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Key aspects of german business law

Key Aspects of German Business Law

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Michael Wendler • Bernd Tremml
Bernard Buecker
Editors

Key Aspects of German
Business Law
A Practical Manual
Fourth Edition

123


Editors
Michael Wendler
Wendler Tremml Rechtsänwalte
Mörsenbroicher Weg 200

40470 Düsseldorf
Germany
dus@law-wt.de

Bernard Buecker
1220 Tower Life Building
310 S. St. Mary’s
San Antanio, Texas 78205
USA
mastholte@aol.com

Dr. jur. Bernd Tremml, M.C.J.
Wendler Tremml Rechtsanwalte
Martiusstraße 5/ II
80802 München
Germany
munich@law-wt.de

The information contained herein is general information and is not intended to provide legal advide.
Should you require legal advice, you should seek the assistance of counsel.
Copyright © 2006 Michael Wendler, Bernd Tremml, Bernard Buecker

ISBN: 978-3-540-68574-6

e-ISBN: 978-3-540-68577-7

Library of Congress Control Number: 2008929899
© 2008 Springer-Verlag Berlin Heidelberg
This work is subject to copyright. All rights are reserved, whether the whole or part of the material is
concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting,
reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication
or parts thereof is permitted only under the provisions of the German Copyright Law of September 9,
1965, in its current version, and permissions for use must always be obtained from Springer-Verlag.
Violations are liable for prosecution under the German Copyright Law.
The use of general descriptive names, registered names, trademarks, etc. in this publication does not
imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
Cover design: WMXDesign GmbH, Heidelberg, Germany
Printed on acid-free paper
9 8 7 6 5 4 3 2 1


springer.com

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Preface

This book presents a clear and precise overview of the key aspects of German
business law. It was written by attorneys involved in the daily practice of business law in Germany and is aimed at people who wish to orient themselves
quickly with the German legal system and the manner in which it impacts business purchases, establishment, operations and liquidations.
The first section of the book is devoted to an explanation of the major issues
to be considered in acquiring or establishing a business in Germany. The second
section focuses on areas of commercial law that are important for an operating
business. In comparison to the last edition four new areas (transportation law,
customs regulations, insurance law and state liability law) are treated. The following sections deal with labor law as an independent part of German business
law and with computer law. Furthermore, procedural law and European law are
addressed. Finally, the last two sections of the book are devoted to an overview
over the German tax law, which has an enormous impact on business decisions,
and IP law.
In all sections special attention has been paid to highlighting and explaining the
differences between the German legal system and that of the United States.
Nevertheless, the intention is to provide information that will prove valuable to all
foreigners, particularly business men and women and lawyers advising clients with
an interest in doing business in Germany.
Although it is the object of this book to provide readers with a general orientation and the foundation for making informed decisions concerning business transactions in Germany, it cannot possibly function as a substitute for case-specific
professional advice and by no means purports to do so. Those readers who wish
to follow up on any decisions they may have formed on the basis of the material
presented here are well advised to seek the guidance of qualified attorneys and tax
advisors before entering into any binding obligations.
This holds particularly true in light of the fact that all information here is based
on the laws that were in effect in the Federal Republic of Germany on the first of
January 2008.
Düsseldorf, Germany
Munich, Germany
San Antonio, TX

Michael Wendler
Bernd Tremml
Bernard Buecker
v


Contents

Introduction ......................................................................................................
B. Tremml

1

Part I How to Establish or Acquire a Business in Germany
Recognized Forms of Business Organizations ...............................................
B. Tremml and B. Buecker

7

Establishment of a Company or Branch Office ............................................
T. Fischl

33

The Acquisition of Closely Held Companies .................................................
B. Tremml

39

Valuation of Business Enterprises ..................................................................
B. Tremml

55

“Pseudo – Foreign Companies” in Germany – The Centros,
Überseering and Inspire Art Decisions of the European
Court of Justice ................................................................................................
K.F. Sturmfels

59

Part II Commercial Law
The Law of Contracts ......................................................................................
M. Luber

67

General Terms of Business (AGB) ..................................................................
A. Stadler and M. Luber

81

Torts ..................................................................................................................
T. Tremml

95

vii

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viii

Contents

Product Liability Under German and European Law ................................. 107
R. Grote
Real-Estate Property Law Germany .............................................................. 117
C.R. Wolf
The Law of Insolvency and Security Interests .............................................. 127
R. Nacke
Unfair Competition .......................................................................................... 139
H. Schroeder
The Law of Public Procurement ..................................................................... 147
N. Müller
Distribution Agreements ................................................................................. 163
M. Bihler
Private Public Partnerships ............................................................................ 177
K.F. Sturmfels
Copyright .......................................................................................................... 185
C. Gerlach
Review of German Private Insurance Law.................................................... 201
T. Steffens
Transport Law and Forwarder Law .............................................................. 217
J. Walther
Customs Law .................................................................................................... 239
B. Kosny
Liability of the State......................................................................................... 263
M. Luber
Part III Labor Law
Aspects of German Labor Law....................................................................... 277
W.D. Schenk
Residence and Work Permit............................................................................ 291
M. Wendler


Contents

ix

Part IV Computer Law
Computer Law ................................................................................................. 307
M. Karger
Electronic Commerce ...................................................................................... 317
R.E. Walch
Protection of Internet Domain Names ........................................................... 323
W.C. Leonti and H. Schroeder
Part V Procedural Law
Enforcement of Rights and Claims through the Courts
and Arbitration Tribunals ............................................................................... 331
R. Nacke
Principles of the Legal Regulation of Attorney Fees .................................... 339
S. Sandrock
Notaries in Germany........................................................................................ 351
C.R. Wolf
Part VI European Law
Institutions of the European Community ...................................................... 365
B. Tremml
Antitrust Law in the European Community ................................................. 377
B. Tremml and M. Luber
Part VII Tax Law
German Tax Law ............................................................................................. 389
I. Badura
Part VIII IP
The PCT and the Enforcement of Patents in Europe ................................... 407
K. Rupprecht
Trademark Protection in Germany and Europe ........................................... 465
E. Popp

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Glossary of German Terms
and Abbreviations

Abgabenordnung (AO)
Abstraktionsprinzip
Abtretung
Allgemeine Geschäftsbedingungen
(AGB)
Amtsblatt der Europäischen Union
Amtsgericht
Änderungskündigung

Änderungsvertrag
Angestellte
Aktiengesellschaft (AG)
Aktiengesetz (AktG)
Aktionär
Aktie
Arbeiter
Arbeitserlaubnis
Arbeitserlaubnisverordnung (AEVO)
Arbeitsförderungsgesetz (AFG)
Arbeitsgerichtsgesetz (ArbGG)
Arbeitslosenversicherung
Arrest
Arzneimittelgesetz (ArzneimittelG)
Aufenthaltserlaubnis
Aufenthaltsgesetz
Aufsichtsrat
Ausländer

Tax Code
Abstraction Principle
Assignment
General Terms of Business
Official Journal of the European Union
Court of Small Claims; Municipal Court
A Termination of a Contract with the
Reserved Right to Renew it Under
Altered Conditions
Contract of Amendment
Employees; Salary Earners; “White
Collar” Workers
Stock Corporation
Corporation Act
Stockholder (of a Stock Corporation)
A Share of Stock; Stock Certificate
Laborers; “Blue Collar” Workers
Work Permit
Work Permit Regulations
Work Promotion Act
Code of Labor Procedure
Occupational Incapacity Insurance
Freeze Order
Pharmaceutical Products Act
Temporary Residence Permit
Federal Residence Act
Supervisory Board of a Company
or Corporation
Foreigner; Alien
xi


xii

Glossary of German Terms and Abbreviations

Ausländergesetz (AuslG)
Ausländeramt
Außenministerium
Außenwirtschaftsgesetz
Begehungsgefahr
Bergamt
Berufsgenossenschaft

Berufungsverfahren
Beschäftigungsverordnung (BeschV)
Betriebsaufgabe
Betriebsrat
Betriebsstätte
Betriebsverfassungsgesetz (BetrVG)
Bezirk
BGB-Gesellschaft
BGB-InfoV
Bilanz
Bilanzrichtliniengesetz
Bundesagentur für Arbeit
Bundesarbeitsgericht
Bundesministerium für Arbeit und
Soziale Sicherung
Bundesfinanzhof
Bundesgerichtshof (BGH)
Bundeshaushaltsordnung
Bundesimmissionsschutzgesetz
(BImSchG)
Bundeskartellamt
Bundesrechtsanwaltsordnung
(BRAO)
Bundesrechtsanwaltsgebührenordnung
(BRAGO)
Bundespatentgericht
Bürgerliches Gesetzbuch (BGB)
Bürge
Bürgschaft
Bundesverfassungsgericht

Aliens Act
Aliens Office
Department of Foreign Affairs
Federal External Trade Act
Danger of Commission of an Offense
Mining Authorities
Administrative Authorities in Charge
of Providing Social Insurance due to
Occupational Accidents
Appellate Proceedings (to the Next Higher
Court)
Employment Regulation Order
Abandonment of a Business Enterprise
Works Council
Operational Location (Dependant Branch
Offiche)
Employee Representation Law
District
See Gesellschaft Des Bürgerlichen
Rechts
Federal Ordinance on the Duty to
Provide Information to the Consumer
Commercial Balance Sheet
Accounting Directives Act
Federal Employment Office
Federal Labor Court
Federal Department of Labor and Social
Order
Federal Finance Court
Federal Supreme Court
Federal Budget Code
Federal Emission Act
Federal Cartel Authority
German Bar Act
Attorneys’ Fee Ordinance
Federal Patent Court
Civil Code
Guarantor
Surety or Personal Guarantee
Federal Constitutional Court

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Glossary of German Terms and Abbreviations

Darlehen
Delikt
Deutsche Angestelltengewerkschaft
Deutscher Beamtenbund
Deutsche Bundesbank
Deutscher Gewerkschaftsbund
(DGB)
Dienstvertrag

dinglicher Vertrag
dispositives Gesetzesrecht
Duldung
Durchführungsverordnung zum
Ausländergesetz (DVAuslG)
Einfuhrumsatzsteuer
Einführungsgesetz zum BGB
(EGBGB)
Einigungsgebühr
Einkommenssteuer
Einkommenssteuergesetz
einstweilige Verfügung
Einzelunternehmen
Entscheidungen des
Bundesgerichtshofs in Zivilsachen
(BGHZ)
Entsendung
Erbbaurecht
Erbrecht
Erbschaftssteuer
Erfolgshonorar
Erstbegehungsgefahr
Europäische Gesellschaft
Europäisches Patentamt
Europäische Wirtschaftliche
Interessenvereinigung (EWIV)
Europäischer Gerichtshof (EuGH)
Europäische Gesellschaft

xiii

loan Intended for Consumption
(Normally a Monetary Loan)
Tort (Compensatory), Unlawful Act
White Collar Union
Civil Servants’ Union
Federal Reserve Bank of Germany
German Association of Industrial Labor
Unions
Contract for Services (Without any
Promise of Specific Result, as Opposed
to a Werkvertrag)
Real Contract
Non-Mandatory Statutory Law
Residence Toleration
Implementation Ordinance of the Aliens
Act
Import Turnover Tax
Introductory Act to the Civil Code
Settlement Fee
Personal Income Tax
Income Tax Act
(Preventive) Injunction
Sole Proprietorship
Decisions of the Federal Court for Civil
Cases
Posting
Inheritable Building Right
Inheritance Law
Inheritance and Gift Tax
Contingent Fee
Danger of First-time Commission of an
Offense
Societas Europaee (SE), European Stock
Corporation
European Patent Office
Business for Multinational Enterprises
Comparable to the General Partnership
European Court of Justice (ECJ)
Societas Europae (SE), European Stock
Corporation


xiv

Glossary of German Terms and Abbreviations

Europäischer Wirtschaftsraum
(EWR)
Fernabsatzgesetz
Fernstraßenbaufinanzierungsgesetz
Finanzamt
Firma
Freizügigkeitsgesetz/EU
Gebührensatz
Gebührenvereinbarung
Gefährdungshaftung
Gegenstandswert
Gemeinde
Gentechnikgesetz (GenTG)
Geräte- und Produktsicherheitsgesetz
(GPSG)
Gerichtskostengesetz (GKG)
Gerichtsvollzieher
Gesamtbetriebsrat
Gesamthandsvermögen
Geschäftsbesorgungsvertrag
Geschäftsführung ohne Auftrag
Geschäftsgebühr
Gesellschaft des bürgerlichen Rechts
(GbR)
Gesellschaft mit beschränkter Haftung
(GmbH)
Gesellschafter
Gesellschafterversammlung
Gesellschaftsvertrag
Gesetz gegen Werbung auf dem
Gebiet des Heilwesens
Gesetz gegen den unlauteren
Wettbewerb (UWG)
Gesetz gegen Wettbewerbsbeschrän
kungen (GWB)

European Market
Act on Distant Sale Contracts
Private Highway Construction Financing
Act
Tax Office; Tax Authorities
Legally: Corporate Name
Freedom of Movement Act/EU
Rate of Charges/Fee Rate
Fee Agreement
No-Fault Tort Liability
Value of the Subject Matter
Community or Municipality
Genetic Technology Act
Equipment and Products Safety Act
Court Costs Act
Sheriff’s Officer (Official Debt Collector)
Combined or Overall Works Council
(Of More Than One Business Unit)
Joint Ownership (of the Property of a
Partnership)
Contract for Business Services
Settlement of a Third Party’s Legal
Obligations Without a Contract
Fee for Out-of-Court Work
(Also: BGB-Gesellschaft) Civil-Law
Partnership
Limited Liability Company
Shareholder (In a Limited Liability
Company)
Shareholder Meeting (Limited Liability
Company)
Articles of Incorporation Gesetz Law or
Act
Law Against Advertising in the
Health-Care Sector
Unfair Competition Act
Act Prohibiting Restrictions of
Competition

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Glossary of German Terms and Abbreviations

Gesetz über den Vertrieb ausländischer
Investmentanteile (AuslInvestmG)
Gesetz zur Regelung des Rechts der
Allgemeinen Geschäftsbedingungen
(AGBG)
Gewerbeaufsichtsamt/Gewerbeamt
Gewerbeordnung (GewO)
Gewerbesteuer
Gläubiger
Gläubigerversammlung
Gläubigerverzug
GmbH & Co KG

GmbH-Gesetz (GmbHG)
Gründungstheorie
Grundbuch
Grunderwerbssteuer
Grundpfandrecht
Grundsätze ordnungsgemäßer
Buchführung
Grundsteuer
Haftpflichtgesetz (HaftpflG)
Haftungsausschluss
Haftungsbeschränkung
Handelsgesetzbuch (HGB)
Handelsgewerbe

Handelsregister
Handlungsvollmacht (see also:
Prokura)
Handwerksordnung
Hauptfürsorgestelle
Hauptniederlassung
Hauptversammlung

xv

Law on Foreign Investment Shares
Law for the Regulation of General
Business Terms
Trade Supervision Office
Trade Supervision Law
Trade Tax
Creditor
Creditor’s Meeting (In an Insolvency
Proceeding)
Delay of the Creditor
Business Organizational Form Which
is a Combination of a Limited Liability
Company and a Limited Partnership
Gmbh Act (Law Governing Limited
Liability Companies)
Incorporation Theory (of Business
Enterprises)
Land Register at the Local Court
Real Estate Transfer Tax
Real-Estate Mortgages
Principles of Proper Accounting
Real Estate/Property Tax
Liability Act
Total Exemption from Liability
Limitation of Liability
Commercial Code
Commercial Trade Enterprise (Owned
and Operated by Individuals Who are
Merchants by Profession). Governed by
the HGB
Commercial Register
Full Power of Attorney (to Represent
an Enterprise)
Handicrafts Code
Head Office for Public Assistance
Company Headquarters, Main or Head
Office
Stockholder Meeting (Stock
Corporation)


xvi

Glossary of German Terms and Abbreviations

Industriegewerkschaft (IG)
Industrie- und Handelskammer (IHK)
Informations- und Kommunikationsdi
enstegesetz (IuKDG)
Inhaberaktie
Insolvenzordnung
Insolvenzplan
Insolvenzverwalter
Interessenausgleich

Investmentgesetz
Kapitalerhaltungsregeln
Kapitalertragssteuer
Kapitalspiegelmethode

Kaufmann
Kausalitätsvermutung
Kommanditgesellschaft (KG)
Kommanditgesellschaft auf Aktien
(KGaA)
Kommanditist
Komplementär
Konkurs
Konkursordnung (KO)
Kontrahierungszwang
Kostenordnung (KostO)
Kostenrechtsmodernisierungsgesetz
(KostRMoG)
Körperschaftssteuer
Krankenversicherung
Kreditwesengesetz (KWG)
Kündigungsschutzgesetz (KSchG)
Ladenschlussgesetz
Laienrichter
Landgericht
Landkreis

Industrial Trade Union
Chamber of Industry and Commerce
Federal Information and Communication
Service Act
Bearer Stock Certificate
Federal Insolvency Act
Insolvency Plan
Insolvency Administrator
Compromise on Issues of Disagreement
Involving Conflicting Interests (for
Example, of Employers and Employees)
Investment Act
Rules on Capital Maintenance
Capital-Yield/Withholding Tax
Literally: Capital-Mirroring Method.
the Reflection of the Actual Net Value
of a Partnership in its Fiscal Balance
(As Opposed to Using the Purchase
Price as the Means of Measure)
Merchant
Assumption of Causation in Regard to
Tort Liability
Limited Partnership (for Merchants)
Limited Partnership Combined with
Stock
Limited Partner (in a
Kommanditgesellschaft)
General Partner; Personally Liable
Partner (in a Kommanditgesellschaft)
Bankruptcy
Bankruptcy Act
Obligation to Enter into Contracts
Cost Regulation (for Notary Fees)
Legal Costs Modification Act
Corporate Income Tax
Private Health Care Insurance
Lending Business Act
Termination Protection Act
Store Closing Hours Act
Lay Judges
Regional Court
County (Approx. Equivalent)

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Glossary of German Terms and Abbreviations

Leasingvertrag
Lebensmittel- und
Bedarfsgegenständegesetz
Leihe
Leitende Angestellte

Lohnsteuer
Mahnverfahren
Markengesetz
Mehrwertsteuer
Mehrwertsteuergesetz (MwStG)
Minderkaufmann
Mitbestimmungsgesetz (MitbestG)

Montan-Mitbestimmungsgesetz
Mutterschutzgesetz (MuSchG)
Namensaktie
Niederlassung
Niederlassungserlaubnis
Niederlassungsfreiheit
Nießbrauch
Notar
Oberfinanzdirektion
Oberlandesgericht
Offene Handelsgesellschaft (OHG)
ÖPP-Beschleunigungsgesetz
Pacht
Patentanwalt
Pariser Verbandsübereinkunft
Partnerschaftsgesellschaft
Personengesellschaft
Pflegeversicherung
Preisangabenverordnung (PAngV)
Produkthaftungsgesetz
Prokura
Rahmengebühr

xvii

Leasing Contract
Food and Essential Commodities Law
Gratuitous Loan
Senior Executives; Managerial
Employees (with the Ability to Hire
and Fire); Literally: Leading Employees
Wage Tax
Summary Proceeding for Debt Collection
Trademark Act
(MwSt) (also: Umsatzsteuer) ValueAdded Tax (VAT)
Value-Added Tax Act Miete Rent
Small Merchant
Co-Determination Law Enabling
Employee Representation in a
Company’s Management
Coal-and-Steel Co-Determination Law
Maternity Protection Act
Registered Stock
Branch Office
Permanent Settlement Permit
Right of Establishment Of Companies
Usufruct
Notary
Superior Finance Directorate
Court of Appeals
General Partnership (for Merchants)
Private–Public-Partnerships
Acceleration Act
Leasing (of an Establishment or a Real
Property)
Patent Attorney
Paris Convention
Professional Partnership
Partnership
Long-Term Care Insurance
Price Indication Regulation
Product Liability Act
Full Power of Attorney Enabling Company
Representation by an Employee
Lump-Sum Fee with an Upper and
Lower Limit


xviii

Glossary of German Terms and Abbreviations

Recht der Leistungsstörungen
Rechtsanwalt
Rechtsanwaltsvergütungsgesetz
(RVG)
Rechtspersönlichkeit
Regierungspräsident
Rentenversicherung
Repräsentanz
Restschuldbefreiung
Revisionsverfahren
Richterrecht
Sachverständiger
Satzung
Schachtelbeteiligung
Scheinauslandsgesellschaft
Schuldner
Schuldnerverzug
Selbstbelieferung
SE-VO
Sitztheorie
Solidaritätszuschlag
Sozialgesetzbuch (SGB)
Sozialversicherung
Sozialversicherungspflicht
Stammaktie
Stammkapital
Steuer
Steuerberater
Stille Gesellschaft
Stuttgarter Verfahren

Terminsgebühr
Überschuldung

Law of Irregularities in Performance
Attorney at Law
Attorney Remuneration Act
Legal Personality or Nature (of a Business
Venture)
President of the Regional Administration
Retirement Pension Insurance
Representative Organization
Discharge of Remaining Debt (in an
Insolvency Proceeding)
Appellate Proceedings (to the Highest
Court for Judicial Grounds)
Judicial Law
Public-Appointed Experts
Articles of Incorporation of a Stock
Corporation
Intercorporate Participation; Mutual
Stockholding
Pseudo-Foreign Company
Debtor
Delay of the Debtor
The Ability to Procure Goods Oneself
European Stock Corporation (SE)
Implementation Regulation (VO)
Real Seat Theory (of Business
Enterprises)
Solidarity Contribution/Surcharge
Federal Public Welfare Act
Social Insurance
Compulsory Social Insurance
Common Stock
Nominal Capital of a Business Enterprise
Tax
Tax Advisor
Silent or Dormant Partnership
Stuttgart Procedure (a Way of Assessing
the Value of a Business, which was
Once the Standard Procedure in
Germany but has Recently Fallen Out of
Use Due to its Inaccuracy Pitfalls)
Appointment Fee
Excessive Indebtedness

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Glossary of German Terms and Abbreviations

Umsatzsteuer
Umwandlung
Umwelthaftungsgesetz (UmweltHG)
Unbedenklichkeitsbescheinigung
unerlaubte Bereicherung
unerlaubte Handlung
Unfallversicherung
Unterlassungsklagengesetz

Urhebergesetz (UrhG)
vereidigter Buchprüfer
Verfahrensgebühr
Verfassung
Vergabeverordnung (VgV)
Vergütungsverzeichnis (VV)
Vermögenssteuer
Vermögensübertragung
Verschmelzung
Verschmelzung durch Aufnahme
Verschmelzung durch Neubildung

Versicherungsaufsichtsgesetz (VAG)
Versicherungsvertragsgesetz
Vertrags- und Vergabeordnung für
Bauleistungen (VOB)
Verwaltungssitz eines Unternehmens
Vorschuß
Vorstand
Vorzugsaktien
Wasserhaushaltsgesetz (WHG)
Werkvertrag
Wertgebühr
Wettbewerbshandlung
Wettbewerbsrecht
Widerrufsrecht

xix

Value-Added Tax (Vat). Literally: Sales
Tax
Transformation of a Business Enterprise
from One Organizational form to Another
Environmental Liability Act
Clearance Certificate
Undue Benefit
Unlawful Conduct
Accident Insurance
Law Enabling the Filing of Suits for
Discontinuance of Using Unlawful
General Terms of Business
Copyright Act
Certified Bookkeeper
Litigation Fee
Constitution
Regulation on the Award of Public
Contracts
Catalogue of Fees for Legal Services
Wealth tax
Transfer of Corporate Assets and
Liabilities Into Public Ownership
Corporate Merger
Take Over; A Merger with at Least One
Other Company
Consolidation of One Corporation with
Another for the Purpose of Forming an
Entirely New Corporation
Insurance Supervision Act
Insurance Act
Regulation for Standard Terms for
Contracting Construction Work
Principle Place of Business
Retainer
Board of Management
Preferred Stock
Water Conservation Act
Contract for Work and Labor Promising
A Specific Result
Fee Based on Case Value
Competitive Act
Law on Competition
Revocation Right


xx

Wiederholungsgefahr
Wirtschaftsprüfer
Wohnungseigentum
Zivilprozessordnung (ZPO)
Zug-um-Zug-Leistung
Zwangsvertrag
Zweigniederlassung

Glossary of German Terms and Abbreviations

Danger of Repetition of an Offense
Certified Public Accountant (CPA)
Condominium
Code of Civil Procedure
Mutual Simultaneous Performance
Compulsory Contract
Independent Branch Office

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About the Authors

Inge Badura
Tax consultant and certified public accountant in Munich, Germany. She has
many years of experience in all areas of tax law and accountancy, working with
both German and international clients, including French and English speaking
companies and subsidiaries.
Michael Bihler
Attorney at Law in Munich, Germany – partner in the law firm of Wendler
Tremml. He provides legal representation to large international corporations and
distribution companies, as well as to developers and mid-sized businesses.
Bernard Buecker
Attorney at Law in San Antonio, Texas. He received the Doctor of Jurisprudence
degree from the University of Texas at Austin, was a Fulbright Scholar at the
University of Heidelberg School of Law, Germany, and specializes in German –
American legal disputes. He was awarded the Service Cross of the Federal
Republic of Germany in 1987 and was appointed Honorary Consul of the Federal
Republic of Germany by President Rau in 2001.
Thomas Fischl
Attorney at Law in Munich, Germany – senior associate in the law firm of
Wendler Tremml. He is chiefly involved with representing the interests of midsized and major IT providers and business customers in both the domestic and
international markets. Corporate law and industrial property protection are his
areas of further focus.
Carsten Gerlach
Attorney at Law in Berlin, Germany – senior associate in the law firm of Wendler
Tremml. His areas of expertise include intellectual property and computer law. He
provides legal representation to companies and public authorities, especially in
the area of computer law.
Ralf Grote
Attorney at law in Berlin, Germany – partner in the law firm of Wendler Tremml.
He is a litigation lawyer with longstanding experience. One of his areas of expertise

xxi


xxii

About the Authors

is the law of product liability. He is active for and recommended by well-known
German insurers. Moreover, he provides legal advice to the food industry.
Michael Karger
Attorney at Law in Munich, Germany – partner in the law firm of Wendler
Tremml. His areas of expertise include computer law and telecommunications
law. He is a frequent lecturer on the law pertaining to the use of on-line computer
services.
Beata Kosny
Attorney at law in Düsseldorf, Germany – senior associate in the law firm
of Wendler Tremml. She specializes in giving comprehensive legal advice to
transnational corporations on their cross-border activities, particularly supporting
Polish companies in their operations in Germany. She also concerns herself with
business reorganization, the establishment of branches and subsidiaries, and
international insolvency law.
Wolfgang C. Leonti
Legal counsel at a global software company. His areas of expertise include
IT law, industrial property rights, and software law. He handles trademark
infringement cases.
Michael Luber, LLMEur
Deputy Head of Division in the Bavarian State Chancellery for the affairs of the
Ministry of Finance and the ministry of Economy, Infrastructure, Transport and
Technologies. His areas of expertise include public commercial and company law.
Norman Müller
Attorney at Law in Berlin, Germany – partner in the law firm Wendler Tremml.
His areas of expertise include computer law and public procurement law. He
provides legal representation to large international corporations as well as to
mid-sized companies, especially in their activities for and with public authorities
in Germany.
Reinhard Nacke
Attorney at Law in Düsseldorf, Germany – partner in the firm of FPS Fritze Paul
Seelig. His special area of expertise lies in the representation of foreign and
German companies in legal matters with international background, including the
representation in legal disputes in and out of court or arbitration tribunals.
Eugen Popp, LLM
Educated at Munich’s Technical University and Ludwig-Maximilians-University,
he is a partner in the firm of Meissner Bolte in Munich, Germany. Dr. Popp is
Vice-President of the German Patent Attorneys’ Bar Association, Secretary
General of the European wide Committee of National Institutes of Patent
Attorneys and former President of the Bavarian Association of Patent Attorneys.

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About the Authors

xxiii

Kay Rupprecht, LLM
European and German patent and trademark Attorney in Munich, Germany –
partner in the intellectual property firm of Meissner Bolte. He specializes in the
prosecution and litigation of German, European, and International (PCT-) patent
and trademark applications and their registrations.
Stefan Sandrock
Attorney at Law in Munich, Germany – senior associate in the law firm of
Wendler Tremml. His areas of expertise include administrative law as well as
landlord and tenant law.
Wolf D. Schenk
Attorney at Law in Munich, Germany. His areas of expertise include collective
bargaining and individual labor law, industrial property and copyright law, as well
as drafting of corporate contracts, especially in regard to tax issues.
Henrik Schroeder
Deputy Head of Division in the Bavarian Ministry for Employment and Social
Affairs in Munich, Germany. His areas of expertise include administrative and
competition law.
Andreas Stadler
Attorney at Law in Munich, Germany – partner in the law firm Wendler Tremml.
His areas of expertise include IT law, contract law, commercial and distribution
law, as well as industrial property protection and copyright law.
Theresa Steffens
Attorney at law in Düsseldorf, Germany – senior associate in the law firm of
Wendler Tremml. Her special areas of expertise include International esp.
European labor law and international social security law as well as public law and
criminal law relating to economic and administrative offences.
Kai F. Sturmfels, LLM
Attorney at Law in Düsseldorf, Germany – partner in the law firm of Wendler
Tremml. His professional focus is on private building construction law, business
and corporate law, as well as IT law. He participates in seminars as an expert
speaker on various legal issues, chiefly as they concern private building
construction law.
Dr. Jur. Bernd Tremml, MCJ
Attorney at Law in Munich, Germany – partner in the law firm Wendler Tremml.
He has many years of experience in the representation of foreign clients who wish
to establish a subsidiary or purchase a business in Germany or in other European
countries. Bernd Tremml is admitted to the Bar of the State of Texas as Foreign
Legal Consultant.


xxiv

About the Authors

Tobias Tremml
Holding both a German law degree, as well as a business degree from Columbia
University, New York, he is working in a management position at an international
software company in Dresden, Germany. Before joining his current company, he
taught constitutional law at Ludwig-Maximilians-University of Munich, Germany.
Raimund E. Walch
Attorney at Law in Berlin, Germany – partner in the law firm Wendler Tremml.
His special areas of expertise include IT law, commercial and corporate law, as
well as private construction law.
Jutta Walther
Attorney at law in Düsseldorf, Germany – senior associate in the law firm of
Wendler Tremml. Her special areas of expertise include labor law, administrative
law as well as criminal law involving business offences and administrative
offences.
Michael Wendler
Attorney at Law in Düsseldorf, Germany – partner in the law firm Wendler,
Tremml. His focus is on the provision of legal representation to German corporations that operate globally and to foreign companies and associations concerning
their business activities in Germany and in all EC-member states.
Christian R. Wolf
Notary in Kleve, Germany. Educated at the Ludwig-Maximilians-University
of Munich and the University of Freiburg, he specializes in corporate law and
international business transactions, in real-estate transactions, and particularly in
the formation and merger of business enterprises. Fluent in Dutch, he is especially
involved in international transactions between The Netherlands and Germany.

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Introduction
Overview of the German Legal System and its Role
in Light of Germany’s Membership in the European
Union
B. Tremml

Foreigners interested in starting a business or investing in German companies are
generally attracted by the prospect of expanding into other European markets.
Germany’s membership in the European Union (EU) is a beneficial factor when
deciding whether to invest in Germany, especially, because of the recent broadening
of the EU. On 21 December 2007, nine new countries (Estonia, Hungary, Latvia,
Lithuania, Malta, Poland, Slovenia and Slovakia and the Czech Republic) joined
Europe’s travel zone, the Schengen area. This means there will be no more border
checks on people travelling between these and other Schengen countries by land or
sea, and checks at airports are set to end in March 2008. In addition, travelers from
outside the EU need just one visa to travel to all Schengen states. In addition, the new
EU treaty (the so called Lisbon treaty) that was signed on 13 December 2007 and is
expected to be in force by the next European elections in June 2009, improves the
decision making in the EU and, therefore, contributes to the complete establishing
of a common market.
However, there also have been concerns about the implications of the dual
European and German legal systems. Investors may wonder whether a German
venture requires familiarization with two, often-conflicting bodies of law, or if businesses in Germany frequently have to deal with administrative authorities at both
the national and international level with regard to the same transaction. The answer
to such questions is “no.” Given the structure of the EU and particularly the manner
in which EU institutions pass laws, an investment in Germany does not place investors in a legal quagmire. Nevertheless, there are some legal areas where European
law is directly applicable, for example, in antitrust law.
As a fundamental principal, the EU and its institutions possess the power to pass
legislation in only those areas in which an express delegation of national authority
exists. For this reason alone, many regulatory areas remain outside of the EU’s control. For example, most civil, criminal, and administrative laws remain the sole
province of the Member States. In general, the EU’s authority is limited to those
regulatory areas which are essential to the establishment of a common market.
Furthermore, the laws that have been passed by the EU tended to take the form of
“directives.” As will be explained in detail in the chapter entitled “Institutions of the
EU”, directives do not, as a general principal, take effect until after they have been
incorporated into national law. This special characteristic of directives is intended
M. Wendler et al. (eds.) Key Aspects of German Business Law – A Practical Manual
© Springer-Verlag Berlin Heidelberg 2008

1


2

B. Tremml

to give Member States the flexibility of choosing the manner in which a directive
becomes law in their own country. Accordingly, Member States can choose a directive that is most compatible with their particular legal system. For individuals and
business enterprises alike, it is often not easy to recognize whether or not a national
law is based on a European directive. In summary EU directives do not constitute
an overlay of regulations which investors must familiarize themselves with, but
rather comprise an integral part of a Member State’s national law.
However, that is not to say, that the EU’s influence should be downplayed. The
numerous areas of law impacting the establishment and operation of businesses in
Germany are often reflective of EU law. Nevertheless, for the most part EU laws
have been incorporated into national law and are subject to Germany’s legal system.
It is within this system that foreign investors will predominantly conduct their business transactions.
For the most part, Germany’s legal system is stable and smooth working. It is
based on the Continental European legal tradition as opposed to Anglo-Saxon law
upon which the U.S. legal system is based. The primary difference between the two
systems is that the Continental European legal system is based on “code law” as
opposed to “case law.” In accordance with the Continental tradition, the German legal
system consists essentially of written laws. Nearly all potential regulatory areas are
the subject of formal and detailed codification. Many of Germany’s legal codes are
the final product of decades of careful deliberation and refinement. This offers foreign
entrepreneurs and investors considerable advantages. German law is so clearly structured and transparent that contract terms can be standardized to a very large extent.
All the standard practices and regulations governing a business’s conduct are codified
in the German Civil Code (BGB, or “Bürgerliches Gesetzbuch”). Therefore, if no
special terms are agreed upon between the parties, the terms and provisions of the
BGB automatically apply. In other words, in the U.S., business contracts require the
clear and detailed statement of all the terms the parties agree to. Contracts in Germany
tend to be considerably shorter, which lowers their drafting costs accordingly.
German law has undergone numerous reforms in recent years, which, for the
most part, have had a very positive impact on business activities, even though there
have been some less favorable developments. The Commercial Code was liberalized by broadening the definition of “merchant”, thus, making it easier for people
to get started in business. Additionally, the Handcrafts Code (“Handwerksordnung”)
was modified to make it easier to demonstrate professional qualification. Business
activities in the domestic market were also facilitated through a considerable loosening of the laws regulating unfair trade.
On the other hand, disadvantageous are the new regulations in contract and civil
process law. Contract law now ensures an extraordinary high degree of consumer
protection at the expense of merchants. Furthermore, the extent and complexity of
the reforms have led to a certain degree of legal confusion. The changes made in
civil process law make it more difficult to acquire access to appellate courts, which
very often necessitates cost-and-effort intensive proceedings right from the start.
As in the U.S., it is the task of the courts to interpret the written law. Because a
number of German codes are more than a hundred years old, the case law pertaining

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Introduction

3

to certain individual provisions of them is very extensive. The courts have the primary
task of interpreting the statutes, regulations, and Constitution, and they also play a
role in filling in the gaps of laws where necessary. However, the reliance on precedence plays a much smaller role in the German legal system than in American
jurisprudence, since German laws are explicitly detailed and codified.
The sharp differentiation between the various areas of law in Germany and the
separate codification of them have led to a strict division of subject-matter jurisdiction among the different types of courts. As in the U.S., there are separate civil
courts responsible for deciding legal disputes among private persons, and there are
criminal courts for criminal prosecutions brought by the State against individuals.
In contrast to the U.S. legal system, there are also separate court systems for administrative matters or legal disputes involving measures taken by public authorities
against residents and for labor-law and financial matters. Germany has a special
body of law governing taxation and a court system specialized in trying tax cases
as well. It should also be noted that, in contrast to the U.S. judicial system, there is
no duality between state and federal courts. In Germany, their areas of jurisdiction
are clearly kept separate. Each of the various court systems has its own supreme
court. The Constitutional Court is the final authority.
The judges who serve on the courts are judges by profession and are specialized
in one type of law. They do not rotate from one type of court to another as U.S.
judges do, but generally serve on only one type of court throughout their careers.
They are not elected but rather appointed by the government of the particular state
of Germany where the court is located. Germany does not make use of the jury
process. However, in certain cases the judges are assisted in making their decisions
by common citizens who do not necessarily have a legal background of any kind
(“Laienrichter/lay judge”) and who are chosen to serve on the court for a limited
time period.
Regardless of which type of court is handling a particular dispute, the parties’
trial preparation consists primarily in the drafting and presentation of legal briefs in
which evidence is presented and the issues in dispute are argued. In doing so, the
parties rely on the court’s special procedural rules. Each type of court has its own
rules, such as determining case procedure, the kind of evidence it will admit, etc.
The courts make extensive use of independent public-appointed experts (“Sachverständiger”), whose professional input almost always influences the ruling to a
very large extent and often determines the outcome of a case. Due in part to the
judicial system’s reliance on the parties’ briefs, the reports of independent experts
and other written submissions, the trial itself (in particular the in-court presentation
of live testimony and other evidence) takes considerably less time and involves less
costs than U.S. court proceedings. This will be discussed extensively in chapter
“Enforcement of Rights and Claims”. With the exception of criminal cases, most
trials last no longer than one or two days.
An overview of Germany’s legal system would not be complete without a few
comments about the governmental administrative apparatus. The Federal Republic
of Germany is, as its name expresses, a federal state. That means that legislative powers are divided between the federal government and each of the country’s states.


4

B. Tremml

The most important areas of law are the exclusive domain of the federal government.
However, because individual states of Germany are generally vested with the
authority to enforce federal laws and the majority of the administrative offices
necessary to accomplish this task are established by the states, the states have an
important influence on the interpretation and development of federal laws.
Similar to the state subdivisions in the U.S., the states of Germany are comprised
of districts (“Bezirke”), counties (“Landkreise”) and communities (“Gemeinde”).
A striking difference between the two administrative systems is in many cases
the higher degree of authority and competence exercised by the more local and
regional units in Germany, which often allows them to take action and make decisions affecting both residents and businesses more efficiently and quickly.
In conclusion, it can be said that the legal system in Germany is precisely structured. Its areas of court jurisdiction are clearly defined and its laws so explicitly
codified that overlapping and ambiguities are largely ruled out. This makes it relatively easy for foreigners to orient themselves within the system. They will find the
drafting of business contracts to be a relatively swift and inexpensive process as
opposed to the process in the U.S., where effort and costs generally tend to be considerably higher, because its laws allow a vastly wider degree of interpretation and
all the terms of agreement must be contained in the contract itself. In contrast, the
terms of the German Civil Code (BGB) regulating contracts automatically come
into effect in the absence of other terms. Contracts between business partners are
necessary only if the parties wish to agree to terms that differ from the standard
provisions of the BGB. When looking at business operations, the clearly structured
German system encourages fair, free trade and the minimization of conflicts.

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