Legislation The Federal Ministry of Justice proposes to modernise the procedure
in family law cases (05.06.2005). Currently, procedural rules
are found in at least three separate Acts and involve inconsistent levels of
appeal. The procedure should be streamlined – divorces of couples without
children should become easier – and organised in a way which is less difficult
Parliament has passed a bill making managers' pay public knowledge.
It requires individual incomes of the members of boards of directors in publicly
traded companies to be published in company reports from 2007. Because a number
of managers do not comply with the Corporate Governance Codex (English version
and do not publish their income, Parliament proposed legislation to improve
transparency (30.06.2005). The Minister of Justice said in Berlin that the proposal
was intended solely to strengthen the rights of stockholders in keeping control
over companies – not to satisfy public curiosity. For that reason, a 3⁄4-majority
at a company’s general assembly could temporarily annul the publication
The Federal Constitutional Court once again had to decide in the Gorgulu case.
In 2004 the ECHR had ruled that previous decisions of German courts violated
Article 8 of the Convention because the rights of the father were not sufficiently
protected by German law (http://www.worldlii.org/eu/cases/ECHR/2004/88.html).
The Court of Appeal in Naumburg nevertheless denied a father visitation
rights. Karlsruhe in this 1999 case now confirmed that the father has
a right to contact his child (10.06.2005).
Following a ruling of the Federal Labour Court, employers have to inform the
worker’s committee of a company about all job interviews
they are scheduling. Additionally, if a company has a womens’ promotion
plan the employer has to inform the worker’s committee about the application
of female candidates. The Court overruled the decisions of the lower instances,
which held that it was sufficient to pass on information concerning only the
successful candidate (28.06.2005).
Legal News and Trends
The upcoming general elections in September 2005 have confronted the Federal
Constitutional Court with a number of cases (30.06.2007). Prime Minister Schröder
intends to dissolve Parliament on the basis of Article 68 of
the Basic Law. This requires that his party, the SPD, does not support him in
a vote of confidence. Smaller parties (such as the Animal Protection Party or
the ÖDP) as well as single MPs have announced to bring this issue to the
Constitutional Court in order to review the constitutionality of the intended
Germany is becoming more and more litigious. The number of
cases with amounts of under €300 in dispute increased by 11% from 2002
(230.000) to 2003 (257.000). According to figures recently published by the
Ministry of Justice, money spent on legal aid increased by more than 20% (23.06.2005).
Legislation The Federal Assembly (Bundestag) passed a new law on financial
support for bio diesel cars (01.05.2005). Car-owners using
this new technology will receive partial tax exemptions.
The new Legal Services Act (Rechtsdienstleistungsgesetz), presented
in a draft version by the Ministry of Justice, will allow welfare organisations
to give free legal advice (03.05.2005). Additionally, non-qualified lawyers
will be able to give legal advice on matters of law connected
to their business, for example architects on construction law.
Calling a policeman a ‘highwayman’ is, according to the Bavarian
Court of Appeal, protected by freedom of speech if it is related
to a specific situation, for example a traffic control (02.05.2005).
The Court of Appeal in Hamm ruled that it is illegal and violates competition
law to advertise a “Bolshoi Ballet Gala,” if only one dance
is actually performed by the ensemble (02.05.2005).
Legal News and Trends
25 constitutional experts signed an amnesty international declaration against
recent opinions that suggested to accept exceptions from the∫ under certain
circumstances (20.05.2005). Among them are former president of the Federal Constitutional
Court, Ernst Benda, former vice-President of the Court, Gottfried Mahrenholz,
and the former Federal Minister of Justice, Schmidt-Jortzig.
Legislation Three new laws came into force in April. (1) In tax law,
tax officials are now able to access data about private accounts held in German
banks (§ 93 VII und VIII AO). (2) Courts can now communicate electronically
on the basis of the Act Regarding the Application of Electronic Communication
in the Judicial System (Justizkommunikationsgesetz),
and amendments to the Vocational Training Act (Berufsbildungsgesetz)
are designed to increase job opportunities for young people
The Federal Government plans to widen the application of the Arbeitnehmer-Entsendegesetz
dealing with workers on loan to other companies. This law was
introduced in March 1996 to help fix minimum wages for the German construction
business in order to protect native workers from low wage competition by workers
from other EU countries. The Government is now considering the inclusion of
other branches of the economy in the regime (29.04.2005).
The recent people trafficking decision (Schleuser-Urteil)
of the Federal Supreme Court prevents sanctions against traffickers who help
immigrants whose only goal is to work illegally to enter Germany with a tourist
visa (28.04.2005). Criminal law, so the Court, cannot include coincidental evidence
that a visa was granted incorrectly but has to accept the existence of the tourist
visa, which makes the immigration legal.
The District Court in Halle acquitted a 33-year-old Nazi skinhead, who, in
April 2000, stabbed his 60-year-old neighbour in Halberstadt after the pensioner
had complained to the police about loud Nazi music. The court
held that even though the defendant lied during the trial, there was not enough
evidence to exclude, beyond reasonable doubt, the possibility that the man acted
in self-defence (05.04.2005).
Judges should explain their decisions to the public. In an
interview, Wolfgang Arenhövel, Chairman of the German Judges Association
(Deutscher Richterbund), said: “Quite often decisions are too difficult
to understand for people who are not lawyers” (04.04.2005). He encouraged
his colleagues to provide additional explanation for the public.
Legislation The Anti-Discrimination Act (see February news) continues
to cause great controversy (07.03.2005). Experts speaking at a public hearing
of the Family Committee of the Federal Parliament (Bundestag) expressed
conflicting views on the Act. Whereas some argued that it provides valuable
protection against discrimination, others referred to it as a bureaucratic monstrosity,
an unnecessary burden on business, and an ‘Eldorado for lawyers.’
New legislation to increase the reliability of tax returns
will come into beginning of April. Controversially, this legislation will enable
revenue officers to access taxpayers’ bank details more easily. Critics
see this as the end of confidential banking.
In a recent decision the Federal Constitutional Court insisted that house
searches should be subject to rigorous judicial review (01.03.2005).
The Court stressed that where urgent searches are initiated without a court
order the complainant has the right to have the legality of the search reviewed
The Social Court in Düsseldorf held that general practitioners are entitled
to sue patients for recovery of the newly introduced € 10 fee (Praxisgebühr)
for each visit (except in the case of sufferers of chronic disease) (22.03.2005).
However, since the court also held that general practitioners would not be able
to recover pre-court expenses, most doctors are unlikely to initiate legal proceedings.
Legal News and Trends
The President of the Federal Labour Court, Hellmut Wißmann
retired on his 65th birthday (01.03.2005). His successor is Ingrid Schmidt from
German sportswear company Puma launched legal action against
FIFA after the Association banned the one-piece team kit the company had designed
for Cameroon’s national squad (29.03.2005). The district court in Nuremberg
will now decide whether the ban was instigated by Puma competitor Adidas. Puma
is demanding approximately € 1.5 million compensation.
Under the Altforderungsregelungsgesetz (Act on Old Claims), owners
of property in the former East German States (Länder) which was restored
to them after 1989 will face claims from creditors in respect of pre-1945 mortgages
The Employers’ Association attacked the Government’s proposals
for a new Anti-Discrimination Act. (24.02.2005). Dieter Hundt,
the Association’s president, warned the Government not to “overdo
it” and to stick to changes necessary to incorporate recent EU Directives.
The current coalition of Social Democrats and Greens wants to make it easier
for alleged victims of discrimination in the private sphere to take legal action.
The District Court in Munich held that the television channel 9 Live, which
primarily broadcasts lotteries and raffles, was entitled to
disqualify a viewer who participated in almost every competition, thus reducing
the chances of other viewers.
The Federal Supreme Court (BGH) ruled that the right to freedom of information
could be exercised against a privatised public service provider (10.02.2005).
Provided the State still exercised a degree of control over decisions of the
provider, the Press and members of the public were entitled to access information
within the limits prescribed by law.
Legal News and Trends
On 26 February 2005, the Comedy Constitutional Court once again
put in an appearance at Karlsruhe’s Culture Night. The sketch, which was
performed by the local theatre group Spiegelfechter (Shadow Boxer),
included humorous remarks about current judges and satirical commentaries on
recent decisions concerning tuition fees and the right-wing party NPD.
In an interview on 28 February 2005, Gerhard Ziel, the President of the District
Court in Munich, said that Germany remained a litigious society and that many
citizens did not comprehend the advantages of Alternative Dispute Resolution
(ADR), which continued to be unpopular in non-commercial cases.