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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...

Exclusion of Fixed-Term Employees from a Remuneration Supplementation Violates EU Law
Heuking Kühn Lüer Wojtek, September 2019

The prohibition of discrimination against fixed-term employees has already been the subject of a large number of decisions by both the ECJ and the BAG [German Federal Labor Court]. According to these decisions, fixed-term workers may not receive poorer terms of employment compared to comparable permanent employees simply because of their fixed-term employment status. Rather, such would require substantive justification...

Search of a Company Computer by the Employer - Prohibition of Exploitation for Court Submissions?
Heuking Kühn Lüer Wojtek, September 2019

The German Federal Labor Court (BAG) ruled by judgment of January 31, 2019 (ref. no. 2 AZR 426/18) that, under certain circumstances, the employer may lawfully review data on an employee's work computer even if there is no suspicion based on factual evidence of a breach of duty. This applies to minor encroachments on personal rights, for example, in the case of actions carried out openly and restricted to files that are not marked as "private"...

Works Council’s Right to Information in Relation to Sensitive Personal Employee Data
Heuking Kühn Lüer Wojtek, September 2019

In its decision of 9 April 2019 (ref. no.: 1 ABR 51/17), the German Federal Labor Court (BAG) took position on the right of the works council to request information from the employer according to Section 80 (2) of the German Works Constitution Act (BetrVG) and clarified what data protection restrictions such a request is subject to...

The German Federal Ministry of Justice Submits a Proposal for a Corporate Sanctions Act
Heuking Kühn Lüer Wojtek, August 2019

The German Federal Ministry of Justice and Consumer Protection (BMJV) has submitted its long-awaited proposal for a Corporate Sanctions Act (VerSanG). When corporate crimes are committed, it is making provisions for independently prosecuting the entire organization in addition to prosecuting single perpetrators...

The Permissibility of GPS Tracking from a Compliance Perspective
Heuking Kühn Lüer Wojtek, August 2019

Strict data protection requirements apply to the use of location tracking systems both in the employment context and in cooperation with other companies. In its partial judgement from March 19, 2019, the Lüneburg Administrative Court ruled in compliance with the provisions of the General Data Protection Regulation and the new Federal Data Protection Act (BDSG) that unrestricted tracking of employee vehicles is impermissible...

CJEU Judgment on the Facebook Like Button - A New Chapter of Joint Controllership
Heuking Kühn Lüer Wojtek, August 2019

The Court of Justice of the European Union ("CJEU") published its long-awaited decision on the use of the Facebook Like-Button on July 29, 2019 (Case C-40/17). One major aspect of the judgment is the question to what extent Facebook and website operators who incorporate the Like-Button into their website are joint controllers under European data protection law. As a result, the CJEU affirms this question and takes a firm stand on the conditions for joint controllership...

Notice on the Recovery of State Aid
Heuking Kühn Lüer Wojtek, August 2019

If, in the course of an in-depth assessment, the EU Commission finds that an unlawfully granted aid is incompatible with the internal market, it is obliged under Article 16 of the Procedural Regulation 2015/1589 to order the recovery of the aid by the Member State. On 23 July 2019, the Commission published an updated notice on recovery (2019/C 247/01)...

Public Financing of Infrastructure
Heuking Kühn Lüer Wojtek, August 2019

Although under the Treaty on the Functioning of the European Union, the European Commission has limited power regarding infrastructure policy, which remains a Member state competence, recent rulings of the ECJ regarding ports and airports have allowed it to extend its role in this area by applying the State aid rules to infrastructure financing...

Combating White Spots - Expansion of Mobile Networks
Heuking Kühn Lüer Wojtek, August 2019

Anyone in Germany who wants to make calls outside the city is sometimes not able to do so due to the numerous "white spots" in the mobile network infrastructure. In most areas of Germany, a comprehensive infrastructure is not guaranteed. An expansion by the telecommunications companies (TC) is also not foreseeable in the next three years. Therefore, many municipalities and administrative districts want to eliminate these "white spots" on their own...

2019 Romania–Call for Petroleum Blocks Tender. A Breath of Fresh Air?
Nestor Nestor Diculescu Kingston Petersen, August 2019

In a country with a significant number of mature fields and few discoveries made and/or developed in the last years, the Romanian National Authority for Mineral Resources has recently launched a public call for tender for the concession of 28 exploration, development and exploitation petroleum blocks, both onshore and offshore (Licensing Round XI/2019)...

Forfeiture of Vacation Entitlements - Part II
Heuking Kühn Lüer Wojtek, July 2019

In our newsletter article of March 2019, which was only based on press release No. 9/19 of the BAG [German Federal Labor Court] regarding the judgment of Feb. 19, 2019 - 9 AZR 541/15, we addressed the new case law of the BAG for informing the employer about existing vacation entitlements. In a similar case (also judgment of Feb...

Surviving Dependants’ Pensions – So-Called Late Marriage Clauses May be Discriminating, Depending on their Design
Heuking Kühn Lüer Wojtek, July 2019

BAG of Feb. 19, 2019 – 3 AZR 219/18 So-called "late marriage clauses" in surviving dependants' pension commitments may constitute an unjustified age discrimination and can therefore be ineffective, unless a specific cut-off date can be justified on the basis of a specific connecting factor particularly linked to the legal structure principles of company pension schemes. FACTS OF THE CASE A widow filed a complaint with regard to a widow's pension before the labor courts...

Transfer to an In-House "Job Service and Placement" Unit May be Subject to Prior Approval
Heuking Kühn Lüer Wojtek, July 2019

BAG, judgment of Apr. 9, 2019 – 1 ABR 30/17 The transfer of an employee after the loss of job to the care of an in-house "Job Service and Placement" unit constitutes a transfer requiring consent within the meaning of Sec. 99 para. 1 BetrVG [German works constitution act]. If the selection procedure is carried out by the parties pursuant to a framework agreement, the instruction in the approval procedure also covers the selection procedure...

Enhanced Vacation Entitlement on Grounds of Age Violates the Prohibition of Discrimination of the AGG
Heuking Kühn Lüer Wojtek, July 2019

Federal Labor Court (BAG), judgment of Dec. 11, 2018 – 9 AZR 161/18 An enhanced vacation entitlement on grounds of age where employees who have not yet reached the age of 50 are granted at least three days less vacation than older employees violates the prohibition of discrimination of Sec. 7(1) in conjunction with Sec. 1 AGG...

Insolvency Law Rank of a Severance Payment Claim pursuant to Sec. 9, 10 KSchG
Heuking Kühn Lüer Wojtek, July 2019

BAG, judgment of Mar. 14, 2019 – 6 AZR 4/18 A severance payment awarded by dissolution proceedings may either be an insolvency claim or insolvency asset liability. The time the dissolution petition was made is decisive. FACTS OF THE CASE The employer (later insolvency debtor) terminated the employment of the plaintiff before the opening of insolvency proceedings...

Draft Bill on IT Security Law 2.0
Heuking Kühn Lüer Wojtek, July 2019

There has been intense work on the IT security law 2.0 since the “German doxing case" of late 2018/early 2019 when large volumes of data of German celebrities and politicians were published. This bill will significantly extend the importance and the competences of the Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik (“BSI”) in information technology...

Risk for International Data Transfers
Heuking Kühn Lüer Wojtek, July 2019

The international transfer of personal data is part of daily business for many companies. They work with international service providers, have affiliates abroad or cooperate with foreign customers and suppliers. The General Data Protection Regulation (“GDPR”) provides a narrow scope for transferring personal data to non-EU countries. According to art...

Using Inquiry Proceedings to Resolve Corporate Disputes
Van Doorne N.V., July 2019

Under Dutch corporate law it is possible for the Enterprise Section of the Amsterdam Court of Appeal to order an inquiry into the policies and affairs of a company and to interfere with the internal organization of such legal entity in order to settle corporate disputes between shareholders, the management and supervisory boards and the works council. The present article creates an overview of these legal proceedings. 1...

Resolutions of the Hungarian Data Protection Authority Imposing Fines Under the GDPR (21 June 2019)
Szecskay Attorneys at Law, July 2019

Below you will find a brief summary of the resolutions of the data protection authority uploaded on their website up until today imposing a fine under the GDPR. 1. Failure to facilitate the exercise of data subjects' rights The data subject wanted to exercise his access right, right to receive a copy, and his right to restrict processing of camera recordings of him at the reception area of a service provider...

Directive on Transparent and Predictable Working Conditions in the European Union
Heuking Kühn Lüer Wojtek, June 2019

(2017/0355 (COD)) On 16 April 2019, the European Parliament adopted a new Directive aimed at ensuring transparent and reliable working conditions for employees in the area of crowdworking. On 13 June 2019, the Council of Ministers also adopted the Directive. In the following the main content of the new Directive...

Survivors' Benefits - Minimum Duration of Marriage
Heuking Kühn Lüer Wojtek, June 2019

Federal Labor Court (Bundesarbeitsgericht; BAG) dated February 19, 2019 – 3 AZR 150/18 A clause in a preworded pension commitment stipulating a minimum of ten years of marriage as per the date of death as a prerequisite for the disbursement of survivors’ benefits violates German general terms and conditions law and is thus void and invalid...

The New German Skilled Worker Immigration Act (Fachkräfteeinwanderungsgesetz; FEG)
Heuking Kühn Lüer Wojtek, June 2019

In order to make Germany more appealing to skilled international workers and meet the increasing demand for skilled workers by way of labor-based migration, the German Parliament (Bundestag) adopted the Skilled Worker Immigration Act (FEG) on June 7, 2019. The Act is expected to become effective in early 2020. The administrative obstacles for non-EU citizens have been rather immense when it comes to being employed in Germany...

Employee's Right of Information and Disclosure of their Recorded Personal Information
Heuking Kühn Lüer Wojtek, June 2019

State Labor Court (Landesarbeitsgericht; LAG) Baden-Württemberg dated December 20, 2018 - 17 Sa 11/18 Pursuant to Art. 15(1) GDPR, the employee may request information and a copy of the personal information which the employer has recorded of him/her. A general refusal by the employer to provide information or hand over the information due to justified third-party interests is not sufficient, but must be adequately explained by the employer...

Employers Must Also Draw Attention to Claims for Remaining Vacation Days from Previous Calendar Years
Heuking Kühn Lüer Wojtek, June 2019

German State Labor Court (Landesarbeitsgericht; LAG) of Cologne, decision dated April 9, 2019 – 4 Sa 242/18 In their decision dated April 9, 2019 (4 Sa 242/18), the Cologne LAG implemented the requirements of a high-profile decision by the European Court of Justice (ECJ) made in November 2018 according to which a directive-compliant interpretation of Sec...

Orientation Internship Of Up To Three Months Without Minimum Wage May Be Completed During Different Periods
Heuking Kühn Lüer Wojtek, June 2019

FACTS OF THE CASE The plaintiff and the defendant, who operates a horse-riding facility, agreed on a three-month internship for career orientation (professional horse farmer; Pferdewirt). The internship started on October 6, 2015. The plaintiff was involved in saddling and cleaning horses, putting them on a belt, feeding them, taking them to the pasture and back, and helping with stable cleaning. During the period from November 3 to 6, 2015, the plaintiff was ill and not fit to work...

Trade and business secrets law enacted
Heuking Kühn Lüer Wojtek, June 2019

It is here. The German Trade and Business Secrets Law (Geschäftsgeheimnisgesetz; GeschGehG) came into effect on April 26, 2019. Companies wishing to ensure protection of their business and trade secrets (such as customer, supplier and staff lists) in the future are required to take and document appropriate non-disclosure measures. This is effective immediately...

Unfounded Fixed Term ("Previous Employment")
Heuking Kühn Lüer Wojtek, June 2019

Federal Labor Court (Bundesarbeitsgericht; BAG) dated January 23, 2019 – 7 AZR 733/16 The unfounded limitation of the term of an employment contract, when an employee is employed again by the same employer, is only permissible when and if the application of the prohibition of unfounded fixed-term employment under Sec. 14(2) s. 2 Part-Time and Fixed-Term Employment Law (Teilzeit- und Befristungsgesetz; TzBfG) would be unreasonable for the parties...

European Court of Justice (ECJ): Member States Must Require Employers to Systematically Record Working Hours
Heuking Kühn Lüer Wojtek, June 2019

FACTS OF THE CASE Spanish working time law only requires that employers systematically measure their employees’ working hours in case of overtime...

No Right of Withdrawal After Entering into a Termination Agreement
Heuking Kühn Lüer Wojtek, June 2019

BAG, ruling dated February 7, 2019 - 6 AZR 75/18 A termination agreement under labor law cannot be withdrawn pursuant to consumer protection regulations (Sec. 312(1) in combination with Sec. 312g, Sec. 355 German Civil Code (Bürgerliches Gesetzbuch; BGB)) only because it was concluded in the employee’s private home. In its ruling dated February 6, 2019 (Ref. No...

Joint Controllers - Supervisory authorities publish first sample agreement
Heuking Kühn Lüer Wojtek, June 2019

The topic of “joint controllers” according to Art. 26 GDPR continues to gain momentum. The State Commissioner for Data Protection and Freedom of Information in Baden-Württemberg (LfDI) has now, for the first time, published a sample of an agreement for joint controllers under Art. 26(1) s. 2 GDPR as well as a sample relating to the fulfillment of obligations to inform the data subjects pursuant to Art. 26(2) s. 2 GDPR...

Investing in the Slovenian Automotive Production Industry
Karanovic & Partners, June 2019

This article was written by Igor Angelovski and was originally published in Issue 6.2 of the CEE Legal Matters Magazine. “If you are a company conducting business in the automotive industry with intentions of expanding on the European market, where do you look? The answer may be the Central European country of Slovenia...

Welcome to the Slovenian Legal Market
Karanovic & Partners, June 2019

This article is written byMarko Ketlerand originally published in Issue 6.4 of theCEE Legal Matters Magazine.   After a few troublesome years during the global financial crisis, it seems like Slovenia is on a positive economic route again. On December 14, 2018, S&P Global Ratings affirmed an “A+/A-1” credit rating for Slovenia with a positive outlook...

Use of a Feed-In Premium for Photovoltaic Electricity
Karanovic & Partners, June 2019

The Government of North Macedonia announced an open call for awarding a contract for the use of a feed-in premium for electricity produced in photovoltaic power plants (“PVPPs”) on state land in North Macedonia, with total installed capacity of 35 MW. Two locations are envisaged for construction of the PVPPs – Azambegovo (Sveti Nikole) and Manastirec (Makedonski Brod)...

What to Watch Out For in Case of a Hard Brexit and ZUVIZK
Karanovic & Partners, June 2019

The European Commission consistently emphasises the citizens’ rights and status in its hard Brexit preparations and contingency works. It appealed to EU Member Stats to take a generous approach towards the rights of UK citizens in the EU, given that the UK reciprocates such an approach...

Update regarding video surveillance - only documented purposes justify the means
Heuking Kühn Lüer Wojtek, June 2019

There are hardly any companies that do not use video surveillance systems (CCTV). Such systems record areas such as plant and work facilities or entrance areas. Oftentimes, the video images are not only displayed live on a monitor (“camera-to-monitor system”), but are also recorded automatically for a certain period of time...

Happy Birthday GDPR – One Year On
Shepherd and Wedderburn LLP, May 2019

According to statistics released by the European Commission earlier in 2019, the term “GDPR” amassed more Google searches than either Beyoncé or Kim Kardashian during the month of May 2018. Now that “GDPR” has become a household term, what have we learntin the 12 months since the introduction of the GDPR? 1...

The Perils of Dying Without a Will
Shepherd and Wedderburn LLP, May 2019

Recent research from the insurer Royal London found more than half of the UK adult population has not made a will, and a quarter of those have no intention of making one. Death, it seems, remains something of a taboo subject in the UK. This is in stark contrast to some other countries, such as Mexico, where each year the population celebrates Día de los Muertos, or the Day of the Dead...

The End of the Entrepreneur Visa?
Shepherd and Wedderburn LLP, May 2019

At the end of March, UK Visas and Immigration closed both the Tier 1 (Entrepreneur) and Tier 1 (Graduate Entrepreneur) routes, replacing them with two new visa categories, the ‘Start-up’ and the ‘Innovator’, which are contained within a new Appendix W of the Immigration Rules...

Mergers and Acquisitions: Why Immigration Matters and How to Get it Right
Shepherd and Wedderburn LLP, May 2019

In an increasingly global world, an organisation’s ability to recruit and retain international talent plays an ever important and potentially business critical role. In the UK, the only way in which employers can directly employ many of these talented individuals is through obtaining a sponsor licence from the Home Office...

What Organisations Should be Doing Now to Recruit and Retain EU Workers Post-Brexit
Shepherd and Wedderburn LLP, May 2019

The Brexit referendum vote and its potential impact on free movement has already resulted in many businesses struggling to meet their labour needs; the number of EU migrants has declined markedly at a time when Scotland and the UK is enjoying record levels of employment. As a consequence, immigration has risen to the top of many organisations’ agendas to ensure they can recruit and retain the talent they need to grow their businesses and remain competitive...

Competition Regulator Sharpens Focus on Construction Sector
Shepherd and Wedderburn LLP, May 2019

The Competition and Markets Authority’s (CMA) Chief Executive, Andrea Coscelli raised concerns in April at “seeing a lot of evidence of anti-competitive conduct in the construction industry”, adding the CMA had “already taken a number of cases in this sector…”. Recent enforcement action from the CMA, outlined below, suggests regulatory intervention is only likely to increase...

Regulation of Online Falsehoods: ‘Fake News’ – the UK, Singapore and Europe
Shepherd and Wedderburn LLP, May 2019

‘Fake news’ - information or news that is proven to be either verifiably false or misleading - has become a major, global concern. As news and opinion pieces are increasingly pushed to readers via online and social media channels, the speed of their dissemination has accelerated exponentially, as have the challenges around regulating news and opinion...

Marine Finfish Aquaculture: A New Environmental Framework
Shepherd and Wedderburn LLP, May 2019

The Scottish Government, SEPA and industry have identified significant opportunities for the growth of the finfish aquaculture sector in Scotland. This expansion is an express policy objective of the Scottish Government, and was confirmed through the National Marine Plan published in 2015. Nevertheless, whilst there has been some growth in the sector since the plan’s publication, the sector has yet to realise its full potential...

Brexit Breathing Space for Food Business Operators
Shepherd and Wedderburn LLP, May 2019

Whatever your views on Brexit, the deferment of the UK’s leaving date from the EU provided British industry some welcome breathing space to prepare for Brexit. Given the issues that still divide the two main political parties, the UK may yet leave the EU without a deal on 31 October...

Five Things a Buyer of a Rural Property Needs to Know
Shepherd and Wedderburn LLP, May 2019

Scotland’s countryside offers a vast range of property investment options, from houses and cottages to farms and country estates. However, when buying a rural property it is important to consider various issues that may be taken for granted in the purchase of a property in an urban area. 1...

Ten Things You Need to Know About the Insolvency (Scotland) Rules 2018
Shepherd and Wedderburn LLP, April 2019

On 6 April 2019, Scotland finally saw the introduction of the modernised insolvency rules in the form of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018 and The Insolvency (Scotland) (Receivership and Winding Up) Rules 2018 (the 2018 Rules). The 2018 Rules will replace the existing Insolvency (Scotland) Rules 1986 (as amended) subject to certain transitional and saving provisions...

Diligence: Early Involvement Pays
Shepherd and Wedderburn LLP, April 2019

Coordinating cross-border due diligence is a key skill that more often than not underpins complex, multi-jurisdictional merger and acquisitions (M&A) and private equity (PE)-led transactions. Where due diligence really adds value is in the early stages of the transaction, when local knowledge and expertise are vital to understanding the context of data room information...

 

 

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