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The evaluation of multiple voting rights in a public partnership – Company Law

http://www.grprainer.com/en/Kommanditgesellschaft-KG-/-Limited-Partnership.html If the articles of association of a public limited partnership grant the general partner multiple voting rights in the context of passing resolutions to change the articles of association, this is not necessarily permissible. GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London UK www.grprainer.com/en explain: Multiple voting rights granted pursuant to the articles of association of a public limited partnership to the general partner that also allow for change to the articles of association are not, in the view of the Regional Court of Freiburg (LG), valid (Az.: 12 O 133/12). In the instant case, the articles of association of a public limited partnership contained a clause which granted the general partner multiple voting rights. According to this, the general partner, who did not partake in the profit and loss of the partnership but instead received remuneration independent of these factors, was also entitled to multiple voting rights with respect to resolutions to change the articles of association. The investors brought an action against these provisions and the Court has now found in their favour. Consistent with the nature of a public limited partnership, the structure of the partnership and the number of limited partners in such an entity are not yet fixed at the time of its formation. This also entails that partners are not able to exert influence on the existing articles of association; they only have a capital interest in the limited partnership. It is precisely for this reason that it is important for the investors that they are not disadvantaged by the pre-formulated articles of association. In order to protect partners and prevent parties from being disadvantaged, it is possible carry out an examination of the content of the articles. In principle, the provisions in articles of association are void if they unfairly disadvantage the limited partners. In the view of the Freiburg LG, provision concerning multiple voting rights represented this kind of unfair disadvantage. The defendant’s argument, that it carried the entire economic risk as general partner and therefore the clause on multiple voting rights was reasonable, was unfounded in the judges’ opinion. Although it is generally possible to grant special rights, the benefits must also be accompanied by appropriate risk. Particularly in the field of company law, legal laymen often find themselves faced with several questions. An experienced lawyer can help examine the legal situation and enforce potential claims. Partners are protected by the principle of equal treatment, according to which provisions that entail an unfair disadvantage are invalid. Aggrieved parties should not accept unequal treatment but instead obtain legal advice and have their possibilities analysed. http://www.grprainer.com/en/Kommanditgesellschaft-KG-/-Limited-Partnership.html

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Shipping investment funds: Tax advantages can go up in smoke – Tax-Law

http://www.grprainer.com/en/Tax-Law.html Due to disparities that must be calculated, investors in shipping funds may have to wait a long time before benefitting from expected tax savings. GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London www.grprainer.com/en conclude: The tax advantages investors have come to expect will materialize only at the end of their investment period. Yet often, investors can face the problem that the disparity will show only at the end of the investment term. Quite often, investors are surprised when they realize that taxes can be demanded retroactively. Whether an investor will face a gain or a loss is determined by whether the disparity is negative or positive. In any event, investors will be facing a general obligation to pay taxes, regardless of the result of the disparity. The difference between the book value of a ship and its going concern value is the disparity. It is also calculated from the tonnage tax which determines the taxable income. The tonnage tax is due at the end of each shipping investment period. During the preliminary consideration whether an investment in a shipping fund is appropriate for an investor, the disparity should always be taken into account. If the disparity is disregarded, investors may be facing a high amount of retroactively payable taxes. Thus, the expected tax advantages can be quickly wiped out by immense back taxes. Expected tax advantages can go completely up in smoke due to the negative results of the disparity. Such a case can occur when an investor did not adequately prepare for a possible demand of retroactive taxes. In particular, this also applies to investors who have had their shipping investment financed by a foreign currency loan. These are not safe from the disparity either. They result in a disparity due to the different currency exchange rates that existed at the beginning and the end of the term. The taxable disparity results from the sum of disparities for the ship and for the loan. Investors who are planning to invest in shipping should at an early time look for a lawyer who is experienced in tax law to avoid being negatively surprised by the result of disparity. http://www.grprainer.com/en/Tax-Law.html

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Film rights as a special form of copyright - Film-Law

http://www.grprainer.com/en/Film-Law.html The question whether someone is the copyright holder of a film is answered by the Copyright Act and within that framework by the general principle of creativity. GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London www.grprainer.com/en conclude: According to the Copyright Act's general principle of creativity, which is enshrined in section 7, Copyright Act, the ownership of a film's copyright depends on whether the "person" whose copyright is in question has made a creative contribution to the film. Such a contribution exists, for example, when it reflects a personal intellectual creation. The extent of this creative contribution determines the extent of the copyright. The copyright for a film can be held by an individual as well as by a corporate body. A plurality of individuals can also hold the copyright for a film jointly. However, in that case, it must be differentiated between the copyright for the film as a whole or for only a certain direct component of the film such as the screenplay, or for an independent medium such as a novel on which the film is based. The relevant time of the creative contribution is regarded as the period between the beginning of the shooting of the film (which initiates the production of the film) and completion of the final print (where the production ends). Copyright is not automatically ruled out when some participants such as the producer, who also plays the role of director, assume a double or multiple function. But for ownership of the copyright, it is necessary in such cases that there are two different contributions that can be separated from each other. If it is not possible to look at the contributions separately, the participant in question is entitled either to copyright or to intellectual property right. It is often difficult to determine the copyright holder of a film. In that respect, it can be helpful to define the roles of those participating in the production of the film beforehand to avoid uncertainties when rights are claimed. Film rights are a complicated subject, particularly when they apply on an international scale. It cannot hurt to have a lawyer at your side who will always be able to give legal advice. http://www.grprainer.com/en/Film-Law.html

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Sole heir may need certificate of inheritance in spite of a power of attorney – Law of Succession

http://www.grprainer.com/en/Law-of-Succession.html It may be necessary to obtain a certificate of inheritance even though a sole heir has a power of attorney with postmortal effect. GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London - www.grprainer.com/en conclude: In its ruling of January 10, 2013 (File No. 15 W 79/12), the Superior Court (Oberlandesgericht) of Hamm has decided that a power of attorney signed by a testator, which is meant to remain in effect after the testator's death, shall expire if the empowered person is the testator's sole heir. In principle, in the case of a power of attorney with postmortal effect, which is to remain in force beyond death, the land registry office only needs to verify the effectiveness of the power of attorney, and no proof of inheritance is required. However, the case may be different if the empowered person has also become the testator's sole heir. If it were to be assumed that the power of attorney remains in force for the sole heir, this would amount to a fiction for which no support can be found in the law. If the heir is the sole heir, the court declared, it is his own business which under certain circumstances could already be in effect. The Superior Court had to rule in a case where a testatrix, who was entered in the land registry book, had given her husband a general power of attorney. This general power of attorney was to remain effective after death. After his wife's death, the husband transferred the property to another person. The land registry office asked the husband for proof of inheritance so that any possible co-heirs could be heard and the husband's status as sole-heir could be verified. The testatrix's husband argued against this, but the land registry office did not comply with the complaint. The subject of heirs and inheritance is more than a purely legal matter. In addition to legal questions about inheritance law, the heirs are almost always involved in emotional and internal family considerations. A lawyer with experience in inheritance law will deal with such an exceptional situation confidently and sensitively. If there is no will, the law will determine the heirs. In each individual case, a lawyer with experience in inheritance law will review who is entitled to an inheritance and how large the share of inheritance is. This also applies to the required certificates which may have to be presented in an individual case before an inheritance can become effective. http://www.grprainer.com/en/Law-of-Succession.html

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Marketing with misleading regional information is prohibited - Trademark-Law

http://www.grprainer.com/en/Trademark-Law.html The marketing of dairy products whose name contains misleading information about places and regions of origin is not allowed, since it conjures up wrong connotations among consumers. GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London - www.grprainer.com/en conclude: This is how the Superior Court of Stuttgart is said to have ruled recently (File No. 2 U 157/12). To market its dairy products, a dairy company was said to have used the name of a region although the milk was not processed in that area at all. The court called that behaviour misleading for consumers, who would be forming an incorrect notion about the origin of the milk. If the name of a certain region appears on a food product, especially on an agricultural product, consumers can assume that the products have a direct connection with that region. The court said that the effect on consumers was even more deceiving because the term "fresh milk" was used. It found that with such a constellation, it would not be far-fetched to assume that customers believe the article to be produced in the named region. The dairy argued that in its opinion it was not deceiving customers, that it was stating the origin of the milk and the place where the packages were filled, thus removing any misleading character. The court held that such additional information is indeed able to prevent a wrong notion, but that it must be clearly visible and understandable for consumers. In the opinion of the judges, the information on the milk package was insufficient to avoid deception. In its justification, the Court also referred to the relevance of the deception and gave several reasons why the origin of the milk could be meaningful for consumers. When customers purchase food, they have several different reasons for deciding on a certain product, such as supporting farmers in specific regions or the sustainability of production. All that was said to be a factor why the region from which a product comes can be decisive for consumers. The Trademark-Law is very multi-faceted and can often involve several areas of the law. It is therefore advisable in such cases to employ a lawyer. He can help you from registering a brand name to reviewing potential violations to asserting possible claims under trade mark violations. http://www.grprainer.com/en/Trademark-Law.html

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Collection assignments and authorization to collect - Debt-Collection

http://www.grprainer.com/en/Debt-Collection.html A collection assignment authorizes the assignee to claim the assigned accounts receivable as his own and therefore in his own name. GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London - www.grprainer.com/en conclude: If the assignee is given "only" an authority to collect, he must claim the accounts receivable in someone else's name. A collection assignment is the complete assignment of the accounts receivable where the assignee is regarded as the new creditor of the debt. After assignment, he is therefore in the justified position to collect the receivables. However, the assignee is not authorized to dispose of the receivables, since a trustee relationship exists between him and the assignor. On that basis, he assignee has more legal authority toward the outside than toward the inside. In principle, debtors are not entitled in a collection assignment to object to the relationship between the assignee and the assignor. However, if the circumstances warrant it, the debtor has an opportunity to offset his debts against any receivables from the assignee. The assignor cannot revoke the collection assignment. The collection assignment gives the authorized person the opportunity to claim someone else's receivables in his own name. The end effect is that he can demand that payment be made to himself. However, he cannot demand any more, since all other creditor's rights with regard to the receivables remain with the creditor, and these can only be exercised by the creditor himself. In exchange, the debtor directs all complaints and arguments to the assignee as well as to the assignor. However, it should be observed that in this case, the debtor has no possibility to offset an account against the assignee, and that he has no rights toward the assignor due to his relationship with the assignee. Yet the assignor can always revoke the collection assignment. Under certain circumstances, the boundary between these two legal entities can present problems and is often so blurred that laymen will frequently have difficulties. Considering the resulting possibilities and legal consequences, it is of particularly great importance to delineate these entities precisely to take advantage of the possibilities and to anticipate the legal consequences. A qualified and experienced lawyer can help to keep on top of the situation and to fully utilize the existing possibilities. http://www.grprainer.com/en/Debt-Collection.html

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A testator's dementia can make the will invalid – Law of Succession

http://www.grprainer.com/en/Last-Will-and-Testament.html If the testator is suffering from dementia at the time of drawing up the will, this can lead to the invalidity of the will. GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London - www.grprainer.com/en conclude: The testamentary capacity of persons with conditions affecting their cognitive abilities is a question recently dealt with by the Superior Court [Oberlandesgericht/OLG] of Munich (File No.  31 Wx 266/12). The case concerned the testamentary capacity of a testatrix suffering from Creutzfeld-Jakob Disease with progressive dementia. She had drawn up several wills. A year before her death, she had made her son her sole heir by signing a notarized will. After her death, her son applied to be the sole heir, but the probate court turned the application down, ruling that the deceased had been incapable of making a testament. The son appealed to the Superior Court.  He argued that his mother had a bright moment when she drew up the will, and that this was also apparent from the comments of the notary who had no doubt about the testatrix's testamentary capability. However, the court-appointed expert came to a different conclusion and argued that due to her severe illness, the testatrix had not been able to act autonomously and to make free decisions. The Civil Code [BGB] states that the autonomy of the testator/testatrix is a substantial prerequisite for his/her testamentary capacity. He/she must have unlimited judgment and be clear about the content of the will as well as understanding the repercussions of the testament. That is precisely what the court found lacking in this case, and the appeal was dismissed. Misfortunes and other unhappy events can happen quickly, often burdening the affected persons with difficulties. It is therefore advisable to seek counsel at an early time about legal provisions in case of death. Lawyers with experience in the laws of inheritance can help in drawing up an effective will. Such lawyers would pay attention to the exact wishes of testators and give advice about the possible consequences of the arrangements made. Not only should the legal formalities be observed, but there are also tax implications that should be taken into consideration. For that, too, a lawyer can find the solution best suited to the testator's intention. http://www.grprainer.com/en/Last-Will-and-Testament.html

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Employment relationship with transferred employee despite transfer agreement – Employment Law

http://www.grprainer.com/en/Temporary-Employment.html An employment relationship with the host business can be assumed under certain circumstances despite any transfer agreement. GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London www.grprainer.com/en explain: The Regional Labour Court of Hamm (LAG) ruled in its judgment of July 24, 2013 (Az.: 3 Sa 1749/12) that an employment relationship exists with the host business despite an employee being transferred on the basis of a services framework agreement if the employee is integrated into the business and the supplying company does not possess the necessary authority for the transfer of employees. The decision was based on circumstances according to which the claimant was in an employment relationship at a cleaning company. This cleaning company had concluded a services framework agreement with the defendant. The claimant was deployed by the cleaning firm in the defendant’s facility-management sector. A written agreement was first reached two years later. With the defendant, the claimant was provided with a fully equipped workplace, as well as equipment and work clothes resembling those of the defendant’s other employees. The claimant sought to establish with his claim that the employment relationship was not with the cleaning firm but rather with the defendant. The labour court granted the claim. The defendant’s appeal was rejected by the LAG. An employment relationship with the host business can exist despite an employee being transferred on the basis of a services framework agreement if the employee is integrated into the company and the supplying business does not possess the necessary authority for the transfer of employees. The business plan is decisive for the demarcation of the types of contract, which can be determined from the agreements of the contractual parties, as well as from the practical execution of the contract. The claimant’s employment should not be included in the framework agreement. In today’s working world, the temporary provision of labour has assumed an important role. The reason for this is that businesses are hereby able to reduce their own financial risks and gain flexibility. In the case of time or temporary work, an employer, the supplier, lends his employees to another business, the hirer. The temporary employee thus becomes active in the hirer’s business. However, the employment relationship between the employee and the employer as supplier continues to exist. In individual cases, there may be exceptions to keep in mind. For this reason, the legal advice of a lawyer versed in labour law should be sought at an early stage. http://www.grprainer.com/en/Temporary-Employment.html

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Private video recordings potentially evidence in civil proceedings

http://www.grprainer.com/en/Litigation.html Private video recordings can potentially serve as evidence in civil proceedings, according to the Local Court of Munich (AG) in its judgment of June 6, 2013 (Az.: 343 C 4445/13). GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London www.grprainer.com/en explain: The Court explained in its reasoning to the, not yet binding, judgment that it essentially depends on the interests of the parties involved whether the private video recording could be used as evidence. The conflicting interests must be weighed up. In the instant case, it could be permissibly used because the video recording was meant solely for private interests at the time of recording and therefore no particular purpose was being pursued. The Court clarified that this kind of video was not prohibited, as the recorded persons were captured accidentally. It compared the video recordings with holiday photos in which other persons end up in the picture by chance, something that can happen to anyone and everyone is aware of. These types of photos are socially acceptable and not prohibited, according to the Munich AG. The Court further assumed that these persons, who have no relationship whatsoever with the originator of the photos, remained anonymous and hence there was no legal infringement. In particular, a derogation of the basic rights would only come into question if such a picture were made public against the will of the pictured persons. While the Court was faced with a case of a video having been made public, the interests between the parties involved had changed and an interest in preserving evidence, e.g. also for photos taken by a person involved in an accident after it takes place in order to preserve evidence, was acknowledged by the case law. In the view of the Court, neither the point in time at which the evidence was preserved, i.e. before or after the accident, nor the purpose of the photos or, as the case may be, recordings as evidence or not make a difference to the admissibility of their use. Lawyers can help with the conduct of a case, in particular by highlighting alternative approaches in certain circumstances and in doing so or at any rate enforce claims. http://www.grprainer.com/en/Litigation.html

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Establishment of an employment relationship after longstanding deployment of external employees

http://www.grprainer.com/en/Employment-Contract.html Irrespective of any contract to produce a work, an employment relationship can emerge even in the case of external employees deployed and bound by instructions if integrated into the business. GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com/en explain: The Regional Labour Court of Baden-Württemberg ((Landesarbeitsgericht) LAG) had to rule on a case (Az.: 2 Sa 6/13) concerning the demarcation between a contract to produce a work and the temporary provision of labour. Both claimants worked as independent contractors in an IT systems house and were deployed over ten years in the defendant’s business within the framework of a contract to produce a work. In the view of the claimants, an employment relationship arose from the circumstances of the instant case, namely that they were integrated into the defendant’s business and acted in accordance with their directions. While the court of first instance dismissed the claims, the Regional Labour Court has now found in favour of the claimants. The Court took the view that the existence of a contract to produce a work cannot be assumed in the present case; instead, this was a case of temporary provision of labour. This is indicated by the fact that the claimants worked over an extended period in the defendant’s business premises and also used its equipment. Additionally, the judges accepted the existence of binding instructions vis-à-vis the defendant. The defendant argued that this was not a case of temporary provision of labour, as the claimants were not directly instructed through the business; they were allocated to the work contractor via a ticket system, who were then requested by the IT employees. Such a system was indeed contractually agreed upon, yet in practice seldom implemented. Instead, employees of the defendant directly approached the claimants and granted work assignments. The LAG observed that it did not come down to the agreement but rather the actual procedure indicating the existence of binding instructions and integration of the claimants in the defendant’s business. Thus, one had to assume the existence of an apparent contract to produce a work and the formation of an employment relationship between the claimants and the defendant. A few legal issues often arise in connection with the temporary provision of labour and contracts to produce a work. Particularly when assessing the existence of an employment relationship, the appraisal of the overall circumstances is decisive. It is advisable to obtain legal advice from a lawyer active in the field of labour law in order to conduct an individual examination of the situation. http://www.grprainer.com/en/Employment-Contract.html

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The logistics contract in commercial and transport law

http://www.grprainer.com/en/Logistics-Law.html The logistics contract is a so-called mixed-type agreement found in commercial and transport law. GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London www.grprainer.com/en explain: The logistics contract can feature elements of various different types of agreement, such as freight contracts, agreements to produce a work or provide storage. The forwarder can commit itself for the purposes of a logistics contract to a large number of different kinds of activities, precisely because this entails a mixed-type contract which is not based on any statutory provisions. In particular, the principle of private autonomy in civil law enables the parties to the contract to extensively configure the content of the agreement. Thus, the forwarder can commit itself to services in the fields of production, distribution and ultimately also delivery of the relevant products, i.e. these days, logistics entails more than simply transportation of a commodity from one place to another. This enables the forwarder to be comprehensively incorporated into the different operating processes of its contracting entity. The parties to the contract can also effectively incorporate logistics general terms and conditions into the agreement. The logistics general terms and conditions are general terms and conditions recommended by the German Forwarder and Logistics Association that regulate the forwarder’s liability for additional logistics services which occur within the framework of an “acclamation deal” (“Zurufgeschäftes”). Overlapping can arise here with the General German Forwarder Conditions (ADSp), whereby it is ultimately not clarified which of these conditions takes precedence. Yet this could be settled in individual agreements by the contracting parties. It must be observed here, however, that the ADSp cannot be applied to all logistics contracts. Due to the fact that a logistics contract is a mixed-type agreement, it is often difficult for legal laymen to comprehend the statutory provisions. However, this is of particular significance in the area of liability; first and foremost, it can become complicated if logistics general terms and conditions or the ADSp are effectively incorporated into the logistics contract. A competent lawyer versed in the field of logistics law can help draw up contracts which satisfy the interest of the contracting parties. Furthermore, he can examine whether any claims exist and, where necessary, enforce these. http://www.grprainer.com/en/Logistics-Law.html

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Requirement for price description under competition law

http://www.grprainer.com/en/Competition-Law.html A reference to sales tax under the tab “shipping and payment options” might not satisfy legal requirements. GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com/en explain: The Regional Court of Bochum (LG) ruled in its judgment of July 3, 2012 (Az.: I-17 O 76/12) that the reference to sales tax on a website under the tab “shipping and payment options” did not satisfy legal requirements. This was particularly the case because the page only became visible if the tab was clicked. Thus, the offer could be brought up without this reference becoming visible. It follows that the order transaction could be initiated without having to click on the tab with the reference to sales tax. The LG had to rule on a case in which a competitor in an online marketplace had offered an item for immediate purchase. Information with a view to sales tax was not to be found directly next to the price, rather in the first instance in the general terms and conditions. The point related to sales tax could only be reached by scrolling down across several screen pages. Additionally, there was a reference to sales tax under the header “shipping and payment options”. By clicking on the field “buy now”, the order transaction could be initiated without any further reference being made to sales tax during the course of the order transaction. In principle, a reference ought to mention that the price includes sales tax. The reference must be clearly attributable to the offer, easily identifiable and clearly legible or sufficiently perceivable. Even though a direct spatial link with the stated price is not required, the information must be immediately and easily recognizable. Moreover, it is sufficient for the information to be presented in a sufficiently perceivable manner on a separate page if this page must necessarily be brought up before the order transaction is initiated. It is frequently the case that jurisprudence relating to internet law is inconsistent as between individual courts, as they are faced with the challenge of reconciling all the different areas of the medium that is the internet with the hitherto applicable laws. The resulting diverging jurisprudence leads to greater uncertainty, especially for commercial internet users. A lawyer versed in commercial legal protection can synchronise the relevant legal bases and assert the interests of internet users. http://www.grprainer.com/en/Competition-Law.html

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BverwG: Housing development in weekend home area potentially admissible

http://www.grprainer.com/en/Construction-Law.html A housing development for the purposes of portfolio security in an area designated in the building plan as a weekend home area is potentially admissible. GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com/en explain: In its judgments of July 11, 2013 (Az.: 4 CN 7.12 and 4 CN 8.12), the German Federal Administrative Court (BVerwG) ruled that a housing development in a weekend home area may be admissible for the purposes of preservation of the status quo, provided that it is guaranteed that the building zone in question does not appear to be a mixture between a weekend home area and a residential area. Accordingly, the housing development must be qualitatively and quantitatively subordinate in comparison to the weekend development to such an extent that the area appears to be weekend home area. The instant case concerns an area in which constructions during the thirties and post-war period were likely carried out unplanned and also frequently illegally. There is a seemingly wide variety of developments in the area, i.e. both rural and residential houses or weekend and summer houses, tool sheds and shelters. Ultimately, the plan should regulate the building zone and end further illegal building use. In the development plan, residential homes are not likely to be designated as admissible. A new development with residential houses is only likely to be admissible in a small part of the area. An exception exists for the rest of the area to the effect that residential houses that are already present and used in a legally permissible way may continue being used uninterrupted. This is supposed to serve to secure the portfolio. A property is permissibly utilized if the construction supervisory authorities grant authorisation or provide written approval. The Higher Administrative Court (VGH) declared that these determinations were invalid. The BVerwG only partially followed it to the effect that the Federal Land Utilisation Ordinance does not in principle permit a mixed development as a weekend home area and as a residential area. However, it went on to state for the purposes of portfolio security that the result would be different if the residential development were subordinate on qualitative and quantitative levels and the image of the area characterised by weekend houses. Additionally, the area could not appear to be a mixed zone. This must now be examined by the VGH. Construction law is a particularly multi-layered and complex area that is often difficult for laymen to comprehend, especially because of the distinction between public and private construction law. The relevant rules are found in various statutes, which presents laymen with a particular difficulty. A lawyer can help you stay on top of things and remove any ambiguities. http://www.grprainer.com/en/Construction-Law.html

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Distribution and sale of used software licenses

http://www.grprainer.com/en/IT-Law.html The rights of software licenses may not simply be transferred with the sale of authenticity certificates. GRP Rainer Attorneys and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com/en explain: This was the decision of the District Court (LG) Frankfurt/M. with its judgment from September 27, 2012 (file ref. no.: 2-03 O 27/12). The District Court Frankfurt/M. has now decided that rights shall not be transferred with the sale of authenticity certificates. The acquisition of such authenticity certificates does not entail gaining the rights derived from the holder of the copyright for permission to reproduce the respective software. The District Court had to decide a case in which the plaintiff maintained that it’s copyright was violated by the sale of certificates of authenticity because the software licenses were not embodied in the sale. The District Court allowed the claim and granted the plaintiffs an injunction. The Court held that rights should not already be acquired with the simple sale of the certificates of authenticity. Distribution rights include a plethora of regulations which provide for the distribution of goods and services. Distribution takes place primarily between contractors and sales representatives as well as distributors, but also between franchisor and franchisee. In addition, the international distribution of goods has become more and more important. An attorney experienced in commercial law provides extensive consultation in legal issues in the area of national and international distribution law. Various legal norms must be taken into consideration to gain a vantage point of the full scope of distribution law. Regulations pertaining to the law of distribution is not only found in the German Civil Code (BGB) but also in the German Commercial Code (HGB). Furthermore, important provisions in competition law, antitrust law, and international law must also be taken into account. In order to make full use of these, an experienced attorney is necessary in most cases. An attorney takes over the responsibilities of establishing contractual agreements between commercial agents and authorized-dealers, general terms and conditions, and franchise agreements for you. Also, an attorney practicing in the area of distribution law checks the competition and license contract agreement aspects of distribution relations. But also with existing business relationships, an experienced attorney can provide you with further assistance. In addition, a skilled attorney can support you to enforce claims for damages both in court and out-of-court. http://www.grprainer.com/en/IT-Law.html

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Confidentiality under private law and collection of information subsequent to a request from a tax investigation

http://www.grprainer.com/en/Criminal-Tax-Law.html  The confidentiality of tax information is privately agreed, but this does not prevent the collection of information from a tax investigation subsequent to request for confidential information. GRP Rainer Attorneys and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com/en explain: The Federal Fiscal Court decided in its judgment from May 16, 2013 (file ref. no.: II R 15/12) that confidentiality agreements under private law do not stand contrary to requests for the collection information request as part of a tax investigation. In this case, the tax revenue office demanded to learn which user of an internet platform had achieved annual sales over 17,500 EUR via a certain internet platform; income earnings above this amount become subject to value-added tax (VAT) in Germany. The operator of this platform is established in Luxembourg, and the request was made to its affiliate in Germany. The tax revenue office did make the request for information which included the names, addresses, bank details, and a detailed listing of all sales made. The German affiliate company had first operated the platform, but then responsibility for operations transferred to the Luxembourg company and in the framework of this relocation and operations transfer, the Luxembourg location is responsible for providing data processing services for the company and none of the processed data may be passed on to third parties. Accordingly, the German affiliate company submitted its argument in its lawsuit. The German affiliate presented before the tax court that it was not authorized to obtain the information for the tax revenue office because on the one hand it does not hold such an authorization and on the other hand it would not even have access to the information because the data is stored on servers in a foreign country.  Also, it would be impossible for the German affiliate to obtain the consent of the Luxembourg company. The tax court upheld the standing of the lawsuit and the request for information was canceled due to the actual impossibility of providing the information. The Federal Fiscal Court apparently overturned the decision and remitted the matter. In its justification, the Federal Fiscal Court maintained that sufficient findings were not determined by the tax court which would establish the impossibility of the claimant to provide the information because the foreign location of the servers would not prevent the possibility of accessing the server to the effect that no obligation on the points of fact would exist from the side of the Federal Fiscal Court. The Federal Fiscal Court held that confidentiality agreements under private law may not successfully be used to decline requests for information which have been issued by public authorities so that, accordingly, it must now be considered whether or not it is actually impossible for the claimant to access the serve and therefore also to the information requested. Tax law is a complex issue. It is oftentimes not possible for non-experts to keep track of the scope of this area of law. An attorney working in the area of tax law can help keep an overview. http://www.grprainer.com/en/Criminal-Tax-Law.html

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Breach of contractual ancillary obligations in leasing law

http://www.grprainer.com/en/Leasing-Law.html The lessor is possibly subject to fulfilling the contractual obligation to make best possible use of its a leased asset if a lessee is responsible for the calculated residual value of the leased asset according to the contract of lease. GRP Rainer Attorneys and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com/en explain: The Higher Regional Court (OLG) Oldenburg ruled in its judgment from March 6, 2013 (file ref.no.: 13 U 4/11) that a lessor must utilize the leased asset, if the lessee is responsible for the calculated residual value of the lease according to the terms of the lease agreement.  The ancillary obligation to recover the best possible utilization of the leased asset pertains to the lessor (leasing company). A breach of this obligation shall exist if the lessor and the supplier of the lease vehicle concluded a repurchase agreement and the lessor had not confirmed whether or not, at the end of the leasing term, making recourse to this repurchase agreement was also favorable for the lessee. In leasing, the lessor procures an item or asset and finances it completely. The leasing object shall then, in turn, be made available to the lessee for independent use in exchange for payment of a small monthly sum. Legally, this is considered a non-gratuitous transfer of use. Therefore, parallels between the law of tenancy and the lease agreement are apparent. Usually, there are provisions for the transfer of use, contractually agreed maintenance and servicing costs as well as warranty claims assigned to the lessee as part of leasing arrangements. Such features of leasing arrangements indicate a significant difference between a leasing agreement and a tenancy agreement. A further difference is also the participation of a third party in the lease contract, the manufacturer of the leased object. Challenges and complexities can occur as part of the transactions leading up to the termination or cancellation of a leasing agreement in the case of defects in leased objects. Particular difficulties may also arise as the lessor (or leasing company) at the end of a leasing period as well as in fulfilling its contractual ancillary obligations of the leasing object – such as the obligation for best possible utilization of the leased object. Reason enough even before the conclusion of a leasing contract to gain support for lease contract arrangements as well as the review of lease proposal. An attorney practicing in the area of leasing law help to arrange and structure contracts from the outset so that that they can withstand a later judicial review and in particular also clarify what obligations arise respectively under the leasing contract. http://www.grprainer.com/en/Leasing-Law.html

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BGH: No additional expenses for subsequent performance according to Sales Law

http://www.grprainer.com/en/Civil-Law.html Whenever a contractor or businessman buys a defective item from another contractor, delivery of a defect-free item may be demanded but not reimbursement for additional costs. GRP Rainer Attorneys and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com/en explain: The 8th Civil Division of the Federal Supreme Court (BGH) in its ruling from October 17, 2012 (file ref. no.: VIII ZR 226/11) determined that the ruling of the European Court of Justice (ECJ) from November 16, 2011 (C-65/09. C 87/09) is not applicable in all cases of contracts of sale between companies. Non-refundable additional costs are, for example, installation and disassembly costs. Within the context of this judgment issued by the European Court of Justice, a consumer in the context of a claim for subsequent performance against a contractor may require disassembly of the defective item as well as reinstallation of the non-defective item as part of the exchange. The contractor is free to decline performance of the disassembly and reinstallation. But then, the contractor must bear applicable costs of such performance. The BGH held that this did not apply in the context of the relationship between two contractors but only to the relationship between consumers and contractors. Moreover, it would also not be possible to transfer these provisions in compliance with interpretations of the German Civil Code (BGB) to the purchase contracts between entrepreneurs, a possibility which would not stand in opposition to the decision of the European Court of Justice (ECJ). Generally speaking, a buyer, in the event of a defect, should not be used to present the case of the defect as there are no legal provisions (in contrast to work and services contract law) for self-fulfillment. In Sales Law, the principle of primacy of subsequent performance applies via the seller for whom the possibility should exist to remedy existing deficiencies, possibly even at lower cost. For a buyer who buys a defective item, it is important, therefore, to proceed properly from the very beginning in order to avoid being held responsible for costs. It is advisable, therefore, in such a case to seek advice from an attorney practicing in the area of civil law who can examine existing claims and plan further steps. It is in the best interest of contractors to consult with attorneys to draw up contracts in advance. http://www.grprainer.com/en/Civil-Law.html