In March 2018 the German Arbitration Institute's (DIS's) new arbitration rules came into force. The new rules are a good choice in almost every setting, offering competitive fees for arbitrators and institutions and providing a modern and efficient arbitration framework that preserves and expands on the distinctive features of the previous DIS rules. These unique factors are particularly appealing to in-house counsel.
In a recent preliminary ruling, the European Court of Justice held that a foreign object such as a screw or nail on an airport runway which damages an aircraft represents an extraordinary circumstance under the EU Flight Delay Compensation Regulation. According to the court, such incidents exempt air carriers from the obligation to pay passengers compensation in the event of denied boarding and flight cancellation or long delays.
Commercial drone flights are expected to be a future market worth billions. Considering this prospect, the German air traffic control company Deutsche Flugsicherung and the largest telecoms provider in Europe, Deutsche Telekom, have established a joint venture, Droniq, to operate remote-controlled long-haul flights. Among other things, Droniq aims to establish a digital platform for all unmanned aerial operations and engage with security authorities and logistics companies seeking to deliver goods faster.
Recent reports suggest that the need to remedy defects in a faulty fire prevention system and other construction faults will further delay the opening of the new Berlin Brandenburg International Airport. For example, an internal report by TÜV Rheinland detailed 11,519 deficiencies in the airport's emergency lighting and safety power supply cables, which were replaced after the failed opening in 2012.
A 2018 Federal Court of Justice decision clarified that the secondary obligations arising from a contract of carriage between a passenger and an air carrier extend to the verification of the validity of the documents required for entry. However, checking that passengers have the correct documentation also remains an obligation for air carriers. Air carriers must therefore check the validity of passengers' documents before admitting them to a flight in order to rule out their own contributory negligence.
In May 2018 the Aviation Working Group announced plans for a global aircraft trading system (GATS) to modernise the selling, buying and financing of leased aircraft and engines by making such transactions simpler and faster. The GATS will be fully electronic and use e-signatures, e-delivery of documents and a secure e-ledger to record transactions. As such, it is expected to reduce the time and costs required to change German aircraft registrations through the national aviation authority.
The Tubingen Regional Court recently held that negative interest on a consumer's existing cash deposits imposed by a German bank by unilaterally changing the bank's general terms and conditions was unlawful. According to the court, the defendant bank violated the rules of the general terms and conditions regime because it did not differentiate between existing deposits and newly deposited cash.
As of January 2018, the EU regulation which established a new European Account Preservation Order (EAPO) procedure will have been effective and in force for one year. In Germany, the most important conclusion which can be drawn from the past year is that the German courts are adopting EAPOs. However, as the procedure is still fairly new to the courts, it has taken time and effort on the part of creditors.
The Federal Court of Justice recently issued two rulings declaring that processing fee clauses in standardised commercial loan agreements are invalid as they unreasonably disadvantage borrowers. Previously, the majority of lower German court rulings had upheld the validity of such clauses in commercial loan agreements. Going forward, lenders have a number of options to deal with the issues raised in these new court decisions.
The Frankfurt Higher Regional Court recently implemented the European Court of Justice's (ECJ's) sailing instruction and decided in favour of the luxury cosmetics manufacturer Coty on third-party platform bans in selective distribution. The judgment comes after the ECJ – in an abstract manner – declared third-party platform bans in the selective distribution of luxury goods permissible under competition law.
Litigants may now seek cartel damages for a longer period as the Federal Court of Justice has affirmed the suspension of the statute of limitations for antitrust claims before 1 July 2005. The court's judgment creates legal certainty and increases Germany's attractiveness as a jurisdiction for plaintiffs in cartel damages cases. It is also a major setback for defendants in cases concerning cement, truck and sugar cartels (among others), which will face even bigger damages claims.
The Federal Court of Justice recently held that absolute prohibitions to participate in online price comparison tools imposed on distributors in selective distribution systems amount to a hardcore restriction under Article 4c of the EU Block Exemption Regulation on Vertical Restraints. A closer look at the German decision reveals some doubts as to its compatibility with two European Court of Justice decisions.
A recent Celle Regional Court decision on a clear resale price maintenance case has been heavily debated because the court held that restrictions of competition by object can be compatible with Article 101(1) of the Treaty on the Functioning of the European Union if they have no potentially significant effects on competition. The Federal Supreme Court has since overruled the decision, leaving it open as to whether the potential effects on competition must be considered in such cases.
There is a considerable need for external personnel – partly due to the current labour market's limited supply of highly qualified specialists willing to work as employees in some areas and partly due to the increasing demand for flexibility. However, while engaging external personnel allows companies to concentrate on their core competencies and provides easier access to external know-how, it also carries considerable legal and economic risks if handled improperly.