Alle Beiträge von Noemi Bellini

Value Added Taxes – No Say No Pay?

Karlsruhe Regional Court (Ref. 14 0 31/20 KfH)

Has it already happened to you that the costs estimated from the seller is much less than the actual final price? 

Stop wrapping your head around it and seek for legal help!

The Case

Mr. Falkenbach becomes clear information from his car repair shop: The flat-rate price for the repair of the damage is going to be 700 euros. When the customer picks up the car, however, 833 euros are printed on the invoice.

Reason for this unfortunate misunderstanding is that the employee of the car repair shop only told his customer the net price of his service, absolutely not mentioning the value added taxes that were going to incur. 

Mr Falkenberg decided to take legal action, as he previously refused the offer of another garage, which would actually have been cheaper, only because he thought that he was going to pay only 700 euros. 

Tribunal Decision

The Karlsruhe Regional Court decided that consumers in Germany must always be able to see immediately and transparently the actual price of goods and services they are going to purchase, always including VAT. It is not permissible to add VAT on the invoice without informing the customer in advance. 

In case the seller (or car repair shop owner) does not comply with this regulation, it could face an administrative fine of up to 250,000 euros.

So, be careful with your business! We advise all kind of businesses. Contact us. 

Source: www.pixabay.com

Life Insurance Laws

Going home from work is not automatically covered by life insurance

Federal Social Court of Kassel (Case B 2 U 9/19 R)

Sometimes life does not go as planned. The case we are reviewing with you today is unfortunately concerning the tragic car accident of Hannes Hanke.

The Case: 

Mr. Hanke used to work as a chemical worker in his hometown in Germany. One day, just like many others, leaves Mr. Hanke his workplace, leaves the machine running, doesn’t say goodbye to his colleagues and doesn’t log off at the working hours file record. He usually calls his wife before going home, but he doesn’t do that that day either. He gets into his car and goes on the usual and direct way home. In doing so, his car gets caught in oncoming traffic and Hannes Hanke suddenly loses his life in a car crush. His widow is now claiming survivor´s loss benefits from the statutory life insurance. However, the employers’ insurance association rejects her claims as the accident was according to the records on his way home and not at his actual working place.

Ms. Hanke decided then to go to court and let the judges at the Federal Social Court in Kassel decide. 

The Tribunal Decision:

They took the following decision: An accident on the usual way home from work is not always covered by the statutory accident insurance. Rather, it must also be clear that the employee actually wants to drive home. This cannot be established in the present case. After a normal working day, it can be assumed that the employee does indeed want to go home. However, this does not apply to the completely atypical procedure that Mr. Hanke had on the day of his death. 

So, Ms. Hanke unfortunately had not received her insurance benefits. 

Source: www.pixabay.com

What do you think about this case? Do you have questions on German insurance law? 

Get in touch with us. We can help. 

Corona Pandemic and Company Council Meetings

In times of corona, every action we were actually taking without thinking has become an open question. This is the case of an employer (a German company operating in the field of clinical rehabilitation) and the group works council (in German Konzernbetriebsratsitzung) of its company.

Source: www.pixabay.com

The Case:

The employer has temporarily prohibited all employees from attending inter-facility meetings and gatherings and has applied this prohibition also with regard to a planned meeting of the group works council, which is to be held in person over several days and requires the works council members to travel. The employer considers such a presence meeting to be unacceptable in view of the current Covid 19 pandemic. The group works council has however opposed to the prohibition and claimed that all applicable legal requirements for protection against infections have been complied with and there is no need to postpone meetings.

Tribunal Decision:

In the proceedings for interim relief, the Berlin Labor Court has ruled that a meeting of the group works council cannot be prohibited.

According to the decision of the labor court, there is no legal basis for a ban of this kind of meetings. According to the Works Constitution Act, the chairman of the group works council decides on the convening of the meeting, the place of the meeting and thus also on whether a meeting is to be held in the form of a video or telephone conference.

According to the Corona Contact and Operating Restrictions Ordinance currently in force at the venue, it is permissible to hold the meeting, whereby the observance and compliance with the Ordinance is primarily the responsibility of the group works council itself and its chairperson. The increase in risk remains despite expected compliance with the rules of conduct but this did not entitle the employer to prohibit the meeting as a face-to-face event.

This decision is subject to appeal to the Berlin-Brandenburg Regional Labour Court.

Are you facing similar problems with your employer? Just get in touch with us and let a lawyer analyze your situation. You are not alone.

Social Media and Succession Law

Digital Memories

The tribunal decision of this week concerns a topic we all know: the use of social media. But what happens to all the contents after a user has died?

For many years has been talked about the inheritance rights of social media platforms like Facebook and Twitter after the owner of an online profile passed. The German Federal Court of Justice has now taken an important decision: the Facebook account passes to the heirs with all its functions. 

The tribunal decision III ZB 30/20 of the German Federal Court of Justice has been a great step forward in this case of legal uncertainty. Let´s have a look at the situation in detail. 

The Case: 

A few years ago, Linda Lindemann’s daughter died under unknown circumstances. The young woman was hit by an underground tram and she died at the scene of the accident. The mother of the victim tried to learn more about the background that brought her daughter to commit suicide and decided to investigate by searching the Facebook account of her. The key of her daughter´s suicide could be hidden in the private Facebook massages but how to read them? Linda suspected bullying as being the main cause of the accident, but Facebook would not allow her to get to the functions of the social media platform of the teenager. The access to her daughter´s messages was forbidden as a Facebook account was considered “only” a Gedenkzustand or in English “a state of remembrance” of the victim and could not be passed to the heirs of the user.

Facebook sent to the mother a USB stick with a 14.000-page PDF file of all user data. But that is not enough for Linda Lindemann. She wants full access to the user account, all functions included. 

The Federal Court of Justice has now issued the following judgement:

Facebook must give a user’s heirs access not only to the content but also to the functions of the deceased person´s account. A Facebook account is indeed, a part of the digital heritage of each individual and in this particular case this should be transferred to the mother Linda. It is comparable to diaries and letters and according to the judges, there is no reason to treat digital content differently.

Source of this picture: www.pixabay.com

NRW: Masks at School

Tribunal Decision of the Week

BWLH Reviews

As a matter of fact, masks have slowly but drastically become an ornament to our everyday life, just like shoes and clothes. Most countries of the world are changing rules in order to fight the corona global pandemic from spreading and infecting more people on a daily basis. 

The World Health Organization and most Centres for Disease Control and Prevention recommend including face masks at public events and everywhere, where it is difficult to keep the required social distancing. 

Masks come in a broad variety of styles and sizes and everybody own at least one. 

However, not everybody is ready to use one, when needed. 

This was the case of a couple of German students that definitely weren´t that happy to wear a mask in public!

The Case (Higher Administrative Court North Rhine-Westphalia AZ: 13 B 1368/20): 

The two students wanted to be permanently exempted from the compulsory masks to be worn in the school building. For this reason, they submitted medical certificates to the school management. The certificates stated that from a health point of view, wearing an everyday mask all day is not to be recommended. Concentration, attention and the process of learning of the applicants would suffer.

The school management however, decided not to accept the certificates and refuses to exempt them from the mask obligation. The parents decided to bring the case before a judge in court. 

Tribunal Decision:

The urgent application was rejected by the Higher Administrative Court of North Rhine-Westphalia. The justification for refusal was that the submitted medical certificates did not meet the minimum requirements, since the general impairments listed there, could ultimately affect all students and not only these two one. Rather, the medical certificate must clearly and specifically state the health impairment individually for and only these two subjects and specifically explain which are the consequences of the mask on them. Possible relevant previous illnesses should for instance be mentioned. Besides it must be clear, on which basis the attesting physician came to this estimation and on which evidences he attested so. The decision is also not contestable. 

Are you also living a situation that does not fit your expectations and you would like to clarify the problems you are facing?

Get in touch with us. We are a team of expert lawyers and we are happy to help you. Just fill out our form and get a free price estimate for your case. 

To be, or not to be… a lawyer

Tribunal Decision – BWLH Reviews

Study Law in Germany: Become a “Rechtsanwalt”

September has come to an end, and as we all know, October is in Germany the month of new starts. The winter semester at all German universities is slowly beginning and while experienced students get back to college with a couple of preoccupations, young and fresh teenagers make their first step in a completely new world made of libraries, lecture halls, books, exams, degrees and new friendships. 

How many of them, are approaching such a long path in order to work in the German legal structure as lawyers, attorneys, judges or notaries? According to the Website www.talentrocket.de (last access on the 29th of September 2020), the number of Law Students in Germany in the last years is almost a constant: around 100.000. What are they expecting? Whether it is representing the interest of a murderer trying to influence the judge´s decision in their favor or advising individuals, businesses, and government agencies on legal issues and disputes, and represent them in court and legal transactions, the path to become a “Rechtsanwalt” in Germany is really long and difficult.  

How to become an attorney in Germany: 

If you want to become an attorney, you will firstly have to complete a 9-semester study of law, which you will then complete with the first state examination (1. Staatsexamen). Afterwards, you will need to complete a 2-years legal clerkship (Referendariat), a kind of preparatory service, until the second state examination (2. Staatsexamen). Just after all these steps, you will be allowed to register with the respective bar association (Rechtsanwaltskammer) and finally receive the certificate of admission, also called in German “Anwaltszulassung”. 

And this is so important that no lawyer would like to risk it for nothing in the world… or almost! 

The tribunal decision of today’s review comes from the Berlin Bar Court and is the judgment of 25.03.2015 – II AGH 6/14. 

Leibniz University in Hanover – Source: www.pixabay.com

The Case: 

In the underlying case, a lawyer was expelled in May 2014 by the local bar association. The reason was that the lawyer had a sideline as managing director of a real estate trading company. The attorney considered the withdrawal of admission to the bar to be inadmissible and therefore filed a lawsuit.

Source: www.pixabay.com

Tribunal Decision: 

The Berlin Bar Court decided against the German Attorneys. The withdrawal of the attorney’s license to practice law was considered lawful according to § 14 (2) No. 8 of the Federal Lawyers’ Act. The activity as real estate agent is fundamentally incompatible with the legal profession. For this reason, there is a clear danger of a conflict of interests. 

In the opinion of the Court of Attorneys, it had to be taken into account that in the exercise of their profession, attorneys obtain knowledge of the client’s money and real estate assets. In his second profession as an estate agent, an attorney could for instance earn money from the restructuring of the assets. On the other side, the revocation of the lawyer admission can be considered a measure unreasonable hardness, as declared by the attorney´s defense. Insofar as the attorney had claimed that he would lose his income as a result of the revocation, this did not represent unreasonable hardship. It was unfortunately well-known to the attorney for years that the bar association had objected the activity as a managing director of the real estate trading company and would take to the cause of a revocation of the admission. He will therefore have had to terminate his activity in order not to risk revocation.

It doesn´t matter which career you are pursuing, it is of fundamental importance to always be careful and seek for help, in case of legal uncertainties. 

Contact us. Horak Attorneys at Law are here for you. 

Our new project at horak. Attorneys at Law

Tribunal Decision – BWLH Reviews

Dear readers, 

as an international law firm, we are constantly in contact with the tribunal judiciary system in Germany and worldwide. Law is our passion and Law is what we want to talk about. 

In this regard, we are glad to present you our new project: 

Tribunal Decision – BWLH Reviews.

Our team is reviewing each week a significant actual tribunal decision and offering you the possibility to get to know our world better, step by step. Most of the decisions will come from the databases of the German Federal Supreme Court of Germany, Higher Administrative Courts, District Courts, Local Courts and so much more. 

This opening week will be all about the main topic that has been shaking and trembling this year 2020 all around the world: the corona virus pandemic. While all around the world people are fighting against the virus, the economy of entire regions is seeing the crisis coming. Restrictions and new regulation can however not stop the economy completely. From schools to offices, everything is getting digitalized and the world goes on…line, from home. Smart working, zoom meetings, home office are the keywords of the future.

But not everybody likes to work from home. 

This was the case of an over 60-year-old Berlin woman, that highly prefers her office instead of staying home. 

The Case: 

The applicant is employed as an official inspector at a Berlin district office. At the end of March 2020, her employer ordered that she should work in home office until April 2020. The decision was necessary for health care reasons, as the employee is exposed to an increased risk of COVID-19 disease due to her age. She should be available for the office by telephone, and if necessary, she would be given work orders for home processing. Against this order, the applicant claimed that there was no legal basis for imposing home office work. The internal regulations merely provided that home office could be ordered upon application by the respective employee; however, she had not made such an application. 

The Decision of the Tribunal: 

The 28th Chamber however dismissed the urgent application, as this is just an exceptional situation acceptable due to corona pandemic

The applicant had to accept the organizational measure taken, at least for a limited period of time. The office inspector remains in her function and is neither pushed out of the service nor forced to inactivity for an unlimited period of time. According to the court, in the exceptional situation caused by the corona pandemic, it is acceptable that the employment conditions (as office etc.) are temporarily limited to mere on-call duty and that individual tasks are to be executed in home office.

An appeal against the decision can be lodged with the Higher Administrative Court of Berlin-Brandenburg.

Order of the 28th Chamber of 14 April 2020 (VG 28 L 119/20)

What do you think about it? Are you living a similar case and you would like to talk to a lawyer about that? Get in touch with us. 

Source: www.pixabay.com

OUR TEAM IS GETTING BIGGER!

We are delighted to inform you, that our law firm team has just welcomed new talented attorneys and office members! A warm welcome and lots of good wishes on becoming part of our growing team. Congratulations and on behalf of all the members. We are all happy and excited about your inputs and contribution to our company.

For your success, our expertise.

Source: www.pixabay.com

The district court of Düsseldorf has decided!

(Landgericht Düsseldorf, Urteil vom 12.06.2019 – 12 O 263/18 – )

Acquisition of rights of use from GEMA for musical works as stage representation is not possible!

The District Court of Düsseldorf has decided that the Schauspielhaus Düsseldorf must refrain from performing the music composed and arranged by the sound artist Parviz Mir-Ali for the Schauspielhaus Dresden to “Der Idiot” by Fjodor Dostojewski.

The case was based on the following facts: In 2015, the well-known sound artist Parviz Mir-Ali had composed the music for the stage play “Der Idiot” by Fjodor Dostojewski in the production of Matthias Hartmann for the Staatsschauspiel Dresden. In 2016 the Düsseldorfer Schauspielhaus took over the production from Dresden together with the music composed by Mir-Ali. For the 2016/2017 season, the Schauspielhaus Düsseldorf paid the sound artist an agreed lump sum. The Schauspielhaus refused payments for the further seasons 2017/2018 and 2018/2019 with reference to its payments to GEMA. The plaintiff sound artist saw his copyrights violated with the performances.

The Düsseldorf Regional Court ruled in favour of the plaintiff. […]

Source: © kostenlose-urteile.de (ra-online GmbH), Berlin 12.06.2019
Quelle: Landgericht Düsseldorf/ra-online (pm/kg)