Tag Archives: Lawyers

Politics Law Society

OLG Köln on validity of a nuncupative will before three witnesses

OLG Köln on validity of a nuncupative will before three witnesses

OLG Köln on validity of a nuncupative will before three witnesses

If the testator is at acute risk of death, it is possible to draft what is referred to in German as a „Nottestament“, or nuncupative will, before three witnesses. That being said, even a nuncupative will has to fulfil certain criteria for it to be effective.

It is possible to prepare a will with three witnesses if the testator is faced with the imminent prospect of death. We at the law firm GRP Rainer Rechtsanwälte note that this requires the risk of death to be so acute that there is unlikely to be enough time left to draw up a will with a notary or mayor. A judgment of the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne] from July 5, 2017 demonstrates, however, that persons who are a close personal relation of the beneficiary cannot be a witness to this kind of nuncupative will (Az.: 2 Wx 86/17). According to the ruling, a nuncupative will before three witnesses is ineffective if a son contributes to preparing the will appointing his mother as the sole heiress.

Yet this is exactly what happened in the case that came before the OLG Köln. Four people attended the testator at his death bed. Three of them recorded in the minutes that the significant other of the 84-year-old should become the sole heiress. The son of the appointed sole heiress was among the witnesses. The testator no longer had the strength to sign the will.

The testator“s significant other eventually applied for the certificate of inheritance. This move was subsequently resisted by the nieces and nephews of the deceased man. In the absence of a will, they would have been entitled to inherit under the rules of intestate succession. The OLG Köln upheld the decision of the courts of lower instance, according to which the testator“s significant other did not become the sole heiress.

The Court held that while it is possible in principle to prepare a nuncupative will if the testator is at acute risk of death, no child or close relative of the beneficiary under the will can be a witness as was the case here. The fact that a fourth person was present did not influence the OLG“s decision, with the Court stating that the person in question was not involved in recording the relevant information but instead merely heard the testator“s statement. It went on to say that the will was invalid because only two people ultimately participated in recording the information.

The case shows that it is advisable to get to grips with a will in good time, because otherwise the rules of intestate succession apply and these are not necessarily in line with the testator“s wishes. Lawyers who are experienced in the field of succession law can offer advice.

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

Breach of confidentiality obligation – Dismissal with immediate effect valid

Breach of confidentiality obligation – Dismissal with immediate effect valid

Breach of confidentiality obligation - Dismissal with immediate effect valid

Breach of a confidentiality obligation can justify issuing an employee with notice of dismissal with immediate effect. That was the verdict of the Landesarbeitsgericht (LAG) Baden-Württemberg [Regional Labour Court of Baden-Württemberg] (Az.: 12 Sa 22/16).

We at the commercial law firm GRP Rainer Rechtsanwälte note that before an employer can effectively issue notice of dismissal it needs to assess whether less severe measures such as a formal written warning would be sufficient to prompt the employee to conduct himself in a dutiful manner. Having said that, a ruling of the LAG Baden-Württemberg from November 11, 2016 shows that it is possible to forgo a formal warning if the employee commits a serious breach of duty.

Employees“ duty of confidentiality is particularly important in certain professions, e.g. for doctors and their employees. Patients have a relationship of trust with their doctor and expect that their documents and records will not be shared with third parties without authorization, but this is exactly what happened in the case that came before the LAG Baden-Württemberg. After a patient had cancelled her appointment, a doctor“s assistant took a photo of said patient“s data sheet and sent it to her daughter along with the comment „Mal sehen, was die schon wieder hat“ [Let“s see what she“s got this time]. The daughter then showed the message around in her sports club. When the patient“s father learned of this, he complained to the practice and the doctor“s assistant was issued with exceptional notice of dismissal with immediate effect. The duty of confidentiality had been explicitly agreed to in the employment contract.

The employer took the view that the doctor“s assistant“s conduct constituted not only a breach of her contractual obligations but also an offence pursuant to sec. 203 para. 3 sent. 2 of the Strafgesetzbuch, Germany“s Criminal Code. It therefore concluded that this represented good cause justifying exceptional notice of the employment relationship“s termination. The doctor“s assistant“s action for wrongful dismissal was unsuccessful.

The LAG held that dismissal with immediate effect had been justified, ruling that the employee“s conduct constituted a serious and intentional breach of her duty of disclosure as laid out in the employment contract. It went on to say that maintaining doctor-patient confidentiality, including on the part of non-medical personnel, is fundamental to the relationship of trust required between doctor and patient. The Court stated that the employer had a vested interest in quickly re-establishing this relationship of trust, which meant that it was not reasonable to expect it to continue the employment relationship and a prior formal warning was not necessary.

That being said, whether exceptional notice of dismissal is effective is always a decision that is made on a case-by-case decision. Accordingly, it ought to be thoroughly prepared. Lawyers who are experienced in the field of employment 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

European succession law – Implications for heirs and testator

European succession law – Implications for heirs and testator

European succession law - Implications for heirs and testator

Many German citizens prefer to spend their twilight years in warmer climates. Instead of holidaying in Majorca, the island becomes the centre of their lives. However, this has implications for inheritance.

A lot of Germans have once again decided to spend their summer holidays abroad. Those who not only wish to spend their vacation in sunnier climates but also want to relocate there should consider the implications this will have for inheritance.

The EU Succession Regulation has been in effect since the summer of 2015, according to which the succession law of the country in which the testator was last habitually resident apples. His or her citizenship is no longer the decisive factor. That being said, the various national succession laws can in some cases deviate significantly from one another. We at the commercial law firm GRP Rainer Rechtsanwälte note that this can have serious repercussions not only for one“s finca in Majorca or cottage in Tuscany but also the rest of the testator“s assets, including real estate, securities, etc., that he or she has in Germany.

The purpose of the EU Succession Regulation is to simplify cross-border inheritance issues by providing that it is only the succession law of the country in which the testator was last habitually resident that applies, thus making it unnecessary to consider the national provisions of various countries. There are, however, also a few pitfalls that need to be observed in addition to these simplifications; the EU member states have different succession laws that can impact intestate succession, claims to a compulsory portion, gifts, usufruct entitlements as well as other aspects. For this reason, even wills that have been drawn up in Germany ought to be potentially re-examined with a view to their effectiveness.

Those who wish to relocate to a foreign EU member state should therefore familiarize themselves with local succession laws and in many cases also prepare a will to ensure that their estate is distributed in accordance with their wishes. At the same time, it should be noted that e.g. the popular form of will in Germany known as the „Berliner Testament“ (Berlin will) or spousal will is not recognized in each EU member state and may be ineffective. Notwithstanding this, it is possible to provide in a will that German succession law should be applicable.

On the other hand, the EU Succession Regulation also provides room for manoeuvre that one can make shrewd use of as the case may be. When it comes to issues pertaining to inheritances, wills or contracts of inheritance, lawyers who are versed in the field of succession law can offer advice.

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

Politics Law Society

BAG: Dismissal with immediate effect on account of sexual harassment

BAG: Dismissal with immediate effect on account of sexual harassment

BAG: Dismissal with immediate effect on account of sexual harassment

Reaching into a work colleague“s personal space can justify dismissal with immediate effect, even if the act was not sexually motivated. That was the verdict of the Bundesarbeitsgericht (BAG), Germany“s Federal Labour Court (Az.: 2 AZR 302/16).

We at the commercial law firm GRP Rainer Rechtsanwälte note that it is possible having regard to all of the circumstances of a given case to exceptionally terminate an employment contract with immediate effect if there is good cause for doing so. One example of what constitutes good cause justifying dismissal with immediate effect is sexual harassment in the workplace, even if the act was not sexually motivated. That was the decision of the Bundesarbeitsgericht in its ruling of June 29, 2017 (Az.: 2 AZR 302/16).

In the instant case, a worker had painfully grabbed a colleague from a temporary employment agency between the legs from behind and then made remarks. The employer subsequently decided with the works council“s involvement to issue notice of dismissal with immediate effect and, in the alternative, ordinary notice of dismissal. While the worker“s action for wrongful dismissal was successful before the Landesarbeitsgericht (Regional Labour Court), the BAG took a different view on the matter as the court of highest instance, ruling that intentionally touching a colleague“s personal space always constitutes sexual harassment. The judges went on to say that it does not matter whether the act is sexually motivated, because sexual harassment is often about expressing hierarchies and exercising power and less frequently driven by sexual desire. The BAG held that dismissal is justified in these kinds of cases.

The Landesarbeitsgericht must now revisit its decision regarding whether the dismissal was effective. It needs to clarify taking into account all of the circumstances of the case in question whether the employer can be expected to continue the employment relationship at least until the next possible termination date under ordinary dismissal. It may be the case that a formal warning would have sufficed to influence the relevant employee“s behaviour such that he would not have violated his contractual obligations going forward.

Whether exceptional notice of dismissal is effective is a decision that is always made on a case-by-case basis, with respect to which the labour courts must weigh up the interests of the respective parties, thus making it all the more important for employers to carefully prepare notices of exceptional dismissal. Lawyers who are experienced in the field of employment law can advise employers on matters pertaining to dismissal as well as in relation to other legal issues.

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

Tax evasion – Immunity through voluntary disclosure

Tax evasion – Immunity through voluntary disclosure

Tax evasion - Immunity through voluntary disclosure

Tax evasion is a crime. Notwithstanding this, it remains possible to submit a voluntary declaration leading to immunity in order to avoid a conviction.

Anyone who dodges taxes should anticipate severe penalties. With large sums of money slipping through the state“s fingers every year due to tax evasion, measures to combat tax evasion are constantly being stepped up. Those concerned may be faced with heavy fines or even custodial sentences.

Those who wish to avoid these outcomes but have concealed illicit earnings from the exchequer can still turn to voluntary disclosure as a means of obtaining immunity. However, for a voluntary declaration to lead to immunity it needs to be submitted on time and complete. If the tax evasion has already come to light then it is too late for voluntary disclosure. It is equally unhelpful if only part of the tax evasion is disclosed. Anybody submitting a voluntary declaration must put all of their cards on the table vis-à-vis the tax authorities and disclose all information from the past ten years that is relevant from a tax perspective. If the voluntary declaration is flawed, it can then only have a mitigating effect similar to a confession.

We at the commercial law firm GRP Rainer Rechtsanwälte note that laypersons who prepare a voluntary declaration on their own or with the help of standard templates often fail to meet the stringent requirements set by the legislature pertaining to voluntary disclosure, it being difficult to account for the complex processes and transactions. Consequently, errors in the voluntary declaration are practically inevitable in such cases. The result is that the voluntary declaration fails and a conviction for tax evasion is still a real prospect.

Those who wish to prevent this from happening can turn to tax advisors and lawyers who are experienced in the field of tax law. They know that there is no ready-made solution if a voluntary declaration is to be effective and that the circumstances of each individual case need to be examined and taken into account. This is the only way of preparing a voluntary declaration that satisfies all of the necessary requirements. They can also assist in procuring the required documents from the banks, with trusting and discrete cooperation with the client being essential to this end.

Only then is it possible for prepare the voluntary declaration so that it is complete, error free and thus leads to immunity.

https://www.grprainer.com/en/legal-advice/tax-law/voluntary-disclosure.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

Insolvency: BGH bolsters creditors“ rights

Insolvency: BGH bolsters creditors“ rights

Insolvency: BGH bolsters creditors" rights

Good news for creditors of an insolvent business partner: In its ruling of June 22, 2017, the Bundesgerichtshof (BGH), Germany“s Federal Supreme Court, has bolstered their rights when contesting a debtor“s transactions in insolvency proceedings (Az.: IX ZR 111/14).

According to insolvency avoidance law, the insolvency administrator can reclaim payments made by the insolvent debtor from the period prior to insolvency. This has resulted in legal uncertainty for payees and in some cases given rise to excessive burdens. We at the commercial law firm GRP Rainer Rechtsanwälte note that the BGH has since strengthened the position of creditors with its recent ruling.

The Karlsruhe judges held that just because a creditor is successful in forcibly enforcing a claim, it cannot be assumed from this that the creditor was aware of the debtor“s insolvency or cessation of payments if the creditor otherwise had no knowledge of specific circumstances pertaining to the insolvency or the debtor“s financial situation. The insolvency administrator cannot therefore automatically reclaim the forcibly collected debt.

In the instant case, the creditor had submitted the invoice in October 2007. Despite several reminders, the debtor had still not settled the invoice. Consequently, an application for provisional garnishment was made in June 2008. The creditor received his money shortly thereafter. The debtor finally filed for insolvency in October. The insolvency administrator then demanded that the amount be paid back by way of a challenge to transactions whose intention the administrator believed to have been to disadvantage creditors.

There is a presumption pursuant to the German Insolvency Act (Insolvenzordnung) that the creditor was aware of the debtor“s intention if he knew that the debtor“s insolvency was imminent and that the action disadvantaged the other creditors. To this end, it is sufficient for the creditor to have been cognisant of the cessation of payments. Notwithstanding this, the BGH ruled that it cannot be readily concluded that there was knowledge of the insolvency or cessation of payments if the creditor fully redeemed his only claim shortly after successfully contending for a default judgment and otherwise had no knowledge of the debtor“s insolvency or financial situation.

In insolvency cases, creditors and debtors can seek advice from lawyers who are versed in the field of company law to preserve their interests.

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

Make arrangements for inheritance early on in patchwork families

Make arrangements for inheritance early on in patchwork families

Make arrangements for inheritance early on in patchwork families

The number of what are referred to as patchwork or blended families is increasing, with these sometimes giving rise to problems in inheritance cases. For this reason, particularly unmarried couples and patchwork families should give thought to preparing a will or contract of inheritance.

German succession law continues to be tailored to the traditional family model. Under the rules of intestate succession, this means that when one of the spouses dies the surviving partner and the biological or adopted children are entitled to inherit. We at the law firm GRP Rainer Rechtsanwälte note, however, that this also means unmarried partners and stepchildren can come away empty-handed if the testator has not drawn up a will or contract of inheritance.

A lot of couples nowadays make a conscious decision not to get married or do not wish to remarry following a divorce. This form of cohabitation without a marriage certificate is now widely accepted in society. Patchwork families are also on the rise.

Yet problems can arise when one of the two partners passes away. Under these circumstances, the unmarried partner is no more entitled to inherit than the stepchildren according to the rules of intestate succession, i.e. they would come away empty-handed. Even if the couple is married, it is still possible for injustices to arise in inheritance cases. If one of the partners dies, it is only the spouse and the biological children who have a statutory right to inherit.

To prevent these kinds of unintended injustices from occurring and ensure the surviving spouse and the children will be financially secure, it is therefore absolutely crucial to prepare a will or contract of inheritance. The testator is then able to personally determine who will be entitled to inherit as well as how much having regard to claims to the compulsory portion. If the living conditions have changed, e.g. after a divorce, and a will already exists, one ought to review whether this should be adjusted in light of the new living conditions.

A will or contract of inheritance is not only advisable in cases involving patchwork families. Essentially, anyone who does not wish their estate to be subject to the rules of intestate succession ought to draft a testamentary disposition. In doing so, care should always be taken to ensure the wording is as clear as possible and that there is no room for interpretation. Lawyers who are experienced in the field of succession law can advise on all matters relating 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

Bundeskartellamt imposes fine for illegal price fixing

Bundeskartellamt imposes fine for illegal price fixing

Bundeskartellamt imposes fine for illegal price fixing

The Bundeskartellamt, Germany“s Federal Cartel Office, has imposed fines amounting to just under 11 million euros on two companies from the clothing industry on account of illegal vertical resale price maintenance agreements.

In the present case, a clothing manufacturer and a trading company had made arrangements regarding the prohibited vertical resale price maintenance agreements. This involved the manufacturer setting minimum selling prices for merchants in advance and at the same time forbidding price reductions and the sale of the goods online. According to the Bundeskartellamt, if a merchant refused to adhere to these conditions then said merchant was threatened with suspension of deliveries, with this being followed through on in some cases. The trading company involved complied with these conditions and also apparently prompted the manufacturer to proceed accordingly in relation to other merchants offering the goods at cheaper prices.

In doing so, both cartel members had hindered free competition and harmed consumers. Agreements concerning selling prices between manufacturers and merchants violate antitrust law and are strictly prohibited. Merchants have the right to set selling prices themselves. It is not permissible to sanction those who refuse to enter into these kinds of price fixing agreements by delaying or suspending deliveries or taking similar measures.

Exceptional circumstances aside, vertical resale price maintenance agreements, i.e. agreements between manufacturers and merchants, are strictly forbidden under both German and European law. These kinds of arrangements hinder fair competition. We at the commercial law firm GRP Rainer Rechtsanwälte note that violations of antitrust law can give rise to further severe penalties in addition to fines imposed by the cartel authorities.

Furthermore, the cartel members may also be faced with claims for damages brought by the aggrieved parties. There is also the possibility of managing directors or board members from the companies involved in the prohibited arrangements being held liable.

Illegal pricing agreements are among the more obvious violations of antitrust law. However, violations are by no means always as obvious as this and can occur unwittingly. Even minor details in contractual clauses can be a cause for concern from the perspective of antitrust law and lead to severe sanctions. For this reason, it is advisable to have competent lawyers review agreements with a view their implications under antitrust law. It is also a good idea to obtain appropriate legal advice if violations of antitrust or competition law have already occurred and claims need to be fended off or enforced.

https://www.grprainer.com/en/legal-advice/antitrust-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

Immediate dismissal in case involving permitted second job invalid without prior formal warning

Immediate dismissal in case involving permitted second job invalid without prior formal warning

Immediate dismissal in case involving permitted second job invalid without prior formal warning

Before an employer issues notice of dismissal with immediate effect, it ought to examine whether a prior formal warning is necessary. Failure to do so can prove to be a costly mistake, as demonstrated by a ruling of the Landesarbeitsgericht (LAG) Düsseldorf [Regional Labour Court of Düsseldorf].

It is possible to issue exceptional notice of dismissal with immediate effect if there is good cause for doing so. That being said, we at the commercial law firm GRP Rainer Rechtsanwälte note that an employer should always check whether it has recourse to less severe measures, such as a formal warning, beforehand, because a court declaring notice of immediate dismissal invalid can prove to be a costly affair for the employer. This much is clear from a recent ruling of the Landesarbeitsgericht Düsseldorf from June 21, 2017 (Az.: 4 Sa 869/16).

In the instant case, a managing director was issued notice of both immediate and, in the alternative, ordinary dismissal by her employer. According to the employment contract, the employee was allowed to have a second job as well as release publications and carry out presentations subject to her employer“s approval. The employer issued notice of dismissal, among other reasons, because the employee was said to have employed other employees of her employer pursuant to her second job.

The managing director“s action for wrongful dismissal was successful. The LAG Düsseldorf held that the notice of dismissal was invalid. In justifying its decision, the LAG ruled that the employer was not able to dispel the notion that she had been permitted to make use of other employees in connection with her second job. Moreover, the plaintiff was said to have carried out her work in an open and transparent manner. The second job concerned job-specific topics that were also either part of or could have been part of her work as managing director. The LAG went on to say that because the employer had consented to the second job it needed to have issued a formal warning before issuing notice of dismissal, even if the employee had drawn on the company“s resources on a large scale.

Since notice of dismissal with immediate effect was found to be invalid, the Court concluded that the plaintiff was entitled to compensation for wages not paid, with this amounting to just under 127,000 euros for nine months.

Notwithstanding this, whether exceptional notice of dismissal is valid is always a decision that is made on a case-by-case basis and requires a precise weighing up of the parties“ respective interests. Lawyers who are experienced in the field of employment law can advise employers on all matters pertaining to dismissal as well as in relation to other legal issues.

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

Possible to agree to age limit for managing directors as grounds for termination

Possible to agree to age limit for managing directors as grounds for termination

Possible to agree to age limit for managing directors as grounds for termination

It is possible to agree to an age limit for a managing director of a GmbH in his employment contract, with his reaching the specified age serving as grounds for ordinary notice of termination. That was the verdict of the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm].

In the instant case, the plaintiff had been employed as a manging director at a company since 2005. The employment contract included a fixed term that was supposed to run until August 31, 2018, yet it also featured a provision stating that both parties could terminate the contract with six months ordinary notice once the managing director reached the age of 60. In 2015, the company“s meeting of its shareholders dismissed the managing director and issued ordinary notice of the contract“s termination in due time shortly thereafter. The managing director took the view that the termination was unjustified, arguing that he was being discriminated against on account of his age by the relevant provision in the employment contract. He therefore claimed that this provision violated Germany“s Allgemeine Gleichbehandlungsgesetz (AGG) [General Act on Equal Treatment].

Nonetheless, his legal action against the termination was unsuccessful. The Oberlandesgericht Hamm held in its ruling of June 19, 2017 that it is possible to agree to an age limit of 60 in the employment contract of a GmbH managing director without violating the AGG. It went on to say, however, that for this to happen the managing director must be entitled to a company pension after leaving the company (Az.: 8 U 18/17).

The OLG Hamm left open the question of whether the AGG should be applied to the dismissal of a managing director in the first place, stating that even assuming protection for legal persons as employees based on the AGG, the clause agreed in the employment contract was valid.

The Court ruled that agreeing to an age limit below the statutory retirement age for GmbH managing directors is acceptable in principle if it is ensured that the managing director will be entitled to a company pension after his departure. The OLG justified this by arguing that the job profile for executive bodies is particularly demanding and might therefore give rise to a commercial interest in an age limit. The ruling is not yet final, with an appeal to the Bundesgerichthof, Germany“s Federal Supreme Court, having been lodged.

Dismissing a managing director and terminating his employment relationship frequently leads to legal disputes. We at the commercial law firm GRP Rainer Rechtsanwälte recommend incorporating appropriate provisions in the articles of association and employment contract. Lawyer who are experienced in the field of company law can offer 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