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  • News Alert FTAPO

    A. From Toothless Tiger to Apex Predator? An Overview of the Effects of the German Investment Control in Accordance with the Foreign Trade and Payments Ordinance - (Außenwirtschaftsverordnung) - Kuka, Aixtron, and Osram Licht (Ledvance) — all well-known examples of successful or last-minute prevented takeovers of German companies by Chinese investors.

  • Cross-border Investigations: When Are Documents Developed in the Course of an Internal Investigation Protected by Legal Privilege?

    Introduction - A recent decision by Germany’s Federal Constitutional Court (Bundesverfassungsgericht) (“FCC”) has renewed important questions with respect to legal privilege, its varied conceptual and practical scopes and application in different jurisdictions, and the implications of these differences for multi-jurisdictional internal investigations.

  • German National Security Review of M&A Transactions – New Checkpoints for Acquirers from the United States, China, Japan, and Other Countries Outside of the EU

    With the 9th amendment of the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) (“FTAPO”) adopted on 18 July 2017, the German Federal Government has specified and extended its powers to review and approve the acquisition of companies by investors outside of the European Union (“EU”) and, in the event of companies being active in the military sector, outside of Germany.

  • BaFin Restricts CFD Trading in Germany

    On 8 May 2017, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht-“BaFin”) issued a General Administrative Act (Allgemeinverfügung) restricting the marketing, distribution and sale of financial contracts for difference (“CFDs“) insofar as they may give rise to an additional payments obligation for investors (VBS 7-Wp 5427-2016/0017). With the...

  • New Merger Control Thresholds in Germany

    The German legislator just paved the way for the introduction of new merger control filing thresholds. Based on a recently adopted amending law to the German Act against Restraints of Competition, Germany’s merger control notification regime went through a remarkable shift – adding a so-called value of transaction test while thus far only the turnover of the parties was considered. The revised...

  • Reforming the Financial Markets in Germany—Update on the Implementation of MiFID2

    The Ministry of Finance in Germany has just concluded a consultation for a 379-page draft bill for the Second Financial Markets Reform Act (Zweites Finanzmarktnovel-lierungs­gesetz) (the “Act”) that aims to transpose, amongst others, the European Markets Infrastructure in Financial Instruments Directive, known as “MiFID2” in Germany. Together with the recent transposition of, amongst others, the...

  • German Government’s Enhanced Scrutiny of Recent Chinese-German M&A Transactions – A Turning Point or Just a Temporary Resentment?

    So far this year, Chinese companies have announced a record-breaking US$11 billion of M&A transactions in Germany. However, the decision of the German Federal Ministry of Economics and Technology (“FMET”) to have a more in-depth review of two recent acquisitions of German companies by Chinese acquirers is casting a shadow over this recent trend.

  • Retail Distribution of Credit Linked Notes to Be Banned in Germany

    The German Federal Financial Supervisory Authority (Bundesanstalt für Finanz­dienstleistungs­aufsicht, BaFin) plans to issue a ban on the retail distribution of credit linked notes in Germany. For this purpose, on July 28, 2016, BaFin published a draft general ruling (Allgemeinverfügung) by which the distribution of structured notes (certificates) that are linked to credit risks (i.e., credit...

  • New German Fund Taxation Rules

    After many years of discussions and various proposals that were later dismissed, the German legislature last month finally passed a law that substantially amends the principles of fund taxation in Germany. This Investment Tax Reform Act, the main body of which will come into force in 2018, will also have an impact on foreign funds (including UCITS and AIFs) that offer their interests to German...

  • German Coalition Leaders Agree on Reform of Temporary Agency Work Regulations

    What has happened? - On May 10, 2016, the leaders of the German government coalition agreed on a reform of the German legislation dealing with temporary agency work. The agreement follows months of dispute between the conservative and social-democrat coalition parties on the extent and substance of the reforms.

  • Real Estate Transfer Tax Rates

    This alert is intended to give an overview of the current real estate transfer tax rates and planned increases thereof in the various federal states of Germany. The information has been assembled with great care. However, no liability for the accuracy of any information provided is accepted and we recommend inquiring with the competent authority. Please see full alert below...

  • Expanded Protections for Documents Developed in the Course of Internal Investigations and Located at the Client’s Business Premises

    A ruling by the Regional Court (Landgericht) of Braunschweig published late last year has strengthened the protections of confidential information gained or developed in the course of internal investigations.

  • Germany Tightens Voting Rights Disclosure - New rules increase complexity of voting right disclosures and impose

    On October 1, 2015, the German Parliament adopted the national “Act Implementing the EU Transparency Directive Amending Directive (2013/50/EU)” (the “Act”). The aim of the directive is to harmonize the regime for notification of major holdings and to improve compliance throughout the EU.

  • Transfer of Employees’ Personal Data from Germany to the United States under German Data Privacy Law

    Following the ECJ’s decision in the “Schrems” case which has invalidated the Safe Harbor framework multinational corporations may now face profound privacy law related compliance issues in a multitude of jurisdictions. In the Schrems decision, the ECJ held that the widespread practice of U.S. companies to self-certify under the Safe Harbor standards in order to legitimize data transfers from EU...

  • Statutory Minimum Wage (Mindestlohn) in Germany

    Germany will introduce a statutory minimum wage of EUR 8.50 per hour, effective January 1, 2015. Minimum wages are already in place in some industries; for the first time in Germany, however, the new minimum wage will cover almost every employment relationship. Only very limited transitional provisions may allow employers to remunerate employees below the minimum wage, with exceptions for special

  • For the first time Germany extradites former executive to the US on antitrust charges

    Romano Pisciotti, an Italian national, was extradited from Germany in April 2014 to personally face criminal charges in the US for participating in a worldwide cartel. This is the first time an individual has been extradited from Germany to the US on antitrust charges.

  • Islamic Finance in Germany: Roundtable Report

    On 4 June 2013, Rüdiger von Hülst and Matthias Grund of the Berlin and Frankfurt offices of international law firm K&L Gates hosted a roundtable in relation to the future role of Islamic finance in the German economy.

  • New Legislation on RETT Blocker Structures

    For some time now legislative bodies have been discussing the implementation of rules according to which the acquisition of “economic” (wirtschaftliche) participating interests of more than 95 % on a consolidated basis in a company or partnership holding real estate shall, in future, be subject to real estate transfer tax. The aim is to “combat” holding structures which, up until now, have...

  • Readjustment of Taxation of Free Floating Dividends and of Fiscal Unity – Current Legislative Procedures

    Reform of taxation of free floating dividends for corporate income tax purposes The German Parliament (Bundestag) and the German Federal Council (Bundesrat) reached an agreement regarding the taxation of free floating dividends received from holdings of less than 10 % (Streubesitzdividenden). In future and with respect to companies, these dividends shall be subject to general taxation.&

  • German Supreme Court renders ipso facto clauses invalid and unenforceable – Roma locuta, causa finita?

    An ipso facto clause is a contractual provision which states that a contract or agreement automatically terminates or may be terminated by a party if bankruptcy proceedings have been instituted over the other party’s assets. For a long time it was not clear whether such ipso facto clauses are valid and enforceable in Germany (see Sec. 119 of the German Insolvency Code). The...

  • Real Estate Transfer Tax Rates - February 2013

    This alert is intended to give an overview of the current real estate transfer tax rates and planned increases thereof in the various federal states of Germany. The information has been assembled with great care. However, no liability for the accuracy of any information provided is accepted and we recommend inquiring with the competent authority.

  • Draft bill for combating RETT blocker structures

    As from 2013: Real Estate Transfer tax on (in)direct economic accumulation of shares? Draft bill aiming at combating so-called RETT blocker structures - So far, all shares in a company holding German real estate can generally be transferred to an acquirer without triggering German real estate transfer tax (“RETT”) provided certain additional entities with minority...

  • New Double Taxation Agreement Between Germany and Taiwan

    Introduction - The “Agreement between the German Institute in Taipei and the Taipei Representative Office in the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital” and the respective protocol (together hereafter the “DTA”), as signed end of 2011 by representatives or both parties, have now been...

  • Legal Privilege for Information in Investigations in Germany – New Developments

    For companies conducting an internal investigation of potential wrongdoing in Germany, one important consideration is to protect the confidentiality of the information developed. Given court decisions in Germany which hold that the work of inside counsel is not covered by the attorney-client privilege, companies generally turn to outside counsel to conduct internal investigations, in part to...

  • Real Estate Transfer Tax Rates

    This alert is intended to give an overview of the current real estate transfer tax rates and planned increases thereof in the various federal states of Germany. The information has been assembled with great care. However, no liability for the accuracy of any information provided is accepted and we recommend inquiring with the competent authority. Please see full alert below...

  • New Voting Rights Disclosure Obligations for Security Rights in Shares in Listed Companies

    Under the recently tightened voting rights disclosure rules in Germany, banks and collateral agents, as well as other lenders and security holders, may now be required to disclose their security rights over shares in companies listed on the regulated markets in Germany. UniCredit, for instance, recently disclosed its pledges over shares in Hugo Boss that are held as collateral for the financing...

  • “Abandon hope all ye who enter here?” – First Practical Experiences with the New German Bond Restructuring Act

    In response to a need for a modern bond restructuring law permitting extensive financial restructurings outside formal insolvency law proceedings, the German legislator introduced a new German Bond Restructuring Act (Schuldverschreibungsgesetz, the “2009 Act”) which became effective in August 2009. The 2009 Act replaced the German Bond Restructuring Act of 1899 (the “1899 Act”) which was in need...

  • New German Insolvency Law Rules to Facilitate Restructurings, Debt-Equity Swaps and Debtor in Possession

    Introduction On 1 March 2012 new German insolvency law rules will come into effect which are intended to facilitate and promote debtor-in-possession proceedings and the use of restructuring plans and debt-equity swaps. In addition, the new insolvency law will introduce new rules to enhance creditor autonomy and control, in particular over the appointment of the insolvency...

  • Real Estate Transfer Tax Rates

    The alert is intended to give an overview of the current real estate transfer tax rates and planned increases thereof in the various federal states of Germany. The information has been assembled with the utmost care. However, no liability for the accuracy of any information provided is accepted and we recommend inquiring with the competent authority. Please see full chart...

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