Category Archives: Politics Law Society

Politics Law Society

LAG Hamm: Dismissal on grounds of suspicion must comply with strict requirements

LAG Hamm: Dismissal on grounds of suspicion must comply with strict requirements

LAG Hamm: Dismissal on grounds of suspicion must comply with strict requirements

If an employer wants to issue notice of dismissal on grounds of suspicion, the circumstances need to be sufficiently suspicious such that it is almost certain the employee in question committed the relevant offence.

For extraordinary notice of termination of an employment relationship to be effective, there needs to be good cause justifying this course of action. We at the commercial law firm GRP Rainer Rechtsanwälte note that suspicion an employee has committed a serious breach of duty can constitute good cause justifying extraordinary dismissal. Having said that, the circumstances need to be sufficiently suspicious such that it is virtually certain the employee is the perpetrator based on the objective evidence available. That was the verdict of the Landesarbeitsgericht (LAG) Hamm [Regional Labour Court of Hamm] in its ruling of August 30, 2016 (Az.: 7 TaBV 45/16).

The case that came before the LAG Hamm concerned a particularly distasteful form of bullying. An employee at a senior citizens“ centre discovered a letter of condolence in her mailbox that included the handwritten comment „für Dich (Du bist die nächste)“ [for you (you“re next)]. Upon learning of the incident, the employer attempted to identify the culprit responsible for the letter. To this end, it collected handwriting samples from those employees it considered might be responsible. Based on these handwriting samples, an expert concluded that it was „highly probable“ the letter came from a longstanding employee. Notwithstanding this, the expert pointed out that beyond this there are also the categories of probability „very likely“ „virtually certain“. Despite this, the employer still intended to issue the relevant employee with notice of extraordinary dismissal on grounds of suspicion.

However, neither the works council nor the labour court of first instance approved the employer“s grounds for suspicion. The LAG Hamm upheld the judgment of the court of first instance, ruling that a suspicion has to be strong and supported by concrete evidence; mere speculation does not constitute sufficient grounds for suspicion. The circumstances need to be sufficiently suspicious such that it is virtually certain that the employee is the perpetrator and other parties can be ruled out. But the Court held that this was not the case here, stating that the assessment „highly probable“ is not enough and not a clear result, especially considering that further enquiries could have been made, e.g. collecting handwriting samples from all employees.

Extraordinary notice of dismissal, particularly on grounds of suspicion, should always be thoroughly prepared. 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

LAG Hamm: Dismissal on grounds of suspicion must comply with strict requirements

LAG Hamm: Dismissal on grounds of suspicion must comply with strict requirements

LAG Hamm: Dismissal on grounds of suspicion must comply with strict requirements

If an employer wants to issue notice of dismissal on grounds of suspicion, the circumstances need to be sufficiently suspicious such that it is almost certain the employee in question committed the relevant offence.

For extraordinary notice of termination of an employment relationship to be effective, there needs to be good cause justifying this course of action. We at the commercial law firm GRP Rainer Rechtsanwälte note that suspicion an employee has committed a serious breach of duty can constitute good cause justifying extraordinary dismissal. Having said that, the circumstances need to be sufficiently suspicious such that it is virtually certain the employee is the perpetrator based on the objective evidence available. That was the verdict of the Landesarbeitsgericht (LAG) Hamm [Regional Labour Court of Hamm] in its ruling of August 30, 2016 (Az.: 7 TaBV 45/16).

The case that came before the LAG Hamm concerned a particularly distasteful form of bullying. An employee at a senior citizens“ centre discovered a letter of condolence in her mailbox that included the handwritten comment „für Dich (Du bist die nächste)“ [for you (you“re next)]. Upon learning of the incident, the employer attempted to identify the culprit responsible for the letter. To this end, it collected handwriting samples from those employees it considered might be responsible. Based on these handwriting samples, an expert concluded that it was „highly probable“ the letter came from a longstanding employee. Notwithstanding this, the expert pointed out that beyond this there are also the categories of probability „very likely“ „virtually certain“. Despite this, the employer still intended to issue the relevant employee with notice of extraordinary dismissal on grounds of suspicion.

However, neither the works council nor the labour court of first instance approved the employer“s grounds for suspicion. The LAG Hamm upheld the judgment of the court of first instance, ruling that a suspicion has to be strong and supported by concrete evidence; mere speculation does not constitute sufficient grounds for suspicion. The circumstances need to be sufficiently suspicious such that it is virtually certain that the employee is the perpetrator and other parties can be ruled out. But the Court held that this was not the case here, stating that the assessment „highly probable“ is not enough and not a clear result, especially considering that further enquiries could have been made, e.g. collecting handwriting samples from all employees.

Extraordinary notice of dismissal, particularly on grounds of suspicion, should always be thoroughly prepared. 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

GRP Rainer Rechtsanwälte – Report on the distinctiveness of a trade mark

GRP Rainer Rechtsanwälte – Report on the distinctiveness of a trade mark

GRP Rainer Rechtsanwälte - Report on the distinctiveness of a trade mark

In order to be able to register a company symbol or logo as a trade mark, it needs to have the necessary distinctive character to distinguish it from the products and services of other businesses.

Trade marks are a valuable commodity for businesses. They create a high degree of brand recognition among consumers and distinguish from competitors“ goods and services. Once it has been registered as a trade mark, the company symbol or logo is protected and can then only be used by the trade mark“s proprietor. In general, marks that are capable of distinguishing one“s own goods and services from the products of other providers can be registered as a trade mark. In our experience at the commercial law firm GRP Rainer Rechtsanwälte, trade mark registrations are most likely to fail because attention is not paid to absolute grounds for refusal that preclude registration as a trade mark.

One such absolute ground for refusal is a lack of distinctiveness. A mark“s distinctiveness should place consumers in a position to be able to associate the origin of goods or services with a particular business and distinguish them from other providers“ products. If a mark consists of several elements, the distinctive character must apply to the mark as a whole. The average reasonably well-informed and circumspect consumer cannot be expected to analyze the mark. Purely descriptive information can also constitute an absolute ground for refusal, as there is a public interest against exclusive use in these circumstances. This may be the case, for example, with respect to descriptive terms such as „vegetarian“ or „vegan“.

Another criterium is that the mark be capable of being represented as a graphic. In the case of word marks or figurative marks, this is normally not a problem. That being said, this requirement also applies, for instance, to sound marks. It may, however, be possible for the mark to be represented by the notes in these cases.

Furthermore, any rights associated with existing trade marks cannot be infringed, nor can consumers be misled.

Company symbols or logos that satisfy these requirements can be registered as a trade mark, e.g. as a word mark, figurative mark, sound mark, colour mark, 3D mark or a combination of the above.

We at the commercial law firm GRP Rainer Rechtsanwälte have a great deal of experience in the field of trade mark law and can assess whether registering a mark is possible. We can equally be of assistance in enforcing or fending off claims in the event of trade mark violations.

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

GRP Rainer Rechtsanwälte – Experience drafting valid wills

GRP Rainer Rechtsanwälte – Experience drafting valid wills

GRP Rainer Rechtsanwälte - Experience drafting valid wills

Anyone who wants their estate to be organized in accordance with their wishes prepares a will. However, there are many pitfalls that can result in the will being ineffective.

If the testator fails to leave behind any testamentary disposition then the rules of intestate succession apply. Those who want their estate to be distributed differently from what the rules of intestate succession allow for should prepare a will or contract of inheritance. Despite this, it is still possible for disputes to emerge among the heirs concerning the validity of the will, which is why one ought to make sure when preparing the testamentary disposition that it is clearly and unambiguously worded to ensure that the final will is actually capable of being implemented in accordance with the wishes of the testator. We at the law firm GRP Rainer Rechtsanwälte have the necessary experience to exclude the possibility of potential mistakes in relation to a will and draw it up in such a way that it is effective.

The will can either be handwritten or drafted by a notary. While the formal requirements pertaining to a handwritten will are not substantial, one ought to nonetheless be mindful of a few basic things. For instance, a will should always have a heading which clearly indicates that this is the testator“s final will. It is also important to include a handwritten signature together with the relevant date and location. Furthermore, the entire text needs to be handwritten by the testator.

The testator can lay out who shall inherit as well as those who will be excluded from the inheritance. Notwithstanding this, any claims to the compulsory portion, e.g. from the spouse or children, have to be taken into account. The circumstances pursuant to which divestiture of the compulsory portion is possible are very limited.

It is possible to make amendments or additions to the will. It must be readily apparent that these stem from the testator. The safer option is to prepare a new will that automatically supersedes the old one. The date should always be specified to avoid disputes regarding which will is valid.

In the case of so-called „Berliner Testaments“ (Berlin wills) or joint spousal wills, on the other hand, making unilateral changes is not as easy because of their provisions“ strong binding effect. This should always be borne in mind in relation to a Berliner Testament.

The wording should always be unambiguous. For example, it is necessary to distinguish between an heir and a legacy. Only the heir becomes the testator“s legal successor with all of the associated rights and obligations.

Lawyers who are experienced in the field of succession law can advise on matters pertaining 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 – Evaluating a trade mark“s distinctiveness

GRP Rainer Rechtsanwälte – Evaluating a trade mark“s distinctiveness

GRP Rainer Rechtsanwälte - Evaluating a trade mark"s distinctiveness

Before a mark can be registered as a trade mark, it needs to be assessed whether it possesses the necessary distinctiveness vis-à-vis other vendors“ products and services.

Trade marks give rise to a high degree of brand recognition among consumers and are of great value to businesses. It therefore makes sense to have a mark registered with the Deutsches Patent- und Markenamt (DPMA), the German Patent and Trade Mark Office. This will protect the mark from being used by other businesses. We at the commercial law firm GRP Rainer Rechtsanwälte note that should trade mark rights be infringed, it is possible to take legal action against this.

Before being registered, it should first be assessed whether the mark actually meets the conditions required for it be registered as a trade mark. To this end, a number of criteria needs to be fulfilled. For instance, the mark needs to possess the necessary distinctiveness vis-à-vis other vendors“ products and services. The mark cannot be registered as a trade mark if it lacks this distinctive character. Moreover, the mark cannot fulfil a merely descriptive function in relation to the goods or services. For this reason, the DPMA checks before a mark is registered whether registration is precluded by a so-called absolute ground for refusal.

However, it is worth noting that it is not assessed whether another mark with the same or at least a similar form has already been registered, which is why it ought to be looked into prior to commencing registration whether registration would infringe the rights of an existing trade mark. The proprietor of the older trade mark is then able to object to the registration, with this potentially giving rise to formal warnings, injunction suits or claims for damages.

That is why it should always first be assessed whether there is an absolute ground for refusal precluding the mark“s registration as a trade mark and whether existing trade mark rights would be infringed. If this is not the case, marks consisting of words, numbers, colours or images can be registered as trade marks provided that they fulfil the necessary requirements. The same applies to auditory/sound marks.

Lawyers who are experienced in the field of intellectual property law can serve as competent advisors when it comes to registering and protecting a trade mark as well as asserting claims in response to trade mark violations.

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

LAG Rheinland-Pfalz: Employee needs to have good cause for termination with immediate effect

LAG Rheinland-Pfalz: Employee needs to have good cause for termination with immediate effect

LAG Rheinland-Pfalz: Employee needs to have good cause for termination with immediate effect

For termination of an employment relationship with immediate effect to be effective, there needs to be good cause. This is true whether notice of dismissal is issued by the employer or the employee.

Exceptional notice terminating an employment relationship with immediate effect is only possible if there is good cause. We at the commercial law firm GRP Rainer Rechtsanwälte note that the grounds need to be of such significance that it would not be reasonable to expect the contractual partner to continue the employment relationship even until the end of the notice period. This principle applies to both contractual parties, i.e. both the employer as well as the employee.

The fact that an employer does not have to accept an employee“s notice of termination with immediate effect is demonstrated by a ruling of the Landesarbeitsgericht (LAG) Rheinland-Pfalz [Regional Labour Court of Rhineland-Palatinate] from April 19, 2017 (Az.: 4 Sa 307/16). In the instant case, a trainee had given notice of termination with immediate effect and wished to continue his training at another establishment. His request prior to this to have his training contract rescinded had been rejected by the employer.

The trainee justified the notice of termination with immediate effect by arguing that he had repeatedly received negative comments from his tutor in relation to his work and that he had been bullied. It was claimed that comments such as „stell Dich nicht dümmer als Du bist“ (don“t act more stupid than you are) were made. The employer was said to have been informed of this. Neither the respective labour court nor the LAG Rheinland-Pfalz considered this as constituting good cause justifying termination with immediate effect.

The LAG held that blanked statements are not enough; notice of termination with immediate effect must be made in writing and specify the grounds for termination. It went on to say that the grounds need to be precise and not expressed generally or as slogans. The Court ruled that while statements such as „stell Dich nicht dümmer als Du bist“ are neither desirable nor beneficial, they do not amount to insults. As such, they ought to have been tolerated by the trainee and there was thus a lack of good cause.

Moreover, the employee should have issued a formal written warning prior to notice of dismissal so that the employer had the opportunity to put a stop to these disruptions to the employment relationship.

Termination of an employment relationship is a common source of contention. Lawyers who are experienced in the field of employment law can advise on all of the relevant legal aspects.

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

Dismissal with immediate effect for sending business documents to personal email address effective

Dismissal with immediate effect for sending business documents to personal email address effective

Dismissal with immediate effect for sending business documents to personal email address effective

Anyone sending business documents to his or her personal email address should expect to be dismissed with immediate effect. This comes from a ruling of the Landesarbeitsgericht (LAG) Berlin-Brandenburg [Regional Labour Court of Berlin-Brandenburg] from May 16, 2017.

An employer can terminate an employment relationship without notice if it has good cause to do so. We at the commercial law firm GRP Rainer Rechtsanwälte note that one serious ground which can justify exceptional notice of dismissal with immediate effect is sending business documents to one“s personal email address. That was the verdict of the LAG Berlin-Brandenburg (Az.: 7 Sa 38/17).

In the case in question, the employer had issued an employee with exceptional notice of dismissal with immediate effect. The employee had received a contractual offer from a competing business. Several weeks before his employment began, he started sending business documents relating to clients and projects to his personal email address. He subsequently received notice of immediate dismissal and, in the alternative, ordinary notice of dismissal. The parties argued about the effectiveness of the notice of dismissal with immediate effect as well as the employee“s claim for payment of two months“ outstanding wages.

The LAG held that the notice of dismissal with immediate effect had been issued effectively. In addition to breaching the principal obligations under the relevant employment contract, the Court ruled that breaching secondary obligations can also constitute good cause justifying dismissal with immediate effect, as the parties to an employment contract are obligated to mutually respect the rights, legal interests and other interests of their contractual partner. That is why the LAG concluded that the employee ought not to have taken possession of the business documents and information and reproduced these for non-business purposes, thereby committing a serious breach of his duty of respect.

The Court took the view that the employee had sent the business documents to his personal email address in order to prepare for his work with the new employer. The LAG found that this had neither occurred with the consent of the employer nor was it covered by provisions in the employment contract. It went on to say that this represented a serious breach of contract that also constituted serious grounds justifying exceptional notice of dismissal, it being no longer reasonable to expect the employer to continue the employment relationship until the end of the ordinary notice period.

Whether exceptional notice of dismissal is effective or not is always decided on a case-by-case basis. Lawyers who are experienced in the field of employment law can advise employers on matters pertaining to dismissals as well as in relation to other employment issues.

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

Rescinding acceptance of an inheritance on account of an error

Rescinding acceptance of an inheritance on account of an error

Rescinding acceptance of an inheritance on account of an error

It is only possible to rescind acceptance of an inheritance on account of an error concerning the estate“s over-indebtedness if the heir assumed that the estate was of value.

An inheritance can be rejected. This has to happen within a period of six weeks, with this period starting from when the heir becomes aware of his status as an heir. We at the commercial law firm GRP Rainer Rechtsanwälte note that if the inheritance has been accepted, the acceptance can be rescinded if the heir was mistaken about the value of the estate. Notwithstanding this, it is not sufficient for the purposes of rescission if the heir was aware that the estate could have been insolvent. That was the verdict of the Oberlandesgericht (OLG) Schleswig [Higher Regional Court of Schleswig] in its ruling of July 31, 2015 (Az.: 3 Wx 120/14).

In the instant case, the son had accepted the inheritance following the death of his mother. He had not been aware of the exact value of the estate. Nonetheless, he assumed that on balance it would probably be nil. Yet it became clear to him after examining the testatrix“s bank records that he had been mistaken and declared around three month following his mother“s death that he was rescinding his acceptance of the inheritance. In justifying this course of action, he stated that he had not been aware of the estate“s over-indebtedness. He had received the certificate of inheritance approx. four weeks prior to this.

The OLG Schleswig-Holstein held that the heir could not rescind acceptance of the inheritance due to an error relating to the estate“s over-indebtedness, as this kind of error presupposes that the heir assumed the estate was of value. But in the case in question, the heir was found to have been very much aware of the possibility that the estate might be insolvent.

However, the heir had proceeded on the assumption that the six-week period in which the inheritance could be rejected did not commence until the certificate of inheritance had been received. According to the OLG Schleswig, this represented a substantial error regarding the legal consequences of his conduct. For this reason, he was ultimately still able to rescind his acceptance of the inheritance, even though this really ought to be an exception to the rule.

Lawyers who are experienced in the field of succession law can advise testators and heirs on matters pertaining to estates.

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

OLG Bremen: Right reserved in a joint will to make amendments can be restricted

OLG Bremen: Right reserved in a joint will to make amendments can be restricted

OLG Bremen: Right reserved in a joint will to make amendments can be restricted

The right reserved in a joint will to make amendments can be made conditional on the approval of a third party. That was the verdict of the Oberlandesgericht (OLG) Bremen [Higher Regional Court of Bremen].

To provide the surviving spouse with financial security, spouses often draw up a joint will mutually appointing each other as sole heirs and usually their children as final heirs. We at the commercial law firm GRP Rainer Rechtsanwälte note that the joint provisions have a strong binding effect and cannot be unilaterally amended. Notwithstanding this, the surviving spouse can be granted the right to make amendments. On the other hand, a ruling of the Oberlandesgericht Bremen from August 30, 2017 shows that it is possible to restrict this right (Az.: 5 W 27/16).

In the case in question, a married couple had prepared a joint will and mutually appointed each other as sole heirs, with the children and grandchildren being designated as the final heirs. The surviving spouse was granted a right to make amendments pursuant to which he or she was allowed to make changes to all aspects of the will as well as establish new testamentary provisions. This right was restricted in that amendments could only be made if approved by the executor. After the wife had passed away, her husband prepared a notarized individual will that deviated from the joint will. For example, it appointed one of his daughters as a revisionary heir of the other children. He did not, however, coordinate this change with the executor.

A dispute subsequently emerged following the testator“s death. The daughter who according to the individual will was then only to become a revisionary heir demanded that the certificate of inheritance be revoked, arguing that her father“s individual will was invalid because the amendments had not been arranged together with the executor as required by the joint will. The OLG Bremen ruled in her favour, concluding that the individual will was invalid because the changes ought not to have been made without the executor“s approval.

The OLG clarified that a right reserved in a joint will to make amendments can be made conditional on the approval of a third party, as it was said to be possible to apply arbitrary restrictions to the right to alter joint provisions.

To avoid disputes among heirs, the provisions in a will or contract of inheritance should always be clearly worded. 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

Employer“s right to give instructions regarding business trips abroad

Employer“s right to give instructions regarding business trips abroad

Employer"s right to give instructions regarding business trips abroad

An employer“s executive prerogative entails being able to order business trips abroad if the employee commits himself to undertake this kind of service in his or her employment contract. That was the verdict of the Landesarbeitsgericht (LAG) Baden-Württemberg [Regional Labour Court of Baden-Württemberg].

In many industries, business trips come with the territory for a lot of employees. In the wake of globalization, business trips no longer mean simply travelling within Germany or to neighbouring countries but also further afield to countries such as China. We at the law firm GRP Rainer Rechtsanwälte note that according to a ruling of the LAG Baden-Württemberg from September 6, 2017 (Az.: 4 Sa 3/17)), an employer is able to order these kinds of business trips by virtue of its executive prerogative if the „versprochene Dienste“, i.e. the promised services, set out in the employment contract pursuant to sec. 611 para. 1 of the Bürgerliches Gesetzbuch (BGB) [Germany“s Civil Code] can naturally be associated with occasional foreign assignments.

The case before the LAG concerned an engineer who had been employed for about 30 years at a machine manufacturer and was rarely sent on business trips, and on those rare occasions only to countries nearby. However, he was then made to travel to China. From the employee“s point of view, the hotel, service and location of the accommodation left much to be desired. He viewed the trip as a form of victimization by his employer and brought a legal action to prevent his employer from being allowed to send him on business trips abroad, at least not to distant countries.

The LAG dismissed the claim, stating that although an employee need not accept intolerable accommodation while abroad, he can be sent on business trips. Moreover, the employer can set out in more detail the working hours, places of work and what the work entails as it reasonably sees fit as long as no contractual or collectively agreed provisions preclude this. The Court held that in this case the employer“s right to issue instructions in relation to the place of work was not limited by the employment contract due to the lack of a clear provision on this issue. The fact that the work owed by the engineer was not limited to a single location was said to be evident from a provision in the employment contract concerning compensation for travel expenses. The LAG went on to say that this kind of arrangement made no sense in the absence of an obligation to go on business trips, and gave leave to appeal.

When it comes to matters pertaining to the workplace or drafting employment contracts, 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