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GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London grprainer.com/en explains: In exercising its duty, the management board of a business has to take into account several obligations. In this context, the application of the level of care taken by a prudent and conscientious business manager is top priority. It must measure itself against this benchmark. Within the framework of possible litigation for damages, the burden of proof lies with the management board in cases of doubt. However, the BGH has already indicated in a few judgments that the management board’s duty of care is to be understood broadly for the purposes if its corporate activities.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London – www.grprainer.com/en conclude: That is what the Federal Labour Court ruled (File number: 10 AZR 177/12). The judgement came in a dispute between an employer and an employee. The employer had paid his employees, who were under an employment contract, additional voluntary benefits such as a Christmas bonus. The employer argued that these payments were made without a commitment for the future and should be considered on a case by case basis. The employer did pay a Christmas bonus from 2004 to 2008. He also claimed that these payments were expressly made with a further explicit notification that they constituted no future obligation. When in 2009, the employer paid no Christmas bonus due to financial circumstances, the employee filed an action.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London – www.grprainer.com/en conclude: Advertising is an important factor for the economic success of a business, but in certain sectors, advertising measures must be thoughtfully considered. In particular physicians and dentists must observe statutory regulations. When offering their services, dentists must comply with the provisions of their professional code of conduct. One case involving advertising by a dentist had to be decided by the Regional Court (LG) of Cologne (File number: 31 O 25/12). A dentist was offering his services at a discount via Internet coupon portals. The Dental Association regarded the dentist‘s actions as a violation of the professional code of conduct and sought an order to cease and desist.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London www.grprainer.com/en conclude: In its judgement of July 31, 2013 (File number: VIII ZR 149/13), the Federal Supreme Court (BGH) commented on the commercial use of a single family home contrary to the lease. In particular, business activities of a freelance or commercial nature that are recognizable from the outside, may under certain circumstances constitute a use which, in principle, the landlord does not have to allow without a corresponding agreement. In evaluating this, it does not matter whether the business carried out in the home has caused any concrete disturbance in the past or whether the tenant has tried to avoid such a disturbance. The very type and format of the commercial enterprise conducted in the home can already speak against a possible exemption from the principles involved.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London grprainer.com/en conclude: In its decision of September 20, 2013 (File number: 49 VI 335/12), The Municipal Court (AG) of Brandenburg commented on the interpretation of the appointment of an heir in the joint will of spouses. A will made by spouses in which they appointed “our children” as heirs should be interpreted to also include as final heir a child from the first marriage of one of the testators. The Court held that in their joint will, by using the term “our children”, they appointed all their offspring as final heirs. In particular, the Court held that they appointed all their offspring regardless of whether the offspring were joint children or the children of only one spouse. A different interpretation would only be justified if in their joint will, the spouses would have appointed only their “joint children” as final heirs.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London: Global Law Experts produces a handbook of the world’s leading lawyers. At present, lawyers from 140 countries have been included in Global Law Expert’s list of leading lawyers. Selection takes place by means of comprehensive research into the lawyers and law firms. Following a comprehensive examination, lawyers and law firms are included in Global Law Expert’s list of the world’s leading lawyers.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London grprainer.com/en conclude: If an investor buys shares in an investment company, the founding limited partner is liable, even though he uses a broker. This is what the BGH ruled in a judgement of May 14, 2012 (File number: II ZR 69/12). The BGH explained that under section 278, German Civil Code (BGB), the founding partner has to accept responsibility for the conduct of an investment broker who is appointed through a distribution firm with which the company is collaborating. This also applies when sufficient information is already provided in the prospectus because the partner is responsible for providing information as a future contracting party of the investor. At least, according to the Court, that applies if the partner in question is also authorized to make important decisions for the company.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London – grprainer.com/en conclude: In its decision of September 19, 2013 (File number: 12 U 86/13), the OLG ruled that such agreements are null and void if they are concluded directly with the insurance carrier, and if therefore the insurance contract and the cost equalization arrangements form one economic unit. In particular, the continued payment clauses should be qualified as general terms and conditions (GTC), and under certain circumstances they are invalid because they lack in transparency and come as a surprise to the customer.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London – www.grprainer.com/en conclude: On July 19, 2013, the Superior Court (OLG) of Hamm (File number: 27 W 57/13) ruled that the additional designation “Osnabrück” to the trade name of a GmbH & Co. KG was not misleading in the case before the Court. The Court explained that the measure of judging whether such an addition is misleading is the accepted practice, i.e. the understanding an average member of the addressed groups would reasonably develop. Case law predominantly assumes that the addition of a place name to a trade name – regardless of the firm’s actual location – is merely an indication if the firm’s head office, the geographic centre of its activities or the origin of the products it manufactures. However, a condition for adding a place name is that there must be an actual connection with the place that is named. For that, it is enough if a firm names a large city as long as the company’s head office is at least within that city’s direct economic region.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London – www.grprainer.com/en conclude: In its Decision of November 13, 2013 (File number: I ZR 143/12), the Federal Supreme Court (BGH) dealt with the question whether the requirements for achieving copyright protection are the same for works of applied art as for works of fine art. This followed an action by a toy designer who demanded further payment for a work of art she had designed – above and beyond the remuneration agreed upon and already paid for. She based this on the very successful sales of the toy she had designed. The lower courts had dismissed her action.