Category Archives: Politics Law Society

Politics Law Society

Advertising for medicinal products must relate to approved fields of application

Advertising for medicinal products must relate to approved fields of application

Advertising for medicinal products must relate to approved fields of application

Advertising for medicinal products must relate to approved fields of application. Failing this, the advertising may violate competition law as well as Germany“s Heilmittelwerbegesetz (HWG) [Advertising of Medicinal Products Act].

According to the HWG, it is not permissible to advertise medicinal products that require approval but have not yet been approved. We at GRP Rainer Rechtsanwälte note that this also applies to advertising that relates to fields of application or pharmaceutical forms which are not covered by the approval.

A case that came before the Oberlandesgericht (OLG) Stuttgart [Higher Regional Court of Stuttgart] concerned advertising for a non-prescription pain medication. This had been approved for use in the case of „slight to moderate pain“, among other things, „in response to colds“ as well as „fevers“. The pharmaceutical manufacturer also promoted the product with the phrase „Eine Extraportion Vitamin C unterstützt das Immunsystem“ [An extra portion of vitamin C supports the immune system]. A competition association considered this statement to be unacceptable and sued for an injunction.

The OLG Stuttgart granted the lawsuit in its ruling of June 8, 2017 (Az.: 2 U 127/16). The Court considered the statement that the vitamin C contained in the pain medication supports the immune system to be a violation of the German Unfair Competition Act, Gesetz gegen den unlauteren Wettbewerb (UWG), as well as the Heilmittelwerbegesetz, because the promotional statement concerned a field of application in relation to which the medicinal product had not been approved. The OLG went on to say that consumers would assume from the statement that vitamin C supports the immune system that this is an additional application and not merely a reference to another one of the medication“s effects.

The Court noted that although a consumer who is not experiencing pain would not opt for this medication to bolster his immune system, consumers who are experiencing pain and have also been advised by a doctor to strengthen their immune system in another context might take the defendant“s medicinal product. However, it was said to be only permissible to make reference to additional effects if they relate to the approved field of application.

Violations of 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 infringements 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

Anti-competitive advertising featuring flat rate for tooth cleaning and bleaching

Anti-competitive advertising featuring flat rate for tooth cleaning and bleaching

Anti-competitive advertising featuring flat rate for tooth cleaning and bleaching

According to a ruling of the Oberlandesgericht (OLG) Frankfurt [Higher Regional Court of Frankfurt] from July 21, 2016, dentists offering tooth cleaning or bleaching services at a fixed flat rate are violating competition law (Az.: 6 U 136/15).

In the instant case, the OLG Frankfurt held that offering tooth cleaning and bleaching services at a flat rate price violates both the provisions of the fee schedule for German dentists and competition law.

The legal dispute arose in relation to an offer made by a dentist on an online portal for tooth cleaning and bleaching services at a fixed flat rate. Consumers could acquire the relevant coupons through so-called „deals“. A legal suit for an injunction against this offer was brought by the professional association for dentists in Hesse. It argued that the dentist in question had improperly offered dental services at a discounted fixed price which fell considerably short of the framework established in the fee schedule, stating that this was anti-competitive.

The OLG Frankfurt agreed with this view. The Court ruled that the fee schedule for dentists represents a mandatory set of pricing rules for all dentists. It went on to say that the fee schedule is supposed to ensure transparency when it comes to billing for dental services and should be considered a market behaviour rule in terms of Germany“s Gesetzes gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act] and thus any violation of this should be deemed anti-competitive.

The Court reasoned that if these fixed prices were permissible, there would be a risk of patients with a limited treatment requirement „cross-subsidizing“ patients in need of substantially more intensive treatment. The OLG also noted that there would be a risk of the treatment being shortened beyond reasonable limits because of the fixed price. It stated that while a flat rate can be agreed in individual cases, this can only be arranged following a preliminary examination of the patient and the creation of a treatment and cost plan.

Doctors and dentists are, like many other professional groups, in competition with one another. We at the commercial law firm GRP Rainer Rechtsanwälte note that it is therefore understandable why they would wish to draw in patients with special offers or services. Notwithstanding this, they must observe the rules of competition law in doing so, since violations can give rise to severe penalties. Lawyers who are versed in the field of competition law can advise accordingly.

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

Cancellation agreement and threat of exceptional notice of dismissal

Cancellation agreement and threat of exceptional notice of dismissal

Cancellation agreement and threat of exceptional notice of dismissal

Employers threatening to issue a notice of dismissal with immediate effect ought to have serious grounds for terminating the employment relationship. That was the verdict of the Landesarbeitsgericht (LAG) Köln [Regional Labour Court of Cologne] (Az.: 11 Sa 114/16).

In addition to ordinary notice of dismissal, employers can also issue exceptional notice of dismissal. We at the commercial law firm GRP Rainer Rechtsanwälte note that there needs to be good cause in order for an exceptional notice of dismissal to be effective. Besides dismissal, employers can often make use of a cancellation agreement to terminate the employment relationship.

In its ruling of October 19, 2016, the LAG Köln clarified that employers can only entertain the notion of issuing exceptional notice of dismissal if it must assume taking into account all of the facts and circumstances that the threatened dismissal would most likely not stand up to a judicial review by a labour court. Moreover, there needs to be strong suspicion in cases involving dismissal based on suspicion, i.e. there should be a high probability of the suspicion being true.

This very criterium was not fulfilled in the case that came before the LAG Köln. In that case, the employer had presented an employee with the prospect of exceptional notice of dismissal, with the parties ultimately settling on a cancellation agreement. Notwithstanding this, the employee then contested said agreement.

The employee“s responsibilities included carrying out surveillance activities in a department store together with a worker from an outside company based on the „four-eyes“ or „dual-control“ principle. The food department was monitored by cameras. Following a body search performed on the worker employed by an external company, it was established that he had stolen food. He also admitted to further incidences of theft. It was beyond dispute that the plaintiff had been in the camera room again, thus there were grounds to suspect that he had manipulated the cameras in order to conceal the offences. For this reason, the employer threatened him with dismissal and the employee subsequently signed a cancellation agreement.

However, the LAG Köln ruled that the cancellation agreement was null and void, stating that while it is possible in principle for notice of dismissal to be issued in the absence of comprehensive evidence, there would then need to be a strong suspicion and all reasonable potential explanations exhausted. The Court went on to say that the suspicion here had been based on mere assumptions and did not constitute a strong suspicion. It was therefore not permissible for the employer to threaten with dismissal as a way of inducing the employee to sign the cancellation agreement.

Exceptional notice of dismissal should always be well 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
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

CJEU: Impermissible advertising for glucose featuring true statements

CJEU: Impermissible advertising for glucose featuring true statements

CJEU: Impermissible advertising for glucose featuring true statements

Even if health-related advertising claims are true, they may still mislead consumers and thus be impermissible. That was the verdict of the Court of Justice of the European Union (CJEU) (Az.: C-296/16 P).

A manufacturer of glucose products lodged a claim that was ultimately unsuccessful before the CJEU. The company had already applied in 2011 for permission to use various health claims such as „Glucose unterstützt die normale körperliche Betätigung“ (glucose supports normal physical activity) and „Glucose trägt zu einem normalen Energiegewinnungsstoffwechsel bei körperlicher Betätigung bei“ (glucose contributes to normal energy metabolism during physical activity).

Despite the European Food Safety Authority (EFSA) confirming a causal relationship between glucose intake and normal energy metabolism, the European Commission refused to grant permission in relation to these health claims. It justified its decision by stating that these health claims sent a contradictory and confusing signal to consumers, as they were being encouraged to consume sugar. It went on to say, however, that based on the scientific evidence both national and international bodies recommend consuming less sugar.

The company subsequently took action against the refusal to approve the statements. As was the case before the General Court of the European Union, the action was also unsuccessful before the CJEU. In its ruling of June 8, 2017, the CJEU confirmed the Commission“s assessment and the judgment at first instance, according to which it is not permissible to make health claims if these contradict generally accepted nutrition and health principles. According to these principles, consumers ought to reduce their sugar consumption. It was said that even if the health claims pertaining to the effects of glucose were accurate, they only presented its positive attributes without indicating the risks associated with consuming sugar. The Court held that this was misleading to consumers and the statements were therefore not permissible.

Following this recent ruling of the CJEU, we at GRP Rainer Rechtsanwälte would advise companies to not only ensure that health claims are verifiable in the context of advertising, but also consider whether the statements in question are consistent with the generally accepted evidence and toe the line with European health policy. Lawyers who are experienced in the field of competition law can offer advice as well as assist in enforcing or fending of claims arising from infringements 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

Making arrangements for one“s estate early on with a will or contract of inheritance

Making arrangements for one“s estate early on with a will or contract of inheritance

Making arrangements for one"s estate early on with a will or contract of inheritance

Inheritance is set to become an ever more important topic in the coming years, which is why it is more crucial than ever to think about the distribution of one“s estate at an early stage.

In principle, every testator can determine how their estate should be distributed among the heirs having regard to the relevant statutory regulations, e.g. those concerning claims to a compulsory portion. We at the law firm GRP Rainer Rechtsanwälte note that if the testator fails to lay out his testamentary dispositions in a will or contract of inheritance then the rules of intestate succession automatically kick in. According to these rules, the spouse and relatives inherit. The result is not necessarily in line with the testator“s wishes, as the rules generally entail the spouse not being able to become the sole heir if there are other relatives, for example the testator“s nephew, who are entitled to inherit. In these instances, the spouse or life partner is typically only able to inherit 75 per cent. Furthermore, it is possible for disputes to arise among the heirs. While the distribution of cash is relatively simple under the rules of intestate succession, this often proves to be more difficult in the case of other assets such as jewellery and, in particular, real estate.

To prevent these kinds of developments, one can take precautionary measures and prepare a will or contract of inheritance. The testator can lay out in a will who is to inherit. In doing so, claims to the compulsory portion need to be accounted for. These amount to half of the statutory share. It is equally important to be mindful of clear and legally correct wording to avoid misunderstandings and the possibility of the will having to be interpreted by a court.

The so called „Berliner Testament“ (Berlin will) is popular among married couples. Here, spouses mutually appoint each other as sole heirs and normally designate their children as final heirs, i.e. the latter do not inherit until after the second spouse has passed away. That being said, a Berliner Testament does have a strong binding effect, with it only being possible to change the joint instructions unilaterally under certain circumstances.

One should also bear in mind tax considerations and make optimal use of tax allowances. To this end, it might make sense for the testator to make gifts during his lifetime. Lawyers who are experienced in the field of succession law can advise on all matters relating to wills and contracts of inheritance.

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

GRP Rainer Rechtsanwälte: Assessing managers“ liability risk

GRP Rainer Rechtsanwälte: Assessing managers“ liability risk

GRP Rainer Rechtsanwälte: Assessing managers" liability risk

Company managers bear a high level of not only responsibility but also risk. Various measures can be taken to reduce the risk of directors“ and officers“ (D&O) liability.

When a crisis or insolvency occurs, the manager“s accountability and thus also his personal liability are issues that ever more rapidly take centre stage. Liability claims directed at executive boards, supervisory boards or managing directors can arise even in cases involving simple negligence. These can result in claims for damages or compensation against the executive bodies. We at the commercial law firm GRP Rainer Rechtsanwälte note that since such claims typically entail large sums of money they can jeopardize the existence of the companies concerned. Compounding the matter is the fact that there is a shift in the burden of proof in cases involving claims brought by a company against its own executive bodies, i.e. managers need to demonstrate that they properly fulfilled their duties.

Liability cases can arise if, for instance, taxes or social security contributions were not properly paid, disclosure and reporting obligations were infringed or executive bodies can be accused of misconduct in relation to the crisis or insolvency.

That being said, it is possible to reduce the risk of personal liability by taking appropriate measures. It is important to first of all carry out an assessment into the risk of personal liability. Additionally, one needs to keep in mind the risk of liability as early as when drafting employment contracts for managing directors, service contracts as well as any rules of procedure, and whenever possible make arrangements to limit liability.

A D&O insurance policy should also be taken out for the executive bodies, with this being tailored to the individual liability risks. This ought to deal with the insured sum as well as both retroactive and run-off coverage.

Another key element to reducing the risk of liability is to set up an effective compliance management system to ensure that statutory and contractual provisions are observed by all of the employees at the company in question.

Lawyers who are experienced in the field of company law can assess the risks as they pertain to managers“ liability and take appropriate steps to substantially reduce this risk. If claims are nevertheless raised against the executive bodies, all legal measures can be taken to fend off or, conversely, enforce said claims.

https://www.grprainer.com/en/legal-advice/company-law/executive-supervisory-board.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

LAG Düsseldorf: Dismissal with immediate effect valid in response to threat

LAG Düsseldorf: Dismissal with immediate effect valid in response to threat

LAG Düsseldorf: Dismissal with immediate effect valid in response to threat

Anyone who seriously threatens their employer or superior should expect to be dismissed with immediate effect. This was confirmed by a ruling of the Landesarbeitsgericht (LAG) Düsseldorf [Regional Labour Court of Düsseldorf] from June 8, 2017 (Az.: 11 Sa 823/16).

Issuing exceptional notice of an employment relationship“s termination with immediate effect requires that there be good cause for doing so and that it is no longer reasonable to expect the employer to continue the employment relationship. Good cause generally entails a serious breach of duty on the part of the employee. Refusing to perform the work that is owed pursuant to the employment contract may, for instance, constitute a breach of duty of this kind. We at the commercial law firm GRP Rainer Rechtsanwälte note that conduct vis-à-vis colleagues and superiors can also justify dismissal with immediate effect.

In the case that came before the LAG Düsseldorf, the employee was accused of extreme misconduct. He was said to have threatened one of his superiors on the telephone with the words „ich stech Dich ab“, essentially threatening to stab him to death. Shortly thereafter, he received notice of dismissal with immediate effect. His action for wrongful dismissal was unsuccessful. Like the Arbeitsgericht Düsseldorf (Labour Court of Düsseldorf) before it, the Landesarbeitsgericht Düsseldorf dismissed the action.

The threat on the telephone was apparently preceded by an ongoing conflict between the employee and his superior which had been festering for some time. The trigger seemed to have been upcoming elections for the staff council. The employee had produced election posters for his free list using the company“s photocopiers, with his superior subsequently pointing out that he ought to reimburse the costs. The employee responded to this request with a criminal charge for coercion. However, he himself was ultimately convicted of fraud.

A short while later, there was the threatening phone call and dismissal with immediate effect. The LAG ruled that the latter had been issued effectively and followed the Arbeitsgericht“s line of argument, according to which it had been clearly demonstrated that the caller was the fired employee. The Court went on to say that seriously threatening a superior had resulted in it no longer being reasonable to expect the employer to continue the employment relationship. Due to the severity of the breach of duty in question, a prior formal warning was said to have been unnecessary.

Notwithstanding this, the validity of an exceptional notice of dismissal is always an ad hoc decision. That is why employers ought to carefully assess whether there is good cause justifying dismissal. 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
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

GRP Rainer Rechtsanwälte: Experience in antitrust law – 9th amendment to the GWB

GRP Rainer Rechtsanwälte: Experience in antitrust law – 9th amendment to the GWB

GRP Rainer Rechtsanwälte: Experience in antitrust law - 9th amendment to the GWB

Antitrust law is not something that merely concerns large corporations. It also affects small and medium-sized businesses. Violations of antitrust law can be met with severe penalties.

In March, the Bundestag and Bundesrat, Germany“s lower and upper houses of parliament, passed the 9th amendment to the Gesetz gegen Wettbewerbsbeschränkungen (GWB) [Act Against Restraints of Competition]. We at the commercial law firm GRP Rainer Rechtsanwälte note that this entails a tightening of the rules in the fields of competition law and antitrust law, as the changes make it easier for those who have been aggrieved by cartel arrangements to assert claims for damages. On the other hand, it also means that businesses which infringe antitrust law will be faced with a greater risk.

The 9th amendment to the GWB is designed to implement the EU Directive on Damages in EU Cartel Cases. One focus of the amendment is to adapt competition law to the digital age. Because it is not uncommon, especially in this field, for market concentration or abuse of a dominant market position to occur, control of mergers and abusive practices will be bolstered by the competition authorities.

An equally important point is that parties who have suffered loss due to a cartel will be able to more easily enforce claims for damages. In the event of a cartel infringement, the competition watchdog can administer the cartel members with a fine and the aggrieved parties can, as the case may be, sue for damages. That being said, they have to demonstrate the fact that and the extent to which they have suffered losses as a result of the cartel. There will now be a legal presumption that loss has been suffered due to the infringement. This presumption needs to be rebutted by the cartelists, thus the burden of proof has shifted. Furthermore, the victims will enjoy more comprehensive rights in relation to the submission of the relevant documents.

Another key point is that it is now also possible for the parent company or its legal successor to be held liable for infringements of antitrust law committed by its subsidiaries. This is meant to prevent companies from evading liability by restructuring within a group.

But antitrust law is not only aimed at large companies. Small and medium-sized businesses must also be increasingly careful not to violate antitrust law, as this can prove to be expensive. Lawyers who are experienced in the field of antitrust law can provide companies with pre-emptive advice and, of course, also assist in enforcing or fending off damages claims.

https://www.grprainer.com/en/legal-advice/antitrust-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.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

Voluntary declaration for tax evasion still possible

Voluntary declaration for tax evasion still possible

Voluntary declaration for tax evasion still possible

While the number of voluntary declarations for tax evasion is declining, voluntary disclosure remains possible and is the only way of avoiding the imminent prospect of a conviction for tax evasion.

Following the boom years, the number of voluntary declarations for tax evasion has since fallen sharply. Notwithstanding this, the assumption still stands that untaxed income continues to be deposited in foreign accounts. Tax evaders should anticipate these illicit earnings being discovered now more than ever, as there will be no easing up in terms of the cross-border efforts in the fight against tax evasion. Moreover, tax investigators now have a powerful tool at their disposal in the form of the automatic exchange of financial information.

We at the law firm GRP Rainer Rechtsanwälte would advise anyone who is still concealing untaxed income from the exchequer that it remains possible to submit a voluntary declaration leading to immunity. However, the matter should not be put off any longer due to the increased risk of detection. Having said that, the voluntary declaration needs to be submitted before the tax evasion is discovered by the authorities for it to be capable of leading to immunity. In addition, it needs to be complete and free from errors. To this end, it is necessary, among other things, to disclose all information from the past ten years that is relevant from a tax perspective. This requires meticulous preparation of the voluntary declaration as well as expert advice.

For a layperson, it is almost impossible to satisfy the stringent requirements laid out by the legislature for voluntary disclosure to lead to immunity. Those who nonetheless attempt to prepare a voluntary declaration on their own or with the help of standard templates found online are taking a big risk; it is almost impossible to account for all of the complex processes in this manner, and even minor errors can result in the voluntary declaration failing to lead to immunity. In that case, high fines and severe custodial sentences are still a possibility in the event of a conviction for tax evasion despite voluntary disclosure.

To avoid this risk, tax dodgers who wish to return to a state of tax compliance can turn to lawyers and tax advisors who are experienced in the field of tax law. They are able to account for the complexity of each individual case and know which documents and information the voluntary declaration needs to include for it to be capable of leading to immunity.

https://www.grprainer.com/en/legal-advice/tax-law/voluntary-disclosure.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.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en

Politics Law Society

Occupational rehabilitation management program and dismissal due to illness

Occupational rehabilitation management program and dismissal due to illness

Occupational rehabilitation management program and dismissal due to illness

In the case of sick employees, employers ought to closely explore the possibility of an occupational rehabilitation management program. Otherwise, dismissal due to illness may be invalid.

Employers are obliged to offer employees who are continuously or repeatedly sick for a period of six weeks within the space of a year what is referred to as a „betriebliches Eingliederungsmanagement“ (BEM) [occupational rehabilitation management program]. We at the law firm GRP Rainer Rechtsanwälte note that the employer is supposed to look into how the employee“s unfitness for work can be overcome or how to prevent him from becoming incapable of working again. If the employer considers a BEM to be pointless, it must be able to justify this in detail before issuing notice of dismissal due to illness. Otherwise, as is clear from a judgment of the Landesarbeitsgericht (LAG) Rheinland-Pfalz [Regional Labour Court of Rhineland-Palatinate] from January 10, 2017, the dismissal may be invalid (Az.: 8 Sa 359/16).

In the case in question, the employee had worked at the company for many years as a machine operator. Over several consecutive years, the employee was absent from work for several weeks due to illness. The employer subsequently had a discussion with the employee in advance of the occupational rehabilitation management program. According to the company, the employee stated during the discussion that his illnesses had been „fateful“ and there was nothing the employer could do to prevent his unfitness for work. After the employee later fell ill and became unfit for work once again, the employer issued notice of dismissal due to illness, which the employee then resisted. It was argued that there had been no social justification for the dismissal. Moreover, the employer ought to have carried out a BEM before issuing notice of dismissal.

The LAG Rheinland-Pfalz granted the action for wrongful dismissal, ruling that the dismissal had not be socially justified and was therefore invalid. The Court went on to say that dismissal due to illness is socially justified if there is a negative prognosis in relation to the probable duration of the period of unfitness for work and this results in a significant detrimental effect to the company“s interests that places a burden on the employer which is no longer tolerable. The Court held that the employer had not sufficiently demonstrated that this was the case, pointing out that the latter had failed to carry out a BEM as required by law and yet also failed to sufficiently make the case for there having been no other possible milder measures than dismissal. The LAG concluded that this rendered the dismissal disproportionate. If the employer considered the BEM to be pointless, it needed to explain why more recent illnesses could not have been prevented by this.

Employers can turn to lawyers who are versed in the field of employment law for advice on all legal issues pertaining to the workplace.

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.

Kontakt
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
+49 221-27 22 75-0
+49 221-27 22 75-24
info@grprainer.com
http://www.grprainer.com/en