Germany updates

Arbitration & ADR

Contributed by Skadden Arps Slate Meagher & Flom LLP
Q&A: arbitration with an insolvent party
  • Germany
  • 20 August 2020

This article discusses some of the main considerations that arise when a party considering arbitration or already engaged in arbitration files for insolvency, or has its counterparty file for insolvency, under German insolvency law. It answers key questions such as is an insolvency administrator bound by an arbitration clause agreed to by the insolvent party and what happens to an arbitration if a party files for insolvency in Germany?

Need for speed – revised DIS Rules for Expedited Proceedings
  • Germany
  • 05 March 2020

Alongside its 2018 Arbitration Rules, the German Arbitration Institute issued a revised set of fast-track arbitration rules. The appeal of these rules is that parties can expect a binding award within six months of the first case management conference. As parties are free to agree on the application of these rules to all kinds of dispute, irrespective of the amount at issue, they provide parties with a high level of autonomy. However, parties should exercise their discretion wisely as the rules are not suitable for all disputes.

Third-party arbitration funding – an overview
  • Germany
  • 24 October 2019

Third-party arbitration funding continues to be a hot topic in Germany, with a growing number of companies considering using third-party funding and more international funders than ever joining established German funders. This article outlines some of the pros and cons of third-party funding in an arbitration context.

2018 DIS Arbitration Rules – one year on
  • Germany
  • 18 July 2019

In March 2018 the German Arbitration Institute's (DIS's) new arbitration rules came into force. The new rules are a good choice in almost every setting, offering competitive fees for arbitrators and institutions and providing a modern and efficient arbitration framework that preserves and expands on the distinctive features of the previous DIS rules. These unique factors are particularly appealing to in-house counsel.


Aviation

Contributed by Arnecke Sibeth Dabelstein
MRO agreements from airlines' perspective – combating effects of COVID-19
  • Germany
  • 15 July 2020

Under long-term maintenance, repair and overhaul (MRO) agreements, airlines must usually pay a certain rate per flight hour to obtain engine or other component maintenance and repair services or just to have access to a certain spare parts pool. However, during the COVID-19 pandemic, most airlines have ceased their entire flight operations. This article addresses possible contractual clauses and statutory rights on which a claim to adjust payment obligations under an MRO agreement may be based.

E-ticket voucher not a valid ticket
  • Germany
  • 20 May 2020

A recent Eilenburg Local Court decision highlighted that a booking or reservation confirmation issued to a passenger by a tour operator with whom a flight has been booked should not necessarily be regarded as a confirmed booking under Article 3(2)(a) of the EU Flight Delay Compensation Regulation, even if the booking is referred to as an 'e-ticket voucher'. This decision underlines that the burden of proof for the existence of a confirmed booking will be borne by the passenger.

Damages claim dismissed under Montreal Convention
  • Germany
  • 13 May 2020

The Hamburg State Court recently rejected a damages claim arising from the cross-border transport of goods from the United States to Germany. The consignment was transported to Germany by air freight and was lost in a transhipment warehouse on the premises of Frankfurt Airport. The plaintiff claimed damages on the basis of German transport law and refused to settle the claim on the basis of the Montreal Convention.

No right to compensation for company tariff booking
  • Germany
  • 06 May 2020

The Bremen Local Court recently dismissed a compensation claim under the EU Flight Delay Compensation Regulation for a delayed flight booked using a company tariff. The court has thus put a double stop to possible claims by employees. If a booking is made using a company tariff, claims are generally excluded. Even if a booking is made using a general tariff, the travelling employee cannot bring forward a legal action.

Measures to assist airlines during COVID-19 crisis
  • Germany
  • 08 April 2020

Due to the COVID-19 crisis, all German airlines have had to significantly reduce their number of flights. In order to assist airlines, the government implemented a new law to mitigate the consequences of the COVID-19 pandemic in civil, insolvency and criminal procedures (the COVID-19 Act). The new law is also relevant for aircraft lessors that have leased aircraft to German airlines and fear that in case of an airline's insolvency, they may have difficulties repossessing their assets.


Competition & Antitrust

Contributed by Fieldfisher (Germany) LLP
Amazon versus marketplace merchants: FCO is investigating
  • Germany
  • 24 September 2020

The Federal Cartel Office (FCO) is investigating whether Amazon influences pricing on the Amazon marketplace. According to the FCO, it received numerous complaints from merchants regarding Amazon's conduct. The investigation is one of a number of antitrust measures being undertaken in Germany with regard to powerful platforms (eg, Facebook and Booking.com). The German legislature has also become active and included special provisions for powerful platforms in the upcoming antitrust law.

Federal Court of Justice demonstrates antitrust law limits to data collection through Facebook
  • Germany
  • 23 July 2020

The Federal Court of Justice recently decided in interim proceedings that Facebook must implement a Federal Cartel Office order of 15 February 2019 regarding the storage and processing of user data with immediate effect until the decision in the main proceedings. This decision is a milestone with respect to antitrust law limits for data collection through internet platforms for which user data is extremely important.

FCO guidance on cooperation between competitors during COVID-19 crisis
  • Germany
  • 30 April 2020

The antitrust authorities have signalled their approval for cooperation between competitors during the ongoing COVID-19 crisis. President of the Federal Cartel Office Andreas Mundt and EU Commissioner Margrethe Vestager emphasise that the authorities are open to direct communication. According to Mundt, even after the crisis, cooperation might be necessary to overcome economic difficulties.

Cartel damage claims: Federal Court of Justice corrects understanding of 'affected' goods
  • Germany
  • 09 April 2020

A recent Federal Court of Justice decision clarifies open questions relating to cartel damages and simplifies the presentation of claims by plaintiffs, as it will no longer be necessary to present and prove that a cartel agreement had an actual impact on an acquisition transaction under the requirements of Section 286 of the Code of Civil Procedure. It is to be expected that the number of cartel damage actions pending before the German courts will continue to increase.

FCO guidance on B2B platforms: launch of digital agricultural platform approved
  • Germany
  • 27 February 2020

The Federal Cartel Office (FCO) has raised no objections to the launch of 'Unamera', a digital trading platform for agricultural products. During the review, the FCO provided guidance on the competition law implications of digital platforms, specifically with regard to the obligations where shareholders are active in the same market as the platform's users, the market statistics published on these platforms and the risk of price fixing.


Employment & Immigration

Contributed by Mayer Brown
Home office and mobile working
  • Germany
  • 23 September 2020

In response to the health and safety risks resulting from a potential COVID-19 outbreak in the workplace, many employers moved to home office or mobile working arrangements earlier in 2020. For many companies, this has now proven to be a successful new way of working. This article describes the labour and employment law aspects of the implementation of home office and mobile working arrangements. It also includes a list of items that employers should consider when facilitating a remote work model.

Equal rights for employees and freelancers
  • Germany
  • 12 August 2020

The Federal Labour Court recently ruled in a dispute concerning a freelancer's information claim regarding her colleagues' salary levels. The judgment is the first fundamental decision with respect to the Transparency in Remuneration Act. Pursuant to this decision, both employees and freelancers who receive their compensation mainly from one client can make information claims regarding the salary levels of their colleagues with comparable duties.

COVID-19: back to business after lockdown guidance for employers
  • Germany
  • 03 June 2020

After several weeks of quasi-lockdown in Germany and immense public pressure to lift limitations imposed by the COVID-19 pandemic, an increasing number of companies are starting to resume their activities. For some, this means increasing the number of employees who can come in and work from a company office, rather than from their homes. For others, it means a complete restart of operations. In these situations, employers are faced with myriad legal requirements with which they must comply.

COVID-19: works council consultation, quarantine and social distancing
  • Germany
  • 27 May 2020

The COVID-19 crisis poses many challenges for employers and employees alike. It also raises new questions about the cooperation process between employers and works councils and the latter's co-determination. Employers are wondering how best to consult works councils when regular operations are suspended. After all, business needs to continue, which can also mean that personnel measures and other changes need to be carried out – all of which are subject to works council consultation.

COVID-19: short-time work implemented – what now?
  • Germany
  • 20 May 2020

In light of the COVID-19 pandemic, more than half a million businesses in Germany have implemented short-time work. The temporary reduction of regular working time allows companies to reduce their personnel costs while maintaining their workforce and avoiding lay-offs. This article provides an overview of the practicable issues that employers must handle during short-time work periods.


Franchising

Contributed by Noerr LLP
When the asterisk is missing: Munich Higher Regional Court's King of the Month decision
  • Germany
  • 02 June 2020

Special deals are common among competing burger chains. Although this may be detrimental to franchisees, the Munich Higher Regional Court recently decided that such deals do not infringe antitrust rules. This decision deserves particular attention, as it concerns the common situation of a franchisor using non-binding price recommendations in its advertising and once again clarifies how important the asterisk reference is in such cases.

Inadmissible imitation of 'presentation of dishes': stronger protection for gastronomic concepts
  • Germany
  • 13 August 2019

Franchisors must typically consider the extent of concept protection if franchisees which have left the franchise system reuse the concept in a largely unchanged fashion or if third-party competitors (outside the franchise system) copy the concept's main features. A recent decision concerning a fast-food restaurant franchise reinforces the IP protection of gastronomic concepts against competitors' inadmissible imitations.

Bogus self-employment and unethical franchise agreements
  • Germany
  • 30 April 2019

Case law from the highest German courts on franchise law matters is rare, which makes a recent Federal Court of Justice decision on the subject of bogus self-employment of franchisees – a perennial issue for franchise law practitioners – even more noteworthy. The case concerned claims for payment under a licence agreement and the question of whether the licence agreement was void due to the franchisee's bogus self-employment.

For want of an asterisk: regional court scrutinises franchisor's TV advertising
  • Germany
  • 15 January 2019

The Munich Regional Court I recently established a new precedent for competition restriction, which is prohibited in franchising systems under the Act against Restraints on Competition. The court found references to "participating restaurants" in a franchisor's TV advertising insufficient and in violation of the price maintenance prohibition. This decision deserves special attention as it relates to advertising with non-binding price recommendations, which is common among franchisors.

Admissibility of lawsuit despite effective mediation clause in franchise agreement
  • Germany
  • 02 October 2018

A recent Hamburg Regional Court decision is generally understood to have solidified the first franchise-related court judgment on bad faith regarding mediation clauses rendered by the Saarbruecken Higher Regional Court in 2015. However, at second glance, the Hamburg judgment provides a different reasoning for bad faith regarding a mediation objection and might therefore serve as a new application of bad faith in future franchise-related court proceedings regarding mediation clauses.