CMS updates

Compliance management system can lead to reduction in fines
CMS
  • White Collar Crime
  • Germany
  • September 18 2017

The Federal Court of Justice recently decided for the first time that the establishment of a compliance management system designed to prevent breaches of the law can reduce fines in accordance with the Administrative Offences Act. The court pointed out that even the optimisation of a compliance management system following compliance breaches can lead to a reduction in fines and provided guidelines for the measures to be taken in such cases.

German corporate codetermination withstands ECJ scrutiny
CMS
  • Employment & Benefits
  • Germany
  • August 23 2017

Since the Berlin Higher Regional Court referred the question to the European Court of Justice of whether it is compatible with EU law that only workers employed in Germany are eligible to participate in the election of workers' representatives on the supervisory board, Germany's legal sector has been eagerly awaiting an answer. The answer is now available and is likely to allow the legal sector to breathe a sigh of relief.

Reform of criminal law regarding proceeds of crime
CMS
  • White Collar Crime
  • Germany
  • July 10 2017

The new Act to Reform Criminal Law on Proceeds of Crime aims to simplify existing rules regarding the confiscation of assets resulting from criminal offences. The reform negates the principle that confiscation is prohibited if and to the extent that an injured person has a civil claim against the offender for damage compensation or other corresponding legal rights which legally enable the injured person to deprive the offender of any proceeds resulting from the criminal offence.

Consultation procedure for collective redundancies
CMS
  • Employment & Benefits
  • Germany
  • July 05 2017

In reorganisation scenarios, German employers must comply with a number of statutory regulations. If a reorganisation involves redundancies and if certain thresholds are exceeded in this respect, special attention must be paid to the regulations aimed at preventing collective redundancies. Any notice of dismissal given in violation of the regulations to prevent collective redundancies contained in Sections 17 and 18 of the Act on Protection Against Unfair Dismissal is invalid.

Ninth amendment of Act Against Restraints of Competition
CMS
  • Competition & Antitrust
  • Germany
  • June 15 2017

The Federal Parliament recently adopted the ninth amendment to the Act Against Restraints of Competition. The agreed amendments take account of the ongoing digitalisation of the economy and also intend to close legal gaps in the liability for violations of competition law. However, one of the main aims of the proposed reform is to implement the EU Directive on Antitrust Damages Actions, increasing the efficiency of competition enforcement.

Germany-wide blacklist is coming
CMS
  • White Collar Crime
  • Germany
  • May 15 2017

The Federal Cabinet recently adopted a draft law for the introduction of a so-called 'competition register'. The act will allow for the establishment of a Germany-wide register to record companies which have committed certain criminal and administrative offences. Its aim is to promote fair competition and replace the corruption registers introduced in many German states that deviate from each other with regard to essential issues.

Reform of temporary employment: requirements in practice
CMS
  • Employment & Benefits
  • Germany
  • May 03 2017

Discussions concerning the reform of temporary employment planned by the coalition government characterised 2016. It was intended that the Employee Assignment Act, the Works Constitution Act and the Civil Code be readjusted in order to "align temporary work with its core function and prevent the abuse of structures with contracts for work and services". As the legislative process has since been completed, it is now clear that in 2017 the temporary employment industry will face substantial changes.

Joint venture between competitors – joint production: yes; joint commercialisation: no!
CMS
  • Competition & Antitrust
  • Germany
  • April 13 2017

Following an anonymous complaint, the Federal Cartel Office (FCO) recently investigated a joint venture between two competitors. The FCO did not have to decide finally on the case, but it preliminarily concluded that the joint venture facilitated market coordination between the two parents. The FCO applied a presumption according to which both parents would take into account information from the joint venture when deciding on their own market conduct.

Transparency of Remuneration Act approved
CMS
  • Employment & Benefits
  • Germany
  • March 29 2017

The Federal Cabinet recently passed the Transparency of Remuneration Act, which is supposed to come into force before Summer 2017. The highly controversial preliminary draft was revised on several occasions. The requirement that the minimum remuneration be stated when advertising a position and an additional codetermination right be included when "implementing measures in terms of actual remuneration equality between women and men" were omitted and not replaced.

Federal Financial Supervisory Authority's central contact point for whistleblowers
CMS
  • White Collar Crime
  • Germany
  • March 06 2017

The Federal Financial Supervisory Authority recently established a central contact point for whistleblowers to report misconduct in the financial sector and completed the set up by implementing an electronic whistleblowing system. The central whistleblower system will help to detect and fight breaches of law, legal regulations and general administrative acts. It is not meant to be used for consumer complaints, but to foster disclosures by persons with a special knowledge of a regulated entity's internal affairs.

Merger control filing requirements for leasing agreements
CMS
  • Competition & Antitrust
  • Germany
  • February 23 2017

The Federal Cartel Office (FCO) recently issued a decision on a merger control notification from Lufthansa and Air Berlin regarding a wet lease. The agreement is part of Air Berlin's restructuring process. The case underlines the fact that the FCO's application of the concept of 'control' differs from the European Commission's view and raises further questions relating to German merger control.

Personnel data within company group – an internal matter?
CMS
  • Employment & Benefits
  • Germany
  • February 15 2017

Data transfers between group companies are often regarded as an internal matter and this appears to be true, especially if the parent company cites plausible reasons for its inquiry. However, the transfer of personal employee data between legally independent companies in a group is not necessarily permissible. The Federal Data Protection Act permits the collection, processing and use of personal data only if it is permitted by law or if the data subjects have given their consent.

Federal Cartel Office publishes draft guidelines on resale price maintenance
CMS
  • Competition & Antitrust
  • Germany
  • February 09 2017

The Federal Cartel Office recently published draft guidelines on resale price maintenance. While the guidelines are officially targeted at the food retail sector, they are also likely to have a significant effect on other sectors. A public consultation has been initiated and interested parties are invited to submit comments by March 10 2017. The Federal Cartel Office has stated that it is likely to prosecute vertical price fixing in fines proceedings, not in mere administrative proceedings.

Employment and labour law – what awaits Germany in 2017?
CMS
  • Employment & Benefits
  • Germany
  • February 08 2017

The legislative period is slowly coming to an end, and the last legislation projects under the coalition agreement are still being implemented. Planned legislation for 2017 includes the reform of the Temporary Employment Act. The Federal Cabinet has also passed a bill to revise legislation on maternity protection, which is intended to adapt maternity protection to today's work environment, taking new developments in health science and society into account.

Resale price maintenance – Federal Cartel Office issues new fines
CMS
  • Competition & Antitrust
  • Germany
  • January 26 2017

The Federal Cartel Office recently imposed fines totalling €4.43 million on five furniture manufacturers and four managers for resale price maintenance. While the office did not impose any fines on the retailers, it made clear that this decision was a matter of discretion and taken in view of the particular facts of the case. The proceedings were initiated by dawn raids in 2014 and 2015, following complaints by retailers. This indicates that vertical infringements are a top priority for the Federal Cartel Office.

Decision on requirements of abuse of trust pursuant to Criminal Code
CMS
  • White Collar Crime
  • Germany
  • January 16 2017

The Federal Criminal Court recently set out the requirements for an abuse of trust pursuant to the Criminal Code by members of a management board of a stock corporation. The court clarified the relationship between a violation of duties of members of management boards pursuant to stock corporation law and the requirements for a criminal breach of trust.

Whistleblower's anonymity now more difficult
CMS
  • White Collar Crime
  • Germany
  • January 09 2017

As compliance breaches cannot be prevented, their disclosure through anonymous reports is important. There are different ways and means for a company to communicate with a potential whistleblowing employee, but the ombudsman model is frequently used in practice. The Bochum Regional Court recently decided that the confiscation provision in the Code of Criminal Procedure does not protect compliance ombudsmen with regard to obtaining information from anonymous whistleblowers.

Whistleblowing employee's anonymity now more difficult
CMS
  • Employment & Benefits
  • Germany
  • January 04 2017

As compliance breaches cannot be prevented, their disclosure through anonymous reports is important. There are different ways and means for a company to communicate with a potential whistleblowing employee, but the ombudsman model is frequently used in practice. The Bochum Regional Court recently decided that the confiscation provision in the Code of Criminal Procedure does not protect compliance ombudsmen with regard to obtaining information from anonymous whistleblowers.

Christmas gifts among business partners
CMS
  • Employment & Benefits
  • Germany
  • December 21 2016

Despite strict compliance regulations, it is customary to offer small gifts of friendship to business partners, especially at Christmas. Successful collaboration is based on trust. However, caution is required – non-compliance may have labour and criminal law consequences. Under criminal law, there are no objections to the common practice of offering small gifts on certain occasions. But to avoid the impression of bribery, employees should consult the company's compliance regulations.

Christmas gifts among business partners
CMS
  • White Collar Crime
  • Germany
  • December 19 2016

Despite strict compliance regulations, it is customary to offer small gifts of friendship to business partners, especially at Christmas. Successful collaboration is based on trust. However, caution is required – non-compliance may have labour and criminal law consequences. Under criminal law, there are no objections to the common practice of offering small gifts on certain occasions. But to avoid the impression of bribery, employees should consult the company's compliance regulations.

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