Organic Tobacco (Natural Tobacco)

In its judgment of November 4, 2010 (I-ZR-139/09) the Federal Supreme Court has not only forbidden the term “organic” for tobacco products basically because of the abstract limitations in § 22 para. 1 sentence 2 No. 2 of the preliminary Tobacco Act.

The decision extends the protection for the term organic in the area of food legislation in general. The consumer does not make sublime contemplations but equates organic with the not yet clarified terms of “naturally pure” and “natural”. The terms are synonyms. Food products advertised as such have to be free of residues and pollutants beyond the inevitable natural minimal extent. They must meet the regulations as to organic production and labeling. (Christian Meister)

Functional succession not transfer of operations

The European Court of Justice states clearly in its judgment dated January 20, 2011 – AZ: C-463/09 that taking over a business activity alone does not constitute a transfer of operations. In reference to the decision in the Albron case (dated October 21, 2010, AZ: C-242/09) the court indicates that a functional succession – such as the termination of a cleaning contract and having the cleaning done by own employees – is not sufficient for a transfer of operations.

The European Court of Justice finds that the transition should affect an economic unit which should retain its identity after the change of ownership. An economic unit may not be interpreted as a mere activity. (Stefan Mößner)

Calculation of post contractual no-compete compensation set off against unpaid dividends

Workers creatively attempt to avoid setting off other earnings to post contractual no-compete compensation. In a recent case before the Higher Labor Court Nuremberg, a former employee first exercised a freelance occupational activity and then a commercial occupational activity before positioning his business as a limited liability company. As sole managing director and shareholder, he objected to unpaid dividends not being set off against post contractual no-compete compensation. According to an indicative court order by the Higher Labor Court Nuremberg the assessment of economic performance does not depend upon the nominated payment of dividends. The Higher Labor Court Nuremberg said that it was entering unchartered territory insofar and regarding the question whether – in calculating post contractual no-compete compensation, gross earnings are applicable – taxes paid by the limited liability company are to be added to distributable dividends. (Claus Köhler)

With its judgment dated April 6, 2011 – 7 AZR 716/09 – the German Federal Labor Court decided that a temporary employment contract without substantive grounds with the same employer after the expiry of a period of three years is possible again. 

The purpose of § 14 paragraph 2 sentence 2 of the Law Governing Part-time and Temporary Employment is to enable employers to respond to fluctuating order situations and changing market conditions by means of temporary employment, to create a bridge for employees towards permanent employment, and to avoid chains of temporary employment contracts. But this was typically no longer the case regarding previous employment dating back more than three years. The previously applicable initial employment principle in § 14 paragraph 2 sentence 2 of the Law Governing Part-time and Temporary Employment, which practically had the effect of an employment ban particularly for those seeking work, has experienced an overdue and necessary correction from this decision. (Stefan Mößner)

“Exhaustion of the right of distribution does not bring about the exhaustion of the right of reproduction”

Thus one can summarize the presentation of Dr. Hans-Werner Moritz held on April 7, 2011 at the business premises of Meister Rechtsanwälte relating to the preliminary ruling of the German Federal Supreme Court (I ZR 129/08) to the European Court of Justice. Based on the legislative procedure of directive 91/250/ECC (now 2009/24/EC) Dr. Moritz demonstrated that the “lawful acquirer” within the context of Article 5 of the directive can only be one whom the author/copyright holder has granted the right of utilization. The exhaustion of the right of distribution is irrelevant in this context. The opinion of Dr. Moritz was quoted by the German Federal Supreme Court in its preliminary ruling (Moritz in Publication commemorating Heussen, 2009, p. 221 et seq.).

Liability of Managers

Prof. Dr. Claus Köhler is mentioned in the magazine “Wirtschaftswoche” issue 11/2011, page 66 in the column on “Attorneys-at-law with reputation as to liability of managers”. Liability of managers is of importance for businesses, e.g. in case of legal infringements with respect to the analysis of the illegal practices, the restoration of practices in compliance with the law and a preventive modification of the internal processes. Another aspect is the recovery of damages. In addition to such damages further disadvantages may be the result for businesses from public disputes with managers. The structure of D&O insurances which provide for a condition precedent of a successful litigation against the manager implies insofar dangers for the business as plaintiff and increases the readiness for a settlement. (Claus Köhler)

Prof. Claus Koehler – Judiciary President in Bucharest

On the 9th of November 2010 Prof. Dr. Koehler, acting as Judiciary President, introduced the Permanent Arbitral Tribunal of the German-Romanian Chamber of Industry and Commerce during its General Meeting. In his lecture, he emphasized the advantages of arbitration as opposed to litigation proceedings in state courts. He explained in detail how the Arbitral Tribunal applies its own Rules of Arbitration and emphasized the great potential of the Permanent Arbitral Tribunal. The Arbitral Tribunal and how it was founded was also the topic of a press conference in Bucharest on 10th November 2010, dealing among other things with the costs of arbitration. Prof. Dr. Koehler pointed out that, due to the specific benefits of arbitration, higher legal costs than in state legal proceedings may well be economically justified. (Claus Köhler)

Does Google Street View Infringe Personality Rights?

Having previously given an expert opinion on the admissibility of Google Street View for a German publishing group, Prof. Claus Köhler stated on March 29, 2010 in a TV interview with Report München:

“The cases judged by us are clear. The people shown in the web can be recognized, can be identified. As such, sanctity of one’s own counterfeit is violated. As such, of course, the personal right is infringed. Therefore, Google might do good to consider to take one step back and try to be more careful with regard to German law.”

Compliance of Google Street View with German Data Privacy Laws

Dr. Hans-Werner Moritz had been consulted as expert for the evaluation of the compliance of Google Street View with German data protection rules by a German publishing group. Dr. Moritz concluded that, in substantial parts, Google Street View does not comply with German data privacy laws. His opinion has now been published in: „Zur Zulässigkeit von Google StreetView unter dem Aspekt des Deutschen Datenschutzrechts“. Kommunikation & Recht, vol. 5, May 2010, Suppl. 2/10.

Hearing at the State Parliament of Mecklenburg-Vorpommern regarding Google Street View

Prof. Dr. Köhler and Dr. Moritz had been invited by the State Parliament of Mecklenburg-Vorpommern as experts to a closed hearing on May 12, 2010. Topic of the discussion were feasible legal steps to prohibit or restrict Google Street View and similar activities of other providers and to which extent the publication of data depends on the approval of the rightholder. Prof. Dr. Köhler und Dr. Moritz delivered an expert’s opinion concerning the reliability of Google Street View. According to the opinion of Prof. Dr. Köhler, Google Street View in view of certain contexts infringes sanctity of one’s own counterfeit and the right of determination of personal information. Dr. Moritz concludes that Google Street View substantially contradicts German Data Privacy Laws.

Retention of Data for the Purpose of Prosecution

Data retention in its actual form is unconstitutional. (http://www.bundesverfassungsgericht.de/entscheidungen/rs20100302_1bvr025608.html). Such massive trespassing of civil rights is only admissible in very narrow, well-grounded cases. Legislation must follow professional discussions and exactly legislate on when and how rights may be encroached upn and how violations shall be adequately sanctioned. This must have considerable effect not only on the retention of telecommunication data by the state and the police.

It still has to be resolved in detail – supported by current rulings – which data is allowed to be processed by enterprises (e.g. Google, Apple, Deutsche Bank or Toll Collect) and how such data will be allowed to be exploited. (CM)

Cultural Flatrate

A “flat-rate” should always induce critical examination. It mostly constitutes a sublime deception. The cultural flat-rate is a blatant nonsense. Culture in general cannot be bought flat. A cultural flat-rate spurns the interests of artists and people in the cultural sector and deceives the public. How much culture is there to be offered at dumping prices? Which culture? Music? Concerts? Exhibitions? A Picasso? It neither serves the industry. And who is to distribute the money? Worldwide. According to which criteria? We do not need another bureaucratic monster!

Culture needs money! Otherwise there will be no artists any longer. And neither art …. (also see www.musikindustrie.de). (CM)