Germany

German Federal Court: We have international jurisdiction to an action for an injunction on the grounds of violation of personal rights.

BGH, URTEIL vom 25.10.2016, VI ZR 678/15

The case concerns the applicant – the wife of the retired racing driver Michael Schumacher, who is a German citizen residing in Switzerland. The defendant is a Swiss broadcasting company. The applicant claimed for injunction on the of the defendant’s internet photographic report of the consequences of Michael Schumacher’s skiing accident for the territory of the Federal Republic of Germany and the approach of the media on this topic. The question arises whether German courts have international jurisdiction to an action for an injunction on the grounds of violation of personal rights against the reporting on the website of a foreign broadcasting company limited to the territory of the Federal Republic of Germany.

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When does a brokerage contract come into existence and when is the prospective buyer obliged to pay a broker’s fee?

Decision of the German Federal Court (Bundesgerichtshof) I ZR 30/15

The case concerns the applicant’s claim for payment of a broker’s commission by the respondent for the sale of a plot of land.

In its deliberations the Federal Court of Justice (Bundesgerichtshof) ruled that if the real estate broker submits an exposé to a prospective buyer, which contains a clear commission requirement, this is an offer to conclude a brokerage contract. This offer is already accepted by the buyer when he asks the broker to arrange a visit. In such a case, the contract will not be concluded automatically when the purchaser agrees the appointment with the broker. In the present case a brokerage contract has come to an existence on the basis of implied conduct by the parties.

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The German Federal Court (BGH) ruled on the strict interpretation of the special consumer protection under Regulation № 44/2001

BGH, BESCHLUSS vom 13.10.2016, IX ZB 9/16

The appellant who is a German citizen, has purchased a wooden house from a Finnish company together with his wife. The spouses ordered the retractable house and the space was supposed to be used as a living space for the family. The appellant and the Finnish company had also signed an agency contract as the appellant wanted to act as a sales representative for the Finish company in Germany.

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Reference for a preliminary ruling: Questions on the effectiveness of arbitration agreements in light of EU law

Decision of the German Federal Court of Justice (Bundesgerichtshof) – I ZB 2/15

The case concerned is about the Slovak Republic as an applicant which has become since 01.01.1993 successor of Czechoslovakia. It seeks the annulment of an arbitral award which a Dutch insurance group as a respondent has obtained against it. The appeal states that the prohibition imposed on the Member States to use, in disputes with EU law relevance, other procedures than those provided in the Union Treaties, comprises all disputes involving a Member State regarding the application and the interpretation of the European Union law.

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Judgment of the German Federal Labor Court (Bundesarbeitsgericht) and the Greek Debt Crisis

5 AZR 962/13 (A)

The present case concerns the debt crisis in light of which the Greek Republic adopted, for the purposes of protecting the national economy, Law Nr. 3833/2010 on urgent measures to tackle the national finance crisis.

In the proceedings before the court the claimant in this case, a teacher who was working at the elementary school under the patronage of the respondent Greek Republic, demanded additional pay as well as payrolls for the period October 2010 till December 2012. The Greek Republic cut in this period his gross remuneration, which originally followed the German collective bargaining law, with a total of 20.262,31 Euro in connection with Law Nr. 3833/2010 and Nr. 3845/2010. The Greek Republic maintained that it had to comply with the reached agreements between it and the European Commission, the European Central Bank and the International Monetary Fund (the troika) by issuing and adopting those laws and in that case there was no other option.

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The European Court of Justice has confirmed that the nationals of other Member States of the EU may be refused certain social benefits during the first three months of their residence in a different Member State

JUDGMENT OF THE EUROPEAN COURT (First Chamber) 25 February 2016 (ECLI:EU:C:2016:114)

The ECJ decided on 25th February 2016 that the Member States are allowed to exclude nationals of other Member States from certain social benefits. The ruling made it clear that the German authorities had the prerogative to refuse European jobseekers and their children subsistence benefits during the first three months of their stay in Germany.

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The German Federal Court (BGH) on the product liability for defective cardiac pacemaker: no need to ascertain a particular defect if a potential defect has been established

BGH, Urteil vom 09.06.2015, VI ZR 284/12

The German Federal Court (Bundesgerichtshof) decided in the present case that the implanted cardiac pacemakers of the insured ”B” and ”W” showed product defects in accordance with Article 3 (1) of the German Product Liability Law and Article 6 of Directive 85/374/EEC. The German Federal Court (Bundesgerichtshof) had in that regard referred to the jurisprudence of the CoJ whereby the CoJ noted that ”Article 6 (1) of Directive 85/374/EEC is to be interpreted as a product, which belongs to a group oder production series of products such as cardiac pacemakers and implant cardioverter defibrillators by which a potential defect is being established, is to be classified as defective without the need to ascertain a particular defect of that same product in question. (Cases C-503/13 and 504/13, NJW 2015, 1163 Boston Scientific Medizintechnik GmbH / AOK Sachsen Anhalt Die Gesundheitskasse, Betriebskrankenkasse RWE)

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The German Federal Court (BGH) on the obligation of an air carrier to pay compensation in case of re-booking of a flight

BGH, Urteil vom 17.03.2015, X ZR 34/14

In the present case the German Federal Court (Bundesgerichtshof) examined whether an air carrier is obliged to pay compensation due to denied boarding also in cases when the passenger, who already has a booked flight, is being denied boarding to his booked flight before he could check-in at the planned time. The passengers were informed that their flight was changed and re-booked which resulted in their arriving at the planned destination six hours later as with the original flight and they should have been informed about the change in accordance with Article 5 (1) (c) (I) of the Passenger Regulation at least two weeks before the planned departure time (in the present case planned for 28th of October at 09:00 hours).

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The German Federal Court (BGH) on parental responsibility and the recognition and enforcement of provisional measures

BGH, Beschluss vom 09.02.2011, XII ZB 182/08

The appellant is the mother of two children born in Spain, while the respondent is her former partner, who still lives in Spain. Upon separation, the appellant intended to take both children to Germany. To this end, the parties concluded a notarised agreement under which the appellant was allowed to return to Germany with the children. After she moved to Germany with one of the children, the respondent brought provisional proceedings concerning custody rights in Spain. The court ordered the appellant in a judgment to return the child to the respondent. The respondent sought a declaration of enforceability of the judgment in Germany. The Amtsgericht of Stuttgart (DE) and the Oberlandesgericht of Stuttgart (DE) held in favour of its enforceability. The appellant lodged an appeal on a point of law to the BGH (DE).

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The German Federal Court (BGH) on balancing of IP and copyright against the freedom of the press and freedom of expression

BGH, Urteil vom 14.10.2010, I ZR 191/08

The present case concerns the balancing of IP and Copyright against the freedom of the press and freedom of expression. The German Federal Court (Bundesgerichtshof) reversed the contested decision of the appeal court, because the latter decided that the acts of the respondent (namely the setting of a link which led to the access of an internetsite which was illegal) are not justified on the basis of freedom of expression and freedom of press reporting. According to the German Federal Court (Bundesgerichtshof) the abovementioned acts are covered by the freedom of expression, freedom of opinion and freedom of press reporting on the basis of Article 6 of the Treaty on the European Union (TEU) and Article 11 para. 1 and 2 of the Charter of Fundamental Rights of the European Union (EU Charter).

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