Fri, Dec. 23, 2011

Email After Hours: Union Pact

CK - Washington.   In a possible first pact of its kind, Volkswagen and its union agreed that the company would not send emails to certain wage-earners after hours. The agreement covers VW employees using company-issue smartphones. It excludes certain managerial personnel, a December 23, 2011 report in Heise Online, VW verzichtet auf Email-Versand auf Diensthandys nach Feierabend, notes. The union deal applies only in Germany.

Sat, Dec. 17, 2011

German Statutes, as Amended

CK - Washington.   Statutes, as amended -- or law in the most current version, -- are easily found in German bookstores. Most legislative acts are federal. Publishing houses print them affordably, and the major works rest on bookshelves in homes as commonly as in law firms or libraries.

As amended, such editions may be useless in the practice of law. Frequently, issues arise long after amendments to statutes occur. Legislators in Germany appear to justify the salaries, as they do elsewhere, by adding, subtracting, replacing and just good-old amending. Formerly, codes were good for a handful of centuries; that is history. Every elected twit wants leave her mark on what used to be carved in stone, or on clay tablets. Every lobbyist expects too see something for his money.

Synoptical presentations of the statutory bodies of law are the answer. Lexetius brings that approach to the web. Print editions exist, with side-by-side columns of the law then and now, such as J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen von Hans-Wolfgang Strätz. I like Lexetius. It is plain, useful, intelligent and clear. It fits on electronically driven tablets.

Sat, Nov. 05, 2011

English in German Courts

CK - Washington.   A German contract in English often reflects nothing of the parties' intent and purpose: A high-schooler or LL.M.-graduate may have prepared the translation, and a shipment of pipe fittings turns into the supply of pipelines while a provision on independent contractors morphs into terms of employment.

Instead of legal terms well defined in German law and the foreign law that haphazardly may end up being the governing law, the unprofessional translation employs terms a teenager learned from rap music, the boss's buddy from Facebook video games and or an LL.M. student from chick flicks.

This horror scenario may soon reach the administration of justice in German courts. On November 11, 2011, the German carnival season begins. On November 9, 2011, the Berlin diet will hear from experts suggestions for a major change in the federal law on the judiciary. The experts are to explain an amendment to permit the use of English as the official language of select commercial courts in Germany.

Transblawg summarizes their arguments in favor of the change in a November 5, 2011 note, in English, Bundestag Hearing on English as Court Language. Major global concerns from Germany use these scary contracts, as does the famed small and medium corporate sector. International practitioners know the type of semi-English business and legal correspondence emanating from Germany. It is hard, respectively difficult, to see the benefit of employing a similar English in courts where precision and clarity should rule. See also Gerglish in German Courts, Jan. 2010.

Frequently, English native speakers note that English is difficult. Germans consider English easy unless they have lived in an English-speaking environment for a long time. Alas, the prevailing German perception is likely to win.

Sun, Oct. 30, 2011

Regressive Tariffs: Solar Feed-In Sales

CK - Washington.   Solar energy tariffs paid by energy concerns are about to be lowered by 15% due to the successful adoption of solar energy in Germany. The agency responsible for the oversight of various grids and nets, Bundesnetzagentur, announced a new table for feed-in tariffs that apply to the purchase of solarly-generated electrical power from non-traditional installations. The trigger for the tariff regression is the fact that increases in production capacity now exceed 5200 megawatts. A German energy blog discusses the details in English. Presently, 20% of German energy needs are met by renewable energy. The rate change will become effective on January 1, 2011.

Fri, Oct. 07, 2011

Easy Access in Beta: JusMeum

CK - Washington. Easy access to a full set of features for locating German court decisions: JusMeum, a novel database provider growing out of a social media-type exchange of information service, has it. Currently, the service offers a free two-week test of its beta service JusMeum Rechtsprechung-Pro which offers access to 300,000 decisions, printable PDFs, unlimited search results, and searches by docket number, statutory provision, term and dates. The free service, Rechtsprechung, offers the first two items and has a limited of three search results.

Thu, Sep. 15, 2011

Google Analytics Now Legal in Germany

CK - Washington.   Google and German data protection officials worked out a plan to legalize Google Analytics in Germany. There will be effects on other European nations.

The data protection official in Hamburg had argued that Analytics violated German data protection law. Google and Hamburg, acting on behalf of a group of state German data protection agencies, negotiated. On September 15, 2011, Hamburg proclaimed Google setzt Forderungen der Aufsichtsbehörden um: Google to implement demands of the monitoring authorities.

As a result of the agreement, web site operators may use Analytics without the Damocles' Sword of sanctions, users will obtain means to effectively object to the gathering of their access data, web site operators may request the deletion of the last octet of IP addresses within all of Europe, and Google will offer web site operators an agreement for the use of Analytics that complies with the German federal data protection statute and its requirements for the processing of third-party data.

Wed, Sep. 14, 2011

ICJ Live: War and Immunity

CK - Washington.   American law plays into the positions propounded in the current hearings before the International Court of Justice in The Hague. The court opened the dispute between Germany and Italy, in which Greece intervened, to live video transmissions which run from September 12 through 16, 2011.

The dispute centers around the German claim for state immunity in a foreign forum for claims by individuals for war crimes and the enforcement of jugdments against an immune foreign state.

The ultimate determination of the court may affect the rights of individual Iraqis and others against the United States in foreign courts and many similar future constellations. Under the new Italian precedent, warring nations may not claim jurisdictional immunity. That is also true when a peace treaty between nations resolves issue of reparations.

Tue, Sep. 13, 2011

German American Law Association Event

CK - Washington.   The German American Law Association and Deutsch-Amerikanische Juristen-Vereinigung e.V. invite to a panel discussion on Conflicts of Ethics in Transnational Engagements on October 25, 2011. The focus of the panel is described on DAJV's website as Multi-jurisdictional rules of ethics and professional conduct: Coping with conflicting legal rules and privileges in a global business environment. Membership is not required to attend but RSVP by October 20, 2011 is.

Sat, Aug. 20, 2011

Itsy Bitsy Facebook Pixie

CK - Washington.   Facebook's Like button ran into trouble in a northern German state on August 19, 2011. The Independent Center for Data Protection in Schleswig-Holstein issued a warning to users of the Like button and Facebook pages in the state: A penalty not to exceed 50,000 euros could await such users. Instead of targeting Facebook's non-compliant privacy policies in its web analytics system, the agency took on users.

The new measure highlights inconsistent handling of data protection laws by the various state agencies. While the Hamburg state agency had focused on Google Analytics in January 2011, numerous social media services remain unscathed when they incorporate features that enable the collection or transmission of user data whether or not a user knowlingly activates a particular feature of a website.

The Facebook setup may not even violate German data protection law to the extent the Center targets users. Ordinary users of Facebook pages and Like buttons do not collect and have access to the information about visitors that the Facebook features trigger. Therefore, as Stephan Schmidt explains in more detail in Verstößt die Verwendung des Gefällt mir-Button wirklich gegen deutsches Datenschutzrecht?, users of those features need not fear the edit which states:
[The Center] expects from website owners in Schleswig-Holstein to immediately stop the passing on of user data to Facebook in the USA by deactivating the respective services. If this does not take place by the end of September 2011, [the Center] will take further steps. After performing the hearing and administrative procedure this can mean a formal complaint according to sect. 42 LDSG SH for public entities, a prohibition order pursuant to sect. 38 par. 5 BDSG as well as a penalty fine for private entities. The maximum fine for violations of the TMG is 50TS Euro. Press Release, ULD to website owners: Deactivate Facebook web analytics, August 19, 2011.
Among the instantaneous reactions triggered in Germany and abroad to the Center's edict are critical comments from the German president and other federal influencers. They sympathize with users of social media but not all base their views on a solid understanding of the technology and law involved.

Sun, Jul. 17, 2011

Adwords: No Trademark Issue

CK - Washington.   The German Supreme Court in Karlsruhe ruled on the question of trademarks used in search engine advertising search terms, such as Google's Adwords, where the trademark belongs to a competitor of the purchaser of the Adwords term. The decision of January 1, 2011 in the matter I ZR 125/07 remains unpublished on the court's website but counsel to one of the parties published excerpts on July 13, 2011.

The German trademark bar had long argued that Adwords comprising competing trademarks violate trademark and competition law. In the dispute known as bananabay, the court, Bundesgerichtshof, ruled, however, in favor of the free use of trademarks in search engine seeding as long as the consumer will arrive at non-confusing sites.

Thus, a purchaser of Adwords may seed search engines, as a matter of German trademark law -- specifically §5(1)(2)(a) Markengesetz, -- with competing trademarks but may not use the trademark without its owner's authorization on its website or otherwise generate confusion.

Thu, Jun. 16, 2011

Germany's Place in World Justice

CK - Washington.   The German justice system is ranked near the top in a comparison of justice systems of the world. The Rule of Law Index published on June 13, 2011 by the World Justice Project finds the German civil justice system not only fair but also affordable -- one of several causes of German misperceptions of the cost of litigation in the United States. The 158-page report highlights Germany on page 22:
Germany is one of the world's leaders in many dimensions of the rule of law. Government accountability is strong (ranking 5th out of 66 countries) and corruption is minimal (ranking 12th). The country's civil justice system ranks 2nd out of all countries, which is characterized by the affordability of attorneys, accessibility and efficiency of courts, and lack of undue influence. Police discrimination against foreigners, however, is perceived to occur.

Wed, May. 04, 2011

German Bar Admission: No Treaty Violation

CK - Washington.   Germany treats Americans and E.U. members differently and does not afford Americans most favored nation treatment, in violation of Germany's treaty obligations, including the FCN treaty with the United States, the petitioner alleged before the United States Trade Representative. The USTR sees three bases for inaction. It will not open an investigation into Germany's alleged violations and explains them in the Federal Register of May 4, 2011 Decisions Not To Initiate Investigations: Access to German Bar Aptitude Examination.

Sat, Apr. 30, 2011

More German Statutes in English

CK - Washington.German Law Archive has announced the availability of two additional German statutes in English in its database: The Courts Constitution Act of 1975 and the Insurance Contracts Act of 2008.

Wed, Apr. 27, 2011

Notice by Email: Deemed Receipt

CK - Washington.   Small court, big issue: When does a notice sent by email arrive? When it's sent? At the time the addressee's email client pulls it from the server? When the recipient notices it? Within a certain number of hours or days after mailing?

What if the addressee is occupied with other matters? Visits the restroom? Lies in the hospital? Or enjoys a vacation?

A German court decided the issue for the following set of facts: After business hours, a customer ordered travel arrangements from a travel agency, then booked the arrangements online and sent an email to the agency to cancel the initial order. The next morning, the travel agent arrived at the office before its usual business hours, noticed the order, fulfilled it, and noticed the email only after her return from a conference. The customer ended up with two travel arrangements and sued the agent for the resulting cancellation fee.

Click here for the decision, in German.

The Meldorf court of first instance held on March 29, 2011 in the matter 81 C 1601/10:
1) The notice was not received before the next business day.

2) The agent is free to schedule her day, as a matter of constitutional law. Nothing requires her, therefore, to give priority to reading emails first thing in the morning.

3) The exact time of when the emailed notice is deemed received cannot be determined by the law alone.

4) In this situation, some time during the next business day would be appropriate to deem the email to have been received. The exact time does not matter with these facts.
As a result, the agent's decision to attend to the order immediately and read emails later is legally so appropriate that her sequencing of activities cannot be held against her. She did not breach a contractual or other duty and is not liable to the customer for the cancellation fee incurred because of the duplicated order.

Sun, Apr. 17, 2011

Trademark Colors: No Approximation

CK - Washington.   The German supreme patent court ruled on April 8, 2011 against the use of approximations for the distribution of colors in the description of a trademark, Ralf Petring notes on Twitter. The docket number is 26 W (pat) 12/10. An energy-drink maker had applied for a silver-blue color design with a distribution of the two colors at approximately 50% each. Its attempt at correcting the description with definitive numbers in the review process was rejected.

Mon, Apr. 11, 2011

Link in News Report Protected

CK -Washington.   Time and again, we note that some lower German courts fail to understand the internet while the Supreme Court for civil matters is quite adept at it. Recently, it cleared up a misconception that handicapped the German press, bloggers and internet users since early 2005. Lower courts had found an online report violative of copyright law because the report not only explained the business of, but linked to the website of a vendor whose software is deemed illegal.

Video marketing groups alleged that the report contributorily infringed on copyright because readers could easily acess the site and download software to undo copyright restrictions from DVDs.

The Supreme Court reversed the decision of the appeals court and the court of first instance for failing to ignore the broad protection owed the press under the German constitution. The links support informational needs and back up the story. As such, the report enjoys in its entirety the broadest possible protection for press freedoms and freedom of speech, the court reasoned.

The lower courts had assumed that a more limited form of press freedom applied, one for services ancillary to reporting which in this case assured the reader access to the illegal software. The Supreme Court, Bundesgerichtshof, dismissed that proposition in its opinion in I ZR 191/08, Heise, on October 14, 2010, which it now published.

Thu, Apr. 07, 2011

Bundled Services and Termination

CK - Washington.   Website bundles involve agreements for the production of works, not for services, the German Supreme Court for civil cases, Bundesgerichtshof, ruled in the matter III ZR 79/09, Internet-System-Vertrag. The difference is significant. In the case of works, the parties may terminate the agreement at any time, not only in the event of a default, and they are not bound to a fixed contractual term.

That matters a lot because a bundling agreement for website services usually requires most of the work at the front end, with revenue and profits following over the term of the agreement, The internet bundling provider registers and sets up a domain and a web site, arranges for payment systems and licenses, provides hosting, generates design and setup of content, and updates the site. Payments are often spread over a long term during which the customer is bound to the contract, Such contracts tend to prohibit an early termination.

On March 3, 2011, the German court held the prohibition unenforceable because of the classification as a contract for works. As a result, customers can terminate early. They are on the hook, however, for the actual cost of the services obtained through the effective date of termination. On that date, they may have to pay in one sum more than the linear aggregate accrued under the contract, i.e the entire performance that has been provided through that point. For providers, the effect of the ruling is significant in that they need to be able to document and prove the cost of their work through any potential termination date.

Fri, Apr. 01, 2011

German Court Views Street View

NK - Washington.   The German Court of Appeals for the District of Berlin, Kammergericht, released a press statement in the matter 10 W 127/10. The court dismissed the plaintiff's complaint, holding that Google may legally photograph buildings from public streets with its Street View cars.

The plaintiff, an owner of real estate displayed in Google Street View, alleged that Google infringed her privacy because its affixed the camera to a 10 feet tripod. As a result, the Google images contain perspectives beyond enclosures--a view unavailable to pedestrians.

The Kammergericht reviewed the privacy issue and affirmed the opinion of the district court. The court reasoned that the plaintiff failed to prove the fact that Google's pictures show the inside of her building. Google's offer to pixellate buildings--available to individuals in Germany--would provide her with a sufficient remedy in the event that an image should display the protected interior of a building.

Wed, Mar. 30, 2011

Internet Jurisdiction of German Courts

CK - Washington.   On March 30, 2011, the German Supreme Court for Civil Matters, Bundesgerichtshof, released a press statement to summarize its opinion in the internet jurisdiction matter VIII ZR 94/10. The formal written opinion will be published in the near future.

The court decided against the exercise of personal jurisdiction by German courts in a matter involving a claim for the infringement of personality rights where (a) the parties to the underlying facts acted outside of Germany; (b) a server in Germany hosted the allegedly infringing material; and (c) the plaintiff, a resident of Russia and Germany, happened to notice the material while he was present in Germany.

The nexus to Germany is too fragile to support the exercise of international jurisdiction, the court explained. The author of the material lives in the United States, the plaintiff in Russia. The material is published in Russian and recounts a class reunion in Russia.

Wed, Mar. 23, 2011

Competition Harmed by Like Button

CK - Washington.   German competition would suffer as a result of Like buttons on commercial web sites, a plaintiff argued in Berlin, but the district court dismissed the complaint. The plaintiff's attempt at linking the button and competitiveness to the potential violation of data protection laws could not withstand its scrutiny in the matter LG Berlin 91 O 25/11. The order of March 14, 2011 does not affect complaints against the deployment of the Facebook button based on the alleged violation of the data protection statutes. The ruling affects only relations among competitors.

Thu, Jan. 20, 2011

German Court Applies E.U. Rule to U.S. Airlines

CK - Washington.   U.S. airlines are subject to E.U. rules for compensation and accommodation for passengers suffering flight delays. German courts may exercise jurisdiction over U.S. airlines under such rules, the German Supreme Court decided on January 19, 2011. The court, Bundesgerichtshof, issued a press release, in German, but not yet the full opinion in the matter X ZR 71/10.

Sat, Jan. 15, 2011

Express Warranties: Online Depiction and Description

.   In the sale of goods online, express warranties include what is depicted in an image, not only what is described as the offered items, the German Supreme Court in Karlsruhe concluded in the matter VIII ZR 346/09 on January 12, 2011. Presently, the court has published only a press release.

The seller of a car had displayed an image of the vehicle with an accessory that was removed before transfer to the buyer. Although the written description of the vehicle published on the internet did not include the accessory, the court confirmed a breach by the seller of its contractual obligations.

The proper remedy for this default is the remediation by the seller, the court ruled. Only if remediation -- governed by §439(1) of the German Civil Code -- failed, the buyer could claim damages.

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