Mon, 06 Oct 2008
German Terms of Employment
CK - Washington. German employment law may be one of the neglected practice areas, in terms of English-language coverage.
In the international context, the statutes and precedent on German employment matters, Arbeitsrecht, assume a somewhat unique position, however, at least from a German perspective. Germany believes that her legal system causes few, if any, extraterritorial effects. Employment law proves the exception. German law can easily conflict with American law in employment matters, and its extraterritorial reach is undeniable.
Berlin attorney Jessica Ohle provided an overview of German compensation rules and practices in English, in her note Recent Trends in German Employee Compensation, 17 German American Law Journal, on October 2, 2008.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. German employment law may be one of the neglected practice areas, in terms of English-language coverage.
In the international context, the statutes and precedent on German employment matters, Arbeitsrecht, assume a somewhat unique position, however, at least from a German perspective. Germany believes that her legal system causes few, if any, extraterritorial effects. Employment law proves the exception. German law can easily conflict with American law in employment matters, and its extraterritorial reach is undeniable.
Berlin attorney Jessica Ohle provided an overview of German compensation rules and practices in English, in her note Recent Trends in German Employee Compensation, 17 German American Law Journal, on October 2, 2008.
© 2003-2008 German American Law Journal :: Washington USA
Sat, 27 Sep 2008
German American Community Service
CK - Washington. Klaus Lederer, a German manager convicted in Germany resides in Florida. In a German court, he received a suspended jail sentence and an order for 1,000 hours of community service, the German law blog reports. The Florida community may be served, the court allowed.
A less curious and more serious aspect of the conviction is the crime: Lederer failed to file timely for bankruptcy. So serious, in fact, that the sentence is for the suspended 18 months imprisonment, the community service and a fine of 250,000 Euros.
Lederer admitted the crime, so, presumably, he knew about the effect of the conviction on his immigration status. A German web site notes that Lederer initiated the proceedings with a voluntary disclosure arising from tax issues under the German American tax treaty. The blog speculates that more German white collar criminals may want to move to sunny places before their sentencing hearing.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. Klaus Lederer, a German manager convicted in Germany resides in Florida. In a German court, he received a suspended jail sentence and an order for 1,000 hours of community service, the German law blog reports. The Florida community may be served, the court allowed.
A less curious and more serious aspect of the conviction is the crime: Lederer failed to file timely for bankruptcy. So serious, in fact, that the sentence is for the suspended 18 months imprisonment, the community service and a fine of 250,000 Euros.
Lederer admitted the crime, so, presumably, he knew about the effect of the conviction on his immigration status. A German web site notes that Lederer initiated the proceedings with a voluntary disclosure arising from tax issues under the German American tax treaty. The blog speculates that more German white collar criminals may want to move to sunny places before their sentencing hearing.
© 2003-2008 German American Law Journal :: Washington USA
Fri, 26 Sep 2008
Practitioner on new Corporations
CK - Washington. A practitioner's overview of the new corporate forms that both houses in Berlin approved and may become law by November 1, 2008, is available at the Tysk Ret web site.
Although written for a Scandinavian audience, the German-language presentation of the MoMiGM amendments, as they are known in Germany, is useful for planners and negotiators from common-law nations.
The author, Christian Sagawe, introduces the new corporate vehicles and explains their use with mixed corporate forms which are very popular funding mechanisms in German business.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. A practitioner's overview of the new corporate forms that both houses in Berlin approved and may become law by November 1, 2008, is available at the Tysk Ret web site.
Although written for a Scandinavian audience, the German-language presentation of the MoMiGM amendments, as they are known in Germany, is useful for planners and negotiators from common-law nations.
The author, Christian Sagawe, introduces the new corporate vehicles and explains their use with mixed corporate forms which are very popular funding mechanisms in German business.
© 2003-2008 German American Law Journal :: Washington USA
Sun, 14 Sep 2008
Discretion in Privacy Law
CK - Washington. The Dr. Bahr Collection publishes a Hamburg ruling of June 6, 2008 in the matter 324 0 1069/07 on the obligation of Internet publishers to suppress the name of a defendant in a criminal matter. Under German privacy and personality laws, a convicted defendant may be entitled to have any mention of a conviction expunged from Internet publications, just as it would be expunged from criminal records after the statutory periods.
In the June decision, the court analyzed the requirements in a situation involving a defendant in a current matter. It found the public interest in reporting on the case and the defendant to prevail over the privacy interest of the defendant. As a result, there is no obligation on online publishers to suppress the name of a defendant or to limit publication of a name to the initials -- at least while the convicted criminal remains in prison.
The constitutional protection of privacy, known as Persönlichkeitsrecht, is protected by art. 1 of the German federal constitution. It may outweigh the public interest in minor criminal cases. Therefore, publishing the full name a person may lead to a civil liability when the person is convicted of parking at an expired meter.
The new decision is in line with a December 18, 2007 ruling in the matter 7 U 77/07 involving the publication of the full name of a murderer after he had completed his prison term. Generally, German courts and media do not publish the full name of defendants, although that is only a tradition and such publication is not prohibited.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. The Dr. Bahr Collection publishes a Hamburg ruling of June 6, 2008 in the matter 324 0 1069/07 on the obligation of Internet publishers to suppress the name of a defendant in a criminal matter. Under German privacy and personality laws, a convicted defendant may be entitled to have any mention of a conviction expunged from Internet publications, just as it would be expunged from criminal records after the statutory periods.
In the June decision, the court analyzed the requirements in a situation involving a defendant in a current matter. It found the public interest in reporting on the case and the defendant to prevail over the privacy interest of the defendant. As a result, there is no obligation on online publishers to suppress the name of a defendant or to limit publication of a name to the initials -- at least while the convicted criminal remains in prison.
The constitutional protection of privacy, known as Persönlichkeitsrecht, is protected by art. 1 of the German federal constitution. It may outweigh the public interest in minor criminal cases. Therefore, publishing the full name a person may lead to a civil liability when the person is convicted of parking at an expired meter.
The new decision is in line with a December 18, 2007 ruling in the matter 7 U 77/07 involving the publication of the full name of a murderer after he had completed his prison term. Generally, German courts and media do not publish the full name of defendants, although that is only a tradition and such publication is not prohibited.
© 2003-2008 German American Law Journal :: Washington USA
Sat, 13 Sep 2008
German iPhone Litigation
CK - Washington. iPhone litigation in Germany is heating up. Monopolist iPhone seller T-Mobile lost its challenge to a July 28, 2008 injunction won by VoIP provider Indigo Networks, operator of the Sipgate service. The injunction bars the traditional phone company from advertising a flat-rate tariff as a free flat data rate when it is in fact limited.
The Hamburg district court found in favor of Sipgate on September 10, 2008 but the written decision in the matter 315 O 360/08 is not published. Indigo had argued that T-Mobile reduces the Internet access speed and prevents customer from using chat and VoIP services. The reported basis for the injunction is § 5 UWG, the German statute against unfair competition.
Also on September 10, 2008, T-Mobile obtained an injunction preventing the German VoIP provider from offering a Sipgate beta software add-on to the iPhone that enables iPhone users from using free Sipgate telephony services. Reportedly, one of the arguments against the Sipgate offer is the term beta used to the describe the development status of the software module. The court is said to consider the term beta confusing to consumers.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. iPhone litigation in Germany is heating up. Monopolist iPhone seller T-Mobile lost its challenge to a July 28, 2008 injunction won by VoIP provider Indigo Networks, operator of the Sipgate service. The injunction bars the traditional phone company from advertising a flat-rate tariff as a free flat data rate when it is in fact limited.
The Hamburg district court found in favor of Sipgate on September 10, 2008 but the written decision in the matter 315 O 360/08 is not published. Indigo had argued that T-Mobile reduces the Internet access speed and prevents customer from using chat and VoIP services. The reported basis for the injunction is § 5 UWG, the German statute against unfair competition.
Also on September 10, 2008, T-Mobile obtained an injunction preventing the German VoIP provider from offering a Sipgate beta software add-on to the iPhone that enables iPhone users from using free Sipgate telephony services. Reportedly, one of the arguments against the Sipgate offer is the term beta used to the describe the development status of the software module. The court is said to consider the term beta confusing to consumers.
© 2003-2008 German American Law Journal :: Washington USA
Tue, 09 Sep 2008
Media Censorship: Grassroots Meet
CK - Washington. Censorship in Germany is no more prevalent than censorship is in the United States. Unlike strange FCC rulings, and with rules similar to those in other European countries, Germany requires many writers on the Internet to disclose their identity and many other details. The concept is known as Impressum. There is no groundswell of protest against such censorship because the notion of Impressum is grounded in consumer protection.
The dangers to consumers from the required disclosure of personal information and the dangers to free speech are generally ignored. Almost single-handedly, a Hamburg man has been working on a grassroots campaign to fight censorship in Germany. His target is the press and media law chamber at the Hamburg District Court led by a judge whose last name inspired the intrepid fighter for free speech to invent an -ism and to call his website Buskeismus.de.
On September 12 through 14, 2008, its author, Rolf Schälike, plans a meeting in Hamburg and has extended an open invitation to all interested in misguided decisions of that chamber and censorship in general. Schälike's focus is not the Impressum requirement.
Rather, he finds fault in the court run by Andreas Buske which has become the forum of choice in Germany for unusual decisions against publishers, including bloggers, and on third-party liability, such as blogger liability for third-party comments. In a country where judges do not enjoy the royal respect that seems to prevail in the United States, the three-day gathering should witness a great deal of unrestrained speech.
© 2003-2008 German American Law Journal :: Washington USA
CK - Washington. Censorship in Germany is no more prevalent than censorship is in the United States. Unlike strange FCC rulings, and with rules similar to those in other European countries, Germany requires many writers on the Internet to disclose their identity and many other details. The concept is known as Impressum. There is no groundswell of protest against such censorship because the notion of Impressum is grounded in consumer protection.
The dangers to consumers from the required disclosure of personal information and the dangers to free speech are generally ignored. Almost single-handedly, a Hamburg man has been working on a grassroots campaign to fight censorship in Germany. His target is the press and media law chamber at the Hamburg District Court led by a judge whose last name inspired the intrepid fighter for free speech to invent an -ism and to call his website Buskeismus.de.
On September 12 through 14, 2008, its author, Rolf Schälike, plans a meeting in Hamburg and has extended an open invitation to all interested in misguided decisions of that chamber and censorship in general. Schälike's focus is not the Impressum requirement.
Rather, he finds fault in the court run by Andreas Buske which has become the forum of choice in Germany for unusual decisions against publishers, including bloggers, and on third-party liability, such as blogger liability for third-party comments. In a country where judges do not enjoy the royal respect that seems to prevail in the United States, the three-day gathering should witness a great deal of unrestrained speech.
© 2003-2008 German American Law Journal :: Washington USA
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.
© 2003-2008 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.
© 2003-2008 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.
© 2003-2008 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.
© 2003-2008 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.
© 2003-2008 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.
© 2003-2008 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.
© 2003-2008 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.
© 2003-2008 German American Law Journal :: Washington USA
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