Latest updates

Restructuring Order applies only where binding ruling exists
Clifford Chance Deutschland LLP
  • Insolvency & Restructuring
  • Germany
  • December 15 2017

On February 9 2017 the Great Senate of the Federal Fiscal Court published a decision stating that the Restructuring Order was illegal. On June 27 2017 the legislature introduced new legislation which provides that the tax authorities may waive taxes or assess taxes at a lower level. However, the new legislation can be applied only where creditors have waived their claims after February 8 2017.

Impending terminability of land use agreements for energy plants
Noerr LLP
  • Real Estate
  • Germany
  • December 08 2017

The operation of energy plants usually means securing the required land long term by way of a use agreement. Prematurely ending a use agreement can substantially reduce the profitability of investments in energy plants. Defects in the written form of use agreements therefore constitute a risk for such investments. However, the Federal Court of Justice has decided that written form remedy clauses are invalid and do not prevent a contracting party from terminating a use agreement by invoking a written form defect.

Unaffected flights cannot be used in calculation of compensation payments
Arnecke Sibeth
  • Aviation
  • Germany
  • December 06 2017

A recent Erding Local Court case called into question the distance that must be taken into consideration when calculating compensation according to Article 7(1) of EU Regulation 261/2004. The court interpreted Article 7 in line with settled case law and held that only the disrupted flights that had affected the overall delay of the passenger should be included in the calculation of the distance. Therefore, where a reservation consists of several flights, these are to be considered separately.

Starting point of carrier's period of responsibility for goods packed in containers
Dabelstein & Passehl
  • Shipping & Transport
  • Germany
  • December 06 2017

The Higher Regional Court of Hamburg recently clarified the fact that goods having been packed in a container made available to a shipper by a carrier on a decoupled trailer belonging to the carrier is insufficient grounds for the carrier to have accepted the goods for carriage. The court set out the prerequisites for a carrier's acceptance of goods under Section 425 of the Commercial Code, as established in case law.

No compensation for rescheduling airway slot
Arnecke Sibeth
  • Aviation
  • Germany
  • November 29 2017

In a recent case, the Cologne Regional Court ruled that if the flight in question was delayed due to a Eurocontrol rescheduling of its airway slot, passengers had no right to compensation pursuant to EU Regulation 261/2004, irrespective of whether the rescheduling was based on reasons which, when considered individually, would result in extraordinary circumstances.

Loss of goods due to misloading in multimodal transport
Dabelstein & Passehl
  • Shipping & Transport
  • Germany
  • October 25 2017

The Federal Court of Justice recently ruled that the loss of transported goods occurs when a freight forwarder or carrier is unable to deliver the goods to the authorised recipient for an indefinite time. It is sufficient that late delivery is unlikely or unacceptable. Once the goods are lost, it is irrelevant whether they are located.

No compensation claim for franchisee where franchisor must block customer data when agreement terminated
Noerr LLP
  • Franchising
  • Germany
  • October 24 2017

The Federal Court of Justice recently ruled that an authorised dealer, such as a franchisee, has no compensation claim in analogous application of the regulation governing sales representatives contained in the Commercial Code if the franchisor is contractually obliged to block the customer data provided to it by the franchisee, to discontinue using it and to delete it at the request of the sales intermediary when the contract is terminated.

Will Berlin Tegel Airport remain open?
Arnecke Sibeth
  • Aviation
  • Germany
  • October 18 2017

A recent non-binding referendum asked Berlin citizens whether they should demand that the Senate give up its closure intentions and take all measures necessary to ensure the indefinite operation of Berlin Tegel Airport. The vote indicates that approximately 56% of Berliners voted 'yes' and support keeping Tegel open. Local politics must now find a way to deal with Berlin's wish to maintain two airports.

Liability claims against managing directors
Clifford Chance Deutschland LLP
  • Insolvency & Restructuring
  • Germany
  • October 06 2017

In order to maintain an insolvency estate and achieve the utmost satisfaction of all creditors, German legislation has ratified various liability claims against managing directors for payments made after their company has become illiquid or been deemed to be overindebted. However, according to recent case law, one thing that all of these claims have in common is that managing directors cannot be held liable for payments made that result in an equivalent compensation for the company.

No compensation for cancellation after re-routing
Arnecke Sibeth
  • Aviation
  • Germany
  • September 20 2017

The Dusseldorf Local Court recently decided that passengers do not have a right to compensation if, according to the meaning of Articles 7(2) and 8 of EU Regulation 261/2004, an alternative flight is cancelled. The court argued that the regulation differentiates between a 'flight' as subject of the transportation contract and an 'alternative flight' as a measure of assistance. Consequently, the cancellation or delay of an alternative flight gives no right to compensation.

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.

Ship collision – prima facie evidence under German law
Dabelstein & Passehl
  • Shipping & Transport
  • Germany
  • September 13 2017

The owner of a German-flagged yacht was sued by another German-flagged yacht owner for compensation after the yachts collided in bad weather. The first-instance court dismissed the claim on the basis that the claimant did not sufficiently prove the defendant's negligence. The claimant appealed to the higher regional court, which clarified the ambit and scope of prima facie evidence for maritime law.

Are arrangement and processing fee clauses in commercial loan agreements invalid?
Herbert Smith Freehills Germany LLP
  • Banking
  • Germany
  • September 08 2017

The Federal Court of Justice recently issued two rulings declaring that processing fee clauses in standardised commercial loan agreements are invalid as they unreasonably disadvantage borrowers. Previously, the majority of lower German court rulings had upheld the validity of such clauses in commercial loan agreements. Going forward, lenders have a number of options to deal with the issues raised in these new court decisions.

ECJ upholds passengers' rights over additional fees
Arnecke Sibeth
  • Aviation
  • Germany
  • September 06 2017

The Berlin Regional Court recently upheld the application of a private German association for the advancement of consumer rights, which claimed that a German air carrier's online booking system had violated EU Regulation 1008/2008. Following the dismissal of the appeal brought by the carrier before the Berlin Upper Regional Court, the airline lodged a remedy of review before the Federal Court of Justice, which stayed the proceedings and referred the case to the European Court of Justice for a preliminary ruling.

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.

Statutory obligations of freight forwarder in customs clearances
Dabelstein & Passehl
  • Shipping & Transport
  • Germany
  • August 16 2017

If carriers enter a contract to undertake cross-border transport for a new client, it is advisable to ascertain the shipper's experience regarding customs duties and necessary documentation. Carriers otherwise risk being held responsible if the wrong customs clearances lead to unexpected payments. The Aurich District Court recently dealt with a typical case that demonstrates the pitfalls of a contract for transportation and customs declaration of cargo.

Credit card surcharges for flight bookings banned
Arnecke Sibeth
  • Aviation
  • Germany
  • August 09 2017

Parliament recently passed an act incorporating the EU Payment Services Directive into German law. In line with the development of cashless currency being among the most frequently used payment methods, the act was passed to facilitate the use of electronic payment methods. To achieve a level playing field for all market participants, the act will also have a considerable impact on the aviation industry. Nowadays, online bookings via credit card are airlines' daily business.

New law on professional secrecy for healthcare providers
Noerr LLP
  • Healthcare & Life Sciences
  • Germany
  • August 09 2017

Parliament recently passed a law revising the safeguarding of secrecy where third parties are involved in the exercise of professional duties by persons with a duty of confidentiality. The legislature responded to calls for a long-overdue reform and finally updated the criminal rules on secrecy for certain professionals. For the healthcare sector, this reform opens up a number of new opportunities for using the services of external service providers without facing the risk of criminal liability.

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.

Drones – required and advisable insurance
Arnecke Sibeth
  • Aviation
  • Germany
  • July 05 2017

According to the amended Air Traffic Act, drones are recognised as aircraft. However, only unmanned aerial systems (UAS) that are not used for hobby or recreational purposes qualify as aircraft. Authorisation to fly will be granted if operation of the UAS does not present a risk to air safety or order and if rules on data protection and privacy are not violated. The main prerequisite for obtaining a flight permit is the coverage of the respective risks by liability insurance.