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Legal market overview
After a particularly strong year for M&A in 2015, 2016 was a little less lively in the German market. Although Brexit concerns put on hold some deals, the strong US and Chinese markets continued to stimulate inbound business and the domestic mid-market remained highly active; carve-out transactions have been increasingly common, with public takeovers and M&A disputes also on the rise.
The Volkswagen emissions scandal emerged as a particularly prominent matter that engaged many firms in the German market and sharpened the focus on the need for comprehensive compliance advice; several regulatory changes led to a high demand for advice from small to large companies, including, for instance, on the implementation of the European Market Abuse Directive. On the data protection front, the adoption of the General Data Protection Regulation of the European Union in May 2016 caused an enormous wave of legal advice in related compliance work.
Banking and finance practices continued to see a growth in regulatory mandates, reflecting the ongoing implementation or amendment of banking supervisory laws in reaction to the financial crisis. Meanwhile, low interest rates and the easing of credit standards by German banks have created a more animated credit market with high competition and many new players, including alternative capital providers such as insurance companies, pension funds and loan funds. Law firms with real estate financing expertise have benefited from the boom in real estate.
In contrast to the banking and financial markets, the capital markets proved to be rather volatile and stronger fluctuations are expected in the near future. Big news in 2016 was the announced merger of the London Stock Exchange and its German counterpart Deutsche Börse in Frankfurt. With the plan caught up in the Brexit crossfire and with European Commission investigations currently underway, it remains to be seen whether the deal will complete in 2017.
Frankfurt has in any case had an additional boost as a financial and legal centre due to the Europeanisation of banking supervision via the European Central Bank (ECB). Further potential growth in the city is expected by some in connection with Brexit, as global banks keep their eye on Frankfurt as an option for potential relocations of operations. Another city with interesting potential is Berlin, which is dominated by e-commerce businesses and has played a strong role in the maturing German venture capital scene – some market observers view it as the new start-up capital of Europe if London-based founders can be motivated to relocate.
The legal market is populated by a mix of high-quality German law firms and many international firms, particularly US or UK originated entities. The following text is a condensed translation and update of research from the German-language edition, The Legal 500 Deutschland (full German version available online at www.legal500.de).
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Anyone who has been caught for tax evasion should expect to be faced with severe penalties. Voluntary disclosure is the only way of returning to a state of normal tax affairs and avoiding penalties.
GSK Update: AIFM Marketing in Germany - The clock is ticking for U.S. and other non-EU fund managersOur GSK Update informs about the impact of recent German investment fund legislation (UCITS V Implementation Act) for AIF managers, who are not domiciled in the EU (“non-EU-AIFM”) and who seek to market AIF shares in Germany in accordance with applicable German investment fund law under the EU-AIFM Directive (2011/61/EU).
Opened at the beginning of March 2016, GSK Stockmann + Kollegen continues to expand its Luxembourg office. Mathilde Ostertag recently joined the Luxembourg team of Equity Partners Dr. Marcus Peter, Andreas Heinzmann and Dr. Philipp Mößner as Local Tax Partner.
Among other things, the recent amendment to the Environmental Impact Assessment Act has broadened the rights of (what is termed) the "affected public". The affected public consists primarily of various citizens' initiatives pursuing environmental or public-health purposes. It may for instance file an appeal against a negative decision at the screening stage (i.e., a decision according to which the given project does not require the issuance of an EIA report), and seek its annulment in court. The affected public has been granted a stronger voice also in subsequent procedures in which the fate of a building project is being decided: zoning proceedings and the proceedings on the issuance of a building permit. Taken together, these legislative changes may make it more difficult to implement projects which require an EIA report; in particular, the length of permission proceedings may be substantially extended.
On June 13, the Internet Corporation for Assigned Names and Numbers (ICANN) published the names of those who have applied for a new top level domain the ending of which may be geographic, such as "munich", industry identification such as "insurance" and even all trademark names and company descriptions such as "canon" and "adidas".- Noerr
ECJ, decision of February 16th, 2012, ref. C-360/10 – SABAM
For the second time within a short period of time, the non-governmental organisations right to challenge administrative decisions under German law is going to be subject to the jurisdiction of the European Court of Justice (ECJ). In January 2012, the German Supreme Administrative Court (Bundesverwaltungsgericht) referred a case to the ECJ for a preliminary ruling concerning the NGO’s right of action.
The fundamental advice for international business transactions is obvious and easy to understand: different countries have different laws, business habits and cultures. These differences may range from minor nuances, such as lengthy French business lunches or unusual Spanish office hours, to significant legal roadblocks, such as strict European employment laws.
Parties to rental contracts for commercial premises often agree priority rental rights. In practice, this concept is used to cover a whole series of legal structures. These range from fixed options for the tenant to a promise made by the landlord as a business policy that if any additional premises become available, they will be offered to the tenant. In 2010 the Berlin Court of Appeal issued a ruling on such priority rental rights in insolvency; the decision has recently been published.- SIBETH
The EU Rome I Regulation (593/2008) of the European Parliament and of the Council came into force on 17 December 2009 (Convention). The Convention sets rules to determine the (national) law applicable to contractual obligations in civil and commercial matters. This Regulation replaces the 1980 Rome Convention and is especially relevant to cross-border businesses. The intention of the Convention is to provide legal certainty in cases where the parties have not expressly chosen the applicable law governing their contract.
Employers ought to tread carefully when it comes to terminating an employment relationship during the probationary period, as a reduced notice period for dismissal only applies if the employment contract has been clearly drafted.
It is possible for a works council to push through the dismissal of an employee, as demonstrated by a recent ruling of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, from March 28, 2017 (Az.: 2 AZR 551/16).
Health claims in relation to mineral water need to be consistent with the Health Claims Regulation. This was confirmed by the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in its ruling of January 30, 2017 (Az.: I ZR 257/15).
Post-contractual prohibitions on competition that do not provide for compensation for this period, i.e. a waiting allowance, are null and void. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, in its ruling of March 22, 2017 (Az.: 10 AZR 448/15).
While the number of voluntary declarations for tax evasion is easing off, the same cannot be said of the efforts being put into the fight against tax evasion. It remains possible for tax evaders to submit a voluntary declaration leading to immunity.
The European Union’s cartel authorities are targeting e-commerce more aggressively and are carrying out three investigations looking into whether violations of European competition law have occurred.
Not every instance of disabled employees being treated differently constitutes illegal discrimination, as demonstrated by a ruling of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, from January 26, 2017 (Az.: 8 AZR 736/15).
By taking out a D&O insurance policy, managers are attempting to reduce their risk of private liability. The risks and the scope of the policy ought to be analysed and reviewed in advance.
Executive boards, supervisory boards and managing directors are subject to a substantial risk of personal liability. With the help of suitable legal advice and experience, it is possible to reduce this risk.
Advertising is subject to restrictions, and anyone who oversteps these may be faced with severe penalties. This also applies to unlawful advertising via email, as demonstrated by a ruling of the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm].