Echo

As in the years 2013, 2014, 2015 and 2017 Prof. Dr. Claus Koehler was also listed this year among the Best Lawyers in Germany (www.handelsblatt.com). The Handelsblatt is publishing annually the results of a survey conducted by the US magazine Best Lawyers. It concerns to find out which are recommended by their peers as specialists in the respective fields in 1300 Lawyers. The results for Germany were published on June 24, 2016th. Prof. Dr. Claus Koehler was renamed as a lawyer in the Corporate / Company Law in the Handelsblatt publishing as a recommended lawyer.

On April 19, 2017, Prof. Dr. Claus Köhler was elected as honorary member of the chamber by the plenary assembly of the members of the German-Polish Chamber of Industry and Commerce in Warsaw. With the election, the plenary assembly awarded Prof. Dr. Claus Köhler’s commitment with the chamber over the years, such as his longtime direction of the plenary assembly as a chairman and his activity as vice president of the Permanent Arbitration Court.

Meister Rechtsanwälte sponsored the German national rounds of the tradition-steeped Philip C. Jessup International Law Moot Court Competition which took place at the university of Passau from March, 8 to 12, 2017. Each year, students coming from over 80 countries participate in the Jessup Competition where they try a fictive case under the law of nations pursuant to the rules of the International Court of Justice in The Hague (“ICJ”). Following the preliminary rounds with which the best national teams are elected, the international final is held in Washington D.C.

 

After the grand opening of the German national rounds (Meister Rechtsanwälte Welcome Reception) the negotiation sessions of this fictive case were held in English language during the next days. 20 teams of students as plaintiffs and defendants held their speeches before the judges of this fictive case at the ICJ, who are professors, judges, or practitioners in their real lives. Prof. Dr. Claus Köhler represented the law firm as a judge. The winning team of the Humboldt University Berlin as well as the teams of the university of Hamburg and the Ruprecht-Karls University in Heidelberg will attend the international rounds in Washington D.C. in April 2017.

 

Meister Rechtsanwälte wishes all the best to the winning teams and is very happy to have contributed to the promotion of these highly motivated law students with international commitment.

Assisted by Mrs. Isabella Theissen, Prof. Dr. Claus Köhler prepared an article on "TTIP and Arbitration" which was published in the November edition of the Romanian "Legal Magazine" [link]. The article especially deals with the populistic criticism of private arbitrate tribunals and concludes that the critics' objections, such as the objections against the non-public nature of the arbitration proceedings, are not legitimate.

On December 6, 2016, Claus Köhler will attend the conference “Seventh German-Polish Forum for Law and Economy - Responsible Business and Compliance in Poland, Germany and the World” [link] as a member of the panel “Supply Chain Compliance and Sustainability”. The conference is the most successful of its kind in Poland and is organized by the German-Polish Chamber of Industry and Commerce and by the European University Viadrina Frankfurt (Oder).

As in the years 2013, 2014 and 2015 Prof. Dr. Claus Koehler was also listed this year among the Best Lawyers in Germany. The Handelsblatt is publishing annually the results of a survey conducted by the US magazine Best Lawyers. It concerns to find out which are recommended by their peers as specialists in the respective fields in 1300 Lawyers. The results for Germany were published on June 24, 2016th. Prof. Dr. Claus Koehler was renamed as a lawyer in the Corporate / Company Law in the Handelsblatt publishing as a recommended lawyer.

On July 27, 2015, „Compliance with respect to Competition and Antitrust Law – Current Issues” was the topic of a half-day seminar as part of the lecture series Campus Days initiated by the professional association of compliance managers (“Berufsverband der Compliance Manager”, “BCM”).

Prof. Dr. Claus Köhler, who also was the lecturer, had developed the seminar which was based on practical cases. These cases, where the non-existence, the malfunction respectively, of a Compliance Management System resulted in serious legal consequences with respect to antitrust law, were the starting point for a description of the legal obligations of those responsible in a company, thus also of the Compliance Manager, for an analysis of measures to prevent and detect infringements of antitrust law as well as the correct conduct in crisis situations. A follow-up event is scheduled for October 21, 2015.

The 5th German-Polish panel for Law and Economics takes place on November 5, 2014 on the topic on “Germany and Poland – United in Compliance”. Claus Köhler moderates the panel on the topic on “Current Questions out of Legal Compliance”, which deals with questions regarding the advantages of Compliance Management Systems, data-protection, protection of personal rights and personal responsibility of those responsible for compliance. www.fowirt.org

Claus Köhler acted as moderator in the section on “Update: Medium Sized Enterprises Specific Risks and their Effective Management of the 2nd Cologne Compliance Panel” on September 29, 2014 in Cologne. Organizer of the conference, which dealt with specific topics of compliance related to medium sized enterprises, was the Bundesanzeiger Publishing House. The speakers of the panel addressed the topics “Consideration of CMS in Competitive Tender Procedures”, “Liability of the Management and Supervisory Board for Non-Compliance (with Remarks on the Neubürger Judgment)” and “With Software or Without? Experiences of a Medium Sized Enterprise in Global Corruption Prevention”. Claus Köhler emphasized the relevance of compliance for medium sized enterprises. In case of non-compliance there is, e.g. the risk of an exclusion of a company in competitive tender procedures, also indirectly with respect to a subcontractor, and personal liability, also of managing directors.

The First Meister Rechtsanwälte Compliance Roundtable was held on January 28, 2014. On the basis of the statements of Dr. Walther Prem, Director of Bayerische Landesbank, in charge for Compliance Principles and Compliance Management Systems, the participants discussed amongst others, the following issues:

 

Compliance as an advantage in competition from the point of view of customers, lenders and rating agencies;

Non-compliance as risk for the repute of the management and the business (external affairs risks in the context of social media);

Requirements of the monitoring of internal communication behavior (back to paper and tangible files).

The issues above were commented by the participants in the context of corporate, tax, employment, data-protection and anti-bribery laws. The Second Meister Rechtsanwälte Compliance Roundtable will be held in fall 2014.

Arbitration in Romania was the subject of the presentation held by Claus Koehler on March 28, 2014 at the International Conference on Arbitration in Nowy Tomysl (near Poznan), Poland. The subject of the conference was „Arbitration and Mediation in theory and reality“. Claus Köhler summarized that the Romanian Code of Civil Procedure on Arbitration are to a significant extent not in line with the parties’ belongings; therefore the parties should rather try to opt out, e.g. to exclude the application of the Romanian Code of Civil Procedure, preferably by choosing an arbitral institution.

Claus Köhler gave a presentation on „Civil Law Liability of the Compliance Manager – a Liability Trap” on March 25, 2014 in Frankfurt/Oder at Europe University Viadrina. His conclusion was that it is feasible to reconcile the interests of the management to avoid its liability, of the company to achieve compliance with the laws and the rules and of the compliance manager not to be caught in a liability trap by drafting the duties and competences of the compliance manager in a customized way consisting of several components, e.g. also the coverage by a D&O insurance in line with the belongings of the company.

The „Handelsblatt“ publishes every year the results of a survey which is conducted by the US magazine “Best Lawyers”. It is about finding out what 1300 lawyers are being recommended by their colleagues for each of their areas of expertise. The results for Germany were published on June 10, 2013. In this “Handelsblatt” publication Prof. Dr. Claus Köhler was recommended as lawyer specialised in the field of Corporate Law. www.handelsblatt.de

In the “Handelsblatt” Dr. Philipp Byers was interviewed on the impact of the draft statute on Employee Data Protection on the call center industry (Handelsblatt of July 26, 2011, p.15). According to Dr. Byers, operating call centers might be hardly possible in future. A telephone exchange is forbidden to evaluate telephone call data for telephone call allocation. The same applies to the data analysis for calculating employee commissions. Furthermore, the possibilities for recording telephone calls are limited. It is made very difficult for the call center operators to conduct employee training or to protect themselves against customer complaints. The legislature is therefore urged to make improvements to the bill in order to create workable regulations. (Philipp Byers)

The Federal Court of Justice (judgment of March 22, 2011 – II ZR 249/09) has declared a law suit against a partnership organized under the Civil Code for accountability /oder/ responsibility from company debts as permissible, although the plaintiff unsuccessfully sued the partners for personal liability for this company debt in the preliminary proceedings, in which the partnership was not involved. The extent of the legal validity of the verdict in the preliminary proceedings for the partnership organized under the Civil Code as an unrelated third party contrary to the principle in § 325 of the Code of Civil Procedure takes place neither based on § 129 para. 1 of the German Commercial Code nor on § 736 of the Code of Civil Procedure. Neither provision meets the requirements for an exception to this rule, since they neither allow for an exception in individual cases nor impose their meaning. (Harald Hess)

If the managing directors of a limited liability company make payments on the liabilities of the limited liability company after the onset of the liability of insolvency, and the members of an optional supervisory board thereby violate their monitoring duties, they are by law only responsible for damages to the company and not for damages to third parties not associated with the company such as the insolvency creditors (Federal Supreme Court, September 20, 2010 (II ZR 78/09)). Frequently SMEs with the legal form of a limited liability company install an optional supervisory board in order to, for instance, utilize/further utilize internal or external know-how within the context of business succession. Its tasks should be carefully described in the statute in order to avoid undesired liabilities beyond the legally described liabilities. (Harald Hess)

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)

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)

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.).

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)

The Federal Constitutional Court in its decision Document 1 BvR 1631/08 on August 30, 2010 repealed a ruling by Federal Supreme Court (First Civil Chamber) due to breach of its obligation to bring the matter to the European Court of Justice for a preliminary ruling pursuant to article 267 para. 3 of the Treaty on the Functioning of the European Union (“TFEU”). The fundamental rights were violated pursuant to article 101 para. 2 sentence 2 of the federal constitution. According to the decision of the Constitutional Court the conditions to bring the matter to the European Court of Justice for a preliminary ruling were met (e.g. secure jurisdiction of the court or obviousness of the correct application of union law by the First Civil Court of Appeal). The Federal Supreme Court (First Civil Chamber) has now followed this opinion regarding the questions relevant to the issue in the procedure I ZR 129/08 in that it has submitted the questions relating to the admissibility of “used” software licenses to the ECJ (see below). (Hans-Werner Moritz)

According to the Munich District Court I – dismissal of appeal pursuant to Sec. 522 para. 2 of the Code of Civil Procedure – a purchaser could not take advantage of a claim to performance bond despite the settlement of the full outstanding compensation according to a previous settlement in court between the purchaser and seller. The district court based its decision of the Federal Supreme Court. The purchaser has to pay in full without deduction if he seeks satisfaction from security. The district court overlooked the fact that the full compensation for work owed according to the previous court settlement had been satisfied in the given case. Despite full payment the purchaser was without any security in the insolvency of the seller. The district court did not explain how the customer was to have behaved (legally unfounded payment of non-due compensation?). (Claus Köhler)

The rejection of the appeal decision by incontestable ruling according to Sec. 522 Para. 2 of the Code of Civil Procedure without an oral hearing is questionable, among other things due to the frequency of erroneous application of the law by lower courts (see below). The president of the German Bar Association, Prof. Dr. Ever, describes Sec. 522 Para. 2 of the Code of Civil Procedure as a “gamble from the perspective of the citizen” (press release dated November 21, 2010) since the practice is completely different in the various states (e.g. in Bavaria more than 50% and in Baden-Wuerttemberg only about 20% rejection of appeals without oral hearing). Now the Federal Ministry of Justice is rightly planning the introduction of an appeal against the rejection without oral hearing – no substantive difference to rejection by judgment after an oral hearing – and to ensure that a court can only decide on an appeal without oral hearing when a hearing is really unnecessary. (Claus Köhler)

On September 1, 2010, the Federal Labor Court (Docket No.:5 AZR 517/09) decided that an employment contract clause stating that required overtime is covered by the monthly salary, does not satisfy the transparency requirement of § 307 of the German Civil Code and therefore void. According to § 307 of the German Civil Code the scale of the extent of the overtime without additional compensation is to be clearly stated in the employment contract. Upon termination of employment the applicant had an additional 102 hours of overtime based on his regular working hours. He claimed compensation for these hours which he was awarded by the Federal Labor Court. In future it can be expected that employees will sue for overtime especially at the end of a working relationship. (Stefan Mössner)

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)

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.”

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.

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