Category Archives: Politics Law Society

Politics Law Society

Heirs within a patchwork family

Heirs within a patchwork family

Heirs within a patchwork family

Patchwork families, also known as blended families, are no longer a rarity today, yet succession law has yet to adapt to this development. According to the rules of intestate succession, stepchildren come away empty-handed.

Society has changed substantially over the last few decades. In addition to the traditional family model, patchwork families have also established themselves. It is common for one or both partners to bring children into the relationship. While the new partner assumes the role of a parent in practice, succession law continues to make a distinction between biological and stepchildren.

We at the law firm GRP Rainer Rechtsanwälte note that biological children are automatically entitled to inherit according to the rules of intestate succession. The same is true for adopted children. In the case of patchwork families, the decision is often made to forego adoption. This means that the stepchildren have no legal right to inherit in the event of succession. If there is a desire for the stepchildren to inherit, the testator must set forth this wish in a will or contract of inheritance. How he or she divides the estate among the heirs in doing so is a decision that is left up to him or her. Notwithstanding this, it is important to note that biological children are entitled to the compulsory portion of the estate in any case.

Thus, if the intention is for the biological as well as stepchildren to inherit, the testator needs to prepare a will or contract of inheritance. An elegant solution to this is a so-called „Berliner Testament“ (Berlin will). Here, the spouses mutually appoint each other as sole heirs and typically designate their children as final heirs. This means that both the married couple“s biological children in common and the biological children of only one of the partners to the marriage are accounted for.

Having said all of that, it needs to be borne in mind that a Berliner Testament has a strong binding effect and it is generally no longer possible to unilaterally alter joint provisions if no clause to this effect has been agreed in the will. If one of the spouses passes away, the other remains bound by the joint provisions.

When drawing up a will, it should therefore always be borne in mind that people“s situation in life can change fundamentally. It is equally crucial for the wording of a will to be clearly and unambiguously formulated, such that it leaves no room for interpretation and thus prevents disputes among the heirs from arising.

Lawyers who are experienced in the field of succession law can advise on all matters pertaining to wills and contracts of inheritance.

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

GmbH shareholder“s rights of access and inspection

GmbH shareholder“s rights of access and inspection

GmbH shareholder"s rights of access and inspection

The shareholders of a GmbH, a type of German private limited company, have extensive rights to information that go beyond the general meeting of the shareholders, and they are able to exercise their rights of access and inspection.

GmbH shareholders entrust the managing director with the fate of their company. Notwithstanding this, they do, of course, have the right to be informed about what is happening in their firm at all times. In addition to the general meeting of the shareholders, the rights of access and inspection are an important tool for shareholders to gain an insight into all commercially and legally relevant matters within the company. We at the commercial law firm GRP Rainer Rechtsanwälte note that while their rights of access and inspection are indeed wide-ranging, they are not without their limits.

What is the order situation? Which projects have been completed and which are at the planning stage? How are the agreements structured? These and other questions are of interest to all shareholders. They receive answers to these questions at the general meeting of the shareholders. They can also receive answers by exercising their rights of access and inspection, and in doing so request information concerning concluded transactions, projects at the planning stage, agreements, records, protocols etc. These rights to information may also be applicable to a limited extent if the GmbH has a financial interest in other companies.

The GmbH shareholder“s rights of access and inspection cannot be restricted by the articles of association. Moreover, the managing director is obligated to provide the desired information without delay. However, he or she must also assess whether providing the information would go against the company“s interests. This would be the case, for instance, if there was reason to fear that the shareholder might use the information for non-company purposes and thereby damage the company, e.g. because the shareholder has a financial interest in a rival company as well.

In such instances, the managing director needs to act prudently. If he or she acts on their own authority in refusing access or the right of inspection, he or she is committing a breach of duty and may render themselves liable to pay damages. Conversely, he or she cannot release the information if they have reason to fear an abuse of rights or use of information for non-company purposes. The final decision must therefore be taken by the general meeting of the shareholders. The shareholder seeking the information is not authorized to vote on this resolution. If the general meeting decides to deny the shareholder access or the right of inspection, the latter can still try and enforce his or her rights through the courts.

Lawyers who are experienced in the field of company law can advise shareholders and managing directors.

https://www.grprainer.com/en/legal-advice/company-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

No discrimination – Local authority position for equal opportunity officer only open women

No discrimination – Local authority position for equal opportunity officer only open women

No discrimination - Local authority position for equal opportunity officer only open women

Germany“s General Act on Equal Treatment, aka the allgemeine Gleichbehandlungsgesetz (AGG), is supposed to protect against discrimination, e.g. on the basis of gender. That being said, exceptions can be made, as demonstrated by a ruling of the Landesarbeitsgericht (LAG) Schleswig-Holstein [Regional Labour Court of Schleswig-Holstein].

Discrimination in the workplace is also meant to be prohibited. The AGG is supposed to afford protection and prevent people from being discriminated against, for example, because of their race, gender, religion or age. We at the commercial law firm GRP Rainer Rechtsanwälte note that for employers this means the need to ensure they use appropriate wording, including when posting job advertisements; if applicants are discriminated against from the outset, they may be entitled to claim compensation.

Having said that, not every instance of discrimination is automatically a violation of the AGG, as is clear from a judgment of the LAG Schleswig-Holstein from November 2, 2017 (Az.: 2 Sa 262 d/17). In the instant case, a district in Schleswig-Holstein had advertised a vacancy for an equal opportunity officer. A man who had applied for the position was rejected, according to the Ministry for Social Affairs, Health, Science and Equality, on the grounds that only women can carry out the role of an equal opportunity officer in the public sector.

The man felt he had been treated unfairly and sued pursuant to the AGG for compensation amounting to three times the monthly salary on account of gender-related discrimination in the application process.

However, the LAG Schleswig-Holstein dismissed the claim. The Court stated that while the plaintiff had indeed been discriminated against because as a man he had no chance of getting the job, this form of discrimination is permissible as the legal framework in Schleswig-Holstein only provides for female equal opportunity officers, and this does not constitute a violation of the requirement for equal treatment; the relevant provisions are designed to eliminate structural disadvantages that are still faced by women to this day. The LAG went on to say that being female is an important prerequisite for a substantial portion of the tasks that go hand in hand with the position of equal opportunity officer.

There is always the possibility of discrimination leading to legal disputes, similar to how dismissal or working hours are frequent points of contention in the workplace. Lawyers who are experienced in the field of labour law can advise employers.

https://www.grprainer.com/en/legal-advice/employment-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

BGH: Removal of a shareholder managing director for good cause

BGH: Removal of a shareholder managing director for good cause

BGH: Removal of a shareholder managing director for good cause

When it comes to the removal of a shareholder managing director of a GmbH, a type of German private limited liability company, for good cause, it is a matter of whether there was in fact good cause at the time the decision was taken.

Disputes among the shareholders of a GmbH are not uncommon. If these give rise to a situation whereby the shareholder managing director is set to be removed and his or her employment contract terminated, it is often the shareholder managing director“s right to vote at the general meeting of the shareholders that tips the scale. That being said, he or she will not be able to exercise their right to vote if they are being removed for good cause. We at the commercial law firm GRP Rainer Rechtsanwälte note that a frequent point of contention in the case law is whether it is enough for good cause justifying removal to have a merely formal basis or whether good cause needs to be objectively supported by the facts and circumstances.

The Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, has provided clarity on this issue. In its judgment of April 4, 2017, the BGH ruled that when it comes to removing a shareholder managing director of a GmbH or terminating his or her employment contract, it is a matter of whether there was in fact good cause at the time the decision was taken. The burden of proof is on the party making reference to good cause (Az.: II ZR 77/16).

In the instant case, two shareholders of a GmbH had differences of opinion. The plaintiff held 49 per cent of the shares in the company and sought the immediate removal of the managing director as well as termination of his employment contract. The defendant shareholder managing director held 51 per cent of the shares. He voted against the proposals in the general meeting of the shareholders and secured their rejection.

The legal proceedings concerned whether the shareholder managing director had been allowed to exercise his right to vote in the first place. The action was unsuccessful. The BGH held that there needs to objectively be good cause justifying removal and termination of the employment contract at the time the decision was made. The Court ruled that no such good cause existed at the time of the general meeting of the shareholders. The BGH went on to say that there can be said to be good cause if any further activity by the managing director would be unreasonable for the company, especially if this is due to gross derelictions of duty.

Lawyers who are experienced in the field of company law can advise shareholders and managing directors in the event of disputes and see to it that there are detailed contractual arrangements.

https://www.grprainer.com/en/legal-advice/company-law/managing-director.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

Prohibited advertising – No bread roll vouchers at pharmacy

Prohibited advertising – No bread roll vouchers at pharmacy

Prohibited advertising - No bread roll vouchers at pharmacy

Pharmacies are bound by a uniform sales price for prescription medications. Even small additions to the price of medicinal products can constitute a violation of competition law.

Consumers may well think receiving vouchers for the bakery at the pharmacy is a nice idea, but it is problematic from a legal perspective. This is because the price markup constitutes a violation of the Heilmittelwerbegesetz (HWG), Germany“s act regulating the advertising of medicinal products. We at the commercial law firm GRP Rainer Rechtsanwälte note that pharmacies are therefore not permitted to engage in this kind of advertising.

One pharmacy came up with the idea when handing over fixed-price prescription medication of giving its customers a so-called „Brötchen-Gutschein“ (bread roll voucher) for a nearby bakery to take with them without being asked. This brought it trouble. An industrial interest group considered this to be an infringement of the rules on price fixing for medicinal products and sought an injunction. The Landgericht Darmstadt (Regional Court of Darmstadt) granted the action. The pharmacy“s appeal before the Oberlandesgericht Frankfurt (Higher Regional Court of Frankfurt) was unsuccessful (Az.: 6 U 164/17).

In its judgment of November 2, 2017, the OLG held that a uniform price applies to the sale of prescription medications in pharmacies. It stated that this rule is supposed to regulate price competition among pharmacies. The Court noted that this rule could be said to have been violated if a pharmacy sells a medicinal product at the prescribed price but also throws in a voucher. This was said to represent an economic advantage to customers, as especially when the price of medicinal products is identical across all pharmacies even a small contribution of little value could motivate consumers to purchase their medications at the pharmacy offering the perks. It went on to say that price fixing for prescription medications is meant to prevent a ruinous price war among pharmacies and ensure an equitable supply of medicinal products to consumers across the board.

The OLG nonetheless granted leave to appeal with respect to the issue of domestic discrimination. The background to this is that foreign mail-order pharmacies are allowed to sell prescription medicinal products in Germany without price fixing. Should foreign mail-order pharmacies“ market share increase to such an extent that the existence of brick-and-mortar pharmacies in Germany is threatened, the rules on price fixing for medicinal products could prove worrisome.

Violations of competition law can give rise to formal warnings, damages claims and injunction suits. Lawyers who are experienced in the field of competition law can assist businesses in fending off or enforcing claims arising from violations of competition law.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

Prohibited advertising for homeopathic medicinal products featuring promise of success

Prohibited advertising for homeopathic medicinal products featuring promise of success

Prohibited advertising for homeopathic medicinal products featuring promise of success

The Oberlandesgericht (OLG) München [Higher Regional Court of Munich] has ruled that promoting a homeopathic medicinal product with a promise of success is prohibited and a violation of competition law.

For a homeopathic medicinal product to be approved, it is not necessary for its effectiveness to be proven with reference to scientific studies. We at the commercial law firm GRP Rainer Rechtsanwälte note that businesses are therefore not allowed to make promotional statements that effectively amount to a guarantee of recovery or at least give this impression. In its ruling May 4, 2017, the Oberlandesgericht München made it clear that this kind of advertising is misleading and constitutes a violation of competition law (Az.: 29 U 335/17).

In the instant case, a pharmaceutical company had promoted a homeopathic remedy for headaches with statements such as „bekämpft Kopfschmerzen zuverlässig“ (reliably combats headaches) and „effektiv gegen Kopfschmerzen“ (effective against headaches). The OLG München held that these statements were a violation of the Heilmittelwerbegesetz (HWG), the German act regulating the advertising of medicinal products, as well as the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany“s unfair competition act. The Court went on to say that these promotional statements gave the impression that recovery is a certainty. For this reason, the statements were said to be misleading.

The Court ruled that an explicit promise that recovery will be a success is not necessary for these statements to be misleading; it is enough for the statements to give consumers this impression. The OLG held that it is equally unnecessary for a plausible rate and success of recovery to have been promised for all conceivable symptoms. It is sufficient if it is advertised that it can be reliably expected to be successful as a rule.

Furthermore, the Court found that the promotional statement „ohne bekannte Neben- und Wechselwirkungen“ (no known side effects or interactions) was also misleading to consumers, as it was said to be apparent from the package leaflet that symptoms could even get worse for a short time. As such, side effects were very much a possibility, which was pointed out in the instructions but not the advertising. The Court noted that while it is known that homeopathic medicinal products can lead even to a potential worsening initially, the advertising did not indicate that these were homeopathic remedies. As a result, consumers were said to have been misled. The OLG went on to also say that consumers trusted that this statement was backed up by scientific studies. Notwithstanding this, the Court noted that such studies are not required in the case of homeopathic remedies.

Competition violations can result in formal warnings, damages claims and injunction suits. Lawyers who are qualified in the field of competition law can assist businesses in fending off or enforcing claims.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

OLG Frankfurt on misleading food advertising

OLG Frankfurt on misleading food advertising

OLG Frankfurt on misleading food advertising

Foods are not allowed to give consumers false impressions concerning their ingredients. That being said, not every ambiguity is automatically considered to be misleading to consumers.

Consumers are not allowed to be misled regarding a food“s ingredients. That was the verdict of the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, in a ruling from December 2015 (Az. I ZR 45/13). The case concerned the presentation of a fruit tea whose packaging featured, among other things, large vanilla blossoms and raspberries. In fact, the tea contained neither raspberries nor vanilla, nor their flavours. However, this only became clear from looking at the list of ingredients. We at the commercial law firm GRP Rainer note that the BGH held that emphasizing vanilla and raspberries on the packaging was misleading to consumers, and that the list of ingredients did not exclude this possibility.

The facts and circumstances of the case which the Oberlandesgericht Frankfurt (OLG) [Higher Regional Court of Frankfurt] had to rule on in its judgment of June 22, 2017 were somewhat different (Az.: 6 U 122/16). This case concerned an olive mix in transparent plastic packaging containing green and black olives that had not ripened naturally but had instead been turned black. The list of ingredients included an appropriate reference to these being blackened olives.

A consumer protection association considered this to be misleading advertising and sought an injunction, arguing that consumers were being given the impression that these were naturally ripened green and black olives. While the Landgericht (regional court) granted the action, the OLG Frankfurt dismissed it on appeal.

The OLG concluded that the advertising was not misleading. It stated that the product“s presentation did not give the false impression that these were naturally ripened black olives. Notwithstanding this, it went on to say that the reference included in the list of ingredients was not enough to preclude this error of judgment, as even in the case of an accurate list of ingredients it is still possible for consumers to get the wrong idea. However, this was said not to be the case here. The Court ruled that the labelling did not elaborate on but rather confined itself to the expression „Oliven-Mix“, i.e. olive mix. Moreover, the olives contained in the transparent packaging were said to be recognizable and consumers were thus sufficiently informed.

Particularly when it comes to food, there is often a fine line in relation to misleading advertising and a violation of competition law. Lawyers who are experienced in the field of competition law can offer advice.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/competition-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

Technical function not enough for trademark protection

Technical function not enough for trademark protection

Technical function not enough for trademark protection

According to trademark law, it is not possible to register marks as trademarks if they consist exclusively of a shape that is necessary to obtain a technical result.

Coffee capsules can be purchased in every supermarket, but not all coffee capsules are created equally. Only one provider was allowed to supply certain capsules made from aluminium. This patent protection has since been rescinded by the Bundespatentamt, Germany“s Federal Patent Office (Az.: 25 W (pat) 112/14). The protection under trademark law was rescinded to the extent that it covered coffee, coffee extracts, coffee-based preparations, coffee substitutes and synthetic coffee extracts. The Bundespatentamt justified this decision by stating that there were grounds for refusal pursuant to sec 3 para. 2 no. 2 of the MarkenG, Germany“s Trademark Act, in relation to these goods. It went on to say that the essential characteristics of this trademark served a technical function that was supposed to render its use in a coffee capsule machine advantageous.

We at the commercial law firm GRP Rainer Rechtsanwälte note that a mark can only be registered as a trademark if it possesses the distinctive character necessary to distinguish it from products and services of other providers. Three-dimensional marks, on the other hand, cannot be registered as a trademark if the shape is determined by the type of good itself or is necessary to obtain a specific technical result. The Bundespatentamt recognized this ground for refusal in the case of the coffee capsules.

As a rule, businesses need to be mindful that grounds for refusal can preclude registration of a trademark. There is said to be an absolute ground for refusal if there is a lack of distinctive character vis-à-vis the goods and services of other providers. This means that a mark must be suitably capable of distinguishing itself from other offerings such that consumers are able to attribute the goods or services to a specific business.

In addition, it is possible for there to be other grounds for refusal. For instance, the mark has to be capable of being displayed in a graphical format. Purely descriptive designations are equally impermissible, as there is a public interest against their exclusive use.

It is also important to ensure that existing trademark rights will not be infringed by registering a new trademark. Lawyers who are experienced in the field of trademark law can assess whether registering a trademark is possible and assert or fend off claims arising from trademark violations.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/trademark-law.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

GRP Rainer Rechtsanwälte – Experience in directors“ liability cases

GRP Rainer Rechtsanwälte – Experience in directors“ liability cases

GRP Rainer Rechtsanwälte - Experience in directors" liability cases

Managing directors of a GmbH, a type of German private limited company, may be liable in the event of insolvency. A common bone of contention is the matter of payments made by the managing director after the onset of insolvency.

We at the commercial law firm GRP Rainer Rechtsanwälte note that a GmbH managing director“s risk of being faced with personal liability can materialize even in cases involving simple negligence. Liability on the part of the managing director can come into question, for instance, if he or she made payments after the onset of insolvency. The contentious issues here are whether the payments were allowed to have been made or whether they have diminished the insolvency estate. GRP Rainer has experience dealing with cases involving directors“ liability.

In its ruling of July 4, 2017, the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, took a position on which payments a managing director is still allowed to make after the onset of insolvency and when he or she is obligated to compensate for these payments (Az.: II ZR 319/15). According to the Court, the executive body“s obligation to pay compensation ceases to apply if the reduction in the insolvency estate caused by the payment is offset by a contribution that is directly linked to this. The contribution must be suited for use by the creditors. The BGH noted that performing work or supplying a service is generally not suitable for this purpose.

In the instant case, the insolvency administrator had brought an action against a „director“ of a company limited by shares pursuant to English law that was operating in Germany. The provisions under sec. 64 of the GmbHG, Germany“s limited liability companies act, apply to this company. The „director“ had initiated payments to public utility and telecommunications companies as well as paid wages between September 14 and December 9 of 2009. According to the insolvency administrator, the company had been insolvent since no later than September 9, 2009, resulting in the former demanding repayment of these costs.

The action was successful. After the onset of the insolvency, the managing director is supposed to preserve the remainder of the insolvency estate. The BGH held that should he or she nevertheless make payments that diminish the insolvency estate then they are liable to pay compensation. It is not the case in this context that any accrual to the estate should be viewed as an offsetting contribution to the diminished estate; there needs to be a direct economic link, it being noted that the rules on cash transactions pursuant to sec. 142 of the InsO, Germany“s Insolvency Act, do not apply here. Performing work or supplying services is generally not suitable for the purpose of offsetting the reduction in the estate.

Lawyers who are experienced in the field of company law can offer managing directors and other executive bodies advice.

https://www.grprainer.com/en/legal-advice/company-law/managing-director.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en

Politics Law Society

GRP Rainer Rechtsanwälte – Valuating the compulsory portion

GRP Rainer Rechtsanwälte – Valuating the compulsory portion

GRP Rainer Rechtsanwälte - Valuating the compulsory portion

Spouses and children are entitled to the compulsory portion of an estate even if the testator fails to account for them in his or her will. That being said, the compulsory portion has to be claimed.

In the absence of a will or contract of inheritance, the rules of intestate succession apply. These may not be consistent with the testator“s wishes for various reasons. With the help of a testamentary disposition, the testator can personally determine how his or her estate will be distributed and also designate heirs who would not have been entitled to inherit pursuant to the rules of intestate succession. Notwithstanding this, the testator“s spouse or close relatives, e.g. his or her own children, are still entitled to the statutory compulsory portion under such circumstances.

Those entitled to the compulsory portion include the testator“s spouse, civil partner, children and potentially his or her parents as well. Completely disinheriting someone entitled to the compulsory portion is only possible under strict conditions.

However, valuating the compulsory portion can prove challenging. While it is true that the compulsory portion amounts to half of the statutory share in the estate, calculating this can be problematic because it is necessary to establish the value of the estate. We at the commercial law firm GRP Rainer Rechtsanwälte note that this issue frequently gives rise to disputes between those entitled to inherit according to the will and those entitled to the compulsory portion. Determining the value of the testator“s cash assets is unproblematic, whereas this is more difficult in the case of real estate and other assets, whose value it may only be possible to ascertain through an expert assessment.

In order to valuate the compulsory portion, the value of the estate needs to be ascertained. The persons entitled to the compulsory portion therefore have a right to information relating to the value of the estate vis-à-vis the heirs as well as the right to an estate inventory. On the other hand, the heirs are also entitled to demand information from those entitled to the compulsory portion concerning whether they received any gifts or contributions from the testator during the latter“s lifetime that count towards the inheritance.

Even if there is a valid will or contract of inheritance, it is still possible for disputes to emerge among the heirs when calculating the compulsory portion. Lawyers who are experienced in the field of succession law can offer advice and ensure that the testator“s testamentary dispositions are implemented in a manner that is complaint with the relevant legal provisions.

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession.html

GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

Contact
GRP Rainer LLP
Michael Rainer
Augustinerstraße 10
50667 Cologne
Phone: +49 221-27 22 75-0
Fax: +49 221-27 22 75-24
E-Mail: info@grprainer.com
Url: http://www.grprainer.com/en