Thu, Apr. 01, 2021
Domain for Sale — End of Updates
CK - Washington. Although it is April Fools Day, I hope this is not a foolish announcement. I started the site in 1991 on paper and floppy disks and the gopher service, and I am not going to update this American Edition version. The German version will continue.
Unlike 1991, there are now many authoritative reports on German law in English. That has reduced the need for a site like mine. The domain name GALJ.INFO is for sale, and you may email me if interested.
CK - Washington. Although it is April Fools Day, I hope this is not a foolish announcement. I started the site in 1991 on paper and floppy disks and the gopher service, and I am not going to update this American Edition version. The German version will continue.
Unlike 1991, there are now many authoritative reports on German law in English. That has reduced the need for a site like mine. The domain name GALJ.INFO is for sale, and you may email me if interested.
PermalinkMon, Dec. 14, 2020
Leases and Alcohol in Pandemic
CK - Washington Lessors may need a sip of alcohol but under exceptional new orders, they may neither congregate nor drink in public. On December 13, 2020, the federal government coordinated with the Länder executives a list of pandemic mandates, published as an order from the telephone conference between these institutions: Telefonkonferenz der Bundeskanzlerin mit den Regierungschefinnen und Regierungschefs der Länder am 13. Dezember 2020.
In addition to travel and assembly restraints, the order deals with health and educational services, fireworks, quarantine, Christmas and New Years Eve, personal service providers, retail, remote office work, carry-out foodstuff, religious services, travel and more.
Significantly, the government provides transition support to deal with the fixed costs of business, assets and perishables. Without mentioning Force Majeure and instead relying on Wegfall der Geschäftsgrundlage as a frustration of the contractual fundation, the order states a presumption for the frustration of leases and rental agreements affected by the state actions:
CK - Washington Lessors may need a sip of alcohol but under exceptional new orders, they may neither congregate nor drink in public. On December 13, 2020, the federal government coordinated with the Länder executives a list of pandemic mandates, published as an order from the telephone conference between these institutions: Telefonkonferenz der Bundeskanzlerin mit den Regierungschefinnen und Regierungschefs der Länder am 13. Dezember 2020.
In addition to travel and assembly restraints, the order deals with health and educational services, fireworks, quarantine, Christmas and New Years Eve, personal service providers, retail, remote office work, carry-out foodstuff, religious services, travel and more.
Significantly, the government provides transition support to deal with the fixed costs of business, assets and perishables. Without mentioning Force Majeure and instead relying on Wegfall der Geschäftsgrundlage as a frustration of the contractual fundation, the order states a presumption for the frustration of leases and rental agreements affected by the state actions:
15. Für Gewerbemiet-und Pachtverhältnisse, die von staatlichen Covid-19 Maßnahmen betroffen sind, wird gesetzlich vermutet, dass erhebliche (Nutzungs-)Beschränkungen in Folge der Covid-19-Pandemie eine schwerwiegende Veränderung der Geschäftsgrundlage darstellen können. Damit werden Verhandlungen zwischen Gewerbemietern bzw. Pächtern und Eigentümern vereinfacht.
Fri, Mar. 06, 2020
Laws Shield Income From Virus
CK - Washington The loss of income in a pandemic is a concern remedied by German and Swiss law in several places. In order to inspire virus victims to self-quarantine or follow quarantine orders, compensation for the potential loss of income helps both employees and self-employed.
The statutory bases are found in employment law, the Civil Code and a statute on epidemiology and epidemics. Currently, there is much interest in reading up on these provisions, and lawyers publish various aspects of the norms, such as in these articles in German:
CK - Washington The loss of income in a pandemic is a concern remedied by German and Swiss law in several places. In order to inspire virus victims to self-quarantine or follow quarantine orders, compensation for the potential loss of income helps both employees and self-employed.
The statutory bases are found in employment law, the Civil Code and a statute on epidemiology and epidemics. Currently, there is much interest in reading up on these provisions, and lawyers publish various aspects of the norms, such as in these articles in German:
DE: Zaumseil, Kurzarbeit in Zeiten von Corona;DE: Giese, Angst vor Coronavirus: Was gilt im Arbeitsverhältnis?
DE: Schaffhausen, Corona-Virus: Entschädigung vom Staat bei Quarantäne,
CH: Facincani, Arbeitsverhinderung wegen Coronavirus -- Wer bezahlt?, and
CH: Facincani, Kurzarbeit wegen Coronavirus.
Fri, Dec. 06, 2019
App-Aided Crowdwork Contract Can't Imply Employ
CK - Washington. A framework contract for on-demand work assignments does not constitute employment in the matter 8 Sa 146/19 decided on December 4, 2019 by the Appeals Court for Employment Matters in Bavaria. The framework agreement enables a company to publish requests for bids to perform specific tasks within a defined timeframe at various locations near interested bidders. The parties interact through a software program. A person who performed a task argued it became an employee, leading to tax, social security contribution, insurance and employment issues.
The court issued a press release in German that describes the particular task at issue. The court determined that the framework contract does neither require the company to post requests nor the performer to consider or accept a task. By contrast, employment supposes at a minimum instruction-based and compliance-enforced work in a relationship where the performer is dependent on the company. Typically, an employee would need to observe rules about time, location and content of an activity while the employer would integrate the employee into its fabric, the court noted.
CK - Washington. A framework contract for on-demand work assignments does not constitute employment in the matter 8 Sa 146/19 decided on December 4, 2019 by the Appeals Court for Employment Matters in Bavaria. The framework agreement enables a company to publish requests for bids to perform specific tasks within a defined timeframe at various locations near interested bidders. The parties interact through a software program. A person who performed a task argued it became an employee, leading to tax, social security contribution, insurance and employment issues.
The court issued a press release in German that describes the particular task at issue. The court determined that the framework contract does neither require the company to post requests nor the performer to consider or accept a task. By contrast, employment supposes at a minimum instruction-based and compliance-enforced work in a relationship where the performer is dependent on the company. Typically, an employee would need to observe rules about time, location and content of an activity while the employer would integrate the employee into its fabric, the court noted.
Thu, Oct. 17, 2019
Damages for Violation of Forum Selection Clause
CK • Washington. On October 17, 2019, the highest German court for civil matters issued a ruling and a press release in the matter III ZR 42/19 on the liability for damages resulting from the violation of a forum selection clause.
The parties bound any disputes resulting from their contract to a court in Bonn, Germany, but the plaintiff sued the defendant in Washington, DC. After spending $196,118 on its jurisdictional challenge, the defendant won a dismissal, the plaintiff sued in Bonn, and the defendant counterclaimed for the expense incurred in its prior defense.
The Supreme Court in Karlsruhe, Bundesgerichtshof, ruled in the defendant's favor. A forum selection clause is binding, its violation constitutes a breach of contract, and the necessary expense is proximately caused by the breach, it announced in its press release headlined Schadensersatzanspruch bei Verletzung einer Gerichtsstandvereinbarung durch Klage vor einem US-amerikanischen Gericht.
CK • Washington. On October 17, 2019, the highest German court for civil matters issued a ruling and a press release in the matter III ZR 42/19 on the liability for damages resulting from the violation of a forum selection clause.
The parties bound any disputes resulting from their contract to a court in Bonn, Germany, but the plaintiff sued the defendant in Washington, DC. After spending $196,118 on its jurisdictional challenge, the defendant won a dismissal, the plaintiff sued in Bonn, and the defendant counterclaimed for the expense incurred in its prior defense.
The Supreme Court in Karlsruhe, Bundesgerichtshof, ruled in the defendant's favor. A forum selection clause is binding, its violation constitutes a breach of contract, and the necessary expense is proximately caused by the breach, it announced in its press release headlined Schadensersatzanspruch bei Verletzung einer Gerichtsstandvereinbarung durch Klage vor einem US-amerikanischen Gericht.
Wed, Aug. 14, 2019
Ranking Portals: Required Privacy Consent
CK - Washington. The data of physicians involuntarily listed in ranking databases for patient-facing internet portals has been the subject of several court decisions under German data protection law and the EU General Data Protection Directive. The latter was implemented in Germany as the Datenschutzgrundverordnung, DSGVO, and has now been applied to the same issue: May such a portal list physicians' data without their consent, permit patients to add evaluations, and add its own advertisements sold to competing physicians?
In 2018 and before the DSGVO, the Supreme Court in Civil Matters had ruled in the matter VI ZR 30/17 that such listings are compatible with the old data protection law as long as the forum maintains a neutral representation of information. The balance of privacy interests and constitutional free speech tipped in favor of free speech.
In the recently-published decision of the Bonn district court in 18 O 143/18, the same portal was ordered to remove all data and evaluations of the plaintiff-physician. The court also issued an injunction to prohibit the inclusion of the physician in the database and portal as long as the numerous neutrality factors listed in the opinion were being violated. Among other factors, the court explained that offering paid subscriptions to physicians, which allows them editorial control, while displaying such information and advertisements next to profiles of non-subscribing parties is not information-neutral. Under the March 28, 2019 judgment, the balance of interests tips in favor of privacy.
CK - Washington. The data of physicians involuntarily listed in ranking databases for patient-facing internet portals has been the subject of several court decisions under German data protection law and the EU General Data Protection Directive. The latter was implemented in Germany as the Datenschutzgrundverordnung, DSGVO, and has now been applied to the same issue: May such a portal list physicians' data without their consent, permit patients to add evaluations, and add its own advertisements sold to competing physicians?
In 2018 and before the DSGVO, the Supreme Court in Civil Matters had ruled in the matter VI ZR 30/17 that such listings are compatible with the old data protection law as long as the forum maintains a neutral representation of information. The balance of privacy interests and constitutional free speech tipped in favor of free speech.
In the recently-published decision of the Bonn district court in 18 O 143/18, the same portal was ordered to remove all data and evaluations of the plaintiff-physician. The court also issued an injunction to prohibit the inclusion of the physician in the database and portal as long as the numerous neutrality factors listed in the opinion were being violated. Among other factors, the court explained that offering paid subscriptions to physicians, which allows them editorial control, while displaying such information and advertisements next to profiles of non-subscribing parties is not information-neutral. Under the March 28, 2019 judgment, the balance of interests tips in favor of privacy.
Tue, Apr. 23, 2019
Cross-border Surrogate Pregnancy: Who is the Mother?
CK • Washington. A surrogate mother in the Ukraine bore the child of a German couple. Shortly after the birth, it brought the child to Germany. Which law applies to the issue of who would be certified as the mother for legal purposes? On March 20, 2019, the German Supreme Court, Bundesgerichtshof, decided. The facts point to the application of German law.
Under it, the mother is the person who gave birth to the child. Ukrainian law and the intentions of the parties may have been different, but conflicts of laws rules point to the applicability of German law. As a result, the German mother would need to adopt the child as her descendant in order to become the legal mother of what evolved from her egg and her husband's sperm, the court ruled in the matterXII ZB 530/17.
CK • Washington. A surrogate mother in the Ukraine bore the child of a German couple. Shortly after the birth, it brought the child to Germany. Which law applies to the issue of who would be certified as the mother for legal purposes? On March 20, 2019, the German Supreme Court, Bundesgerichtshof, decided. The facts point to the application of German law.
Under it, the mother is the person who gave birth to the child. Ukrainian law and the intentions of the parties may have been different, but conflicts of laws rules point to the applicability of German law. As a result, the German mother would need to adopt the child as her descendant in order to become the legal mother of what evolved from her egg and her husband's sperm, the court ruled in the matter
Fri, Jan. 04, 2019
Chat with Court or Mandatory Presence?
CK • Washington. The German constitution grants courts flexibity in accommodating parties with special needs. Distance-chatting with the court instead of a physical presence falls outside of the constitutional bounds, however, the Supreme Constitutional Court in Karlsruhe announced with a January 3, 2019 press release and the simultaneous publication of its November 27, 2018 opinion in the matter 1 BvR 957/18.
The court found the accommodiations provided by the lower court sufficient: Advance submission of material, representation by counsel, and use of a computer in the courtroom to communicate via a chat-like protocol. Plaintiff's additional demand to chat with the court from his home would violate other constitutional principles, immediacy and transparency, and unduly stress the limited resources of the judiciary. Attorney Marian Härtel blogs about a similar case where an autistic client complied with the summons, appeared, and--due to illness-induced lack of control--became physically aggressive in response to statements from the opposing party: Gerichtsprozess via Internet-Chat.
CK • Washington. The German constitution grants courts flexibity in accommodating parties with special needs. Distance-chatting with the court instead of a physical presence falls outside of the constitutional bounds, however, the Supreme Constitutional Court in Karlsruhe announced with a January 3, 2019 press release and the simultaneous publication of its November 27, 2018 opinion in the matter 1 BvR 957/18.
The court found the accommodiations provided by the lower court sufficient: Advance submission of material, representation by counsel, and use of a computer in the courtroom to communicate via a chat-like protocol. Plaintiff's additional demand to chat with the court from his home would violate other constitutional principles, immediacy and transparency, and unduly stress the limited resources of the judiciary. Attorney Marian Härtel blogs about a similar case where an autistic client complied with the summons, appeared, and--due to illness-induced lack of control--became physically aggressive in response to statements from the opposing party: Gerichtsprozess via Internet-Chat.
Thu, Oct. 25, 2018
Recently Translated German Law Source Documents
CK - Washington. The German Law Archive--unaffiliated with the German American Law Journal--circulated an update of its archive on October 25, 2018, listing the following new entries from the Federal Constitutional Court in Karlsruhe:
The archive also added an appendix to the previously published translation of the Road Traffic Regulations. The archive offers a subscription service.
CK - Washington. The German Law Archive--unaffiliated with the German American Law Journal--circulated an update of its archive on October 25, 2018, listing the following new entries from the Federal Constitutional Court in Karlsruhe:
BVerfG 17 January 2017: 2 BvB 1/13, on the application of prohibition of the National Democratic Party.
BVerfG 10 October 2017: 1 BvR 2019/16, on gender identity.
The archive also added an appendix to the previously published translation of the Road Traffic Regulations. The archive offers a subscription service.
Wed, Aug. 08, 2018
Republishing an Internet Photo Without License
CK - Washington. Under German law, a photographer authorized a travel website to publish one of his photos. A student copied the photo and integrated it into a school paper. The school published the paper with the photo on the internet. The photographer sued the state for damages under copyright law. On August 7, 2018, the European Court of Justice in Luxembourg as the final appeal decided the matter under German law and the E.U. copyright harmonization regulations.
The court found in favor of the plaintiff after the German Federal Supreme Court for Civil Matters in Karlsruhe had referred the matter to it. The fact that the travel website does not restrict visitors will not reduce the right of the copyright owner to control which permissions to attach to his copyrighted work. The republication by the state-run school is unauthorized because every website addresses a new audience. A copyright owner may have a particular audience in mind when granting a license; publication to another audience requires a new license -- at the owner's discretion.
The court distinguished the republication from linking to the original publication. It states that linking is an essential feature of the the world wide web. Linking is a feature that supports the essential purpose in harmony with copyright law, while copying and republishing frustrates that harmony, see (a) Press Release Land Nordrhein-Westfalen / Dirk Renckhoff (b) Application and Decision ECLI:EU:C:2018:634.
CK - Washington. Under German law, a photographer authorized a travel website to publish one of his photos. A student copied the photo and integrated it into a school paper. The school published the paper with the photo on the internet. The photographer sued the state for damages under copyright law. On August 7, 2018, the European Court of Justice in Luxembourg as the final appeal decided the matter under German law and the E.U. copyright harmonization regulations.
The court found in favor of the plaintiff after the German Federal Supreme Court for Civil Matters in Karlsruhe had referred the matter to it. The fact that the travel website does not restrict visitors will not reduce the right of the copyright owner to control which permissions to attach to his copyrighted work. The republication by the state-run school is unauthorized because every website addresses a new audience. A copyright owner may have a particular audience in mind when granting a license; publication to another audience requires a new license -- at the owner's discretion.
The court distinguished the republication from linking to the original publication. It states that linking is an essential feature of the the world wide web. Linking is a feature that supports the essential purpose in harmony with copyright law, while copying and republishing frustrates that harmony, see (a) Press Release Land Nordrhein-Westfalen / Dirk Renckhoff (b) Application and Decision ECLI:EU:C:2018:634.
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