The Federal Supreme Court recently ruled that the complete failure of an airport computer system may be considered an extraordinary circumstance. The court affirmed that airport system failures caused by technical defects which affect or suspend the functioning of technical equipment over a prolonged period are an external event affecting air carrier flight operations. Such events cannot be controlled by air carriers as the monitoring, maintenance and repair of such facilities is outside their responsibility and competence.
The Federal Court of Justice recently held that a strike is considered an extraordinary circumstance pursuant to the EU Flight Delay Compensation Regulation only if its consequences cannot be averted by reasonable measures and make flight cancellation legally and actually necessary. This decision emphasises that determining whether airlines can avoid liability due to extraordinary circumstances must be assessed on a case-by-case basis.
The Hamburg Local Court recently dismissed a passenger's claim for damages based on denied boarding after the delay of a previous flight which had been operated by a code-share partner. The court was of the opinion that a code-share partner is not liable for every further disruption along the course of transportation. Rather, the right to claim damages requires an adequate causal link between the delay and the further disruption.
Following Bavaria's state elections in October 2018, the legally binding plans to build a third runway at Munich Airport incurred significant delays. The state authorities recently agreed that the project will be suspended for five years, despite the fact that demand for aviation services in Munich – and internationally – continues to rise. The decision is a further example of how Germany's aviation industry will face additional, severe obstacles and challenges over the coming years.
The European Parliament and Council recently revised and replaced the basic regulation on common rules in the field of civil aviation. The new basic regulation promises a number of significant changes to the German aviation landscape over the next five years. Among other revisions, the Federal Aviation Office could lose some of its control over certain tasks relating to air operator certification, oversight and enforcement.
The Tubingen Regional Court recently held that negative interest on a consumer's existing cash deposits imposed by a German bank by unilaterally changing the bank's general terms and conditions was unlawful. According to the court, the defendant bank violated the rules of the general terms and conditions regime because it did not differentiate between existing deposits and newly deposited cash.
As of January 2018, the EU regulation which established a new European Account Preservation Order (EAPO) procedure will have been effective and in force for one year. In Germany, the most important conclusion which can be drawn from the past year is that the German courts are adopting EAPOs. However, as the procedure is still fairly new to the courts, it has taken time and effort on the part of creditors.
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.
The Frankfurt Higher Regional Court recently implemented the European Court of Justice's (ECJ's) sailing instruction and decided in favour of the luxury cosmetics manufacturer Coty on third-party platform bans in selective distribution. The judgment comes after the ECJ – in an abstract manner – declared third-party platform bans in the selective distribution of luxury goods permissible under competition law.
Litigants may now seek cartel damages for a longer period as the Federal Court of Justice has affirmed the suspension of the statute of limitations for antitrust claims before 1 July 2005. The court's judgment creates legal certainty and increases Germany's attractiveness as a jurisdiction for plaintiffs in cartel damages cases. It is also a major setback for defendants in cases concerning cement, truck and sugar cartels (among others), which will face even bigger damages claims.
The Federal Court of Justice recently held that absolute prohibitions to participate in online price comparison tools imposed on distributors in selective distribution systems amount to a hardcore restriction under Article 4c of the EU Block Exemption Regulation on Vertical Restraints. A closer look at the German decision reveals some doubts as to its compatibility with two European Court of Justice decisions.
A recent Celle Regional Court decision on a clear resale price maintenance case has been heavily debated because the court held that restrictions of competition by object can be compatible with Article 101(1) of the Treaty on the Functioning of the European Union if they have no potentially significant effects on competition. The Federal Supreme Court has since overruled the decision, leaving it open as to whether the potential effects on competition must be considered in such cases.
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.
To ensure that serving a dismissal notice will withstand a court's scrutiny, it should be handed to the employee in person and the employee should countersign a duplicate. However, if the dismissal notice is served by an external courier, the employer may have to comply with different data protection requirements to avoid breaching data protection law.
In view of a statutory transition clause in the Temporary Employment Act, for some deployment agencies the 18-month maximum hiring out period will end shortly – for external employees deployed as of 1 April 2017, the expiry date could have been the end of September 2018. To avoid all possible risk of overstepping the maximum hiring out period, personnel services providers and companies using such providers are advised to determine precisely what they consider the expiration date to be.
The Federal Constitutional Court recently restricted the option of concluding fixed-term employment contracts without an objective reason with applicants who have previously worked for the employer. The court also recognised that an unlimited prohibition on prior employment can unreasonably restrict the option of fixed-term contracts without objective reason. This ruling has consequences for current fixed-term contracts and for future hiring practice.
The Christian Democratic Union of Germany, the Christian Social Union in Bavaria and the Social Democratic Party of Germany recently concluded negotiations for a new grand coalition. The 177-page coalition agreement contains very specific proposals for changes to labour law, including with regard to the maximum duration of successive fixed-term employment contracts, substantial restrictions for fixed-term contracts and employees' entitlement to part-time work for a limited period.
The Pay Transparency Act bundles together some regulations and requirements that had already been established and is intended to close the adjusted gender pay gap. That the act's practical relevance has proved limited thus far can be explained by the fact that it was not possible to assert the information claim until January 6 2018. Nevertheless, it should be kept in mind that the legal consequences of failings to provide information have yet to be clarified.
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.
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.
The Bochum Regional Court recently looked at whether a franchisee's contractual obligation to operate a business can be enforced by way of an interim injunction. To grant an interim injunction to enforce the obligation to keep the business open, it must be demonstrated that the franchisor faces serious losses at least equivalent to a threat to its survival or to drawbacks that cannot later be remedied.
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.
The Federal Court of Justice recently criticised a franchising advertising flyer in terms of competition law. One interpretation of this judgment is that it makes the advertising of franchise systems significantly more difficult. However, this point of view does not ultimately do justice to the decision, as the judgment does not fundamentally question the typical advertising of franchise systems.