News and Press - Lawyers Attorneys MTR Rechtsanwälte Germany - Cologne Berlin Bonn Düsseldorf Frankfurt Hamburg Munich Stuttgart News and Press releases of Lawyers Attorneys MTR Rechtsanwaltsgesellschaft mbH Germany Cologne Berlin Bonn Düsseldorf Frankfurt Hamburg Munich Stuttgart en MTR Rechtsanwaltsgesellschaft mbH Fri, 27 Nov 2020 03:49:35 +0100 Fri, 27 Nov 2020 03:49:35 +0100 TYPO3 news-263 Wed, 25 Nov 2020 10:32:34 +0100 German patent law draft modernization act approved German patent law is set to become simpler and more modern. On October 28, 2020, Germany’s federal cabinet approved the second draft of the act designed to simplify and modernize German patent law.

The federal government wants to further strengthen intellectual property rights in connection with the protection of industrial property. To this end, the federal cabinet has now approved the second draft of the act designed to simplify and modernize German patent law (“Zweites Gesetz zur Vereinfachung und Modernisierung des Patentrechts”). We at the commercial law firm MTR Rechtsanwälte can report that the act is likely to enter into force at the beginning of 2021.

The planned law addresses two main areas: it provides for an exceptional restriction on injunctive relief under patent law on grounds of proportionality. It also seeks to expedite patent nullity proceedings by enabling greater synchronicity between infringement and nullity actions, and to improve the protection of confidential information in patent litigation.

The new rules governing injunctive relief in response to patent and utility model infringements are meant to give greater prominence to the principle of proportionality by providing for the possibility of exceptional restrictions on injunctive relief due to particular circumstances in individual cases where claiming relief would lead to disproportionate and – because of the right of exclusivity – unjustified hardship for the infringing party.

The amended legislation also envisages procedural changes with respect to nullity proceedings before Germany’s Federal Patent Court, the Bundespatentgericht. It includes provisions aimed at, among other things, expediting proceedings by empowering the Bundespatentgericht to issue its indicative ruling pursuant to section 83 of the German Patent Act (Patentgesetz, PatG) to the court hearing the infringement dispute after only six months. To this end, the proceedings before the Bundespatentgericht between service of process and qualified indicative ruling are to be streamlined. The patent holder will still be able give its account within one month of the action for annulment being served. What is new is that there will be an additional period of one month for justifying the objection. The Bundespatentgericht then has a further four months in which to deliver the qualified indicative ruling.

There are also specific provisions dedicated to improving the protection of confidential information that deal with the protection of trade secrets in patent, utility model, and semi-conductor protection litigation.

Other changes aim to simplify and clarify, including plans to align trademark law with the current legal framework under the Madrid System for the International Registration of Marks.

Lawyers with experience in the field of IP law can offer advice.

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IP RechtPressemitteilungen
news-261 Fri, 20 Nov 2020 11:47:10 +0100 Taxable income from renting via Airbnb – Possibility of voluntary disclosure Rental income is subject to tax. Those renting out apartments via platforms such as Airbnb need to be mindful of this if they are to avoid committing tax evasion.

Income from renting and leasing is subject to tax. This applies to both real estate companies and private landlords, even if they only occasionally rent out a room or an apartment through Airbnb. The rental income needs to be included in the relevant income tax declaration. Concealing these earnings risks trouble with the tax authorities and allegations of tax evasion. Under these circumstances, those renting out real estate ought to review their legal options, including voluntary disclosure.

Sharing is the order of the day, and this is particularly noticeable in the case of apartments. People who are not using their apartment for a time or who have an empty room are subletting them for a limited period using portals such as Airbnb. While the parties renting out the properties are pleased about the extra income, many of them are not aware that this income is subject to tax if it exceeds the nugatory threshold of 520 euros per annum.

These rental arrangements have not escaped the attention of the German tax authorities, which now require Airbnb to hand over the data. The Hamburg Tax Investigation Office announced at the beginning of September that it has now received the data and will make it available to the relevant state tax authorities.

Lessors who have concealed this rental income are thus potentially facing not only the inconvenience of having to pay tax arrears but also the prospect of tax evasion proceedings. That is why it is vital to take swift action now and assess whether it is still possible to submit a voluntary declaration for tax evasion.

Such a voluntary declaration can only lead to exemption from punishment if the tax evasion has yet to be discovered. If the data from Airbnb has already been received and evaluated by the relevant tax office, this precludes voluntary disclosure from being fully effective. A voluntary declaration can nevertheless still have a mitigating effect on punishment. In addition, it is important for the voluntary declaration to be complete and include all the relevant tax-related information pertaining to the past ten years.

However, it is almost impossible for someone who is not an expert to satisfy these requirements. Lawyers with experience in the field of tax law would be more than happy to assist you in preparing an effective volunta declaration.

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news-258 Tue, 10 Nov 2020 10:01:44 +0100 Wirecard AG – Shareholders can register claims in insolvency proceedings Insolvency proceedings concerning Wirecard AG were opened on August 25, 2020 (Az.: 1542 IN 1308/20). Creditors had until October 26, 2020 to register their claims with the insolvency administrator.

Wirecard AG filed for insolvency at the end of June. Two months later, insolvency proceedings were opened at the Amtsgericht München – the District Court of Munich – concerning the company and six subsidiaries. For Wirecard AG’s shareholders and investors, the bankruptcy of the former DAX-listed company brings with it the prospect of significant financial losses. Following the opening of insolvency proceedings, they were then able to register their claims in the insolvency schedule as a means of at least partially offsetting their losses.

Claims brought by shareholders in insolvency proceedings are normally treated as low priority, i.e. they are right at the bottom of the list of creditors. However, since the situation with Wirecard is shaping up to be a real accounting scandal and economic crime thriller, with the public prosecutor’s office investigating, among other things, possible fraud and market manipulation, low priority status may well be inapplicable in this instance. For this reason, it is as important for shareholders to register their claims in writing with the insolvency administrator by October 26, 2020 lest they come away empty-handed. We at the commercial law firm MTR Rechtsanwälte note, however, that the claims need to be properly justified rather than simply taking a blanket approach.

Even if the insolvency administrator endeavours to arrange Wirecard AG or parts of the business in a manner that is attractive to buyers and investors and to increase the size of the insolvency estate, the creditors should not hold out too much hope of receiving a large insolvency dividend given that the company is substantially overindebted.

This means that the insolvency dividend can only be expected to partially compensate for the financial losses incurred. To further reduce these losses, claims for damages can also be asserted independently of the insolvency proceedings.

Apart from the alleged offenders, the former members of Wirecard AG’s executive and supervisory boards are also potential candidates against whom claims for damages may be asserted. Given that fraudulent accounting appears to have been practiced since as early as 2015, it ought to be assessed whether they failed to live up to their supervisory responsibilities. It may also be possible to bring claims for damages against the auditors who regularly issued audit certificates over the years despite the balance sheet irregularities.

Lawyers with experience in the field of capital markets law can review Wirecard investors?’ claims for damages.

For more information:

Wirecard AGPressemitteilungen
news-256 Thu, 29 Oct 2020 13:29:02 +0100 OLG Köln on standards for advertisements featuring “Testsieger” Anyone promoting products or services using the accolade “Testsieger” (test winner) must also provide a source reference for the test. Important information is otherwise being withheld from consumers according to the Oberlandesgericht (OLG) Köln – the Higher Regional Court of Cologne.

The use of test results in product advertising is popular due to the considerable influence test certifications can have on consumers’ purchasing decisions. This is particularly true of tests conducted by prestigious bodies or organizations. That is why the legislature has established strict requirements for advertisements that make reference to test winners. We at the commercial law firm MTR Rechtsanwälte note that failure to comply with these requirements means the advertising is in breach of competition law.

Advertisements featuring test results must be transparent to consumers, who need to be able to make sense of the test and its criteria. According to a ruling of the OLG Köln from July 10, 2020, such adverts must therefore include a source reference for the test (Az.: 6 U 284/19).

In the instant case, a DIY store had been promoting a wall paint in a prospectus using the accolade “Testsieger”. While the seal for the relevant test certification from the German consumer organization Stiftung Warentest appeared on the bucket of paint, the same could not be said of a source reference for the test. The OLG Köln deemed this a breach of competition law, reasoning that the absence of a source reference meant that important information was being withheld from consumers and that the advertising was thus in breach of the German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG).

The court noted that the Bundesgerichtshof (BGH) – Germany’s Federal Supreme Court – has already clarified in a number of rulings that test ratings featured in advertisements must be clearly and easily verifiable. This includes citing a source reference that is easy for consumers to find so that they can scrutinize and make sense of any advertisements informed by the test in question. The OLG went on to explain that certain criteria can play a crucial role in informing consumers’ purchasing decisions – in the case of paints, for example, the coverage – whereas other factors only play a minor role.

In the case at issue, the Testsieger seal was only visible as part of the product illustration and thus not emphasized separately. The court noted that it remains an open question whether this constitutes Testsieger advertising, and therefore granted leave to appeal to the BGH.

Violations of competition law can give rise to injunction suits and claims for damages. Lawyers with experience in the field of competition law can offer advice.

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news-255 Fri, 23 Oct 2020 12:19:15 +0200 FG Münster: No capital gains tax due on furniture and fittings from sale of real estate Furniture and fittings do not count towards capital gains from the sale of real estate. That was the verdict of the Finanzgericht (FG) Münster – the Fiscal Court of Münster – in a ruling form August 3, 2020 (Az.: 5 K 2493/18).

If a property that is not occupied by its owner is sold at a profit within a period of ten years from its acquisition, the profits are subject to capital gains tax. We at the commercial law firm MTR Rechtsanwälte note that it is only following a holding period of ten years that no capital gains tax is due on the profits. If, however, the furniture and fittings are sold along with the property, these are not subject to taxation as a private sales transaction.

In the instant case, the plaintiff had purchased and began renting out a vacation property in 2013. In 2016, he sold the property together with the furniture and fittings. The contract of sale provided for a pro rata purchase price of 45,000 euros for the latter.

When determining the amount of taxable capital gains, the tax office factored in the 45,000 euros for the furniture and fittings. Citing section 23(1) para. 1 no. 2 sentence 4 of the German Income Tax Act (Einkommensteuergesetz, EStG), it concluded that the ten-year speculation period should equally apply to these assets, as income from renting and leasing had been generated from the furniture and fittings.

The plaintiff opposed this decision, arguing that as everyday objects these were not subject to taxation.

The Finanzgericht Münster found in the plaintiff’s favor, ruling that no tax liability arose in respect of the furniture and fittings. The court noted that section 23(1) para. 1 no. 2 sentence 4 EStG merely results in an extension of the speculation period from one to ten years for certain assets; the provision does not, however, in and of itself constitute a basis for taxation. It also pointed out that everyday objects are exempt from taxation. The FG Münster then went on to state that the definition of everyday objects also encompasses home furnishings, since furniture and fittings do not usually increase in value.

A number of different tax rules and particularities need to be observed when buying or selling real estate. Lawyers with experience in the field of tax law would be happy to advise you even in the event of legal disputes with the tax authorities.

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news-253 Wed, 21 Oct 2020 11:48:56 +0200 OLG Frankfurt on indication of origin for sparkling wine from Italy Sparkling wine whose second fermentation phase occurs in Spain can still be advertised as a product that comes from Italy. That was the verdict of the Oberlandesgericht (OLG) Frankfurt – the Higher Regional Court of Frankfurt – in a ruling from September 11, 2020 (Az.: 6 W 95/20).

A sparkling wine can be designated as an Italian product if the grapes were harvested and made into wine in Italy, even if the second phase of fermentation and the associated further processing involved in turning the base wine into sparking wine takes place in another country (in this case Spain). That was the verdict of the OLG Frankfurt in the expedited proceedings, which saw the court dismiss the complaint lodged by a wine producer.

While consumers must not be misled by indications of origin, it is generally not necessary for the entire production process to take place in a single country. We at the commercial law firm MTR Rechtsanwälte can report that the ECJ has already decided as much, for instance, in a case involving mushrooms from Germany.

In the case before the OLG Frankfurt, a winery had been promoting its sparkling wine as an Italian product, yet Italy was only the location where the grapes were being harvested and made into wine. The second fermentation phase and the further processing involving turning the base wine into sparkling wine was taking place in Spain. A competitor therefore concluded that promoting the product as wine from Italy was misleading and in breach of competition law.

However, the OLG Frankfurt took a different view, ruling that the use of “Italien” (Italy) as an indication of origin for the sparkling wine was accurate. The court noted that the grapes were being harvested and made into wine in Italy and that further processing in another country did not change this fact. It held that the wording “zu Wein verarbeitet” (made into wine) was not necessarily a reference to the final product.

Alternatively, the location of the second phase of fermentation (in this case Spain) could have been specified as the country of origin. The OLG Frankfurt went on to explain that the indication of origin required by EU law should cite either the county where the grapes were harvested and made into wine or the country in which the wine underwent further processing to become sparkling wine. The court ruled that it was not the intention of the legislature for all the processing to take place in a single country for an indication of the origin to be valid.

Experienced lawyers can advise on issues relating to indications of origin as well as antitrust and competition law more broadly.

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news-251 Wed, 14 Oct 2020 11:52:38 +0200 OLG München: Golden color not protected as trademark acquired through use The golden color of a chocolate Easter bunny is not protected as a color mark. The Oberlandesgericht (OLG) München – the Higher Regional Court of Munich – found that the producer in question did not enjoy any trademark rights in relation to the color.

In the weeks leading up to Easter, supermarket shelves are stacked with chocolate bunnies. One producer has been packaging its chocolate bunnies in a gold-colored foil for many years. We at the commercial law firm MTR Rechtsanwälte can report, however, that the longstanding use of this color has not given rise to any rights under trademark law. That was the verdict of the OLG München in a ruling from July 30, 2020 (Az.:29 U 6389/19).

The producer has been selling its chocolate Easter bunnies in packaging featuring this golden color for many years. After discovering that a competitor had also placed chocolate bunnies in gold packaging on the market, it decided to file a lawsuit, arguing that the competitor’s conduct infringed its trademark rights.

Yet, in doing so, it did not assert rights arising from its registered color mark but instead invoked an abstract color mark, claiming that consumers would associate chocolate bunnies in this golden color primarily with its products and that the color, having established itself, was protected as a trademark through use.

While the Landgericht München – the Regional Court of Munich – followed this line or reasoning, the OLG München took a different view, ruling that while abstract color marks may enjoy protection as trademarks through use if they acquire a secondary meaning, the plaintiff had failed to meet this condition for the golden color that it was using in the packaging of its chocolate bunnies.

The Court went on to state that in cases where it has already been accepted that a particular color mark has acquired a secondary meaning, the color forms part of the company’s corporate brand for its various products and services. This was found not to be the case here. The OLG held that the golden color in this case was only being used for the varying sizes and flavors of a particular product, noting that consumers were also familiar with the shape of this chocolate bunny. The Court concluded that chocolate bunnies which are packaged in gold foil but that otherwise have an entirely different appearance are not likely to be associated by consumers with the plaintiff’s products. The color was found not to have acquired a secondary meaning and thus had not been used as a trademark. The OLG has granted leave to appeal to the Bundesgerichtshof (BGH) – Germany’s Federal Supreme Court.

Lawyers with experience in the field of IP law can offer comprehensive advice on all issues pertaining to trademark law.

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news-250 Tue, 13 Oct 2020 12:35:39 +0200 Wirecard AG – Claims for damages against corporate bodies and auditors With Wirecard AG now insolvent, investors are potentially facing severe losses. Shareholders and investors in Wirecard bonds and derivatives can assert claims for damages.

While the extent of Wirecard creditors’ losses is as yet incalculable, the liabilities of the former DAX-listed company are likely to be enormous. Media reports are quoting a figure of 1.6 billion euros in bank loans alone. This amount does not include the value of claims brought by other creditors, not to mention the 500 million euros’ worth of bonds that Wirecard only issued in September of 2019.

In light of these significant liabilities, even selling lucrative parts of the business is unlikely to substantially improve the situation for Wirecard investors. The insolvency estate is also unlikely to be large enough to satisfy creditors’ claims. Wirecard shareholders ought to be worried about the prospect of losing all their money considering that their claims will be treated as low priority in insolvency proceedings, i.e. right at the bottom of the priority list. While things look a little rosier for bond investors, they too should anticipate severe financial losses in the course of insolvency proceedings.

Claims can be included in the insolvency schedule once the court has decided to open insolvency proceedings. Investors should then be sure to register their claims in the insolvency schedule as well. We at the commercial law firm MTR Rechtsanwälte note that they can also respond to the looming financial losses facing them by having someone review the possibility of asserting claims for damages.

A few days prior to filing for insolvency, Wirecard AG was forced to admit that 1.9 billion euros it supposedly held in escrow accounts in the Philippines probably do not exist. With the Munich Public Prosecutor’s Office having already opened investigations on suspicion of market manipulation due to allegedly false information, the scope of the investigations has since been expanded.

Given that balance sheet figures were clearly inflated, claims for damages may have arisen against members of Wirecard AG’s executive and supervisory boards, the liability of whom may extend to their private assets. Claims against the auditors are also a possibility. They have been issuing audit opinions for the annual balance sheets over the years despite these seemingly featuring spurious figures.

Lawyers with experience in the field of capital markets law can review Wirecard investors’ claims for damages.

For more Information:

Wirecard AGPressemitteilungen
news-248 Wed, 07 Oct 2020 11:53:12 +0200 Rocket Internet delists its shares – Shareholders facing huge losses Rocket Internet has decided to delist its shares, with the shareholders having approved the buyback offer at the extraordinary general meeting held on September 24, 2020.

The move came as little surprise following repeated speculation surrounding Rocket Internet’s delisting. It is expected to be effected by as early as November after around 81 percent of the shareholders approved the buyback offer, a result that was to be expected given that the founder and CEO of the company owns a large portion of the shares.

For shareholders, these events are anything but a cause for celebration. The company’s delisting confirms their losses, with the SDAX-listed share quoting at 60 percent below the issue price. Rocket Internet has now offered to buy back the shares at a price of 18.57 euros per share. That is the legal minimum price and roughly equal to the current share price, a bitter pill for investors to have to swallow. We at the commercial law firm MTR Rechtsanwälte note that this raises the question of why Rocket Internet’s stock performance has been so unsatisfactory.

Even though the buyback offer of 18.57 euros per share corresponds to the average share price over the past six months, many investors believe the shares to be worth significantly more, referencing valuations made by analysts. They feel like they have been conned.

Criticism of the approach taken by Rocket Internet and of its co-founder is mounting, particularly as the founder’s shares are not affected by the buyback offer. This may be in breach of the principle of equal treatment.

Signs pointing to Rocket Internet’s delisting have been around for some time, meaning the founders could have accounted for the company’s modest performance on the stock exchange and the falling share price. A planned buyback undermines the logic behind any efforts to drive up the share price again.

While investors who opt not to accept the buyback offer do not have to sell their shares, these will likely no longer be tradeable on the German stock exchange and instead only on smaller regional exchanges with significantly less trading activity.

Investors who wish to have someone review their legal options can turn to lawyers with experience in the field of stock corporation law.

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news-242 Mon, 21 Sep 2020 09:32:52 +0200 Wirecard AG – Investigations on suspicion of market manipulation The Munich Public Prosecutor’s Office has conducted a search of Wirecard’s head office in Aschheim near Munich on suspicion of market manipulation.

The raid that took place at Wirecard’s head office on June 5, 2020 appears to have been in response to a criminal charge lodged by the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) – Germany’s Federal Financial Supervisory Authority – concerning ad-hoc announcements made by the company on March 12 and April 22 of this year. When considered in connection with a special report produced by the auditors, these announcements may have given misleading signals with respect to the market price of Wirecard shares. They could give the impression that accusations relating to various accounting irregularities might be refuted by the special report.

Wirecard has come under fire for alleged accounting irregularities for some time now. The company has consistently rejected the accusations made against it. In the interest of clarity, the payment services provider decided to task an auditing firm in the fall of 2019 with conducting an independent special investigation. Following multiple delays, the report was submitted on April 28, 2020. It lays out an entire list of criticisms. Wirecard’s share price subsequently experienced a significant drop in value.

According to media reports, the auditors accused Wirecard of having delayed the investigations and belatedly made documents available in some cases and not at all in others.

The ad-hoc announcements made prior to the publication of the special report paint a different picture. The shareholders are now faced with the question of whether they ought to feel reassured or deceived by these announcements. Members of the executive board are therefore being investigated on suspicion of market manipulation.

Wirecard stresses that it is the board members and not the company which are the subject of these investigations, noting that the annual and consolidated financial statements for 2019 are expected to be released on June 18, 2020 as planned.

This is reassuring news for shareholders of Wirecard AG. We at the commercial law firm MTR Rechtsanwälte note that if the company has failed to comply with its reporting obligations vis-à-vis its shareholders, providing inaccurate or incomplete information, this may give rise to claims for damages.

Investors are already piling pressure on the company, accusing it of potentially supplying erroneous information. In addition, a formal request has been submitted to open model case proceedings pursuant to the German Capital Markets Model Case Act (Kapitalanleger-Musterverfahrensgesetz, KapMuG).

Lawyers with experience in the fields of capital markets and stock corporation law can assist shareholders of Wirecard AG in enforcing their rights.

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AktienrechtPressemitteilungenWirecard AG
news-241 Wed, 16 Sep 2020 10:01:21 +0200 Wirecard AG files for insolvency – Options available to investors The accounting scandal facing Wirecard AG has ended in insolvency for now. Those who invested in Wirecard stocks and bonds find themselves faced with the question of whether they can claim damages.

The writing was clearly on the wall when Wirecard AG failed once again to present its annual and consolidated financial statements for 2019, with the auditors refusing to issue an audit opinion and the company shortly thereafter announcing that 1.9 billion euros supposedly held in escrow accounts in the Philippines probably do not exist. Wirecard AG later announced on June 25 that it was submitting paperwork to the Amtsgericht München – the District Court of Munich – to open insolvency proceedings due to impending insolvency and over-indebtedness.

Wirecard AG’s meteoric rise to the heights of the DAX is matched only by its dramatic fall. Once worth almost 200 euros, a single share is valued today at less than one euro. For those holding shares or bonds in the company, the collapse in value entails severe financial losses.

Wirecard shareholders cannot file to have their claims included in the insolvency schedule until insolvency proceedings have been officially opened. However, those anticipating a high insolvency dividend should not get their hopes up; shareholder claims will be treated as low priority, i.e. the claims of the other creditors will be given priority. While things look a little rosier for bond investors in this respect, they too should not expect to receive a large payout in the course of insolvency proceedings.

We at the commercial law firm MTR Rechtsanwälte note that Wirecard investors can assert claims for damages as a means of minimizing financial losses, citing a breach of the German Securities Trading Act (Wertpapierhandelsgesetz, WpHG). Wirecard may have breached its reporting obligations by including false information in mandatory stock market disclosures. Investigations by the Munich Public Prosecutor’s Office due to suspected market manipulation are already underway.

Following the events of the past few days, the scope of these investigations has widened. In addition to inflated balance sheet figures and blatant incongruities, suspected fraud is now also part of the equation. This means that board members and those responsible at Wirecard are facing possible claims for damages. The auditors who apparently rubber-stamped the balance sheets over the years, despite them showing sums that clearly never existed, may be facing the same fate.

Wirecard investors can turn to lawyers with experience in the fields of capital markets and stock corporation law.

For more information:

AktienrechtPressemitteilungenWirecard AG
news-239 Mon, 14 Sep 2020 09:38:36 +0200 Scale of Wirecard AG accounting scandal grows The scale of the accounting scandal besetting Wirecard AG continues to grow. Wirecard’s running assumption is that 1.9 billion euros supposedly held in escrow accounts likely never existed. The company has experienced a dramatic drop in the value of its shares.

Wirecard AG has been the subject of criticism due to accounting irregularities for some time now. Seeking to dispel doubts, the payment services provider had planned on presenting its annual and consolidated financial statements on June 18, 2020 following multiple delays. Yet this too came to nothing. The reason: a lack of evidence corroborating bank account balances to the tune of 1.9 billion euros, an amount equivalent to around a quarter of the group’s total assets that was supposedly lying in escrow accounts at Asian banks.

According to an announcement made by the company on June 22, 2020, Wirecard now fears that the 1.9 billion euros in all probability does not exist. Until this point in time, the DAX-listed company had been operating on the assumption that the accounts did exist, presenting them as assets on its balance sheets. The banks in the Philippines had previously stated that Wirecard AG was not a client of theirs and that documents potentially showing balances on accounts at their banks must have been falsified.

The repercussions have been severe. Wirecard subsequently withdrew its estimated preliminary earnings for 2019 and the first quarter of 2020, it also not being possible to rule out an impact on previous years’ financial statements. The former chief executive and another board member have since resigned from their posts. After failing to present the annual accounts on June 18, Wirecard announced charges against persons unknown, presenting itself as a possible victim of “gigantic fraud.”

The Munich Public Prosecutor’s Office is already investigating four board members on suspicion of market manipulation, two of whom are no longer in their posts.

Faced with one bad headline after another, Wirecard’s share price has fallen sharply. We at the commercial law firm MTR Rechtsanwälte note that shareholders have the option of asserting claims for damages. These claims may have arisen due to the company having failed to meet its reporting obligations and making false or incomplete disclosures. They may also stem from inaccurate information in the balance sheets, it potentially being possible to direct such claims against the company’s auditors.

Shareholders of Wirecard AG can turn to lawyers with experience in the fields of capitals markets and stock corporation law.

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news-237 Thu, 10 Sep 2020 14:29:54 +0200 New attempt to establish Unified Patent Court There is a desire for the process of issuing patents within the EU to be made more efficient. The idea of establishing a Unified Patent Court is seen as a positive step in this direction. The Bundesministerium der Justiz und für Verbraucherschutz (BMJV) – Germany´s Federal Ministry of Justice and Consumer Protection – has submitted a new bill as part of a second attempt to do so.

The plan is for there to be a Unified Patent Court to deal with disputes concerning the infringement and validity of European patents, with courts of first instance established in the Members States and a court of appeal set up in Luxembourg. A broad consensus has emerged in Germany in favor of participating in the Agreement on a Unified Patent Court, with the German Bundestag having already passed legislation designed to enact the agreement. Yet in March of 2020, the Bundesverfassungsgericht – Germany’s Federal Constitutional Court – decided to throw a spanner in the works (Az.: 2 BvR 739/17).

We at the commercial law firm MTR Rechtsanwälte can report that the court declared the legislation null and void, ruling that despite being passed unanimously by the Bundestag, the mere 35 members of Germany´s lower house of parliament present at the vote did not satisfy the requirement for there to be a two-thirds majority.

The BMJV is now making a second go of it, introducing a new bill on June 10, 2020. According to the Ministry, the proposal for remedying the procedural irregularity admonished by the Bundesverfassungsgericht is for the legislation designed to enact the international agreement to be passed by the Bundestag and Bundesrat with the required majority.

The Agreement on a Unified Patent Court has since been ratified by 15 EU Member States. In order for it to come into force, it must still be approved by Germany.

Should the agreement enter into force, the Unified Patent Court will adjudicate on the infringement and validity both of European patents under the terms of the European Patent Convention and European patents with unitary effect (“Unitary Patents”). The plan is for courts of first instance to be established in Germany in Düsseldorf, Hamburg, Mannheim, and Munich.

In this way, the process of issuing patents in the EU is supposed to become more efficient. While it has up till now been possible for decisions on patent applications to be taken centrally by the European Patent Office, the patents still need to be approved by each EU Member State in order for them to become effective. The aim is now for the European Patent Office to be able to issue Unitary Patents that apply automatically throughout the EU. The reforms also include the establishment of a Unified Patent Court.

Lawyers with experience in the field of IP law can advise on issues relating to patents.

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IP RechtPressemitteilungen
news-236 Wed, 02 Sep 2020 11:09:40 +0200 BGH upholds trademark protection for square design In rulings from July 23, 2020, the Bundesgerichtshof (BGH) – Germany´s Federal Supreme Court – confirmed that three-dimensional forms, including the shape or packaging of goods, are capable of benefiting from trademark protection (Az.: I ZB 42/19 and I ZB 43/19).

They can often be found close to each other on the supermarket shelves. One has a square design, the other has a rectangular shape. The producer of the square product had the shape of the packaging registered as a trademark, much to the displeasure of the other producer, which has been trying to have the registration cancelled for years. But these efforts have ultimately been in vain. The BGH has since ruled that the cancellation requests were unfounded and the three-dimensional shape marks continue to benefit from trademark protection.

According to Section 3 of the German Trademark Act (Markengesetz, MarkenG), any sign that is capable of distinguishing the goods or services of one enterprise from those of other enterprises is eligible for trademark registration. This also covers the shape of goods, including their packaging. We at the commercial law firm MTR Rechtsanwälte note, however, that trademark registration may be precluded by grounds for refusal if the signs consist exclusively of shapes or other distinctive features that give substantial value to the goods.

Yet this was not the case with respect to the square shape and packaging of the goods in the legal dispute in question according to the BGH. The registered trademarks were deemed not to consist exclusively of a shape that gave substantial value to the goods. The court held that the only essential feature of the trademark-registered packaging was its square background, which it found did not give substantial value to the product.

The BGH went on to list the key factors that inform this necessary assessment as the product category type, the artistic value of the design, its distinctiveness in comparison to other designs used, a significant difference in price vis-à-vis similar products, and a marketing strategy whose primary focus is the product´s aesthetic qualities.

It ruled that there can be said to be grounds for refusal if objective and reliable sources would conclude that consumers´ decision to purchase the relevant product primarily comes down to this feature. However, the BGH found that this was not the case here, reasoning that consumers perceived the square shape as more of an indication of the goods´ origin, thus giving rise to certain expectations as to quality in their minds. But the design did not give substantial value to the product. Accordingly, the court found there to be no obstacle precluding trademark registration.

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news-234 Mon, 31 Aug 2020 09:36:28 +0200 COVID-19 – Substandard Quality of Masks and Other Protective Equipment The coronavirus pandemic is not over. Respiratory masks and other protective gear remain vital. However, the issues of quality and outstanding invoices are also increasingly taking center stage.

The global number of coronavirus infections continues to increase, with the number of people infected with COVID-19 rising once again in Germany. The Robert Koch Institute cites people’s failure to continue to sufficiently abide by social distancing and hygiene measures as the principal cause. Those returning from vacation were said to be only a minor contributor to this trend.

With the increase in the number of coronavirus infections, the issue of protective equipment in healthcare, the workplace, and in private settings is gaining prominence once more. This also includes – in addition to the classic masks that cover the mouth and nose – for example, protective gowns, protective goggles, and disposable gloves.

When the crisis surrounding the coronavirus first took root in Germany, protective equipment was in short supply due to high demand. Even disreputable providers who were bringing the classic masks and other protective gear of poor quality to market have been prompted to take action in response to the supply bottlenecks.

The has led to retailers increasingly experiencing difficulties in the form of their customers bringing claims for damages against them due to the poor quality of the goods. The retailers themselves may be able to assert claims for damages against their suppliers. We at the commercial law firm MTR Rechstanwälte note that in order for this to happen, the contracts need to be carefully reviewed and the details clarified for whether the goods satisfy the level of quality that was agreed.

It is generally important to ensure that masks as well as any other protective gear come with the necessary certificates. Respiratory masks usually have to comply with European Regulation 2016/425/EU on personal protective equipment (PPE). The coronavirus crisis has seen protective equipment deemed acceptable despite a lack of appropriate documentation if it meets the standards of protection in the U.S., Canada, Australia, or Japan. At the same time, protective equipment has increasingly been introduced onto the market with forged certificates. The certificates should therefore be reviewed with a view to establishing whether they are authentic and plausible.

If respiratory masks and other protective gear are duly delivered and free from defects, then the distributors are naturally entitled to have their invoices paid. There have recently been reports of payment delays. Given the often considerable sums of money at stake, distributors ought to take prompt action in asserting their rights.

Lawyers with experience in the field of commercial law can offer advice.

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news-233 Thu, 27 Aug 2020 00:06:59 +0200 COVID-19 & Protective Masks – Distributors Left With Outstanding Invoices People wearing protective masks have become a common sight since the outbreak of the coronavirus. Yet the quality of some of these masks and the outstanding invoices are becoming a source of frustration.

Respiratory masks are among the measures that are meant to protect people from being infected with the coronavirus. It is now compulsory to wear the classic masks that cover the mouth and nose while shopping or traveling on public transport. These are designed first and foremost to protect others we may encounter. Then there are the more expensive particle-filtering FFP masks that are also designed with your own protection in mind and available in three different protection levels. In order to avoid shortages of FFP2 masks, Germany’s federal government budgeted for an order of around one billion FFP2 masks as part of a bidding process at the outset of the crisis, an order volume valued at approx. 4.5 billion euros.

An order of this magnitude subsequently proved to be unnecessary. The German tabloid Bild reported that according to a ministry spokesperson the federal government was expecting a mere 198 million FFP2 masks, with 1.2 billion euros claimed to have been allocated to this end. However, the newspaper also reported that there have been delays in the payment of invoices, with the reasons cited for non-payment including, for instance, missing delivery notes or TÜV protocols. A portion of the masks are also said to be defective.

Can the distributors expect to be left with outstanding invoices? We at the commercial law firm MTR Rechtsanwälte can reassure those concerned that goods which are duly delivered and free from defects must be paid for. Failure to render payment means that claims can be brought. Given the often considerable sums of money at stake and the potential economic threat posed to these companies’ existence, action ought to be taken immediately.

Another set of problems is besetting retailers who ordered protective masks from China, only to discover that the goods are defective. They can expect to have claims for damages brough against them by their customers.

The contracts in these cases also need to be carefully reviewed. It needs to be determined what was contractually agreed and to what extent the contracts have not been complied with. If the goods are defective, claims for damages can also be brough against the suppliers in China.

Lawyers with experience in the field of commercial law can offer advice.

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news-232 Mon, 24 Aug 2020 12:58:46 +0200 BFH: Interest on the deferral of compensation for forgoing the statutory share subject to taxation In the event that an heir waives their right to the statutory share in the estate and opts to defer claiming compensation, the deferral interest is subject to income tax. That was the verdict of the Bundesfinanzhof, Germany’s Federal Fiscal Court (Az.: VIII R 22/17).

It is not uncommon for claims to the statutory share in an estate to be waived, particularly if the spouses mutually appoint each other as sole heirs in their will in the first place. This often goes hand in hand with an arrangement with the children to forgo the statutory share in the estate, thus ensuring that the surviving partner is financially protected following the death of the other partner and preventing the children who are entitled to inherit from claiming the statutory share. We at the commercial law firm MTR Rechtsanwälte note that this kind of arrangement may provide for compensation.

Such were the circumstances in the case in question that came before the Bundesfinanzhof. Here, the parents – having mutually appointed each other in their will as sole heirs – entered into a notarized agreement with their children in 1994, pursuant to which the latter were to waive their claim to the statutory share in the estate. Each child was to receive a settlement worth around 77,000 euros as compensation. One of the daughters issued a notarized declaration stating that she would initially waive her right to the settlement. The sum – accruing interest at a rate of 5 percent p.a. – was not to be paid out to her until the longest-living parent passed away. The compensation was paid out in 2015, with the daughter receiving around 157,000 euros including interest.

By deferring her entitlement to claim compensation, the daughter received approx. 80,000 euros in interest. However, she had not accounted for the tax office, which sought to tax the interest as income from capital.

The daughter refused to accept this, claiming that the sum was not subject to taxation because it had come from a gift made by her parents while they were still alive. The Finanzgericht granted to action, ruling that no portion of the payment made by the parents was taxable.

The Bundesfinanzhof nevertheless overturned the decision in a judgment from August 6, 2019. The payment of interest for the deferral of compensation was said to have given rise to the accrual of investment income that was subject to taxation.

Tax-optimized arrangements are crucial when it comes to gifts or forgoing the statutory share in an estate. Lawyers with experience in the field of tax law can offer advice.

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news-231 Fri, 21 Aug 2020 09:40:53 +0200 FG München: Stock splitting does not give rise to capital gains tax Investors who acquire new shares in the course of a corporate spin-off are not required to pay withholding tax on this. That was the verdict of the Finanzgericht (FG) München, the Fiscal Court of Munich (Az.: 8 K 981/17).

Whether shareholders have to pay withholding tax in response to a stock split is a contentious legal issue. In a judgment from December 19, 2019, the Finanzgericht München has now ruled that investors do not need to pay withholding tax if they receive new shares as part of a corporate spin-off. We at the commercial law firm MTR Rechtsanwälte note that the court’s judgment forms part of a wider trend of consumer-friendly rulings.

In the case in question, a married couple received shares in an American company. When the latter changed its name in 2015, it transferred parts of the business to a subsidiary as part of a spin-off. The investors received shares in the renamed company for their old shares as well as an additional share each in the subsidiary. The couple’s shares were registered to their securities account at their bank. The bank categorized the allocation of the shares in the subsidiary as a taxable distribution in-kind and deducted capital gains tax. The tax office did not wish to take into account the capital gains tax deduction for income tax purposes.

The couple, taking the view that the allocation of shares in the subsidiary merely amounted to a tax-neutral repayment of capital, took action against this decision. The claim was successful before the Finanzgericht München.

The court held that the shares in the subsidiary which the plaintiffs had received in the context of the business being restructured did not amount to taxable income from capital. It noted that the prerequisites for a spin-off in terms of section 20(4)(a) sentence 7 of the German Income Tax Act (EInkommensteuergesetz, EStG) had been met. From a tax perspective, the new shares thus took the place of the previous ones. The FG München went on to confirm that the spin-off did not give rise to any taxation at the time the shares were allocated.

The ruling is not yet final. The FG München has granted leave to appeal to the Bundesfinanzhof (BFH), Germany’s Federal Fiscal Court.

A similar judgment was delivered by the Finanzgericht Düsseldorf (Az.: 13 K 2119/17 E). This shows that investors who have wrongly been made to pay capital gains tax might be able to reclaim it, notwithstanding the fact that the BFH is expected to have the final word on the matter.

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news-228 Wed, 05 Aug 2020 15:29:10 +0200 Hague Convention on the Enforcement of Foreign Judgments in Civil and Commercial Matters The 2019 Hague Convention is supposed to greatly facilitate the cross-border enforcement of foreign judgments in civil and commercial matters.

A ruling by a foreign court cannot necessarily be enforced in Germany, and the same is true of enforcing a ruling by a German court in a foreign country. While the rules governing the recognition and enforcement of court judgments among the member states of the European Union are set out in regulations, the situation is more complicated in the case of third countries with no bilateral agreements. This can result in a successful plaintiff nonetheless having nothing to show for it or needing to pursue legal proceedings in another country. We at the commercial law firm MTR Rechtsanwälte note that the Hague Convention of July 2019 is meant to facilitate the recognition and enforcement of foreign judgments in civil and commercial matters.

In February of 2020, the European Commission released a public consultation on signing and ratifying the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. Response statements were being accepted up until mid-March.

The EU has been closely involved in the development of the convention from the outset. The goal is to facilitate access to the courts and the cross-border enforcement of judgments in civil and commercial matters. Part of the plan is for the judgments of countries that sign up to the multilateral convention to be automatically recognized and readily enforceable in other signatory states. This is meant to ensure greater legal certainty for both individuals and businesses.

The convention also provides for derogations, most notably in relation to family law, trusts and estates law, data protection rights, and intellectual property. Competition law is similarly subject to derogations, though these require there to be arrangements that conflict with antitrust law.

Refusing to recognize foreign judgments can only be justified based on certain specific grounds. The substance of the judgments is not re-examined. There is an important exception: judgments that award damages do not have to be enforced. This may be particularly relevant in the case of judgments issued by U.S. courts awarding punitive damages.

Experienced lawyers can advise on enforcing foreign judgments.

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Vollstreckung ausländischer UrteilePressemitteilungen
news-227 Wed, 05 Aug 2020 14:34:40 +0200 Ship Funds – Damages and Recovery of Distributions Ship funds have long been considered a safe capital investment. In the wake of the 2008 financial crisis, many investment companies were forced to file for insolvency and investors lost a lot of the money they had invested.

Ship funds have long been considered a safe capital investment that maintains a stable value over time and are popular among investors as a result. However, in recent years many of these investors have had to learn the hard way that ship funds are risky rather than safe capital investments. In the wake of the 2008 financial crisis, lots of ship funds experienced serious economic hardship, frequently giving way to insolvency of the investment company together with substantial financial losses for investors.

In many cases, insolvency was not the end of the matter for investors, with insolvency administrators often demanding the repayment of distributions that had already been paid to the investors. Yet these investors are not without recourse, it being possible to assert claims for damages within the statutory limitation periods. We at the commercial law firm MTR Rechtsanwälte also note that the recovery of distributions is not justified in each instance and investors can fight back.

The insolvency of an investment company often leads to a revival of limited partner liability. In practice, this entails the insolvency administrator demanding that investors repay distributions. However, this is only possible if the distributions were not related to profit and the insolvency estate is not sufficient to satisfy the creditors’ claims without repayment. Additionally, the claim for repayment must not already have become time-barred. It is worth noting that the starting point for the limitation period may be as early as when illiquidity is established and thus before the onset of insolvency. That is why there needs to be a case-by-case assessment of whether the recovery of distributions by the insolvency administrator is justified.

The investment company can only recover the distributions if there are clear provisions to this end in the articles of association.

A revival of limited partner liability is not the only risk faced by investors investing in ship funds. Other risks include, for example, difficulty trading shares or the risk of the investment being written off. If the risks were not disclosed during the investment consultation process, it is possible to assert claims for damages within the framework of the statute of limitations. It is particularly important to be mindful of the ten-year limitation period, after which claims are no longer enforceable.

Lawyers with experience in the field of capital markets law can offer advice.

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news-225 Mon, 03 Aug 2020 15:58:41 +0200 Discount Demands and Antitrust Law Germany’s Federal Cartel Office, the Bundeskartellamt, has thrown its weight behind suppliers faced with demands for excessive discounts, and a furniture store chain has had to come to terms with limitations being imposed on its demands by antitrust law.

Businesses are not allowed to abuse their market power and put pressure on their suppliers as a means of obtaining undue advantages for themselves. That was the verdict of Germany’s Federal Supreme Court – the Bundesgerichtshof (“BGH” for short) – with respect to so-called “Hochzeitsrabatte” (wedding discounts). A supermarket chain had demanded discounts and other perks from its suppliers following its acquisition of numerous stores from a discount supermarket. We at the commercial law firm MTR Rechtsanwälte can report that in a ruling from January 2018, the BGH held that, in doing so, the company was abusing its market power (Az.: KVR 3/17).

A similar situation arose concerning a furniture store chain. In this case, the Bundeskartellamt was able to persuade the chain to back away from its blanket demand for an anniversary discount from its suppliers – potentially a violation of antitrust law. Instead, the discounts have now been negotiated individually with each supplier.

As indicated by the Bundeskartellamt on February 27, 2020, the original demands for a special discount from small and medium-sized furniture manufacturers potentially amounted to abuse. It noted that even though discounts of this kind are not prohibited as a rule, the suppliers that are dependent on their supply relationship with the furniture store chain needed to be offered appropriate consideration, e.g. in the form of additional exhibition space or a performance guarantee. The cartel office went on to state that in particular small and medium-sized enterprises are meant to be protected by the so-called “Anzapfverbot”, i.e. the prohibition on demanding unjustified benefits from suppliers, thus ultimately maintaining variety for consumers.

The furniture store chain has since replaced its demand for a blanket discount with individually negotiated anniversary discounts with its suppliers. According to the Bundeskartellamt, this has resulted in discounts that are on average significantly lower than what was originally demanded. It also reported that arrangements had been concluded regarding consideration.

The arrangements were all submitted to the Bundeskartellamt, which did not raise any further concerns. Accordingly, the cartel office will not be passing any further judgment on the original discount demands.

Businesses must not abuse their market power, as such behavior can easily constitute a violation of antitrust or competition law. Violations of this kind may be met with severe penalties. Lawyers with experience in the field of antitrust law can offer advice.

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news-224 Mon, 03 Aug 2020 14:57:45 +0200 Advantages of Arbitration The courts are not the only venue for settling legal disputes. Arbitration proceedings are a good alternative in many domestic and international cases.

Arbitration proceedings have several advantages over judicial proceedings. The former can be conducted more quickly, are less expensive, and are closed to the public. Moreover, the parties are able to choose the arbitrators, provided the latter are free and independent. One benefit of this is that it means real experts who are well acquainted with the subject matter can be chosen. We at the commercial law firm MTR Rechtsanwälte note that the outcome of these proceedings replaces a court judgment and can be enforced both domestically and abroad.

Another important benefit of arbitration proceedings is the fact that they often achieve legal certainty much more quickly. Whereas the parties to court proceedings can potentially appeal multiple times to higher courts, the outcome of arbitration proceedings is normally binding and final at first instance, there being no opportunity to appeal. Indeed, the decision can only be contested in limited circumstances by a regular court of law.

For arbitration proceedings to be initiated, the parties must have concluded a binding arbitration agreement. This can be agreed within the framework of contractual negotiations and affords the parties considerable leeway, it being possible at this early stage to determine key aspects such as the location and language of proceedings, the arbitrations rules, the arbitrators, and, in particular, the applicable substantive laws. That being said, it is equally possible to conclude the arbitration agreement shortly before a legal dispute comes to a head.

The choice of applicable laws or the language of proceedings is particularly significant in cases involving international trade relations. Arbitration proceedings allow the parties to avoid getting themselves into unknown legal territory or involved in litigation risks that are difficult to assess. The final outcome is internationally recognized and enforceable.

Experienced lawyers can advise on concluding arbitration agreements as well as other issues relating to arbitration.

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news-223 Mon, 03 Aug 2020 13:49:07 +0200 Criminal tax law continues to apply to requests for tax deferral during the coronavirus crisis Tax evasion is constituted by sharing inaccurate or incomplete information with the authorities. This also holds true during the coronavirus crisis, tax relief notwithstanding.

To help weather the economic impact of the crisis surrounding the coronavirus, Germany’s federal government has decided to pass tax relief that allows companies and the self-employed to, among other things, defer payment of income tax, corporation tax, and sales tax without incurring interest. It will now also be possible to adjust advance payments. The relevant applications can be submitted to the competent tax office. However, this does not amount to a free ride. We at the commercial law firm MTR Rechtsanwälte note that the information needs to be accurate and complete, otherwise those responsible may be guilty of an offense.

Section 370 of the German Fiscal Code (Abgabenordnung, AO) cites as behavior constituting tax evasion, among other things, sharing inaccurate or incomplete information about facts of material relevance from a tax perspective with the tax authorities or other government agencies, or failure to disclose facts of this nature to the authorities, resulting in lower taxes or other unjustified benefits. The legislation also provides that merely attempting to do so is punishable. Possible consequences arising from a tax offense include fines as well as custodial sentences.

Naturally, this provision equally applies to requests for tax deferral stemming from the coronavirus crisis. Deferring taxes is also viewed as a tax benefit. At the very least, a frivolous understatement of tax as defined in section 378 AO is on the cards. Fines are a possibility here as well.

Anyone accused of committing a tax offense ought to take action immediately, as tax offenses are systemically punished with fines or custodial sentences. In particularly egregious cases, a prison term of anywhere between six months and ten years is possible. Germany’s Federal Supreme Court – the Bundesgerichtshof (“BGH” for short) – starts from the premise that a case is particularly egregious from as little as 50,000 euros in evaded taxes, though the prison sentence may ultimately be suspended.

Having said all that, the first thing that needs to be assessed is whether the charge is, in fact, justified. Should proceedings ensue, an attorney-client relationship based on trust and discretion is essential to coordinating an effective approach.

The extent of the tax evasion also has a major influence on sentencing. If accusations are made on the back of company audits or tax investigations in connection with requests for tax deferrals stemming from the coronavirus crisis, lawyers with experience in the field of criminal tax law should be consulted as soon as possible.

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news-221 Fri, 31 Jul 2020 16:18:33 +0200 Be Prepared for Anything with Detailed Agreements The coronavirus has made it painfully clear how important it is for agreements to be as detailed as possible and to account for exceptional circumstances in order to avoid legal disputes.

Save for a small number of restrictions, contract law starts from the assumption of contractual freedom. It is for the parties to settle on the terms of any contractual agreement. While it is generally not necessary for agreements to adopt a particular form – oral agreements, for instance, are also possible – we at the commercial law firm MTR Rechtsanwälte nonetheless recommend that agreements be concluded in writing and include as much detail as possible on the rights and obligations of the contractual parties in order to avoid legal disputes wherever possible.

Many contractual agreements cannot be implemented at the present time due to the coronavirus pandemic. This raises the issue of liability, which in turn paves the way for force majeure to swiftly – but in many cases also prematurely – take center stage. However, even in the midst of the current crisis surrounding the coronavirus, it is not the case that every breach of contract justifies invoking force majeure. For instance, the debtor must not have deliberately or negligently precipitated the circumstances that make it impossible to render the agreed contractual services.

The inclusion of provisions that deal with force majeure and, in particular, the scope of its application, ought to be considered before the agreement is concluded, as it is not always a requirement for the terms to cover, for instance, the outbreak of a pandemic or government-imposed quarantine.

The same level of attention should, of course, be paid to all other contractual terms and to ensuring that the rights and obligations of the contractual parties are clearly defined. The parties ought to plan for proactive action, possible scenarios, and the resulting consequences in order to avoid being faced with nasty surprises at a later date. In this way, potential problems can be reduced to a minimum thanks to clear and unambiguous contractual arrangements.

Violating contractual obligations may have legal consequences such as price reductions, withdrawal from the contract, or even give rise to claims for damages. At the same time, both domestic and international regulations need to be observed.

Agreements obviously have to comply with legal requirements, extensive contractual freedom notwithstanding. Provisions that are illegal or contra bonos mores have the potential to render the entire agreement null and void.

Lawyers with experience in the field of contract law can offer advice.

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news-220 Fri, 31 Jul 2020 13:06:29 +0200 Distribution Law – Legally Sound, Flexible, and Forward-Looking Agreements The sale of goods and services requires an efficient distribution system that complies with complex domestic and international legal frameworks.

An efficient distribution network is a key component of a company’s economic success, with different distribution channels for goods and services depending on the company’s industry. Legally sound collaboration with distribution partners based on mutual trust is a prerequisite for an efficient distribution system. Authorized dealers, commercial agents, franchise systems, selective distribution systems, and also increasingly online distribution, play an important role.

As important as partnerships based on mutual trust are in distribution law, it is equally crucial to comply with the various complex legal requirements in connection with both the domestic as well as the international distribution of goods. As such, it is also necessary to take account of antitrust and competition rules. We at MTR Rechtsanwälte can serve as a single interdisciplinary source of advice to our clients, ensuring their distributions systems are the best fit for them and placing them on a solid legal footing.

The rights and obligations of distribution partners ought to be set out in contracts in as much detail as possible. Unfortunately, the coronavirus pandemic is putting lots of existing business relationships through their paces, it not being possible in many cases to deliver goods or open for business.

As a rule, the parties must honor the contractual commitments they have entered into. While it is possible to be released from the obligation to perform on account of force majeure or the inability to render the agreed contractual services, the directives issued by the authorities in response to the coronavirus pandemic do not give the parties carte blanche in this respect. Should the restrictions imposed by the government remain in place for some time to come, consideration could be given to whether the basis on which the contracts were concluded has been undermined. If so, it might be possible to amend or even terminate the contracts.

The crisis surrounding the coronavirus has made it abundantly clear that partnerships according to distribution law ought to be resilient, flexible, and forward looking. For this reason, the structure of distribution networks should be reviewed and optimized on a regular basis.

Lawyers with experience in the field of distribution law can provide complex legal services from a single source.

news-219 Thu, 30 Jul 2020 11:35:50 +0200 IP Law – Protection of intellectual property and intangible assets Intellectual property is just as worth protecting as tangible assets. IP law covers the protection of rights pertaining to trademarks, designs, patents, copyright, and related rights.

When it comes to the term “intellectual property”, the first things people typically think of are works of art, literature, music, and the like. Yet the term is defined more broadly, also encompassing exclusive rights to intangible assets. Accordingly, rights relating to trademarks, designs, and patents also fall within the definition of intellectual property.

This also means that intangible assets utilized primarily for commercial ends are intellectual property as well. These assets are protected under industrial property law. However, its scope is too narrow in many instances, as it does not encompass copyright. We at the commercial law firm MTR Rechtsanwälte note that IP law casts a wider net, covering both industrial and intellectual property law.

IP law covers the protection of personal intellectual creations in literature, science, art, music, and related property rights, as well as industrial property rights such as those pertaining to the protection of trademarks, indications of geographical origin, designs, and patents. These different sets of rights can sometimes be at odds with one another, which makes it all the more important to obtain interdisciplinary legal advice. We at MTR Rechtsanwälte can serve as a single source of advice.

The protection of intellectual property is of equal importance to creators and companies, both of whom wish to prevent third parties from exploiting and profiting from the success of their work or product. Securing effective protection should therefore be an initial priority.

In the case of intangible industrial assets, trademark protection is particularly important. A brand may represent an asset of substantial value to businesses, with the potential to continue appreciating depending on the level of consumer awareness. For this reason, it ought to be registered as a trademark. In doing so, attention needs to be paid to the territorial scope of trademark protection, whether this encompasses national boundaries, the EU, or is even broader in scope. At the same time, trademark infringements can be prosecuted and penalized.

Legal disputes also commonly revolve around copyright law. This is supposed to protect intellectual property both materially and immaterially, though furnishing evidence can potentially prove to be difficult. That is why it is a good idea to consult lawyers with experience in the field of IP law early on.

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IP RechtPressemitteilungen
news-214 Thu, 30 Jul 2020 00:02:01 +0200 International Tax Law – Implications of COVID-19 for Double Taxation Agreements Double taxation agreements play a pivotal role in international tax law. A number of bilateral agreements have had to be temporarily amended due to the crisis surrounding the coronavirus.

The crisis has seen a shift away from traditional work environments to home offices. Such a move does not have tax implications as long as the home and the workplace are located in the same country. However, cross-border commuters living in one country and working in another may find themselves in a different situation. By performing their work from home – whether for reasons of safety or because they do not want to have to cross the border day in and day out – they are working from not only a home office but also a different country. This can give rise to changes in the tax base. We at the commercial law firm MTR Rechtsanwälte note that this may occur, for instance, if the worker spends more than a certain number of days working outside the country in which they normally perform their work.

In cases where a citizen works in one country and lives in another, the countries in question typically have a double taxation agreement in place that determines which country is entitled to levy tax. Home office work is regulated differently in these bilateral agreements and a change in the tax base is possible under the current circumstances. While home office arrangements do not render amendments, for example, to the double taxation agreement with France necessary, other agreements need to be amended in response to the situation.

Germany’s Federal Ministry of Finance therefore recently concluded special arrangements for a limited period of time with the Netherlands, Austria, and Luxembourg. These ensure that workers who ordinarily work across borders do not incur additional tax burdens due to the increased home office workload.

The special arrangements apply to workdays spent in a home office environment as a consequence of the coronavirus pandemic. They do not apply to workdays where the plan was already to work from home or in a third country. The arrangements are in place for a limited period of time and will be suspended once the restrictions imposed in response to the coronavirus pandemic are eased.

The implications from a tax perspective of aspects pertaining to permanent establishments or the location of the effective center of management equally need to be considered at this time.

Experienced lawyers can advise private individuals and companies on all matters relating to international tax law.

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news-207 Wed, 15 Jul 2020 14:05:23 +0200 Marc Klaas at MTR Rechtsanwälte – One of Germany's leading M&A lawyers Marc Klaas at MTR Rechtsanwälte has been featured in this year’s ranking of Germany’s best lawyers in the category of mergers and acquisitions (M&A).

Each year, the renowned U.S. publisher Best Lawyers recognizes the best lawyers in various legal fields. This year has seen the inclusion of Marc Klaas in its M&A ranking, a particular honor given the exceptional challenges faced by practicing M&A attorneys in 2020 due to the coronavirus pandemic.

To be featured in Best Lawyers’ ranking has long been considered a special honor among lawyers and law firms alike. The signature feature of the ranking is that it is based on a survey of lawyers who evaluate the quality of the work of their colleagues from other firms and make recommendations accordingly. The fact that the lawyers who take part in the survey also state that they would recommend these colleagues from other law firms to their clients in the event that they themselves were unable to accept a brief highlights the level of esteem in which they are held.

Marc Klaas’ inclusion in the ranking for M&A thus represents a vote of confidence in not only Marc himself but also the entire team at MTR Rechtsanwälte.

Best Lawyers M&A ranking carries particular weight this year. The coronavirus pandemic has ushered in dramatic changes to the work of attorneys – especially in the field of mergers and acquisitions – placing extraordinary demands on legal practitioners. Instead of traveling and meeting with business partners in person, discussions have been and will continue to be increasingly conducted via telephone and video conferencing in the name of social distancing.

Crucially, experience has shown that it is possible even in the midst of this crisis surrounding the coronavirus to serve clients with the same level of intensity and quality as before.

Our priority here at MTR Rechtsanwälte is providing clients with comprehensive advice on all legal matters pertaining to mergers and acquisitions.

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news-205 Mon, 13 Jul 2020 09:26:51 +0200 International procedural law in cases involving cross-border litigation With the increasing internationalization of many areas of life, international procedural law is playing an ever more important role in legal disputes.

Globalization, internationalization, and European integration have transformed many areas of life. This is equally true for private life as it is for commercial life. Naturally, they have also had an impact on case-law dealing with cross-border litigation. We at the commercial law firm MTR Rechtsanwälte note that both a thorough understanding of international rules and regulations as well as expertise in the field of international procedural law are necessary in this context.

Internationalization has implications for nearly every field of law, whether it is concerned with regulating commercial and business relationships or private life, e.g. divorces in cases involving international marriages or inheritance matters with a foreign connection.

For the purpose of resolving cross-border disputes, whether domestic regulations or legislation from the other country applies is, of course, highly significant. The choice of jurisdiction may be important as well. International procedural law also attaches great importance to the service of documents. These can serve as the basis for initiating court proceedings or set in motion important time limits. By serving a document, the recipient is given the chance to acknowledge it and the sender is entitled to proof of said acknowledgment.

The service of judicial and extrajudicial documents within the European Union is governed by Regulation (EC) No. 1393/2007, the application of which is not limited to civil and commercial affairs but also extends to family matters and insolvency proceedings. Alternatively, the service of documents can take place according to the Hague Service Convention. Unlike Regulation (EC) No. 1393/2007, this requires the service of documents to be accompanied by a translation. In most cases, a translation of the complaint or petition is sufficient.

The coronavirus pandemic is expected to give rise to an increase in the number of international legal disputes due to business partners not being able to fulfill their contractual obligations. In this context, international procedural law assumes even greater significance, with the proper service of documents having a major impact on the course of litigation. Lawyers with experience in the field of international procedural law can offer advice.

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Internationales ProzessrechtPressemitteilungen
news-203 Tue, 07 Jul 2020 18:55:06 +0200 Marc Klaas at MTR Rechtsanwälte ranked among “Best M&A Lawyers” The German business newspaper Handelsblatt has published its list of “Germany’s best lawyers in 2020,” featuring Marc Klaas at MTR Rechtsanwälte in the category “mergers and acquisitions.”

Each year, Handelsblatt identifies the best lawyers in various legal fields in collaboration with the U.S. publisher Best Lawyers. This distinction is one that lawyers particularly prize, as it shows that their skills and expertise are recognized and held in high esteem not only by colleagues at their own law firm but also those from other firms.

To determine who the “best lawyers” are, Best Lawyers conducts surveys asking lawyers about the reputation of their colleagues, including which of them from other law firms are particularly highly rated and which attorney they would recommend if they found themselves unable to accept a brief. Marc Klaas’ inclusion in Best Lawyers’ ranking for mergers and acquisitions thus represents a vote of confidence in not only Marc himself but also the entire team at MTR Rechtsanwälte.

At the same time, the work of an attorney, especially in the field of M&A, has undergone massive changes in recent weeks due to the coronavirus pandemic. Where once traveling across the world to stitch together and supervise deals locally was commonplace, this is now no longer possible due to COVID-19. Telephone and video conferencing have since replaced flights, hotel rooms, and conference halls as mainstays of working life. And yet it has been shown in times of crisis and restrictions on contact that it remains possible to serve clients with the same level of quality and intensity despite all the challenges.

The crisis surrounding the coronavirus has brought changes to the work of attorneys. Naturally, it has also left its mark on corporate mergers and acquisitions, though this sector too will experience an upturn in time.

Marc Klaas and MTR Rechtsanwälte are focused both during and after the pandemic on advising their clients in confidence and preparing for transactions, assessing the risks, and drafting watertight agreements.

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