FAQ

Competition law

Comparative advertising means advertising praising. Thereby, one´s own offer is highlighted and connected with the referral to a person, good or service of one or several explicitly mentioned or at least recognisable competitors. As no one emphasizes disadvantages of one´s own service, this referral pursues the purpose of highlighting one´s own offer as being better. The guidelines for comparative advertising contain a catalogue of conditions. If the contained negative prerequisites are fulfilled, comparative advertising is admissible. The UWG implemented this “catalogue of conditions” with the amendments 2007 and 2015.

First of all, it has to be investigated whether these charges are legitimate. This can only be determined or at least assessed by consulting a lawyer with experience in competition law. The legal texts are often worded very generally and leave the court a lot of leeway for interpretation. Knowledge of supreme court decisions in comparable cases are the essential basis for the assessment of the situation and the defence at court.

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Copyright law

In copyright law it is not necessary to demand omission from somebody before suing him/her. It is assumed that someone who violates the copyright law once will do so again and thus, there is danger of recurrence. Thus, the danger of recurrence also exists after immediate termination of the violation. The defendant would have to prove that due to extraordinary circumstances there is no longer any danger of recurrence and thus, the action for injunction was not necessary.

Attention: In copyright law there is a strict liability – at least concerning the injunctive relief and removal – which means that the violator does not have to know that he/she is violating third parties´ rights.

There is no general valid answer to that question. This is about the protection of a personal right, the so-called “right in one´s own picture”. If the circumstances ensure this right, consent must be given by the person (respectively all persons) on the photo.

According to § 78 UrhG, pictures of people may not be published if thereby “legitimate interests of the depicted person are infringed”. However, this term was not determined in greater detail by law, which is why there is a large number of individual decisions. First of all, it should ensure that everyone is protected against misuse of his/her depiction in public, especially in the form of public humiliation and degradation. Photos of persons may not be presented in a negative context. This can refer to the picture in connection with a certain text. The term “negative context” is interpreted widely. Already the possibility of a false interpretation is enough to infringe the legitimate interest of the depicted person and the publishing thereby becomes inadmissible. On the other hand, it is not up to the depicted person´s subjective feeling, but an objective standard must be applied. If no legitimate interest in the injunction can be recognised, there is no injunctive relief.

The delimitation whether there is injunctive relief due to legitimate interest is not defined in detail. This makes the assessment of the possible outcome of a procedure quite difficult and increases the financial risk for the litigants. A guideline could be to ask yourself whether there could be any objective reason why the person could be against the publishing in this concrete form.

Deviating regulations apply to public figures. As from May 2018, the reinforced regulations of the Data Protection New Act must be considered.

More on this topic: Data Protection Law

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Criminal law

Appointing a lawyer is not mandatory, but it is purposeful to have an attorney at your side already in the first interrogation by the police. Sometimes the first questions are essential for the further proceedings. Whoever is not absolutely certain here, can exercise his/her right to remain silent and consult an experienced criminal attorney in time. A lawyer ensures your right to a fair lawsuit and will advise you regarding your possibilities of defence.

With the diversion, the public prosecution or the court has the possibility to waive the carrying out of formal criminal proceedings in certain offenses, if the matter has been clarified sufficiently and the suspect or defendant takes on responsibility for the offense. In the course of the diversion, the suspect resp. the defendant is offered the possibility to undergo burdensome measures (e.g. community service), to pay a fine or the like. In this case there is neither a conviction nor a formal sentence. There is no entry in the criminal record either. However, the diversion is stored court-internally for ten years.

Bodily injury is the infringement of a person´s bodily integrity in the form of an injury or a health impairment. This for example includes:

  • physical injury resulting from negligence
  • physical injury resulting from negligence under especially dangerous circumstances
  • malicious slight injury
  • malicious grievous injury
  • malicious injury with severe permanent damages
  • malicious injury with fatal consequence
  • malicious grievous injury

Bodily injury which was caused by negligence, without severe culpability of the offender and not persisting longer than 14 days or affecting near relatives of the perpetrator are not liable to prosecution.

On the other hand, those offenders, who for example caused a traffic accident under extremely dangerous circumstances (e.g. under alcohol influence), are punished more severely.

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Data protection law

According to the GDPR, notifying the data processing register (DVR) is no longer necessary. However, for the compliance with the regulation this now stipulates keeping a register regarding data processing for companies with more than 250 employees. For companies with less than 250 members, the documentation obligation only applies if

  • The data processing represents a risk for the rights and liberties of the affected people.
  • The processing does not only occur occasionally
  • The processing contains sensitive data resp. data on criminal convictions

Violations of the documentation obligations can result in penalties of up to 10 million EUR or 2% of last year´s world-wide annual turnover.

As of May 2018, the responsible person has to carry out a data protection impact assessment in advance, if a form of processing of person-related data causes an anticipated high risk for the affected person due to type, scope, circumstances and purpose of the processing. Here, an assessment of the consequences for the protection of person-related data must be carried out already in advance. This will especially be the case when new technologies in data protection are implemented. The data protection impact assessment must at least contain the following contents:

  • A systematic description of the processing procedures and their purpose including the employers´ interests
  • A purpose-related assessment of the necessity and reasonability of the processing procedures
  • An assessment of the risks and liberties of the affected people, which can result from the type of processing
  • Planned measures of risk minimisation, such as guarantees, safety precautions and procedures to protect person-related data

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Divorce, marital and family law

Children, who are not yet able to support themselves, have a right to be supported by their parents. As long as the child is under age, the parent who cares for the child claims child support from the maintenance debtor.

In case the parents live separately, the parent who does not live together with his/her child, must pay money for the child´s support. The amount of the support first of all depends on the net income and maintenance obligation for other children of the maintenance debtor. The percentages of net income of the maintenance debtor are scaled according to the child´s age. Possible payments in kind such as school costs or the financing of an apartment are added to the money claims. A minimum support (the so-called “Regelbedarf”) and a maximum support (the Playboy limit) must be considered.

Generally, even after a divorce, the joined custody of both parents is desired, provided the parents can agree on the fact in which parent´s household the child should mainly live. However, it is also possible that the spouses agree on the sole custody of one parent. If there is no agreement regarding custody within a certain appropriate period, the court must decide, whereby after a change of the circumstances a new regulation of custody can be applied for at court. The court must always consider the child´s wellbeing.

After the divorce, the claims for support, the division of marital property and the marital savings as well as the name changes and consequences regarding social insurance law and tax law have to be cleared. The claim for support largely depends on the sentence regarding culpability as well as the life circumstances of the spouses.

According to the law, there are four possibilities of divorce. Apart from the consensual and the contested divorce, there is the divorce for other reasons (among them the divorce without culpability of the spouse, e.g. due to illness) and the divorce due to the dissolution of the common household since at least three years. The prerequisite is that the marriage has broken down irretrievably.

Furthermore, a marriage can be dissolved or declared void. You can plead nullity if for example one of the spouses was not marriageable according to the law. The annulment of a marriage serves the purpose of dissolving a marriage which was contracted under misleading circumstances. A typical case would for example be marriage fraud by a marriage-impostor.

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General civil law

If it is a consumer business (a contract between entrepreneur and consumer), warranty claims can neither be excluded in the general terms and conditions nor in side agreements nor in single contracts. Only for used goods it can be expressly agreed that the 2-year-period is reduced to 1 year. A vehicle for example is regarded as used, if it was licensed for altogether 12 months for public traffic.

In no case can the regulations of guarantee replace or rescind the legal seller´s warranty.

If there is a deficiency which can be remedied with economically reasonable measures, the buyer must request an improvement, however the chosen remedy may not be disproportionate (unreasonable) for the deliverer. If the deficiency cannot be remedied, the remedy is infeasible or unreasonable for the buyer or if the improvement is refused or inappropriately delayed by the deliverer, depending on the relevance of the breach of contract, also redhibition (reverse transaction of the contract, thus product or service for money) or in the case of only minimal faults, price reduction can be asked for.

The seller is obliged to warrant flawlessness. Thus, warranty describes the liability for product and legal faults, regardless of culpability, which already exist at the time of delivery

If such a deficiency becomes obvious within the first 6 months, the basic assumption is that the fault already existed at the time of delivery and can be objected. After that, this assumption is no longer valid and it must be proven that the default already existed at time of delivery. Warranty claims generally expire after 2 years after delivery. For immovable property, the deadline is 3 years.

The guarantee on the other hand is a voluntary commitment that a product resp. a work maintains the agreed characteristics (e.g. functioning, little wear and tear etc.) for a certain time. The guarantee can also be connected to conditions and requirements. Generally, a guarantee is limited. The moment when the possible deficiency occurs is irrelevant in the guarantee. Upon the customer´s request, guarantees must be submitted in paper form or on a lasting digital data carrier. They must contain the reference that additional guarantees are ensured, which exceed the legal warranty and these must be described in detail. Guarantees must contain more rights for the consumer than the legal warranty already includes.

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Inheritance law

Generally, only close relatives are entitled to a nursing legacy. This entitlement exists if the person cared for the deceased person to a greater extent at least six months before his/her death. Should the caring relative have already received grants from the inheritance in order to compensate these services, or if he/she has received a payment already during the lifetime of this person, he/she is no longer entitled to a nursing legacy.

Both for the testament written by yourself as well as for the testament written by someone else there are formal requirements which have to be fulfilled by all means in order to make the testament valid.

In the self-written last will it is necessary that the testator writes the entire text him/herself and signs the text at the end, so that there is no doubt regarding the testator´s identity. No witnesses are necessary for the self-written testament.

If the will is not written by hand, but by typewriter, PC or in a third person´s handwriting, you refer to it as a will written by someone else, which is subject to stricter formal requirements. The testament must be signed by the testator and must contain a handwritten amendment which points out that the document actually really contains his last will.

Furthermore, it is necessary to have the will signed by three witnesses, who have to be present at the same time, whose identity has to be clarified in the document. The witnesses merely confirm that it is the testator´s last will. In their own writing they have to point out their witness status as “requested testament witness”.

People under 18 years of age, blind people, deaf people, mute people as well as people who are not able to speak and/or understand the language in which the testament is written and so-called “biased” people cannot act as witnesses.

Since January 1st, 2017, last wills are automatically repealed by dissolution of marriage, registered partnership or life partnership during the testator´s life, which would have benefitted a former spouse, registered partner or life companion. If the testator desires the last will to remain valid despite a legal divorce, he/she must order that – for example already in the last will.

With the inheritance law reform „Inheritance law new”, a legal “exceptional inheritance law” for the life partner has been introduced for the first time. This only becomes effective if no legal heir is entitled and the life partner lived in the same household for at least the three years before his/her death. If there was no common household, substantial health-related or profession-related reasons must have existed. The proof of a “typical connectedness for life partners” must be provided. As from January 2017, also a legal preference legacy for the life partner is included, which is based on the preference legacy of the martial partners. The life partner is entitled to it if the prerequisites mentioned above are fulfilled and the testator was neither married nor lived in a registered partnership at the time of death. Compared to the preference legacy of a marital partner it is however limited and only entitles the life partner the right of residence in the shared apartment for one year.

Generally, the legal share becomes due with the testator´s death, however it can only be claimed one year after his/her death. Furthermore, by order of the testator (or by heirs´ claim), the legal share can be deferred for the duration of five years or an instalment payment can be agreed on, in order to prevent certain financial burdens of the heirs in connection with the legal share law. In certain cases, the court can decide a prolongation of the deferral up to a maximum of ten years. The purpose of the deferral is to delay the moment of enforcement of the compulsory portion. The fact that it is already due at the time of death remains untouched. In this case, 4 percent legal default interest must be added to the legal share as from the moment of death.

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Labour law

Basically the employee can be dismissed during sick leave. However, despite the termination of the employment relationship with the ending of the period of notice, the employee is still entitled to sick pay for a period determined by law.

Costs of education can be reclaimed if these are costs which were actually paid and are provable by the employer (course costs, travel expenses, material costs, possible labour costs), which conveyed special theoretical and practical knowledge to the employee.

The refund must by all means be agreed in writing as soon as all necessary information regarding cost, content and duration of education are stated. Furthermore, the employee must be of full age at the time of the agreement, the commitment period can be a maximum of 5 years (in some exceptions 8 years) and the agreed sum must be refunded in regular monthly instalments.

The dismissal is the termination of the work relationship without prior notice. Thus it is only justified, if the employee´s behaviour impairs the employer´s interests so severely, that it is unacceptable to continue the employment up to the next possible date of notice. The dismissal must be expressed as soon as the employer gains knowledge of a reason for dismissal stated in the law. A later expression of dismissal is not effective, as the impairment cannot be regarded as infeasible then. However, the law allows the employer a short period of reflection between gaining knowledge of the reason for dismissal and the expression of dismissal, in order to obtain information on the legal situation. Furthermore, there is the possibility of releasing the employee from duty until the factual situation or the legal situation is clarified.

Attention must be paid in the “planned, reprehensible enticing away” of higher qualified employees for the purpose of using their experiences, services resp. relations with the new competitor, and to entice away customers of the former employer with the new employees. This represents a violation of the competition law.

Basically, the employer wants to avoid that informal operating capital such as customer contacts, special knowledge and strategies benefit a competitor company in the event of a job change. With the competition clause, the employee should be prevented from changing to a competitor immediately or after a certain time (transition period) or to found a competitor company him/herself.

The competition clause is only valid under certain circumstances and depends on the type of termination of the employment relationship. The employer can also claim his/her rights deriving from the competition clause if he/she terminates the employment relationship and states that he will pay the employee the remuneration he/she is entitled to during the period of limitation.

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Procedural law

In traffic accidents with personal injury, also criminal investigations must be made by the police. Already a broken hand is considered grievous bodily injury, which is a criminal offence. In an investigation procedure, the police investigate whether it is a common offense which has to be forwarded to the public prosecution. However, it can also be that the police come to the conclusion that due to the insignificance of the injury no further steps need to be taken and discontinue the preliminary proceedings.

More on the topic: Traffic Accident

Usually yes, because with that there is no entry in the criminal record. A previous conviction limits the right to vote and to conduct a business. Furthermore, most employers demand a flawless character certificate. The previous conviction especially has an influence on the sentence in repeated offenses. For example, already two slight physical injuries for unfortunate reasons can lead to a prison sentence.

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Real estate and building law

The neighbouring rights (rights and duties of property owners amongst each other) is comprehensively regulated by law.

Basically, a consideration duty applies and exposures that are typical for the location, such as the noise of playing children or the crowing of a rooster in the countryside, must be accepted by every property owner as long as it does not exceed the usual extent and does not considerably impair the use of the property. In the event of a considerable impairment of use, the neighbours can be asked to end the disturbances and to reimburse suffered damages. It is also possible to proceed against the neighbour, if he/she withdraws air or light with plants, which causes an intolerable impairment. Should digging work on the adjacent property cause a danger of collapse of one´s own property, there are injunctive reliefs and claims for compensations against the neighbour. However, there are no injunctive reliefs against an officially authorised installation, but only claims for compensation. Regarding possible building activities on the neighbouring property, the building regulations grant the owners of neighbouring properties party status, as long as their subjective-public rights (rights which serve the protection of public interests and the neighbours´ protection) are affected.

The assessed value is an estimate of the real estate which is drawn upon as a calculation basis for certain fees and duties and is determined upon request by the tax office with a notification.

On the other hand, the market value describes the price that can usually be reached by selling real estate in commercial transactions. The market value is determined under consideration of location, equipment and condition of the property, whereby there are different calculation procedures.

Since the tax reform 2015, the market value also serves as assessment basis for the land transfer tax, for example in endowments and inheritances. Usually, the assessed value lies significantly above the market value.

The owner of an apartment, who is at the same time joint owner of the property, must pay his/her share in all costs which arise in the use of the property.

Specifically, these are operating costs (sewage charge, costs for rubbish collection or property tax), administration costs, maintenance costs (costs for repairs of the outside of the building or necessary repairs) and expenditures for communal facilities (green areas, elevators).

Additionally, there are contributions for the reserve funds of the property, which are a provision for future expenditure and are paid into a separate account for exactly that purpose.

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Tenancy and housing law

Should a damage lead to an impairment of use, the tenant is generally entitled to a reduction of the rent.

However, the withholding of the rent or a part of it can lead to legal proceedings. The tenant can also continue to pay the rent, however with the reference that this only happens with reservations.

The deposit can serve as security for the landlord regarding claims against the tenant arising from the rent contract and must be agreed upon contractually.

Generally, the deposit including interest must be refunded to the tenant immediately, provided the tenant has not caused any damage to the rented object and is not in arrears with the rent. “Immediately” means that the landlord has a deadline of a couple of days to determine possibly existing claims against the tenant. It is not admissible to keep the deposit back until the operating costs or heating costs for the current year become due.

Generally, rent can be enforced at court. If the tenant is in no way willing to pay and if the tenant is in arrear with more than one month´s rent, the legislator offers the landlord to file a lawsuit for rent payment or action for eviction. Further legitimate reasons for an action for eviction are the detrimental use of the flat by the tenant or if he/she acts in a grossly inappropriate manner.

If the grounds for cancellation of rent contract or action for eviction are legitimate (e.g. being in arrear with the rent), the court will confirm the cancellation and eviction. If the tenant pays his/her debts until the end of the proceedings and if he/she is not grossly liable for the arrears of rent, he/she can avoid the cancellation of the rent contract, resp. the eviction.

If the tenant does not move out despite a legally valid eviction order, the landlord can request an eviction which the tenant has to pay for. If this is approved, the tenant will be evicted.

Provided the warm water tank is rented together with the apartment and is part of the apartment´s equipment, it is the landlord´s responsibility to repair or renew it. This generally applies to all rent contracts on rental apartments in pre-WW2 residential buildings which were built before 1945, for subsidized new buildings which were built after the second world war and for owner-occupied flats built after 1945.

There is an exception for apartments in detached houses and semi-detached houses as well as holiday flats and service accommodations. Here, the obligation of maintenance of the landlord for warm water tanks can be changed contractually under certain circumstances.

Do not confuse the maintenance of the warm water tank with its servicing. The tenant is responsible for this and must inform the landlord immediately after gaining knowledge of the damage and to request a repair.

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Traffic law

If someone plays soccer with friends and trips his opponent up and injures him/her, he/she could be confronted with claims for damages. For behaviour that is in accordance with the rules, for example if two players collide with their heads or also for “normal” rule violation there is no liability (no claims for damages), because the duty of care is not violated. However, if you kick your opponent´s leg in gross culpability, there can be a claim for compensation for pain and suffering. Then, in legal proceedings, the actual fault and a possible illegal behaviour, which would be the basis for claims for damages, must be investigated.

If you are innocently involved in an accident abroad (traffic accident, sports accident), this raises additional legal problems. Very often the cooperation with foreign authorities is very difficult due to the language barrier. For traffic accidents outside the EU, possible claims must directly be submitted to the foreign liability insurance. Very often, the effort is rather great due to the often problematic legal situation, but especially due to very slow practise of liquidation of foreign insurances. With accidents abroad but within the EU, the damaged party can even regulate the claims at the court of his/her home country – if this lies within the EU – and can sue the foreign vehicle liability insurance.

If you were involved in an accident with personal injury, you might have violated the rules of behaviour which is legally punishable. Should the prerequisites therefore be fulfilled, criminal charges can be filed because of bodily injury (§§ 83 and 84 StGB), negligent homicide (§§ 80 and 81 StGB) or maybe even additionally “abandoning an injured person” according to §94 StGB. If witnesses or people who become aware of the consequences of an accident do not provide assistance, they can be prosecuted for failure to render assistance in an emergency (§ 95 StGB).

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