Thu, Dec. 28, 2006

Waiver and Embassy Accounts

CK - Washington.   A blanket waiver of sovereign immunity contained in the terms of government bonds marketed commercially does not affect the immunity afforded the government's diplomatic assets in Germany, the German Constitutional Supreme Court in Karlsruhe ruled on December 6, 2006 in the matter 2 BvM 9/03.

After examining American and other laws to discern the general principles of international law on the issue, the court found the inviolability of diplomatic assets paramount. A sovereign may specifically waive its immunity with respect to diplomatic assets, such as an embassy bank account. But a blanket waiver related to non-diplomatic issues does not permit the execution of judgments involving other matters into diplomatic assets.

Such a waiver may be sufficient, however, to subject the sovereign to jurisdiction and general enforcement of judgments. The matter at bar involved bonds issued by Argentina and the attempted enforcement of a Frankfurt, Germany judgment into an Argentine bank account in Berlin.

Wed, Dec. 27, 2006

Adversarial Hearing

CK -Washington.   The Federal Supreme Court in Karlsruhe applied the rules of the Human Rights Convention to German criminal procedure in lifting a criminal conviction based on a non-adversarial pre-trial interrogation of a witness.

At the investigative hearing, the examining judge removed the defendant from the hearing room after the witness expressed her displeasure at testifying in his presence. Subsequently, she failed to follow a summons to testify at the trial. Her statements procured at the hearing without confrontation by the defenant or counsel proved determinative for the conviction but was not supported by other evidence.

On November 29, 2006, the Supreme Court decided in the matter 1 StR 493/06 that the conviction violated article 6(1)(1)(3)(d) of the convention as applied to §168c of the German Statute on Criminal Procedure. The court remanded the matter to the Munich District Court for a new trial.

Wed, Dec. 20, 2006

Double Trouble Hits Spammer

KR - Washington.   Spam EMails violate various German statutes. Most commonly, a cause of action is based on the Unfair Competition Statute, UWG, of July 3, 2004, BGBl. I, p.1414, as amended on April 19, 2006, BGBl. I, p.866.

On October 25, 2006, the Karlsruhe Court of Appeals decided in the matter of 6 U 35/06 that the unauthorized usage and transmission of spam mails with true or fake addresses containing the name of a service provider not affiliated with the sender after the @ sign also violate the German Trademark Statute (MarkenG) of October 25, 1994, BGBl. I, p. 3082, as last amended on October 31, 2006, BGBl. I, p. 2407.

The defendant, a commercial provider of pornographic websites, promoted his services through EMails. Plaintiff Microsoft owns internet service Hotmail, which owns a registered European Community trademark pursuant to Article 9 (1)(a) of the Council Regulation (EC) No 40/94 of December 20, 1993 on the Community Trade Mark.

The plaintiff had already prevailed in a prior legal dispute between the parties in this matter based on the UWG. However, the appellate court held that the prior decision does not bar, as res judicata, plaintiff from suing defendant again because the facts and circumstances of the new case based on trademark violations are different. Although the court previously granted injunctive relief concerning the transmission of spam without prior consent of the addressees, it had not considered the trademark issue.

The court held that the unauthorized use of the name Hotmail and the fact that defendant competed with plaintiff in the same market, constitute a violation of trademark rights under the Trademark Statute, MarkenG, the German implementation of the European Regulation. They compete in the same market because the trademark was registered for the purpose of online communication services and internet advertisement. Accordingly, all cause of action is determined by sections 125b no. 2, 14 (6) and 19 of the Trademark Statute.

The decision means that the spammer can be hit with the remedies under both statutes. The unfair competition results in an injunction. The trademark violation forces the spammer to an accounting. Plaintiff can then specify the damages for which the spammer is to compensate it.

Wed, Dec. 13, 2006

US-German Crime Cooperation

CK - Washington.   The German government approved a set of mutual cooperation and legal assistance agreements with the United States in a bill that implements bilateral agreements and E.U. agreements with the United States. The German text includes the agreements as well as explanatory notes and notes verbales.

The subject matter ranges from extradition and judicial assistance under 2003 bilaterals to 2006 supplementary bilaterals on mutual cooperation and extradition and the E.U. agreement with the United States of June 25, 2003. The Berlin Justice Department provides introductory notes in a press release of December 13, 2006.

In extradition matters, the new arrangements are set to improve the protection of data over the prior situation under the 1978 extradition agreement. The update also reinforces the German--and nearly world-wide--position that extradition requests will not be honored in cases where capital punishment may be imposed.

Mon, Dec. 11, 2006

Berlin AG on Web 2 plus

CK - Washington.   The Berlin attorney general moved to Web 2.0 and now is two steps ahead of it, says its press release of December 11, 2006. The site't forget to enter the archaic www or it won't open--offers content in English, including information such as: You may be able to find more details on individual laws by checking the website of the Federal Ministry whose remit covers the regulated subject matter.

Sat, Dec. 09, 2006

Agent Lehmann Censorship

CK - Washington.   German law protects the privacy of not so famous persons by limiting the publication of names and pictures in the media. The famous enjoy protection in intimate matters. As a result, the press covers many events involving the not-so-famous by using initials instead of full names. For similar reasons, many media, including blogs, redact names of parties, lawyers, witnesses and judges out of opinions published by courts despite the fact that the proceedings are public and opinons are released Im Namen des Volkes, i.e. in the name of the people.

Another big step toward censorship involves publisher Verlag 8. Mai GmbH, its newspaper junge Welt and a federal counter-terrorism agent known variously as Gerhard L. and Lehmann. The latter has become famous because of parliamentary investigations, TV appearances, a book and media reports.

On December 7, 2006, the Berlin district court held hearings on two matters, docket numbers 27.0.1139/06 and 27.0.722/06. They concerned the issue of whether or not the paper had incorrectly reported that Gerhard L. had been identified, with a certainty of 90 percent, as secret agent Sam who reportedly interviewed German-Lebanese dual citizen Khaled el Masri at the Salt Pit detention facility in Afghanistan.

Gerhard L., identified in reports as a First Criminal Chief Commissioner, 1. KHK, at the Federal Criminal Agency, Bundeskriminalamt, is said to have asked the court and the press to report his assertion that he is not Sam. Lehmann is thought of by many as a German James Bond.

According to Junge Welt, the court ordered the paper not to report on the hearing, while agreeing with the paper that it had not improperly reported on the identification issue. The court lifted a TRO against the paper but enjoined it from covering the hearing. Junge Welt and other media, including bloggers at the hearing, consider the court's attempt to restrict reports on such hearings a massive attack on the freedom of the press.

The decision raises important issues. Clearly, Lehmann has achieved notoriety. Generally, and under the German rules governing the media and the famous, reports on public matters involving him should remain uncensored. Arguably, a low-level official whose ministerial functions push him into the limelight retains the privacy expectations of a not-famous person.

Lehmann's interaction with the media may have diminished that expectation, however, so that the ruling would appear inappropriate. To the extent there is any truth to published allegations that the court ordered Neue Welt muzzled to protect itself from criticism, the decision seems outrageously wrong.

Thu, Nov. 30, 2006

American Firms Pay Premium

CK - Washington.   An Azur overview of salaries paid associates in Germany-located law offices points to premiums paid by America-based law firms. The fall 2006 compensation table list both base and maximum salaries.

There are small German firms with better deals but the Azur compilation is limited to larger firms. The German firms on the list may be better able to gauge the local market. The table includes domestic firms with excellent talent and superb attractiveness that pay at the low end of the scale.

Two factors may account for the premiums: Foreign firms don't match the stability of local firms, and their outlook on partnership may appear less comforting.

Sun, Nov. 26, 2006

Germany to Control .Info

.   In the past, German courts applied German civil law relating to the protection of names proper, and competition and trademark law, to the .de domain. Thus, a city could insist on the domain unfortunate departure from the well-established first come, first served principle.

On September 29, 2006, the federal Supreme Court in Karlsruhe swept .info domains into its jurisdiction. In the matter I ZR 201/03, the court barred the owner of the domain from its use, finding an infringement of the city of Solingen's name under §12 of the civil code, Bürgerliches Gesetzbuch.

Fortunately, the court in a dictum distinguished the .de and .info top level domains from both other cTLDs and TLDs such as .biz and .pro which it believes not to cause confusion when used for names involving governmental communities, as the Bahr blog also notes. Berlin, MD seems to have lost out to Berlin, Germany which owns the domain. But a few international struggles could arise as a result of this decision.

Sat, Nov. 25, 2006

Abstracts of Book Reviews Legal

CK - Washington.   The Frankfurt District Court ruled on November 23, 2006 in the matter 2-03 O 172/06 on the legality of commercially provided abstracts of book reviews under German copyright law. It found in favor of the web publisher of abstracts who based his summaries, including rare verbatim excerpts, on paper-based and web-based material published by a national German newspaper, reportedly Frankfurter Allgemeine Zeitung.

The court noted that the abstracts did not infringe the paper's copyright. Any quotes were so minimal to not even raise to the level of fair use and permitted citations. That is true even where the reader would understand the gist of the published reviews and where key expressions and ideas were conveyed. In addition, the court found the abstracts to increase the likelihood of readers purchasing the paper and web publications. The paper had argued the abstracts would result in fewer purchases of its offerings, both traditional and web-based.

According to defendant Perlentaucher's report, a second complaint by Süddeutsche Zeitung has also been dismissed. The papers may appeal. They continue to charge some illegality in Perlentaucher's business model while others comment that they fail to grasp the promotional value provided the publishers by abstracters. The fronts resemble those in the music and movie fields.

Support for Unexpected Child

CK - Washington.   Press release number 160/2006 issued by the German Supreme Court in Karlsruhe on November 14, 2006 in the matter LG Waldshut-Tiengen--2 O 70/04 ./.OLG Karlsruhe--13 U 134/04 covers the report on the news today of a ruling holding the physician financially responsible for the support of a child conceived despite an implanted contraceptive, VI ZR 97/04.

Fri, Nov. 24, 2006

Transfer of Prisoners

CK - Washington.   On November 24, 2006, the second chamber in Berlin, Bundesrat, approved a bill to amend two statutes on the transfer of foreign prisoners to their home countries. The amendments facilitate the return of sentenced persons so that they may resocialize in their home environment and to permit the execution of sentences of convicted persons who flee the jurisdiction.

In the latter case, the sentencing jurisdiction would traditionally request the extradition of the criminal. Such a request would often be futile because many countries do not extradite their nationals. They may be inclined, however, to execute the foreign sentence. One of the new rules would assign the execution of a German sentence to the foreign authority, without requiring the consent of the criminal, for its enforcement in the home country.

The German amendments apply the principle of mutual recognition of judgments in criminal matters and implement the Council of Europe's Additional Protocol to the Convention on the Transfer of Sentenced Persons of December 18, 1997. The convention assures the prisoner that the sentence be executed abroad on terms not worse than in Germany. An English discussion of the framework is found in a recent UK parlimentary report.

Fri, Nov. 17, 2006

German Blue Laws

CK - Washington.   Blue Laws at the state level in Germany evaporate. Long gone are the days when the Sunday dress came with strict closing hours and all you could buy between Saturday noon and Monday morning was Kaffee und Kuchen or a draft beer.

Effective next Tuesday, all of Northrhine-Westphalia will be able to shop till they drop--around the clock, §4 Gesetz zur Regelung der Ladenöffnungszeiten, Statute to Regulate Shop Opening Times, of November 16, 2006.

Update: Berlin is ready, too, Berlin Blawg reports.

Thu, Nov. 16, 2006

Single Fax is Illegal Spam

CK - Washington.   Spam laws are tough in Germany. A case and desist demand sent in response to an unsolicited fax to a business made it all the way to the Supreme Court in Karlsruhe. On June 1, 2006, the court decided that such a fax is illegal and the business may demand the cessation of such transmissions as well as the reimbursement of legal fees.

Essentially, an unsolicited fax constitutes an illegal intrusion as well as interference in the orderly conduct of business. A single intrustion is sufficient to establish the need to prevent further intrusions.

The fee determination is based on the traditional rules for cease and desist orders in German law. The written decision in the matter I ZR 167/03 has now become available for download.

Sat, Nov. 11, 2006

Cute Female Lawyers Wanted

CK - Washington.   A help wanted advertisement by a law firm smartly hightlights issues under the new German non-discrimination statute. The ad starts with a search for exceptionally pretty, dynamic female lawyers, 25 to 35 years of age, with accent-free English and top grades, then asks: How many violations of the law would such an ad contain? If you know the answer, apply with us for a job in the employment division, recommends the firm.

Sun, Nov. 05, 2006

Bloggers' Self Defense

CK - Washington.   The business of abusive cease and desist demands in Germany may become less profitable. Occasionally, bloggers report on such demands, organize opposition and refer affected colleagues to experienced counsel.

A new step is a community blog, Abmahnung. In its introduction, it warns that the publication does not render legal advice. Instead, it is structured to collect information on abusive incidents and to aggregate sources of abusive demands.

In particular, it hopes to empower bloggers with few readers to alert the public to abuses of the legal instrument. Under German law, a cease and desist demand may be combined with a demand for attorneys fees. If ignored or opposed, the demand may grow into full-fledged litigation and generate additional legal fees.

Much empirical evidence points to inappropriate demands by lawyers or others who issue serial demands and treat the instrument as a means to generate legal fees. Bloggers see the instrument as a step toward censorship of unflattering content, as has become evident in the Parteibuch blog.

Surprisingly, there is little opposition to the chilling notion that bloggers may be subject to the intrusive identification requirement colloquially known as Impressum which gives abusers, including criminals, easy access to vital personal information of web publishers. Most bloggers publish such information out of fear of cease and desist demands, whether or not they are covered by the statutory requirement.

Sat, Nov. 04, 2006

Skull and Bone Shots

CK - Washington.   Netzeitung provides an update on the photo scandal involving German troops in Kabul, Afghanistan. The scandal has been the main news topic in Germany for the past 10 days. Nobody understands why soldiers would pose with skulls and bones found in a pit near Camp Warehouse.

On November 4, 2006, a speaker for the umbrella organization for Protestant churches in Germany speculates that society at large may be to fault: Symbols of death have become so pervasive that they may affect the minds of soldiers in stress situations. There may be lack of preparation of the troops: Based on their training, they show respect for religious instutions in the host country. By contrast, they fail in this matter of plain decency for which society should have prepared them.

A speaker for the military noted that the legal issues are complicated. To the extent German law applies, photographs displaying bones of unidentified persons may not necessarily violate criminal code section 168 StGB that outlaws the desecration of the dead. Two soldiers have been suspended and others are under investigation. There are plans to honor the unknown dead with a memorial to be built by Germany in Afghanistan.

Stop the Impressum Craze

CK - Washington.   The Supreme Court in Karlsruhe displayed common sense when it scrutinized the scope of statutory obligations to publish identifying information on certain web sites. On July 20, 2006, it rebuffed the pixel pickiness of some courts and numerous commentators who had fostered a spirit of collective fear of cease and desist orders in owners of web sites.

German law, like that in some other countries, requires certain commercial web site owners to publish detailed identifying information. Over the past several years, a business developed among a segment of lawyers who descend like sharks on all sorts of sites and claim violations of the law--and substantial legal fees--for the wrong or incomplete placement of owner identification. In 2003, a Munich court even counted the pixels and number of clicks necessary to reach the owner's contact, about or FAQ page.

The Supreme Court put an end to such abuse. In the matter I ZR 228/03, it held that web sites need not be structured so that the visitor would inevitably, in the course of a transaction, come across the identifying information. In addition, the statutory requirement of the remote services statute, Teledienstegesetz, and the BGB-InfoV statute, is met even if the visitor may need to navigate through two links to reach the information, Anbieterkennzeichnung, which is colloquially known as Impressum. The court inserted into its decision a screenshot of the web site at issue.

Tue, Oct. 31, 2006

German Sovereignty Lost in 1945?

.   Did Germany's surrender in 1945 trigger its loss of sovereign immunity so that Germany may be sued in American courts under the Foreign Sovereign Immunities Act? A German American heir to German tax debts failed to convince the United States District Court for the District of Columbia of this proposition, in the matter Harold William Gutch v. Federal Republic of Germany, case number 05-2338, decided on July 27, 2006. In addition, the court found that neither NATO-SOFA nor other alleged bases fell within the exceptions to the FSIA.

Thu, Oct. 19, 2006

Fees for Spam to Lawyer

CK - Washington.   There is some debate in Germany over whether or not lawyers may demand legal fees for the prosecution of their own claims. Generally, matters of minor significance which would not ordinarily require the engagement of an attorney do not trigger an award of legal fees. An October 16, 2006 decision by the Bautzen court examines these rules in the context of spam sent to a law firm.

In the matter 22 C 0492/05, EMail spam reached a law firm which sent a cease and desist demand to the spammer and requested the reimbursement of its statutory legal fees under traditional theories for damages to their business. The spammer refused to pay.

The Bautzen court explained that spam sent to a law firm is particularly damaging because lawyers, possibly more than others, must examine every mailed item. The simply act of sending even a single EMail into the junk pile is fraught with risk.

Therefore, a single spam item may justify immediate defensive action by a lawyer. While drafting a cease and desist demand may not always be the most difficult task, the challenge of researching the underlying facts--such as identifying the true originator or beneficiary of the spam--must be taken into consideration when weighing whether or not the matter requires legal skill and justifies legal fees.

In this instance, the Bautzen court held that the required skill and presented task did warrant a lawyer's expertise and awarded the firm legal fees. These are to be computed on the statutory basis of a value in dispute, assessed here at 5,100 Euros.

Tue, Oct. 17, 2006

Relief for Victims

CK - Washington.   South Africa and West Germany did right by the victims of human rights crimes, World Court Judge Thomas Buergenthal indicated in his acceptance speech on October 17, 2006 at the International Law Center of Case Law School in Cleveland. Awarded the 2006 Frederick K. Cox International Law Center International Humanitarian Award for Advancing Global Justice, Buergenthal examined comparative advantages of criminal prosecutions and truth commissions in response to human rights crimes, drawing on empirical information from places as varied as El Salvador and the Balkans. The center holds the video of the instructive, and moving, lecture available for download.

Tack on German Law Degree

CK - Washington.   A German law degree, Magister Iuris, to complement a foreign law degree is available at Göttingen University Law School. Handakte WebLawg links to the source and mentions an application deadline of January 15, 2007.

Sat, Oct. 07, 2006

Law Blog Hoax?

CK - Washington.   The owner of JurBlog announced on October 7, 2006 the suspension of his legal blog for fear of attacks by Islamic militants. He observed that the action may increase visits to his site. He blamed the statutory requirement of ownership identification for commercial websites and its uncertain application to blogs for endangering his ability to express himself. The article reads somewhat like a satirical piece.

Mon, Oct. 02, 2006

Corporate Data Online

CK - Washington.   Beginning on January 1, 2007, corporate data from corporate registers will be available online through the central location, the Berlin Attorney General announced on September 28, 2006.

In addition, the registration and filing of corporate data with corporate registrars in Germany will transition to electronic formats. Periodical publication requirements will be met electronically, as well, thus obviating the need for publication in newspapers and other print media. These steps implement the E.U directives 2003/58/EG and 2004/109/EG which address issues of corporate governance, transparency and corporate law.

Tue, Sep. 26, 2006

Translation of Code Withdrawn

EE - Washington.   After posting the German Civil Code in English on September 6, 2006 the Department of Justice in Berlin has withdrawn the translation from their website. A notification on the department's website cites flaws in the translation as the reason for its removal.

A number of blogs have commented on the difficulty in translating the German Code due to the style and nature of the language used, as well as the inherent difficulty of translating a piece of law, whose meaning is open to interpretation even in its original language.

Whether or not pulling the translation, however flawed, was a good idea is up for debate. Clearly, the German government must use caution when releasing an official translation, as such a translation presumably holds the same weight of law as the original code. However, making the translation available, even with flaws, provides an important and useful starting point for non-German speakers to navigate the German code.

Sun, Sep. 24, 2006

Seize and Keep Fruits of Crime

CK - Washington.   The federal government enacted legislation to retain seized illicit gains of criminals. Currently, German criminal law provides that victims may claim such gains but if they fail to, the seized assets will eventually return to criminals, unless other asset forfeiture rules apply.

The bill announced by the Berlin Attorney General would entitle the state to retain the seized assets in the event that victims do not step forward. The enhanced forfeiture rules would also provide victims with a priority claim to such assets, thus disadvantaging other creditors.

The diet, Bundestag, approved the bill on June 29, 2006, and the second chamber, Bundesrat, consented in its 825th session on September 22, 2006. The statute, entitled Gesetz zur Stärkung der Rückgewinnungshilfe und der Vermögensabschöpfung bei Straftaten is set to enter into force in 2007.

Sat, Sep. 23, 2006

Conference on German American Law

CK - Washington.   The association of German American lawyers, Deutsch-Amerikanische Juristen-Vereinigung in Bonn, Germany begins its annual meeting and conference on October 27. Through October 29, 2006, DAJV offers presentations and workshops on issues in legal relations between Germany and the United States, some in German, many in English. The agenda for the Berlin program is available on its website.

Thu, Sep. 21, 2006

Combat Computer Crime

CK - Washington.   A bill to combat computer crime is available for download from the Attorney General's office in Berlin. A press release of September 20, 2006 explains that the bill closed the last loopholes for crackers in the German Criminal Code.

I have never seen final solutions in computer law since I began to follow it in the 1970s, although much has been promised, not only in Germany. The new promise has already triggered derisive comments but a detailed analysis of the bill may surprise us. The bill is to align German criminal law with a European Union agreement on computer crime.

Wed, Sep. 20, 2006

Link to General Terms Controls

CK - Washington.   A link to the general terms and conditions proposed by a web vendor is sufficient for their incorporation by reference into a contract, the Federal Supreme Court for civil matters in Karlsruhe decided in the matter I ZR 75/03 on June 14, 2006.

Mon, Sep. 18, 2006

Code by Lawyers for Lawyers

CK - Washington.   Not so fast--the German civil code may be available in a new, government-sponsored English translation but don't rely on it unless you are trained in that aspect of German law.

That's the warning renowned lawyer-translator Margaret Marks of Transblawg offers on September 17, 2006. In that context, she publishes from the introduction to a comparative analysis of laws an excellent overview, in German and English, of the logical structure of the Bürgerliches Gesetzbuch.

The lack of such structure, in particular the factoring out of the general part, Allgemeiner Teil,--similar to structural elements in functions and procedures in programming languages,--bewilders German lawyers in foreign legal systems while foreign lawyers find unexpected traps in the German code. Marks suggests that the translation, like the original statute, requires background knowledge.

Thu, Sep. 14, 2006

EMail Published, Protected Like Letter

CK - Washington.A Cologne court called the publication of an EMail a violation of personality or privacy rights of the sender. The matter 28 O 178/06, decided on September 9, 2006, involves an EMail from a corporation that the recipient apparently forwarded to a party which published it on the Internet. The court refers to the EMail as an exhibit, without elaborating on it in the decision. Therefore, the exact route of the EMail to the publisher is unclear.

A discussion at the Berlin Blawg turns on whether the decision is a tragic mistake because the court addresses the privacy issue but fails to address the option of a sender to encrypt EMail. The discussion centers on the ability to publish unencrypted EMail because it is not protected like a postal letter. Rather, unencrypted EMail is like a postcard. The discussion does not yet address the expectation of privacy on the part of the sender.

Thu, Sep. 07, 2006

Federal Reform

KS - Münster.   In June and July 2006, both houses in Berlin Bundestag and Bundesrat, passed federalism reform legislation with the necessary two-thirds majority.

The reform became effective on September 1, 2006. It is the largest set of amendments to the constitution in the history of the Federal Republic of Germany. The amendments focus on realigning the correlation between the federation and the states concerning legislation and the states' autonomy in administration.

Wed, Sep. 06, 2006

Key German Statute in English

CK - Washington.   As of September 6, 2006, the German Civil Code, Bürgerliches Gesetzbuch, is available in a government-sponsored English translation at A press release from the Berlin Attorney General's office introduces the code and explains its significance in German law.

The Civil Code is a key statute in Germany that extends beyond contracts, torts, property, family and estate and probate matters into intellectual property, corporate and commercial matters.

Tue, Sep. 05, 2006

Bad Luck for Investors

TS - Washington.   Since 2004, the prosecutors of Bavaria, the largest state of Germany, have closed several criminal investigations of investment fraud on the basis of the statute of limitations contained within the Bavarian press statute, Art. 14 Bayerisches Pressegesetz, BayPrG.

German prosecutors usually apply the five-year statute of limitations in § 264a of the German criminal code, Strafgesetzbuch. Art. 14 BayPrG provides for a six-months statute of limitations for offenses committed by means of printed works, such as an investment prospectus, without exceptions. The press statutes in other German states exclude all kinds of commercial advertising material from the six-month-term. Munich attorney Ralph Veil calls it a competitive advantage in Bavaria for crooks.

As Börse Online reported in August 2006, the application of Art. 14 BayPrG is highly controversial. Hardly anybody knows why Bavarian prosecutors believe that the state law should trump the federal statute. Now, the Bavarian Attorney General plans to instruct the Bavarian prosecutors to apply the five-year statute of limitations. It also plans to refer a suitable case to the federal criminal supreme court, Bundesgerichtshof, to decide the supremacy issue.

Tue, Aug. 29, 2006

Termination of Contracts

TS - Washington.   On July 7, 2006, the Bundesgerichtshof, BGH, the German supreme court for civil matters, decided in the matter III ZR 145/05 how to interpret a contract without a termination provision.

The decision concerns an oral agreement between a physician and a hospital about the occupancy of hospital beds. The ruling applies, however, to all kinds of oral or written contracts which fail to provide for their termination.

In such cases, the court must construe the contract and establish a reasonable term for the notice. The parties' interests and the type of contract control the outcome. Considering the long-term business relationship in the contract at issue, the Supreme Court held that six months notice is reasonable.

Sun, Aug. 27, 2006

BBQ Litigation Avoided

CK - Washington.   Security cost the state of Mecklenburg-Vorpommern some $15 million when President Bush recently visited Chancellor Merkel on July 13, 2006.

State President Harald Ringstorff threatened the federal government with litigation to collect the expense for the most expensive barbecue the world has seen. reports that the federal government now averted litigation over the responsibility for the cost by suggesting that the state submit an itemized bill to justify a reimbursement.

Sat, Aug. 26, 2006

Ticket by Cellphone

.   10 years ago, purchasing items by cellphone became a hot topic with the rise of Nokia smartphones. Now, the technologies involve Java and MMS, and large companies join the fray. The most recent offering is from the main railway company in Germany, Deutsche Bahn AG, which began selling tickets to passengers by transmitting them to their cellphones through the MMS protocol. Since there is no writing requirement in German law for most everyday contracts, the transaction seems simple from a legal perspective.

But there are numerous hidden issues. When does the contract come about? The user needs to register with Bahn, then apply online for a ticket and finally provide payment information. At this point, the passenger's main contractual obligation appears to have been performed. By contrast, Bahn's primary performance obligations appear to begin at this point.

Bahn needs to transmit the ticket to the passenger's cellphone--which the passenger, as a secondary obligation, needs to keep active--and provide transportion. Before Bahn does so, however, it requires the passenger to perform additional secondary obligations: Display the cellphone to the conductor and present an ID or credit card. Otherwise, Bahn reserves the right to step back from its obligation to transport the passenger.

There appear to be a number of potential missteps--an empty battery being one, a retransmission to another cellphone another. Beyond technical missteps, a number of legal mishaps lurk. Presumably, Bahn has learned from the experience of smaller players over the past decade. Yet, Bahn's general terms and conditions ask for a printout--a requirement not currently matched by the capabilities of many cellphones.

Fri, Aug. 25, 2006

Protecting Generic Domains

CK - Washington.   The Chain Hoist ruling confirming the protection of generic domain names in German law is now available.

On March 7, 2006, the Dresden appellate court had decided in the matter 14 U 2293/05 that a chain hoist maker may not demand that another party release the kettenzü domain. It found no infringement under trademark law because the generic and descriptive term for chain hoists, Kettenzüge, does not qualify for a trademark.

In addition, the generic use of the domain name does not constitute a violation of competition law. The unavailability of the domain name to a chain host manufacturer operates merely as an indirect disadvantage on the plaintiff's business. Despite the circumstance that the domain owner offered to sell or lease the domain, the court found no cyber-squatting, domainrecht reports.

Wed, Aug. 23, 2006

Abuse in Hourly Billing

CK - Washington.   While lawyers in Germany decry the government's plan to open up legal services to body shops while not at the same time granting domestic relations lawyers the right to open, say, abortion clinics, another important development affecting the economic viability of legal services falls out of attention-grabbing headlines. law blog in Düsseldorf published an informative analysis of a Düsselfdorf appellate ruling of June 8, 2006 in the matter 24 U 196/04.

The court questions hourly billing practices based on 15-minute intervals. A one-minute activity could generate a fee for 15 minutes. A fifteen-fold markup is excessive or abusive, the court reasons. Therefore, such billing methods are improper. The August 21, 2006 article by Elbo Richter wonders whether one minute billing intervals will be in our future and triggers a raft of comments, some insightful, some confused.

Tue, Aug. 22, 2006

Body Shops to Provide Legal Services

CK - Washington.   One of the examples in the Attorney General's catalogue of legal services to be provided by non-lawyers is the body shop that helps its customers collect from car insurers. The catalogue enumerates various examples of activities to be permitted under a statute to replace the Legal Consultation Statute of 1935, Rechtsberatungsgesetz.

With the overhaul envisaged by the Berlin administration, the future Legal Services Statute, Rechtsdienstleistungsgesetz, the range of professionals and non-professionals offering assistance in legal matters in Germany will broaden significantly.

The Attorney General's announcement is not yet published at the department's web site. There is, however, a correction stating that the press release published August 22, 2006 through the listserver contains the wrong date, considering that the bill will be discussed by the administration only tomorrow.

Wed, Aug. 16, 2006

Dance into Conflict

TS - Washington.   On August 11, 2006, the Karlsruhe Court of Appeals decided in the matter 14 U 45/04 that a physician's duty to treat medical records confidentially protects patient identities. The case is also discussed at Recht & Alltag.

The plaintiff participated in a rehabilitation program when one of her co-patients injured her during group dancing therapy. She wanted to sue him for damages but did not know his full name. Therefore, she sought from the the hospital the disclosure of the patient's identity. The appellate court affirmed the lower court's denial of the plaintiff's right to such disclosure.

§203(1)(1) of the German criminal code, Strafgesetzbuch, prevents a physician from disclosing any information received in one's professional capacity. The court held that this section also protects a patient's name and identity. As for the conflicting interests of the two dancers, the physician has to balance them. In this case, the potential defendant's interest in his information being treated confidentially takes precedence over the physician's secondary obligation to help the plaintiff sue another patient for damages.

Fri, Aug. 11, 2006

Exposing Plagiarism

.   A frequently published author under suspicion of plagiarism may not seek the protection of the courts from probing journalists, the Karlsruhe Court of Appeals decided in the matter 14 U 90/06 on August 4, 2006.

The author had asked the lower court for an injunction barring reporters from contacting personnel at the university research clinic where he worked. The appellate court confirmed the Freiburg im Breisgau court's refusal of an injunction.

The author's privacy interest and constitutional right to the unfettered pursuit of his work and profession must be balanced against the constitutional protections for a free press. The latter include not only reporting but also investigations, the court explained, to the satisfaction of some German bloggers.

Thu, Aug. 10, 2006

Impolitical Interest

CK - Washington. An exchange of notes that addresses many points of a future agreement between nations but is silent on certain aspects of the agreement cannot remove the unspoken matter from the realm of justiciable issues under the act of state and related doctrines, the United States Court of Appeals for the Third Circuit held in Eli Gross et al. v. German Foundation Industrial Initiative et al., docket number 04-2744, on August 3, 2006.

The dispute involves the issue of interest payable by German industry on its delayed contribution to the Nazi reparation settlement fund. An exchange of notes had addressed many issues but not the type of interest disputed here. Backfilling the void with an amicus curiae brief from the German government did not help, the court ruled.

The decision represents a defeat for German industry in that the legal peace it sought has become elusive as a result of the failure to properly address every conceivable issue in the exchange of notes before and after the conclusion of the reparations deal. In the event that the government of the United States should address the issue in its future communications with the courts, the new ruling leaves open the door to the issue becoming non-justiciable.

Fri, Aug. 04, 2006

State Liable for Template?

CK - Washington.   The German civil code provides consumers with a right of revocation of mail orders. Vendors must properly notify consumers of their eligibility to exercize that right and the procedures therefor. The revocation is subject to time limits expressed in §355 Bürgerliches Gesetzbuch, BGB. The deadline does not begin to run when the vendor's notification does not meet the statutory requirements.

A regulation published by the Berlin Department of Justice, Schedule 2 to §14 BGB-InvoVO, contains a template to help vendors comply with the law. The Berlin Blawg alerts mailorder vendors to a Halle District Court ruling which finds the template to contain so many mistakes that its terms may not be enforced--with the result that the cut-off dates never become effective. As a result, consumers may rescind mailorder transactions long after vendors believed they were off the hook.

Since the government-provided template has long been considered defective and the Halle court sets a precedent for its wholesale invalidation, Berlin Blawg wonders whether vendors may turn to the government for compensation where their reliance on the template caused the unanticipated rescission of consumer contracts long after the expiration of deadlines set in good faith.

Mon, Jul. 31, 2006

Digital Court Day

CK - Washington.   German and French law bloggers will meet in Saarbrücken on September 13 through 15, 2006 where the law school group Free Internet Project meets for the annual digital court day. An invitation with project information is available on the site. Law blog authors will be able demo their work at the associated fair.

Sun, Jul. 30, 2006

Sidewalk Off-Counsel Legal

CK - Washington..   On the sidewalk outside an abortion clinic, a religious group offered counseling to patients. Based on evidence of great restraint, the Munich District Court declined to outlaw the action. The groups had not attacked or defamed the physician. Undercover observations by police found no unusual sidewalk behavior for two weeks. With other facts, the court might have decided differently.

The press release site of the Landgericht München does not address the matter but Alltag & Recht has a note, and a protestant news agency offers some detail in a press release on the July 25, 2006 decision.

Sat, Jul. 29, 2006

Police Shoot

CK - Washington.   On July 25, 2006, a German policeman used a gun - and that is so remarkable that Lichtenrader Notizen Walfischbucht devotes a blog entry to it. In Washington, the act would seem routine: Called to a domestic quarrel, the policeman confronted a person with knife in hand and walking toward him. Fearing for his life after a refusal to surrender the weapon, the policeman shot the perceived attacker in the leg.

Thu, Jul. 27, 2006

Book not to be Published

.   Esra, a book by Maxim Biller, may not be published, the Federal Supreme Court for Civil Matters in Karlsruhe ruled on June 21, 20065 in the matter VI ZR 122/04, as Simon's Blawg notes today. The publication violates the privacy and publication rights of the title character in intimate areas. The court found the publication to impermissibly affect the constitutional rights of Article 2(1) which the court balanced against the freedom of art that is protected by Article 5(3)(1) of the Basic Law. The author recounts an actual personal relationship with the title character in a manner that renders various affected inviduals recognizable, the court observes. It found the book to lack artistic creativity except where it adds untrue defamatory matter that it projects onto the main characters.

Thanks to the update in the comments, we know now that the decison is known as Esra I. A 2006 development is Esra II, involving claims for damages and stimulating renewed debate in Germany about constitutional freedoms for the arts.

Tue, Jul. 25, 2006

Corporate Governance Code

.   On July 25, 2006, the Berlin Department of Justice announced its publication of the revised corporate governance code, Deutscher Corporate Governance Kodex, in the electronic federal register, eBundesanzeiger. The code is not visible there through the search function but it is available today the website of the government commission that developed it. That site displays also prior versions.

Mon, Jul. 17, 2006

Law Blogs in Germany VII

CK - Washington.   The number of law blogs in Germany has grown so that they represent a variety of styles. In a newer trend, some blogs shout exasperated remarks at the criminal law system or legal services insurers while others attract readers by incorporating the dramatic urgency reminiscent of Bild Zeitung without offering much substance on legal issues.

Among blogs with useful legal information and a proven record of performance, you find Walfischbucht, Lichtenrader Notizen, Recht & Alltag,, arbeitsrechtblog and Obiter Dictum which today morphed from Saefkens Blog to a new format.

For earlier biased views in this series, click here. JuraBlogs, a reliable metablog engine, maintains a very extensive overview of active German law blogs.

Sat, Jul. 15, 2006

Prayer for Relief: Mobbing

CK - Washington.Mobbing is a popular German term and apparently unrelated to the English word. Search engines point to unsatisfactory personal interaction in the area of employment relations and elsewhere, similar to harassment, bullying, or causing others hurt feelings or a bad hair day. Relief for some such conduct should be sought in a church, drugstore or beer joint, but some perceive mobbing as so hurtful that they seek refuge in the law.

In a current discussion on legal boards, there is general consensus that mobbing does not constitute a defined cause of action. While some lawyers consider mobbing generic actionable conduct for which relief in the form of cease and desist orders may be available, others require that any claim for relief be based on the specific conduct which may, or may not, be actionable under traditional notions of torts and contract. A tort of mobbing or Tatbestand Mobbing is too imprecise to allow for legal relief.

Tue, Jul. 04, 2006

Manager on Sideline

CK - Washington.   A second-level manager won €25,000 in damages from his employer after it sidelined the plaintiff for two years and then assigned him non-managerial duties. The Baden-Württemberg Court of Appeals for Employment Relations, Landesarbeitsgericht, in south-western Germany, deemed the acts of the company a breach of contract. The employment agreement contemplates managerial services. A press release by the court on the decision of June 12, 2006, docket number 4 Sa 68/05, is mirrored in several German law blogs.

Mon, Jul. 03, 2006

Non-Compete Clause Upheld

CK - Washington.   Under German law, non-competition clauses require ongoing payments for their validity beyond the term of employment. In a recent matter involving such a provision that lacked a specific mention of consideration, the Federal Supreme Court for Employment Matters, Bundesarbeitsgericht, docket number 10 AZR 407/05, upheld the clause because the carefully drafted language of the contract validly meshed with the statutory scheme. As a result, the statute supplied the compensation scheme.

The Recht und Alltag blog discusses an unusual factual aspect in that case: The employee had been terminated during her probationary period. On June 28, 2006, the Erfurt court held that the provision, Wettbewerbsverbot, had become effective and the employee was owed half of her salary for the term of the non-competition clause.

By contrast, the employer had argued that the provision had not come into force because the employee had failed to reach the end of the trial period and to become a fully-vested employee. The plaintiff had held up her end of the bargain and avoided competition with the defendant after her termination.

Sun, Jul. 02, 2006

Compromise on Discrimination

CK - Washington.   On July 7, 2006, the Federal Council, Bundesrat, may approve the Diet-passed legislation to incorporate the EU antidiscrimination directives into German law. The Council had worked with the Diet on a compromise after it critized the initial draft as partially overbroad and partially too narrow.

The Berlin Department of Justice announced in a June 29, 2006 press release that the bill had passed the Diet. The release also explains which of the many EU directives will be ratified and the statutes affected by the ratification.

Sat, Jul. 01, 2006

My Vet is on Board

CK - Washington.   Audit clauses in license agreements and corporate by-laws often permit revenue audits, or representation of shareholders on the board of German corporations, by professionals subject to statutory confidentiality rules. Law-Blog examined what that really means and concludes that the customary contract language leads to uncontemplated results.

Such provisions cover—in addition to lawyers, CPAs and tax advisors—professions such as marriage counsellors, veterinarians, employees of health and life insurers, physicians, social workers and possibly the clergy. Law-Blog suggests that the intended professions be more precisely defined in such clauses.

Wed, Jun. 28, 2006

New Bankruptcy Rules

CK - Washington.   The Berlin cabinet resolved today that new rules should help going businesses survive bankruptcy, the Department of Justice announced in a press release dated June 28, 2006. Involuntary liquidation should be the last option.

A major change in the German insolvency law relates to a procedural issue: Dissolving the cartels of attorneys available as bankruptcy trustees. These cartels are widespread in the court districts and prevent new appointees from being included in lists from which the courts choose trustees in bankruptcy.

In the future, the lists will be open while the courts may continue to apply quality criteria similar to those recently upheld in the District of Columbia in Pamela H. Roth et al. v. Rufus G. King, III.

Mon, Jun. 26, 2006

Legal Advice for €190

CK - Washington.   A press release dated June 26, 2006 sells as progress new fee rules for attorneys and clients. The Berlin Department of Justice advises of the rules governing non-litigation consultations. Beginning July 1, 2006, lawyers and clients may establish the terms of engagement without reference to minimum requirements contained in fee statutes. The parties should put fee agreements in writing. If they fail to do so, the fee for an initial consultation should be €190; follow-up consultations would cost €250, both exclusive of VAT.

Fri, Jun. 23, 2006

Bar Admission in Germany

.   Germany has very few lawyers compared to the Washington, DC, ratio. The requirements, procedures and costs of the admission of domestic lawyers to the German bar is the topic of a helpful guide at beck-aktuell, a website operated by legal publisher C.H.Beck. Much of the material should come in handy for foreign lawyers considering an admission in Germany. Credit goes to another blog that recently pointed to this March 2003 guide.

Thu, Jun. 15, 2006

Internet Survives Düsseldorf

CK - Washington.   The buzz on German blogs is the newest decision on the liability of forum providers for visitor comments. The well-informed Berlin Blawg publishes the Düsseldorf Court of Appeals decision in the matter I-15 U 21/06 of June 7, 2006.

Unlike the Internet-hostile Hamburg court, discussed here, the Düsseldorf court took a rational approach on January 25, 2006, and again now. While the Hamburg rule may require forum owners to pre-screen comments before activating them, Düsseldorf limits the liability of forum owners to the statutory take-down requirements after receiving notice of improper entries.

In the instant case, the owner of the forum had removed offensive matter promptly after receiving notice and had also attempted, albeit unsuccessfully, to block comments from certain IP addresses. The court determined that the provider is subject to the Tele Services Statute and does not benefit from the §11TDG privilege for third party liability under Supreme Court precedent, in particular the decision of March 11, 2005, I ZR 304/01, MMR 2005, 668.

The court noted that third party liability in German law is conceptually restrictive and requires, among other factors, a violation of existing monitoring obligations. Such obligations do not mean a general and pervasive duty to search and screen for offensive matter because that would lead to the end of the Internet as we know it.

Fri, Jun. 09, 2006

From Ivory Tower to Castle of Law

.   A classic event for lawyers is what and call a recruitment stop for recent German law graduates: Nine large firms vie for the attention of castle-spotters at a joint affair arranged by Lawyers@work 2006, e-fellows and access personnel agency at Montabaur castle for September 15 and 17, 2006.

Wed, Jun. 07, 2006

Return to Society

CK - Washington.   Juvenile and adolescent criminals are the target of a Berlin proposal of June 7, 2006 to meet the resocialization requirements established by the Constitutional Court on May 31, 2006 in the matter 2 BvR 1673/04, 2 BvR 2402/04. Generally, juveniles are those under the age of 18. Adolescents are persons under 21 who have been determined not to have matured to adulthood and are treated similarly to juveniles for their crimes. The federal government is under pressure to meet a court-imposed deadline of early 2008 to establish new statutory and factual conditions that are more likely than present rules to return such delinquents to society and a life without crime.

Tue, Jun. 06, 2006

Holding Members Liable

CK - Washington.   Members of certain associations are not liable for the debts of the entity but the Dresden Court of Appeals found an exception. Münster attorney and non-profits expert Gunnar Pietsch discusses in detail the rules that the court applied to an association engaged in business operations.

The bottomline is that members pay if the assocation can't and the members had an opportunity to prevent management from using the association for for-profit purposes. As Pietsch writes, Piercing the Veil of Associations will be possible. Conversely, extra caution is suggested when using a non-profit entity.

Mon, Jun. 05, 2006

Forum Shopping in Germany

CK - Washington.   A criticism of the American legal system frequently heard in Germany is the seemingly limitless number of fora eager to hear cases against out-of-town defendants. The same nirvana for plaintiffs exists in Germany, under case law conceived by some courts, for Internet torts. If the offensive matter reaches the court's PC, jurisdiction exists. A recent decision severely and sensibly limits, however, this incentive to forum shopping.

As reported by the Rechtblog, the Hannover District Court on April 28, 2006, decided in the matter 9 O 44/06 that Internet torts require a nexus to the forum. A plaintiff who alleges harm based on a publication on the Internet may not sue the defendant just about anywhere in Germany or the world. Such forum shopping would violate the constitutional standard requiring a statutory forum, as expressed in Art. 101 of the Constitution.

The forum must be one that reflects the limits of the arbitrariness test, Willkürverbot, inherent in §32 of the Code of Civil Procedure, see also Rützel, Wegen & Wilske's excellent English-language introduction into German civil procedure in Commercial Dispute Resolution.

In the case at bar, the court required for it to affirm personal jurisdiction under §32 ZPO a local effect that results within the court's district because of the tortious Internet publication. Lacking such nexus, the court dismissed the complaint. published the decision in German.

Fri, Jun. 02, 2006

Tax Treaty Protocol

CK - Washington.   On June 1, 2006, Berlin witnessed the signing of a protocol to the income tax treaty between the United States and Germany. The treaty dates back to 1989. The amendments reflect tax policy adjusting to globalization, such as the elimination of withholding of source-country dividends and the prevention of treaty shopping.

The United States Department of the Treasury published on its website the Protocol amending the Income Tax Convention between the United States and Germany and the Joint Declaration accompanying signature of proposed Protocol.

In German, the Blickpunkt Recht & Steuern blog provides a summary of major changes. The German text of the protocol is available at the Bundesministerium der Finanzen website.

Mon, May. 29, 2006

Small Corporation Simplified

CK - Washington.   On May 29, 2006, Berlin Attorney General Brigitte Zypries announced measures to simplify the incorporation and maintenance of the standard corporate form for small business, Gesellschaft mit beschränkter Haftung, GmbH. The capital requirement will be reduced to 10,000 Euros of which 5,000 Euros must be paid in initially. In the future, GmbHs may locate their operational headquarters outside of Germany, just as foreign limited liability companies may have their seat in Germany.

The transfer of shares will become easier, and entries in shareholder lists will assure transferees of clear title. Currently, setting up such limited liability companies takes too long, by comparison with other nations, because administrative approvals must be obtained when the company is formed. The new rules will decouple permit procedures from the incorporation.

The draft bill is now on its way to various other departments for comments and should ultimately be sent to the Berlin Diet for discussion and potential approval. There is general consensus in Germany that the law on GmbHs needs reform and simplification. The current timeline could lead to an effective date of the revisions in early 2008.

Fri, May. 19, 2006

Plea Agreement Deal

HG - Washington.   On May 19, 2006, Berlin Attorney Brigitte Zypries issued a press release on a bill to allow plea agreements in the German criminal procedure. The Supreme Court, Bundesgerichtshof, had defined the parameters of such agreements for which the Code of Criminal Procedure, Strafprozessordnung, fails to provide a legal basis or rules. The bill is supposed to ensure legal certainty.

The Department of Justice lists the following criteria for Absprachen in its release: Courts are to encourage the parties to make themselves available for negotiations and other communications. Courts may disclose their assessment of the matter early. Only the sentence may be the subject matter of a plea agreement. A waiver of an appeal is prohibited. The court must always educate the defendant on the consequences of the agreement. Finally, any negotiations must take place in public and, therefore, in the court room.

Thu, May. 18, 2006

Immigration Compared

HG - Washington.   On May 16, 2006, the German non-profit political Friedrich Ebert Foundation arranged a discussion about immigration policies in Germany and the United States. Lale Akgün, member of the Federal Diet, Bundestag, and California Congresswoman Loretta Sanchez presented very personal perceptions of the current legal situation in the two countries. WTOP Radio presenter Mark Plotkin moderated the event.

The speakers focused, among other things, on different citizenship requirements. While a person born in the United States automatically becomes an American citizen, a person born in Germany is a German citizen only if a parent is German or has lived for at least eight years in Germany, §4 of the Citizenship Act, Staatsangehörigkeitsgesetz, StAG. Immigrants may acquire German citizenship through naturalization, §§8 to 16 StAG. On May 5, 2006, the ministers of the interior of the states, Länder, compromised in tightening the requirements for naturalization. In Germany, dual citizenship constitutes an exception. By contrast, Ms. Sanchez appeared to consider dual citizenship somewhat less unusual in the United States.

In addition to these rules, §4 of the Residence Act, Aufenthaltsgesetz, provides for three different types of German residence permits to afford immigrants several rights that make citizenship dispensable in many cases.

Tue, May. 16, 2006

D&O Liability in Banking

CS - Cologne.   Anne Lehder gives an overview of, and introduction into, the liability of bank directors and officers in German law. In Director and Officer Indemnification by Bank Under German Law, Anne Lehder first outlines the liability of bank directors who are not members of the board of the bank. She shows that in this event only employment law applies, which exempts the director or officer from any claims in case of mere negligence.

Dr. Lehder explains that this general principle of employment law does not apply to bank directors or officers who are formally appointed as executive board members or supervisory board members. For these executives, a broad range of different liability laws apply that are by far stricter than the comforting employment liability law. The article briefly describes the statutes and provisions applicable to the respective legal entities bank directors or officers may work for. The article also distinguishes between the various sorts of claimants that may have claims against directors or officers.

The topic of her article could not be more up-to-date. The article is published at the same time when Deutsche Bank and its former bank director Rolf Breuer face a significant claim for damages brought by former media mogul Leo Kirch--a novelty under German law. The article therefore provides a very interesting overview of the various legal statutes that impose liability upon bank directors and officers and invites every lawyer--be it a German or American--to read further about this developing and more and more serious part of German law.

Tue, May. 09, 2006

Ebay Offer is Promotion

HG - Washington.   An offer by a seller at an Internet auction is advertising, the Cologne Court of Appeals decided on November 23, 2005 in the matter 28 S 6/05, published May 2, 2006 at

The plaintiff had listed a software program that circumvented copy protection mechanisms of CDs. Before the auction ended, he withdrew the offer. Then he received a cease and desist letter from the defendants, eight record companies, to refrain from such sales. The focus of the dispute was whether the plaintiff violated §95a of the Copyright Act, Urheberrechtsgesetz and owed damages.

§95a, as amended in September 2003, prohibits the sale and promotion of such programs. A definition of advertising exists only in an European Union directive and relates to commercial expression for the promotion of sales. The Court ruled that private advertising is sufficient for copyright purposes, although it failed to explain why an auction listing supports a sale. By deeming plaintiff's activities advertising, the Court found a violation of §95a to have occurred.

Thu, May. 04, 2006

Liability for Advice

CB - Washington.  Customers bear the risk of investment advice which later proves to have led to an incorrect decision, according to the Supreme Court, Bundesgerichtshof, which decided the matter XI ZR 63/05 on March 21, 2006. An adviser's liability is limited to evaluating forseeable factors known at the time the advice is rendered.

Timeline for Action

CK - Washington.   The Berlin Ministry of Justice issued a press release on May 4, 2006 which details the action plan for the implementation of European nondiscrimination provisions. These rules affect many areas of the law and the implementation is as complex as the European rules. The coalition government has now agreed on a bill which the press release explains in great detail, only in German.

Anonymous Defamation?

CK - Washington.   Two German decisions on the liability of forum owners for objectionable comments left on web sites may lead to more users in Germany moving questionable discussions to American servers. Although forum providers enjoy some insulation from liability for activities of their users under the Tele Services Statute, Gesetz über die Nutzung von Telediensten, Teledienstegesetz, of July 22, 1997, as amended, two courts recently increased the liability of forum providers.

The Düsseldorf court on January 25, 2006, 12 O 546/05, lowered the requirements for take down notices and the Hamburg court on December 2, 2005, 324 O 721/05, required pre-emptive measures from forum owners, such as screening submissions before publication.

Evidence points to many German users' belief that anonymity in the United States encourages the use of American servers for defamatory activities, such as the insults hurled at a Diethelm Goeckel at Recent discussions in German internet forums actively advocate the use of servers located in the United States.

U.S. servers as a safe harbor? That seems unrealistic. Recently, Germany and the United States enhanced their cooperation in criminal matters and provided for expanded mutual legal assistance. Moving criminal activity to the United States is unlikely to be a successful strategy for those who wish to spread misinformation on the Internet. Foreign criminals are not welcome anywhere.

Wed, May. 03, 2006

Hate Speech on the Net

CB - Washington.   On May 1, 2006, the Friedrich Ebert Foundation organized a panel discussion about racist extremism on the Internet and its growing appeal to young users. At the Washington forum, the panel comprised author Daniel Levitas, Kenneth Stern of the American Jewish Committee, Dietmar Molthagen of the Friedrich Ebert Foundation project against racist extremism and Stephen Shapiro, legal director of the American Civil Liberties Union.

According to Molthagen the rightist potential in Germany lies between 10% and 15% of the population. Of the some 1000 hate speech sites, 80% are hosted abroad, mainly in the United States. The number remains constant, while the sites are getting more professional. Some portals provide mail order services, market places for music and clothing with fascist themes as well as means to mobilize political parties and to improve international networking among extremists.

In Germany, freedom of speech is subject to constitutional limitations. §130 of the Criminal Code, Strafgesetzbuch, outlaws approval, denial and belittlement of crimes in Nazi Germany. §86a prohibits the use of Nazi symbols. §86 penalizes the distribution of propaganda material by unconstitutional organizations.

Enforcement of these provisions forced more than 500 rightist extremism websites offline. By contrast, the United States Court of Appeals for the Ninth Circuit refused the enforcement of European judgments against websites containing hate speech in Yahoo v. LICRA et al.

German law contains blanket prohibitions for specific content, whereas American law tends to outlaw inciting speech restrictively, for instance at theaters and schools. The panelists acknowledged the differing approaches which they did not appear to be able to reconcile.

Fri, Apr. 28, 2006

Cooperation USA - Germany

HG - Washington.   United States Attorney General Alberto R. Gonzales and German Minister of Justice Brigitte Zypries signed on April 18, 2006 two supplementary agreements to the Germany-United States extradition treaty of 1978 and the Mutual Legal Assistance Treaty, MLAT, of 2003. These agreements implement two treaties between the European Union and the United States that are supposed to conform and modernize the cooperation in law enforcement.

The extradition supplement adds rules for data protection and the simplification of the procedure of authentication and transmission of extradition files. Germany will still not extradite, however, persons who may receive the death penalty in the United States.

The supplement to the MLAT, which covers issues such as seizures and service of process, allows the formation of joint investigative teams, the identification of holders of bank accounts and the video examination of witnesses and experts.

Thu, Apr. 27, 2006

Grap That Domain

CK - Washington.Rechtblog mirrors a Munich press release on a judgment, 33 O 15828/05, of April 24, 2006 under the headline LG München: Domaingrapping muss nicht geduldet werden. The decision revolves around the issue of whether parties may re-use lapsed domain names previously used others for damaging, unrelated business purposes.

Some registrars adopt such domain names for new pages filled with advertising, including profitable links to sex sites. The district court determined that such recycling may violate the competition law and expose such parties, in this case apparently a Munich individual, to damages and restraining orders.

The press release uses the term domain grabbing which the court distinguishes slightly from the recycled use. It is unclear whether the term grapping comes from the judgment or elsewhere.

Plants Due Diligence

CB - Washington.   On February 14, 2006, the Supreme Court in Karlsruhe, Bundesgerichtshof, decided a conflict relating to the plant protection statute, Sortenschutzgesetz, of December 11, 1985, BGBl. I, p.2170, as amended on January 21, 2005, BGBl. I, p.146 et seq. The dispute involves the defendant`s importation of components for plants that violate plaintiff`s intellectual property in such plants which had been registered with the Bundessortenamt, the agency in Hannover charged with registering material covered by the statute.

The court upheld in the matter X ZR 93/04 the decision of the Karlsruhe court of appeals wich prevents the defendant from marketing plants named Melanie and Amethyst and awards damages to the plaintiff for the infringement of its rights. The defendant had purchased reproduction material from France and the Netherlands for use in Germany without verifying whether the product is registered there.

The court explained that a merchant trading in foreign products bears the burden of determining possible violations because there is the possibility that foreign vendor may not have determined the existence and extent of domestically registered rights. The domestic importer and reseller may not merely rely on the fact that a foreign vendor makes the material available for export sales, and the importer must perform some due diligence with respect to domestic intellectual property rights.

Tue, Apr. 25, 2006

Links Remain Legal

CK - Washington.   Internet links to web sites published by others remain legal in Germany, and the mention of names disclosed on such other sites is also legal, the Berlin district court confirmed in its April 20, 2006 judgment in the matter 27 O 925/05.

Former GALJ author, Washington intern and Berlin attorney Sebastian Wolff-Marting, counsel for the winning defendant, published the decision in the Berlin Blawg.

The outcome is well-earned and the grounds are well-founded in the copyright law and the law of names. Any surprise is limited to plaintiff's belief to have had a case which became known as the Mein Parteibuch dispute.

Release of Nazi Archive

CB - Washington.   Berlin Attorney General Brigitte Zypries announced on April 18, 2006 in Washington, D.C. the complete release of one of the most significant data collections on human rights violations in contemporary history.

The archive in Bad Arolsen consists of 15 miles of shelves with up to 50 million documents. A large part of them was contributed by allied forces after their liberation of concentration camps. The files relate to more than 17.5 million Nazi victims, but the number is inexact because there is no index.

So far only surviving family members and few others received access to the archive. The German government refused other inquiries because of privacy concerns. The data includes police records, homosexuality, diseases and ethnic affiliation. Germany decided to release the data after the cooperating nations established sufficient measures to protect the confidential data.

The archive had been established by the Arolsen tracing service, an institution of the Red Cross, founded after WWII to help surviving Nazi victims find relatives. Arolsen is funded by Germany and governed by an international board of eleven countries. By the end of 2007, the material will become available to researchers in the eleven nations.

Mon, Apr. 24, 2006

Happy End in Freude

.   As reported on April 24, 2006 by, the Freude appeal confirmed the dismissal of the criminal charges against Alvin Freude who used links on his satire web site which the prosecution deemed offensive to the anti-Nazi statutes that limit free speech in Germany. In Berlin Blawg, former GALJ author and intern, now a link litigator in Berlin, Sebastian Wolff-Marting, calls the April 24, 2006 decision in the matter 1 Ss 449/05 by the Stattgart Court of Appeals precedential.

Fri, Apr. 21, 2006

Perfume Trademarks

HG - Washington.   According to Section 19 of the German Trademark Statute, Markengesetz, a trademark owner may demand information from any infringer of the trademark about the origin and distributor of the infringing goods. The Supreme Court of the Federal Republic of Germany, Bundesgerichtshof, decided in its Parfümtestkäufe decision of February 23, 2006, docket number 1 ZR 27/03, that this rule applies to goods shipped outside but distributed inside the European Union.

The plaintiff, a German perfume distributor with trademarks such as Joop and Jil Sander, had distributed goods outside the European Union, mainly in the Asian and U. S. markets. The defendant, another German distributor who maintained no business relationships with the plaintiff and thus was not permitted to use the trademarks purchased these goods, had sold and stored them in Germany.

The Court ruled that the defendant must reveal not only information about the activities giving rise to the infringement, but also about acts similar to such activities. In addition, the Court clarified that the plaintiff's claim to force the destruction of such goods if (a) the infringement cannot be corrected otherwise, and (b) the enforcement of this claim is not unreasonable, normally depends on the identification of the injuring party's degree of liability.

Thu, Apr. 20, 2006

Massively Chilled Speech

CK - Washington.   In a critical April 19, 2006 analysis, Vertretbar Weblawg predicts the regional splintering of approaches to the issue of civil liability of Internet communication forum providers for comments by visitors. The author examines the decision known as Mario D. v. Heise by the Hamburg district court of December 2, 2005 in the matter of 324 O 721/05 on the liability of Heise, one of the most important German sources of news.

The Hamburg court is known for an aggressive interpretation of its jurisdictional reach and a frequently misunderstood ruling on liability for links. To its credit, the court preserved Google's limitation of liability for Adsense wordings in the matter 312 O 324/04 on September 9, 2004 when examining the issue of contributory liability.

Vertretbar argues, inter alia, that the liability of the forum provider imposed by the Hamburg court is limited to forums with editorial content. Further, other courts are likely to confirm the existing bar to liability for providers, leaving parties aggrieved over user comments with recourse to the party causing the harm, as the law is written. Visitors adding harmful content to user forums would be responsible, and forum providers would remain insulated from liability until they receive knowledge of infractions caused by users. Law-Blog concurs and believes the Hamburg court uses a Catch 22 rationale to arrive at its results.

The recently published Hamburg ruling has caused fear among German providers of forums and blogs. They read the decision to require a pre-screening of user comments and entries for illegal or harmful content. Since the owner of such a service is hardly in a position to determine what is defamatory or true and whether a statement may be anti-competitive, the effect of the decision is to broadly freeze internet speech. The court considers a forum like Heise's a danger that imposes a heightened duty of care:
Ein allgemeiner Grundsatz, dass derjenige, der eine besonders gefährliche Einrichtung unterhält, wegen deren Gefährlichkeit von eventuellen Haftungsrisiken freigehalten werden müsste, existiert nicht; die Tendenz geht im Gegenteil vielmehr dahin, dass derjenige, der eine Einrichtung unterhält, von der wegen ihrer schweren Beherrschbarkeit besondere Gefahren ausgehen, einer verschärften Haftung unterworfen wird (s. z.B. für den Bereich des Schadensersatzrechts die Fälle der Gefährdungshaftung wie §7 StVG, §833 Satz 1 BGB, §84 Arzneimittelgesetz).
In addition to so comparing an Internet forum to the dangers of vehicular traffic and pharmaceuticals, the court examines the option of such a dangerous forum to scan what it calls the gigantic number of expressions:
Eine Einschränkung der Verantwortlichkeit der Antragsgegnerin für Inhalte, die über das von ihr eingerichtete und unterhaltene Internetforum verbreitet werden, ergibt sich auch nicht daraus, dass es der Antragsgegnerin aufgrund der - zu ihren Gunsten unterstellten - Vielzahl der Einträge in die von ihr unterhaltenen Foren unmöglich wäre, alle Einträge vor einer Freischaltung - wie dies vor pressemäßiger Verbreitung von Äußerungen grundsätzlich erforderlich ist (s. etwa BGH, Urt. V. 18. 12. 1962, NJW 1963, S. 484 f., 485) - durch einen im Sinne von §531 BGB verantwortlichen Mitarbeiter prüfen zu lassen.
In other words, even if a forum were to hire a pre-screener who might not be able pre-screen every single entry from users, liability cannot be limited. If the decision were to hold up on appeal, the Hamburg court would hold a dangerous mix of extraterritorial jurisdiction and substantive expansion of Internet liability for speech.

The Hamburg bar to free speech in Germany would be on a massive scale not seen since the founding of the federal republic and the fall of the Wall. More than likely, decisions from Hamburg would violate the ordre public in many countries in cases where the recognition and enforcement of a Hamburg judgment were to be sought, thus rendering such judgments internationally ineffective.

Tue, Apr. 18, 2006

Secrets Under Constitution

CK - Washington.   Constitutional protection extends to trade secrets in matters before the administrative law courts, the Constitutional Supreme Court in Karlsruhe decided in a telecom case, docket number 1 BvT 2097/03, on March 14, 2006, which it discusses in press release number 27/2006 dated April 5, 2006.

In litigation, competitors had requested an inspection of files from a rulemaking proceeding before the regulatory agency, Bundesnetzagentur für Elektrizität, Gas, Telekommunikation und Eisenbahnen. Deutsche Telekom AG provided redacted and unredacted copies of business documents relating to its cost structure. The lower courts differed on the disclosure requirements. The German top court, Bundesverfassungsgericht, ruled that Article 12 Section 1 of the Constitution, Grundgesetz, protects the approach taken by the telecom provider.

The decision may impact discovery in matters before United States courts. There is precedent that discovery here may have to respect certain foreign data protection laws. Such precedent tends to relate, however, to third party data. By contrast, the matter at issue appears to involve only proprietary data of the party from whom disclosure was sought.

Sun, Apr. 16, 2006

Tax Treaty and AMT

SSL - Washington.   The U.S. Court of Appeals for the District of Columbia affirmed the Tax Court's decision in the matter of Peter M. Haver v. Commissioner of Internal Revenue Service, No. 05-1269, on the relationship of the AMT and double tax avoidance treaties. Haver contended that as his German tax liability exceeded his U.S. tax liability he was under no obligation to pay federal income tax.

Instead, Haver relied on Article 23(1) of the Convention Between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation of August 29, 1989. Art. 23(1) states that subject to the limitations of U.S. law, U.S. citizens paying taxes in Germany shall be allowed to take a credit for their foreign tax burden against their U.S. income tax obligation. Haver claimed that the Treaty superseded the minimum rules of 26 U.S.C. §59(a)(2)(2000) which stated until the end of 2005 that U.S. citizens could only off set up to 90% of the Alternative Minimum Tax using their foreign tax credit.

The appellate court concluded on April 11, 2006 that the last-in-time doctrine does not apply in this case. Rather, both the Treaty and the prevailing U.S. law are to be viewed simultaneously. Additionally, §59(a), which dates back to 1969, would have been recognized by the negotiating parties as one of the provisions of preexisting law overriding the Treaty under the language of Art. 23: subject to the limitation of the laws of the United States of America. Some other double taxation treaties to which the United States is a party track identical language, such as the UK-USA Double Taxation Convention and the USA-France Income Tax Treaty.

Sat, Apr. 15, 2006

Damages for Pain and Suffering

HG - Washington.   Klaus Weber compares in his article of April 13, 2006 Schmerzensgeldansprüche in Deutschland und in den Vereinigten Staaten von Amerika the legal principles for damages for pain and suffering in Germany and the United States of America. He explains the basic rules, function, types and assessment of these damages in both legal systems and cites some precedent.

The article closes with a comparison of the two approaches and arrives at the interesting conclusion that the formerly significant gap in the assessment of these damages in Germany and the U.S. appears to close.

The article is written in German but should be interesting also for American readers. For deeper insight, the author provides a selection of helpful literature in German and English.

Thu, Apr. 13, 2006

WiMax Oversubscribed

.   The German regulatory agency responsible for the allocation of WiMax broadband frequencies, Bundesnetzagentur, is unable to allocate frequencies to all comers. There is significant overlap in the frequencies and areas petitioned for. The Heise news agency reports that applicants received an agency letter dated April 11, 2006 expressing a need for a revised procedure to avoid frequency conflicts. The current procedure closed with a deadline for applications on February 28, 2006, to be followed by consultations with industry and frequency allocations. Heise understands that the agency will now request applications for specific regions that avoid overlaps.

Tue, Apr. 11, 2006

Rules for Rats

CK - Washington.   Berlin Attorney General Brigitte Zypries published a press release on April 11, 2006 with a proposal to reward witnesses who materially support investigations into crimes, Kronzeugen. The current law is considered ineffective, open to abuse and too limited in the types of crimes covered. The proposed changes to the Criminal Code, Strafgesetzbuch, will extend to all crimes, increase penalties for false accusations, and limit eligibility for reduced sentences to disclosures made before the criminal trial opens. The press release includes details and examples, in German.

Sat, Apr. 08, 2006

Paper on Lawyer

.   Rechtblog reprints an excerpt from a press release of April 7, 2006 by the Karlsruhe Court of Appeals regarding the matter 14U124/05 decided the same day. The case involves the issue of damages that a law firm partner demanded for a newspaper article on the arrest of his partner in a criminal matter.

While the court found plaintiff's personality rights violated, the paper did not report falsehoods or anything significant that could hurt his expectation of privacy. Any residual harm to the plaintiff could have been avoided if the newspaper had not omitted some clarification of the fact that the plaintiff was not the subject of investigation.

A clarification would not have made so much of a difference, however, that the omission could be measured in financial terms. Therefore, plaintiff recovers nothing.

Tue, Apr. 04, 2006

No Deal

.   Is there a German word for the plea bargain? Transblawg researched and found an appropriate term offered by Prof. Herberger in a recent overview of the German law on plea agreements for criminal proceedings: Mauschelverfahren. Considering that the German criminal codes do not provide for plea agreements but criminal practice has evolved to recognize the sense of such undertakings, Herberger's suggestion is perfect.

The term deal has become common in German legal usage, however, to denote a criminal accommodation. So, if a tourist, especially a lawyer, from a German-speaking country arrested in the United States should inquire about a deal, don't simply assume he offers a bribe, a drug transaction or a corporate proposition.

Sat, Apr. 01, 2006

Council Defederalizes

CK - Washington.Defederalize and Reenergize--with this motto, the Neoburg council abolished all federal and state rules for new businesses in the county. New companies will pay no taxes for 3 years, employees will have no job contracts but receive profit participation, and owners will need to file no forms with any German agency. The council decided on the novel approach after realizing that businesses spend 41.06% of their time on what they do best, and some 60% on compliance with federal regulations.

Mayor Workemaker explained that local businesses would report transactions to a new county office which will make and collect payments, deduct VAT, do payroll and perform all compliance work that may be required. The county will outsource this service to other new businesses without charge, instead counting on increased revenue from increased employment and increased business revenue.

As an option, the office will take care of contracts and coordinate any other services typically outsourced, such as advertising, catering, health care and insurance, and indemnify the businesses against standard nuisances, such as risks from the cease-and-desist mania running amok in certain legal circles. The new office will be staffed only with personnel with private sector experience of a minimum of 41 years and will dispense with the federal age limit.

The concept of defederalizing has been advocated by both unions and employers. A legal opinion by Prof. Dr. Ubershlow terms the concept constitutional. As a result, Neoburg's employers are anticipated to spend upwards of 98% of their time and resources on business matters. Under Council Reg. 1IV06, the county expects revenues to grow by 22% annually.

Thu, Mar. 16, 2006

Regulatory Lobbying

.   Olaf Herrmann of Lobby Blog in Berlin found an example of regulatory lobby success in Germany. While public participation in the development of regululations is required in the United States, making and amending regulations in Germany tends to occur without public fanfare and involvement. Herrmann's example relates to sign changes for Autobahns.

Mon, Mar. 13, 2006

Data Protection Commissioner

CK - Washington.   The German federal data protection office has a new website. The English version explains:
The data protection commissioner of each land is your interlocutor if you are dealing with privacy issues in the administrations of the respective land or one of its municipalities.
and provides useful links to the interlocutors. The new site addresses a wide range of issues, including International Affaires.

It also provides an Imprint which appears to serve the purpose of identifying persons and publishing data elsewhere considered none of your business. The Imprint contains disclaimers, including one with respect to external links which is based on a frequently misunderstood Hamburg court decision and considered useless.

For those unfamiliar with the term Imprint for a page on the internet, the LEO translation site has a useful discussion. LEO endorses the term although it confuses its commenters. If LEO likes the term, the Commissioner and the interlocutors can't be all wrong. In any case, the English site is quite comprehensible to native German speakers.

Void Fee Pact

.   Circulating among attorneys in Germany is the news that fee agreements headlined Honorarvereinbarung are void because they violate the specific requirements of §4 of the federal fee statute, Gesetz über die Vergütung der Rechtsanwältinnen und Rechtsanwälte. The statute calls such agreements Vergütungsvereinbarung and suggests that they be so designated.

Semantics? There are judges who deem the choice of words less important than the content of the agreement. Lawyers are more familiar with the traditional term Honorarvereinbarung for fee agreement than the statutory term which leans toward a meaning of agreement for compensation. Generally, the law lets substance win over form. In this instance, form may win.

Thu, Mar. 09, 2006

Judge May Defend Pro Hac Vice and Pro Bono

CJ - Washington.   On March 9, 2006, the Constitutional Supreme Court in Karlsruhe announced its decision on a constitutional complaint of a retired appellate judge concerning his refused admission as criminal defense counsel, in the matter 2 BvR 951/04 and 2 BvR 1087/04 of February 16, 2006.

The constitutional complaint concerns his admission under §138 (2) of the Criminal Procedure Code, Strafprozeßordnung, when the judge planned to render altruistically and free of charge legal advice to a criminal defendant. His idea ran into trouble under the Legal Advice Act, Rechtsberatungsgesetz, because judges are not members of a bar.

The court held that the failure of the court to admit the judge pro haec vice on March 31, 2005 violated the petitioner's constitutional rights embodied in Art. 2(1) of the constitution, Grundgesetz.

According the court, Art. 1(1) of the Legal Advice Act does not adequately address constitutional issues in a changed landscape providing for relaxed standards on who may provide legal advice. The intended altruistic legal advice falls within the freedom of citziens to unrestrained activities. The statutory criterion for the businesslike pursuit of legal sevices does not restrict the judge in this situation when the constitutional requirements are taken into account.

The judges overruled the decision rejecting the pro hac vice admission of the petitioner and remanded the matter to the court of appeals.

Fri, Mar. 03, 2006

Law Drops EMail

CJ - Washington.   On March 2, 2006, the Constitutional Supreme Court in Karlsruhe announced its decision on a constitutional complaint of a judge from Heidelberg concerning the secrecy of telecommunication, a constitutional right embodied in Art. 10(1) of the German constitution, Grundgesetz, in the matter 2 BvR 2099/04.

The justices held that secrecy of telecommunication extends only to the transmission of communications. Such protection expires with the termination of the transmission.

The court decided that electronic data such as stored EMails which result from a completed transmission of data and are saved on the addressee's system are not protected by the secrecy principle governing telecommunications. With such data, the right of self-determination, Art. 2(1), Art. 1 (1) of the constitution, Grundgesetz, controls.

In addition, the rule of secrecy does not protect any data--beyond EMail--archived by the recipient on a hard drive as a result of a transmission, for instance a data file in local storage after having been downloaded from the internet. The court published a decision and a press release.

In the instant case, the investigation against the Heidelberg judge could not extend to the EMail stored on the judge's home PC as a result of the rule protecting informational self-determination, not because of the principle protecting the secrecy of communications. There was insufficient cause to search her PC, the court determined.

Mon, Feb. 20, 2006

Westlaw Ends Service

.   The German-language Westlaw online service will shut down, effective April 30, 2006. Its demise does not affect certain online services provided by partners such as Betriebs-Berater which offers online access to its leading German-language international law journal, Recht der Internationalen Wirtschaft.

Sat, Feb. 18, 2006

Merger Directive

CK - Washington.   Germany intends to enact legislation to comply with the E.U. merger directive 2005/56 which entered into force on December 15, 2005. Transborder mergers between German and other European companies will require a merger certificate which companies may obtain after preparing a joint merger plan, a merger report and a merger audit. Special rules govern the protection of minority shareholders and creditors.

The new statute will bring Germany in compliance with EU rules after the European Court of Justice ruling in the matter SEVIC Systems AG, ICG case no. C-411/03. The federal ministry of justice issued a press release and offers a PDF download of the bill.

Wed, Feb. 15, 2006

Terror Kills in Airspace

CK - Washington.   The Constitutional Supreme Court in Karlsruhe announced its decision today in the matter 1 BvR 357/05, finding the statute unconstitutional that permits the national defense authorities to shoot down aircraft over Germany that terrorists may control if non-terrorists may also be on board.

The court found the statute to violate Art. 1(1) of the constitution, Grundgesetz, which protects life, and also Art. 2(2)(1) which protects human dignity. The court issued a press release in English. The affected statute is the Aviation Security Act, specifically its section 14(3).

Tue, Feb. 14, 2006

Forceful Nonviolence

.   The click on a mouse means the user exerts force. That force may be as powerful as the pulling of a trigger on a gun, the court finds in the Lufthansa online demonstration matter that was discussed here in July and February of 2005.

The mepHisto-bLAWg has had a chance to analyze the grounds for the decision. The court convicted the organizer of the demonstration of instigating others to criminal duress under §240 of the Criminal Code, Strafgesetzbuch. In order to prevent third parties from accessing the website marketing the Lufthansa services, the organizer called upon others to commit a blockade by means of internet techniques which, in turn, was held to constitute was criminal duress. The instigation is punished under §111 of the code.

The decision by the Frankfurt court, docket number 991 Ds 6100 Js 226314/01, of July 1, 2005, is currently on appeal and the mepHisto blogger has some ideas for it.

Sat, Feb. 11, 2006

Texas Saves German Press

CK - Washington. Stefan Liniger and Stephan Wilske suggest in Borer gegen Burda und Bertelsmann--Grenzen der Allzuständigkeit von US-Gerichten, published in Neue Zürcher Zeitung on February 10, 2006, that certain plaintiffs with dibs on suing the European press in Texas for allegedly defamatory statements in connection with European activities will become more cautious. The reason is the Borer decision by the United States Court of Appeals for the Fifth Circuit of June 30, 2005 which the authors discuss in German.

Liniger and Wilske maintain that minimum contacts of European publications to Texan fora may fail to exist in other cases as well. In Borer, only 70 of 750,000 copies of the Bunte magazine produced found their way to Texas. Fewer than 60 of 1 million printed copies of Stern went to Texas. In addition, the former Swiss ambassador's nexus to Texas was minimal, at least with respect to the facts that relate to the complaint.

The authors warn against over-estimating the protection afforded the European press by the appellate decision. By itself, a limited circulation in Texas may be insufficient to avoid personal jurisdiction. Had the court found more tortious acts and effects in Texas, it may have ruled against the publishers.

Transblawg analyzes the story in English and links to the decision and other background information.

Disclosure: Wilske is the author's co-author in various publications and former legal intern.

Thu, Feb. 09, 2006

Wikipedia - TRO Set Aside

HF - Washington.   On February 9, 2006, Amtsgericht Charlottenburg, a Berlin civil court, set aside the temporary restraining order against the German Wikimedia association, docket number 218 C 1001/06, dated January 17, 2006.

The court decided that the petitioners, parents of a deceased son whom they did not want mentioned in Wikipedia, may not require the respondent to refrain from mentioning the applicant's son's name on the Internet. The court noted that such a publication does not constitute an infringement of the son's postmortem personal rights.

On January 20, 2006, the court had already suspended the enforcement of the TRO upon the respondent's request. The new decision is not final and an appeal is possible. The court released a press statement

Sat, Jan. 28, 2006

No Assumption of GDR Liability

.   The Federal Republic of Germany did not assume all liabilities of the now-extinct German Democratic Republic, aka East Germany, GDR, Mitteldeutschland, DDR, Sowjetische Besatzungszone and Ostdeutschland, the supreme court in Karlsruhe, Bundesgerichtshof, decided on November 30, 2005 in the matter IV ZR 4/04.

The Lichtenrader Notizen blog presents excerpts from the decision which clarifies that West Germany is not a universal successor to East Germany. The Federal Republic is responsible, however, for those liabilities which it assumed by way of the unification treaty, the Treaty on the Final Settlement with Respect to Germany signed in Moscow on September 12, 1990. Specifically, assumed liabilities are those that relate to assets transferred to the unified nation by the terms of the treaty.

The appeal to the supreme court followed a decision, 13 U 141/03, by the Brandenburg court of appeals, Brandenburgisches Oberlandesgericht, dated December 17, 2003, in a matter involving a certificate of inheritance, Erbschein, issued to the East German government and declared void after reunification. The decision takes into consideration the decision of March 2, 2005 of the European Court of Human Rights, Europäischer Gerichtshof für Menschenrechte, in the matter of von Maltzan et al. v. Germany, docket number 71916-17/01, and concludes that the unified Germany is not liable to an heir for the funds which East Germany grabbed on the basis of the later-voided certificate of inheritance.

Fri, Jan. 27, 2006

Commercial Use of Domain Names

HF - Washington.   On January 26, 2006, Sebastian Meis explored the issue of commercial use of domain names in Germany in The Commercial Use of Domain Names Under German Law.

Discussing a recent German court decision of a district court, Landgericht Düsseldorf, dated June 1, 2005, docket number 2A O 9/05, he explains the circumstances that render the use of a domain name commercial. The classification of the use of domain names as commercial is of importance for the applicability of the German trademark and unfair competition law as well as the statute protecting names, §12 of the Civil Code, Bürgerliches Gesetzbuch.

Wed, Jan. 25, 2006

Illegal Uploads for Illegal Downloads

CK - Washington.  Going by the number of reports, such as BerlinBlawg's, there may be truth to the news that police, armed with search-and-seizure orders, entered the facilities of download-hunter group Gesellschaft zur Verfolgung von Urheberrechtsverletzungen e.V. GVU is known as an entity formed by the music and movie industries in Germany to hunt downloaders. The investigation is said to focus on illegal uploads by the group that allow it to track downloaders and refer them to police.

Tue, Jan. 24, 2006

Officer as Consumer

HF - Washington.   On November 8, 2005, the federal court of justice, Bundesgerichtshof, decided on the applicability of the consumer credit protection statute, Verbraucherkreditgesetz, VerbrKrG, to a managing officer's liability where such officer is also the sole shareholder of a limited liability corporation, GmbH, and co-signed certain loans for the company. When called to pay up, he claimed the voidness of this liability under the consumer credit protection statute.

The court, in the matter XI ZR 34/05, agreed with the officer. Under established case law, the VerbrKrG applies to joint liabilities if the jointly-made contract is a loan agreement. The court confirmed that the VerbrKrG applies to an officer who is a sole shareholder. The key issue is whether the officer and sole shareholder may be characterized as a consumer as per §1(1) VerbrKrG, or as a sole proprietor, to whom the VerbrKrG does not apply.

Some German lawyers advocate equal treatment of the officer and sole shareholder of a GmbH with that of sole proprietors. The court disagreed after interpreting the limited liability company act, Gesetz betreffend die Gesellschaften mit beschränkter Haftung, GmbHG, and the commercial code, Handelsgesetzbuch, HGB. §13(3) GmbHG, §6(1) HGB provide expressly that only the GmbH, the company itself, is qualified as a commercial entity whereas the officers are not. The fact of holding the majority or all shares does not justify a different result. The share ownership constitutes an administration of assets not a commercial activity.

Therefore, the jointly-held loan obligation of this corporate officer cannot be qualified as commercial activity under §350 HGB. The court also pointed to an important difference between the officer of a GmbH and a sole proprietor that prohibits applying commercial rules to officers and sole shareholders. Under the law, sole proprietors are personally liable for the debts of their business. This principle of management and personal liability, however, does not apply to the officers and sole shareholders of a GmbH under §13 GmbHG. In fact, the GmbHG does not know personal liability of either the officer or the sole shareholder. Therefore, the black letter and intent of the GmbH statute render officers of such entities jointly and severally liable for a co-signed loan in their capacities as private persons who deserve the protection of consumers under §1(1) VerbrKrG.

Mon, Jan. 23, 2006

Design Protection for Fonts

.   On January 4, 2006, Sebastian Meis explained the German and European rules for design protection in Design Law in Germany and the European Union. Dennis Sevriens follows up with a nice illustration in the BerlinBlawg, in German. He discusses and demonstrates industrial design protection as applied to a font.

Sun, Jan. 22, 2006

Meals with Justices

CK - Washington.   The Jurastudentin blog recounts a law student visit with the federal supreme court for civil matters in Karlsruhe, Bundesgerichtshof. She shares her insights gained from dining with the justices: How to get the job. When to make that career decision. How to behave before and after deliberations. What types of personalities to expect.

The student also reports of her discussions with lawyers before a hearing and their evolving attitudes in the course of their debate with the justices. Her first-person account does not pretend to be academically significant but occasionally reaches a level beyond the entertaining. An example is the acerbic debate she witnessed between a law school professor and the librarian of the court about sharing old library assets with the Leipzig department of the court after German reunification.

Based on such experiences here, there and elsewhere, one can agree with the law student on a lasting impression she took with her: Justices are real people. They can be as personally likeable as any person not on a supreme court.

Sat, Jan. 21, 2006 Unrestrained

CK - Washington.   The domain leads again to the German-language Wikipedia encyclopedic website, and the restraining order, docket number 218 C 1001/06, dated January 17, 2006, is now publicly available. In addition to this report in English on the action against the Wikimedia Foundation, there are numerous analyses and comments in German, among them at the Christian Säfken blog, BerlinBlawg and Law-Blog. The consensus is that the now-suspended TRO was excessive.

Fri, Jan. 20, 2006

Statutes of the Länder

CK - Washington.   The German federal states, Länder, have some law that is all their own. The Civil Code, Bürgerliches Gesetzbuch, is uniformly federal, but building and zoning, for instance, are state matters. Members of the Anwalt mailing list have compiled sources pointing to Länder statutes on which this list builds:

Lower Saxony
Lower Saxony
Mecklenburg-West Pommerania
North Rhine-Westfalia

This list is incomplete. The compilers are too modest to have their names listed.

Thu, Jan. 19, 2006

Discretion and

.   Under the Code of Civil Procedure, judges determine in the free exercize of their discretion measures for immediate relief. Munich lawyer Arne Trautmann explains at the Law-Blog why the closing of the domain in response to a request for an injunction out of concern over a single page may be legal overkill.

Essentially, he argues, the court must apply measures suitable to attain the immediate objective. Laying the entire German-language Wikipedia to waste is excessive and may indicate ignorance of the workings of the internet.

The injunction is not publicly available and should help understand why the Charlottenburg court in Berlin decided on such drastic action. An issue of transatlantic interest is whether and how the injunction can be enforced against the Wikimedia Foundation, an international non-profit entity based in the United States. Christian Säfkens Weblog has a detailed legal analysis that points to a potentially abusive motive on the part of the petitioner.

Mon, Jan. 16, 2006

Law Firm as Stock Corporation

.   The Handelsblatt newspaper summarizes today a ruling by the federal supreme court in Karlsruhe that law firms structured as stock corporations violate German professional rules in the event that their shareholders may also hold memberships in additional entities. The concern can arise when law firms maintain local or regional entities with individual lawyers who are also stockholders in a larger superstructure. The stock corporation as an organizational vehicle is not objectionable. The by-laws of an Aktiengesellschaft comprised of lawyers may not permit its shareholders, however, to participate in other entities. The decision is not yet available at the court's website. Handakte WebLawg mirrors excerpts of the report but also lacks details or an analysis of the holding. The issue originated with the Hamburg bar.

Fri, Jan. 13, 2006

German-French Axis

.   On Friday, January 13, 2006, German trade rag Juve reports of a new German-French axis that grows out of the Berlin office of disintegrating Global Player firm of Haarmann Hemmelrath. Salans, a French firm that previously absorbed American and other French competitors, anticipates a strong real estate practice in Berlin.

Today, the Juve website lists a number of other updates on the split of HH which used to be one of Germany's most massive firms. Among them, a new Haarmann firm without international offices will be headquartered in Frankfurt am Main. The Hemmelrath branch plans continued operations as a limited liability partnership, writes Juve.

Sun, Jan. 01, 2006

FOIA in Germany

.   The new federal freedom of information statute, Gesetz zur Regelung des Zugangs zu Informationen des Bundes became effective today in Germany. Section 6 provides for the protection of intellectual property. Section 7 addresses procedural issues. Third parties, whose data may be affected by governmental disclosure, may intervene under procedures stated in section 8.

The statute is commonly known as the Freedom of Information Statute, Informationsfreiheitsgesetz. The IFG complements existing Land codifications.

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