The main holiday-making time has now come to an end. But many may have experienced an unpleasant surprise with their luggage at the airport, which they correctly checked in but didn’t arrive at the destination and has evidently gone lost, never to be recovered, for whatever reason. If you check in high-quality luggage with the airline, you should know about the latest decision by the European Court of Justice. Airline carriers are only responsible for as much as EUR 1,134 per passenger. So if you check in high-quality luggage, you will possibly have to insure it in another way. Basically, you have two options for doing this: 1. You have the opportunity, when checking in your luggage, to explain to the airline that you are interested in increasing the value of the airline’s own insurance. For a fee, determined by the airline carrier, you can increase the value of the insurance to cover your costs in the event of a loss. 2. You, of course, also have the opportunity to take out a private traveller’s luggage insurance policy. This has the advantage that it not only covers the risks associated with transport from the departing airport to the arriving airport, it also encompasses the entire holiday, including the journey to the hotel, etc. As the highest insurance value of EUR 1,134, set by the European Court of Justice, is quickly obsolete when it comes to high-quality luggage, many will see the necessity to take advantage of an additional insurance as described in the options above.

by Wolfram Seischab

Most holiday trips are over, but what about the next one? Will you arrive at your destination only to discover that the description in the organiser’s flyer is far from reality? In addition to the anger you feel, which casts a dark cloud over your holiday enjoyment, you will also go about finding out how you can receive any money back. That’s when you realise you’re not really certain what you can do to assert yourself and push through your demands. First of all, it is clear that the organiser has to provide the holiday as described in the catalogue or when booking, and not full of flaws. In terms of package holidays, you can make any complaints on site to the travel guide, from whom you can demand that the flaws be corrected. If the guide does not act, you have various options on how to proceed:

a.    Either the guide himself does everything necessary to remedy the flaws
       and demands the costs back from the organiser or
b.    He reduces the price of the holiday or
c.    You demand payment for damages due to non-fulfilment of the holiday
       and compensation for wasted holiday time.

However, price reductions have to correspond to the type or amount of     problems. German law uses a so-called Frankfurter Tabelle (taken from a regional court decision in Frankfurt). Here are a few examples:

-    No ocean view as promised = 5% to 10%
-    Noise at night, depending on the loudness = 10% to 40%
-    Spoilt or inedible food = 20% to 30%
-    No swimming pool as promised or it is dirty = 10% to 20%

It’s important to note that you have to prove that the problems are real. That’s why it’s best to take photos and name witnesses who can confirm that the flaws existed. As a rule of thumb, you have to lay forth your various demands to the organiser within one month after the holiday trip has ended. This involves a limitation period, so it’s recommended that you send your letter to the organiser via registered post with return receipt.

 

by Dr. Lisa Seischab

 

-October 2009-

 

 

The German Federal Court’s 8th civil court of appeal, which is responsible for Landlord and Tenant Law, recently decided that a landlord can be subjected to refund a former tenant when that tenant, upon moving out, assumed the validity of the End Renovation Clause in the rental agreement and performed aesthetic repairs.

Case in point: the tenants renovated their flat in the year 2004. A little while later, they terminated the rental agreement to 31st December 2006. Before handing in the keys, they assumed they were responsible for renovating the flat. When they discovered that the End Renovation Clause was invalid, they took the landlord to court for damages. The Federal Court ruled in favour of the tenant and decided that they have the right to a refund on the grounds of an unjustified personal gain on the side of the landlord - due to the fact that they performed aesthetic repairs in accordance with an invalid End Reno-vation Clause and without any legal foundation. The court is to determine the value of the performed renovation work - a decision is based on the amount of the usual and appropriate compensation for the work.

If you performed the work yourself, or if it was performed by a relative or friend, the value of the renovation work is, as is usual, based on what the landlord would have paid, or would have had to pay, for the necessary material as well as compensation for any help he may have had. In short: Thanks to the latest Federal Court decision, many landlords now have to reckon with being confronted by former tenants who demand their money back.

 

by Dr. Lisa Seischab

 

-September 2009-

If a son or daughter drives father's company car out of the garage without permission, goes for a joyride with it and causes an accident, this can easily lead to a claim for recourse from the hull underwriters. Of course, the hull underwriter has to pay the owner of the car the damages, in this case the father, but can claim the damages from the driver of the car who was not authorised to use the car and caused the accident.

 

Germany's Federal Court of Justice recently made a decision in such a case. A businessman's 17-year-old son 'borrowed' his father's expensive company car without permission and while trying to escape the police, he caused an accident with approx. 45,000 euros in material damages. The insurance company paid up, but brought the 17-year-old to court to claim the damages back from him. In the last level of jurisdiction, the insurance company's claim was rejected. You should know the following:

 

In principle, the insurance holder's claim (in this case the father) from a third party (in this case the son) is passed through the insurance company. However, this subrogation is not valid when the third party (the son), who's required to pay damages,:

a) is a family member of the insurance holder's family

b) lives with the insurance holder and

c) did not deliberately intend to cause the damages.

 

The Federal Court of Justice wanted to avoid the situation whereby the insurance holder, who's closely related to the person who caused the damag-es, is financially burdened by the damages indirectly. However, in all other cases, the unauthorised user of the car, and thus damaging party, has to reckon with the fact that the insurance company can claim recourse.

 

-Januar 2009-

What many don't know: grandchildren can also claim child support - in cases of need - from their grandparents. Such a child support situation can arise when both parents cannot support their child on their own. However, in order to claim support from the grandparents, the child must prove that the parents genuinely cannot provide support themselves or their support is not enforceable.

 

If such a case exists, in other words if the grandparents are responsible, on its merits, for the support of their grandchild, it must be taken into consid-eration that the amount of support is not based on the clearly better quality of life of the grandparents, but on the quality of life of the parents, in case of minors. More or less, this means that even if the grandparents have a very good income and many assets, the amount of child support for the grandchild is determined according to the parents' income, which is normally much less.

 

However, the grandparents have the right to an appropriate excess of 1,250 euros, which means that the claim for child support can only be fulfilled if the grandparents can retain an excess of 1,250 euros.

 

-December 2008-

The travel season has just ended and some holiday-goers may have had an unhappy experience at their dream destination, as they were a victim of theft or even robbery. Typical cases include women's handbags being stolen or muggings in broad daylight, with watches and jewellery being taken. Of course, if this has happened to you, you'll immediately report the case to the local police. But what you may not know: you may have to inform your insurance company - usually your contents insurance covers these types of cases - from your holiday destination. If you don't do this immediately, you run the danger of losing any paid damages from your insurance.

 

Here's an example: a couple on holiday fell victim to theft and although they immediately contacted the local police and German consulate, they didn't report the case to their insurance company until two months after their arrival back in Germany. The insurance company refused to settle the claim. Later, the local court ruled in favour of the insurance company.

 

If you take a closer look at your insurance policy's terms and conditions, you'll most likely read that you have to immediately report damages to the insurance company. If you breach this responsibility, even the most thought-out excuse won't help you, for example stating that you didn't have your insurance policy number on hand. It's up to you to do all you can, if necessary even when travelling abroad, to inform your insurance company.

 

-November 2008-

Law-makers have finally taken action to stop the trend of German entrepreneurs from starting their businesses as Limiteds, based in the United Kingdom. According to the new binding law, entrepreneurs can also start up their enterprises in Germany with almost no capital as a so-called Mini-GmbH - but they will need a limitation of liability. The only capital required is 1 euro. The goal of this addition to the existing GmbH law is to keep financially weak entrepreneurs from founding an English Limited. In the past, many have been tempted to start a Limited and discovered later that there can be a host of organisational and judicial problems which weren't necessarily considered from the beginning. However, the new law that's coming into affect also allows for the protection of creditors. Even though only 1 euro is required for the start-up, the partners are required to put 25% of their profit into a so-called reserve fund so that they can build up liability equity. When a new start-up capital of at least 10,000 euros has been reached, the partners can - but they don't have to - re-organise the business as a traditional GmbH.

 

Plus, another relief is in sight too. Until now, entrepreneurs needed a notarised certificate to start a GmbH, which led to extra costs. In future, a so-called template with standard formulations will be enough. The Mini-GmbH is especially attractive for service providers and freelancers. Thus, the current traditional GmbH will now have strong competition with considerable cost advantages for entrepreneurs.

 

-September 2008-

Even having the best accident insurance is no guarantee that you'll receive any compensation in the case of an accident. The Higher Regional Court of Cologne recently made a decision in the following case:

 

In spring of 2001, the plaintiff suffered an injury on his cervical spine as a result of a traffic accident. Although he complained of persistent pain and was being treated by a doctor during a period of several months, he didn't report the accident to his insurance company until the following spring. His insurance refused to pay the claim of invalidity support totalling EUR 50,000 with the grounds that the plaintiff showed gross negligence when he breached his duty to duly report the accident. Although the accident itself and the severity of the plaintiff's injuries were undisputed, the Higher Regional Court ruled in favour of the insurance company and rejected the plaintiff's claim. The court pointed out that the insurance company has the right to be notified immediately of an accident. When the insured customer neglects to do so he runs the risk of losing his insurance coverage. The courts also pointed out that reporting the accident late can result in the insurance company having the disadvantage that the circumstances of the accident cannot be investigated at all or not completely. That's why the insurance's terms and conditions regularly state that accidents should be reported immediately and in writing. Immediately means that the insured customer doesn't deliberately delay reporting the accident.

 

Other insurance areas like theft, robbery and fire also include such clauses, with some even requiring a police report to guarantee your coverage.

 

-August 2008-

Landlords and tenants often disagree about many things, like damages in the flat caused by the tenant's carelessness. Who's responsible for repairs? Germany's Higher Regional Court in Karlsruhe announced a judgement on such a case on 7th February 2008. The judgement was made on the fol-lowing case: a tenant warmed a fondue pot full of oil on the stove. He left the kitchen for a short moment to take a phone call. During this time, the oil began to burn in the pot, resulting in damages to the flat that amounted to approximately 20,000 euros. The building's insurance company took care of the costs, at first. However, the insurance also demanded that the tenant's personal liability insurance (which is also responsible for damages caused by the tenant) pay compensation of 8,000 euros. The building's insurance company was successful and the Higher Regional Court ordered the personal liability insurance company to pay up. The court based their decision on the following basic principles:

 

1. In such cases, a landlord can request compensation from the tenant when he has acted deliberately or with gross negligence. If simple negligence was at play, the case law assumes a silent exclusion of liability. This leads to the situation that the tenant does not have to pay for repairs.

 

2. However, if the tenant has personal liability insurance, which also covers damages to the flat, the insurance has to pay even when simple negligence was the case.

 

According to the court's view in this case, the tenant acted with simple negligence, as he heated oil on the stove and left the room for a short time. Due to the danger of fire, strict duty of care should have been considered - and the courts presumed that the tenant was also aware of the danger when he left the oil unattended on the stove.

 

In conclusion, every situation is individual and depends on the tenant's specific actions and thus whether he is liable or not. In any case, tenants should take out a personal liability insurance policy that also covers a range of damages to the flat.

 

-Juli 2008-

A valid question. On account of pressure from the European Union, law-makers in Germany have once again outdone themselves with a questionable law. On 18th August 2006, the Anti-Discrimination Law came into affect. This law states that when employers breach equal opportunity employment regulations, they can be required to pay restitution for damages or compensation. So-called 'anti-discrimination hoppers' are pseudo-applicants who are not at all interested in the job, but simply want to 'cry' discrimination and pocket the money. These people primarily apply for those jobs that provide them with possible grounds for discrimination. Classic examples are job ads that require a specific gender or age limit. Such a poorly formulated job ad is an indication of discrimination, and believe it or not, can be used as evidence in favour of the applicant. That means the employer has to prove that the equal employment opportunity law has not been broken.

But employers shouldn't fall for such tricks. It's often quite simple to expose 'anti-discrimination' hoppers.

According to German law, an applicant is someone who

 

a.) is genuinely interested in the job

b.) objectively comes into question for the job.

 

The courts have laid down the following indications of an applicant who may not be seriously interested in the job:

 

aa.) The applicant has not yet given his/her notice to the current employer and is applying for a clearly lower-paid job

bb.) The applicant is clearly over-qualified

cc.) The applicant does not objectively fulfil the job requirements

dd.) The applicant has sent an incomplete or untidy application or just a short description

However, it's suggested that employers organise their application process, especially job ads, to be in line with the anti-discrimination law. A job ad should not mention anything about age, gender, religion or ideology, etc.

-July 2007-

It's getting out of control: the motor vehicles department continues to patronise drivers, and unfortunately the courts are too. A current case: Caught speeding on tape, the owner of the car in the photo received a court summons. The driver in the photo was not recognisable, and the car owner's lawyer that his client could not say who the driver in the photo was. Subsequently, the court dismissed the action. Now comes the revenge. The road traffic authorities ordered the car owner to keep a driver's logbook for a six-month time period. The owner in question took legal action against the order and you'll hardly believe it, but the administrative court in Brunswick agreed with the authorities in this most recent case. The courts held the view that the car owner should have limited the number of people with access to his car or must have been able to name the driver in the photo with certainty. What this judgement tells us is that all car owners should do everything in their power to determine or name the driver caught on photo, at least for the courts, or document all people who have driven the car. Of course, if the person is a family member, you are not required to name the person. This judgement is hard to accept as is, but it goes even further. According to the courts, a one-off speeding incident of over 20km/h supposedly constitutes a considerable traffic violation, so much so that the courts, instead of simply threatening the car owner with keeping a driver's logbook, ordered the owner to immediately start keeping one.

 

The reasons for this jurisprudence are clear. The courts are trying to force drivers/car owners to reveal the driver caught speeding - in a cold way. If you don't behave accordingly, you can be punished with keeping a logbook. The authorities can't be surprised when drivers, in a state of distress, invent some driver, especially one that lives abroad. Unfortunately, drivers will continue to be patronised.

-June 2007-

Today's company correspondence now involves the use of e-mail more than traditional written post. What many don't know and what hasn't been published in the media very much, are the new regulations for e-mails beginning 1st January 2007. Although electronic, they're considered official business letters. Business letters include offers, order forms and order confirmations, to name just a few. German business people know that traditional company stationary has to have the appropriate footer with information about the company's legal form, the headquarters, the court of registry and the number which the company receives when it's registered. Corporations have to also include the name of the managing director and all board members, as well as the chairman of the board.

 

These regulations are now also valid for e-mail correspondence from the 1st of January 2007. And you should be careful: a few lawyers, who obviously have nothing better to do, have been checking e-mail correspondence from companies that have not yet added a footer to their e-mails - and have been serving notices as well as charging the respective fee.

 

The laws on electronic correspondence for the registry of companies, col-lectives and corporations have now made it clear that all business letters must include a footer, no matter what form they are in. Exempt from the new regulations are e-mails with no contract relevance and internal e-mails. To avoid any mishaps and grounds for notice from a lawyer, however, we recommend re-working your e-mail footer for all situations.

-May 2007-

A number of civil court cases often deal with workers' rights and protection against unfair dismissal. Usually such cases end with the employer paying the employee severance pay in agreement for ending the working relationship. However, how much the severance pay should be is heavily disputed. To clear things up, here are a few deciding criteria regarding severance pay sums:

The law says very little about the amount of severance pay (§ 9 and § 10 in the German unfair dismissal act). However, the amount of severance pay should be appropriate and may not be more than 12 to 18 month's worth of pay. To answer the question about what's 'appropriate', the circumstances in each individual case are important - for example, the:

a.) employees age

b.) length of employment

c.) company's business situation and

d.) social aspect, i.e. how quickly the employee can find a new job

and if he/she has any children to support.

The courts have developed a rough rule, basically that for every year of employment, half of a month's wages are to be paid as severance. But that's just a rough rule of thumb and it can be modified in accordance with the above-mentioned circumstances as well as other factors. A month's wages is to be understood as that which the employer would have earned before taxes, if the working relationship were to have continued. Monetary payment and payment in kind are also to be considered.

Since 1st January 2006, severance pay is subject to income tax in all cases. However, payments do not need to be made to public health insurance, pension and unemployment funds. It's also important for the employee to know that severance pay cannot offset potential unemployment payments. However, the unemployment agency can impose a payment stop for up to twelve weeks, when the employee is the one who has terminated the working relationship - for example, by agreeing to terminate the working contract or when the employer has terminated employment due to a breach in the contract by the employee. That's why employees should be careful when agreeing to a contract termination. It's important the agreement clarifies that the working relationship was ended due to the business situation and an appropriate agreement has been made between both parties to avoid going to court.

The rapid developments in technology taking place on the Internet have not only opened up fascinating new possibilities, they've also created dangers for users.

 

This is primarily because the information technology field is especially full of criminal offenders who've taken it upon themselves to spy on data within the Internet or sabotage other people’s computers. As a result, victims suffer enormous damages - as they do today and will continue to do in the future. However, the German government has now decided to take action. A law was drafted in September 2006 which would close up any existing loopholes in the German law books and which would make it possible to prosecute offenders for such illegal behaviour.

 

The new Computer Crime Law, which will soon come into effect, can be summarised as follows:

1. So-called computer hackers also have to reckon with prosecution when they access information without permission, even if they do not steal the data or change it. This is especially true of protected or confidential information.

 

2. Attacks on computers owned by private persons will also be punishable by law. Until now, only attacks made on a company's or a government authority’s system have been illegal.

 

3. It is also illegal to create, offer or distribute programs that allow other persons to illegally enter data networks or computers (so-called hacker tools).

 

4. For especially severe cases of computer crimes, the offender can expect a prison sentence of up to 10 years.

 

5. In future, so-called 'Denial of Service Attacks' will also be prosecuted. These are targeted attacks on servers using a huge number of enquiries, which allow the offender to overwhelm the system, thus leading it to malfunction.

 

In all, offenders should prepare themselves for tightened sanctions in the area of computer crime. And we're happy to see this happen since it also affects every computer user, including those who use online banking and are at a particular risk of fraud.

 

January 2007

A large number of so-called standard rent contracts also include a renovation clause. This clause is usually a combination of an 'original condition' clause and a clause regarding regular maintenance and renovation (normally every three years for the kitchen/bath, four to five years for the bedroom/living room and every six years for windows/doors/radiators).

 

That means, regardless of the rental object's condition, the landlord can force the renter to renovate the object regularly or return the object to its

original condition.

 

The German Federal Court of Justice has ruled that this clause in standard rent contracts is now no longer valid. That means both in housing contracts as well as commercial rent contracts, the entire clause is invalid if both a respite plan and original condition renovation are mandatory, independent of the

fact if the living or business space has been taken over in a renovated or non-renovated condition. It makes sense to check and read through your own rent contract, since this clause can be found in most housing and commercial rent contracts.

 

However, a renter can also individually negotiate the renovation clause with the landlord. The only presupposition is if the rent contract is not the standard contract, but rather an arranged contract with negotiable clauses. Since this is usually not the case, the renter can successfully appeal for the renovation clause to be judged invalid.

 

 

November 2006

Both in the office and at home, privacy regarding correspondence - whether digital or postal - is being breached.

 

Correspondence privacy is even protected by law and if breached, is punishable according to § 202 of the German penal code, which many don't even know. You should be aware of the following:

 

A breach of correspondence privacy occurs when you, without permission:

 

a.) open a sealed letter or other sealed document which is not knowingly addressed to you,

 

b.) use technical means to discover the content of a sealed document not meant for you, even without opening the document,

 

c.) open a special sealed repository to discover the content of a document not meant for you.

 

Only when you knowingly open a sealed document not meant for you are you liable to punishment. Spouses do not have the right to open letters addressed to or written by the partner, too, even if they believe the letter is proof of committing adultery. However, spouses may open sealed letters regarding daily matters and according to the partner’s presumable permission, but not letters specifically addressed to the partner and without special circumstances.

However: The breachment of correspondence privacy is only punishable if the victim files a formal complaint. Punishment can include paying a fine or sitting a jail term up to one year.

Owners of businesses with patrons, like retail shops or restaurants, etc., are required by law to make sure that their visitors and guests can move freely throughout their business without being in harm's way.

 

Dangers are lurking everywhere. For example, in a vegetable shop, you could slip on fruits or vegetables that have fallen on the floor, packaging

material that may be lying around or on a floor that's too slick. As a result, you could suffer from severe injuries. Of course the question always arises as to who is responsible - the owner of the shop?

 

Another situation is at the entrance to restaurants in the winter, when snow or ice have not been sufficiently cleared from the steps or entrance area. The courts often have to deal with such cases and answer the question of who's responsible for injuries when someone slips and falls.

 

Owners often try to delegate their responsibility of keeping the facility clean to personnel or so-called cleaning companies. The Celle Higher Regional court recently had to make a decision in such a case (judgement from 25th Aug. 2005) involving a cleaning company and business. Here, the cleaning of the floors was outsourced to a cleaning company. There was an agreement made that, when cleaning, the cleaners need to comply with security measures to avoid injuries and place signs warning of danger at the appropriate spots. The Celle Higher Regional court decided that because the cleaning company was a professional enterprise, the business owner could assume that the company would put the necessary measures in place to avoid any injuries, warning of the typical danger of slipping which is associated with floor cleaning. However, the jurisdiction lies with the one that's liable, in this case the business owner, who’s also responsible for controlling and monitoring, and that includes checking if the cleaning company is doing the job properly.

 

In conclusion, business owners or owners of restaurants are advised to carefully choose a cleaning company and check if that company is properly complying with its responsibilities. That's the only way business owners can avoid paying liability damages or recourse. Plus, all risks should be insured against with a well-planned liability insurance.

 

 

September 2006

Notice of termination of work contract, whether from the employer or employee, always raises lots of questions.

 

I'm always amazed to learn that there are employees who still are not aware of a law passed in 2000. It states that termination of a work contract, whether by the employer or employee, has to be in writing. That means, when an employee in a certain situation tells his employer that he is quitting the job, it is not an effective notice of termination. The employer has to make sure that the termination is handed over in writing or that he himself confirms the oral notice and writes a notice of termination himself for precautionary reasons.

 

Plus, a notice of termination also constitutes a so-called letter of intent. That means, the contract partner needs to receive a notice of termination, and there has to be proof that he has received it. This is uncomplicated when the notice is handed over in person - notice is given with the actual notice of termination. The law isn't concerned if the recipient refuses to accept the notice and its contents or not.

 

Notice is handed over in person when it has arrived in the recipient's 'sphere of

control' and it was reckoned with in normal circumstances that the recipient would accept it. Posting the notice is effective if it can be reckoned with, as a generally accepted standard, that the recipient will receive the notice the next time he empties his letterbox.

 

It's highly recommended that when you post your notice of termination, you do so via registered letter. Then you can be certain, that the notice has arrived at its destination. A so-called 'proof of delivery / registered letter' is valid when it's handed out by the postman. If he leaves notice in the recipient's letterbox that a registered letter is waiting at the post office, then it's important to know when this letter is actually picked up from the post office. Of course, this could lead to delays.

 

A 'letterbox delivery / registered letter' means that the registered letter has been thrown into the recipient’s letterbox like regular post. In this case, the post office keeps a delivery slip and the sender can ask for a copy.

Of course, in certain situations, a messenger can be hired to deliver the notice of termination. Make sure the messenger writes down when and in what way he delivered it.

 

I'm often asked if an employee can also terminate his work contract when he is on holiday. Many think this isn't possible. That's wrong. If the employee is on holiday and out of the country, he can write his notice of termination and send it using his home address, but only if the employer is aware that the employee is not presently there.

 

 

July 2006

 

 

 

 

The Higher Regional Court in Hamm has recently made a decision that will bring realtors to thinking twice about how they do business.

 

The decision was based on the following case: the client repeatedly asked the realtor to place forms regarding the real estate for sale at his disposal - so that he could, in turn, submit the forms to his bank to clarify the financing. The realtor never responded to the request. At the bank's insistence, the client once again turned to the realtor to ask for the forms, and the realtor asked him in an offending tone if he was 'too stupid' to understand that there were no forms.

 

As a result, the client declined a meeting with the notary public and refused any further cooperation with the realtor. The client proceeded to find a new realtor, whereby the contract was successfully completed. The client then demanded the realtor fee back from his former realtor, but never received it.

 

The Higher Regional Court in Hamm advocated the view that the realtor's offending behaviour toward his client led to the forfeit of the realtor fee

entitlement. Although § 654 in the BGB (German Civil Code) is fundamentally based on cases where the realtor has broken the contract with the client by working for the other party, these regulations can also be adopted in similar situations.

 

This decision means a realtor can lose entitlement to his fee if he behaves inappropriately toward his client.

 

June 2006

 

 

It's well known that car owners in Hamburg are being financially exploited by the government to fill the numerous holes in the city’s purse.

 

Tickets no longer simply serve to teach drivers a lesson or penalise traffic violations - today they are also a strategic calculation in the Hamburg senate's treasury. But for a fairly long time, the government has been practicing an even sneakier and lucrative business: towing. In the past, cars could only towed by the police if a genuine traffic violation was being committed with clear and serious consequences for other drivers (e.g. blocking an exit, etc.).

 

However, the current legal situation is unfortunately opening the floodgates to arbitrary decision-making by officials. That means the police are not only ticketing foolish parking violations, they are also giving tickets according to

§ 14 of the Hamburg SOG (public security and order law). This law states that "a car that has been parked illegally can be towed if it interferes with the security and flow of traffic, or a danger, interference or inconvenience for other drivers can be ruled out and the danger caused by the car can be eliminated by moving the car to the nearest, appropriate space in the public sphere." If you've read this formulation clearly, then you can imagine just how capricious it is.

 

Frustrated police officers (for whatever reason) see minor parking violations as a chance to call the towing company, who doesn't move your car to the nearest free spot, but who has the audacity to bring your car to a storage area in Rothenburgsort that has been especially set up for towed cars. Here is where you can pick up your car, however, only once you've paid cash (debit cards are also accepted) for it and received the following bill:

 

Administration fee EUR 43

Overhead fee EUR 39

Expenses/towing costs EUR 116

Storage fee EUR 50

Total EUR 248

 

Then you're discreetly informed that after 24 hours, you'll be charged an extra EUR 8.50 for every 24 hours. So, if you've just returned from a ten-day holiday, you could very well be confronted with a bill for over EUR 300.

Of course this calculation doesn't take into account the time you've wasted picking up your car: the drive to Rothenburgsort takes at least 30-45 minutes (return trip 1 1/2 hours) and for the slow service you can add an extra hour.

 

As we know, the government has no inhibitions and knows no limits when it comes to filling up the city's purse - even at the expense of the people. But we should perhaps ask ourselves, how much longer the people can put up with their elected officials' behaviour. The manner in which the Hamburg police are proceeding (clearly according to orders from above) lacks all commensurability and is taking on all shapes and sizes of intolerable harassment.

 

Affected drivers should mercilessly file an objection against these fees and have the responsible administrative tribunal check into the manner. Of course such objection only makes sense if the supposed traffic hindrance wasn't a hindrance at all, which is the basis for charging the fees. After all, the Hamburg Oberwaltungsgericht (state administrative tribunal) clearly stated that an illegally parked car may not be towed if the driver gives clear instructions on how he can be reached (mobile number) and is willing to immediately remove his car. Perhaps you should leave a note visible through the windscreen - but then you only have five minutes to remove the car once the police have contacted you.

 

February 2006

We all know the game: energy concerns regularly send out notices that they are once again raising gas prices due to increasing oil prices.

 

For years, consumers have been accepting rising gas prices without objection, but times have changed and now the Hamburg district court has a model trial on its hands, for example, against the energy concern E.ON Hanse. Many consumers are asking themselves how they can fight against considerably staggering prices which they believe are unjustifiable.

 

You should know the following:

1. In Germany, prices for using electricity and gas lines are not regulated by the authorities. Only the courts have the authority to regulate these prices. According to § 315 clause 3 in the BGB German federal law book, a partial increase in price is only possible if it is carried out according to 'equitable discretion' or, in other words, is appropriate. The consumer only has to pay the sum that has been determined according to 'equitable discretion'. The energy concern is permitted to make a profit, however may not take advantage of its monopoly on the market. If the latter is the case, the court may determine the price, but only at the consumer's request.

 

To judge if a concern has appropriately determined its prices, it has to disclose its price calculations. The concerns find this very difficult, which adds fuel to the consumers' growing fire of mistrust.

 

2. Many consumers shy away from taking the concerns to court, since the outcome is very uncertain and the financial risk too high. However, there are other ways to fight against such price increases without having to take any risks. One thing is certain, if you continue to pay your gas bill without objection, you won't receive any money back if other consumers win their case in court. Therefore, consumers should make a formal complaint if they feel the increases are unacceptable. If they neglect to do so, they are automatically agreeing to the binding Terms and Conditions regarding price increases as stated in their contract.

 

3. There are two ways of dealing with monthly energy bills:

a. The consumer lowers the bill on his own. However, he takes the risk that the concern will take him to court

or

b. he pays the bill but only under written 'payment conditions'.

 

If the courts later determine that the prices increases were inappropriate, the consumer may ask for his money back.

Considering consumers' mood at the moment, the energy concerns, which have apparently over-exaggerated with their price increases, have a tough battle on their hands.

 

January 2006

Men who are obliged to pay alimony to their ex-wives are, understandably enough, eager to save themselves this expense if circumstances change and the money is not actually required.

 

The whole question frequently arises when, perhaps some time after the divorce, the ex-wife embarks on a fresh relationship and starts living with her new partner. The original husband may now feel that this puts her on a different financial footing, meaning that her need for his maintenance payments may be reduced, possibly down to zero.

 

The law in Germany has coined the expression "eheähnliche Beziehung", a quasi-marital situation. The Bundesgerichtshof court deems a quasi-marital situation to apply in cases where a couple are firmly committed to each other, although they are not (yet) married. This is assumed to be the case when the relationship has been running for between two and three years. Ex-husbands who have to pay alimony find it extremely difficult to prove that this kind of common-law marriage situation bears any relevance to their obligation to pay their ex-wife - or, in other words, that these new circumstances have a bearing on the woman's need to continue receiving payments from him on the grounds that the new partner is at least partially covering her economic requirements.

 

Very much depends on the circumstances of each individual case. If the matter is taken to court, providing concrete evidence can be a highly complex matter. However, if the divorced wife and her new partner are living together in a quasi-marital situation there are sound reasons to believe that they are somehow sharing the costs of running their household and that at least some of the woman's needs are being covered in this way.

 

The position is, of course, less clear in cases in which, although a relationship may have been going on for some time, the couple involved continue living separately. Nevertheless, a recent ruling passed by Schleswig-Holstein provincial high court demonstrates that living separately by no means excludes the existence of a quasi-marital situation. The case in point involved a woman who bore the child of her new partner within a few months of her divorce from her first husband. Clearly enough, the ex-husband refused to continue paying the maintenance sum, which came to EUR 1,400 a month. The provincial high court conceded that in fact he was at least partly in the right, and allowed him to reduce the sum to less than half of the original

amount.

 

One thing remains clear: it is very difficult to prove that two people are living in a quasi-marital situation, especially if the ex-wife and her new partner make attempts to cover up the extent of their relationship.

 

December 2005

It happens more often than you might think. Those repeated late-night phone calls, made for a variety of reasons (often of an amorous nature), which wrench you from the deepest slumbers night after night, until lack of sleep combined with a sense of impotence and rage drive you to seek legal protection.

 

Here are a couple of points that victims may want to consider.

 

1. Of course, there is always the option of instituting proceedings under civil law; an injunction is one way of defending yourself, as if the nuisance caller then continues to harass you he will have to pay a penalty to the court each time he is caught out. However, in order to follow this path you do need to know the identity of the caller. If the caller is anonymous, Telekom can ar-range to screen incoming calls with what is known locally as a 'Fangschaltung' in order to identify the culprit. Now, once the injunction is in force and if the caller keeps on bothering you despite being warned, the amount of the fine that will be imposed for repeating these calls can be quite considerable. In the vast majority of cases, this method proves to be successful, and you will be left in peace again.

 

2. In very specific circumstances, night-time telephone stalking can also be a matter for the criminal courts - criminal charges can be pressed in connection with bodily harm. Courts have ruled that receiving repeated late-night calls can only be regarded as causing bodily harm if the psychological pressures to which the victim has been subjected have directly resulted in fairly substantial physical symptoms which can be substantiated medically. The psychological pressures and their effects on the victim's general well-being are not regarded as damaging to health unless serious damage can be proved to the victim's nervous system. This means that criminal charges can only be pressed if and when the concrete effects of the telephone stalking can be confirmed by a doctor's certificate to the effect that the patient's physical health has been fairly seriously impaired as a result of the harassment.