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Heuking Kühn Lüer Wojtek

 

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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BAG, ruling dated February 7, 2019 - 6 AZR 75/18 A termination agreement under labor law cannot be withdrawn pursuant to consumer protection regulations (Sec. 312(1) in combination with Sec. 312g, Sec. 355 German Civil Code (Bürgerliches Gesetzbuch; BGB)) only because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...

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...

Worker Participation of the Works Council in Employee Survey
Heuking Kühn Lüer Wojtek, April 2019

The recent decision of the FOPH (FOPH, decision of 11.12.2018 - 1 ABR 13/17) gives additional grounds for further clarifying the practical question of to what extent the conduct of an employee survey is subject to worker participation by the works council. The Respondent - a parent company of a postal and logistics company - has been carrying out an annual Group-wide employee survey since 2007 using a standardized electronic questionnaire...

Age Limit - Postponing the Termination Date
Heuking Kühn Lüer Wojtek, April 2019

Federal Labor Court, ruling of 19 December 2018 - 7 AZR 70/17 The provision of Sec. 41 p. 3 Social Code (SGB) VI allows employers and employees to postpone the termination of the employment relationship upon reaching the regular retirement age of the employee. According to a ruling of the German Federal Labor Court (BAG) of 19 December 2018 (Ref. 7 AZR 70/17), this regulation is compatible with higher-ranking law...

Leave Reduction During Parental Leave Period Not in Breach of European Law
Heuking Kühn Lüer Wojtek, April 2019

FOPH of March 19, 2019 - 9 AZR 362/18 The statutory leave entitlement according to Sec. 1, 3 Federal Leave Act (BUrlG) also exists for the period of parental leave, but may be reduced by the employer pursuant to Sec. 17 (1) (1) Federal Parental Allowance and Parental Leave Act (BEEG). This requires a legal declaration completed upon receipt aimed at reduction. Sec. 17 (1) BEEG is in line with EU law...

Participation of the Representative Body for Severely Disabled Persons During the Dismissal Process
Heuking Kühn Lüer Wojtek, April 2019

(FOPH, Ruling of 12.13.2018, 2 AZR 378/18) In a very helpful decision for the practice, the FOPH has commented on the procedure for consulting with the representative body for severely disabled persons before dismissals. It is sufficient for the employer to consult the representative body for severely disabled persons before notice of dismissal in accordance with the basic principles applicable to the participation of the works council pursuant to Sec...

European Whistleblowing Directive will be Effective as of April 2019
Heuking Kühn Lüer Wojtek, April 2019

At European and national level, discussions have been going on for years on how best to protect the so-called whistleblowers from being victims of retaliation measures by those whose actions they have uncovered. Whistleblowers are persons who, as "insiders" (such as employees) disclose dubious practices of the institutions they serve. Here we think first and foremost of persons such as Edward Snowden, whose disclosures were directed against state measures...

Standardization of the Level of Administrative Fines under the GDPR?
Heuking Kühn Lüer Wojtek, April 2019

The administrative fines that have been imposed by the different European supervisory authorities since the GDPR took effect vary enormously. While the highest administrative fines imposed by the German authorities to date have been EUR 20,000 and EUR 80,000 and have therefore remained well below the possible maximum fine of EUR 20 million or 4 % of worldwide annual turnover, other countries’ supervisory authorities have already delivered higher fines...

Consent for the Use of Cookies
Heuking Kühn Lüer Wojtek, April 2019

Even before the General Data Protection Regulation (GDPR) came into force, there were discussions as to whether the use of tracking cookies, which make it possible to analyze the usage and browsing behavior of a user on the Internet and use it for interest-based advertising, requires prior consent (opt-in) of the user or whether a dissent solution (opt-out) is sufficient. The German data protection authorities are of the opinion that users must give their consent...

Personal Data: Comprehensive Right to Information of the Employee - A Threat to the Anonymity of Whistleblowers?
Heuking Kühn Lüer Wojtek, March 2019

The Regional Labor Court (LAG) of Baden-Württemberg, in its ruling of December 20, 2018 (Ref. 17 Sat 11/18), granted an employee a comprehensive right to information against his employer with regard to all personal data collected about his person. The right to information was explicitly confirmed in relation to personal data resulting from internal investigations and data from potential whistleblowers...

Personal Data: Comprehensive Right to Information of the Employee - A Threat to the Anonymity of Whistleblowers?
Heuking Kühn Lüer Wojtek, March 2019

The Regional Labor Court (LAG) of Baden-Württemberg, in its ruling of December 20, 2018 (Ref. 17 Sat 11/18), granted an employee a comprehensive right to information against his employer with regard to all personal data collected about his person. The right to information was explicitly confirmed in relation to personal data resulting from internal investigations and data from potential whistleblowers...

German Bundestag Adopts New Law for the Protection of Trade Secrets
Heuking Kühn Lüer Wojtek, March 2019

Companies will need to take appropriate steps in the future to protect their secrets. The new law on the protection of trade secrets places greater demands on the sensitivity of secrets to this extent. Whistleblowers can also reveal trade secrets with impunity - one more reason to set up a whistleblower hotline. Reverse engineering will be a permissible way of acquiring a trade secret in the future...

Private Use of Company Email Accounts by Employees
Heuking Kühn Lüer Wojtek, March 2019

On 13 March 2019, the State Commissioner for Data Protection and Freedom of Information in Baden-Württemberg (LfDI BaWü) published the latest version of his guidebook on employee data protection. In this brochure, the LfDI BaWü offers an insight into his work and explains his opinion regarding the various points of view surrounding employee data protection...

Facebook - Bundeskartellamt [German Federal Cartel Office] Prohibits the Processing of User Data from Third Party Sources
Heuking Kühn Lüer Wojtek, February 2019

In its decision from February 7, 2019, the Bundeskartellamt prohibited Facebook from the further processing of user data which it has generated from so-called third party sources. In order to make use of these personal data in future, Facebook will need the consent of the data subject as defined by the General Data Protection Regulation (GDPR). It remains to be seen whether this will be granted by the majority of users. 1...

First Fines Issued by Supervisory Authorities for Infringements Against the GDPR
Heuking Kühn Lüer Wojtek, February 2019

The General Data Protection Regulation (GDPR) provides for a significant increase of the maximum possible fine for legal infringements compared to previous data protection legislation. Fines of up to 20 million euros or 4 percent of the worldwide annual turnover, whichever is higher, can be imposed (Art. 83 para. 5 GDPR). Yet, the first few months after the introduction of the GDPR in May 2018 were uneventful in this regard. That is now changing, however...

"Right to be Forgotten" - Search Engine Operators Must Comply with Requests to Delete Links to Personal Data
Heuking Kühn Lüer Wojtek, January 2019

The use of the Internet without the use of search engines, which list links to Internet pages after keywords have been entered, is almost unthinkable. In the context of the search results, however, websites may appear that contain personal data and thus fall within the scope of the GDPR...

Rejection of the Brexit Withdrawal Agreement: What do Companies Have to Consider Now?
Heuking Kühn Lüer Wojtek, January 2019

The Brexit Withdrawal Agreement negotiated between the European Union and the United Kingdom envisaged that during the United Kingdom's transitional period data protection legislation would have been treated in the same way as with the countries of the European Economic Area. This would have allowed a transfer of personal data from the European Union to the United Kingdom without additional measures to ensure adequate levels of data protection...

Joint Controllership in the Integration of Third-Party Website Plug-Ins - Concluding Opinion of the Advocate General to the ECJ on The "Facebook Like" Button
Heuking Kühn Lüer Wojtek, January 2019

The Court of Justice of the European Union (ECJ) must currently clarify whether and how website operators can legally integrate the so-called "Like" button of Facebook on their website (Case C-40/17). A German online retailer had integrated the "Facebook Like" button into their online shop. Due to the functionality of the "Facebook Like" button, personal information was transmitted to Facebook Ireland each time the website was visited, including the IP address...

Data Protection in the Application Process
Heuking Kühn Lüer Wojtek, January 2019

Under its Article 88(1), the GDPR allows Member States to draw up their own rules for the area of employee data protection. Germany has taken advantage of this option with Section 26 of the Federal Data Protection Act (BDSG). The first sentence of Section 26(1) already applies while the decision to establish an employment relationship is made and hence it needs to be taken into account early in the application process...

Real Estate Transfer Tax 2019 – What is Changing for Corporations
Heuking Kühn Lüer Wojtek, December 2018

The necessity of the contemplated Real Estate Transfer Tax Act amendments has been subject of intense discussions. The finance ministers of the German states reached agreement on introducing new tax provisions and on extending the scope of existing rules in June and November 2018...

State Aids for Inland Ports – An Introduction
Heuking Kühn Lüer Wojtek, December 2018

Inland ports are of significant importance for handling of freight. Most inland ports are trimodal (road, railways and waterways) and have the necessary infrastructure to handle freight coming from all over the world. Recent State aid measures address the increasing importance of inland ports and allow subsidisation predominantly for constructing infrastructure...

 

 

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