Sat, Dec. 31, 2005

Bremen Court Wins Award

.   A Bremen court, Sozialgericht Bremen, won the Anti Search Engine Optimization Award 2005 after gaining the attention of bloggers in Germany through a cease and desist letter from the court to a grocery shop blogger.

Various law blogs consider the demand nonsense. The court speculates that a blogger's reference to the name of the court is an illegal assumption, or usurpation, of its proper name, in violation of §12 of the German Civil Code, Bürgerliches Gesetzbuch.

The grocery blog's entry on the court appears in the Google top ten. Through the search engine, visitors reach its story on a court action. The story page begins with the headline Sozialgericht Bremen. The presiding judge equates the appearance of the entry with a web site that claims to be the official website of the court.

The court has its own website which is accessible only in a most circuitous and cumbersome manner and is styled such that the visitor does not necessarily recognize the arrival at a court site. The general consensus among German law bloggers is that the Sozialgericht Bremen's demand is legally and factually unfounded. §12 BGB does not prohibit the mention of proper names and marks. Limitations on the use of a name or trademark are limited to fraud, deception, anti-competition and such.

In the Bremen court's defense, one should note that it operates as a specialty court and within budgetary constraints that may fail to provide for funding for outside legal advice on basic civil and internet matters.

Fri, Dec. 23, 2005

Rützel, Wegen & Wilske on German Disputes

.   The authors of Commercial Dispute Resolution in Germany are highly respected transnational practitioners. Their new book, ISBN 3-406-52169-X, in the C.H. Beck series German Law Accessible shares with English-speaking practitioners, but also Germans desiring to explain their law to foreign counterparts, their intense experience and comprehensive knowledge of the German practice of dispute resolution.

Approximately half of the 473-page softbound volume contains English translations of the pertinent German statutes, such as the rules of civil procedure and arbitration, but also the statute on the recognition and enforcement in Germany of foreign judgments. The legislative materials extend to certain treaties that relate to the subject matter, such as the Hague conventions on service and evidence. What is particularly useful for foreign and German users is the two column approach of the original German and the translated English materials.

In Part 1, the authors introduce the reader to commercial dispute resolution in Germany, beginning with the basics and essentials, such as the court systems, jurisdiction and securing evidence. They move on quickly to particulars of the judicial process in litigation and then turn to arbitration and finally to mediation. Sequentially and methodically, Rützel, Wegen and Wilske guide the reader through the various facets and the turns and tribulations of these procedures.

Useful tables and indices complement the introduction to the German dispute resolution mechanisms and make the new book the most important current addition to--and practical tool in--any lawyer's library that covers transnational litigation, arbitration and mediation with a German nexus. The publisher offers a PDF sample for download.

Thu, Dec. 22, 2005

Heidelberg House

.   The Ruperto Carola university in Heidelberg plans to establish a Heidelberg House near Amherst, MA next year, reports the UniSpiegel 5/2005 edition on page 3. The new facility is designed to complement the existing Heidelberg Center for American Studies in Heidelberg.

In addition, the paper announced a new society devoted to legal history, the Heidelberger Rechtshistorische Gesellschaft e.V. at Friedrich-Ebert-Platz, 69117 Heidelberg, almost in the heart of Old Heidelberg. The society is open to legal historians and interested legal practitioners.

Wed, Dec. 21, 2005

Off Topic Mailing List

.   Andreas Schwartmann of Cologne announced in the main German law mailing list ANWALT the relocation of the off-topic mailing list Juratalk to the Google System at

With his announcement, he explains that the list is open to all lawyers interested in discussions on matters beyond the law. Based on the characterization of off-topic topics in ANWALT, such matters can include issues as diverse as technology, restaurants, travel or politics.

Tue, Dec. 20, 2005

Interagency Notification

.   Death and inheritance mean a lot of work not only for relatives, administrators and private sector parties, but also for various government agencies. A new rule that according to Handakte blog comes into effect on January 2, 2006, establishes new rules for the notification of such changes among government agencies. The rules also provide for the destruction of such data and for the cooperation of notaries with agencies. The published ruleset relates to the Land of Nordrhein-Westfalen, and similar rules are expected for other Länder.

Sun, Dec. 11, 2005

Noname Significant Other

CK - Washington.   A significant other of no fame may not be named in press reports on the life of a famous person with whom the noname other appears in public, the Frankfurt appellate court decided on July 26, 2005, docket no. 11 U 13/03, as reported on December 9, 2005 in the German LexisNexis legal news section by Peter Abke.

Sat, Dec. 10, 2005

Accelerating Criminal Process

CK - Washington.   Prosecution and courts must do their utmost to accelerate criminal cases when the accused, whom the law, after all, deems innocent, waits in jail. The acceleration principle covers the entire case, from the indictment through judgment and the continued review in appellate and supreme court proceedings.

The Federal Constitutional Court, Bundesverfassungsgericht, in Karlsruhe affirmed this principle in the matter of N., docket no. BVerfG 2BvR 1964/05, on December 5, 2005.

Art. 2 of the Constitution guarantees the liberty of every person, including one awaiting trial. Courts and prosecution must consider the proportionality of the waiting period in light of various factors, including the significance of the alleged crime, the anticipated punishment, if any, and the complexity of the proceedings. The nature of the crime alone and the anticipated punishment are insufficient yardsticks for the justification of pre-trial detentions, the court held.

Complex proceedings by themselves are also insufficient justifications for the denial of personal liberties. Therefore, mistakes made in scheduling witnesses, for instance, do not need to reach an extreme standard before the court needs to consider releasing an accused from pre-trial detention. The failure to begin trial nine months after an indictment is not compatible with constitutional standards.

While there is no rigid rule for determining how much time may pass between an indictment and the trial, the acceleration principle requires, in the view of the court, that no more than three months pass between the order of acceptance of the indictment and the trial. This may require organizational adjustments within the administration of the criminal courts, and conversely, decisions in favor of the defendant when the criminal courts are administratively or procedurally unable to meet the constitutional standards.

The decision is a slap in the face of certain Düsseldorf courts and the Supreme Criminal Court which had justified the continued detention of an accused during the course of endless pre-trial, trial and review proceedings.

Wed, Dec. 07, 2005 Joins Profession

.   Highly regarded domain blogger Peter Müller joined the wonderful legal profession today and will soon populate the domain.

Tue, Dec. 06, 2005

Chilling Effects

CK - Washington.  While ZDNet gives publicity to a Brennan Center for Justice study on the chilling effects from less than clearly defined standards for fair use, German lawyers find their blood chilled today when reading alerts from colleagues whose bank accounts have been accessed with unexpected Paypal deposits and withdrawals.

A small deposit to new users' bank accounts used to be, and perhaps still is, Paypal's method of account verification. Things get troubling if you are not new user and receive a Paypal verification deposit, to be followed by withdrawals.

The European rule requiring website owners to reveal their identity as well as other very personal data or business information, known colloquially in German as Impressumspflicht, helps criminals to a lot of information that they would otherwise have to obtain through cumbersome and potentially risky means. An impressum, the About or FAQ page identifying the owner of a website, creates a fabulous shortcut for all kinds of criminals, from stalkers to finance whizzes.

Add to that the European practice of revealing banking information on stationary, and you create phishers' heaven.

Forum and Blog Liability

JN - Essen.  Bloggers and other web site operators offering discussion forums may be liable for content posted by visitors pursuant to a new judgment from the Hamburg district court, Landgericht Hamburg, docket no. 324 O 721/05.

As reported by Heise on December 5, 2005, the court confirmed a previously issued preliminary injunction which held that Heise, a well-known German Internet news service, had to stop forum postings by visitors calling for a denial-of-service attack on Universal Boards.

Although Heise removed the infringing postings promptly upon notice, the court held that Heise was liable for the content as it could feasibly screen postings manually or technically for illegal content before its publication.

While the written grounds for the decision have not yet been published, commentors argue that the ruling violates the express standard in §11 of the German teleservices statute, Teledienstgesetz. The statute exempts web site operators from liability when they lack actual knowledge of the infringing content and immediately remove such content upon obtaining knowledge thereof. Others suggest that forums ought to provide the same protections found in chat rooms that automatically filter some content.

Mon, Dec. 05, 2005

Utilities' Snowjob

CK - Washington.   The trains is no longer run as punctually as they used to, and now German utility customers find something to gripe about. Recent snowfall cut off entire regions from the power grid, and there is concern that utilities have adopted practices commonly seen in America: Minimum maintenance, reliance on limitations on liability, and repair when things break badly.

Unsaddled by the patience that American consumers display after outages, Germany rebels, and lawyers in blogs and elsewhere examine the liability of utilities. The utilities claim force majeure but nobody believes their whitewash.

On December 5, 2005, the Münster district court Steinfurt local court ordered an expert review of the state of the transmission lines in the most affected region as part of an evidentiary proceeding. Meanwhile, the RWE utility set up a 5 million Euro fund to assist in hardship cases. The fund is being administered by representatives from the Borken and Steinfurt counties, two utility representatives and two state level government employees.

Sun, Nov. 27, 2005

Composition of German Cabinet

.   The Bundesregierung web site in Berlin has an English-language presentation of the members of the new cabinet with links to the officials filling the positions in the various federal departments.

Third Party EMail with Ad

CK - Washington.   Who, if anybody, should be civilly liable for an EMail that contains a product recommendation from a business website as well as advertising and is triggered by a visitor to a website that offers its visitors to send out recommendations to friends and family but fails to disclose that advertising will be added to the recommendation? On October 25, 2005, the Nürnberg Court of Appeals decided that issue in the matter 3 U 1084/05, published at Affiliate & Recht in German.

The court explained that the mere availability of a product recommendation with a feature to have it sent via EMail by a visitor to a third party, despite lacking consent from the third party, does not violate the unfair competition statute, §7(2)(3) UWG, as long as the operator of the website does not add undisclosed advertising that goes beyond the product recommendation. Among the issues evaluated by the court is whether the EMail could by-pass spam filters. It found that the fact that the EMail originated from the corporate server did not mislead the recipient and should not be regarded as a design to circumvent spam filters.

The court ordered the company to cease and desist from adding undisclosed advertising to the feature that enables product recommendations, at a penalty of 250,000 Euros for each future violation or imprisonment of the management for up to six months if the penalty were not to be paid, plus costs. Its decision is subject to review by the federal supreme court in Karlsruhe, Bundesgerichtshof.

Sat, Nov. 26, 2005

Mailorder Spam Liability

CK - Washington.   In an alert to a German legal mailing list, Bert Handschumacher notes a new case extending contributory liability for violation of the German anti-spam statute to non-mailers.

On November 22, 2005, the Berlin district court issued an injunction against a reputable mail order company that had established an affiliate program allowing others to link to its web site and earn compensation for click-throughs. Certain spammers used their affiliate credits in unwanted commercial advertisements that they emailed to non-subscribers.

The court orderd the mail order company to cease and desist, at a penalty of 250,000 Euros for future violations, from contributing to further spam sent to the plaintiff in the matter 15 O 710/05, and imposed costs on the defendant under §97 of the Civil Procedure Code. The court found a single email sufficient to trigger the imminent and substantial danger of more spam being generated through the same means, Wiederholungsgefahr per §1004(1) of the Civil Code. A local court in Mettmann, in the matter 21C 161/05, had recently considered a single spam email insufficient, and the Dresden district court had also rejected liability for a single email, in the matter 114 C 2008/05, but those decisions are unknown to have become final and have generated great criticizm.

While those matters involved the direct liability of a sender, the Berlin case is important because it imposes the liability on a contributor, the - likely unintended - enabler of the spam scheme that probably thought itself law-abiding but became a victim of its own success when it offered an irresistable affiliate program. The Berlin decision complements a strict approach to dealing with individual emails. The enforcement of the internet laws to indirect enablers of spam has also extended to domain name administrators who, in all practical experience, are generally the most exposed persons on the internet and the least likely to actively pursue internet crimes.

Fri, Nov. 25, 2005

Online Statutes in German

.   On November 22, 2005, Brigitte Zypries has been confirmed as the Attorney General and will also serve the new government headed by Angela Merkel. One of Zypries' first acts is her announcement that the online service has expanded to the publication of some 5000 statutes.

Sun, Nov. 13, 2005

Risky Republication

CK - Washington.   The Hamburg court of first instance issued a TRO, not a final judgment, against a publishing company prohibiting that company's use of a generic domain name which the court found to improperly convey the notion that it was endorsed by German trade guilds.

Now, the publisher, ID-Medien, itself subject to criticizm, has sent cease and desist orders to two internet sites,, a blog specializing in domain news, and Schwerin-NEWS. Muepe had copied and pasted information from the Schwerin site. The Schwerin report was based on information released by the trade guild covering its temporary victory. Schwerin says it published an "article by the [guild]", einen auf Schwerin-NEWS am 7.11.2005 veröffentlichten Artikel der Handwerkskammer Schwerin.

The cease and desist orders claim that ID-Medien had not accepted the TRO and may appeal it. On that basis, ID-Medien argues that the web reports mislead readers by conveying the notion that the guild had won a final judgment. In turn, this impression is claimed to cause ID-Medien irreparable harm in its business.

Muepe added a note to its report to explain the status of the Hamburg ruling. Schwerin-NEWS published the details of the cease and desist order.

This development highlights the risks inherent in the uncommented and unedited republication of information published elsewhere. While copy and paste of excerpts may constitute legal fair use under copyright law and has become a popular technique in German law blogs, the minimalistic effort in populating a blog does expose bloggers to substantial legal exposure.

ID-Medien may be wrong in its claims and cannot realistically expect others to know how it feels about a TRO--other than the typical dissatisfaction of a losing defendant--and what action it might take against it. At the same time, there is now some legal basis on which bloggers may be required to state whether or not a court ruling has become final. See Legal News, Final or Risky on a--possibly non-final--Munich decision suggesting that websites update reports on reversed decisions.

Sat, Nov. 12, 2005

JuraBlogs Tools for German Law

CK - Washington.   The German legal metablog engine, JuraBlogs, has achieved important status in the German world of legal blogs. Recently, JuraBlogs developed several search and informational tools which it offers without charge to users of the Firefox and Flock browsers.

JuraBlogs Toolbar is an extension with a search function. Enter a legal term, such as Bundesberufungsgericht, press enter, and Jurablogs will list all articles with that term.

Kontextsuche enables the user to hightlight a word in any text displayed in the browser, right-click to display the menu option for a search of such text in JuraBlogs, and voila: Jurablogs lists the pertinent blog entries.

Finally, the toolbar contains a button for current blog entries listed on JuraBlogs. This function enables the user to by-pass the JuraBlogs site and head directly to the most recent additions listed with JuraBlogs--a somewhat altruistic tool from a website that makes it forego some traffic. Only a site that is worth visiting several times a day can afford to offer such a tool, and JuraBlogs has achieved that prominence.

Fri, Nov. 04, 2005

Legal News: Final or Risky

CK - Washington.   Reporting on court decisions can be risky. A German court almost held an owner of a website liable for defamation after a party mentioned in a decision reported on the site succeeded in having the decision amended and then sued the publisher.

Fortunately, the case was dismissed. The court stated that the owner of the site should have been given reasonable time to alert its readers to the change after the appeal. The Bahr blog reports also on two similar cases. The most recent decision is from the Munich court of first instance in the matter 161 C 17453/04 of September 14, 2005.

Disclaimer: The Munich decision may be subject to an appeal and this report may later prove wrong but will not change.

Sat, Oct. 29, 2005

Claim to Art and Artful Claims

CK - Washington.   On October 24, 2005, the highest German court for civil matters, the Bundesgerichtshof in Karlsruhe, decided on a claim by the owner of a Oskar Schlemmer painting against an heir of the painter. The heir had stated--in a confidential note to a third party that ended up being conveyed to the owner of the painting--his belief that the painting continued to belong to the painter's estate.

The court noted that the owner had purchased the painting at auction in the United States in 1959. There is an unresolved issue as to whether the painting made in 1931 had been improperly taken by the Nazi regime. In any case, both parties agreed that the owner had acquired ownership in the painting, at least through adverse possession under §937 of the civil code, Bürgerliches Gesetzbuch.

The issue for the court was whether the owner could properly claim that the heir cease and desist making a statement that casts a cloud on the title. The court sided with the owner in the matter II ZR 329/03.

A day later, another division of the same court turned down a claim for payment on debentures issued 80 years ago by the city of Dresden. The debenture certificates had become worthless as financial instruments but are generally appreciated as art-like historical artifacts. The court based its decision on the statute of limitations of 30 years and the fact that the East German government had validly reconstituted the political entities which incidentally absolved cities such as Dresden from liabilities such as the then-worthless debentures.

Such bonds cases remind the reader of similar claims discussed periodially in the United States for the redemption of railroad and other bonds issued by long-defunct entities. Filing lawsuits for bonds that expired 50, 100 or 150 years ago raises the issue of an abuse of the legal system and a waste of holders' recources.

That may apply particularly to the warning by counsel in the Dresden case to bring the same matter before an American court, as reports and Handakte mirrors. A similar case being marketed by the German Goldbond Redemption Group, LLC is currently before the United States District Court for the Middle District of Florida.

Wed, Oct. 26, 2005

Forum Owner Liable for Visitor Action

CK - Washington.   German courts are pushing internet operators ever harder. A June 6, 2005 decision by the Winsen a.d. Luhe court holds the operator of an internet forum responsible for comments by a visitor. The visitor added a fake mug shot that displays a photo of the plaintiff.

Claiming defamation, the plaintiff sent an EMail to the defendant operator, demanding the removal of the mug shot within 24 hours and 17 minutes. When the defendant failed to act, the plaintiff sued. The court granted his motion for an injunction, under §11(2) TDG. Later, the defendant explained his inaction by his personal absence which rendered him unable to react promptly.

The court held that his absence did not excuse his failure. Participants in the Internet must act in Internet time, it noted in the matter of M.K. v. B.R., docket no. 23 C 155/05, reported by JurPC, discussed by, critiqued by Gramespacher and quoted by

As a result, German forum operators will need to shut down operations when they travel, get stuck in traffic or visit the restroom. After all, the federal Statute on Remote Services, Teledienstgesetz, absolves them from liability only if they act immediately, not merely promptly. That is, according to the statute, upon learning of illegal content. And under the Winsen rule, also when they have no such knowledge.

Tue, Oct. 25, 2005

EEP: Ltd. Ebb

.   The German hoopla over the English corporate form of Limited and its use in Germany appears to ebb. Interest in the form is waning, according to Flensburg tax and insolvency specialists Ehler Ermer & Partner.

The October 2005 issue of the EEP Journal reports a recognition in German corporate minds that meeting mandatory English and German balance sheet requirements and annual notifications to two corporate registers increases costs and efforts substantially while the benefit of minimal capitalization is marginal.

EEP does not advocate an end to the use of the Ltd. in Germany but recommends proper decision-making and planning before implementing such a concept. German business may also want to look at the benefits of American corporations which are simple to establish and maintain and offer very low capitalization requirements.

Sun, Oct. 23, 2005

Law Blog Trademarked

.   The Markenblog blog reports that on October 21, 2005 the term law blog has been registered by the owner of the popular German blog law blog. The registration does not expressly cover blogs but legal services in class 42 and services including the presentation of creative works in class 41. The German registration should not affect the general use of the generic or descriptive term by others.

Wed, Oct. 19, 2005

Vigorous Representation

.   German defense counsel are outraged over the conviction of, and the penalty imposed today on, a respected colleague who in a crimial matter dared question the integrity of police reports. From discussions in German lawyers' boards, the attorney appears to have understood the document(s) to have been tampered with and the police officer(s) to have misrepresented information on their handling.

The matter is the topic of a special purpose blog, Vier Strafverteidiger, i.e. four defense counsel. The Braunschweig court did not mete out a true criminal punishment. Instead, it chose a warning with the threat of a fine measured by 15 days.

This amount is just below the threshhold for eligibility for an appeal--causing additional outrage. The Lichtenrader Notizen blog explains the appellate issues and the option of going beyond the next higher court for a legal review, Revision, specifically a Sprungrevision.

Sat, Oct. 15, 2005

Hotel Marks in Germany and Spain

.   In the matter 33 O 209/03, the Cologne District Court, Landgericht ruled on September 13, 2005 that a German trademark for hotels in Germany is not violated by the same mark used for a hotel in Spain even if the Spanish hotel is listed in the English and German-language fliers and English Internet presentations and works with a German bus operator which advertises in Germany and brings tourists to the Spanish hotel.

In addition to the trademark claim, the court addressed an unfair competition claim raised by the German trademark owner and determined that there is no civil liability under competition law because the customers exist in distinguishable markets which appear not to be in competition with each other.

Without explanation, the Dr. Bahr blog calls the ruling wrong. Bahr is in the northern city of Hamburg. The Hamburg courts tend to favor extreme positions when it comes to the Internet, advocating an extraterritorial approach to German law that other German courts appear to reject.

Since trademarks, like other intellectual property rights, confer legality upon a monopoly, the general rule is that they be constructed restrictively, and the Cologne court seems to properly affirm that rule. Also, the Cologne court respects the territoriality principle of trademark law.

Update: Reading the Bahr comment again, Bahr may not actually disapprove of the Cologne decision. A comma after Zu Unrecht would clarify what he means.

Fri, Oct. 14, 2005

Scan Checks

.   In the German economy, checks assume a minor role because giral transfers have dominated European banking systems for centuries. Still, the management of some 12 million checks per year can be cumbersome and costly.

To ease such burdens, a new law came into effect on October 13, 2005 that permits the electronic processing of checks similar to the Check 21 procedures established in the United States last year. The Berlin Department of Justice published a press release that describes the process and benefits.

Thu, Oct. 13, 2005

Transfer of Software

.   A decision on software law by the German Supreme Court in Civil Matters, Bundesgerichtshof, in Karlsruhe is the subject of Arne Trautmann's careful analysis in the Law Blog on October 10, 2005.

The decision of March 3, 2005 in the matter IZR111/02, a/k/a Fash 2000, involves the requirements for a transfer of a copyrightable work and specifically a complex a computer program. The court considers the program of copyrightable quality which is not the standard for all software under German copyright law.

The key issue is whether a program that has been coded by one programmer--and after a transfer to a corporation--has been added to by other programmers, requires the consent of all three programmers for the further transfer from the estate of the then-bankrupt corporation to another party.

The court examined the issues of the rules of construction of contracts and, in particular, of distinguishing a co-authored work from an original work made by its creator and enhanced with modifications and adaptations made by others. Trautmann clarifies the main conclusions of the court.

The transfer of a joint work will require the joint consents of all creators, none of which may be unreasonably refused. By contrast, if there is an original work plus enhancements, the original creator controls the transfer. Whether the programmers of the enhancements have any control depends on their authority to modify the work. These are factual issues which the court sent back to the lower court for examination.

That court will need to determine whether the coders involved after the orginal creation subsumed their contributions to a common overriding development concept, in which case they may be deemed joint authors with the original programmer.

Mon, Oct. 10, 2005

Merkel to Manage Coalition

CK - Washington.The Foundation Agreement for the Negotiations of a Coalition by CDU/CSU and SPD of October 10, 2005 gives CDU chief Angela Merkel the principal management role in the new coalition government. Any major changes in the changing the allocation of authority within the government will not depend solely on her but require negotations toward a new consensus. The coalition paper describes the distribution of departments among the parties as follows:

  • Chancellor: CDU
  • Vice Chancellor: SPD
  • Commerce, Technology: CDU/CSU
  • Interior: CDU
  • Defense: CDU
  • Family, Seniors, Women, Youth: CDU
  • Education, Research: CDU
  • Consumer Protection, Food, Agriculture: CDU
  • Foreign Office: SPD
  • Finance: SPD
  • Justice: SPD
  • Economic Cooperation, Development: SPD
  • Labor, Social Security: SPD
  • Health: SPD
  • Transportation, Construction, Housing: SPD
  • Environment, Nature Preservation, Reactor Safety: SPD
While the SPD will appoint a greater number of secretaries, the number of deputy secretaries will be evenly split amount the two blocks. The number of departments allocated to the CSU may vary from the above but in a grand coalition, the role of the CSU is greaty diminished and numerically irrelevant.

The paper identifies a few substantive understandings, including one on the simplification of the personal income tax system and on a tax holiday for bonus payments on Sunday, night and holiday work. The objectives pursued here are transparency, efficiency and fairness.

Sat, Oct. 08, 2005

Jurisdictional Discovery

.   In the Embassy Law Blog, Thomas Corcoran explains the D.C. Circuit's September 30, 2005 ruling in Robert Lee Beecham et al. v. Socialist People's Libyan Arab Jamahiriya et al., docket number 04-7037, which involves the issue of damages for those killed in the Berlin discotheque bombing--which followed the killing of 35 Libyan seamen in a naval clash with the United States of America and after which then-President Reagan bombed Tripoli, killing another 15--and the sovereign immunity exception claimed by the government of Libya under the Foreign Sovereign Immunities Act.

Libya's appeal of the jurisdictional discovery plan suggested by the district court was ruled premature. As a result, in FSIA cases, sovereign defendants may be ordered to participate in a joint effort to develop a plan for jurisdictional discovery without being able to claim that the order constitutes an undue burden under the FSIA.

Wed, Oct. 05, 2005

Court Expands Jurisdiction

.   Today, the Cologne Circuit published a press release in the matter 16 U 36/04 explaining its ruling on an interlocutory appeal dated September 12, 2005. The court expands the jurisdiction of German courts and possibly other European courts by permitting domestic parties to sue economically more advantaged foreign parties, such as insurance carriers, domestically.

The dispute involves a car driver's insurance claim against the insurer of a vehicle after an accident outside of Germany. The plaintiff sued the foreign insurer in Germany, and the local court dismissed the complaint for lack of international jurisdiction.

On appeal, the Cologne Court of Appeals construed the EU directive of December 22, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to mean that the legislator intended to confer international jurisdiction over a foreign insurer in automobile accident matters and to permit the victim to sue a foreign insurer domestically.

The court found additional support in a guideline of May 2005 which it read to strengthen the position of consumers against insurers. The decision is not final. It runs counter to the majority of interpretations of the jurisdictional rules in Germany and may be limited to European defendants.

Tue, Sep. 27, 2005

DAJV Newsletter in New Format

.   Thanks to Professor Dr. Karsten Otte, we know that the key periodical of the German American Lawyers' Association, Deutsch-Amerikanische Juristen-Vereinigung e.V. will soon appear in a new and improved format.

The DAJV-Newsletter will be published by the major law publisher Verlag Recht und Wirtschaft in Frankfurt/Main.

The Newsletter will continue to publish articles and notes in German and English on subjects of American law and the intersection of German and American law. Although it has long outgrown the newsletter format, the publication will retain its historical name. News contributors should contact Prof. Otte, its editor. Orders should be directed to the publishing house.

Sat, Sep. 24, 2005

American DVD = Pornography

CK - Washington.  The Düsseldorf law blog raises the issue of criminal investigations for the import of DVDs from American sources. Such imports can result in a notice of criminal investigation to the buyer. The blog lists the form used by the customs service.

The various comments to the note observe that the German age verification system, AVS, for pornography transactions on the Internet is easily and customarily circumvented by sellers in foreign countries, not only in the United States. They do not use the mandatory AVS for transactions with German buyers. The system intends to protect minors. Some doubt that such a system can ever work because it does not reach all types of delivery, for instance satellite transmissions.

One comment notes that any unrated DVD from abroad will be treated as pornographic and, therefore, result in an illegal import. The rationale is that the customs officer is not the proper authority to determine whether some content constitutes pornography or not. The investigation is directed against the seller, not the buyer but the notice to the buyer is often written in terms that cause buyers to believe they are the targets.

Export to UK, Re-Export to Iraq

.   A German export control case that resulted in a criminal conviction is the topic of a discussion in the Lichtenrader Notizen blog. A German company equipped Japanese SUVs with reinforced shielding and obtained several export licenses for the U.K. Apparently, the SUVs ended up in Iraq and successfully shielded Britons attacked there.

While the company obtained five export licenses for five vehicles, it exported 15 SUVs. As specially shielded equipment, they were subject to special controls, requiring a license for each vehicle, although the rules changed on July 1, 2005 to allow for a type license that now would cover the entire transaction.

The transaction was valued at 1.8 million Euros, and the criminal conviction requires the company to pay this amount in restitution. The sentence is being appealed.

Sun, Sep. 18, 2005

What now?

CK - Washington.   The future of legislative projects in Germany appears clouded, at least within the first two hours of the close of polling stations in all of Germany except Dresden. In German-speaking circles in Washington, skepticism meets declarations of victory by the speakers of all major parties. The Berlin deadlock is painfully obvious.

A mirror of Gore v. Bush seems unlikely. Courts will not have to decide the outcome of this election, except possibly for the effects of the Dresden sideshow which may become decisive. At this time, the parties have no choice but to negotiate terms for working coalitions. There are several possible scenarios, in each of which major politicians will need to swallow their pride in the hope of constructing a working majority.

Thu, Sep. 08, 2005

By-Election in Dresden

MAG - Washington.   The 2005 election drama adds another act. The election board of the Free State of Saxony announced on September 8, 2005 that the elections in the electoral district of Dresden have to be cancelled and newly arranged.

By statute, a by-election needs to meet the requirements of §43 of the federal election code; Bundeswahlgesetz.

The rerun was caused by the sudden death of Kerstin Lorenz, candidate for the Nationalistic Party of Germany, NPD on September 7, 2005. She died at the age of 43 after suffering a cerebral apoplexy at a campaign rally on September 5, 2005.

The exact date of the by-election has not yet been set. There is general agreement, however, that the general federal elections to the diet in Berlin on September 18, 2005 will not produce a final result. If there should be a narrow majority after the general election, the electoral district 160 of Dresden could decide the outcome for the nation.

Authorities are still verifying if it is possible to publish a preliminary result on September 18. But the final result of the 2005 elections will have to be postponed at least for several weeks until the beautiful Saxon city has also given their approximately 219,000 votes.

Fri, Sep. 02, 2005

Soldier with Conscience

CK - Washington.   In a complex ruling in the matter BVerwG 2WD 12.0-4 of June 21, 2005, the Federal Supreme Court for Administrative Law, Bundesverwaltungsgericht, in Leipzig determined that

(1) the U.S./U.K. war in Iraq violates international law; and
(2) a German soldier's refusal to follow orders to support that war is proper.

The court explained, among other issues, that a soldier's duty to follow orders is not unlimited. The soldier's exercize of conscience deserves respect by the law, while a law that supports an illegal war does not.

The soldier had refused to assist German NATO operations in support of the war which Germany based on NATO statutes that the court considered constitutional.

The just published decision clarifies that the soldier's conscience and the nation's constitution require no balancing because the soldier's decision did not affect the nation's ability to pass constitutional laws.

Nazi Persecution Through the End

CK - Washington.   Political persecution by a regime continues until a regime ends its hostile attitude towards the persecuted or is itself ended, the Federal Supreme Court for Administrative Law, Bundesverwaltungsgericht, in Leipzig held on August 25, 2005.

The decision in the matter BVerG 7C19.04 reverses a lower court decision which understood persecution to end, with respect to the statute for the recovery of property lost to the Nazis or sold under pressure of political persecution, when the government returned expropriated property to its owner. In the case at bar, the Nazi government had returned the property in 1934 but kept the pressure on the exile owner who sold the property in 1939.

In the court's view, the action for the recovery of the property may proceed, and the heirs of the original owner may prove their case based on the assumption that persecution of their father continued until the end of the Nazi regime in 1945.

Thu, Sep. 01, 2005

Foreign Assistance: No Thanks

CK - Washington.   Information pours in that the United States declines offers of flood assistance from foreign countries.

On the radio, listeners complain that foreign countries show no interest in assisting America. Gradually, some radio stations broadcast corrections to that view.

By tonight, it seems clear that such offers meet resistance. Under NATO/SOFA, GIs from American military bases were free to act in Germany, and they assisted regularly and generously in German floods and other catastrophes. Germany is one of the countries that has offered the United States disaster relief, such as from its Technical Relief Agency, THW. Naturally, Germany is not in the same position as the United States under NATO/SOFA and may not send its troops from its bases in the Southwest to the flood zones, to fly in its search and rescue experts, or to bring THW generators to the South.

Sovereignty and humanitarian aid--a complicated mix.

Update: NBC News just confirms that the Administration has rejected foreign offers of assistance.

Thu, Aug. 25, 2005

Elections in September Approved

MAG - Washington.   The German Constitutional Court ruled on August 25, 2005 that President Köhler's decision to dissolve parliament on July 21, 2005 was not unconstitutional, 2 BvE 4/05 and 2 BvE 7/05.

Two members of parliament had complained to the highest court that dissolving parliament and calling for new elections on September 18, 2005 would conflict with Article 68 of the German Constitution and would, therefore, be unconstitutional.

The Constitutional Court, Bundesverfassungsgericht, gave President Köhler's decision the required legitimacy with its ruling. Although the election campaign started in July, the final decision was made by the Court.

Mon, Aug. 22, 2005

Pleading Jurisdictional Defects

.   In a victory for foreign plaintiffs, the eighth civil division of the Federal Supreme Court, Bundesgerichtshof, in Karlsruhe decided on June 1, 2005 that a motion to dismiss for lack of local jurisdiction should be construed to incorporate a motion to dismiss for lack of international jurisdiction.

The decision in the matter VII ZR 256/04, published at involves a contract for payment for goods sold by a German manufacturer to a Belgian distributor. The court found the German conflicts of laws rules and terms of the supply agreement to point to jurisdiction over the Belgian defendant in a German court. The defendant had moved to dismiss the complaint for lack of local jurisdiction and had failed to expressly plead a lack of international jurisdiction.

The Supreme Court examined the applicable EU directives and their transformation in German law as well as the rules of construction for procedural pleadings. It found that the defective pleading was open to interpretation, but not the view that the defendant meant to plead that another German court had jurisdiction over the defendant. Instead, the only possible view is that any German court would lack international jurisdiction. This is the only result that the lower court should have arrived at, the upper court held. Accordingly, the lower court should not have construed the defective pleading as a waiver of the defense of lacking international jurisdiction.

This segment of the ruling would apply also in a German-American setting, although the ultimate outcome of the case was controlled by EU and German law.

The German concept of local jurisdiction is somewhat similar to personal jurisdiction in the United States, but also contains elements of the concept of venue. The concept of international jurisdiction under German law is frequently overlooked.

Sat, Aug. 20, 2005

Uniformed Officer no Clown

CK - Washington.  Calling a uniformed officer a clown can constitute libel. A passenger demanded to see the ID of a uniformed officer on a train during a random ticket inspection with these words: "Any old clown could ask for my ticket, let me see your ID."

The Tiergarten court in Berlin found the statement libelous and sentenced the rider to a penalty of 225 Euros, the Lichtenrader Notizen blog reports before it extensively reprints the appellate ruling.

The appellate court in Berlin analyzed the libel statute in §185 of the Criminal Code in light of constitutional free speech considerations and the justification rules of §193 of the Criminal Code.

In the matter (4) 1 Ss 93/04 (91/04), the fourth criminal division of the court upheld the lower court on August 12, 2005 because it found the statement to have been made with defamatory intent and a retaliatory motive which were not outweighed by free speech considerations.

The nuisance value of the random check must have been high for the passenger who happened to have no ticket.

Sat, Aug. 13, 2005

Compilation of Internet Law

.   A comprehensive compilation of German internet law, widely known as the Hoeren-Skript, after Thomas Hoeren, a law professor in Münster and one of the pre-eminent German technology authors, is now available in its August 2005 edition.

The 492-page compilation is offered as a free download in the PDF file format. In addition to introductions, commentary and annotations, Hoeren presents useful statutory material and sample forms that readers can tailor to their needs.

Sat, Aug. 06, 2005

Sweat of the Brow: HTML

CK - Washington.   Converting a client's ads from a text processor file to an HTML file, without more, is sweat of the brow-type work, not a copyrightable work under German copyright law, the Frankfurt Court of Appeals decided in the matter 11U64/04 on March 22, 2005.

On August 4, 2005, Niko Härting made the decision available and added a comment. In particular, he notes that this decision follows a trend among German courts that fail to protect web designs based on works created in other formats, for lack of creativity.

In this matter, the court explored copyright protection and liability under unfair competition law in the context of a web site that advertises employment opportunities for its clients. A competitor had scraped its content after receiving an identical assignment from one of its clients. The client had provided the content for the ads.

The parties argued whether HTML constitutes a programming language that is encompassed by the software protection rules of the copyright act. They also disagreed over the issue of protection afforded the advertisements under the database protection law, in §§87 et seq. of the Copyright Act.

The court confirmed that the creation of a web site based on other content is capable of general copyright protection if its digital production displays the required amount of creativity as per § 2(2) of the copyright statute. The ads at issue represent a technical production process, not a creative one, the court held.

The court ventured further, in order to determine whether special rules protecting software programs might apply. After discussing the view of some courts that HTML code constitutes a software program, the Frankfurt court found HTML to represent a mere communications tool, even as some information is being coded for a web site. It finds the content to represent the creative element, not the code that makes the site happen.

The technical underpinnings of this argument seems implausible: Various technical solutions can create the same content representation on a web site. Clearly, the same is true for software programs in general: We can program in Delphi or Basic, C or Symbian the same perceptible result; nobody would claim that works created in these programming languages would not constitute programs just because the perceived result is identical.

On the unfair competition claim, the court found that the parties created web representations of their clients' work where the web design firms' work was insignificant and not worthy of independent protection. Customers would not be misled, and quality standards are not characteristic for the scraped site. The plaintiff had not presented the court with evidence of special structure, logic, content or graphical representations that went beyond the ordinary. These factors may sway this court in future cases.

Wed, Aug. 03, 2005

Dr. No Title. No Dr. OK

CK - Washington.   The German law blog world is abuzz in discussion of an analysis by Dr. Wolfgang Zimmerling entitled Zum Anspruch auf Anrede mit dem Doktorgrad, or The Right to Being Addressed with the Degree of Doctor.

Dr. Zimmerling explains that the academic degree is not part of the name for purposes of §12 of the Civil Code which controls rights relating to names. Rather, Zimmerling notes that the degree is merely academic and not even a title, although the term doctor is colloquially used as, and frequently said to be, a title. §18(2) of the statute on the framework for universities, Hochschulrahmengesetz, HRG, conclusively leads to that result.

Subject to one important exception, a person with that degree may not insist on being addressed as Dr. SoAndSo. The exception follows from a decision by the top German court for employment matters, Bundesarbeitsgericht, which held that employers are required, absent exigent circumstances, to use the degree of an employee in external communications; see MDR 1984, 873 et seq.

Zimmerling's discourse provides relief to all who focus on substance and may confuse matters of form.

FIFA Wins Trademark Dispute

MAG - Washington.   The German federal patent court in Munich ruled on August 3, 2005 that corporate users of its soccer world cup trademark, such as food manufacturer Ferrero--which had lodged a complaint against FIFA, the world body governing soccer championships,--will remain unauthorised to use FIFA's trademarks "WM 2006" and "Fussball WM 2006" in advertising or on their products without FIFA license. In the matters 32 W(pat)237/04 and 238/04, the court thereby ended a long dispute between the FIFA and companies that disputed the registrability of the marks.

Tue, Aug. 02, 2005

Possession Vests in Heir

CK - Washington.   Johanna Knapp published at a useful overview of the civil code rules that apply to possessory rights of an heir after an inheritance.

Generally, under German law, an heir steps into the shoes of the decedent. Unlike the laws in the United States which provide for probate and possessory rights vested in an executor or administrator, German law transfers possession of the assets of an estate immediately to the heirs.

The specific point addressed in Knapp's note involves the issues of factual possession, which the heir ordinarily does not acquire immediately--for instance, for lack of knowledge of the decedent's death--, and the issue of factual possession being held by a third party, with or without the permission of the decedent.

Knapp outlines the possible scenarios, available claims and statutory remedies succinctly, as of July 24, 2005. Her starting point is §857 of the Civil Code, Bürgerliches Gesetzbuch, as of January 1, 2002, and amended by Art. 1 of the Statute of February 2, 2005, Statute to Amended the Law Governing Names in Marriage and Life Partnership, Federal Gazette I, vol. 201, no. 9, p. 201.

Mon, Aug. 01, 2005

Analysis of Arrest Warrant Ruling

MAG - Washington.   The European Arrest Warrant was to be implemented in German law as an EU-wide arrest and surrender warrant. The new system promised to swiftly resolve EU cross-border criminal enforcement.

It aims to bring both victim and alleged criminal to justice within a strict time frame of three months, compared to the previously lengthy extradition system.

This simplified procedure involves courts issuing a warrant, and will largely remove Ministers from the process, representing a new development in EU wide judicial co-operation.

The Federal Supreme Constitutional Court in Karlsruhe voided the German statute on the European arrest warrant and explained the rationale for its decision in the matter 2 BvR 2236 /04 in an English-language press release.

In an article published today in 21 International Enforcement Law Reporter 357 (2005), GALJ-contributor Verena Hild explains the complexity of the decision and its consequences for Germany and the EU: German Court Holds European Arrest Warrant Void, Refuses Spanish request for al Qaeda Financier.

Sun, Jul. 31, 2005

Employer Owns Software Program

CK - Washington.   An employee created a software program for his employer. He performed the service, in part, at his home office and not necessarily during business hours. The employee claimed ownership in the program. The server on which the program ran crashed shortly after a nastigram from the employee to the employer. The employer proved that an outside attack had targeted that server at the time.

Based on these facts, the Cologne Court of Civil Appeals decided that the employer owns the program. Further, it confirmed a cease and desist order against the employee with respect to attacks on the employer's systems.

The court dismissed the employee's arguments that §69b of the Copyright Statute could not generate ownership in the employer because the employee was hired as a technician, not a programmer, and further, that the work done outside of regular business hours would prevent the ownership from originating in the employer.

This decision of February 25, 2005 in the matter 6 U 132/04, first reported in Carola Ernesti's IT-Blawg, helps clarify the sometimes murky German rules on employer ownership of software programs.

Tobacco Ban and Subsidy

CK - Washington.   The Times of Malta reports today in Tobacco advertising banned as from today on the now effective European Union-wide ban on advertising in various media, including the internet, of tobacco products. Ivan Camilleri reports that authorities have no concrete understanding of additives to tobacco products. He notes that the EU funds production of tobacco with a billion Euro subsidy.

Fri, Jul. 29, 2005

Hearing on Election

CK - Washington.   The blog has the goods on the hearing schedule for the advance federal election currently scheduled for September 18, 2005. The Federal Supreme Constitutional Court in Karslruhe may still void the decision by President Köhler to dissolve the federal diet in Berlin.

Sat, Jul. 23, 2005

Software Reports Illegal

CK - Washington.   The issue of whether reports on software may be illegal will go before the Munich appellate court on July 28, 2005. Recent European and German developments in copyright law purport to protect consumers from learning of software tools that can read protected content.

Heise Publishers reported on such tools and now have a complete report on the reaction by a gang of music marketers. Certain representatives of the music industry intend to silence the press when it comes to links to software the music group dislikes, and possibly, as Heise suspects, to the entire reporting on such software.

The lower court found Heise to have violated the recent copyright act amendments. The industry is pushing, not only in Germany, for more measures against technology. Mathias Spielkamp of the immateriblog called the case a matter of censorship.

An older discussion of liability for links: Kochinke and Tröndle, Links, Frames und Meta-Tags, Computer & Recht 1999, 190. On the content industry's failure to adapt to technology and instead to fight it: Kochinke and Geiger: Trends im US-Computer- und Internet-Recht, Kommunikation & Recht, 2000, 594.

Thu, Jul. 21, 2005

No Dependable Majority

CK - Washington.   The lack of a dependable majority in the diet, Bundestag, weighed on President Köhler's decision today to dissolve the parliament. He explained his rationale on TV and encouraged the country to vote on September 18, 2005.

The president acquiesced in Chancellor Schröder's wish who had deliberately challenged his party members in a vote of non-confidence. Because the constitution disallows the dissolution of the parliament--which option caused Hitler to win control of the country at the end of the Weimar Republic--, the Köhler ruling is subject to challenges in the Federal Constitutional Court in Karlsruhe.

Wed, Jul. 20, 2005

Arrest Warrant Law Void

CK - Washington.   The Federal Supreme Constitutional Court in Karlsruhe voided the German statute on the European arrest warrant on Monday and explained the rationale for its decision in the matter 2 BvR 2236 /04 in an English-language press release.

Tue, Jul. 05, 2005


CK - Washington.   Accessing wireless LAN systems hosted by others does not constitute a crime under German law, Ulf Buermeyer concludes in his detailed analysis Der strafrechtliche Schutz drahtloser Computernetwerke (WLANs).

The converse may be true only for WIFI networks that the host protects against the use by others, even if such protection consists of the useless WEP encryption scheme. Buermeyer's analysis addresses only the use by a visitor of the network for internet access. Other rules would apply if the third party were to seek access to the data on the computer systems bound to the WIFI network.

The result is unsurprising because establishing a wireless network without protection is generally known to constitute an invitation. Most computers will automatically log into any open WIFI network and cannot tell whether its operator discourages visitors unless there is password protection and encryption. FBI work has shown that WEP protection leaves such networks as good as open and an invitation to third parties: 3 Minuten mit dem FBI.

Buermeyer closes his discussion with an outlook to future legislation. He predicts that the constitution would not detect sufficient legal interests in an open network that future criminal law could validly protect.

The German law blog has a good number of follow-up comments on the issue.

Mon, Jul. 04, 2005

Call to Protest: Convicted

CK - Washington.   An online demonstration that affected Lufthansa AG's internet service resulted in the conviction of one of the organizers on July 1, 2005.

The judge in Frankfurt criticized the abuse of the power of the mouse and sentenced the defendant to a fine of 900 Euros.

The protest intended to alert the public to the business of deportations by airlines. On the internet, web sites offered help to create a denial of service attack on Lufthansa webservers. The resulting effect on Lufthansa customers was one of the factors Judge Wild considered in her opinion in case number 991 Ds-6100 Js 226314/01.

Fri, Jul. 01, 2005

Convoluted Schröder Resignation

CK - Washington.The convoluted resignation of chancellor Schröder passed the next step: The federal diet in Berlin accepted his request for a vote of no confidence.

The ball is now in the court of president Köhler or the Federal Constitutional Court in Karlsruhe which had previously deemed a fake resignation unconstitutional.

Numerous German law blawgs cover the issue, many with mirrors of news reports which jurabilis! and Handakte specialize in, others with detailed analysis and links, such as Lichtenrader Notizen, neues aus schwabenheim and The major German metablawg,, provides the easiest starting point for analyses.

Wed, Jun. 29, 2005

Go Phish: Fax, EMail, Europe

.   While the new Junk Fax Prevention Act of 2005, S. 714, enables spammers to freely contact those who publish fax numbers on the internet, see proposed 47 USC §227(b)(1)(C)(ii)(II), Europe makes spammers even happier with its E-Commerce Directive which some countries interpret to require that all web writers publish, in an easily accessible manner, comprehensive contact information.

Austria's most recent expansion of this requirement will come into force on July 1, 2005 and covers all web publishers. Recently, Germany began tinkering with its telecommunications services statute which in §6 contains the disclosure requirements generally known as Impressumspflicht.

Stephan Ott published a few days ago a useful overview of the requirements of the German statute. He places particular emphasis on the issue of protection of EMail addresses, by way of encryption and graphics. He concludes that these anti-harvesting techniques may run afoul of the law.

Generally, Europeans appear to be less aware of the risks of phishing than Americans and there is a lot of support for the disclosure requirements for personal data on the internet--despite a long and intense tradition of data protection outside of the internet.

Eventually, they will have to figure out, like America, how to unphish their data and identities. At present, Europe appears hell-bent on emasculating safeguards developed over half a century.

Thu, Jun. 23, 2005

Priorities at Justice

.   The Berlin Department of Justice web site lists areas of the law in its topics page, on the left, in the following order.

(1) Civil Matters, including the major, completed reform of the law of obligations, the new anti-discrimination project, international judicial assistance, and conflicts of laws.
(2) Commercial and Business Law, including the hot topic of corporate governance, bankruptcy, insurance law, intellectual property laws and the statute against uncompetitive practices.
(3) European and International Law.
(4) Human Rights Law.
(5) International Cooperation.
(5) Bio Policy.
(6) Justice and National Socialism.
(7) Legal Issues Resulting from Reunification.
(9) Criminal Law.
(10) The Judicial System.

The order may indicate the priorities of the Department. It may also reflect a webmaster's preference. Or does it follow user preferences? In any case, interesting.

Thu, Jun. 16, 2005

Precedential Case Procedure

CK - Washington. The Justice Department in Berlin issued a press release today to announce a new and experimental statute that establishes new procedures for lawsuits by investors harmed in the capital markets.

For a period of five years, investors may bring claims for damages in a precedential action to determine facts and legal issues common to numerous investors, somewhat similar to class actions in the United States. The bill, Kapitalanleger-Musterverfahrensgesetz, passed the diet, Bundestag, today and requires the approval of the upper house, Bundesrat.

Wed, Jun. 15, 2005

Free Speech Upheld

CK - Washington.   Alvar Freude properly used satire on his web site to warn of threats to free speech principles, the Stuttgart appellate court held today, see our prior coverage. Simon's Blawg covered the hearing, apparently live, and has a detailed report in German, with a summary in English.

Blocking Foreign Sites

.   A court determined that the government may order ISPs to block access to certain foreign websites. The Düsseldorf Administrative Law Court based its decision in the matter 27 K 5968/02 on the criminal code which outlaws comprehensively activities and conduct that glorify the Nazi regime and associated (un-)culture.

The rationale for the decision has not yet been published but IT-Blawg has a long analysis in German. The particulars of German history may justify the approach taken by the court, and suppression of Nazi matter has a long tradition that dates back to the influence of the enlightened occupational forces after World War II. At the same time, the old question arises afresh of whether the special anti-Nazi rule opens the door to additional restrictive measures.

Mon, Jun. 13, 2005

Upper House to Meet June 15

CK - Washington.   The Upper House, Bundesrat, in Berlin will meet on June 15, 2005 to consider eight statutes that require its approval. The list is on its website.

Briefly, the statutes cover (1) the removal of home owner subsidies; (2) new rules for food and feed; (3) adoption of the EU directive on noise suppression; (4) revision of gene technology rules; (5) amendment of the statute against anti-competitive measures; (6) revision of rules covering the energy industry; (7) statute to enhance preventive health measures; and (8) statute to adopt the rules enunciated in the March 3, 2005 decision by the Federal Supreme Court on audio intelligence targeted at living spaces.

The last item is a counter-terrorist measure known as großer Lauschangriff that has experienced reactions similar to the Patriot Act in the United States.

Sat, Jun. 11, 2005

Seizing Client Data From Lawyers

CK - Washington.   In the course of a criminal investigation, the police may not search and seize all the data-storing equipment of a suspect, the German Federal Constitution Court in Karlsruhe decided on April 12, 2005, according to its press release 47/2005 of June 8, 2005.

The decision requires the state to carefully balance the impact of searches and seizures against constitution rights, it explained in the matter 2 BvR 1027/02.

In its ruling, the court expressed particular concern with the fact that the state had taken all the data storage equipment from a law and tax consulting firm and failed to limit the search and seizure to items of import to the investigation. The court acknowledged the particular sensitivity required to safeguarding data of a legally protected nature where an enhanced expectation of protection is warranted under laws governing professional relationships.

Sun, Jun. 05, 2005

Introducing Documents

.   In criminal matters, courts may consider documents properly introduced into a trial even if they have not been read into the record but the Supreme Constitutional Court in Karlsruhe established some limits in its ruling of January 25, 2005.

In the matters 2 BvR 656/99, 2 BvR 657/99 and 2 BvR 683/99, it ruled that an appellate court may require detailed information from a party about the use of documentary evidence that the party claims was not properly introduced at trial, under §344 of the Rules of Criminal Procedure, StPO. An appellate court may not require, however, factual information that goes beyond what is relevant for an appeal when such information has no immediate nexus with the introduction of that evidence.

In these three matters, the federal appellate court speculated that the appellant intended to mislead it by not furnishing information on an evidentiary ruling from which the court believed it could infer that the trial court had properly admitted the documentary evidence at issue.

The constitutional judges outlawed this inference as straining evidentiary rules embedded in §261 StPO and the constitutional due process precepts of articles 2(1) and 103 of the German federal constitution, Grundgesetz. A press release of May 25, 2005 by the court summarizes the above ruling at the Javascript link called Pressemitteilungen.

Sat, Jun. 04, 2005

Heir Disinherited

CK - Washington.   Disinheriting a statutory heir is almost impossible under German law unless an heir seeks to kill or assault the testator. A recent decision, case numbers 1 BvR 1644/00 and 1 BvR 188/03, by the Supreme Constitutional Court finetunes the limits.

Generally, if a testator disinherits, or fails to bequeath anything of an estate to, a statutory heir such as a spouse or child, the statutory heir will be entitled to compensation valued at half of the statutory share. The statutory heir acquires that claim as a claim against the heirs proper--such as those named in a will--and the claim is for money, not actual assets, such as real estate, that the heirs proper inherit when the decedent dies. The Civil Code permits a testator to completely disinherit, however, an heir who forms an intent to kill or assault the testator.

In the case at bar, the testator disinherited one of two brothers who suffered from a mental condition, tried to kill the testator before he was disinherited, later killed him out of fear of being sent to a mental ward, and raised a claim for his statutory share against the brother. The court tested the limits of the Civil Code against the constitutional guarantees for the right to inherit in Articles 14(1) and 6(1).

The lower courts had found the plaintiff criminally insane and, thus, incapable of forming an intent to kill his father. The Supreme Court instructed the lower court, however, to re-examine the conditions for disinheriting an heir under §§2303(1), 2333(1) and (2) of the Civil Code also from the perspective of civil competence to form an intent and from the angle of a natural intent.

Tue, May. 31, 2005

Legal Advice Secret

.   Legal advice shall remain secret, even if it relates to money laundering unless a lawyer is involved in money laundering or financing of terrorism. This is the gist of a stronger rule adopted by the European Parliament on May 26, 2005, (COM(2004)0448 - C6-0143/2004 - 2004/0137(COD)).

Prior rules and the EU Council position contain a softer standard for the confidentiality of legal services. The German Supreme Court ruled last year that the invasion of the attorney-client privilege could be unconstitutional in many instances, under the German implementation of the EU rules in §261 StGB. On May 16, 2005, German Attorney General Brigitte Zypries noted, however, that money laundering rules do not constitute a problem for most lawyers.

The Lichtenrader Notizen blog focuses on several EU parliamentary actions and also outlines differences between the EU Council and EU Parliament texts of the money-laundering measure.

Mon, May. 30, 2005

Chancelloress and her Team

.   If Germany elects Angela Merkel Chancelloress, who will become the new Attorney General to succeed Brigitte Zypries? The German newsmedia speculate that this post in the shadow cabinet will fall to Wolfgang Bosbach of the CDU party or possibly Guido Westerwelle of the FDP.

Enhanced International Enforcement

.   Belgium, Spain, France, Holland, Luxembourg, Austria and Germany agreed on May 26, 2005 to enhance cooperation efforts in the international enforcement area. The Prüm Agreement permits preventive information exchange, for instance relating to travel plans of soccer hooligans.

The agreement authorizes direct cross-border access to DNA, finger print and vehicle registration data. A press release of the Berlin department of justice reports more details. The agreement requires transformation into the laws of the participating countries to which the original parties invite other European nations.

Thu, May. 26, 2005

New Diet: Substantive Discontinuity

.   The surprise elections in Germany generate much discussion of the legality of chancellor Schröder's call to have the president disband the federal diet, Bundestag.

The Sartorienfelder blog examines an important issue that arises with the end of the current diet: What will happen to the legislation currently in progress?

When a new Congress comes into town, new legislation begins with bill number 1. Washington is surprised when a new Congress enacts major legislation quickly, as happened this year with S.5, the Class Action Fairness Act.

By contrast, certain legislation can survive elections in Germany, under the right conditions, which Sartorienfelder explores. The key principle is sachliche Diskontinuität, substantive discontinuity. This rule is the opposite of the Periodizitätsprinzip, the principle of periodicity found in Art 69(1)(1) of the federal constitution, author Uwe Tetzlaff explains, and not based on the constitution. It belongs to the procedural rules of the legislative body and constitutes a kind of constitutional common law.

Under the principle, certain legislation that has passed the diet and is not halted by other bodies can survive the electoral rupture. The rule permits the upper house, Bundesrat, to ratify legislation after a prior diet has been dissolved. Like Congress, a new Bundestag is not bound, however, by prior incomplete legislative efforts.

Sun, May. 22, 2005

Elections Just Like That

CK - Washington.   After an electoral loss of his party in the state of North-Rhine-Westphalia, Chancellor Schröder would like to disband the federal diet in Berlin and hold federal elections in the fall. In the regular cycle, such elections would be scheduled for the fall of 2005.

After the failure of the Weimar Republic with its weak constitution that permissively triggered reconfigurations of the government at the drop of a hat, the German constitution now permits only a constructive vote of no confidence and provides in Art. 68 that the Chancellor may disband the diet only with the consent of the president and only in the event that the majorities in the diet render the management of the government unworkable.

The hot debate on whether the requirements have been met by a state election that does not affect the federal diet has already begun. On February 16, 1983, the Federal Constitutional Court in Karlsruhe ruled on this issue in the matter BVerGE 62,1 when it expressed grave concerns with willy-nilly calls for federal elections.

Fri, May. 20, 2005

Fear of Blogging

CK - Washington.   The German blog scene fears restrictive measures that Austria has already enacted. Effective July 1, 2005, any person publishing anything on the Internet in Austria will need to place identifying information on the web site. German law is less restrictive at this time and leaves bloggers and non-commercial writers some wiggle room. Simon's Blawg offers a number of useful links and tongue-in-cheek observations on things to come.

Apparently, Europe is resting on its data protection laurels and believes that the release of private information on web sites helps the consumer--the same consumer whom Europe requires to throw identification data to the sharks.

By contrast, U.S. Secret Service director Ralph Basham called on industry and governments world-wide to protect data from global cybercrime. At a CSIS/BSA conference in Washington on May 17, 2005, none of the government representatives, enforcement agents included, expressed concern with the anonymous use of the Internet. Quite the contrary, they appeared to uniformly support the constitutional right to free and anonymous speech.

Wed, May. 18, 2005

Disclosing Compensation

.   Today, the federal cabinet in Berlin approved a bill that will require the disclosure of management compensation to shareholders. The measure is part of the overall package to overhaul the systems of corporate governance.

Computing Child Support

.   A frequently deployed measure to compute child support obligations based on factors such as needs and ability exists in Germany in the form of a table called the Düsseldorfer Tabelle. The Düsseldorf Court of Appeals manages the table and it is referenced throughout Germany.

Based on recent adjustments by the federal ministry of justice in Berlin that will become effective on July 1, 2005, the table has been amended and published with an explanatory press release.

The German Wikipedia has a listing on the types of support that apply in Germany. Zeitschrift für das gesamte Familienrecht offers links to the current Düsseldorf and Berlin tables. Treffpunkt-Eltern lists a number of computational aides for various domestic relations issues, including alimony and child support.

Tue, May. 17, 2005

Musical Fishing Expedition

CK - Washington.   A purported copyright owner of musical titles requested, with an emergency petition, from an internet access provider detailed contact information of its customer who operates an FTP server via a domain name and a dynamically provided IP address. The access provider refused, the lower court court granted the petition, and the provider appealed it.

On April 28, 2005, the Hanseatic Appellate Court of Hamburg ruled that the music distributor has no tenable claim to such information. Factually, the petitioner had failed to establish its ownership in the music titles that may have been made accessible to downloads by third parties. Legally, the right to disclosure of customer information from access providers is limited to criminal investigations. The order of the lower court would have exposed the access provider to a criminal investigation under data protection laws.

The court of appeals found that the petitioner had failed to meet its burden of proof in several ways, but even if it had not, it would have lacked a basis under copyright law or the civil code to demand the customer data. The petitioner and the lower court misconstrued anti-piracy provisions that govern purveyors of physical goods, not alleged distributors of intangibles. A claim against the access provider for damages may exist on the basis of a claim that it contributed to the potential violations of copyright law but the facts of the case do not support a right to disclosure of data.

IT-blawg notes the decision is in line with a Frankfurt appellate ruling of January 25, 2005, docket number 11 U 51/04.

Mon, May. 16, 2005

Market for Game Tokens

CK - Washington.   On May 9, 2005, the Stade Administrative Court published a ruling in the matter 6 B 635/05 that refers to the sale on eBay of tokens for arcade game equipment. At issue was whether arcade games that operate with tokens constitute illegal gambling machines even if a player does not insert coins or receive cash winnings, and if the tokens used to operate the machines are neither sold nor exchanged for cash at the arcade.

After a detailed analysis of the legal bases that outlaw certain gambling equipment and the nature of game machines operated with tokens which offer no cash winnings, the court concluded that tokens are of a fungible nature because there is a market for them, including transactions on eBay. Cash or token--the court determined that in the end, it's the same thing when it comes to gambling laws and policy.

Fri, May. 13, 2005

Bankruptcy List

CK - Washington.   Two websites catalogue bankruptcies in Germany and offer background information, such as codes, press releases and articles. According to recent discussions among practitioners, the sites offer comprehensive information but independent verification of the data is highly recommended. Despite daily updates of the databases, important data may fall through the cracks so that, in individual cases, important information may appear to be missing or sorted in unexpected ways. The sites are Insolvenzverfahren online and insolnet.

Sun, May. 08, 2005

Expatriating Assets Illegal?

CK - Washington.   Lawyers who assist Germans in establishing a business in the United States with assets from a German business may possibly become accessories to a German crime that consists of selling or removing assets from the reach of potential claimants. The criminal provision, Vereiteln der Zwangsvollstreckung, requires an intent to defeat the satisfaction of creditors and a threatened enforcement. The sale or removal is not limited to Germany.

The threat of enforcement is ordinarily considered an imminent or, at least, highly likely, execution of a judgment that finalizes a claim raised by a creditor against a debtor. A recent Berlin judgment in the matter 8 U 160/04, issued February 2, 2005, goes far beyond that interpretation.

The Lichtenrader Notizen blog questions whether the court really meant that §288 of the Criminal Code should apply to any potential claim. On its face, the decision does not require any active pursuit of the claim by the creditor--no dunning letter, no filing of a complaint, no motion for judgment, no holding of an executable title, and no steps for the enforcement of a judgment. Vertretbar Weblawg questions the constitutionality of the decision in light of Art. 103(2) of the Basic Law.

The decision appears dangerous in that the Kammergericht-court simply assumed the criminal intent of defeating the creditor to exist. The civil court that ruled on the criminal issue as an incidental question raised in a civil matter did not analyze the intent issue in the manner a court would in a criminal proceeding. In the international context, as a lawyer advising German business on setting up business in America, I would consider this decison when German assets are being transferred to an American venture.

Sat, May. 07, 2005

No Clean Hands in Competition

CK - Washington.   Equity requires clean hands of a party that raises a claim against another party: It may not itself have violated the law. Thefirst civil devision of the Supreme Court, Bundesgerichtshof, in Karlsruhe, decided in such a constellation that German competition law does not know such a doctrine. Each claim has to be judged on its merits.

The Dr. Bahr blog notes today that the unclean hands problem is prominent in Anglo-American law. In the general German civil law, this principle is solved via the Treu und Glauben doctrine (§242) of the Civil Code. The court does not refer to the clean hands issue in its decision of February 24, 2005 in the matter I ZR 101/02 which is known as Vitamin-Zell-Komplex. The court clarified that in a suit among competitors for remedies against unfair competition, the unfairly competitive acts of the plaintiff do not rob the plaintiff of its claim for remedies against the defendants whose unfairly competitive acts harm the plaintiff. Handakte WebLAWg echoes this view.

Mon, May. 02, 2005

Medication Row

CK - Washington.   The Wall Street Journal on page B1 today reports that German Curbs on Drug Costs Rile Big Brands. The paper notes that manufacturers of pharmaceuticals fear the new and effective German reimbursement system for medications might spread to other countries. They express concern over the equal treatment for patent-protected medication and generic products of equal efficacy. The article states that health care is funded by taxation and run by the state but then turns to an example in which it mentions a private fund that sees a big drop in its reimbursement for some patented products.

The newspaper repeats the frequently-found belief that the German health care system is a tax-funded public system. Essentially, it is not because the state only requires the populace to be insured--how they are insured is a matter for the private sector. There are numerous providers to choose from.

Sun, May. 01, 2005

Rule or Exception

CK - Washington.   Sometimes, business has international issues outside of the transactional practice. For example, questions arise about a deceased employee's probate of assets located in Germany. As a service to business clients, such assistance can support the principal probate attorney who handles the domestic estate located in the United States.

In two recent cases, the ancillary administration before the German probate court set a new record. Working with decent last wills and testaments that addressed international issues, obtaining good translations by translators qualified for the German court, and setting on quick appointments with the German consul produced results in record time, measured in weeks instead of months or years.

In each of the cases, the court sent the certificate of inheritance, as requested, to both the bank holding the assets and the executor. Since processing of the German tax clearance papers had run in parallel, and the bank appears to understand these cases, the distribution of the German assets to the American estate should follow quickly.

Remarkebly, in these two cases, the probate courts in two different cities in Germany were amenable to correspondence by email which helped significantly with the time difference. At one court, the judge used email, and the staff did not have access to it, so that some communications took unconventional routes. A judge in another city handling another matter--a quite convoluted estate--also communicates by email. There, email makes a huge difference because the judge works at her desk in the court house only in the mornings, German time, and cannot be reached by telephone during American office hours. The judges deserve credit for taking the initiative in using email in international cases, especially when many lawyers in Germany express delight when they happen to reach an answering machine--also not common at the courts.

Fri, Apr. 29, 2005

New Rules to Protect Passengers

CK - Washington.   New EU and German rules to protect air passengers enter into force on April 30.2005, Attorney General Britte Zypries announced today. Minimum insurance coverages have been increased, both for victims of accidents as well as property damage. In addition, additional overflight coverage is provided for parties on the ground.

The new rules implement EU directive 785/2004 and domestic rules to further the objectives of EU directive 889/2002 and the Montreal Convention which had entered into force on June 28, 2004. New enforcement rules are to ensure the provision of coverage by carriers. More information is published at the German federal aviation agency, Luftfahrtbundesamt.

The web site of the department of justice notes that this information is copyright 2004 but that statement may be subject to an update--just as a recent press release became the subject of a retraction and the re-release today. The second press release relates to the reduction of the minimum capital requirement for a limited liability company of the GmbH type to 10,000 Euroes from 25,000 Euros.

Fri, Apr. 22, 2005

The End of Foreign Internships?

CK - Washington.   German lawyers in training with the government before their admission to the bar may train abroad for some three months at an office of their choice - in private practice, at an international organization, at an embassy or with a corporate law division. To date, interns traveled to their foreign host at their own expense. That seems fair because the elective nature of this stage of the education benefits primarily the intern, secondarily the host, and not at all the government agency which employs the intern for educational purposes.

An EU court ruling of March 17, 2005, docket number C-109/04, Kranemann v. North-Rhine Westfalia, against the German land that authorized such an intern to travel to London for an internship changes the rules. The land will have to reimburse the travel expense of the intern, the court held.

The decision may backfire. Future generations of lawyers in training may no longer receive authorization to perform internships abroad if the land authorities change the rules. And why shouldn't they? Foreign education offers no measurable benefit to the employer who is, after all, only a temporary employer until the lawyer has completed the practical training phase and passes the second exam for lawyers. A small portion of such laywers will take a job with a land; the vast majority enter private practice. It is the private sector that rewards the benefit of foreign experience, hardly ever the public sector.

Tue, Apr. 19, 2005

Plea Bargains Legal

CK - Washington.   The Senate for Criminal Matters at the Federal Supreme Court in Karlsruhe decided, en banc, that plea bargains are a legal concept despite the lack of a statutory foundation. It held that courts may not participate in the negotiation of waivers by defendants of their right to appeal.

In its decision of March 3, 2005 and its press release 58/2005 of April 18, 2005, docket number GSSt 1/04, the court noted that it may not engage in judicial activism and establish rules to sanction plea bargains in more detail. It encouraged the legislative branch to consider the value of plea bargains as a tool of criminal procedure and provide a statutory basis for its formal introduction into the criminal law.

Sat, Apr. 16, 2005

Health Care Law

CK - Washington.   Health Care is the theme of the new blog Gesundheitswesen International. It covers topics in law, controlling and lobbying. Recent legal issues include medical malpractice, rules involving abortion, decisions on contributions paid by insureds and preventive health care legislation.

Fri, Apr. 15, 2005

Rating Services

CK - Washington.   A new German blog lets lawyers share their experiences with insurance carriers for legal services. Such companies sign up customers to cover the cost of legal advice and representation in certain practice areas, such as rental disputes or motor vehicle offenses. Members of a legal mailing list recently observed an upswing in failures of such carriers to provide coverage and decided to go public with their frustration. The RSV-Blog has a number of entries, with positive experiences and, mostly, less favorable impressions of certain dominant carriers.

In a way, consumers of legal services can look at the new blog as a rating service. Perhaps we will also see ratings of other providers, including courts? In that category, I nominate a few Amtsgerichte, courts of first instance, which excel in responsiveness to inquiries from abroad or adoption of technology that helps overcome effectively the barrier of the time difference between Germany and the United States, in alphabetical order: Düsseldorf, Ingolstadt, Wiesbaden.

And how about banking? Some banks accept that foreign laws may not match those in Germany and try to be accommodating so that, for instance, an American estate would receive income information in a timely fashion for the estate and inheritance tax returns. The Raiffeisenbank / Volksbank group provides outstanding service although it is considered a bank without international flair, for the average Joe. By constrast, some of the giants in German banking have friendly personnel hampered by rigid rules that turn many an American inheritance into an administrative nightmare.

Wed, Apr. 13, 2005

Tolling Statute

CK - Washington.   Today, the cabinet in Berlin agreed to amend the tolling statute for criminal prosecutions. Currently, the statute of limitations is not tolled if a defendant moves abroad, even as the prosecution pursues extradition measures. As revised, the active pursuit of extradition requests would toll the statute of limitations. A fugitive who returns, or would be extradited, to Germany could face continued prosecution whereas current law would stop the prosecution after the expiration of the statute of limitations whether or nor extradition had been sought.

The proposed statute would next go to upper house and with its comments to the Federal Diet, Bundestag, in Berlin. When the text of the bill is published, one could determine whether it would require approval from the upper house, Bundesrat. A current guess based on the Attorney General's press release is that it will not, as Olaf Herrmann of the LobbyBlog confirms.

Tue, Apr. 12, 2005

GPS Surveillance of Suspects

CK - Washington.   Today, the Federal Supreme Court in Karlsruhe called GPS-based satellite surveillance of suspects by investigative services constitutional. In the matter 2 BvR 581/01, police had used a GPS system, and the intelligence so gathered was used in the criminal conviction of the petitioner.

The court found broad statutory language in the definition of monitoring and surveillance equipment sufficient. The language, §100(c)(I)(1)(b)StPO, is designed to allow the adoption of emerging technologies that may not have existed when the statute was drafted. The court noted that the prosecution needs to be vigilant in protecting suspects from invasive surveillance techniques that would impair their human rights.

Links to the press release and decision of April 12, 2005.

Software Service Contracts Terminable

JN - Marl.   Most business software solutions require servicing to keep pace with new developments and changing demands. However, purchasers may not forever rely on the support from software developers, the Koblenz appellate court, Oberlandesgericht, ruled in the matter 1 U 1009/04. The case before the Court affects a typical situation: A software producer sold software to a builder and signed a service contract with a right to termination and notice of three months before the end of each year. When the software company gave its notice of termination, the builder refused to pay outstanding bills, arguing that the termination was invalid.

The court did not accept the builder's argument and affirmed that the contract had been terminated. There was generally no legal basis to deny a party the right of termination, the Court held. A termination may be invalid only in exceptional cases, such as if it is foreseeable that particular maintenance work will be necessary to keep the software operational. As an example the Court gave the currency changeover to the Euro 4 years ago.

Reports in German are found at dpms, Spiegel and Heise.

Sat, Apr. 02, 2005

Proper Citation in German Texts

CK - Washington.   A note in Jones.Blog. elicits a comment with a link to the proper citation of legal material in various types of legal writings. The Mankowski proposal, Zitier- und Gliederungsempfehlungen für die Anfertigung schriftlicher Arbeiten, is not as comprehensive as the Blue Book or the Chicago Manual of Style. A key suggestion of his is to accept foreign citations as they are in the proper foreign style and never to adapt them to German rules of citation.

Fri, Apr. 01, 2005

Procedure in Germany and United States

CK - Washington.   Criminal procedure differs greatly between Germany and the United States, an analysis discovered by Streitsache blog explains. Authored by Jupp Joachimski, the presiding judge at the Bavarian appellate court, the comparative report in English under the heading of Criminal Procedure in Germany explores various legal systems. At the same site, the judge also publishes notes on his experience in assisting in the development of the legal system in Mongolia. He is also the author of several books and chapters on the education of lawyers and a handbook for judges.


CK - Washington.   The senate in Berlin, Bundesrat, recently entered the game business. On March 21, 2005, director Dirk Brouer introduced a game designed to teach youngsters the principles of federalism. Föderalion exists in a CD and an online version. The latter is now online and works, at least in Linux.

Thu, Mar. 24, 2005

German Lobby Expert

CK - Washington.   After his Washington training in legislative procedures and international aspects of lobbying several years ago, and subsequent work for German legislators in Berlin, lawyer-lobbyist Olaf Herrmann recently has begun a blog devoted to lobby issues: Lobby Blog.

The art of law making in Germany benefits from his American experience; German legislators visit Washington regularly; and Herrmann's expertise and insight in the health case and other areas of practice should provide interesting reading--at least for his admittedly biased former boss.

Fri, Mar. 18, 2005

The Swiss Banking Business

SKe - Washington.  The new edition of Das Schweizerische Bankgeschäft, The Swiss Banking Business, by Urs Emch, Hugo Renz, Reto Arpagaus, Schulthess-Verlag, 2004, informs of drastic changes in the Swiss banking and finance market since the fifth edition was published in 1993.

The Swiss legislator revised the statutory bases for banking, the National bank and investments and enacted a new Stock Exchange Act and money laundering legislation. Among other parts, the chapters on private banking and investment banking and commerce are new or substantially updated. The manual analyzes also the regulatory decrees of the federal Banking Commission.

The handbook addresses also the international environment that affects the Swiss banking system, such as the regulatory EU banking scheme and the IMF in Washington. The 964 page manual aims at providing the reader with a systematic description of the legal environment of the banking and finance markets. It is suitable as a textbook for bank management and as a reference book for economists, lawyers and judges and it also serves as a key resource from the banking customer perspective.

Thu, Mar. 17, 2005

New Batch of Supreme Judges

CK - Washington. Today, the federal election committee for the judiciary, Bundeswahlausschuss, elected several batches of justices for the various supreme courts. It chose six justices for the Bundesgerichtshof which is the supreme court for civil and criminal matters. The supreme tax court, Bundesfinanzhof, receives five new justices. Three appointments went to the supreme court for social matters, Bundessozialgericht, and two each to the supreme administrative court, Bundesverwaltungsgericht, and the supreme employment relations court, Bundesarbeitsgericht.

Links to the courts are located in the side column. The office of the Attorney General in Berlin released a press statement, dated March 17, 2005. The electors are 16 representatives of the 16 federal states and 16 appointees from the federal diet, Bundestag, in Berlin.

Wed, Mar. 16, 2005

Censorship: Internet Reporter

CK - Washington.   Today, in JungleWorld, the writer Mathias Spielkamp reports on censorship in German law with respect to links to software that are deemed illegal even in objective news reports about the existence of such software.

With the effect of maximizing legal fees under the statutory fee structure for German attorneys, a Munich law firm demanded, on behalf of eight content marketers, with a cease-and-desist order that German publisher Heise submit to a civil penalty and stop the alleged violation of the law by publishing the link to the AnyDVD software on its heise online website. Spielkamp argues in support of Heise's objection to the demand and hopes for a clarification from higher courts of the effective censorship of reporters that results from the prohibition demanded by the content vendors.

Under §95a of the copyright statute that was revised in 2003, promoting software to crack DVDs and such is illegal. The lawyers for the content industry argue that reporting on such programs equals its promotion. The lower court ordered Heise to remove the link but refused to outlaw the reporting. Heise is expected to appeal the ruling.

Kefk Network publishes a list of programs for which the same Munich law firm has issued cease-and-desist orders to various parties. The network argues that without such a list nobody can recognize software outlawed by §95a. An interview with the law firm makes the network conclude that any reporting on products involving the music and movie industry and the companies themselves has become risky. Reports on audiovisual software and hardware are also not advisable. The same is true for copy protection schemes because reports on them could be deemed irony or satire, thus promoting the opposite objective in an underhanded fashion.

Money Laundering: No Problem

CK - Washington.   The 1993 money laundering rules are not a problem for most German lawyers, including notaries, according to a study published by the Max Planck Institute for Foreign and International Criminal Law, Attorney General Brigitte Zypries declared today in a press release.

Mon, Mar. 14, 2005

Online Sale and Shipping Charge

ACP - Washington.   The Appellate Court of Hamburg, Oberlandesgericht Hamburg, decided recently that internet sellers need to cleary identify shipping costs charged to buyers on the specific product page; docket number Az. 5 U 128/04. The Court held it insufficient to merely post a link, an asterisk and the words More Info that lead to another page which, in turn, details additional shipping charges, or would force the buyer to scroll down to a legend of shipping charges.

An advertisement by a commercial Internet seller offering ISDN computer cards for 69.00 Euros triggered the dispute. Next to the product, a link labeled More Info led to shipping fees at the bottom of another page. The product page also featured an order button.

The court of appeals noted that the structure of the web site violates §1(6) of the price regulations, Preisangabenverordnung - PAngV. The site design misleads the average costumer who does not expect additional price information by clicking on a More Info link that is separate from the order button. The court believes that the costumer anticipates more technical information by clicking on an information link.

Finally, the Court ratified the common practice of posting deep links on sales sites that leads to another page with applicable price and shipping information; such designs would not mislead the consumer.

Thu, Mar. 10, 2005

Preventing Health Risks

OH - Berlin.   On March 7, 2005, the health minister of Lower Saxony, Ursula von der Leyen, said that a new law to prevent health risks, Präventionsgesetz, is needed.

As a minister of a federal state, she will lobby the federal Senate, Bundesrat, for the bill. The Senate and the Diet in Berlin would have to approve the bill for its enactment. It is on their March agenda.

The law would force preventive measures against the consequences of alcohol, tobacco and excess weight. Politicians favoring the bill argue that health care funding should contribute to the prevention of diseases.

No Refund for Radar Detectors

JN - Marl.   The purchase of radar detectors designed to avoid speed controls is immoral pursuant to §138(1) BGB (Bürgerliches Gesetzbuch, Civil Code), the German Supreme Court ruled on February 23, 2005, Bundesgerichtshof (BGH), docket no. VIII ZR 129/04. Buyers of such devices cannot claim a refund according to the warranty provisions of the BGB, because the contract is void under the statute. For the same reason the exchange of money for goods cannot be reversed under the unjust enrichment provisions of the code. §817 BGB states that claims based on unjust enrichment are barred if both parties contributed to the breach of morality.

The Court confirmed that the purchase of radar detectors amounts to the preparation of its use and is aimed at the violation of road traffic regulations, Straßenverkehrsordnung, StVO. Under §23(1)(b) StVO the use of devices in order to evade speed traps is punishable as a misdemeanor and subject to a fine. The Court's press release in German is at this link.

Sun, Feb. 27, 2005

Phantom Crime War Driving

CK - Washington.   Some German police take pride in nabbing laptop users found in public spaces--untethered to a LAN cable and suspected of accessing the Internet wirelessly. There is nothing inherently illegal about the wireless Internet but not every officer--and not only the police--understands that.

The news service reports on the story involving the Paderborn police, discusses the law and finds the police action arbitrary, thus pointing to a need to educate the authorities.

Paderborn is home to the Nixdorf Museum and used to be famous for its thriving computer industry run under the Nixdorf flagship that in its heyday employed some 26,000.

Sat, Feb. 26, 2005

Anti Spam Bill in Germany

CK - Washington.   The new German anti spam bill and legislative rationale are available at, notes m.e.p.Histo-bLAWg.

The bill would amend section 7 and 12 of the Remote Services Statute, Teledienstgesetz, of July 22, 1997, Federal Gazette I, 1870 (1997).

Blog Chasing Law Mentality

CK - Washington., a law student blog, decries the demise of the curious creatures blog. That blog is gone, replaced by a farewell note stating the reason for its end: Legal threats, apparently pending for some time, relating to an entry based on material from a news magazine, SpOn, which may mean Spiegel Online.

The comments to the closing entry reveal the views of the blogger and his readers on the underlying legal issues, ranging from freedom of speech via the German requirement of publishing personal and confidential data in a diclosure statement--colloquially called impressum--to extortion by poverty-stricken lawyers for de minimis or purely formalistic alleged violations of the laws governing remote media services, which might, and probably do not, include non-commercial blogs.

The remote services statutes conflict substantially with the data protection mentality that prevails in many European countries, including Germany. Their obvious incompatibilities with the data protection statutes does not appear to have been resolved with high-level precedent. Along these lines of thinking, commenters in Germany note that bloggers may be able to afford their publishing activities only if they can also afford a strong legal department.

For prior notes on the conflict and the disclosure requirement, which in the international context may be illegal and is violative of the American ordre public, see Impressum Blackmail, Pixel Picky, and here, here, here and here.

For a pompous threat against a pompous blogger, there is an American example.

Fri, Feb. 25, 2005

EFiling Statute

CK - Washington.   By April 1, 2005, the new statute adjusting the procedural code for electronic communications with the courts will become effective, notes the Attorney General, Brigitte Zypries, in a press release. EFiling requires the use of electronic signature cards which, in turn, are based on the statute providing for electronic signatures.

Although some software and hardware exists for the use of such signature cards and the use of the electronic signature, the system appears to be prone to mishaps and malfunctions. The DPMS blog reports on such failures, and notes in mailing lists of German lawyers also tend to give a thumbs down to the technology.

Generally, the signature card system appears to be substantially more complicated than, for instance, the U.S. Patent and Trademark Office system for simplified electronic signatures which allows for clear-text signatures such as /my name/. Such as system is, however, also open to abuse.

Sun, Feb. 20, 2005

Human Trafficking

CK - Washington.   Organized crime continues to engage in trafficking in people across borders. In order to stem the tide, new criminal provisions became effective on February 19, 2005. The new rules translate United Nations and European Union guidelines into German law, Attorney General Brigitte Zypries reports in a press release. She stressed that the Department of Justice continues to examine the need and means for combatting such crime ever more effectively.

Thu, Feb. 17, 2005

Wagner on Trademark

CK - Washington.   After a stint with the permanent German representative to the European Union commission stint, former Washington intern at Berliner, Corcoran & Rowe, LLP, Eva Wagner, is now at an IP firm in Potsdam, Boehmert & Boehmert, where she wrote this overview of the Madrid Trademark Protocol that governs the international registration process for trademarks.

Wed, Feb. 16, 2005

Remote Services and EMail

CK - Washington.   The governing coalition plans to amend again the Remote Services Statute, Teledienstgesetz, reports the muepe blog. The new amendment would fortify the existing prohibition of undesired commercial EMail, commonly referred to as spam. Based on an HIB report, muepe notes that spam erodes trust in the EMail technology which is fairly new among consumers and worth protecting.

The amendment would prohibit identity changes to the mail header and require truth in the subject line. Violations would become punishable by fines ranging up to 50,000 Euros, notes the news service of the federal diet in Berlin, Bundestag. Annotations to the current statute exist at Teledienstgesetz Onlinepraxiskurzkommentar. There is an English version of the statute at the IusComp site.

Thu, Feb. 10, 2005

Immigration Guide

CK - Washington.   The Streitsache blog found a new government blog: is an immigration guide published by the Berlin Department of the Interior. Statutes on immigration, nationality, displaced persons are linked from the main page. The site also answers frequently asked questions on German citizenship, refugee and asylum status, visa issues and permanent residency in Germany. The new presentation complements a service provided by the Federal Agency for Migration and Refugees, Bundesamt für Migration und Flüchtlinge.

Automation in Action

CK - Washington.   For the longest time, German civil procedure has had a system that allows for the automation of collection claims, the Mahnverfahren. Only in the past decade, automation with human supervision and control has taken hold. The result of the proceedings is a money judgment that benefits both creditor and debtor by reducing legal fees, as compared to the standard procedures. As a matter of law, the parties can move the simplified action to the standard procedure into the courtroom. Anke Pohle created a list of links with additional information, as the Christian Säfkens Weblog found.

Airline Duress Online

CK - Washington.   The jurabilis! blog reports of a new criminal complaint based on §240 of the Criminal Code against the owner of a domain name for having incited an online revolt against the Lufthansa airline. The basis of the complaint, which is discussed in greater detail by the Telepolis news service, is an effort in 2001 to generate an online protest against alleged profiteering from deportations.

Wed, Feb. 09, 2005

Legal Fees Annotated

CK - Washington.   Many new questions arise since the reform last year of the statute on attorneys fees in Germany. An annotation of the statute is now available online in its fifth edition at the RA-Micro E-Buch Verlag Berlin web site: Baumgärtel, Föller, Hergenröder, Houben, Lompe, RVG, Kommentar zum Rechtsanwaltsvergütungsgesetz.

Preventing Collection Problems

CK - Washington.   Shipping to Europe brings its own set of legal issues. One of them is crucial: Recognizing when customers become shaky payers. Former GALJ contributor Andreas Schnee-Gronauer, now an attorney in Flensburg, Germany, compiled a list of pointers that help suppliers identify the signals and preventive remedies for such situations.

Tue, Feb. 01, 2005


CK - Washington.   An annoying moral and legal problem arises regularly in the international probate, employment benefit and compensation area when beneficiaries of German or European payors reside in the United States and die there.

Certain compensation plans in Europe, such as those for victims of the Nazi regime, pay lifetime benefits to US persons. Then, there are pension plans funding retired employees who stayed in, or moved to, the United States. Often, such plans require annual certificates attesting to the fact that the beneficiary is alive, Lebensbescheinigung.

More often than one would assume such benefits continue to be remitted, by automatic deposit, into the bank accounts of beneficiaries who die before the next due date for such certificates. The payor does not learn about the opening of the resulting estate, in many instances, and fails to file a claim with the estate for a refund of payments made after death.

Just as often, the estate does not know about the potential claim for death benefits that may be filed with the payor and misses a deadline.

Morally, resolving the mutual claims by way of a settlement that waives the deadlines would appear to be a just approach. Whether that is legally possible depends on various factors, like laws and regulations governing the payor's plan and the state laws controlling the latitude available to executors and administrators of estates in probate.

Breaking out of the deadlock appears easiest when heirs take over the account and abscond--sometimes assuming a new identity--, or falsify life certificates, or use imposters to prove that uncle Fritz is alive and kicking. No leeway for moral or ethical approaches there.

What would seem so annoying about the deadlock? Well, legal costs would be lower without the additional complications that arise with the failure of prompt mutual notification. It is not exactly a pleasure for a lawyer to charge a good bit of fees for an international complication that could be so easily avoided. The intellectual challenge to an international lawyer is fine, on both sides of such cases, and it satisfies to help in such situations. Still, there is happier work to be had in international law.

Sat, Jan. 29, 2005

Invoicing German Clients

CK - Washington.   Last year on this day, invoicing German clients became both more cumbersome and simpler. A new guideline by the Treasury Department in Berlin condoned electronic billing via EMail and invoicing by telefax transmission--which became legal in 2002 and was improved in 2004. The same guideline establishes the requirements for the content of invoices, transmission requirements and retention rules for the invoicer. Invoices that do not meet the requirements of the guideline do not qualify as tax deductible expenses.

In the past twelve months, there have been many discussions in various lawyer fora about the specifics of the invoicing guideline. Potential insecurities in text-processed documents or PDF files can render perfectly good invoices non-compliant.

The Forum Elektronische Steuerprüfung, among others, provides additional information. Some commenters urge the use of approved electronic signatures with such invoices. EMail-billing is discouraged as non-compliant. Whether invoicing by RSS qualifies seems uncertain.

RSS-billing would appear quite feasible, both under RSS 0.9 and higher and under RSS 2 with the enclosure option. The latter would enable invoicers to disseminate encrypted invoices bearing electronic signatures. David Sklar at O'Reilly would clearly favor RSS billing over EMail invoices and makes a case for it.

Fri, Jan. 28, 2005

Spoofed Car Ad Triggers John Doe Complaint

CK - Washington.   A take-off on a German car commercial triggered the filing of a criminal complaint by a manufacturer of automobiles against the unknown author, German law blog Streitsache reports. As of this writing, a link to the video at the Gleeful Extremist site causes bandwidth problems. The complaint is based on alleged criminal glorification of violence and scorn or contempt for human life. DA Klaus Ziehe is reported to treat it as a complaint for inciting hatred, Volksverhetzung.

Thu, Jan. 27, 2005

Worst of Wursts

CK - Washington.   Some bad apples operated the Bockwurst Files until German police last night cracked the software crackers' wursthaus. German anti-piracy group GVU tracked the crackers and forced them to side-track to the United States, the Netherlands and Malaysia. Winfuture reports that the site had some 100,000 visitors daily and some 10,000 forum members. Reportedly, the site offered software as well as EBooks. At the time of this writing, its main site seems to have shut down but a site offering Bockwurst-branded CD blanks continues to operate.

Switch to Open Source Opinion

CK - Washington.   The LAWgical blog published a brief commentary on the May 25, 2004 opinion by Roman Sedlmaier, Jan Gigerich, Rechtliche Bedingungen und Risiken der Landeshauptstadt München für den Einsatz von Open-Source Software, or Legal Environment and Risks of the State Capital Munich in the Adoption of Open Source Software, written in German.

The blog summarizes the patent aspects of the opinion and concludes that the opinion finds a minimal exposure of the city to patent claims. To the extent that patent claims should affect the use of open source software, its functionality might be slightly reduced. The city could recover such functionality through licenses or replace it with unpatented equivalents.

The detailed opinion on potential legal conflicts the city of Munich, Germany, could face when moving its IT infracture to open source systems has been published at PC Jur.

Wed, Jan. 26, 2005

ISPs to Protect User Identity

ACP - Washington.   As a basic principle, an ISP is not obligated to communicate the name and the address of an Internet user who offers copyright-protected music files on the Internet for illegal downloading. The Frankfurt Court of Appeals, Oberlandesgericht Frankfurt, rejected in the today's published opinion the motion to order the publication of the name of the Internet user who had operated a music download server through a German Provider, docket number 11 U 51/04.

An ISP that provides only technical access to the Internet is exempted from examining the data streaming through its equipment. Its only obligation is to shut down the account of the user as soon as the ISP learns of illegal contents. However, under German law, an ISP itself is deemed to neither violate any copyrights nor be co-responsible for its users' actions.

A similar decision was reached by the Munich Court of Appeals, Oberlandesgericht München, in a 2004 case where the Court held that the ISP under German copyright law must not disclose the personal data of its user if there is a suspicion that the user would manage an illegal FTP server.

Sat, Jan. 22, 2005

Inaugural for Jury

CK - Washington.   The newly appointed jury members in Germany will be feted today in the Berlin Casino, Berliner Spielbank. Attorney General Brigitte Zypries noted that juries fill an important position in the legal system. Juries are equal to judges and particpate in some criminal matters. The undergo some education in the legal system. Information on the system is available at the training and general jury sites.

Tue, Jan. 18, 2005

Sanctity of EMail

ACP - Washington.   The Karlsruhe Court of Appeals, Oberlandesgericht Karlsruhe, decided a controversy between a university in Baden-Wuerttemberg and a former science employee that the purposeful filtering of EMails could be punishable under German criminal law. After the employee and the university separated in 1998 in discord, the former employee maintained close contact with former science colleagues and friends by sending EMails to accounts on the university's mail server .

By judgment published last Monday, the higher regional court affirmed in a country-wide first appellate decision on this topic that the former employee could succeed in filing criminal charges against the persons in charge at the university, docket number 1 WG 152/04, decision of January 10, 2005.

In 2003, the university had arranged for EMail traffic from and to former employees to become subject to technical filtering--without notification of either the sender or the recipient. According to the ruling, someone who suppresses electronic letters as a responsible person for an enterprise or a university server renders himself punishable under German criminal law. Filtering of EMail traffic is a violation of the secrecy of mail and letters. The opposite conclusion could solely be reached, according to the appellate court, with special justification, for example to defend against a virus attack. The court did not publish the place of the university in order to avoid impairing the preliminary investigation.

Sat, Jan. 15, 2005

Locating Courts

CK - Washington.   Need to file a complaint in Germany? Or seek the recognition and enforcement of an American judgment in Germany? Here are three tools to locate the right court:

The jusline search form;
the list and links; and
the juraconcept list of courts with web sites.

jusline offers also a tool to compute court costs and fees charged by notaries. The latter spits out fees in the former Deutsche Mark currency, not in Euros and may be outdated. It should give a very general idea of the costs.

Fri, Jan. 14, 2005

Nazi Compensation Payouts

CK - Washington.   Compensation for assets lost by Nazi victims entered a new phase yesterday, January 13, 2005, with the announcement by Swiss banks of opening new claims for their CRT-II resolution tribunal:
The Claims Resolution Tribunal is responsible for processing claims relating to assets deposited in Swiss banks by Victims or Targets of Nazi persecution prior to and during the Second World War.
The new compensation pool complements other Swiss action to disgorge assets to victims of the Nazi era who lost what they thought were safe investments in Switzerland, as well as the efforts of German and other insurers to compensate for insurance policies.

In the insurance sector, payouts through the International Commission on Holocaust Era Insurance Claims sometimes surprise beneficiaries pleasantly. While the program awakens horrible memories, the claims processors appear generous in their adjucation of claims. The analysis of potential claims and the explanation of decisions on such claims seems to be made with great precision. In case of doubt on any factual issue, the decisions favor the beneficiaries.

Some compensation offers from the German ICHEIC fund reach survivors who never expected to hear about policies that they had not been aware of. In the 1950s and 1960s, they may have claimed compensation under the laws that gradually increased the numbers of beneficiaries, the available funds and the types of claims. Based on such old claims, the holocaust claims processors appear to connect insurance policies and records of presumed policies with former claimants and contact them with offers for compensation on policies that may have been held by relatives.

Even in cases where records show that policies may have been paid out, the administrators presume that the Nazi government or other party may have illegally intervened and reaped the policy benefits instead of the insured. Hence, the administrators operate on the assumption that a recorded payout does not reduce the obligation of the compensation fund to compensate the true beneficiary of the policy. See ICHEIC document Relaxed Standards of Proof

The German portion of the ICHEIC is funded through the Remembrance, Responsibility and Future foundation. Processing by the ICHEIC is based on the German Foundation Agreement reached on October 16, 2002 between the RRF foundation, ICHEIC and the German Insurance Association. The ICHEIC releases reports on its work. The most recent statistical report is from January 7, 2005.

Wed, Jan. 12, 2005


CK - Washington.   Olaf Herrmann reflects on the health care systems in Germany and the United States in his comparative analysis Die Gesundheitssysteme von Deutschland und USA im Vergleich, published today in the articles section of the German American Law Journal.

Mon, Jan. 10, 2005

Performance Evaluation

CK - Washington.   Cheat and lie--that has long been the expectation of employers and employees in Germany under the rules for performance evaluations of departing employees. Whether fired or leaving voluntarily, an employee has a justiciable right to receive a written performance evaluation, Arbeitszeugnis, from the employer. Newer decisions entitle employees to have the employer correct an evaluation. There are earnest disputes--and case law--about whether an employer is required to state, grammatically incorrectly, his fullest satisfaction, or merely and more accurately his full satisfaction, with the employee.

The handakte blog has a few recent links to current developments and suggestions for fine-tuning an evaluation under German employment law. The janolaw web site offers such documents for purchase and download.

The bottom line with German employment evaluations is that the reader needs to take them with a clump of salt. Key words need to be deciphered and learned in order to understand the signals that have passed muster with the courts and can alert, in language covered with chocolate and whipped cream, to losers. Unfortunately, the artful deception makes it difficult for the outstanding employee to be recognized.

Fri, Jan. 07, 2005

Domain is Property

CK - Washington.   The blog analyzes the recent German Constitution Supreme Court decision, docket number 1 BVR 1306/02, of November 24, 2004, involving the ad-acta company and the domain, both held by different parties. The failure of the domain owner to raise a constitutional issue prevented the court from addressing the constitutional validity of statutes governing domain names and the possibly conflicting rights of owners of trademarks and names, but the court expressed its position that a domain name can constitute a constitutionally protect property right.

This line of inquiry may lead to clarification of the constitutionality of the injection of trademark laws, domain squatting laws and statutes protecting names into the area of domain law, especially as some courts and legislators take the position that domain names may be simply transferred to others, instead of, at most, quashing violative domain names, see Schröder, Notorious Names Override Common Names In German Domain Law; Kochinke, Execution of Judgments into Domain Names; Dardat, Recent German Cases on Generic Terms used as Domain Names.

Wed, Jan. 05, 2005

Administrative Issues for Missing Persons

CK - Washington.   The legal issues involving missing persons gained prominence with the tsunami catastrophe in South East Asia. The Federal Department of Justice in Berlin issued a press release, entitled Allgemeine rechtliche Hinweise zu den Folgen der Flutkatastrophe, on the topic today. It is intended to provide general guidance on the procedures and legal effects in such situations.

Generally, a missing person may be declared deceased for legal purposes after the expiration of one year from the event that placed the life of the person in great danger. Before such a declaration issues, protective measures for the assets of the missing person may be sought through guardianship procedures who would be authorized, for instance, to stop pre-authorized banking transactions to utilities, for services no longer needed, or subscriptions that should expire. The Department advises the life insurance carriers have expressed interest in special accommodations for the relatives of missing persons.

Tue, Jan. 04, 2005

Forced Labor Compensation

CK - Washington.   The Constitutional Court in Karlsruhe released its written decision in the forced labor matter, docket number 1 BvR 1804/03, in which it had to assess the constitutionality of the compensation program for the Nazi forced labor scheme. According to its press release, the recent global compensation program is constitutional even if it renders additional, individual claims for slave labor moot.

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