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- Setting the controllers' conduct expectations during cyber-resilience exercises
Cyber-resilience remains an EU-wide supervisory priority and one also advanced equally by central banks in their financial stability role. In December 2018, we published our analysis on the European Central Bank’s (ECB) new Cyber-Resilience Oversight Expectations (the CROE) for financial market infrastructures (FMI). This built upon its 2018 launch of the TIBER-EU Framework on “ethical red-teaming” by setting standards on what red teams should do and how eligible providers of recognized TIBER tests ought to be selected.
- German withholding taxes in “total buy-out” IP agreements
In a recently published decision, the German Federal Tax Court (Bundesfinanzhof, BFH) clarified for the first time that a remuneration for the complete transfer of rights in the context of a “total buy out” against a one-off flat-rate remuneration by a foreign rights holder can trigger a deduction obligation for taxes on the part of the domestic contracting party.
- Tightening of German Real Estate Transfer Tax Rules for Share Deals
The Situation: Under the German real estate transfer tax ("RETT") law, RETT is not only triggered on the direct acquisition of German properties, but also in case of share deals involving companies with German properties, if certain acquisition or investment thresholds are exceeded. The RETT rules are expected to be tightened significantly for share deals as of January 1, 2020. The Result: If implemented, the new rules will make it significantly more difficult to avoid RETT in case of share deals. In addition, in order to assess RETT implications of any direct or indirect share transfers in companies owning German properties, it will be necessary to analyze all previous share transfers within the last 10 years.
- Price parity clauses and Booking.com – a more unified approach or a reminder of diverging opinions?
On 4 June 2019, the Düsseldorf Higher Regional Court overturned a 2015 decision of the German national competition authority (the ‘Bundeskartellamt’) to ban Booking.com from imposing ‘narrow’ price parity clauses in contracts with German hotels. Price parity clauses (also known as ‘most-favoured nation’ clauses) have been a topic of debate among competition regulators across Europe.
- ESMA and national competent authorities in EU-27 launch common supervisory action (CSA) from second half of 2019
The European Securities and Markets Authority (ESMA) announced on June 3, 2019, that it will review how national competent authorities (NCAs) apply regulatory requirements applicable to securities selling in the EU. Investment firms must be prepared to respond to questions by their regulator. Ultimately, this initiative may require significant changes to the selling practices for securities in the EU.1 This Client Alert looks at how the CSA might unfold, what firms may want to do to prepare and how this use of ESMA’s powers may go well beyond what firms may have experienced in national-led thematic reviews and/or dedicated action.
- Government Commission publishes revised Corporate Governance Code
Following consultations, the Government Commission on the German Corporate Governance Code (the "DCGK") adopted the new version of the Code on May 9, 2019 and published it on May 22, 2019 (new version of the DCGK (in German)). The new version of the Code will not be submitted for publication to the German Federal Ministry of Justice and Consumer Protection (the "BMJV") before the Act on the Transposition of the Second Shareholder Rights Directive ("ARUG II") has come into force. Once the new Code is published by the Ministry in the German Federal Gazette (Bundesanzeiger), it will enter into force, replacing the existing Code as amended on February 7, 2017. ...
- EU Banking and Finance Regulatory Newsletter - May 2019 - Key regulatory developments in Germany
We present you with a selection of key regulatory developments in Germany.
- Germany: Filling a trademarked dispenser with goods from third-party manufacturers may constitute trademark infringement – Tork
In the case “Tork”, for which the judgement was released earlier this year, the Federal Supreme Court (FSC) had to decide to what extent “aiding and abetting trademark infringement” is constituted if paper towels are advertised as being suitable for a particular dispenser.
- Germany: Trademark exhaustion not overcome by unusual resale packaging – beauty for less
In its case “beauty for less”, for which the judgement was released earlier this year, the Federal Supreme Court (FSC) ruled that a trademark owner cannot oppose resale advertising with the argument that the advertising is unusual in the industry sector.
- Was Bedeuted Das Eugh-Urteil Zur Arbeitszeiterfassung Für Arbeitgeber?
Nur selten finden Entscheidungen des Europäischen Gerichtshofs (EuGH) so viel mediale Aufmerksamkeit wie das Urteil zur Arbeitszeiterfassung vom 14. Mai 2019: Der EuGH hat entschieden, dass die Arbeitszeitrichtlinie (EU-RL 2003/88) und die EU-Grundrechte-Charta ein „objektives und verlässliches System“ zur Erfassung von Arbeitszeiten erforderten. Anlass der Entscheidung war eine Vorlage zum spanischen Arbeitszeitrecht, welches – ähnlich dem deutschen Arbeitszeitgesetz (§ 16 Abs.2 ArbZG) –allein für Überstunden eine Pflicht zur Aufzeichnung vorsieht...