Archive 28. October 2020

Corona Pandemic and Company Council Meetings

By in Horak Attorneys at Law - Music Law Tag , , , , , , , ,

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.

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.

NRW: Masks at School

By in Horak Attorneys at Law - Music Law Tag , , , , , , , , , , , , ,

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

By in Horak Attorneys at Law - Music Law Tag , , , , , , , ,

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. 

 

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.

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.