Wed, Dec. 10, 2014

Non-Poaching Clause in German Law

Sometimes, a landmark case in Germany is exciting to German lawyers, but when translated into English, an implied issue seems more important to an American reader.

Contract penalties are such an issue, which the report Non-solicitation agreements enforceable only in exceptional cases by Hamburg attorney Christian Soltau mentions only in passing. Why skip the issue? In German law, contract penalties are legal. Liquidated damages are conceptually similar but stated differently. The author explains a high court decision in a competition matter that involves a non-solicitation clause. The court decided on April 30, 2014 that clauses impeding the poaching of employees from another employer generally violate §75f of the German Competition Statute.

However, the court carved an exception for special relationships which Soltau explains with helpful advice. His key statement that a two-year time limit should control the exception seems less exciting than the rule that German courts will enforce contractual penalties for breaches of contract. The best news is that American and German practices converge somewhat in this area.

Fri, Sep. 05, 2014

New Statute to Stem Late Payment

MJ - Washington.   On August 23, 2014, a new statute, Gesetz zur Bekämpfung von Zahlungsverzug im Geschäftsverkehr und zur Änderung des Erneuerbare-Energien Gesetzes, an Act to Combat Tardiness in Business Payments and to Change the Renewable Energies, became effective.

The objective of the statute is to solve the problem of late payments between business parties and between businesses and public agencies. The federal legislator added a new section, sect; 271a, to the Civil Code, Bügerliches Gesetzbuch of 1900. The provision has a binding effect only on transactions subject to German law. Companies with a payment obligation must pay within 60 days after receiving the promised consideration. When a party is a public entity, payment must be completed within 30 days.

With the new section, the law intends to protect mid-size companies: When they perform their obligation, they should be paid promptly, thus receiving protection against liquidity squeezes. General terms and conditions may not supersede this section. A contractual agreement providing for a longer period is effective only if the agreement is made expressly and does not unfairly disadvantage the beneficiary. This new statute will apply to new contractual obligations. Contracts existing on August 23, 2014 will not be affected unless performances thereunder become due after that date.

Sun, Aug. 24, 2014

Uneducated? An Injustice!

Compelling Case for a Right to Education
SF - Washington.   Everyone has the right to education. Article 26 of the Universal Declaration of Human Rights of December 10, 1948.

Education is one of those topics politicians love to talk about. Talk is cheap, though, as Ugo Mifsud Bonnici, former Maltese President and Minister of Education, explains in his latest book An Introduction to the Law of Education. Compellingly, he calls for a debate on the legal framework and conditions of the law of education. Every politician championing education should heed his counsel: One cannot do the right thing if one does not know what the right thing is, and one comes to know what is right through being informed. p. 5.

While the author's main focus is on his home country of Malta, the international reader will find plenty of inspiring insights into the law of education worldwide. While law and education met very late in the development of many societies, the law of education has many roots and commonalities throughout the world. Through an intelligent mixture of history and philosophy, the author examines the influences of state, church, and parents on education. He also presents the overarching role of language as a medium of education and sheds light on teachers' positions in the education system.

Citing Aristotle and Kant and thus placing his deliberations on a philosophical foundation, the author explores constitutions and court decisions from different countries, among those Germany and the United States of America, as well as decisions of international courts and tribunals. He shows where historical differences occurred between countries and regions that are still present in current national legislation and where international pacts and agreements, beginning with the Universal Declaration of Human Rights, aim at constituting common standards of education.

The book's regional focus is on Europe, referring frequently to the Council of Europe, on whose Venice Commission on Democracy through Law the author has served as of 2002. Additionally, the book points to a variety of comparisons between Europe and the U.S. on the law of education. It references to U.S. history and Supreme Court decisions to demonstrate a contrast to European legislation while also emphasizing common principles. We learn how the Prussian educational system served as a model for the American public school system in the 19th century and how European legislation mirrors Supreme Court decisions on minority languages in education. The author highlights the different views of academic freedom between Europe and the U.S., and explains that corporal punishment of children is not legally banned in all U.S. states, while the European Court of Human Rights in numerous rulings declared it a violation of children's rights.

Based on his lifetime achievement, the author closes with a passionate plea for a profound legal education in national, European, and international law for every citizen as a keystone for democracy.

Without a doubt, this book is a must for teachers, politicians, and lawyers in the field of education, as it refrains from tedious stock-taking and analysis. En passant, the reader is taken on a journey through Maltese and European history, meeting the grand thinkers and statesmen of their time. A captivating book I highly recommend.
An Introduction to the Law of Education
Dr. Ugo Mifsud Bonnici
ISBN: 9789990945751
400 pages - 25.00 Euros

Tue, May. 13, 2014

Anti-Google Ruling has German Jurists Flustered

CK - Washington.   On May 13, 2014, the European Court of Justice invented an obligation to drop old newspaper announcements of legal actions from search engines under Article 4(1)(c) of European Union Directive 95/46, when it ruled on Google Spain SL, Google Inc. v. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez in favor of a data protection agency and a Spanish defendant who did not want the public to discover a 1998 notice of attachment on his property through the plaintiffs' search engine.

Among German lawyers and law commentators, a heated discussion followed quickly. Some argue that the decision serves privacy interests. Others believe that the court elevated data protection from a run-of-the-mill statute to a European constitutional principle that conflicts with the German and possibly other constitutions.

The court ruled, among other things, on the right of erasure and determined its applicability to search engines. The storage of data by search engines is data processing under Article 2, it ruled. Jurisdictionally, data processing occurs in the E.U. member state where the plaintiff maintains a branch or subsidiary even if such entity is limited to promotion and advertising services.

Even when the original publication was and remains lawful and available, a right of erasure can apply to a search engine while the linked-to publication may remain unerased. Unless public interests outweigh the defendant's interest in privacy and dignity, Articles 7 and 8 of the E.U. Charter may entitle him to seek erasure from the plaintiffs regardless of economic burdens imposed on them. The case is returned to the Spanish court to apply these principles to the facts.

Thu, Mar. 27, 2014

German Commercial Law Firms and Practice

PS - Washington.   Recently, the publishers of the annual handbook JUVE's German Commercial Law Firms introduced their 15th edition of the only book of its kind in English which focuses exclusively on German lawyers.

The new edition lists close to 600 German commercial law firms. The catalogue is arranged by states, largest cities, international law firms, and practice areas. The law firms are chosen by a group of journalists who perform research on such firms. The handbook is useful for foreign lawyers seeking referral firms or cooperation partners. The printable version of the book is available for 59 Euros.

A very practical handbook introduces readers to the legal market and practice of law in Germany: The Legal Market in Germany: A 360 Degree Perspective by Markus Hartung and Thomas Wegerich. German Law Publishers focuses on high quality summaries of the key topics of German company, corporate, tax and labor law as well as other legal business law topics. The hardbound book costs 98 Euros.

Sat, Jan. 18, 2014

German Law: Ready for Drones

CK - Washington. With statutory amendments to the aviation act in 2012 and regulatory implementations in 2013, Germany is somewhat ahead of the United States in establishing a legal framework for the civilian and commercial use of drones.

The regulations revised after the amendment to the federal aviation statute classify drones up to a weight of 25 kilograms in section 6(2) as aerial vehicles partially exempt from the demanding standard approval process for aircraft. Section 34 addresses the licensing of drone operators by applying a minimal standard, such as qualifications obtained in a club setting. Section 66 transfers authority for permitting of non-commercial operations to the states, i.e. Länder. Chapter 10 of the regulations addresses the import or transfer of unmanned aerial vehicles, among other aircraft, into German airspace or territory. Section 99 governs the insurance requirements for foreign aircraft and may affect also drones brought into Germany. Section VI (3) of Schedule 1 to the regulations, Luftverkehrs-Zulassungs-Ordnung, contains a rule for the permanent marking of the drone with owner information.

Another overview, in German, of permits, licenses, distances, required insurance coverage and many more practical and legal details, is found in Solmecke, Die rechtlichen Probleme des Einsatzes von zivilen Drohnen--i.e. Legal Issues in the Use of Civilian Drones. The broad overview also covers privacy, copyright, criminal sanctions and data protection laws as they relate to the deployment of civilian drones in Germany.

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