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  • EuGH verlangt systematische Aufzeichnung der Arbeitszeit

    Arbeitgeber mu¨ssen ku¨nftig ein „objektives, verlässliches und zugängliches System“ zur Aufzeichnung der Arbeitszeit einfu¨hren. Die Entscheidung des Europäischen Gerichtshofs („EuGH“) zur Dokumentation von Arbeitszeiten vom 14. Mai 2019 (Az.: C-55/18) besitzt das Potential, die Arbeitswelt in Deutschland grundlegend zu ändern. Arbeitgeber mu¨ssen zuku¨nftig „ein objektives,...

  • Market Participants Welcome Clarity on German Real Estate Transfer Tax Reform

    Federal Ministry of Finance publishes draft tax bill outlining new measures effective 1 January 2020. The Federal Ministry of Finance has released its first draft tax bill on the contemplated real estate transfer tax (RETT) reform, setting out the general framework to which market participants must conform. German political debate has focused on strengthening German RETT laws for some...

  • FCJ Decision Updates Shareholders’ Resolution Requirement for Sale of GmbH Assets

    While a shareholders’ resolution is still required, the FCJ left open the question of whether notarization of the resolution is necessary. The German Federal Court of Justice (FCJ) decided on 8 January 2019 that Section 179a (1) of the German Stock Corporation Act (AktG) does not apply mutatis mutandis to a German GmbH (II ZR 364/18).

  • German Real Estate Sellers: Beware Rent Roll Risks

    Sellers may be liable for damages if actual rent is lower than stated in the rent roll, despite contractual exclusion of liability for defects. The Higher Regional Court of Cologne (HRC Cologne) has ruled that a property seller is liable for the difference between the rent shown in the rent roll attached to a property purchase agreement and the actual rent — irrespective of the general

  • German GDPR Fine Proceedings Conclude Favourably for Defending Company

    Germany’s first GDPR fine offers lesson for companies planning a data breach policy. In November 2018, Germany’s first fine under the General Data Protection Regulation (GDPR) was imposed — and it was much lower than many expected.

  • German Government Extends Foreign Investment Control To Certain 10% Minority Investments

    Changes to the German Foreign Trade and Payments Ordinance will impact investments by non-EEA investors. Key Points: ..The changes will allow the German government to scrutinize direct and indirect acquisitions of at least 10% of the voting rights of German companies that operate in the area of critical infrastructure or manufacture or develop certain military-related...

  • Tax Exemption Offers Relief in the German Restructuring Market

    German legislator introduces tax exemption for income resulting from debt waivers in restructuring scenarios with retroactive effect. On 23 November 2018, the German legislator approved legislation regarding tax exemption of cancellation-of-debt-income (COD income) resulting from debt waivers in restructuring scenarios. The tax exemption will apply with retroactive effect to debt...

  • German Federal Court Reinforces Informal Modifications of Property Purchase Agreements

    Ruling finds that parties may make informal modifications without notarization after the conveyance has become binding. The German Federal Court recently ruled that parties may informally modify a property purchase agreement if the conveyance has become binding — thereby confirming prior case law.

  • IFLR Cross-border Financing Report 2018 - Germany

    In the German market, market participants use cross border financing for a variety of different purposes, including acquisitions, refinancings and leveraged buyouts (LBOs). LBOs are usually financed by way of senior debt provided by banks or institutional investors, and/or by way of (high yield) bonds. In particular, with respect to the mid-cap market, the market share of debt funds providing...

  • Reform of the German Mietpreisbremse: A Breakthrough in Tenancy Law?

    Proposed reforms to the Mietpreisbremse aim at strengthening and solidifying restrictions on steep rent increases in German urban areas. After intense discussions within the ruling coalition, the German government this week adopted a draft bill regarding the reform of German tenancy law.

  • Potential Additional German Capital Gains Tax for Real Estate Investors

    Real estate investors with their corporate seat and management outside of Germany may be subject to German taxation on capital gains from share deals. Non-resident individuals (investing directly or through partnerships or funds) will primarily be affected.

  • Germany and Austria Release Guidance on New Size-of-Transaction Test in Merger Control

    Final joint guidance on new transaction value threshold published. The German Federal Cartel Office (FCO) and the Austrian Federal Competition Authority (FCA) have released a joint guidance paper (Guidance Paper) clarifying the application of their respective new thresholds for transactions. The release of the Guidance Paper on July 9, 2018 follows recent amendments to German and...

  • Law Firm Search in Connection With “Diesel Emissions Scandal” Lawful, German Federal Constitutional Court Says

    The recent Federal Constitutional Court decision severely limits legal privilege in German criminal investigations, but provides useful guidance to ensure privilege in limited circumstances. German government is called upon to provide adequate safeguards for internal investigations. The German Federal Constitutional Court has rejected constitutional complaints filed by Volkswagen AG,...

  • German Federal Court: Property Sellers Who Withhold Usage History Risk Liability

    FCJ decision finds that mere suspicion of contamination resulting from a sold property’s past use constitutes a defect. The German Federal Court of Justice (FCJ) has ruled that an abstract suspicion of contamination resulting from a sold property’s past use already constitutes a material defect — irrespective of the actual existence of any contamination.

  • Leaving Germany? Cross-Border Migration of German Real Estate Companies

    Cross-border migration of German real estate companies is generally possible, however its admissibility must be determined on a case-by-case basis. International real estate investors continue to favour German real estate, however, the same does not always apply to German real estate companies.

  • BaFin Publishes Statement on ICO and Token Regulation

    BaFin, the German Federal Financial Services Supervisory Authority, joins global regulators in releasing guidance for German ICO issuers and advisors. The growing number and commercial significance of cryptographic token offerings (so-called Initial Coin Offerings, or ICOs) has lead financial supervisory authorities across numerous jurisdictions to release statements regarding the...

  • The Acquisition and Leveraged Finance Review – Germany

    Acquisition and leveraged finance is a fascinating area for lawyers, both inherently and because of its potential for complexity arising out of the requirements of the acquisition process, cross-border issues, regulation and the like. It can also cut across legal disciplines, at times requiring the specialised expertise of merger and acquisition lawyers, bank finance lawyers, securities lawyers,...

  • Urban Mining Briefing Reveals Huge Global Potential

    Germany’s increasing shortage of natural resources and the corresponding mounting cost of extracting raw materials signals the need for alternative and innovative ways of collecting and recycling secondary raw materials. One promising method of securing potential secondary raw materials is “urban mining”, which aims primarily at reclaiming raw materials in urban areas through the reuse

  • New German Foreign Investment Rules Threaten Deal Timetables

    The German government has tightened the rules for its review proceedings for M&A involving non-EU investors, with changes to its German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) that significantly increase foreign investment oversight. The new rules, which came into force on 18 July 2017, introduce a new notification requirement for non-EU investment in...

  • German Government Increases Foreign Investment Oversight

    Changes to the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung – FTPO) will impact certain cross-border transactions. Key Points: ..The changes, which entered into force on 18 July 2017, allow the German government to scrutinize more broadly the direct and indirect acquisitions of German companies active in “particularly security-sensitive areas.”

  • Responsibility for German Nuclear Waste Shifts With Creation of State-owned Fund

    In early July 2017, operators of German nuclear power plants initiated the next step in the process of decommissioning by transferring €24 billion to the new state-owned fund for nuclear power plant waste disposal. The German state established the Fund for the Financing of the Nuclear Waste Disposal (Fonds zur Finanzierung der kerntechnischen Entsorgung) to transfer the nuclear waste...

  • German Utilities Score Billions on Constitutional Challenge to German Nuclear Fuel Tax

    On 7 June 2017, the Federal Constitutional Court of Germany (FCC) published a recent decision that declared the German Nuclear Fuel Tax Act (Kernbrennstoffsteuergesetz – KernbrStG) void due to the lack of legislative competence of the federal legislator (Bundestag) to enact the law constitutionally. The FCC argued that neither the Federation (Bund) nor the federal states (Länder) have the right...

  • German Court Delays Implementation of Unified Patent Court Legislation

    Germany’s constitutional court, the Bundesverfassungsgericht, has requested that the German President hold off on signing the legislation ratifying the Unified Patent Court (UPC) and the Unitary Patent (UP) following a constitutional complaint from an unnamed individual. The court did not disclose the nature of the complaint and only stated that it will investigate it as soon as possible in order

  • Germany: Insolvency Claw-back Reform Provides Some Relief for Creditors

    The reform of claw-back rights in German insolvency proceedings which provides for more legal certainty for creditors has become effective on 5 April 2017. Following their interpretation by German courts, the claw-back rights under German insolvency law left creditors with severe risks and legal uncertainties if they granted deferrals or other payment accommodations to distressed...

  • Germany Implements GDPR

    Well ahead of the implementation deadline for the European General Data Protection Regulation (GDPR), the German Parliament (Bundestag) passed a new Federal Data Protection Act (Bundesdatenschutzgesetz) on April 27, 2017. The Federal Council (Bundesrat) could confirm the Act before the summer, but may require further amendments.

  • Update: Upheaval in the German Restructuring Market: Need-to-Know Facts, Alternative Tools and New Draft Law

    To date, a debt waiver has been frequently used as a tool to successfully restructure German-based companies in financial difficulties. A decision of the German Federal Fiscal Court (Bundesfinanzhof) published on February 8, 2017 currently limits the debt waiver option. The court held that one of the main instruments used by tax authorities to grant relief from an otherwise...

  • German Supreme Tax Court Confirms Capital Income Qualification Under Management Equity Programs – Close to a Breakthrough, But…

    The German Supreme Tax Court has confirmed that a close to “market standard” Management Equity Program will be taxed on capital income principles. The decision (court number IX R 43/15) provides comfort with respect to most structural aspects of Management Equity Programs, but puts the spotlight on the entry valuation as most critical feature to get right. Structuring Management Equity Programs...

  • Upheaval in the German Restructuring Market – Need-to-know Facts and Alternative Tools

    To date, a debt waiver has been frequently used as a tool to successfully restructure German based companies in financial difficulties. A decision of the German Federal Fiscal Court (Bundesfinanzhof) published on February 8, 2017 currently limits such an option, given that it held that one of the main instruments used by tax authorities to grant relief from an otherwise...

  • Warranty and Indemnity Insurance – Is the Silver Bullet Beginning to Tarnish?

    Warranty and indemnity (W&I) insurance products have been marketed as a “silver bullet,” which can bridge the gap between a buyer’s wish to receive proper deal protection and a seller’s aim of a clean exit. However, as the market continues to mature, insurers are becoming cautious and terms are tightening.

  • German Nuclear Phase-Out Legislation is Partly Unconstitutional

    The Federal Constitutional Court of Germany (FCC) on December 6 ruled that while the phase-out of nuclear energy (enacted in 2011) is in compliance with the constitution, Germany’s energy suppliers which operate nuclear power plants have to be compensated “reasonably”. Although the German legislator is primarily obliged by the court ruling to draw up new provisions by June 2018, energy suppliers...

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