Journal :: Washington USA
Tue, 08 Jul 2008
Confession Under Torture
MJW - Washington. On June 30, 2008, a decision in one of the most controversial cases in recent German criminal history was delivered. The judgment came from the European Court of Human Rights, ECHR, in Strasbourg in the case of Gäfgen v. Germany, application no. 22978/05.
In late 2002, Gäfgen kidnapped and suffocated a boy. Upon the defendant's arrest, the police believed the boy still to be alive. When he first would not disclose the boy's whereabouts, the local deputy chief of police instructed the interrogating officer to tell Gäfgen he would suffer considerable pain unless he disclosed the boy's location. Gäfgen then confessed killing the boy and hiding the corpse.
The Frankfurt Regional Court, Landgericht, convicted him of murder and other felonies and sentenced him to life. After failed appeals to German courts contesting the use of evidence obtained through torture, Gäfgen took the case to the ECHR.
The decision emphasizes the importance of Article 3 of the European Convention of Human Rights. Art. 3 prohibits torture and inhuman or degrading treatment or punishment. The EHCR holds that even in the event of a public emergency threatening the life of a nation, no exceptions or derogations are permissible. In light of the threat that caused Gäfgen considerable mental suffering, the EHCR finds the police treatment inhuman under Article 3. However, the criminal court had not violated Gäfgen's right to a fair trial protected in Article 6 para. 1 of the Convention. The use of evidence directly or indirectly obtained through Gäfgen's confession which in turn was extracted by means contrary to Article 3 would have most likely rendered the trial unfair. As it happened, the conviction relied on the confession Gäfgen made in court.
© German American Law Journal :: Washington USA
MJW - Washington. On June 30, 2008, a decision in one of the most controversial cases in recent German criminal history was delivered. The judgment came from the European Court of Human Rights, ECHR, in Strasbourg in the case of Gäfgen v. Germany, application no. 22978/05.
In late 2002, Gäfgen kidnapped and suffocated a boy. Upon the defendant's arrest, the police believed the boy still to be alive. When he first would not disclose the boy's whereabouts, the local deputy chief of police instructed the interrogating officer to tell Gäfgen he would suffer considerable pain unless he disclosed the boy's location. Gäfgen then confessed killing the boy and hiding the corpse.
The Frankfurt Regional Court, Landgericht, convicted him of murder and other felonies and sentenced him to life. After failed appeals to German courts contesting the use of evidence obtained through torture, Gäfgen took the case to the ECHR.
The decision emphasizes the importance of Article 3 of the European Convention of Human Rights. Art. 3 prohibits torture and inhuman or degrading treatment or punishment. The EHCR holds that even in the event of a public emergency threatening the life of a nation, no exceptions or derogations are permissible. In light of the threat that caused Gäfgen considerable mental suffering, the EHCR finds the police treatment inhuman under Article 3. However, the criminal court had not violated Gäfgen's right to a fair trial protected in Article 6 para. 1 of the Convention. The use of evidence directly or indirectly obtained through Gäfgen's confession which in turn was extracted by means contrary to Article 3 would have most likely rendered the trial unfair. As it happened, the conviction relied on the confession Gäfgen made in court.
© German American Law Journal :: Washington USA
Sun, 22 Jun 2008
Compliance Surcharge
CK - Washington. Compliance after 9-11 has become cumbersome and expensive. In the early 1990s, some thought export controls would all but disappear. Instead, export controls grew, OFAC controls became far-reaching and 9-11 pushed restrictions and compliance obligations into foreign legal systems. The Obiter Dictum blog in Germany notes strange effects on ordinary business. Freightforwarders are now adding a compliance charge to their invoices. Massive changes in the technical infrastructure and updates of software to include embargo list cause one such company in Germany to levy a compliance surcharge of 2.65 Euros on each transaction.
© German American Law Journal :: Washington USA
CK - Washington. Compliance after 9-11 has become cumbersome and expensive. In the early 1990s, some thought export controls would all but disappear. Instead, export controls grew, OFAC controls became far-reaching and 9-11 pushed restrictions and compliance obligations into foreign legal systems. The Obiter Dictum blog in Germany notes strange effects on ordinary business. Freightforwarders are now adding a compliance charge to their invoices. Massive changes in the technical infrastructure and updates of software to include embargo list cause one such company in Germany to levy a compliance surcharge of 2.65 Euros on each transaction.
© German American Law Journal :: Washington USA
Fri, 13 Jun 2008
IP Address for Private Suitors
CK - Washington. The release of IP addresses by ISPs to private parties may be technically useless but in Germany, it can violate constitutional protections afforded Internet users. A May 21, 2008 order from the Frankenthal district court disallows the use of an IP address as evidence in a copyright dispute. The private party had obtained contact data of the user to whom an ISP supposedly had assigned the address, by way of filing a criminal complaint and subsequently reviewing the results of an investigation conducted by the D.A.
Lacking a discovery process in German law, the criminal avenue serves as the customary path for music, software and movie companies to the perceived identity of violators of copyrighted material they market. While there is ample technical evidence in the United States that IP addresses are unreliable as evidence in litigation, marketers of copyrighted assets in Germany rely on IP addresses for their criminal and civil prosecutions.
In February 2008, the Constitutional Supreme Court had invented a new constitutional right to informational self-determination. In March, it limited to serious crimes the release of contact information based on collected Internet traffic data, case number 1 BvR 256/08. The Frankenthal court applied the guidelines to the copyright matter at hand which involved allegations of copyright violations through the use of Internet services.
Many commenters question the applicability of the Supreme Court guidelines to the instant case, case number 6 O 156/08, and believe the order will not resonate in similar proceedings. Much of the discussion turns on the data protection statute and the distinctions for preserving and using data such as IP addresses.
In turn, such data may be classified in different categories and for various purposes, none of which have been reconciled by courts and commenters into clear rules, while the federal legislators keep fiddling with the statutes governing the Internet. For example, the attorney generals of the states on June 12, 2008 called for direct access of copyright owners to ISP and customer data, Heise reports.
© German American Law Journal :: Washington USA
CK - Washington. The release of IP addresses by ISPs to private parties may be technically useless but in Germany, it can violate constitutional protections afforded Internet users. A May 21, 2008 order from the Frankenthal district court disallows the use of an IP address as evidence in a copyright dispute. The private party had obtained contact data of the user to whom an ISP supposedly had assigned the address, by way of filing a criminal complaint and subsequently reviewing the results of an investigation conducted by the D.A.
Lacking a discovery process in German law, the criminal avenue serves as the customary path for music, software and movie companies to the perceived identity of violators of copyrighted material they market. While there is ample technical evidence in the United States that IP addresses are unreliable as evidence in litigation, marketers of copyrighted assets in Germany rely on IP addresses for their criminal and civil prosecutions.
In February 2008, the Constitutional Supreme Court had invented a new constitutional right to informational self-determination. In March, it limited to serious crimes the release of contact information based on collected Internet traffic data, case number 1 BvR 256/08. The Frankenthal court applied the guidelines to the copyright matter at hand which involved allegations of copyright violations through the use of Internet services.
Many commenters question the applicability of the Supreme Court guidelines to the instant case, case number 6 O 156/08, and believe the order will not resonate in similar proceedings. Much of the discussion turns on the data protection statute and the distinctions for preserving and using data such as IP addresses.
In turn, such data may be classified in different categories and for various purposes, none of which have been reconciled by courts and commenters into clear rules, while the federal legislators keep fiddling with the statutes governing the Internet. For example, the attorney generals of the states on June 12, 2008 called for direct access of copyright owners to ISP and customer data, Heise reports.
© German American Law Journal :: Washington USA
Mon, 02 Jun 2008
Unfair Competition Defined
CK - Washington. A catalog of 30 unfair acts in retail competition will form the cornerstone of an amendment to the statute against unfair competition in Germany, Gesetz gegen den unlauteren Wettbewerb or UWG.
The Berlin Attorney General provided examples of unfair acts in a press release of May 21, 2008. The list implements the 2005 EU directive 29.
The new black list approach seeks to provide consumers with fair treatment throughout the European Union while assuring sellers of uniform requirements. The German text of the bill, Erstes Gesetz zur Änderung des Gesetzes gegen den unlauteren Wettbewerb is available for download.
© German American Law Journal :: Washington USA
CK - Washington. A catalog of 30 unfair acts in retail competition will form the cornerstone of an amendment to the statute against unfair competition in Germany, Gesetz gegen den unlauteren Wettbewerb or UWG.
The Berlin Attorney General provided examples of unfair acts in a press release of May 21, 2008. The list implements the 2005 EU directive 29.
The new black list approach seeks to provide consumers with fair treatment throughout the European Union while assuring sellers of uniform requirements. The German text of the bill, Erstes Gesetz zur Änderung des Gesetzes gegen den unlauteren Wettbewerb is available for download.
© German American Law Journal :: Washington USA
Fri, 23 May 2008
Internet Contact Data Explained
CK - Washington. A 2007 decision recently added to the MIR index reminds the author of crazy German laws and an unimaginative decision. The spam-friendly statute on the identification of internet users, Telemediengesetz, also requires web writers to state contact information. Is a contact form sufficient, or is the statement of an email address necessary?
It's the statement, the Essen district court warned an Internetter on September 19, 2007 in the matter 44 O 79/07. The statute wants a statement, not merely a means to contact the web publisher, it writes. That rules out a contact form on a web site or innovative means other than an email address.
Technically, the decision makes no sense. A contact form can use the mail SMTP protocol which queues an email notice to the recipient's POP or IMAP or web email box, just like an email client would. A statement such as mail2://mailform@r3cht.us is no better than a statement like http://recht.us/mailform. The latter is safer and minimizes spam traffic. But that's not what the Essen court's fourth commercial division held In the Name of the People.
It found against the publisher on the basis of anti-competitive conduct evidenced by is failure to state an email address. The misguided ruling is a sad example of how a statute and its uninformed application can make Germany less competitive--in this case by hampering advances in communications. A courageous court could have voided the invasive statutory identification and contact requirements as vague and taken the country somewhere.
© German American Law Journal :: Washington USA
CK - Washington. A 2007 decision recently added to the MIR index reminds the author of crazy German laws and an unimaginative decision. The spam-friendly statute on the identification of internet users, Telemediengesetz, also requires web writers to state contact information. Is a contact form sufficient, or is the statement of an email address necessary?
It's the statement, the Essen district court warned an Internetter on September 19, 2007 in the matter 44 O 79/07. The statute wants a statement, not merely a means to contact the web publisher, it writes. That rules out a contact form on a web site or innovative means other than an email address.
Technically, the decision makes no sense. A contact form can use the mail SMTP protocol which queues an email notice to the recipient's POP or IMAP or web email box, just like an email client would. A statement such as mail2://mailform@r3cht.us is no better than a statement like http://recht.us/mailform. The latter is safer and minimizes spam traffic. But that's not what the Essen court's fourth commercial division held In the Name of the People.
It found against the publisher on the basis of anti-competitive conduct evidenced by is failure to state an email address. The misguided ruling is a sad example of how a statute and its uninformed application can make Germany less competitive--in this case by hampering advances in communications. A courageous court could have voided the invasive statutory identification and contact requirements as vague and taken the country somewhere.
© German American Law Journal :: Washington USA
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