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ECJ, judgment of 16.07.2020 C-311/18 ("Schrems II")

Data transfers from the EU to the US have always been a difficult process from a legal point of view. The ECJ has now struck down a data privacy pack used to establish an adequate level of data protection – the EU-U.S. Data Privacy Shield.

Currently, we only have one dominating topic – COVID-19 and its global spread. In that respect, many questions of employers and employers with respect to the protection of personal data arise. Please find our summary of the FAQs below.

Q&A on Labor Issues which may arise during the New Corona Virus epidemic prevention and control period.

On 01.01.2020 the new location of Schindhelm Rechtsanwaltsgesellschaft mbH has opened its doors in Frankfurt. The head of the new office in the German commercial metropolis is Schindhelm counsel and partner Dr. Karolin Nelles LL.M.

The European Court of Justice (ECJ) recently ruled on the long-discussed question of whether and how website operators can integrate the Facebook Like button (so-called “social plug-in”) in accordance with data protection requirements.Th ECJ’s investigation results from a legal dispute between the Consumer Association of North Rhine-Westphalia and a subsidiary of Peek & Cloppenburg KG.

As of November 2019, new legal regulations will bring even more transparency into the structures of companies that make use of public tenders or state aid.The definition of a “public sector partner” is new.

“Whistleblower” - people who point out violations of the law - will be protected even more in the future. This is the aim of a new law that came into force a few months ago. The new regulation adds to already existing provisions on the protection of whistleblowers in the employment relationship.

In July 2019, new legal measures were introduced to combat money laundering and terrorist financing. The Romanian Companies Act was also significantly amended as a result of this. The core of the reform: In order to prevent money laundering and terrorist financing, bearer shares have been completely abolished. This means that only registered shares can be issued.

Entrepreneurs who do business in Poland and are registered there for VAT purposes will face new obligations as of November 2019. All companies registered in Poland as VAT payers must submit their bank accounts for inclusion in the list of taxpayers. If it is not possible to audit foreign banks via the STIR system, foreign entrepreneurs registered in Poland for VAT purposes are required to open such a special account in Poland.

In 2018, the prices for CO2 emission certificates increased sharply. A direct effect of this was the rapid increase in electricity prices. Despite promises to the contrary, the government did not prevent this price increase. However, compensatory measures have been proposed for 2019. For some companies, these interventions are to apply beyond that date, but up to a maximum of 2028.

A new law on company crises has significantly changed the rules applicable to limited liability companies in this respect Among other things, the liability of the company’s management was tightened. Furthermore, the tasks of the supervisory body were expanded. The reform’s true impact remains to be seen: Will there be a change in corporate culture or will there be an increase in corporate crises?

Almost every company has not only a homepage, but also a Facebook page. However, a legally safe operation of a Facebook fan page is hardly possible from a data protection point of view and the data processing of Facebook is too opaque. If the operators of a Facebook fan page do not want to take any risks, the only option is to deactivate the social media page. If this is not desired from an entrepreneurial point of view and the associated risk is accepted, at least as much information as possible about the data processing processes should be provided.

The Chinese “Social Credit System” (SCS) is an autonomous credit rating system based on “Big Data” with the purpose of regulating economy and society. It is to be introduced nationwide by the end of 2020 as a centralised control instrument. The declared aim of the SCS is to persuade all market participants to behave in accordance with the law and regulations through self-regulation.

The new “Law on Trade Secrets” now implements the so-called “EU Trade Secrets Directive”. This adopts the European legal requirements for the protection of confidential know-how and secret business information. Moreover, the new legal provisions contain limitation periods and important procedural provisions for the protection of trade secrets in court proceedings.

State and corporate compliance obligations to combat money laundering and terrorist financing remain an utmost priority for EU member states. Companies (“legal entities”) have therefore been obliged to disclose their “beneficial owners”, among other things, for quite some time. In Austria, a separate database - the “Beneficial Owners Register” - was set up for this purpose. In course of the implementation of the 5th EU Money Laundering Directive, further tightening measures have now been adopted.

According to Sec. 1118 ABGB (Austrian Civil Code), the lessor can terminate a lease unilaterally prematurely if the lessee makes a “considerably detrimental use” of the leased object. The scope and content of these legal provisions is a constant source of discussion. The mere performance of structural alterations by the lessee without the consent of the lessor does not in itself justify a good cause for the termination of the lease.

In June 2019, the General Directorate of Registries and Notaries’ Offices (“DGRN”) confirmed the decision of a commercial register refusing to register a shareholders resolution. This resolution had provided for the cancellation and invalidation of a capital increase carried out shortly before and already entered in the commercial register.

The current unemployment rate in the Czech Republic is 2.7%. This corresponds to the lowest value in the EU. In view of this, the Czech government is seeking to focus the system of investment incentives on promoting projects with higher added value, in addition to combating unemployment. The “Investment Incentives Act” has therefore been substantially amended.

State aid is granted on the basis of various criteria. The region or the economic sector in which the investment is made is decisive, but also the strategic importance of the investment and the level of the investment volume. Investments in structurally weak regions receive higher subsidies than investments in industrial areas. For the award of grants, a distinction is made between six different regions.

Unmanned aircraft is a new component of the global aviation system. A new EU-Regulation on the common rules of civil aviation therefore aims on establishing rules for the use of unmanned aircraft. This Regulation is directly applicable in all Member States. Beyond the Regulation a Government Decree from 1998 on the use of the Hungarian airspace also applies to the use of drones. According to the Decree, the operation of an unmanned aircraft is permitted only on a case-by-case basis.

Schindhelm held a workshop on Thursday, November 7th, 2019 on the topic "Investment in Germany " organized and hosted by the German Centre for Industry and Trade Taicang.

The law on administrative disputes (law 554/2004) has undergone relevant changes which will have a significant impact on administrative procedural law. Some of the relevant changes are to be shown below.

On 23 March 2019, a significant reform of the European Community trademark law took effect (legislative regulation no. 15 dated 20 February 2019 for implementation of Directive (EU) 2015/2436), by means of which a series of significant changes is introduced for trademark holders.

The Hungarian Parliament adopted the law on the restructuring of the administrative courts in December 2018. The new law will take effect on 1 January 2020.

Justified by the goal of solving legal disputes in a fast and economical manner without filing lawsuits and thus relieving the overloaded Turkish courts, a mediation procedure is implemented as a mandatory pre-condition for filing a lawsuit according to Turkish labour and commercial law.

The topic of the seizure orders by the financial administration was discussed intensively in the last months in the Czech Republic both by experts and in the public. In essence, it involves the provision of § 167 of law no. 280/2009 Coll., (“Tax Procedure Code”), which gives the right to the financial administration, under certain conditions, to issue a so-called seizure order.

The Directorate General for Registrars and Notaries, in a brief decision, has recognised the validity of the so-called “pactum marcianum”, an exploitation clause, on the basis of which the creditor can directly exploit the object himself/herself and/or can assign it to himself/herself.

The law 11/2018 dated 28 December has been in force since the beginning of the year. This selectively modifies the Commercial Code, the Stock Corporation Act and the Law on Auditing.

As part of fighting tax fraud, the tax administration of the Slovak Republic manages a project for online connection of all electronic cash registers to the tax administration portal (E – cash register).

With the amendment to the law on the promotion of tourism and the indirect change in the Labour Code, a new institution - a contribution to the holiday of employees (“holiday contribution”) – was introduced into the Slovakian legal system effective on 01/01/2019.

Historically, a dense network of mutual investment protection agreements has developed among countries. Violations of investment protection are litigated before international arbitration courts, whose judgements are enforceable worldwide.

As of 1 May 2016, the same principles for acquisition of real estate in Poland apply to citizens and companies from member states of the European Economic Area and Switzerland as for Polish entities. These regulations also concern the acquisition of agricultural land. At the same time, on 30 April 2016, an amendment to the Polish law concerning the design of the agricultural system (hereinafter referred to as “law”) took effect.

Polish commercial companies have been obligated since October 2018 to submit their annual financial statements and management reports exclusively electronically. This began the first phase of digitisation of registry proceedings in Poland. In a further step, the paper form has finally said goodbye. As of September 2020, changes to the facts registered in the company register or the registration of the company are to be processed completely electronically.

Influencer marketing is now among the most common forms of advertising for many companies. Instagram and other social networks offer the “opinion makers” an ideal platform for (self-)presentation and effective advertising of products. According to a current survey of the German Association for the Digital Economy (Bundesverband Digitale Wirtschaft e.V.) dated 10 November 2018, 59% of the companies surveyed use influencer marketing.

With the entry into force of the General Data Protection Regulation (EU) 2016/679 (GDPR), the data protection directive 95/46/EC applicable at that time was repealed. The applicable Bulgarian Data Protection Act had to be revised and adapted to the new requirements. For this purpose, a comprehensive amendment was adopted (state gazette 17 of 2019), through which, amongst other things, the concretisation of the provisions of the GDPR are introduced.

After the penalty due to abuse of the market-dominating position of Google search engine in 2017 as well as the fine due to illegal practices on Android mobile devices in July 2018, the EU Commission imposed another fine against Google and/or its parent group Alphabet on 20 March 2019 – this time in connection with the product AdSense for Search. Google was ordered to pay a fine of EUR 1.49 billion.

According to information from the Commission, there are currently approx. 16 million “cross-border” marriages and registered civil partnerships in the EU. With the so-called EU Property Regime Regulations (Regulations (EU) 2016/1103 and 2016/1104) that became effective on 29 January 2019 in the context of the so-called strengthened collaboration among the current 19 member states, the EU has set the goal for the creation of a uniform legal framework.

It is the first anniversary of the GDPR. After a stressful finish to May 25, 2018 we were all excited to learn how the authorities would enforce this law which fundamentally changed the rules of data processing within the European Union.

Companies invest in know-how, from which there are important competitive advantages. Valuable information is the currency of the knowledge-based company. Maintaining confidentiality of business secrets is therefore a management instrument for competitiveness and research innovations. The loss of secrets can result in serious consequences, in particular, and generally can no longer be reversed.

The residual debt discharge (RDD) was introduced in 2015 as an exception from the princip-le of general asset liability of the debtor in the insolvency code.

When a new shareholder list must be submitted in the commercial register due to a change, it must satisfy the requirements of § 40 I GmbHG [Limited Liability Companies Act] in the version of 23/06/2017 according to the decision of the BGH [Federal Supreme Court] dated 26/06/2018 – II ZB 12/16.

The EU Directive on the regulation of confidential know-how and business information (know-how directive) was implemented in Hungary in July 2018.

If a Gmbh makes payments after it becomes insolvent, the Managing Directors are personal-ly liable vis-à-vis the company, regardless of the internal allocation of responsibilities.

With the large-scale reform of the company law from the year 2003, Italian legislators had simplified the regulations on the Governance of limited liability companies.

In the budget planning for 2019, companies should prepare for the expected increase in Po-lish labour costs.

In the business world, situations often arise in which the only existing managing director wants to leave the company.

In Romania, law no. 190/2018, and thus the national implementation of the GDPR, took effect as of 31/07/2018. In comparison with other EU countries, law no. 190/2018 was rather short.

Due to the low unemployment rate in Slovakia, employers have recently been confronted with a lack of available workers.

In the Czech Republic, as of 01/07/2019, employees should already be entitled to sick leave from the first day of their inability to work.

The presidential decree no. 32 issued on 12/09/2018 to protect the value of the Turkish cur-rency ("Decree") sets the limitation of foreign currency and foreign currency indexed contracts and stipulates that these contracts must be converted within 30 days into Turkish Lira (“TL”).

Since May 2014, ownership rights for land and soil can only be acquired by natural and legal persons who have resided or been established in Bulgaria for longer than five years.

In view of the rapid growth of online trade, the Chinese government adopted the first e-commerce law on the comprehensive regulation of online business on 31/08/2018, which will enter into force on 01/01/2019.

At the end of 2017, in the legal case C-42/17, the ECJ issued a much publicised decision on the question of the primacy of application of Community Law.

Throughout Europe, approximately 80% of smartphones are equipped with the Google oper-ating system, Android...

Nestlé is a holder of a 3D EU trademark that corresponds to the "KitKat" bar marketed by it and protects its design.

The electronic transmission of tenders in the award procedure is nothing new and was already standardised in the Federal Procurement Act 2006 both for the classical area and for the area of sector contractors.

Online platforms and search engines dominate Internet trading. Unilateral business conditions, non-transparent algorithms and rankings are unfortunately not uncommon.

As in the past, in the case of company sales, the seller has repeatedly neither paid salaries due nor paid social security contributions due for employees, the Bulgarian Commercial Code was amended accordingly by three successive amendments in December 2017, February and March 2018.

In July 2017, the Money Laundering Act (Geldwäschegesetz, GWG) was completely revised in Germany in the implementation of the Fourth Directive (EU) on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (2015/849).

Technical solutions can be protected by patents and utility models under certain conditions. By reserving commercial exploitation exclusively to the inventor for a limited period of time, technological progress should be promoted.

Until today, the legislation of some Member States of the European Union is very restrictive with regard to the transfer of the company headquarters in other Member States. It is often required that the company in the country of origin must be completely liquidated before the change of domicile.

In Italy, insolvencies can be settled through composition proceedings between the insolvency debtor and its creditors, the so-called Concordato Preventivo. So far, the assessment of economic feasibility has been the sole responsibility of the creditors concerned.

The EU GDPR came into force on 25/05/2018. The Polish draft law implementing the Regulation leads, among other things, to changes in the area of labour law.

In Poland, a law to promote new investments is to enter into force in June 2018. The law is intended to create new framework conditions for companies operating in special economic zones (“SEZ”).

The Romanian government has substantially changed the obligation to bear the costs of social security and health insurance contributions.

The Fourth Directive (EU) on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (2015/849) has been implemented in Slovakia by the amendment to the Act No. 297/2008 of the ECR on the prevention of the legalisation of the proceeds of crime and terrorist financing.

The Fourth Directive (EU) on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (2015/849) requires Member States to keep a register containing the information provided by the beneficial owners of companies registered in their territory.

In the Czech Republic, the Fourth Directive (EU) on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (2015/849) has been implemented by Act No. 368/2016 of the ECR.

The PSD2 Directive (EU) 2015/2366), an EU directive on the regulation of payment services, was implemented in Hungarian law in October 2017. Law No. 145/2017 entered into force on 13/01/2018 in accordance with the Directive.

International business transactions often involve cross border transfer of personal data. This is the case for instance where the data is stored on a server located in a third country (a country outside the EEA) or a third country IT service provider has access to the data processed by a company within the EU. If personal data is to be transferred to a third country specific provisions of the GDPR will apply.

As of 25 May 2018, the General Data Protection Regulation (GDPR) introduces harsh sanctions for data breaches with extended scope of applicability.Companies and other data processing entities become potential subjects not only to the data subjects’ claims for damages, the enforceability of which has been enhanced, but also to increased administrative fines to be imposed by supervisory authorities.

The General Regulation on Data Protection (GDPR) which will apply from 25th May 2018, introduces the position of the Data Protection Officer (DPO).The DPO shall be the contact person for and shall be involved in all data protection related issues of the given entity. The DPO is an organ within the company which liaises with the authority, the company and the data subjects.

The General Data Protection Regulation (GDPR) adopted by the EU Parliament in 2016 provides a higher standard of protection of personal data for EU citizens. The GDPR will have direct effect in all member states as of May 25, 2018 and it will affect businesses all around the world that are engaged in activities with individuals in the EU.

The General Data Protection Regulation (GDPR) adopted by the EU Parliament in 2016 provides a higher standard of protection of personal data for EU citizens. The GDPR will have direct effect in all member states as of May 25, 2018 and it will affect businesses all around the world that are engaged in activities with individuals in the EU.

The General Data Protection Regulation (GDPR) of the EU will come into force on 25 May 2018 and it will affect organisations worldwide working with or within the EU. The GDPR promotes accountability and governance. Organisations are required to put into place comprehensive governance measures to ensure compliance. Non-compliance can lead to heavy fines up to EUR 20 million or 4 % of the global annual turnover, whichever is higher.

The General Data Protection Regulation (GDPR) adopted by the EU Parliament in 2016 provides a higher standard of protection of personal data for EU citizens. The GDPR will have direct effect in all member states as of May 25, 2018 and it will affect businesses all around the world that are engaged in activities with individuals in the EU.

Data protection law has been revised throughout the EU. The new regulations will become binding as of 25 May 2018.

On Saturday, 8th of July, the Second Chinese Germany Friendship Cup in table tennis took place in Taicang.

Schindhelm Rechtsanwaltsgesellschaft mbH was host to the BVMW (Bundesverband mittelständische Wirtschaft) External Trade Evening, during which in front of 45 interested listeners chances of German small and medium-sized businesses in India were discussed and opportunities to create charitable benefit through CSR-projects were shown by the example of IndienHilfe Deutschland e.V. (IndiaHelp Germany registered society).

The world of e-commerce is divided into two large areas: On the one hand, there are business enterprises which exclusively deal with other business enterprises (B2B); on the other hand, there are those which primarily offer products or services to consumers (B2C).

As early as in February 2016, the German “Act on Alternative Dispute Resolution in Consumer Matters” [Verbraucherstreitbeilegungsgesetz - VSBG] implemented into national law the Community “ADR Directive” (Directive 2013/11/EU).

Simultaneously with the 10th anniversary of the Schindhelm Office in Shanghai, Schindhelm Rechtsanwaltsgesellschaft mbH opened another office in the city of Taicang, which is located about 50 kilometres away from Shanghai.

The Schindhelm M&A Team Osnabrueck has advised the sole shareholder of a engineering service provider of the automotive industry on ...

The Schindhelm M&A Team Osnabrueck has counseled the management of a company which is dealing with medical products and any other kind of medical interior on the sale of its business operations as well as on the sale of its shares in another company to a strategic follower having a continuation aim with respect to the former business operation.

The Schindhelm M&A Team Osnabrueck has advised the management board of the communication service provider, KiKxxl GmbH, located in Osnabrueck regarding the re-acquisition of 51 percent of its shares from ...

A recent fine of 20 Mio. Euro against a Norwegian salmon breeding and salmon processing company for breaching the prohibition on implementation of the EU-Merger Regulation (ECMR) currently causes a stir in the M & A practice. This case clarifies that ...

A Schindhelm Team has advised the insolvency administrator of ICT Automotive Group in the asset sale process to Korean Dongkook Industry Co. and thereby essentially contributed to the rescue of a large number of Jobs.

In 2007 and 2009 the German Federal Cartel Office (FCO) imposed a fine of overall EUR 208 Mio on certain companies involved in the “liquefied gas cartel”.

Under the coordination of Dr. Manuela Hechler, Schindhelm advised the landlord with regard to a long-term tenancy agreement regarding parts of the property at Nikolaiort 3/4 in Osnabrück.

With our newsletter we like to inform you about recent legal updates and practice in China in the future.