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New EU Directive on Cross-border Online Distribution of Television and Radio Programmes
Heuking Kühn Lüer Wojtek, October 2019

Almost at the same time as the much-noticed and controversially discussed Directive on Copyright in the Digital Single Market (see Update IP No. 12: Agreement on the Reform of the Digital Copyright Law) and barely noticed by the public, another European Directive on copyright law was adopted...

New Decision from the Court of Appeal Regarding the Possibility to Deprive Employees of their Duties within the Period of Notice
Simonsen Vogt Wiig AS, October 2019

In LG-2018-161055 the Court of appeal, in a case regarding preliminary action, gave an elaborated assessment regarding under what conditions an employer can deprive an employee of his or her duties in the notice period.   Introduction An employer only exceptionally has the right to deprive a dismissed employee of his or her duties within the period of notice. For this to be possible, there must be "particularly compelling reasons"...

The Environment Bill 2019 - Water, Water, Everywhere
Shoosmiths LLP, October 2019

Part 5 of the Environment Bill, contains a number of disparate proposals relating to water – which could have major implications for many. Senior associate Joanne Sear and solicitor Grace Mitchell take a look at some of the key points in the Bill. Water resources planning According to its explanatory notes, the Bill is intended to “improve… water resources planning” and “facilitate… collaborative regional planning”...

Tax Issues to Consider when Providing E-Services to Russian-Based Clients
ALRUD Law Firm, October 2019

With effect from 1st. January 2019, Russia amended the rules relating to VAT taxation of electronic (online) services (e.g. provision of rights to use software, streaming music, films, gaming services, hosting, website and webpage support, etc.). The new regulations raised a number of questions that are considered in this article...

Warranty & Indemnity (W&I) Claims - Some Lessons to be Learned So Far
Simonsen Vogt Wiig AS, October 2019

According to the recent insurance broker's Transactional Risk Insurance Claims Study1, the number of W&I claims have increased by 293% between 2016 and 2018 in Europe, the Middle East and Africa (the EMEA-region). One explanation is of course the triple increase W&I policies issued over the same period. The W&I market have become more mature than what it was just some few years back...

Employment: Trends & Developments
Heuking Kühn Lüer Wojtek, October 2019

The labour and employment sector has once again seen many changes – both in terms of the initiatives of the legislator as well as changes in the way the sector works. One important change has been the implementation of the Law on Protection of Business Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen – GeschGehG). The economic relevance of business secrets is very high...

Employment: Law & Practice
Heuking Kühn Lüer Wojtek, October 2019

1. TERMS OF EMPLOYMENT 1.1 STATUS OF EMPLOYEE In Germany, an employee (Arbeitnehmer) enjoys a special status that is described as the personal obligation to perform work upon the employer’s instructions, without entrepreneurial risks and in a situation of economic dependence (to a certain degree) on the employer...

Facebook May be Required to Seek and Erase Illegal Content Worldwide
Heuking Kühn Lüer Wojtek, October 2019

The Court of Justice of the European Union (ECJ) has ruled, upon submission by the Austrian Supreme Court (Oberster Gerichtshof, OGH), with the decision of 3 October 2019 (Case C-18/18), that hosting providers, in this case Facebook, may be required by a court to seek and erase content which is identical or, under certain circumstances, equivalent to information previously found to be unlawful...

CJEU: Pre-checked consent to the use of cookies is inadmissible
Heuking Kühn Lüer Wojtek, October 2019

On October 1, 2019 the Court of Justice of the European Union (CJEU) ruled that pre-ticked boxes do not constitute a valid consent by web users prior to storing cookies on their devices (Verbraucherzentrale Bundesverband e.V. and Planet49 GmbH; Case C-673/17). The decision follows a challenge by the German Federation of the Consumer Organisations against the use of a pre-ticked checkbox which had, by default, consented to cookies on behalf of the user...

Countries Can Order Facebook to Take Down Content and Restrict Worldwide Access
Simonsen Vogt Wiig AS, October 2019

On 3 October 2019, the European Court of Justice (ECJ) published its groundbreaking ruling in case C-18/18 establishing that the EU enables national courts to order information societies such as Facebook to remove defamatory information. This also encompasses equivalent versions of previously declared illegal information. In doing so, the ECJ effectively held that EU law does not preclude injunctions issued by national courts from producing worldwide effects...

Competition Law Implications of Search Engine Advertising and Agreed Negative Listing Between Competitors
Simonsen Vogt Wiig AS, October 2019

There is an ongoing controversy relating to search engine advertising. In particular regarding the legality of purchasing search terms incorporating third-party trademarks. In seeking a reasonable legal standard, this article discusses the latest legal development in trademark, unfair trading practices, marketing, and competition Law...

Employers are Not Obligated to Notify Employees of Expiring Vacation Entitlements during Long-Term Illnesses
Heuking Kühn Lüer Wojtek, September 2019

In its July 24, 2019 judgment (Case: 5 Sa 676/19), Hamm State Labor Court issued a ruling as to whether employers are obligated to also notify employees who are out of work due to long-term illnesses that their vacation entitlement will expire by December 31 of the calendar year or by March 31 of the subsequent year if those employees fail to take their vacation days. The court denied this on convincing grounds. The final verdict, however, will come from the Federal Labor Court...

The Works Council’s Right to Inspect Payroll with Gross Salaries Broken Down by Employee Names
Heuking Kühn Lüer Wojtek, September 2019

The works council may demand access to the employees’ payroll. Considerations under data protection law do not require anonymization or pseudonymization. Federal Labor Court, May 7, 2019 – 1 ABR 53/17   FACTS OF THE CASE A company granted the works council access to its electronic employee salary file – the payroll showing gross salaries, while stripping employees’ names from the list, thus in anonymized (more correctly: pseudonymized) form...

No General Prohibition of Deterioration for Retirement Benefits in Cases of Transfer of Businesses
Heuking Kühn Lüer Wojtek, September 2019

Federal Labor Court, June 12, 2019 - 1 AZR 154/17.  There is no general prohibition of deterioration that applies to retirement benefits in the case of one or several transfers of businesses pursuant to Section 613a German Civil Code. This has now been confirmed by the Federal Labor Court in a recent decision...

No Granting of Half Days of Leave
Heuking Kühn Lüer Wojtek, September 2019

Half days of leave granted by the employer may be claimed again by the employee due to inadmissible fulfillment of the vacation entitlement. Baden-Württemberg State Labor Court, March 6, 2019, 4 Sa 73/18 Employees may not demand half days of leave from employers as part of their statutory minimum leave. If employers nevertheless grant half days of leave, this does not comply with their obligation to grant proper leave, at least as far as the minimum leave is concerned...

Warning Under Industrial Constitution Law – No Entry in the Personnel File
Heuking Kühn Lüer Wojtek, September 2019

Stuttgart Labor Court, April 30, 2019 – 4 BV 251/18 Warnings by which employers are reprimanding the exercise of office by works council members and threatening sanctions in accordance with Section 23 Works Constitution Act (warnings under works constitution law) may not be entered in the personnel files of works council members irrespective of their lawfulness...

Effects of a No-Deal Brexit for UK Employees in Germany
Heuking Kühn Lüer Wojtek, September 2019

After Brexit has already been postponed several times, the next deadline will now expire on October 31, 2019. With the new Prime Minister at the helm, it is becoming more likely every day that the UK will leave the EU without a withdrawal agreement entering into force. Obviously, UK citizens who live and work in Germany are particularly affected. The same also applies to employers in Germany employing UK citizens...

The Norwegian Supreme Court Delivers its Judgement in the Fosen-Linjen Case
Simonsen Vogt Wiig AS, September 2019

The Norwegian Supreme Court delivered its judgement in the so-called Fosen-Linjen case 27 September 2019 (HR-2019-1801-A). The Fosen-Linjen case has been much debated the latter years, inter alia because it has been the only Norwegian case to have been subject to two EFTA Court referrals, cf. the decisions of the EFTA Court in cases E-16/16 (Fosen-Linjen I) and E-7/18 (Fosen-Linjen II)...

Presumption of Urgency of Section 12 (2) UWG (Presumably) Not Applicable to Proceedings Under the GeschGehG
Heuking Kühn Lüer Wojtek, September 2019

In its decision of 8 August 2019 (Ref.: 29 W 940/19), the Munich Higher Regional Court commented for the first time on the German Act on the Protection of Business Secrets (GeschGehG). In court proceedings in which claims arising from the law which came into force at the end of April 2019 are asserted, urgency should not be presumed pursuant to Section 12 (2) German Law against unfair competition (UWG) (analogously)...

Do Temporary Agency Workers have the Same Right to Bonus Payments as Permanent Employees?
Simonsen Vogt Wiig AS, September 2019

A recent court ruling from Gulating lagmannsrett (Court of Appeal) states that bonus payments are not covered by the principle of equal treatment for temporary agency workers, cf. LG-2018-162656. The ruling has been appealed, and the result of the appeal to the Supreme Court will be of great importance to many companies and employees of temporary work agencies...

Embedding "Like" Buttons: What are the GDPR Consequences for Website Operators after the Fashion ID Ruling?
ALTIUS/Tiberghien, September 2019

 A website operator who has embedded a Facebook “like” button on its website qualifies as a “joint controller” together with Facebook and so can be held liable for the collection and transmission of data from the operator’s website visitors to Facebook.  Background Fashion ID is a German online clothing retailer. Its website contained the famous Facebook ‘Like’-button...

Back to School with Data
COBALT, September 2019

One of the latest and widely discussed GDPR fines in the amount of approximately EUR 20,000 was imposed in Sweden for face recognition in schools. The municipality tried using the new technology to make monitoring the attendance of schools easier. Nevertheless, it failed to ensure a legal basis and proper impact assessment for such data processing...

Lump Sum Remuneration for Overtime based on a (General) Works Agreement
Heuking Kühn Lüer Wojtek, September 2019

In its decision of June 26, 2019 (ref. 5 AZR 452/18), the 5th Senate of the Federal Labor Court (BAG) dealt with the requirements and limitations of overtime lump sum remuneration clauses in works agreements. So far, the decision is only available as a press release. FACTS OF THE CASE The plaintiff is a union secretary at the ver.di trade union. The parties have agreed a weekly working time of 35 hours and "trust-based working hours"...

No Expiry of Unreduced Vacation Entitlements during Parental Leave
Heuking Kühn Lüer Wojtek, September 2019

BAG of March 19 2019 - 9 AZR 495/17 The employer may reduce the vacation entitlement of a worker on parental leave by one twelfth for each full calendar month. If he does not exercise his right to reduce or if he can not prove the declaration of reduction, vacation entitlement does not expire during parental leave in accordance with Sec. 7 para. 3 BUrlG [German federal vacation law] at the end of the vacation year or the transfer period (31 March of each year)...

The Works Council has no Entitlement to the Provision of Personnel Turnover Statistics
Heuking Kühn Lüer Wojtek, September 2019

LAG Schleswig-Holstein of February 26 2019 - 2 TaBV 14/18 The works council has no entitlement to the Provision or Inspection of Personnel Turnover Statistics or Appendices thereto, if the Employer only uses these for Statistical Purposes and for Internal Controlling. The personnel turnover statistics in this case are not an instrument for personnel planning...

 

 

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