News and Press - Lawyers Attorneys Tax Advisors GRP Rainer Germany - Cologne Berlin Bonn Düsseldorf Frankfurt Hamburg Munich Stuttgart London UK https://www.grprainer.com/en/ News and Press releases of Lawyers Attorneys Tax Advisors GRP Rainer Germany Cologne Berlin Bonn Düsseldorf Frankfurt Hamburg Munich Stuttgart London UK en GRP-Rainer Tue, 21 Aug 2018 20:16:34 +0200 Tue, 21 Aug 2018 20:16:34 +0200 TYPO3 news-3277 Mon, 20 Aug 2018 08:15:00 +0200 Improper extension of a discount campaign https://www.grprainer.com/en/news-and-press/detail/news/improper-extension-of-a-discount-campaign.html Caution is advised when extending a fixed-term discount campaign. Extending the campaign may constitute misleading advertising and thus a violation of competition law.

There are good reasons for extending a fixed-term discount campaign. However, we at the commercial law firm GRP Rainer Rechtsanwälte note that this is only legal under certain circumstances. If the campaign is extended due to circumstances that should have been foreseen by a company exercising professional diligence and thus ought to have been considered when planning the discount campaign, including the advertising, then consumers are deemed to have been misled and a violation of competition law has occurred as a result of the extension. That was the verdict of the Landgericht (LG) Dortmund, the Regional Court of Dortmund, in a ruling from June 14, 2017 (Az.: 10 O 13/17).

In the instant case, a furniture store had advertised in print media and online with a discount campaign running from the 17th to the 24th of December, 2016. The campaign was later extended to December 31, 2016. A competitor who found this practice misleading brought an action against it. The defendant argued that the campaign had been extended because a number of competitors were advertising particularly intensively during this time, and that they could not have foreseen this.

The LG Dortmund upheld the action, concluding that the advertising in question was misleading. It held that a fixed term ending on December 24 had clearly been applied to the discount campaign. The Court went on to state that this date is also seen by consumers as the final day of the Christmas shopping period, meaning that they had no reason to assume the campaign would be extended.

Advertising with a fixed-term discount campaign was said to be misleading if the intention from the outset was to extend the campaign. Consumers can also be said to have been misled if the campaign was extended due to circumstances that ought to have been foreseen by the company. The Landgericht noted that intensive advertising featuring discounts at the end of the year is not unusual. As such, the defendant should have foreseen this situation. The advertising was therefore found to be misleading and in violation of the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s Unfair Competition Act, as applying a fixed term to a discount campaign means consumers are pressed for time and can result in them arriving at a decision that they would not otherwise have taken.

When it comes to advertising, violations of competition law can easily occur even unwittingly. Lawyers who are experienced in the field of intellectual property law can offer advice.

For more informations: https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law.html

]]>
PressemitteilungenWerbung
news-3274 Thu, 16 Aug 2018 08:00:00 +0200 Competition law – The term “Praxisklinik” does not entail inpatient treatment https://www.grprainer.com/en/news-and-press/detail/news/competition-law-the-term-praxisklinik-does-not-entail-inpatient-treatment.html A dentist is allowed to promote his or her homepage with the term “Praxisklinik”, i.e. “(practice) clinic”, even if they do not admit patients for extended periods of time as inpatients. That was the verdict of the Landgericht (LG) Essen, the Regional Court of Essen.

 

The following facts and circumstances informed the LG Essen’s judgment from November 8, 2017 (Az.: 44 O 21/17): A dentist had made repeated use of the term “Die Praxisklinik”, in other words “the clinic”, on his website for promotional purposes and was admonished by an association representing commercial interests for doing so. The Association viewed the term “Praxisklinik” as misleading to consumers and a violation of competition law, stating in its reasoning that the clinic did not admit patients for extended periods of time as inpatients. It went on to claim, however, that the term “Klinik” is synonymous with “Krankenhaus”, i.e. hospital, in the eyes of consumers and thus entails the possibility of inpatient treatment.

 

The injunction was nonetheless unsuccessful. The Court held that the term “Praxisklinik” was not misleading in terms of the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s Unfair Competition Act. The LG Essen took the view that consumers’ understanding of the term “Praxisklinik” entailed an outpatient facility where surgical procedures can also be performed. It noted that while the term “Klinik” was originally regarded as being synonymous with “Krankenhaus”, it now covers both inpatient as well as outpatient facilities. By positioning the word “Praxis” immediately before “Klinik”, this was said to restrict consumers’ understanding to encompass only outpatient treatment. The Court concluded that consumers understand the term “Praxisklinik” to mean an outpatient facility where surgical procedures are also possible.

 

The Court’s ruling shows that the meaning of the word “Klinik” in its use as an integral part of a larger concept has since been stretched to more than a synonym for hospital. It drew a parallel with the term “Tagesklinik”, literally “day clinic”. We at the commercial law firm GRP Rainer Rechtsanwälte note that in this example it was also said to be evident that patients are not admitted as inpatients.

 

Violations of competition law are nevertheless easily committed and can be met with severe penalties. Lawyers who are experienced in the field of competition law can offer advice as well as enforce or fend off claims in the event that violations of competition law occur.

 

For more informations: https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/competition-law.html

]]>
PressemitteilungenWettbewerbsrecht
news-3269 Fri, 10 Aug 2018 08:14:31 +0200 LAG Hamm – Prohibited surveillance in the workplace https://www.grprainer.com/en/news-and-press/detail/news/lag-hamm-prohibited-surveillance-in-the-workplace.html Monitoring employees using video surveillance is only permitted within narrow boundaries. Illegal recordings cannot therefore be used as evidence in the context of workplace legal disputes.

There are justifiable reasons for monitoring the workplace using video cameras. Particularly in areas which are accessible to the public such as storefronts, video cameras are a common sight. However, this needs to be readily apparent to customers and employees alike. We at the commercial law firm GRP Rainer Rechtsanwälte also note that the recordings must always be deleted as soon as possible once they are no longer capable of fulfilling their intended purpose or the legitimate interests of the persons’ affected preclude their ongoing storage.

In a case heard by the Landesarbeitsgericht (LAG) Hamm, the Regional Labour Court of Hamm, a storefront had been monitored by three video cameras. This was clearly indicated and the employees were informed. According to the employer, the video surveillance was meant to provide information on criminal offences committed by third parties. The employer went on to claim, however, that an analysis of the video footage also revealed that one of the employees had acquired money or goods by illegal means. The employer terminated the employment relationship with immediate effect and demanded compensation in the amount of approximately 10,000 euros.

The employee in question initially instituted an action for wrongful dismissal but later withdrew this. She nonetheless demanded payment of her outstanding wages and that the claim for compensation be dismissed. The relevant labour court found in favour of the employee, and the employer’s subsequent appeal before the LAG Hamm was unsuccessful.

In its judgment from June 12, 2017, the LAG Hamm held that the employer had not been able to demonstrate misconduct that would justify the extent of the claim for compensation. Furthermore, the video footage could not be used as evidence. The Court went on to say that the video sequences were excluded from being used as evidence for reasons of data protection and individual privacy. It ruled that any data collected must always be deleted immediately once it is no longer required for the purposes of achieving its aim or the legitimate interests of those affected preclude its ongoing storage. The Court proceeded on the basis of a period of one to two or certainly no more than a few business days. In the instant case, the data had been stored for three months. After weighing up the interests of all sides, the OLG found that this data protection violation gave rise to an exclusion of evidence.

Lawyers who are experienced in the field of employment law can advise on all matters pertaining to the workplace.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

]]>
ArbeitsrechtPressemitteilungen
news-3263 Fri, 03 Aug 2018 08:37:59 +0200 Power of attorney can constitute a valid will https://www.grprainer.com/en/news-and-press/detail/news/power-of-attorney-can-constitute-a-valid-will.html It is possible for a power of attorney to constitute a valid will. That was the verdict of the Oberlandesgericht (OLG) Hamm, the Higher Regional Court of Hamm, in a ruling from May 11, 2017 (Az.: 10 U 64/16).

A will should always be clearly recognizable as the testator’s final wishes to prevent disputes from arising among the heirs. We at the law firm GRP Rainer Rechtsanwälte note that it will ideally have an unambiguous heading such as “my will” or “my final wishes”. That being said, even personally prepared documents that, for instance, feature the heading “Vollmacht”, i.e. “power of attorney”, are capable of constituting a valid will. That was the verdict of the Oberlandesgericht Hamm in a recently published ruling.

In the case in question, the testatrix had drafted a testamentary disposition featuring the heading “Testament” (will) in which she provided that her two sisters were to inherit half of her detached house each. Only a few days later, the testatrix prepared another document with the heading “Vollmacht” in which she granted her niece power of attorney in relation to her savings contract with a building society, her checking account, savings book and financial investments beyond her death and to have the balances paid out to her.

There was no disagreement regarding the fact that the testatrix had designated her sisters as co-heirs to half of the estate each as per the will, as the house represented the testatrix’s main asset. The probate court issued a certificate of inheritance accordingly.

What was disputed, however, was whether the testatrix’s niece was entitled to inherit. The latter argued that her aunt had allocated the balances to her as legacies and that the second document was not merely a power of attorney but rather a will. The OLG Hamm found in the niece’s favour, concluding that the power of attorney granted constituted a valid will. The Court went on to say that it had been personally written and signed by the testatrix, and thus met the formal requirements for it to be a will. Moreover, it was possible to identify a serious intention to make a will; the fact that the document featured “Vollmacht” as its heading did not, according to the OLG, count against this, because it was already clear from the will that the testatrix was not familiar with the usual wording associated with a testamentary disposition. It could therefore be assumed that the testatrix had wanted to bequeath the balances to her niece.

A will should always be clearly worded to ensure that testamentary dispositions are in fact capable of being implemented in accordance with the wishes of the testator. Lawyers who are experienced in the field of succession law can offer advice.

For more informations:

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

]]>
Testament / ErbvertragPressemitteilungen
news-3261 Thu, 02 Aug 2018 08:45:33 +0200 Breach of duty by management – Special audit in cases involving a GmbH https://www.grprainer.com/en/news-and-press/detail/news/breach-of-duty-by-management-special-audit-in-cases-involving-a-gmbh.html If there is reason to suspect that management has breached its duties, the shareholders of a GmbH, a type of a German private limited company, can request that a special audit be carried out.

We at the commercial law firm GRP Rainer Rechtsanwälte note that the responsibilities of the shareholders of a GmbH include approving the annual financial statement as well as scrutinizing and monitoring management. In a judgment from December 14, 2017, the Oberlandesgericht (OLG) München, the Higher Regional Court of Munich, ruled that the right to scrutinize and monitor management also encompasses the right to appoint special auditors (Az.: 23 U 1481/17).

According to the OLG München’s ruling, a special audit is only impermissible if the application for its implementation is unlawful and constitutes a breach of a fiduciary duty by the shareholder filing the application. Moreover, the implicated shareholder has no voting rights in relation to the preparatory actions and decisions taken in respect of a special audit.

If shareholders of a GmbH are concerned that management has breached its duties, they can request a special audit. For the purposes of adopting a resolution, a simple majority is sufficient. In the case before the OLG München, two families with equal shares in a GmbH & Co. KG, a type of limited partnership with a GmbH as general partner, as well as a Komplementär-GmbH, a.k.a. a general partner GmbH, had fallen out. One of the families filed for a special audit and later voted in favour of this measure, whereas the other family voted against it. The managing director was not entitled to vote and the resolution concerning a special audit was passed.

The managing director then raised a legal complaint against this. However, the lawsuit was largely unsuccessful. The OLG München held that the shareholders of a GmbH are entitled to appoint special auditors. It ruled that in order for this to happen it is necessary for a tangible cause informed by the facts and circumstances to be presented to the general meeting of the shareholders. The Court noted that the suspicion of a breach of duty by management must follow from these facts and circumstances. Furthermore, the special audit must prove to be expedient in the form in which it was specifically requested. The Court went on to say that a special audit is only impermissible if the application is unlawful and constitutes a breach of a fiduciary duty by the shareholder filing the application.

Disputes among the shareholders of a GmbH are a regular occurrence. If these differences of opinion cannot be cleared up, lawyers who are experienced in the field of company law can offer advice and recommend targeted resolutions.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law.html

]]>
PressemitteilungenGesellschaftsrecht
news-3255 Thu, 26 Jul 2018 08:25:00 +0200 BGH – Abuse of superior market power is a violation of antitrust law https://www.grprainer.com/en/news-and-press/detail/news/bgh-abuse-of-superior-market-power-is-a-violation-of-antitrust-law.html If a company abuses its market power, this constitutes a violation of antitrust law. In a ruling from January 23, 2018, the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, has bolstered the Bundeskartellamt, Germany’s Federal Cartel Office (Az.: KVR 3/17).

Companies with superior market power are not allowed to put pressure on suppliers to obtain undue advantages for themselves. This kind of abuse of market power constitutes a violation of the Gesetz gegen Wettbewerbsbeschränkungen (GWB), the German Act Against Restraints of Competition. This so-called “Anzapfverbot”, i.e. prohibition on demanding unjustified benefits from suppliers, is applicable not only to businesses in a dominant market position; we at the commercial law firm GRP Rainer Rechtsanwälte note that it also applies in cases where small or medium-sized companies are dependent on a buyer and the latter therefore has superior market power.

The issue of when this kind of abuse can be said to have occurred has since come to the attention of the BGH. The case in question concerned a supermarket chain that had acquired a number of stores from a discount supermarket. Talks took place with the suppliers during the course of the acquisition with a view to obtaining favourable terms in the form of so-called “Hochzeitsrabatte”, i.e. wedding discounts. In addition to demanding the best possible terms in each case, other benefits, such as “Partnerschaftsvergütung”, a.k.a. partnership compensation, were also requested.

The Bundeskartellamt deemed this to be an abuse of market power by the supermarket chain and thus a violation of the GWB (Az.: B2-58/09). The Cartel Office’s decision was then overturned by the Oberlandesgericht (OLG) Düsseldorf, the Higher Regional Court of Düsseldorf. The OLG proceeded on the assumption that the negotiations involving the supermarket chain and the suppliers were between two parties in an equally strong position. The Court held that the supermarket chain had not abused its market power and that the discounts had been permissible.

The BGH has now overridden important aspects of the OLG Düsseldorf’s judgment in appeal proceedings. The former concluded that the supermarket chain had violated the prohibition on demanding unjustified benefits from suppliers, stating that the supermarket chain had not been allowed to choose dates as deadlines for the comparison of terms that came significantly before the discounter’s acquisition. Moreover, payments such as the aforementioned partnership compensation in relation to which there is no consideration cannot be requested.

Violations of competition law or antitrust law can give rise to severe penalties. That being said, these violations are by no means always obvious. Even individual contractual clauses can be in violation of applicable law. Lawyers who are experienced in the fields of antitrust law and competition law can advise businesses as well as enforce or fend off claims in the event of violations of either antitrust law or competition law.

For more informations: https://www.grprainer.com/en/legal-advice/antitrust-law.html

]]>
PressemitteilungenKartellrecht
news-3248 Wed, 18 Jul 2018 08:40:28 +0200 Commercial agent’s right to claim compensation in the case of past clients https://www.grprainer.com/en/news-and-press/detail/news/commercial-agents-right-to-claim-compensation-in-the-case-of-past-clients.html The commercial agent’s right to claim compensation in the event of turnover increases with past clients comes up time and time again as a contentious issue. A ruling of the Oberlandesgericht (OLG) Celle, the Higher Regional Court of Celle, has now bolstered the position of commercial agents (Az.: 11 U 88/16).

Following termination of the commercial agency agreement, the commercial agent is often entitled to claim compensation. This right normally exists if the commercial agent has established new business contacts for the company and the latter continues to benefit from these contacts. The matter frequently becomes a contentious issue in cases where the commercial agent further develops business contacts with existing clients and increases turnover. Until now, the case law has started from the premise that the commercial agent only becomes entitled to claim compensation if he or she has increased their old client’s turnover by 100 per cent. We at the commercial law firm GRP Rainer Rechtsanwälte note, however, that a ruling of the Oberlandesgericht Celle from February 16, 2017 has bolstered the position of commercial agents.

According to the OLG Celle’s judgment, the commercial agent might already be entitled to claim compensation if he or she has increased past clients’ turnover by more than 50 per cent.

In the case in question, the commercial agent had marketed certain products to pharmacies and cosmetic institutes. When the commercial agency agreement was terminated, he asserted a claim for compensation for turnover increases with three past clients, each of whose turnover he had increased by between 58 and 76 per cent. In the view of the OLG, there can be said to have been a substantial expansion of business relations if an increase in turnover of over 50 per cent has been achieved. Thus, the commercial agent was entitled to claim compensation in these three cases. The Court held that national case law, which requires turnover to have been doubled in order to give rise to a claim for compensation, is not consistent with the Directive on Commercial Agents (Council Directive 86/653/EEC of 18 December 1986).

The position of commercial agents has been strengthened by the OLG Celle’s ruling. Notwithstanding this, the issue of whether an increase in turnover of more than 50 per cent is sufficient as a general matter of principle for the purposes of claiming compensation will need to be clarified by further case law.

Lawyers who are experienced in the field of commercial law can advise companies and commercial agents on matters ranging from the drafting and eventual termination of the agreement to claiming compensation.

For more informations:

https://www.grprainer.com/en/legal-advice/commercial-law/commercial-agency-law.html

]]>
HandelsvertreterrechtPressemitteilungen
news-3246 Tue, 17 Jul 2018 08:52:46 +0200 GRP Rainer Rechtsanwälte – Report on D&O insurance https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-report-on-do-insurance.html In cases where damage or injury has occurred, it is increasingly common for the issue of D&O liability to take centre stage. For this reason, many companies have taken out a D&O insurance policy for their managers.

Besides a great deal of responsibility, a company’s governing bodies also bear a high risk of personal liability. Mere negligence can be sufficient to give rise to both internal as well as external liability on the part of boards of directors, supervisory boards or managing directors. To reduce their managers’ risk of personal liability, a lot of companies therefore decide to take out a D&O (directors and officers) insurance policy for their governing bodies and executive employees. According to a report by the commercial law firm GRP Rainer Rechtsanwälte, D&O insurance should always be tailored to the individual risks faced by managers to ensure that the coverage actually kicks in.

A common point of contention here is when the governing bodies cede their right of indemnity vis-à-vis the D&O insurer directly to the company. What has often happened in these cases is that the insurance company has not wanted to stand good. They argue that the companies do not intend to make a serious claim on their governing bodies but instead are only after the insured sum.

On this issue, the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, has bolstered the rights of policyholders substantially with two ground-breaking judgments (Az.: IV ZR 304/13 and IV ZR 51/14). In doing so, the BGH established that the seriousness with which a claim is brought is not a prerequisite for coverage kicking in if an insured eventuality occurs. Instead, the decisive factor was said to be the manger making the claim in written form. Moreover, the Court held that it is acceptable for the governing bodies to assign their right of indemnity to the company that makes a claim against them. Accordingly, ceding the right of indemnity to the aggrieved company did not constitute conduct amounting to a violation of contract. The aggrieved company can thus directly assert its claims against the D&O insurer.

When taking out a D&O insurance policy, one should therefore always make sure that the managers’ individual liability risks are optimally covered. A key issue here is ensuring coverage of the risk of both internal and external liability on the part of governing bodies. Other essential factors include, e.g. the extent of the insured sum as well as the issues of retroactive coverage and cover for follow-up liability.

Lawyers who are experienced in the field of company law can offer advice when taking out D&O insurance and enforce claims against the insurer.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law.html 

]]>
PressemitteilungenGesellschaftsrecht
news-3244 Mon, 16 Jul 2018 08:22:38 +0200 GRP Rainer Rechtsanwälte – Experience with right of authorized dealer to claim compensation https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-experience-with-right-of-authorized-dealer-to-claim-compensation.html Like commercial agents, authorized dealers may also be entitled to claim compensation after the relevant agreement has been terminated. For this to happen, certain conditions need to be fulfilled.

Unlike commercial agents, authorized dealers operate under their own name and for their own account. The latter markets another company’s products under its own name, whereas a commercial agent enters into agreements and transactions on behalf of the company. In return, the commercial agent receives commission and is normally entitled to claim compensation once the commercial agency agreement has been terminated. We at the commercial law firm GRP Rainer Rechtsanwälte note that authorized dealers can also be entitled to this right to claim compensation under certain circumstances.

The reasoning behind the commercial agent’s right to claim compensation is that he has established business contacts which the company will continue to benefit from even after the agreement has been terminated and without having to continue paying commission. While the authorized dealer conducts business under their own name and bears the associated entrepreneurial risk, he might nonetheless be entitled to claim appropriate compensation from his contractual partner pursuant to sec. 89 b) of the Handelsgesetzbuch (HGB), i.e. the German Commercial Code.

One of the conditions for the analogous application of sec. 89 b) HGB entails the authorized dealer having committed to transfer their client base to the contractual partner, with the result that the latter can continue to benefit from the client data even after the agreement has been terminated. The authorized dealer should also be involved in the company’s marketing in a similar fashion to a commercial agent. He needs to be involved to the extent that he has extensive obligations to perform commercially-relevant tasks that are otherwise assigned to a commercial agent (BGH, VII ZR 315/13).

According to the provisions of sec. 89 b) HGB, the authorized dealer’s right to claim compensation cannot be excluded in advance. This applies both to authorized dealers operating in Germany as well as, following another ruling of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, those operating within the EU or the EEA (ruling from February 25, 2016, Az.: VII ZR 102/15).

Authorized dealers may therefore be entitled to claim compensation, but certain conditions need to be fulfilled for this to happen. Lawyers who are experienced in the field of commercial law can serve as expert advisors in the event of legal disputes and when drafting agreements.

For more informations:

https://www.grprainer.com/en/legal-advice/commercial-law.html

]]>
PressemitteilungenHandelsrecht
news-3241 Thu, 12 Jul 2018 08:42:28 +0200 GRP Rainer Rechtsanwälte – Abuse of a dominant market position – Antitrust assessment https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-abuse-of-a-dominant-market-position-antitrust-assessment.html Businesses are not allowed to abuse their dominant market position, as this constitutes a violation of antitrust law. The key issue that requires assessment is when this kind of abuse has occurred.

Abuse of a dominant market position constitutes a violation of antitrust law. According to the Gesetz gegen Wettbewerbsbeschränkungen (GWB), Germany’s Act Against Restraints of Competition, a business is considered to occupy a dominant market position if it has no competitors or is not exposed to any substantial competition, or has a paramount market position in relation to its competitors. We at the commercial law firm GRP Rainer Rechtsanwälte note that one circumstance pursuant to which a dominant market position or superior market power can said to have been abused is when a business takes advantage of its contractual partner’s dependence or at least prompts the latter to grant it benefits for which there is no objective justification.

When it comes to assessing when this type of antitrust violation has occurred, the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, further strengthened the so-called “Anzapfverbot”, i.e. the extraction ban, in its ruling of January 23, 2018 (Az.: KVR 37/17). According to this, a violation can be said to have occurred from as early as when the company prompts its contractual partner to grant it benefits that have no objective justification and not only once an agreement has been concluded to this end. In the case in question, a supermarket chain had demanded more favourable terms such as “Hochzeitsrabatte” (wedding discounts) or “Partnerschaftsvergütung” (partnership compensation) from suppliers during the course of a takeover. These demands are impermissible according to the BGH’s ruling, because they were neither met with any consideration nor did they have any objective justification.

Following this decision, businesses with a dominant market position or superior market power should refrain from exploiting their position and making arbitrary or retrospective demands if there are no objective reasons underlying these demands.

The BGH’s ruling has thus bolstered the position of suppliers, yet it has also restricted the freedom to negotiate of businesses in a dominant market position. While this does not mean that driving a hard bargain for better conditions is forbidden, certain limits do need to be respected if one is to avoid violations of antitrust law.

Lawyers who are experienced in the fields of antitrust law and competition law can advise businesses as well as enforce or fend off claims in the event of violations of antitrust or competition law.

For more informations:

https://www.grprainer.com/en/legal-advice/antitrust-law.html

]]>
KartellrechtPressemitteilungen
news-3237 Mon, 09 Jul 2018 09:31:10 +0200 GRP Rainer Rechtsanwälte – Assessing manager liability in the event of imminent insolvency https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-assessing-manager-liability-in-the-event-of-imminent-insolvency.html One of a managing director’s duties is filing for insolvency on time. If this duty is breached, the managing director may be held personally liable.

Under no circumstances should managing directors ignore signs of imminent insolvency, as filing for insolvency in a timely manner is one of their duties. Failure to file for insolvency on time or making undue payments in spite of impending insolvency can make life extremely unpleasant for the managing director; his or her breach of duty can give rise to personal liability and an obligation to pay damages to both the company’s shareholders and creditors.

We at the commercial law firm GRP Rainer Rechtsanwälte note that the managing director is obligated by law to file for insolvency without undue delay, but no later than three weeks following the onset of insolvency or the company’s over-indebtedness. The initial decisive factor here is an assessment of the point in time when factual insolvency occurred, or when the company became insolvent or over-indebted.

According to the Insolvenzordnung, the German Insolvency Act, insolvency has occurred if the company is not able to meet its payment obligations. This condition is said to have been satisfied if a large proportion of due liabilities is not being paid, even if payments are still being made. However, it also needs to be assessed whether solvency is capable of being re-established within the three-week period. A company can typically be said to be over-indebted if its assets no longer cover the existing liabilities.

In the case of imminent insolvency, it is no longer permissible for any payments to be made that might reduce the insolvency estate. The managing director should therefore ensure that no more payments are made from within the company, including by other persons who are authorized to make payments. If the managing director breaches his duty, he may be held personally liable.

To avoid the risk of manager liability, if a company experiences financial difficulties it ought to be assessed whether insolvency has in fact already occurred or whether there are only some indications of this. Managing directors should take prompt action in these cases. Lawyers who are experienced in the field of company law can serve as go-to experts.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law.html

]]>
PressemitteilungenGesellschaftsrecht
news-3233 Wed, 04 Jul 2018 07:57:08 +0200 Heirs within a patchwork family https://www.grprainer.com/en/news-and-press/detail/news/heirs-within-a-patchwork-family.html Patchwork families, also known as blended families, are no longer a rarity today, yet succession law has yet to adapt to this development. According to the rules of intestate succession, stepchildren come away empty-handed.

Society has changed substantially over the last few decades. In addition to the traditional family model, patchwork families have also established themselves. It is common for one or both partners to bring children into the relationship. While the new partner assumes the role of a parent in practice, succession law continues to make a distinction between biological and stepchildren.

We at the law firm GRP Rainer Rechtsanwälte note that biological children are automatically entitled to inherit according to the rules of intestate succession. The same is true for adopted children. In the case of patchwork families, the decision is often made to forego adoption. This means that the stepchildren have no legal right to inherit in the event of succession. If there is a desire for the stepchildren to inherit, the testator must set forth this wish in a will or contract of inheritance. How he or she divides the estate among the heirs in doing so is a decision that is left up to him or her. Notwithstanding this, it is important to note that biological children are entitled to the compulsory portion of the estate in any case.

Thus, if the intention is for the biological as well as stepchildren to inherit, the testator needs to prepare a will or contract of inheritance. An elegant solution to this is a so-called “Berliner Testament” (Berlin will). Here, the spouses mutually appoint each other as sole heirs and typically designate their children as final heirs. This means that both the married couple’s biological children in common and the biological children of only one of the partners to the marriage are accounted for.

Having said all of that, it needs to be borne in mind that a Berliner Testament has a strong binding effect and it is generally no longer possible to unilaterally alter joint provisions if no clause to this effect has been agreed in the will. If one of the spouses passes away, the other remains bound by the joint provisions.

When drawing up a will, it should therefore always be borne in mind that people’s situation in life can change fundamentally. It is equally crucial for the wording of a will to be clearly and unambiguously formulated, such that it leaves no room for interpretation and thus prevents disputes among the heirs from arising.

Lawyers who are experienced in the field of succession law can advise on all matters pertaining to wills and contracts of inheritance.

For more informations:

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

]]>
Testament / ErbvertragPressemitteilungen
news-3231 Tue, 03 Jul 2018 08:09:43 +0200 GmbH shareholder’s rights of access and inspection https://www.grprainer.com/en/news-and-press/detail/news/gmbh-shareholders-rights-of-access-and-inspection.html The shareholders of a GmbH, a type of German private limited company, have extensive rights to information that go beyond the general meeting of the shareholders, and they are able to exercise their rights of access and inspection.

GmbH shareholders entrust the managing director with the fate of their company. Notwithstanding this, they do, of course, have the right to be informed about what is happening in their firm at all times. In addition to the general meeting of the shareholders, the rights of access and inspection are an important tool for shareholders to gain an insight into all commercially and legally relevant matters within the company. We at the commercial law firm GRP Rainer Rechtsanwälte note that while their rights of access and inspection are indeed wide-ranging, they are not without their limits.

What is the order situation? Which projects have been completed and which are at the planning stage? How are the agreements structured? These and other questions are of interest to all shareholders. They receive answers to these questions at the general meeting of the shareholders. They can also receive answers by exercising their rights of access and inspection, and in doing so request information concerning concluded transactions, projects at the planning stage, agreements, records, protocols etc. These rights to information may also be applicable to a limited extent if the GmbH has a financial interest in other companies.

The GmbH shareholder’s rights of access and inspection cannot be restricted by the articles of association. Moreover, the managing director is obligated to provide the desired information without delay. However, he or she must also assess whether providing the information would go against the company’s interests. This would be the case, for instance, if there was reason to fear that the shareholder might use the information for non-company purposes and thereby damage the company, e.g. because the shareholder has a financial interest in a rival company as well.

In such instances, the managing director needs to act prudently. If he or she acts on their own authority in refusing access or the right of inspection, he or she is committing a breach of duty and may render themselves liable to pay damages. Conversely, he or she cannot release the information if they have reason to fear an abuse of rights or use of information for non-company purposes. The final decision must therefore be taken by the general meeting of the shareholders. The shareholder seeking the information is not authorized to vote on this resolution. If the general meeting decides to deny the shareholder access or the right of inspection, the latter can still try and enforce his or her rights through the courts.

Lawyers who are experienced in the field of company law can advise shareholders and managing directors.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law.html

]]>
GesellschaftsrechtPressemitteilungen
news-3225 Tue, 26 Jun 2018 08:12:49 +0200 No discrimination – Local authority position for equal opportunity officer only open women https://www.grprainer.com/en/news-and-press/detail/news/no-discrimination-local-authority-position-for-equal-opportunity-officer-only-open-women.html Germany’s General Act on Equal Treatment, aka the allgemeine Gleichbehandlungsgesetz (AGG), is supposed to protect against discrimination, e.g. on the basis of gender. That being said, exceptions can be made, as demonstrated by a ruling of the Landesarbeitsgericht (LAG) Schleswig-Holstein [Regional Labour Court of Schleswig-Holstein].

Discrimination in the workplace is also meant to be prohibited. The AGG is supposed to afford protection and prevent people from being discriminated against, for example, because of their race, gender, religion or age. We at the commercial law firm GRP Rainer Rechtsanwälte note that for employers this means the need to ensure they use appropriate wording, including when posting job advertisements; if applicants are discriminated against from the outset, they may be entitled to claim compensation.

Having said that, not every instance of discrimination is automatically a violation of the AGG, as is clear from a judgment of the LAG Schleswig-Holstein from November 2, 2017 (Az.: 2 Sa 262 d/17). In the instant case, a district in Schleswig-Holstein had advertised a vacancy for an equal opportunity officer. A man who had applied for the position was rejected, according to the Ministry for Social Affairs, Health, Science and Equality, on the grounds that only women can carry out the role of an equal opportunity officer in the public sector.

The man felt he had been treated unfairly and sued pursuant to the AGG for compensation amounting to three times the monthly salary on account of gender-related discrimination in the application process.

However, the LAG Schleswig-Holstein dismissed the claim. The Court stated that while the plaintiff had indeed been discriminated against because as a man he had no chance of getting the job, this form of discrimination is permissible as the legal framework in Schleswig-Holstein only provides for female equal opportunity officers, and this does not constitute a violation of the requirement for equal treatment; the relevant provisions are designed to eliminate structural disadvantages that are still faced by women to this day. The LAG went on to say that being female is an important prerequisite for a substantial portion of the tasks that go hand in hand with the position of equal opportunity officer.

There is always the possibility of discrimination leading to legal disputes, similar to how dismissal or working hours are frequent points of contention in the workplace. Lawyers who are experienced in the field of labour law can advise employers.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

]]>
ArbeitsrechtPressemitteilungen
news-3222 Fri, 22 Jun 2018 08:39:26 +0200 BGH: Removal of a shareholder managing director for good cause https://www.grprainer.com/en/news-and-press/detail/news/bgh-removal-of-a-shareholder-managing-director-for-good-cause.html When it comes to the removal of a shareholder managing director of a GmbH, a type of German private limited liability company, for good cause, it is a matter of whether there was in fact good cause at the time the decision was taken.

Disputes among the shareholders of a GmbH are not uncommon. If these give rise to a situation whereby the shareholder managing director is set to be removed and his or her employment contract terminated, it is often the shareholder managing director’s right to vote at the general meeting of the shareholders that tips the scale. That being said, he or she will not be able to exercise their right to vote if they are being removed for good cause. We at the commercial law firm GRP Rainer Rechtsanwälte note that a frequent point of contention in the case law is whether it is enough for good cause justifying removal to have a merely formal basis or whether good cause needs to be objectively supported by the facts and circumstances.

The Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, has provided clarity on this issue. In its judgment of April 4, 2017, the BGH ruled that when it comes to removing a shareholder managing director of a GmbH or terminating his or her employment contract, it is a matter of whether there was in fact good cause at the time the decision was taken. The burden of proof is on the party making reference to good cause (Az.: II ZR 77/16).

In the instant case, two shareholders of a GmbH had differences of opinion. The plaintiff held 49 per cent of the shares in the company and sought the immediate removal of the managing director as well as termination of his employment contract. The defendant shareholder managing director held 51 per cent of the shares. He voted against the proposals in the general meeting of the shareholders and secured their rejection.

The legal proceedings concerned whether the shareholder managing director had been allowed to exercise his right to vote in the first place. The action was unsuccessful. The BGH held that there needs to objectively be good cause justifying removal and termination of the employment contract at the time the decision was made. The Court ruled that no such good cause existed at the time of the general meeting of the shareholders. The BGH went on to say that there can be said to be good cause if any further activity by the managing director would be unreasonable for the company, especially if this is due to gross derelictions of duty.

Lawyers who are experienced in the field of company law can advise shareholders and managing directors in the event of disputes and see to it that there are detailed contractual arrangements.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law.html

]]>
PressemitteilungenGesellschaftsrecht
news-3216 Fri, 15 Jun 2018 07:40:38 +0200 Prohibited advertising – No bread roll vouchers at pharmacy https://www.grprainer.com/en/news-and-press/detail/news/prohibited-advertising-no-bread-roll-vouchers-at-pharmacy.html Pharmacies are bound by a uniform sales price for prescription medications. Even small additions to the price of medicinal products can constitute a violation of competition law.

Consumers may well think receiving vouchers for the bakery at the pharmacy is a nice idea, but it is problematic from a legal perspective. This is because the price markup constitutes a violation of the Heilmittelwerbegesetz (HWG), Germany’s act regulating the advertising of medicinal products. We at the commercial law firm GRP Rainer Rechtsanwälte note that pharmacies are therefore not permitted to engage in this kind of advertising.

One pharmacy came up with the idea when handing over fixed-price prescription medication of giving its customers a so-called “Brötchen-Gutschein” (bread roll voucher) for a nearby bakery to take with them without being asked. This brought it trouble. An industrial interest group considered this to be an infringement of the rules on price fixing for medicinal products and sought an injunction. The Landgericht Darmstadt (Regional Court of Darmstadt) granted the action. The pharmacy’s appeal before the Oberlandesgericht Frankfurt (Higher Regional Court of Frankfurt) was unsuccessful (Az.: 6 U 164/17).

In its judgment of November 2, 2017, the OLG held that a uniform price applies to the sale of prescription medications in pharmacies. It stated that this rule is supposed to regulate price competition among pharmacies. The Court noted that this rule could be said to have been violated if a pharmacy sells a medicinal product at the prescribed price but also throws in a voucher. This was said to represent an economic advantage to customers, as especially when the price of medicinal products is identical across all pharmacies even a small contribution of little value could motivate consumers to purchase their medications at the pharmacy offering the perks. It went on to say that price fixing for prescription medications is meant to prevent a ruinous price war among pharmacies and ensure an equitable supply of medicinal products to consumers across the board.

The OLG nonetheless granted leave to appeal with respect to the issue of domestic discrimination. The background to this is that foreign mail-order pharmacies are allowed to sell prescription medicinal products in Germany without price fixing. Should foreign mail-order pharmacies’ market share increase to such an extent that the existence of brick-and-mortar pharmacies in Germany is threatened, the rules on price fixing for medicinal products could prove worrisome.

Violations of competition law can give rise to formal warnings, damages claims and injunction suits. Lawyers who are experienced in the field of competition law can assist businesses in fending off or enforcing claims arising from violations of competition law.

For more informations:

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law.html

]]>
MarkenrechtPressemitteilungen
news-3214 Thu, 14 Jun 2018 08:32:44 +0200 Prohibited advertising for homeopathic medicinal products featuring promise of success https://www.grprainer.com/en/news-and-press/detail/news/prohibited-advertising-for-homeopathic-medicinal-products-featuring-promise-of-success.html The Oberlandesgericht (OLG) München [Higher Regional Court of Munich] has ruled that promoting a homeopathic medicinal product with a promise of success is prohibited and a violation of competition law.

For a homeopathic medicinal product to be approved, it is not necessary for its effectiveness to be proven with reference to scientific studies. We at the commercial law firm GRP Rainer Rechtsanwälte note that businesses are therefore not allowed to make promotional statements that effectively amount to a guarantee of recovery or at least give this impression. In its ruling May 4, 2017, the Oberlandesgericht München made it clear that this kind of advertising is misleading and constitutes a violation of competition law (Az.: 29 U 335/17).

In the instant case, a pharmaceutical company had promoted a homeopathic remedy for headaches with statements such as “bekämpft Kopfschmerzen zuverlässig” (reliably combats headaches) and “effektiv gegen Kopfschmerzen” (effective against headaches). The OLG München held that these statements were a violation of the Heilmittelwerbegesetz (HWG), the German act regulating the advertising of medicinal products, as well as the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s unfair competition act. The Court went on to say that these promotional statements gave the impression that recovery is a certainty. For this reason, the statements were said to be misleading.

The Court ruled that an explicit promise that recovery will be a success is not necessary for these statements to be misleading; it is enough for the statements to give consumers this impression. The OLG held that it is equally unnecessary for a plausible rate and success of recovery to have been promised for all conceivable symptoms. It is sufficient if it is advertised that it can be reliably expected to be successful as a rule.

Furthermore, the Court found that the promotional statement “ohne bekannte Neben- und Wechselwirkungen” (no known side effects or interactions) was also misleading to consumers, as it was said to be apparent from the package leaflet that symptoms could even get worse for a short time. As such, side effects were very much a possibility, which was pointed out in the instructions but not the advertising. The Court noted that while it is known that homeopathic medicinal products can lead even to a potential worsening initially, the advertising did not indicate that these were homeopathic remedies. As a result, consumers were said to have been misled. The OLG went on to also say that consumers trusted that this statement was backed up by scientific studies. Notwithstanding this, the Court noted that such studies are not required in the case of homeopathic remedies.

Competition violations can result in formal warnings, damages claims and injunction suits. Lawyers who are qualified in the field of competition law can assist businesses in fending off or enforcing claims.

For more informations:

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law.html

]]>
MarkenrechtPressemitteilungen
news-3212 Wed, 13 Jun 2018 08:23:40 +0200 OLG Frankfurt on misleading food advertising https://www.grprainer.com/en/news-and-press/detail/news/olg-frankfurt-on-misleading-food-advertising.html Foods are not allowed to give consumers false impressions concerning their ingredients. That being said, not every ambiguity is automatically considered to be misleading to consumers.

Consumers are not allowed to be misled regarding a food’s ingredients. That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in a ruling from December 2015 (Az. I ZR 45/13). The case concerned the presentation of a fruit tea whose packaging featured, among other things, large vanilla blossoms and raspberries. In fact, the tea contained neither raspberries nor vanilla, nor their flavours. However, this only became clear from looking at the list of ingredients. We at the commercial law firm GRP Rainer note that the BGH held that emphasizing vanilla and raspberries on the packaging was misleading to consumers, and that the list of ingredients did not exclude this possibility.

The facts and circumstances of the case which the Oberlandesgericht Frankfurt (OLG) [Higher Regional Court of Frankfurt] had to rule on in its judgment of June 22, 2017 were somewhat different (Az.: 6 U 122/16). This case concerned an olive mix in transparent plastic packaging containing green and black olives that had not ripened naturally but had instead been turned black. The list of ingredients included an appropriate reference to these being blackened olives.

A consumer protection association considered this to be misleading advertising and sought an injunction, arguing that consumers were being given the impression that these were naturally ripened green and black olives. While the Landgericht (regional court) granted the action, the OLG Frankfurt dismissed it on appeal.

The OLG concluded that the advertising was not misleading. It stated that the product’s presentation did not give the false impression that these were naturally ripened black olives. Notwithstanding this, it went on to say that the reference included in the list of ingredients was not enough to preclude this error of judgment, as even in the case of an accurate list of ingredients it is still possible for consumers to get the wrong idea. However, this was said not to be the case here. The Court ruled that the labelling did not elaborate on but rather confined itself to the expression “Oliven-Mix”, i.e. olive mix. Moreover, the olives contained in the transparent packaging were said to be recognizable and consumers were thus sufficiently informed.

Particularly when it comes to food, there is often a fine line in relation to misleading advertising and a violation of competition law. Lawyers who are experienced in the field of competition law can offer advice.

For more informations:

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/competition-law.html

]]>
WettbewerbsrechtPressemitteilungen
news-3210 Mon, 11 Jun 2018 08:43:53 +0200 Technical function not enough for trademark protection https://www.grprainer.com/en/news-and-press/detail/news/technical-function-not-enough-for-trademark-protection.html According to trademark law, it is not possible to register marks as trademarks if they consist exclusively of a shape that is necessary to obtain a technical result.

Coffee capsules can be purchased in every supermarket, but not all coffee capsules are created equally. Only one provider was allowed to supply certain capsules made from aluminium. This patent protection has since been rescinded by the Bundespatentamt, Germany’s Federal Patent Office (Az.: 25 W (pat) 112/14). The protection under trademark law was rescinded to the extent that it covered coffee, coffee extracts, coffee-based preparations, coffee substitutes and synthetic coffee extracts. The Bundespatentamt justified this decision by stating that there were grounds for refusal pursuant to sec 3 para. 2 no. 2 of the MarkenG, Germany’s Trademark Act, in relation to these goods. It went on to say that the essential characteristics of this trademark served a technical function that was supposed to render its use in a coffee capsule machine advantageous.

We at the commercial law firm GRP Rainer Rechtsanwälte note that a mark can only be registered as a trademark if it possesses the distinctive character necessary to distinguish it from products and services of other providers. Three-dimensional marks, on the other hand, cannot be registered as a trademark if the shape is determined by the type of good itself or is necessary to obtain a specific technical result. The Bundespatentamt recognized this ground for refusal in the case of the coffee capsules.

As a rule, businesses need to be mindful that grounds for refusal can preclude registration of a trademark. There is said to be an absolute ground for refusal if there is a lack of distinctive character vis-à-vis the goods and services of other providers. This means that a mark must be suitably capable of distinguishing itself from other offerings such that consumers are able to attribute the goods or services to a specific business.

In addition, it is possible for there to be other grounds for refusal. For instance, the mark has to be capable of being displayed in a graphical format. Purely descriptive designations are equally impermissible, as there is a public interest against their exclusive use.

It is also important to ensure that existing trademark rights will not be infringed by registering a new trademark. Lawyers who are experienced in the field of trademark law can assess whether registering a trademark is possible and assert or fend off claims arising from trademark violations.

For more informations:

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

]]>
MarkenrechtPressemitteilungen
news-3207 Thu, 07 Jun 2018 09:56:53 +0200 GRP Rainer Rechtsanwälte – Taking out D&O insurance https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-taking-out-do-insurance.html Taking out a D&O insurance policy for a company’s executive bodies is a crucial step to reducing the risk of personal liability.

Managing directors, executive and supervisory boards as well as other executive bodies within a company are subject to a significant risk of liability. Mere negligence can result in personal liability on the part of managers. To minimize this risk, a lot of businesses take out D&O insurance for their executive bodies. In our experience here at the commercial law firm GRP Rainer Rechtsanwälte, it is essential that the policy be tailored to the unique risks faced by the respective managers if the insurance coverage is to actually kick in in the event of liability.

Roles and responsibilities are allocated differently in every company. Accordingly, there is considerable variance in the risks faced by executives. This ought to be borne in mind when taking out D&O insurance. That is why we at GRP Rainer Rechtsanwälte believe conducting a detailed risk analysis should be the first priority. The policy should then be tailored to the individual requirements based on this analysis. This differentiated structuring of the policy is the best way of avoiding a legal dispute with the insurer in the event of a claim.

One important aspect here is the extent of the insured sum. The D&O insurance should also cover the risk of both internal and external liability. The company itself may lodge claims against its own executive bodies if the latter breach their duties of care and thus give rise to loss or damage. This risk of internal liability ought to be appropriately covered in the interests of the managers and the company. It is, of course, also possible for external liability claims to arise against the executive bodies. The D&O insurance should also cover managers against these kinds of third-party claims. This issue of claims for recourse needs to be addressed as well. Furthermore, coverage for both retroactive and follow-up liability has to be taken into account.

Even if the major liability risks faced by the executive bodies are covered by the D&O insurance policy, it is still possible in an emergency for disputes to emerge with the insurer if the latter does not wish to stand good in the event of a claim. Lawyers who are experienced in the field of company law can advise businesses when taking out a D&O insurance policy and assert claims against the insurer.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law.html 

]]>
PressemitteilungenGesellschaftsrecht
news-3203 Mon, 04 Jun 2018 08:42:05 +0200 GRP Rainer Rechtsanwälte – Experience in directors’ liability cases https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-experience-in-directors-liability-cases.html Managing directors of a GmbH, a type of German private limited company, may be liable in the event of insolvency. A common bone of contention is the matter of payments made by the managing director after the onset of insolvency.

We at the commercial law firm GRP Rainer Rechtsanwälte note that a GmbH managing director’s risk of being faced with personal liability can materialize even in cases involving simple negligence. Liability on the part of the managing director can come into question, for instance, if he or she made payments after the onset of insolvency. The contentious issues here are whether the payments were allowed to have been made or whether they have diminished the insolvency estate. GRP Rainer has experience dealing with cases involving directors’ liability.

In its ruling of July 4, 2017, the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, took a position on which payments a managing director is still allowed to make after the onset of insolvency and when he or she is obligated to compensate for these payments (Az.: II ZR 319/15). According to the Court, the executive body’s obligation to pay compensation ceases to apply if the reduction in the insolvency estate caused by the payment is offset by a contribution that is directly linked to this. The contribution must be suited for use by the creditors. The BGH noted that performing work or supplying a service is generally not suitable for this purpose.

In the instant case, the insolvency administrator had brought an action against a “director” of a company limited by shares pursuant to English law that was operating in Germany. The provisions under sec. 64 of the GmbHG, Germany’s limited liability companies act, apply to this company. The “director” had initiated payments to public utility and telecommunications companies as well as paid wages between September 14 and December 9 of 2009. According to the insolvency administrator, the company had been insolvent since no later than September 9, 2009, resulting in the former demanding repayment of these costs.

The action was successful. After the onset of the insolvency, the managing director is supposed to preserve the remainder of the insolvency estate. The BGH held that should he or she nevertheless make payments that diminish the insolvency estate then they are liable to pay compensation. It is not the case in this context that any accrual to the estate should be viewed as an offsetting contribution to the diminished estate; there needs to be a direct economic link, it being noted that the rules on cash transactions pursuant to sec. 142 of the InsO, Germany’s Insolvency Act, do not apply here. Performing work or supplying services is generally not suitable for the purpose of offsetting the reduction in the estate.

Lawyers who are experienced in the field of company law can offer managing directors and other executive bodies advice.

For more informations:

https://www.grprainer.com/en/legal-advice/company-law.html

]]>
PressemitteilungenGesellschaftsrecht
news-3199 Wed, 30 May 2018 08:50:06 +0200 GRP Rainer Rechtsanwälte – Valuating the compulsory portion https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-valuating-the-compulsory-portion.html Spouses and children are entitled to the compulsory portion of an estate even if the testator fails to account for them in his or her will. That being said, the compulsory portion has to be claimed.

In the absence of a will or contract of inheritance, the rules of intestate succession apply. These may not be consistent with the testator’s wishes for various reasons. With the help of a testamentary disposition, the testator can personally determine how his or her estate will be distributed and also designate heirs who would not have been entitled to inherit pursuant to the rules of intestate succession. Notwithstanding this, the testator’s spouse or close relatives, e.g. his or her own children, are still entitled to the statutory compulsory portion under such circumstances.

Those entitled to the compulsory portion include the testator’s spouse, civil partner, children and potentially his or her parents as well. Completely disinheriting someone entitled to the compulsory portion is only possible under strict conditions.

However, valuating the compulsory portion can prove challenging. While it is true that the compulsory portion amounts to half of the statutory share in the estate, calculating this can be problematic because it is necessary to establish the value of the estate. We at the commercial law firm GRP Rainer Rechtsanwälte note that this issue frequently gives rise to disputes between those entitled to inherit according to the will and those entitled to the compulsory portion. Determining the value of the testator’s cash assets is unproblematic, whereas this is more difficult in the case of real estate and other assets, whose value it may only be possible to ascertain through an expert assessment.

In order to valuate the compulsory portion, the value of the estate needs to be ascertained. The persons entitled to the compulsory portion therefore have a right to information relating to the value of the estate vis-à-vis the heirs as well as the right to an estate inventory. On the other hand, the heirs are also entitled to demand information from those entitled to the compulsory portion concerning whether they received any gifts or contributions from the testator during the latter’s lifetime that count towards the inheritance.

Even if there is a valid will or contract of inheritance, it is still possible for disputes to emerge among the heirs when calculating the compulsory portion. Lawyers who are experienced in the field of succession law can offer advice and ensure that the testator’s testamentary dispositions are implemented in a manner that is complaint with the relevant legal provisions.

For more informations:

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession.html

]]>
ErbvertragPressemitteilungen
news-3196 Fri, 25 May 2018 08:28:45 +0200 GRP Rainer Rechtsanwälte – Assessment of a Berliner Testament https://www.grprainer.com/en/news-and-press/detail/news/grp-rainer-rechtsanwaelte-assessment-of-a-berliner-testament.html Spouses frequently draft a Berliner Testament, literally a “Berlin will”, by mutually appointed each other as sole heirs. Before doing so, it ought to be examined whether a Berliner Testament is the most appropriate form.

There are a number of advantages to a Berliner Testament for spouses. They mutually appoint each other as sole heirs and generally their children as final heirs. Should one of the spouses pass away, the remaining partner is afforded financial security by virtue of their status as sole heir. This is because the children are not entitled to inherit until both parents have died. This can be particularly helpful, e.g. if property becomes part of the estate.

That being said, a Berliner Testament also has its pitfalls. It has a strong binding effect. We at the commercial law firm GRP Rainer Rechtsanwälte note that the dispositions can no longer be unilaterally altered if no provisions have been agreed to that effect. For this reason, it should first be assessed whether a Berliner Testament is the most suitable arrangement for the testamentary dispositions.

When a Berliner Testament is being drawn up, there is often a failure to consider the possibility of a dramatic change to living conditions, for example the marriage falling apart, one of the partners starting a new relationship or falling out with the children. The joint testamentary provisions are nonetheless binding. This means that a spouse’s new significant other could end up empty-handed or the children definitely remain final heirs, regardless of the extent to which the relationship may have broken down in the meantime. The provisions cannot be amended unilaterally, not even after one of the spouses has died. To circumvent this strong binding effect, it is possible to incorporate clauses that ease the effect somewhat. Spouses should therefore carefully consider whether they wish to grant the surviving spouse a certain amount of freedom to amend the will again.

Tax allowances are another thing that should always be taken into account when considering inheritance tax. If a spouse becomes the sole heir, the tax allowance may be exceeded and the taxman might come knocking. If, on the other hand, the estate is distributed among several heirs, the individual tax allowances can be used more effectively.

Those who wish to prepare a Berliner Testament should therefore properly inform themselves about the legal consequences. Lawyers who are experienced in the field of succession law can offer advice.

For more informations:

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

]]>
Testament / ErbvertragPressemitteilungen
news-3194 Thu, 24 May 2018 08:13:00 +0200 EGC – Stringent requirements for colour combinations as trademarks https://www.grprainer.com/en/news-and-press/detail/news/egc-stringent-requirements-for-colour-combinations-as-trademarks.html Combinations of two or more colours need to be precisely defined for them to be capable of being registered as a colour trademark. That was the verdict of the General Court of the European Union (EGC) (Az.: T 101/15).

A producer of energy drinks was dealt a blow before the EGC. The former cannot have its colour combination made up of the colours blue and silver registered as a colour trademark and protected. Although it is possible as a matter of principle for colour combinations to be registered as a trademark, we at the commercial law firm GRP Rainer Rechtsanwälte note that the combination of colours has to be precisely drafted and sufficiently distinguish itself from other products. Yet the EU Court held that this adequate definition had not been met in the case in question, ruling in its judgment of November 30, 2017 that colour mark was not distinct enough.

The beverage producer’s blue / silver colour combination had already been registered as a European Union trademark. A competing company raised an action against this, and the European Union Intellectual Property Office (EUIPO) ruled in its favour. The latter concluded that the specifications were far too vaguely formulated. The ratio of the two colours was specified as being approximately 50:50, and it was noted that the colours were side by side. The EGC also concluded that this was not enough, stating that this left room for several combinations that could give rise to a completely different overall impression. The relevant specifications were said to be insufficiently precise for registration as a trademark.

While it is certainly possible for two or more colours to be capable of being registered as a trademark, for this to happen they need to be linked with each other in a particular ratio and a particular form so that consumers are able to identify a particular combination as a trademark. That was not the case here.

Trademarks are of great value to businesses, but before a symbol or sign is registered as a trademark it ought to be assessed whether it meets the necessary requirements and, for instance, distinguishes itself sufficiently from the products and services of other businesses.

Lawyers who are experienced in the field of intellectual property law can advise businesses on all matters pertaining to trademark law.

For more informations: https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

]]>
PressemitteilungenMarkenrecht
news-3191 Mon, 21 May 2018 06:40:52 +0200 General Data Protection Regulation (GDPR) must be implemented by May 25, 2018 https://www.grprainer.com/en/news-and-press/detail/news/general-data-protection-regulation-gdpr-must-be-implemented-by-may-25-2018.html Businesses need to keep May 25, 2018 in mind. This is the day when the EU General Data Protection Regulation, GDPR for short, officially comes into force.

Following a two-year transitional period, the GDPR will come into full force and effect on May 25, 2018, thereby replacing an EU directive dating back to 1995. The GDPR is meant to create a uniform standard for data protection within Europe and provide consumers with greater protection in the digital age. The GDPR shall have precedence over national law. Notwithstanding this, we at the commercial law firm GRP Rainer Rechtsanwälte note that the European Regulation leaves many details open and provides for a certain amount of leeway for national rules and regulations.

In principle, the GDRP applies to all businesses within the EU that gather, record and process personal data. It concerns not only customer or client data, but also data pertaining to company employees. Businesses will now be subject to extensive information and documentation obligations. The more sensitive the data collected is, the stricter the data protection rules are.

For businesses, the implementation of the GDPR means more stringent requirements relating to data protection compliance, especially considering that violations of the Regulation can be severely punished. Fines of up to 20 million euros or up to 4 per cent of worldwide annual turnover can be imposed. Moreover, violations of the GDPR may also be penalized as violations of competition law.

Businesses need to communicate what personal data is being gathered and for what purpose. Personal data refers to information such as name and address, contact details, birthday, IP addresses etc. In short, all data that is likely to allow a person to be identified. This data cannot be collected without consent and has to be processed for a specific purpose or purposes in a transparent and comprehensible manner. Additionally, those concerned have the “right to be forgotten”, i.e. the data must be deleted once the purpose has been achieved. To ensure that data is protected, appropriate technical precautions need to be taken.

The GDPR entails complex changes to data protection law which businesses and employers need to be prepared for. Should violations of the GDPR occur, one should also anticipate formal warnings. To prevent this from happening, it is necessary to obtain expert legal advice or even appoint an external data protection officer.

For more informations:

https://www.grprainer.com/en/legal-advice/it-law-and-media-law/data-protection.html

]]>
DatenschutzPressemitteilungen
news-3187 Thu, 17 May 2018 07:19:59 +0200 CJEU on protected designations of origin https://www.grprainer.com/en/news-and-press/detail/news/cjeu-on-protected-designations-of-origin.html As in the case of brands, geographical designations of origin can be protected as well. It is therefore also possible for advertising featuring references to origin to be misleading to consumers and thus impermissible.

Brands and geographical designations of origin are of great value to businesses. They give rise to certain associations among consumers, e.g. in relation to the quality of a product. We at the commercial law firm GRP Rainer Rechtsanwälte note that for this reason the protection of brands and designations of origin is all the more important.

Having said that, a ruling of the Court of Justice of the European Union (CJEU) from December 20, 2017 demonstrates that the protection afforded to designations of origin can have its limits (Az.: C-393/16). The case before the CJEU concerned a legal dispute between a discount supermarket and an association of champagne producers. The discount supermarket offered ice cream under the name “Champagner Sorbet” (champagne sorbet). The association brought a legal action against this, arguing that it constituted a violation of the protected designation of origin (PDO) “champagne”.

The case ended up before the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, which in turn requested that the CJEU interpret EU legislation pertaining to the protection of registered designations of origin.

The CJEU held that a protected designation of origin has been exploited improperly if the intention behind using the designation is to unduly benefit from its reputation. According to the Court, the designation “Champagner Sorbet” was able to benefit from the prestige of the protected designation of origin “champagne” because consumers associate the latter with a certain class of goods and price range. Notwithstanding this, use of the designation was said not to be illegal if an essential quality of the product is its predominantly champagne flavour, a matter which the CJEU concluded was for the BGH to address.

However, unlawful use might have occurred in the case of a sorbet that, despite the impression given by references in its design or outer packaging, does not include a champagne flavour as one of its essential qualities. References of this kind could be deemed incorrect and misleading. The Court ruled that the protection afforded to registered designations of origin extends beyond the origin of the product in question to incorrect or misleading references pertaining to its nature or essential qualities.

Violations of trademark law or copyright law can be met with severe penalties. Lawyers who are experienced in the field of intellectual property law can advise businesses on enforcing or fending off claims.

For more informations:

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

]]>
MarkenrechtPressemitteilungen
news-3182 Fri, 11 May 2018 07:54:40 +0200 Antitrust law – DFB simplifies ticket allocation for 2018 World Cup https://www.grprainer.com/en/news-and-press/detail/news/antitrust-law-dfb-simplifies-ticket-allocation-for-2018-world-cup.html The way in which it has allocated tickets has led the DFB, Germany’s Football Association, to be suspected of abusing its dominant market position. The Bundeskartellamt, Germany’s Federal Cartel Office, has since suspended its investigations into the matter.

A lot of fans of the German national football team would like to watch the team’s games live in the stadium, but getting hold of the relevant tickets for the 2018 World Cup or the away matches during the qualification phase has proven extremely difficult because the DFB linked the allocation of the tickets to membership of the German national football team’s fan club. The annual fee for the membership was 40 euros.

A large number of complaints were made against this way of allocating tickets, and the Bundeskartellamt initiated administrative procedures against the DFB on suspicion of misuse of a dominant market position. The Bundeskartellamt has confirmed that the proceedings have since been suspended. Prior to this, the DFB had committed to easing the conditions for applying for tickets to the 2018 World Cup in Russia.

Following consultation with the Bundeskartellamt, it is now possible for fans to obtain significantly cheaper and temporary tournament membership for ten euros and apply for tickets. The background to the DFB’s decision to link ticket allocation to membership of the fan club was to thereby ensure greater safety in the stadia. This argument influenced the cartel watchdog’s decision.

We at the commercial law firm GRP Rainer Rechtsanwälte note that abusing a dominant market position can give rise severe penalties, as antitrust law is supposed to ensure there is diverse competition in the interests of consumer protection. Violations of antitrust law or competition law may therefore entail appropriate sanctions, which can in turn lead to costly and time-consuming legal disputes.

To avoid legal disputes arising from possible violations of competition law or antitrust law, lawyers who are experienced in the field of antitrust law ought to be consulted early on. They can assess whether there are concerns from the perspective of antitrust law and overcome potential problems. If specific accusations and claims have already been made due to alleged violations, experienced lawyers can assume responsibility for fending these off. Of course, the same is also true in the reverse case, i.e. if there is an intention to assert claims for violations of antitrust law.

For more informations:

https://www.grprainer.com/en/legal-advice/antitrust-law.html

]]>
KartellrechtPressemitteilungen
news-3180 Thu, 10 May 2018 07:03:23 +0200 BGH – Bank must explain risk if interest rate dependent on exchange rate https://www.grprainer.com/en/news-and-press/detail/news/bgh-bank-must-explain-risk-if-interest-rate-dependent-on-exchange-rate.html If the interest rate on a loan is based on the development of exchange rates, the bank has a duty to inform with respect to the foreign exchange risk. That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in a recent ruling (XI ZR 152/17).

The appreciation of the Swiss franc against the euro has caused problems for a number of borrowers. Notwithstanding this, the relevant bank must explain the exchange rate risk present. We at the law firm GRP Rainer Rechtsanwälte note that according to a judgment of the Bundesgerichtshof from December 19, 2017, this duty to inform also applies if the interest rate on a loan is based on the exchange rate.

The instant case concerned a loan in the amount of approximately 3 million euros that had been taken out by a municipality in North Rhine-Westphalia. The interest rate for the first 20 years was supposed to be 3.99 per cent p.a. assuming an exchange rate from euros to Swiss francs equal to or greater than 1.43. In the event of the euro falling below this threshold, the interest rate would then be 3.99 per cent plus half of the change in the exchange rate from 1.43. During the consultation, the bank pointed out that the Swiss National Bank, Switzerland’s central bank, would adopt a zero interest rate policy in the event of the Swiss franc appreciating and that their threshold for intervention was 1 euro to 1.45 Swiss francs. Additionally, there was a table showing the respective interest rate for exchange rates ranging from 1.39 to 1.65. From a rate of 1.42 to 1.39, the interest rate increased incrementally from 4.34 to 5.43.

In the end, the franc appreciated so strongly that the municipality was supposed to pay an interest rate of 18.99 per cent p.a. It therefore considered the loan agreement to be unjust and void. Moreover, it claimed that the foreign exchange risk had not been properly explained. Despite the municipality’s claim being unsuccessful before the first two courts of instance, the BGH reached a different conclusion.

Although the loan agreement was not found to be unjust, the bank had failed to fulfil its duty to inform. While the dependent relationship between the interest rate and the exchange rate was said to be apparent from examining the agreement, the bank had not explained with sufficient clarity the risks associated with an obligation to make interest payments based on an exchange rate, but instead downplayed these. The court of appeal must now rule on the case anew.

When it comes to problems concerning loan agreements, lawyers who are experienced in the field of banking law can serve as competent advisors.

For more informations:

https://www.grprainer.com/en/legal-advice/banking-law.html

]]>
BankrechtPressemitteilungen
news-3179 Wed, 09 May 2018 09:37:32 +0200 LAG Hamm: Fixed-term employment contract due to extra work must be properly justified https://www.grprainer.com/en/news-and-press/detail/news/lag-hamm-fixed-term-employment-contract-due-to-extra-work-must-be-properly-justified.html A temporary need for manpower can constitute an objective reason justifying a fixed-term employment contract, but this temporary need has to be properly justified.

It is even possible to have several consecutive fixed-term employment contracts if there is an objective reason justifying this. One example of an objective reason justifying a fixed term is if the employer only has a temporary need for extra manpower. Having said that, the employer has to properly make the case that this need is only temporary. We at the commercial law firm GRP Rainer Rechtsanwälte note that it must be possible to anticipate with sufficient certainty that there will be no further need for the extra manpower in question once the contract governing the temporary employment relationship has come to an end. A ruling of the Landesarbeitsgericht (LAG) Hamm [Regional Labour Court of Hamm] from July 6, 2017 shows that a fixed term may be invalid in the absence of this kind of prognosis (Az.: 17 Sa 172/17).

In the instant case, a university had concluded a fixed-term employment contract with an employee for a period of around two years due to an increased amount of student counselling work resulting from double the number of school leavers, with this increased workload not expected to continue after the expiry of the contract. The relevant employee assumed responsibility for other tasks in addition to student counselling, particularly in relation to study coordination.

She later applied to have her employment contract extended for an indefinite period of time, which the university rejected. She subsequently lodged a claim shortly before the fixed-term employment contract expired requesting that it be found that her employment relationship would not come to an end on account of the fixed term. The competent labour court ruled in her favour, and the claim was also successful before the LAG Hamm.

The LAG held that a fixed term in response to a temporary need for manpower presupposes that it be expected with sufficient certainty at the time of the contract’s conclusion that there will be no permanent need for this extra manpower after the contract has expired. The employer must present a prognosis to this end supported by concrete evidence. The Court found that this prognosis represents a component of the objective reason justifying the fixed term. On the other hand, it ruled that general uncertainty regarding a possible future job opportunity does not justify applying a fixed term. The university was found to have failed to demonstrate this, particularly as the employee had taken on other responsibilities as well.

All employment contracts, and not simply those with a fixed term, should always be prepared thoroughly and in detail. Employers can turn to lawyers who are experienced in the field of employment law.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

]]>
ArbeitsrechtPressemitteilungen
news-3175 Fri, 04 May 2018 10:02:58 +0200 BAG: Employer not liable for harm caused by vaccine https://www.grprainer.com/en/news-and-press/detail/news/bag-employer-not-liable-for-harm-caused-by-vaccine.html Employers who have flu vaccines administered within their company are not liable for any harm that might occur as a result of the vaccine. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, in a recent ruling.

During the winter, a lot of people get vaccinated against the flu. Of course, employers also have an interest in flu vaccination as a means of preventing an epidemic within their respective firms, which is why many employers offer employees the option of receiving workplace flu vaccinations. The workers are then able to decide for themselves whether or not they wish to accept this offer. We at the commercial law firm GRP Rainer Rechtsanwälte note that this is why said employers are not liable for any harm caused by the vaccine. This comes from a judgment of the Bundesarbeitsgericht from December 21, 2017 (Az.: 8 AZR 853/16).

In the instant case, a freelance company doctor had called for the employees of a cardiac center to receive flu vaccinations on clinic premises. The employer bore the costs associated with the vaccinations. One employee who responded to this call was an administrative member of staff who had no contact with the patients. She subsequently experienced various lasting impairments relating to her cervical spine, for which she blamed the vaccine. She claimed that while the vaccine had been correctly administered, she had not been properly informed about the risks associated with the flu vaccine. She went on to say that had she been properly informed, she would not have had the vaccine administered. She therefore raised an action for damages for pain and suffering on account of a failure to fulfil the relevant obligation to inform. However, the action was not directed at the doctor but rather the employer.

Like the courts of lower instance before it, the BAG dismissed the claim. It held that no treatment contract had come into existence between the employer and the plaintiff that would have given rise to a duty to inform on the part of the employer. The BAG also found that the existing employment relationship did not give rise to a duty to inform, noting that a treatment contract had only come into existence with the doctor.

When it comes to issues pertaining to the workplace, lawyers who are experienced in the field of employment law can offer advice.

For more informations:

https://www.grprainer.com/en/legal-advice/employment-law.html

]]>
ArbeitsrechtPressemitteilungen