Editor: Clemens Kochinke
Attorney and Rechtsanwalt
Washington, DC, USA

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Laws Shield Income From Virus
Mar 06, 2020
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.


App-Aided Crowdwork Contract Can't Imply Employ
Dec 06, 2019
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.

Damages for Violation of Forum Selection Clause
Oct 17, 2019
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.

Ranking Portals: Required Privacy Consent
Aug 14, 2019
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.

Cross-border Surrogate Pregnancy: Who is the Mother?
Apr 23, 2019
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 XII ZB 530/17.

Chat with Court or Mandatory Presence?
Jan 04, 2019
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.

Recently Translated German Law Source Documents
Oct 25, 2018
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.

Republishing an Internet Photo Without License
Aug 08, 2018
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.

Invoicing Germany: AirMail or EMail?
Mar 04, 2018
CK - Washington. Bills used to be mailed, and airmail would take four days. With the onset of scannable invoices and the increasing acceptability of electronic mail, email became the more efficient mo­de of transmission. However, some recipients believe scans to be incompatible with tax and accounting requirements and insist on a mailed original invoice. A German court re­cent­ly held an original unnecessary: An emailed scan is acceptable under the tax rules it usefully cites.

A customer had claimed a right of retention based on the alleged insufficiency of an emailed scan of an invoice, arguing that only the original could render the invoice due and payable. The Aachen District Court disagreed and on January 9, 2018 issued its de­cision under docket number 41 O 44/17, available in German from the North-Rhine-West­fa­lia justice portal. The court lists the applicable tax regulations as well as court de­ci­si­ons including a 2017 ruling by the Supreme Court for Tax Matters.

Recognition of Judgment with Statutory DMCA Damages
Feb 23, 2018
CK - Washington. Statutory damages under the Digital Millennium Copyright Act can have a punitive effect, resulting in a denial of recognition in a foreign court where the legal system finds punitive elements incompatible and grossly violative of civil action principles, a German court decided in response to a petition to freeze assets of a Ger­man company in favor of a U.S. company that had obtained a default judgment for some $8 million in California under the DMCA.

The Leipzig district court explained on February 19, 2018 in docket number 05 O 3052/17 -- presumably, per defendant's counsel, Marian Härtel, Blizzard En­ter­tain­ment Inc. v. Bossland GmbH -- that a recognition matter does not allow the Ger­man court to replace its judgment with that of the foreign court. It would need to re­spect the international principles on recognition which include public order/ordre pub­lic con­si­de­rations. In this case, the default judgment lacked any explanation of the as­sess­ment of statutory damages; the plaintiff had opted under the DMCA to forego ac­tu­al damages; the number of alleged violations was a mere estimate; and the total of ag­gre­ga­ted da­ma­ges reached an extreme with punitive character.

The court considered American analyses of compensatory damages law as well as of pu­ni­tive, exemplary and statutory damages law, concluding that statutory DMCA da­ma­ges can, and in this case do, contain a degree of punitiveness which bars recognition as an incompatible form of damages. Noting that the U.S. default judgment stated that the damages award­ed we­re not punitive, the court analyzed that statement with a result di­stinguishing the elements of a punitive nature in Germany from that in the United Sta­tes.
About the American Edition
The German American Law Journal has been available in an American Edition and a German edition called US-Recht auf Deutsch for many years and had been published in print in the 1990s.
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