Category Archives: Politics Law Society

Politics Law Society

Pharmacies not allowed to offer promotional gifts in the case of fixed-price pharmaceuticals

Pharmacies not allowed to offer promotional gifts in the case of fixed-price pharmaceuticals

Pharmacies not allowed to offer promotional gifts in the case of fixed-price pharmaceuticals

Pharmacies are not allowed to offer their customers promotional gifts when the latter are purchasing prescription medicinal products. That was the verdict of the Oberverwaltungsgericht (OVG) NRW, North Rhine-Westphalia“s Higher Administrative Court, in two rulings from September 8, 2017.

Consumers in Germany are accustomed to prescription pharmaceuticals being the same price in every pharmacy. We at the commercial law firm GRP Rainer Rechtsanwälte note that German pharmacies are not allowed to deviate from this pharmaceutical pricing regulation and therefore cannot grant price reductions or discounts in the case of prescription or other fixed-price medicinal products or promote these products on this basis. Moreover, the uniform selling price cannot be circumvented by having the customers receive vouchers or other material assets when purchasing medications. That was he verdict of the Oberverwaltungsgericht NRW in two judgments from September 8, 2017 (Az.: 13 A 2979/15 and 13 A 3027/15).

Both rulings stem from the following set of facts: Two pharmacists had promoted vouchers that could be redeemed by submitting a prescription. After presenting the voucher, the customers would receive a pair of cosy socks or wrapping paper. The competent pharmaceutical society viewed this as a violation of the pricing controls for prescription medicinal products and prohibited these types of vouchers from being issued. The legal action brought by the pharmacists against this decision was unsuccessful.

The OVG held that the promised non-cash benefits such as the cosy socks and wrapping paper gave consumers the impression that the medication was cheaper in these pharmacies than in others. This was a violation of the pharmaceutical pricing regulation, as customers were receiving everyday goods for redeeming the voucher. The Court went on to say that the fact that these were material assets of little value was insignificant, because no de minimis limit applies to the price controls.

The OVG also noted that a ruling of the Court of Justice of the European Union finding that these price-fixing regulations do not apply to foreign mail-order pharmacies does not affect the price controls. The Court clarified that this competitive advantage that foreign mail-order pharmacies have has yet to seriously impact domestic pharmacies negatively.

There is often a fine line that needs to be tread when it comes to advertising for pharmacies as well as other health organisations. Violations of competition law can be met with severe penalties. Lawyers who are experienced in the field of industrial property can offer advice and take appropriate legal measures in the event of violations.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/advertising.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

Commercial agent“s claim for compensation following voluntary termination

Commercial agent“s claim for compensation following voluntary termination

Commercial agent"s claim for compensation following voluntary termination

A commercial agent may even be entitled to compensation if he or she voluntarily issues notice of termination. However, the company“s conduct needs to give rise to legitimate grounds for termination for this to happen.

When a commercial agency agreement is brought to an end, the commercial agent often has a right to compensation. This is because the company in a lot of cases continues to profit from the client contacts that the commercial agent secured. There may be a right to compensation if the commercial agent terminates the agreement himself, but only if certain conditions are met; the company“s conduct must give rise to legitimates grounds for terminating the agreement. We at the commercial law firm GRP Rainer Rechtsanwälte note that a ruling of the Oberlandesgericht (OLG) München [Higher Regional Court of Munich] from February 2, 2017 has clarified that this is not the case if the company has merely omitted of its own accord to offer the commercial agent a reduction in rent to enable the commercial agent to obtain sufficient profits (Az.: 23 U 2749/16).

In the instant case, a filling station tenant had himself terminated the commercial agency agreement due to poor profits and demanded compensation in his capacity as a commercial agent. However, the OLG München ruled that the tenant was not entitled to this claim, stating that a commercial agent cannot unilaterally shift his or her entrepreneurial risk onto the company.

The OLG went on to say that the requirements pertaining to „legitimate grounds“ are less stringent than those in relation to good cause for termination, meaning that for these purposes no-fault or even lawful conduct on the part of the company may be enough. The Court held that it is necessary as well as sufficient for the company“s conduct to create a bona fide unacceptable situation for the commercial agent.

This was not the case here, it being irrelevant that the company had opened another filling station approx. 1.4 kilometres away. The Court ruled that this had not demonstrably led to profit losses, especially since both parties had agreed to a reduction in the rent. The company could also not be accused of having rejected an application brought by the tenant to take over another filling station, as the latter in his capacity as a commercial agent was subject to a legal prohibition on competition for the duration of the contractual period.

Before issuing notice of termination, commercial agents ought to carefully assess whether they are risking their right to compensation by doing so. Lawyers who are experienced in the field of commercial law can offer advice.

https://www.grprainer.com/en/legal-advice/commercial-law/commercial-agency-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

OLG Frankfurt: Contesting the renunciation of an inheritance on account of an error

OLG Frankfurt: Contesting the renunciation of an inheritance on account of an error

OLG Frankfurt: Contesting the renunciation of an inheritance on account of an error

As a matter of principle, an heir has the option of renouncing his or her inheritance. Under certain circumstances, the heir can also challenge and revoke this renunciation.

Heirs are not obligated to accept an inheritance and can instead reject it. The inheritance needs to be formally renounced within a period of sex weeks after the accrual of the inheritance comes to light. Once the inheritance has been renounced, it is then very difficult to undo this at a later stage. We at the commercial law firm GRP Rainer Rechtsanwälte note, however, that it is possible under certain circumstances, as demonstrated by a judgment of the Oberlandesgericht (OLG) Frankfurt [Higher Regional Court of Frankfurt] from May 4, 2017 (Az.: 20 W 197/16).

According to this, renouncing an inheritance is possible if the renouncing heir mistakenly assumes that by renouncing his or her share in the inheritance this share will then only go to his fellow appointed co-heir pursuant to the rules of intestate succession, as this means that the former is labouring under a misapprehension regarding a direct legal consequence of the renunciation, with this amounting to substantial error justifying a challenge.

This is exactly what happened in the inheritance case that came before the OLG Frankfurt. The testator had left behind a wife and a son. The son renounced the inheritance in the belief that his share would then automatically go to his mother and she would thus become the sole heir. However, the testator also had a brother who would have become a co-heir following the son“s renunciation of his share in the inheritance. The latter therefore contested the renunciation. The OLG Frankfurt ruled in his favour, stating that the son had not realized that in renouncing the inheritance a major consequence of doing so involved his share in the inheritance going to the person who would have become heir under the rules of intestate succession if he, the son, had not been alive at the time of the testator“s death, i.e. the testator“s brother in this case. The OLG held that this constituted a substantial error of law that justified the challenge.

A legal heir ought to thoroughly inform himself about the legal consequences of renouncing an inheritance before doing so, because contesting a renunciation is often extremely difficult. Those who do not wish to rely on the rules of intestate succession can prepare a will or contract of inheritance as a way of organizing the estate in accordance with their wishes. Lawyers who are experienced in the field of succession law can offer advice.

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

Inheritance – Waiving compulsory portion among siblings may prove more expensive

Inheritance – Waiving compulsory portion among siblings may prove more expensive

Inheritance - Waiving compulsory portion among siblings may prove more expensive

Legal heirs who waive their compulsory portion and receive a form of compensation for doing so need to keep an eye on the tax burden. Following a judgment of the Bundesfinanzhof (BFH), Germany“s Federal Fiscal Court, this may turn out to be higher than was previously the case.

Even if legal heirs are excluded from inheriting by way of a will, they are still entitled to their share in the compulsory portion. Should those entitled to the compulsory portion waive this to the benefit of their siblings and receive compensation in return, this may prove to be considerably costlier than was hitherto the case following a ruling of the Bundesfinanzhof from May 10, 2017. According to this, a distinction needs to be made depending on whether the waiver was issued during the testator“s lifetime or after his or her death (Az.: II R 25/15). We at the commercial law firm GRP Rainer Rechtsanwälte note that the tax implications can be significant.

In the instant case, a brother had waived his entitlement to the compulsory portion during the lifetime of the testatrix in favour of his three siblings in case he was excluded from the inheritance by his mother. In return, he received a payment from each of his siblings in the amount of 150,000 euros. Several years prior to this, he had already received gifts from his mother amounting to around one million euros.

The tax office issued separate gift tax assessment notices for his siblings“ donations and in the process added the value of the of the mother“s gifts to the payment of 150,000 euros from each sibling, and then deducted the applicable tax allowance at the time of 205,000 euros. In doing so, it applied the first tax bracket to the case and thus a tax rate of 19 per cent. In the end, this resulted in a tax levy of 28,405 euros. The relevant assessment notice was adjusted following a legal action. This reduced the gift tax burden to 10,810 euros; the gifts from the mother ought not to have been taken into account for the purposes of the calculation.

Nonetheless, the fiscal court also applied the first tax class to the case. Wrongly so, according to the BFH. It held that because the donation was among siblings and not between parents and children, the considerably less favourable second tax bracket ought to have been applied to the case. The tax allowance here was then only 10,300 euros (20,000 euros today). This meant the gift tax rose again to approx.. 23,600 euros. The BFH has thus substantially amended its case law. Lawyers who are experienced in the field of succession law can offer advice.

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BGH on risk of confusion in trademark law

BGH on risk of confusion in trademark law

BGH on risk of confusion in trademark law

Anyone registering a trademark needs to make sure that no rights pertaining to an existing trademark will be infringed and that there is no risk of confusion between the trademarks.

Trademarks are of great important to businesses. They improve brand recognition from the perspective of consumers and contribute to customer loyalty. Violating existing trademark rights can give rise to tough sanctions. In its ruling of March 2, 2017, the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, held that when it comes to assessing whether a word mark or its components describe the goods or services covered, it does not come down to the importance or meaning the trademark owner attaches to the word mark. We at the commercial law firm GRP Rainer Rechtsanwälte note that the Court clarified that it is in fact the perspective of the audience being addressed which is decisive (Az.: I ZR 30/16).

It went on to say that it is possible by way of exception to negate the risk of confusion between two marks despite there being phonetically and visually similar if the marks“ conceptual content is clearly divergent and this is readily discernible. On the other hand, the BGH ruled that if the meaning is only evident following an analytical examination then this is insufficient for these purposes.

The Bundesgerichtshof had to rule on a trademark dispute between two pharmacies. The plaintiff is the owner of a word mark, part of whose name includes the word „Medicon“, as well as a corresponding word/image mark. The defendant made use of a similar term, which merely omitted the letter „n“. The plaintiff viewed this as a violation of its licensed trademark.

While the legal action was unsuccessful before the courts of lower instance, with the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm] proceeding on the assumption that there was no risk of confusion between the trademarks, the BGH took a different view.

The OLG had started from the premise that the trademark under dispute had very little and far below average distinctive character, consisting of a series of descriptive and undistinctive words strung together, whose content was said to be readily apparent to its audience without the need to carry out any analysis. Notwithstanding this, the BGH ruled that when determining the distinctiveness of a trademark one needs to focus on the overall impression of the mark, and that the audience generally tends not to dissect and analyse a trademark. It therefore concluded that a similarity between marks cannot be negated.

Lawyers who are experienced in the field of intellectual property law can advise companies on all issues relating to trademark law.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BGH: Online advertising must clearly reference energy efficiency class

BGH: Online advertising must clearly reference energy efficiency class

BGH: Online advertising must clearly reference energy efficiency class

When it comes to online advertising for electronic appliances, the energy efficiency class must be clearly visible to consumers. That was the verdict of the Bundesgerichtshof (BGH) in its ruling of April 6, 2017 (Az.: I ZR 159/16).

According to the latest case law from the Bundesgerichtshof, it is not necessary for the energy efficiency class of an electronic appliance advertised online to be on the same webpage as the price-related advertising, it being possible for the former to be featured on a separate webpage accessible via a link found near the advertisement. However, this is not enough if the link is formulated in a general manner. The BGH clarified that a link such as „Mehr zum Artikel“ (More on this item) is not sufficient. We at the commercial law firm GRP Rainer Rechtsanwälte note that the Court went on to say that the reference needs to be clearly identifiable as an indication of the appliance“s energy efficiency class.

In the case in question, a DIY chain had promoted an air conditioning unit on the internet. Below the price quotation was the link „Mehr zum Artikel“. Clicking on this opened up another page with various specifications pertaining to the device, including its energy efficiency class. A consumer protection organization considered this to be insufficient and a violation of the EU regulation pursuant to which the energy efficiency class of an electronic appliance has to be immediately recognizable. It brought a legal action all the way up to the BGH.

Unlike the courts of lower instance, the BGH followed the consumer advocates“ line of reasoning, ruling that it was not the fact that the information concerning the device“s energy efficiency class had to be accessed via a link which constituted a violation of the EU regulation but that the link had been too general in nature and did not clearly indicate to consumers that the information could be found by clicking on the link. The Court held that the energy efficiency class is a key element for consumers in appraising an appliance and thus also in deciding whether or not to purchase the device. The BGH concluded that this practice significantly undermines the interests of the consumer.

Advertising that violates competition law can give rise to formal warnings, damages claims and injunction suits. Lawyers who are versed in the field of competition law can assist companies in fending off or enforcing claims arising from violations of competition law.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/advertising.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BAG: Strict requirements for dismissal on grounds of suspicion

BAG: Strict requirements for dismissal on grounds of suspicion

BAG: Strict requirements for dismissal on grounds of suspicion

It is possible to issue exceptional notice terminating an employment relationship if there is good cause for doing so. However, in cases involving dismissal for good cause based on suspicion, this suspicion needs to be underpinned by strong circumstantial evidence.

We at the commercial law firm GRP Rainer Rechtsanwälte note that issuing exceptional notice of dismissal terminating an employment relationship with immediate effect is only possible if there is good cause for doing so. It is also an option if there is strong circumstantial evidence against the employee that gives rise to a suspicion which is liable to destroy the trust necessary for the continuation of the employment relationship. That being said, the requirements pertaining to what is referred to in German as a „Verdachtskündigung“, or dismissal on grounds of suspicion, are strict. This was confirmed by the Bundesarbeitsgericht (BAG), Germany“s Federal Labour Court, in its ruling of March 2, 2017 (Az.: 2 AZR 698/15).

In particular, the employer has to demonstrate that the suspicion is based on specific facts and circumstances that can be stated and, as the case may be, proven at a later date. At the same time, the employee must be afforded the opportunity to comment on the accusations. Furthermore, it needs to be highly likely that the suspicion is in fact true. Mere speculation is not enough.

The fact that the public prosecutor“s office has opened investigations against the employee or issued an arrest warrant is equally insufficient. The BAG justified this by stating that the labour courts must themselves appraise all of the grounds relevant to the dismissal on grounds of suspicion and are not bound by decisions made in criminal proceedings. It went on to say that while the decisions made by a criminal court can be taken into account by a labour court, the latter must itself conduct a thorough assessment. On the other hand, it is quite possible for an acquittal in criminal proceedings to also exonerate the employee in relation to his or her dismissal. The Court noted that for this to happen it is not even necessary for the suspicion to have been completely dispelled in the context of the criminal proceedings; it is sufficient for the suspicion to have at least been sufficiently weakened.

In justifying their decision to issue notice of dismissal, employers should also take care to ensure that their choice of words is as precise as possible and that they do not confuse terminology, as they can be evaluated differently from a legal perspective.

Whether exceptional notice of dismissal has been issued effectively is ultimately always a decision that is made on a case-by-case basis. Accordingly, employers should see to it that it is thoroughly prepared in as much detail as possible. Lawyers who are experienced in the field of employment law can offer advice.

https://www.grprainer.com/en/legal-advice/employment-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BGH: Advertisements must include all information material to the consumer

BGH: Advertisements must include all information material to the consumer

BGH: Advertisements must include all information material to the consumer

If an advertisement constitutes an „invitation to purchase“, it needs to include all of the information necessary for the consumer. That was the verdict of the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court (Az.: I ZR 41/16).

In the instant case, a company had advertised fully furnished and equipped kitchens in brochures as „all-inclusive offers“, i.e. including electrical appliances. However, there was a lack of more detailed information in relation to these appliances, e.g. concerning the manufacturer, brands or model names. In its ruling of March 2, 2017, the Bundesgerichtshof held that the advertising was anti-competitive because it violated Germany“s Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act].

We at the commercial law firm GRP Rainer Rechtsanwälte note that a violation of the UWG has occurred if having regard to all of the facts and circumstances material information has been withheld from the consumer that he or she requires in order to make an informed commercial decision, and withholding this information is liable to induce the consumer into reaching a decision that he or she would not have made if they had been cognizant of this information. According to the case law of the BGH, if goods or services are advertised in such a way that consumers can immediately reach a purchase decision then the information pertaining to the product is considered to be material.

In the case in question, the BGH ruled that the promotional brochures had been prepared in such a way that the advertising did not simply attract consumers attention but also made it possible for them to make a purchase decision. For this reason, the advertising was said to constitute an invitation to purchase. The Court went on to say, however, that information had been withheld from the consumer that was material to his or her decision to purchase, namely more detailed information regarding the electrical appliances, and that it was only with this information that consumers would have been able to compare the offers of different vendors and then come to a decision. The BGH noted that information is being withheld from the consumer if it falls within the vendor“s sphere of responsibility or business or the latter ought to have been able to provide it without much effort.

If advertising violates competition law, this can lead to formal warnings, damages claims or injunction suits. Lawyers who are versed in the field of competition law can assist companies in fending off or enforcing claims arising from violations of competition law.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/advertising.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

OLG Köln on validity of a nuncupative will before three witnesses

OLG Köln on validity of a nuncupative will before three witnesses

OLG Köln on validity of a nuncupative will before three witnesses

If the testator is at acute risk of death, it is possible to draft what is referred to in German as a „Nottestament“, or nuncupative will, before three witnesses. That being said, even a nuncupative will has to fulfil certain criteria for it to be effective.

It is possible to prepare a will with three witnesses if the testator is faced with the imminent prospect of death. We at the law firm GRP Rainer Rechtsanwälte note that this requires the risk of death to be so acute that there is unlikely to be enough time left to draw up a will with a notary or mayor. A judgment of the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne] from July 5, 2017 demonstrates, however, that persons who are a close personal relation of the beneficiary cannot be a witness to this kind of nuncupative will (Az.: 2 Wx 86/17). According to the ruling, a nuncupative will before three witnesses is ineffective if a son contributes to preparing the will appointing his mother as the sole heiress.

Yet this is exactly what happened in the case that came before the OLG Köln. Four people attended the testator at his death bed. Three of them recorded in the minutes that the significant other of the 84-year-old should become the sole heiress. The son of the appointed sole heiress was among the witnesses. The testator no longer had the strength to sign the will.

The testator“s significant other eventually applied for the certificate of inheritance. This move was subsequently resisted by the nieces and nephews of the deceased man. In the absence of a will, they would have been entitled to inherit under the rules of intestate succession. The OLG Köln upheld the decision of the courts of lower instance, according to which the testator“s significant other did not become the sole heiress.

The Court held that while it is possible in principle to prepare a nuncupative will if the testator is at acute risk of death, no child or close relative of the beneficiary under the will can be a witness as was the case here. The fact that a fourth person was present did not influence the OLG“s decision, with the Court stating that the person in question was not involved in recording the relevant information but instead merely heard the testator“s statement. It went on to say that the will was invalid because only two people ultimately participated in recording the information.

The case shows that it is advisable to get to grips with a will in good time, because otherwise the rules of intestate succession apply and these are not necessarily in line with the testator“s wishes. Lawyers who are experienced in the field of succession law can offer advice.

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

Breach of confidentiality obligation – Dismissal with immediate effect valid

Breach of confidentiality obligation – Dismissal with immediate effect valid

Breach of confidentiality obligation - Dismissal with immediate effect valid

Breach of a confidentiality obligation can justify issuing an employee with notice of dismissal with immediate effect. That was the verdict of the Landesarbeitsgericht (LAG) Baden-Württemberg [Regional Labour Court of Baden-Württemberg] (Az.: 12 Sa 22/16).

We at the commercial law firm GRP Rainer Rechtsanwälte note that before an employer can effectively issue notice of dismissal it needs to assess whether less severe measures such as a formal written warning would be sufficient to prompt the employee to conduct himself in a dutiful manner. Having said that, a ruling of the LAG Baden-Württemberg from November 11, 2016 shows that it is possible to forgo a formal warning if the employee commits a serious breach of duty.

Employees“ duty of confidentiality is particularly important in certain professions, e.g. for doctors and their employees. Patients have a relationship of trust with their doctor and expect that their documents and records will not be shared with third parties without authorization, but this is exactly what happened in the case that came before the LAG Baden-Württemberg. After a patient had cancelled her appointment, a doctor“s assistant took a photo of said patient“s data sheet and sent it to her daughter along with the comment „Mal sehen, was die schon wieder hat“ [Let“s see what she“s got this time]. The daughter then showed the message around in her sports club. When the patient“s father learned of this, he complained to the practice and the doctor“s assistant was issued with exceptional notice of dismissal with immediate effect. The duty of confidentiality had been explicitly agreed to in the employment contract.

The employer took the view that the doctor“s assistant“s conduct constituted not only a breach of her contractual obligations but also an offence pursuant to sec. 203 para. 3 sent. 2 of the Strafgesetzbuch, Germany“s Criminal Code. It therefore concluded that this represented good cause justifying exceptional notice of the employment relationship“s termination. The doctor“s assistant“s action for wrongful dismissal was unsuccessful.

The LAG held that dismissal with immediate effect had been justified, ruling that the employee“s conduct constituted a serious and intentional breach of her duty of disclosure as laid out in the employment contract. It went on to say that maintaining doctor-patient confidentiality, including on the part of non-medical personnel, is fundamental to the relationship of trust required between doctor and patient. The Court stated that the employer had a vested interest in quickly re-establishing this relationship of trust, which meant that it was not reasonable to expect it to continue the employment relationship and a prior formal warning was not necessary.

That being said, whether exceptional notice of dismissal is effective is always a decision that is made on a case-by-case decision. Accordingly, it ought to be thoroughly prepared. Lawyers who are experienced in the field of employment law can advise employers.

https://www.grprainer.com/en/legal-advice/employment-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
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E-Mail: info@grprainer.com
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