Requirements for effective representation of civil law companies

http://www.grprainer.com/en/Company-Law.html For proof of signature authority of a member of a civil law company (GbR), a company stamp is sufficient.

GRP Rainer Attorneys and Tax Accountants in Cologne, Berlin, Bonn, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London www.grprainer.com/en explain: In its judgment from 23 January 2013 (Ref.: XII ZR 35/11), the German Federal Supreme Court (BGH) continued its judicature on the disclosure of representation upon conclusion of long-term tenancy leases. If a member of a civil law company (GbR) wants to represent the company at the conclusion of a long-term lease agreement, then the member with signature authority should include a company stamp when signing on behalf of the company. It is not necessary to comply with the formal requirement in writing that stipulates that upon conclusion of a long-term lease that all members of the civil company are signatories to the lease. Rather, it is sufficient if the representing member’s signature is accompanied by an addition (the company stamp) which indicates the representative status of the signatory and thus brings expression to the sole entitlement of the representing member to represent the company.

The German Supreme Court had to decide a case in which a civil law company had signed a lease with a term of ten years. The contractual document was only signed by one member and the signature was accompanied by a stamp of the company.

The authorization for the member to represent the company has been established as already being apparent in the issued opinion of the German Supreme Court due to the stamp imprint because legitimizing effects of legal transactions could be attributed to the company stamp.

For civil law companies, there are few mandatory legal guidelines and it is up to their members to define the company by its articles of association. Depending on the founding contract or charter type of a company, even the representation of a company by a single member may pose problematic challenges such as complying with various formal requirements. In order to avoid uncertainty and to ensure effective representation by individual members as well as compliance with any formal procedural requirements, it is advisable to seek legal advice and consultation early on from a lawyer.

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Film copyright or supplementary work

http://www.grprainer.com/en/Film-Law.html Whether or not someone is the originator of a film is determined by the general principle of authorship under Copyright Law (UrhG).

GRP Rainer Attorneys and Tax Accountants in Cologne, Berlin, Bonn, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London www.grprainer.com/en explain: The general principle of authorship in copyright is enshrined in Copyright Law (UrhG). It states that one originator is the creator. Thus, in assessing the question of whether or not someone is the originator of a film depends on whether or not the person in question has made a creative contribution to the film. A creative contribution is present if such a contribution reflects a personal intellectual creation.

The scope of the copyright is determined by the scope of the individual creative contribution. The originator of a film can in principle be both natural and legal persons as well as bodies of persons in joint association. It is appropriate to distinguish whether or not the case at hand involves film origination or origination of a pre-existing work such as a film-dependent work (for example, the script) or film-independent work (e.g. a novel).

The relevant time period for assessing whether or not someone has made a creative contribution to the film is the time between the start of the shooting of the film (because from this point on, the production of the film probably begins) and the completion of the final tape (because at that point, the production of the film ends).

The multiple functions undertaken by some copyright stakeholders while making the film do not preclude copyright consideration from the outset. It is requisite to assigning copyright, however, that two separate contributions can be distinguished. If the contributions performed cannot be considered as exclusive, then either copyright or ancillary copyright protection comes into question for that person.

It is often difficult to determine the originator of a work. In that regard, it may be helpful to define the roles of the film production team from the outset so that, in the event of enforcement of any claims, there are no ambiguities. An attorney who works in film and copyright can assist in the preparation of contracts.

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Immediate tax deducts for accrued property transfer taxes

http://www.grprainer.com/en/Tax-Law.html Whether real estate is being acquired entirely new in the context of property acquisition or if it was already in the partnership’s possession is an important fact.

GRP Rainer Lawyers and Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London www.grprainer.com/en explain: Until recently, it was not decided from a tax law perspective whether accrued property transfer tax constitutes incidental acquisition costs or an expense that is immediately tax deductible when there is a change to the composition of partners.

In the case of a prior possession, property transfer tax can sometimes be regarded as immediately tax deductible operating costs, at least in the view of the Münster Finance Court in their ruling of 14 February 2013 (Az.: 2 K 2838/10).

The Court had to rule on a case in which the claimant had gained the entirety of the limited partnership interests in a limited partnership. Because of this, property transfer tax appeared to accrue with respect to the real estate transferred to the claimant, whose competent tax office seemingly declared it to be incidental acquisition costs. After the end of the limited partnership, the claimant was subsequently asked to pay these costs as its legal successor.

The judges regarded this as illicit, as they did not start from the presumption that the real estate had been newly acquired. The judges seemed rather to place importance on there being no new acquisition of real estate in the current case. The judges also highlighted that no purchase transaction had in fact occurred. Such a transaction is pretended merely for property transfer tax purposes. Consequently, the claimant was entirely absolved of paying the incidental acquisition costs. In the view of the Court, the assignment of the real estate had not in fact been altered from a civil law point of view, since they formed part of the assets of the limited partnership both before and after the change to the composition of partners.

Legal advice from a lawyer versed in tax law is essential where there are insecurities. Partners who are similarly soon to be faced with a change to the composition of a partnership should therefore act cautiously.

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Live streaming possible up to a certain limit, rules ECJ

http://www.grprainer.com/en/Copyright-Law.html The ECJ has ruled that the spreading of television programs via live streaming without the creator’s consent shall not be possible.

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London www.grprainer.com/en explains: In the case before the ECJ, several television broadcasters were of the opinion that their copyrights pertaining to their broadcasts were being violated by a company. They sued a company that operates a live streaming service. The case was then directed to the ECJ in a preliminary ruling.

It has emerged from a judgment of the European Court of Justice (ECJ) on 7 March 2013 (file no. C-607/11) that television broadcasters can likely forbid the dissemination of their broadcasts via live streaming. The ECJ ruled on the fact that this case deals with a communication to the public of protected works. However, such a communication requires the allowance of the creator. Even if the users had a television license which allows them to receive the broadcasts via television, this would apply.

If a production is subject to repeated use, each retransmission of a production usually has to be discussed in advance with the creators. The creator would thus also potentially be able to deny a retransmission via live streaming.

In copyright law, there is sometimes the question of who is actually the creator of a product, because in copyright law there is – unlike with patent and trademark issues – no public register which could reveal the ownership of it. A lawyer can advise on all matters relating to the matter of copyright.

There are various fields of law which are inseparably associated with copyright, for example press law, music law, publishing law and film law. Therefore, it is advisable to contact a lawyer who is proficient in these areas and can make the important logical connections.

If copyrights have been infringed, a lawyer can help with the legal enforcement of rights. Also if it has already come to copyright infringements, the persons involved should consult a lawyer that has expertise in the matter of copyright.

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Temporary workers could be entitled to an equivalent payment like permanent employees

http://www.grprainer.com/en/Employment-Law.html In several cases the Federal Labour Court (BAG) should have decided that temporary workers could be entitled to a higher salary for her work.

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London www.grprainer.com/en explain: This is the result from several decisions which have been pronounced by BAG on the 13th of March, 2013 (file number 5 AZR 954/11). The BAG handled the cases in which numerous temporary workers sued for supplementary compensation to their wage. The temporary workers concerned were paid by one and the same employers’ association. In some cases a few of the temporary workers earn under half of what the permanent employees received for the same work.

Finally the court decided in his current administration of justice, that the temporary workers are entitled to the same wage as the permanent employees. Though, the temporary workers have to assert the rights before predetermined deadlines. In its decision, the court has founded his position with the German Law on Labour Leasing (Arbeitnehmerüberlassungsgesetz (AÜG)). Therefore the workers for whom there is no valid wage agreement should be entitled to the same working conditions and an equivalent payment like permanent employees.

Experts are skeptical whether the numerous workers are able to assert rights of previous years. Especially the fact that the rights can prescribe may be problematic here.

With respect to all legal questions concerning the conclusion of the agreement, written warning or dismissal, the employees concerned should seek out a lawyer versed in labour law. He can assert their interests in individual and collective labour law both extrajudicially and in court.

One must anticipate tight deadlines in the field of labour law. In the event of dismissal, one should promptly seek legal advice from a lawyer. The limitation period for filing an action only gives the employee three weeks after receipt of the dismissal in writing to appeal the dismissal with an action for wrongful dismissal. He who wants to enforce contractual entitlements must keep in mind the cut-off period in the employment agreement and wage agreement. A lawyer can help ensure that rights do not lapse.

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Long-term commitments of partners in a partnership (GbR) can be inappropriate

http://www.grprainer.com/en/BGB-Gesellschaft-GbR.html Under circumstances an overly long commitment of partners in a partnership organised under the German Civil Law (GbR) that arises out of the memorandum of partnership of the GbR, can be inappropriate.

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London www.grprainer.com/en explain: It seems like the Federal Court of Justice (BGH) gave a judgment on the question which length is appropriate for a commitment of partners by a memorandum of partnership of a GbR which is binding for the partners (Ref. no.: II ZR 176/12).

A long-term commitment could be invalid because it might lead to a limitation of the partner’s options for termination. The personal and economic freedom of the partner should not be restricted inappropriately by the commitment of the partners to the company and the partner should have the option to manage it time-wise. The memorandum of partnership cannot extravagate this.

The limitation for commitment which is appropriate has to be decided on a case-by-case basis, meaning there is no general upper limit. Especially deciding are following facts: the structure of the company, the nature and extent of the arising obligations from the participation in the company. Furthermore the interest in the long-term existence of the company deriving from its purposes shall be taken in consideration as well as the legitimate interests of the individual partners involved in the long-term commitment.

The partnership organised under the German Civil Law is also known as BGB-Gesellschaft. It is the most basic form of a partnership and there are few binding conditions to be fulfilled. It’s up to the partners to shape the company through its memorandum of partnership.

The memorandum of partnership does not need a specific form and many GbR provisions are not obligatory. This contains a certain kind of flexibility. This flexibility implicates incentives and risks since many opportunities also pose many risks which might not be foreseen by the partners. That is why it is so important to place the interests of a company even before its establishment in the hands of experienced lawyers.

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The consequences of the bad faith of a house seller

http://www.grprainer.com/en/Real-Estate-and-Property-Law.html The seller of a house who fraudulently conceals an existing defect is potentially unable to plead an article of agreement excluding all warranties for defects.

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg Essen and London www.grprainer.com/en explain: The Koblenz Higher Regional Court (judgment of 15 January 2013, Az.: 4 U 874/12) decided in favour of a purchaser whose house’s roof was affected by a marten infestation. A few months after the acquisition of the house, the purchaser discovered the damage.

However, the sellers of the house had told him before that they were not aware of any hidden defect in the house. In reality, they had discovered the damage before and tried to rectify it during a partial refurbishment of the roof. They stated that they therefore assumed that the house was now free from defects. Nevertheless, the marten lived in the roof for about a year, making noises and apparently destroying it. Therefore, in the opinion of the Koblenz OLG, the sellers of the house must have assumed or at least suspected during the partial refurbishment that the rest of the roof was also damaged.

In the agreement of the sellers and the purchaser, the sellers had excluded all warranties for defects. However, the purchasers could bring claims for damages because a seller cannot invoke a warranty exemption insofar as he has fraudulently concealed a defect or assumed a guarantee for the condition of the object.

The judgement of the Koblenz OLG shows that purchasers should not be immediately discouraged by warranty exemptions of the seller. Liability for bad faith cannot be readily excluded. Instead, a purchaser whose item is concerned by defects should seek the advice of a lawyer active in the real estate law. He will be able to carefully examine the purchaser’s individual situation and claims.
A seller, for his part, should also always legally secure himself. Consulting an experienced lawyer as early as the planning of the sale can potentially protect him from nasty surprises, such as an ineffective warranty exemption.

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