Latest updates

Regulation of medical marijuana
Simmons & Simmons LLP
  • Healthcare & Life Sciences
  • Germany
  • 19 February 2020

Cannabis-containing finished medicinal products have been available on prescription in Germany for some time. In 2017 the amendment of various acts permitted the state-controlled cultivation of cannabis and allowed the production of cannabis-containing medicinal products in pharmacies. This article provides an overview of the legal framework applicable to cannabis products – especially cannabis-containing medicinal products – and the current discussions and developments relating thereto.

Airport charges take flight: airlines challenge fee structure
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • 05 February 2020

In a recent Federal Administrative Court case – in which the German court referred questions to the European Court of Justice (ECJ) – Deutsche Lufthansa AG achieved its goal of defending itself effectively against higher airport charges and underlined the possibility of a judicial review to examine the appropriateness of airport charges. However, the ECJ decision clarifies that, for the time being, there is no scope for free pricing under the EU Airport Charges Directive and thus no contractual freedom for airport users.

Court rules on representative action undertaken by insurance agent on insurer's behalf
Arnecke Sibeth Dabelstein
  • Insurance
  • Germany
  • 04 February 2020

The Hamburg Court of Appeal has expressly discarded an earlier obiter dictum, ruling that a representative action (ie, an authority to pursue the claim of another in one's own name) by an insurance agent on behalf of the insurer stops time only if the agent disclosed its authority and the name of the represented insurer when filing the action. A later disclosure of the authority – which existed at the time of lodging the claim – in court has no retroactive effect and does not interrupt the limitation period.

Insurers' duty to advise assureds in cases of amended general terms and conditions
Arnecke Sibeth Dabelstein
  • Insurance
  • Germany
  • 21 January 2020

A recent Hamm Higher Regional Court decision concerning insurers' duty of advice continues the previous case law in respect of partly favourable and partly unfavourable new conditions or conditions that are merely more favourable for the policyholder. The case highlights the question of whether insurers have a duty to advise assureds of amendments made to the general terms and conditions in their insurance policies, particularly with regard to linguistic amendments.

Cartel damage claims for indirect damage: questioning German law on cartel damages after ECJ decision
Fieldfisher (Germany) LLP
  • Competition & Antitrust
  • Germany
  • 16 January 2020

Under German law, a plaintiff does not only have to prove the unlawful behaviour of a liable party (ie, in the case of cartel damages, a competition law infringement such as a cartel) and any damage caused by this behaviour; the Act Against Restraints of Competition also requires a plaintiff to be "affected" by unlawful behaviour. However, the broad wording of the act could still be too restrictive in light of a recent European Court of Justice decision and will therefore have to be amended or reinterpreted.

Security controls outside scope of airlines
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • 15 January 2020

A recent Erding Local Court judgment concerned a compensation claim after four passengers missed their flight due to a security alert at the airport. The court decided that there was no entitlement to compensation because there had been no refusal of carriage by the airline. Given the growth of passenger numbers and the resulting need for extra security staff, the decision sets a positive and correct precedent for the benefit of airlines operating in Germany.

Carrier liability for contaminated liquid bulk cargo – contributory negligence of shipper
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • Germany
  • 15 January 2020

In a March 2019 case, the Hamburg Higher Regional Court had to decide whether the claimant had a control and inspection duty under the Commercial Code and, if so, to what extent the damage should be reduced for reasons of contributory negligence. The decision clarifies that shippers can rely on carriers to provide a sound transport vehicle.

Insurers beware: CMR jurisdiction rules apply to direct claims against carriers' liability insurers
Arnecke Sibeth Dabelstein
  • Insurance
  • Germany
  • 24 December 2019

The Federal Court of Justice recently ruled on the appropriate jurisdiction regarding a head carrier's insurer's direct claim against subcarriers' liability insurers. The first and second instances had affirmed their international jurisdiction and admitted the direct claim against the liability insurer on the basis of Article 31(1)(1)(b) of the Contract for the International Carriage of Goods by Road. The Federal Court of Justice confirmed this approach.

Steel manufacturers fined record €646 million for agreeing surcharges and exchanging information
Fieldfisher (Germany) LLP
  • Competition & Antitrust
  • Germany
  • 19 December 2019

The Federal Cartel Office has fined three companies and three persons a total of approximately €646 million. The companies agreed and exchanged certain supplements and surcharges for so-called 'quarto plates' in Germany for approximately 14 years. Companies and associations should review their practices with regard to price components (particularly surcharges) as this is not the first decision on this matter.

Proof of carrier's qualified fault in case of partial loss of transported goods
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • Germany
  • 18 December 2019

A recent Higher Regional Court of Dusseldorf decision concerning the partial loss of goods has strengthened the position of carriers. The court found that it is not enough to inform a carrier's driver of the risk of theft only when loading goods, as the carrier will have no time to assess the situation. The notification of risk must be made in good time so that the carrier can make a decision in the normal course of business.

Lump sum compensation for overtime work
Mayer Brown
  • Employment & Benefits
  • Germany
  • 18 December 2019

The labour courts regularly consider the enforceability of clauses in employment contracts that declare overtime hours to be deemed compensated by payment of regular remuneration. The fact that lump sum compensation clauses still appear in mostly inadmissible forms potentially results from employers' aim to save the cost of the remuneration and considerable organisational effort. However, lump sum compensation clauses are suitable only to a limited extent and involve a high risk of unenforceability.

Delivery damaged – only damaged pallets and packaging are liable for reimbursement
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • Germany
  • 11 December 2019

No matter how well goods are packaged and how great the effort of a carrier to consign a delivery in perfect condition to the customer, damage to goods, pallets and packaging cannot always be avoided. If damage occurs, the carrier will quickly be faced with a claim for damages, either from the shipper, the recipient or their insurer. The Federal Court of Justice redefined the calculation of damages in a ruling at the end of 2018.

Recent case law on compulsory licences and use-up periods
Simmons & Simmons LLP
  • Healthcare & Life Sciences
  • Germany
  • 11 December 2019

According to Section 24(1) of the German Patent Act, a compulsory licence can be granted to a patent infringer. Recent case law suggests that this possibility is becoming increasingly relevant. Further, in a recent originator-originator pharma case, the enforcement of a recall obligation was for the first time suspended for a certain period for public health reasons.

Proximate cause of grounding in bad weather after engine problems and insurers' right to information
Arnecke Sibeth Dabelstein
  • Insurance
  • Germany
  • 03 December 2019

The Bremen Court of Appeal recently held that the proximate cause of a vessel's grounding after its main engine had cut out was the bad weather, rather than the engine problem. Further, the insurer's right to request information from the assured was limited to information relating to the proximate cause and did not extend to remote causes. This decision is highly questionable in respect of both causation and insurers' right to information.

Delivery of goods by parking container outside consignee premises
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • Germany
  • 13 November 2019

According to the Bremen Higher Regional Court, if agreed by contracting parties, goods can be delivered by parking a shipping container in front of the consignee's premises during non-business hours. In such instances, the carrier will not be liable if the cargo is stolen. This decision is a useful reminder that parties to a transport contract must have unequivocal terms of delivery.

Granting of gifts by pharmacies
Simmons & Simmons LLP
  • Healthcare & Life Sciences
  • Germany
  • 30 October 2019

Two recent Federal Civil Court decisions strengthen the strict understanding of Section 7(1.1) of the Act on the Advertising of Medicinal Products, under which the granting of gifts constitutes a violation of German pricing regulations. These decisions also reiterate that the unequal treatment of national pharmacies is justified due to the particularities of the German pharmacy market and the minor impact that this has on German pharmacies.

Third-party arbitration funding – an overview
Skadden Arps Slate Meagher & Flom LLP
  • Arbitration & ADR
  • Germany
  • 24 October 2019

Third-party arbitration funding continues to be a hot topic in Germany, with a growing number of companies considering using third-party funding and more international funders than ever joining established German funders. This article outlines some of the pros and cons of third-party funding in an arbitration context.

Leave pay for commission-based employees: an often overlooked pitfall for employers
Mayer Brown
  • Employment & Benefits
  • Germany
  • 23 October 2019

An accurate method for calculating leave pay must take into consideration an employee's holiday, sickness, bank holiday and other paid absences; however, this can be burdensome for a company's HR department if its employees earn fluctuating rates of commission. While a certain amount of bureaucratic effort is inevitable, a well-thought-out system and properly trained HR officials will help to minimise complications and avoid negative consequences.

CMNI statute of limitations also applies to ship damage
Arnecke Sibeth Dabelstein
  • Shipping & Transport
  • Germany
  • 23 October 2019

The Budapest Convention on the Contract for the Carriage of Goods by Inland Waterways (CMNI) states that all claims arising from contracts regulated thereunder become time barred one year after the day on which the goods were or should have been delivered to the consignee. A Higher Shipping Maritime Court decision serves as a useful reminder that Article 24 of the CMNI applies to all claims relating to transport, regardless of which party raises them or whether they concern tortious or enrichment matters.

Q&A on pitfalls and red flags when dealing with German MROs
Arnecke Sibeth Dabelstein
  • Aviation
  • Germany
  • 23 October 2019

As airlines must constantly strive to reduce maintenance costs, it is prudent to carefully review and negotiate contracts with maintenance, repair and overhaul organisations (MROs). As MROs often insist that contracts must be governed by the law of their home jurisdiction, this article addresses a selection of important issues that must be considered when negotiating so-called 'time and material' or 'power by the hour' contracts with German MROs.