Institute of Global Law

German Legal News

June 2005

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 to understand.

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Governance Codex (English version at: http://www.corporate-governance-code.de/eng/download/CorGov_Endfassung_E.pdf) and do not publish their income, Parliament proposed legislation to improve transparency (30.06.2005).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 requirement.

Decisions
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 dissolution.

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).

May 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.

Decisions
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.

April 2005

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 (01.04.2005).

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).

Decisions
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).

Legal News and Trends
Konrad Hesse, former judge at the Federal Constitutional Court and author of one of the standard text books on constitutional law, passed away on the 15 March 2005 (01.04.2005). Hesse was member of the first senate of the Constitutional Court between 1975 and 1987. Among his decisions are the Böll-decision (see http://www.ucl.ac.uk/laws/global_law/german-cases/cases_bverg.shtml?03jun1980) and the so-called ‘broadcasting decisions’ (Rundfunkurteile) (see http://www.ucl.ac.uk/laws/global_law/german-cases/cases_bverg.shtml?16jun1981).

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.

March 2005

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.

Decisions
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 retrospectively.

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 Hessen.

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.

February 2005

Legislation
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 (27.02.2005).

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.

Decisions
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.