BaFin publishes ZAG-MaRisk - implementation deadline is 1.1.2025

Act now and review the contractual side as well as the implementation.
While the 8th amendment to the Minimum Requirements for Risk Management for Banks (MaRisk (BA)) has already found its way into the banking world Bafin has now also published its Minimum Requirements for Risk Management of ZAG Institutions (ZAG-MaRisk) for the first time.
This specifies the requirements of Section 27 I ZAG on business organization, Sections 17 and 18 ZAG on the secure receipt of funds and Section 26 ZAG on outsourcing and, for the first time, provides payment and e-money institutions with a framework for the design of internal processes.
All domestic payment and e-money institutions or domestic branches of companies based outside the European Union (EU) or the European Economic Area (EEA) that provide payment services or conduct e-money business fall within the scope of the ZAG-MaRisk.
Since the start of the ZAG-MaRisk consultation process by BaFin in September 2023, many ZAG institutions have already examined their business processes and risk management in detail and dealt with the implementation of the "new" requirements.
With the publication of the ZAG-MaRisk on 27.05.2024, the final requirements are now available. BaFin expects final implementation by the end of this year.
Even though the provisions of the ZAG-MaRisk are very similar to MaRisk (BA), they are geared towards the specific risks of ZAG institutions and grant opening clauses that enable a simplified and tailored implementation of the requirements depending on the business activity and the risk situation.
They also do not (yet) contain any requirements for data management, data quality and the aggregation of risk data, the use of models or requirements for risk management at Group level.
Instead, the ZAG-MaRisk in AT 9 regulates in great detail the requirements for outsourcing activities and processes in connection with the operation of e-money transactions, payment services and other typical institutional services. In addition to the analytical assessment of the risk of outsourcing, Bafin specifies in detail its requirements for the internal monitoring of outsourced areas and provides clear guidelines on the contractual structure.
WZMs many years of experience in the context of MaRisk (BA) can be transferred perfectly to the implementation of ZAG-MaRisk. If you have any questions regarding the implementation of ZAG-MaRisk, for example if you need help with the contractual implementation of the requirements, particularly in the context of outsourcing, please do not hesitate to contact us.

WZM advises Paragon Germany GmbH merger

As a medium-sized law firm, WZM Wanner Zahn Machander PartG mbB recently advised on the merger of Paragon Customer Communications Weingarten GmbH ("Paragon Weingarten") into Paragon Germany GmbH ("Paragon GmbH").
Paragon Weingarten was part of Paragon DACH & CEE, a leading provider of comprehensive solutions for innovative customer and employee communications.
The notarized merger agreement was concluded on February 20, 2024. The merger became effective upon entry in the commercial register of Paragon Germany GmbH on April 30, 2024.
WZM Wanner Zahn Machander PartG mbB already advised on the merger of Paragon Customer Communications GmbH in Korschenbroich ("Paragon Korschenbroich") into Paragon Germany GmbH in 2022/2023 and was able to provide legal support for the successful implementation of this intra-group restructuring. The most recent advice followed on from this successful merger.
WZM Wanner Zahn Machander PartG mbB advised on both mergers from a corporate and employment law perspective. The advice included the respective structuring, preparation and implementation of the mergers as well as employment law advice, in particular the employment law measures required in the run-up to the merger for the integration of the employees transferring to Paragon Germany at the various German locations of Paragon DACH & CEE and the coordination with the works councils.
The WZM team was advised by Dr. Jens Wanner, Dina Ostmann and Britta Sturm

BGH: Owners meetings during the coronavirus pandemic were permissible in writing

Meetings of condominium owners during the coronavirus pandemic were also possible in writing - they did not have to be held in person due to the exceptional situation. This was decided by the Federal Court of Justice (BGH) on Friday.
The highest German civil court ruled that even if owners were only able to authorise their administrator to hold such a meeting of representatives, resolutions passed at such meetings are therefore not null and void.
During the coronavirus period, an administrator was in an irresolvable conflict situation - either violating condominium law or infection protection law. In this exceptional situation, such meetings of representatives were regularly held for reasons of practicality.
An administrator from southern Hesse was thus successful before the BGH. She had issued invitations to a written owners meeting on 24 November 2020 and had requested that she be given power of attorney and voting instructions. 5 out of 24 owners complied. The plaintiffs did not. According to the BGH, only the administrator was present at the owners meeting; she subsequently sent minutes with the resolutions she had passed (BGH case no. V ZR 80/23).

Source: SPIEGEL from 08/03/2024

BVerfG:: Exclusion of book value transfer between partnerships with identical shareholdings is unconstitutional

Federal Constitutional Court: Exclusion of book value transfer between partnerships with identical shareholdings is unconstitutional

In its decision dated 28 November 2023 (2 BvL 8/13), the Federal Constitutional Court (BVerfG) ruled that Section 6 para. 5 sentence 3 EStG is incompatible with the general principle of equality under Article 3 para. 1 GG insofar as it excludes the transfer of assets between partnerships with identical shareholdings at book value.

The BVerfG states that Section 6 (5) EStG cannot be interpreted as covering the transfer of assets between the joint assets of two partnerships with identical shareholdings. This would put such transfers at a disadvantage compared to the transfers of assets covered by Section 6 (5) EStG. Objective reasons for this unequal treatment were not apparent.

The BVerfG ordered the legislator to create a new regulation with retroactive effect for transfers after 31 December 2000. Until it comes into force, § 6 para. 5 sentence 3 EStG remains applicable with the proviso that the regulation also applies to the transfer of assets between sister partnerships with identical shareholdings.

(Source: Federal Constitutional Court press release from 12/01/2024)

Note from WZM:

In its ruling of 28 November 2023 (2 BvL 8/13), the Federal Constitutional Court did not answer the question of whether a transfer of assets between partnerships with identical shareholdings is now VAT-exempt. A corresponding statement is missing. This should be clarified by the tax authorities and the tax courts as soon as possible in order to avoid legal uncertainty.

New guidelines for the input tax deduction for fuels purchased via fuel cards

WZM statement on the new guidelines for the input tax deduction for fuels (e.g. petrol, diesel) purchased via fuel cards

Since the end of 2023, new guidelines have been available from the VAT Committee, which emerged from Working Paper 1067 of July 5, 2023. This deals with the question of whether and when a chain transaction between the oil company and the card issuer and between the card issuer and the fuel card customer (e.g. transport company) can be assumed in the case of a fuel purchase via a fuel card (not a credit card), which entitles the purchaser of the fuel to deduct input VAT. This is ultimately a reaction to the two ECJ rulings C-185/01 from 06.02.2003 (Auto Lease Holland) and C-235/18 from 15.05.2019 (Vega International). In both judgments, the ECJ still assumed a direct supply by the oil company to the card customer and therefore denied the input VAT deduction.

In the opinion of the VAT Committee of 06.09.2023, the following conditions must now be met for the input VAT deduction to be granted (in addition to the other requirements, e.g. proper invoice)

- The petroleum company must transfer ownership under civil law to the card issuer.
- The oil company bears the risk of non-payment by the card issuer.
- The card issuer bears the risk of non-payment by the fuel customer.
- The fuel is not changed as part of either delivery.
- There is an agreement stating that the card issuer buys for the account of the fuel customer and sells it for the account of the oil company, and that the subject of the contract with the fuel customer is the supply of fuel (commission business).
- The fuel customer is entitled to claim compensation from the card issuer if the fuel causes him damage (e.g. in the event of engine damage due to faulty or inferior fuel).
- The price for the fuel is set independently at both levels of the chain transaction.

For reasons of practicability, WZM believes that neither the input tax deduction of the card issuer nor that of the fuel customer should be denied. In any case, the concept of "commission business" put forward by the VAT Committee is new. From WZMs point of view, the VAT Committee would presumably still like to arrive at a chain transaction even if the card issuer - for whatever reason - would not otherwise have the power to dispose of the fuel.

However, the above-mentioned guidelines are not binding anyway. However, most EU member states are likely to follow the recommendations outlined above.

From WZMs point of view, the legal formulation of the contracts by the oil companies and the card issuers is of particular importance in practice. As a precautionary measure, all contracts should expressly regulate a chain transaction or at least a commission transaction that cumulatively fulfills all of the requirements outlined above. Otherwise, the input tax claim could be disputed for this reason alone - albeit incorrectly in our view.

Against right-wing extremism, racism, xenophobia and hate speech

As WZM, we would like to take a clear position on current developments in our society.

Our society thrives on tolerance. Only through tolerance can we have diversity. Only through diversity can there be prosperity and progress.

Current developments show that this view is increasingly being shaken. It is not only totalitarian states and radical terrorists that threaten freedom. Even "supposedly dissatisfied" people in our own country are increasingly using questionable rhetoric and carrying out actions that have no place in our society. Not only as lawyers, we must all take a clear position on this.

There is no place for right-wing extremism, xenophobia, hate speech and racism in our society.

Our society thrives on the diversity of people and views. We try to "live" this principle in our law firm, with our employees, with our clients and business partners and also ourselves.

If society does not succeed in preventing attacks on freedom, democracy and the rule of law, then it is up to each and every one of us. As lawyers, we have a special responsibility here. We must - as the oath of lawyers demands - uphold the constitutional order. This includes not only democracy and the rule of law. Above all, human dignity, the prohibition of discrimination, the right to freedom of expression, freedom of science, freedom of religion and the right to asylum are rights that have long been fought for in Germany and which are still not taken for granted in some other countries.

We must not allow these rights to be taken away from us. We must defend them in our everyday lives, at work and in our private lives. We want to fulfill this mission in our team, together with our clients and our business partners.

Your WZM Team

No inheritance tax in the case of "bequeathing" instead of "inheriting" between persons resident abroad

In a recent ruling (Case No. II R 37/19), the Federal Fiscal Court (Bundesfinanzhof, BFH) has decided that foreigners who "bequeath" a property located in Germany instead of "inheriting" it can thereby avoid inheritance tax. This legal loophole had been known for years and had not yet been closed. In the case in question, a testator living in Switzerland had "bequeathed" her flat in Munich to a niece in the USA. The tax office then demanded inheritance tax, but the niece went to court. The BFH ruled in her favour, as German inheritance tax is based solely on the time of death and the niece, as a foreigner with "limited tax liability", does not have to pay inheritance tax. However, the ruling only applies if both the testator and the recipient have lived abroad for at least five years. The ruling also applies to the passing on of companies or even capital shares in companies based in Germany. Exceptions are individual EU countries, including Poland, under whose law a bequest also passes immediately upon death. The actual purpose of a bequest is that testators can give something to a person without that person becoming part of the community of heirs. (Source: juraforum 2023)

Increase in the HGV toll

In future, the HGV toll is to be linked to the level of CO2 emissions.
The proposed legislation serves to implement the amended Eurovignette Directive, which came into force in March 2022. Among other things, it provides for a CO2 differentiation of the HGV toll for heavy goods vehicles by 25 March 2024 at the latest and the inclusion of all HGVs with a technically permissible total mass of more than 3.5 tonnes from 25 March 2027.
The CO2 differentiation of the HGV toll is an important measure for reducing greenhouse gas emissions in transport and for achieving the climate protection targets.
As already agreed in the coalition agreement, the following changes will be made to the Federal Long-Distance Road Toll Act:
Introduction of a CO2 surcharge: On 1 December 2023, a new toll component ("partial toll rate") will be introduced for the costs of traffic-related CO2 emissions. This consists of a CO2 surcharge of 200 euros per tonne of CO2. In future, the toll rates will thus be made up of four cost components: Costs of infrastructure, air pollution, noise pollution and CO2 emissions.
Earmarking of toll revenues: The use of toll revenues will be newly regulated. The toll revenues are to be earmarked for the improvement of the federal trunk road infrastructure and for measures in the mobility sector - with a focus on the federal railways.
Compulsory toll for trucks with more than 3.5 tonnes: On 1 July 2024, the toll obligation will be extended to trucks with more than 3.5 tonnes tzGm. Craftsman vehicles under 7.5 tonnes tzGm are exempt from the toll.
Emission-free vehicles: Until 31 December 2025, emission-free vehicles are exempt from the toll. From 1 January 2026, they pay a 75 percent reduced toll rate for the costs of the infrastructure - plus the toll rates for air pollution and noise pollution.
The responsible Federal Ministry of Digital Affairs and Transport expects additional revenue of 26.6 billion euros from 2024 to 2027 as a result of the CO2 differentiation in the area of trucks weighing 7.5 tonnes or more. The additional revenue from the toll extension to trucks weighing more than 3.5 tonnes is expected to amount to 3.9 billion euros from 2024 to 2027. Of this, 1.8 billion euros will come from CO2 differentiation.
(Source: Federal Government of 14.06.2023, retrieved from https://www.bundesregierung.de/breg-de/aktuelles/lkw-maut-co2-2194574)

ECJ ruling of 20 April 2023 on the supply of electricity at charging points

The European Court of Justice (ECJ) has ruled on the VAT classification of e-charging in its judgment of 20 April 2023 (Case C- 282/22). The ruling applies at least to the two-person relationship between the charge point operator ("CPO") and the end customer, i.e. if no electromobility provider ("EMP") is interposed. The ECJ clarifies:
- The combination of the executed bundle of services of the CPO is a single complex service in the VAT sense.
- This composite service constitutes a "supply of electricity" within the meaning of Art. 14 (1), Art. 15 VAT Directive. From the perspective of the recipient of the service, the transmission of electricity is the characteristic and dominant element of the CPOs single service. The provision of the charging device is a minimal service that is necessarily linked to the main service. The provision of the app as well as the other services are also to be regarded merely as ancillary services. Such ancillary services serve exclusively as a means to optimise the use of the main service and do not pursue any purpose of their own.
The ECJs ruling brings clarity to the VAT treatment of charging processes, but only insofar as they take place without the interposition of an EMP. However, the ECJ did not rule on the question of the VAT treatment of e-charging in a three-person relationship.
In our view, the principles laid down in the ECJ ruling must also apply in the three-person relationship. Against the backdrop of the so-called fuel card ruling (ECJ case C-235/18; ECJ case C-185/01), however, special attention must then be paid to the formulation of the service relationships (e.g. explicit structuring of the supply relationships as "chain transactions", transfer of the insolvency risk of the end customer to the EMP, warranty of the EMP vis-à-vis the customer for defective electricity supplies, etc.).

WZM vs. Google

In a landmark case, the Frankfurt Regional Court has extended the responsibility of domain providers and web hosts for the content of websites operated by third parties. The proceedings were successfully conducted by the Frankfurt law boutique WZM.

The background: A German investment fund represented by WZM was recently alerted by Stiftung Warentest to a website offering questionable financial products. In the imprint, the funds distribution company was wrongly named as the operator. However, neither the investment fund nor its advisory and sales company had anything to do with this internet presence. Although criminal proceedings were immediately initiated against the unknown operator of the website and the Federal Financial Supervisory Authority (BaFin) started its own investigations, the operator could not be identified at first - the website was registered with Google as a domain host, the actual operator of the website remained hidden.

Both enquiries by the fund advisor and out-of-court interventions were fruitless, Google only provided auto replies. As a result, the internet giant was successfully obliged by way of an interim injunction to no longer make the internet domain in question available with the wrong imprint. It is particularly piquant that Google apparently believed that it could also ignore the online hearing of the Regional Court of Frankfurt am Main with auto replies as well.

With an interim injunction dated 19.06.2023, the Regional Court of Frankfurt am Main has now prohibited Google from operating the website in question with the incorrect imprint.

This decision could be groundbreaking for the future: If the ruling is upheld, domain providers would no longer be able to rely on the fact that only the operator of a website is responsible for its content and that the domain host bears no responsibility for the content of websites (or, in view of data protection concerns, does not have to disclose the operator data).

It remains to be seen whether this development will result in a new trend-setting case law that could also have an impact on operators of social media platforms. WZM will follow further developments closely.

Frankfurt am Main, 22.06.2023

Our new lawyer Maximilian Graf introduces himself

I have been part of the WZM team since May 2023. I was already able to actively support WZM during my legal traineeship. Now I am looking forward to continuing our common path as a lawyer. My top priority is to provide our clients with comprehensive support in all legal matters and to lead them to the enforcement of their interests. In addition to my special expertise in corporate law, I competently assist them in all matters of general civil and procedural law.

I look forward to working with you.

Whistleblower Protection Act passed

The Whistleblower Protection Act was now passed by the Bundestag on 11 May 2023 and confirmed by the Bundesrat on 12 May 2023.

Publication in the Federal Law Gazette is expected to take place in calendar week 20, so that the Whistleblower Protection Act will enter into force four weeks later - i.e. in mid-June 2023.

Two important deadlines apply:

- Companies with 250 or more employees have three months after the law comes into force to set up an internal whistleblower system.

- Companies with 50 to 249 employees have until 17 December 2023 to set up a corresponding whistleblowing system due to the EU Whistleblower Directive already in force.

We recommend appropriate measures.

Important changes for general partnerships as of 01.01.2024

As of 01.01.2024, comprehensive changes in the law are pending for partnerships. A civil-law partnership (GbR or BGB partnership) will then finally be recognised by law as having legal capacity (which was previously only recognised by case law). This will also make it easier to change to another form of partnership and to carry out transformations under the Transformation Act. Thus, in future, BGB companies can also be part of mergers and demergers.

Up to now, the assets of the BGB company were the joint assets of the respective partners. From 01.01.2024, however, the assets will be treated as the companys own assets. This does not mean, however, that the partners will no longer be personally liable - they will continue to have unlimited personal liability for the companys debts.

In addition, a new company register will be introduced, which will be kept at the district courts. There is no obligation to be entered in the new register, but every registered BGB company must have an appropriate legal form suffix such as "eGbR" or "registered civil law partnership". In addition, beneficial owners (Section 3 (1) GwG) must be reported in the transparency register.

However, it is mandatory that companies wishing to register ownership of a property in the land register must first register with the companies register. The same applies to the acquisition of rights entered in public registers (e.g. GmbH shares, industrial property rights).

In the aforementioned cases, we strongly recommend prior registration.

WZM at Hessischer Rundfunk

Our partner Gero Wähner was consulted by Hessischer Rundfunk as a building law expert on an extensive case in which a married couple had bought a building plot in Eltville, but are now probably not allowed to build their house on it. More can be found at: https://www.hessenschau.de/wirtschaft/ehepaar-aus-eltville-kauft-grundstueck-darf-darauf-aber-nicht-bauen-v2,grundstueck-streit-eltville-100.html

Solidarity surcharge possibly unconstitutional (BFH, hearing of 17.01.2023, ref. IX R 15/20)

The trial before the Federal Fiscal Court on the constitutionality of the solidarity surcharge has now taken place on 17.01.2023. There were no legal or tax arguments in favour of retaining the solidarity surcharge.
The action was brought by a married couple from Bavaria (BFH file no. IX R 15/20). The defendant was the Aschaffenburg tax office.
The starting point for the examination of unconstitutionality is Article 106 of the Basic Law, which regulates the various types of tax. According to the case law of the Federal Constitutional Court, the types of taxes mentioned in this norm must be distinguishable from each other. Indeed, according to Article 106(3) of the Basic Law, the Federation and the Länder are jointly entitled to income and corporation tax revenues. Accordingly, the Bundesrat must also consent to changes in these taxes. Therefore, in the view of the plaintiffs, the Federation may not, in order to circumvent consent obligations, levy a tax which is a "supplementary tax" in name only, but which is actually categorically income tax, and which then also benefits it alone. A supplementary levy differs from income tax by its special purpose. In the case of the solidarity surcharge as a supplementary levy, this has been solely to cushion the special burdens of German unity since 1995. In our view, this purpose has now ceased to exist.
The BFH intends to announce its decision on 30 January 2023. At present, everything indicates that the BFH assumes that the solidarity surcharge is unconstitutional and will forward the case to the Federal Constitutional Court. The Federal Constitutional Court has the sole power to overturn federal laws.

Federal State of Hessen Fiscal Court: European law freedom of movement of capital also applies to income from a family foundation in Switzerland (Hesse Fiscal Court, judgement of 13.07.2022 - 8 K 1419/19)

The parties disputed whether, in the respective assessment periods, the income of a family foundation was attributable for tax purposes to the parties to the assessment on the basis of § 15 para. 1 sentence 1 of the Foreign Tax Act in the version applicable to the years in dispute (AStG) and whether the provisions of § 15 para. 1 sentence 1 AStG and § 15 para. 1 sentence 1 AStG were applicable to the parties to the assessment. sentence 1 of the Foreign Tax Act and § 15 para. 6 of the Foreign Tax Act are compatible with the Basic Law and with European law, i.e. the provisions of the Treaty on the Functioning of the European Union in the version of the Treaty of Lisbon (Official Journal of the European Union - Abl EU - 2008, no. C 115, 47). The family foundation in the present case is a foundation under Swiss law. According to Art. 10 of the current foundation statutes, the purpose of the foundation is the dedication of capital within the meaning of Art. 335 of the Swiss Civil Code (ZGB). The action was deemed well-founded by the Hessian Fiscal Court because the challenged assessment notices are unlawful and violate the rights of the parties to the assessment represented by the plaintiff. Although the factual requirements of section 15(1) AStG were met in the years in dispute, the provision was not applicable due to an interpretation of section 15(6) AStG in conformity with EU law. The provision of § 15, para. 1, sentence 1 AStG infringed the fundamental freedom of capital movements of the parties to the assessment under European law. Article 63 TFEU generally prohibits all (national) provisions that restrict the movement of capital between different Member States or between a Member State and third countries.
In our view, the ruling is correct. Moreover, it is pleasing that taxpayers can be successful with arguments under European law directly before the tax courts and do not necessarily have to go all the way to the ECJ. However, due to the fundamental importance of the case, the court has allowed an appeal to the Federal Fiscal Court (Bundesfinanzhof, BFH) (pending under file number I R 32/22).
If you have any questions in connection with domestic or foreign foundations, we will be happy to help you.

WZM wishes Happy Holidays and a successful and happy start into the New Year

Dear clients, dear business partners,

we would like to thank you for the extremely good, loyal
and trustful cooperation during this year.

The entire WZM-Team wishes you Happy Holidays
and a successful and happy start into the new year.

This year, we are supporting the Bärenherz Foundation
with our annual Christmas donation, which is dedicated to facilities that provide relief for families with severely ill children, as well as the emergency aid in Ukraine with "Aktion Deutschland Hilft".

Inheritance and gifting will become more expensive

From 01.01.2023, inheriting real estate and transferring it as a gift will become significantly more expensive. The amended law provides for a change in the tax valuation standards of developed real estate. This will result in a significant increase in inheritance and gift tax from 01.01.2023.
It is not the existing inheritance and gift tax rate per se that is to be changed, but the tax valuation of developed real estate. In essence, this means that the tax valuation of developed land will be more closely linked to the valuation of the appraisal committees and thus to current market values as a result of the new regulations.
This has resulted in significantly higher valuations due to the predominantly increased real estate prices. If the real estate value increases as a result of the higher valuation, the tax will also increase accordingly. This follows on the one hand from the fact that a higher value is above the tax-free allowance and must be taxed. On the other hand, the percentage of the tax increases when the respective threshold values are exceeded.
As a result, according to unanimous expert opinion, an increase in the tax to be paid of at least 20 to 30% is to be expected, and in some cases the tax value to be paid may even double.
It is therefore urgently recommended to have it checked in the individual case by whether and in what amount the changed valuation regulations from 01.01.2023 will lead to a higher tax burden. If it is determined that a significantly higher tax burden is to be expected, and if a transfer of the property to family members is being considered anyway, whether by bequest or gift, it is recommended that the "old" values existing until the end of 2022 be used for the transfer.
The transfer of a property always requires a notarized contract, which must be submitted by the notary to the land registry. The land registry then amends the land register accordingly on the basis of the new ownership position in the contract. This procedure often takes a long time, especially towards the end of the year and taking into account the fact that notaries and land registry offices are heavily overloaded due to the pending change in the law.
Pursuant to Section 9 of the Inheritance Tax Act (ErbStG), the tax on inter vivos gifts arises "at the time of the execution of the donation". According to the prevailing view, the execution of the donation is deemed to have taken place when the conveyance, i.e. the agreement of the previous owner of the property with the future owner on the transfer of ownership of the property, has been declared and the entry of the change of title in the land register has been approved by the donor. Therefore, in accordance with the current tax regulations, real estate can be transferred by notarial deed until the end of 2022. However, over-supported notarizations are to be avoided.

Sale of Russian companies to buyers from "unfriendly states" subject to approval with immediate effect

On September 8, 2022, Russian President and suspected war criminal Vladimir Putin signed a new presidential decree (No. 618). This decree imposes new restrictions on the transfer of shares in Russian limited liability companies (OOOs):

a) transactions involving a transfer of all or individual business shares in Russian LLCs; and

b) legal transactions affecting the management and/or business activity of a Russian LLC,
require the approval of the Russian "Governmental Commission for the Control of Foreign Investments in the Russian Federation" in order to be effective, provided that natural or legal persons from "unfriendly states", including Germany, are directly or indirectly involved in the transaction. Exceptions to the approval requirement are provided for only to a very limited extent.

The presidential decree of September 8, 2022, entered into force on the same day. The procedure for the award of permits by the Government Commission is to be published by September 19, 2022. It is not available to us so far.

(JW)

High tolls in Hungary are permissible ( Bundesgerichtshof ruling of 28.09.2022)

If a driver in Hungary drives without a toll sticker, the toll may be demanded from the vehicle owner in Germany - even from rental car companies. This was decided by the BGH (28.09.2022).
Drivers who do not pay the toll in Hungary must pay high additional claims. This was decided by the Federal Court of Justice (BGH) in Karlsruhe (ruling of 28.09.2022, Ref. XII ZR 7/22). The court ruled in favor of a Hungarian collection agency that had filed a lawsuit against a car rental company for non-payment of tolls.
The German car rental company had objected to paying high additional fees because its own rental cars had been driven on Hungarian highways five times without a vignette. According to local law, the vehicle owner is responsible for this. The additional fees are being collected by the collection agency in Germany.
Among other things, the car rental company considered the amount of the fees to be inadmissible. It also did not want to be asked to pay as the vehicle owner on behalf of its customers for toll violations. However, the Federal Court of Justice ruled that both the liability of the vehicle owner and the amount of the fees were compatible with German law.

Bundestag approved inflation bonus

The inflation bonus already approved by the Bundestag has now been promulgated in the Federal Law Gazette. Employers will thus be able to grant their employees a tax- and duty-free bonus of up to 3,000 euros from October 26, 2022. This is the so-called inflation compensation bonus. Employers can give their employees a maximum of 3,000 euros tax- and duty-free to compensate for inflation from October 26, 2022 until the end of December 2024. This is intended to relieve employees of the burden of inflation. The provision is contained in the "Act on the Temporary Reduction of the Value Added Tax Rate on Gas Deliveries via the Natural Gas Network". It was only included in the original parliamentary group draft during the course of the Bundestag deliberations and supplements the Income Tax Act (Section 3 No. 11c EStG). The Bundesrat already approved the law on October 7, 2022. It was promulgated in the Federal Law Gazette on October 25, 2022. The Act itself will enter into force retroactively as of October 1, 2022. Employers may grant the inflation premium during the period from October 26, 2022 to December 31, 2024. This implements another relief measure to mitigate increased consumer prices. It is important that the payment was not paid before the date of publication in the Federal Law Gazette. In addition, no other salary payments may be included or substituted. The amount paid out must be shown separately in each case, both in the disbursement and in the accounting records. The payout should therefore be expressly designated as a "tax-free inflation compensation bonus." In addition, the principle of equal treatment under labor law must be observed. All comparable employees should therefore receive the same level of bonus payments.

Do not hesitate to contact us if you have any questions.

Olá Lisboa

This year, together with our cooperation partners Unigarant Frankfurt and Unigarant Berlin, we went 1819 kilometers west to the beautiful city of Lisbon. Together we enjoyed the beautiful weather during our beach trip and even threw ourselves into the waves of the Portuguese coast with the help of a surfboard. We broke the speed barrier on the Tagus River with a speedboat and at the same time got a glimpse of Lisbons landmarks built on the water. With the famous old streetcar of Lisbon we explored the small streets and admired the beautiful architecture. We were warmly welcomed in small restaurants with port wine and Portuguese tapas and ate fresh seafood from a copper pot directly at the sea. The weekend together was a lot of fun for all of us. Our team spirit and the cohesion with Unigarant Frankfurt and Berlin has been strengthened. Now we say adeus Lisboa.

UPDATE: OLG Karlsruhe overturns decision of VK Baden-Württemberg (07.09.2022)

In a previous message, we informed you about the decision of the Baden-Württemberg Procurement Chamber of 13.07.2022 (Ref. 1 VK 23/22). It had to decide on the question of whether the use of a company with links to a parent company in the USA already entails a data transfer to third countries that must be legitimized. The Procurement Chamber answered in the affirmative and therefore excluded a company from the award procedure for a digital patient management system. The Karlsruhe Higher Regional Court has now overturned the decision of the Public Procurement Chamber in a ruling dated September 7, 2022 (Case No. 15 Verg 8/22). In the view of the OLG, it must generally be assumed in the context of an award decision that a bidder will fulfill its contractual commitments. There would have to be concrete indications of doubt, a review of the performance promise would have to be carried out, but not - as advocated by the Procurement Chamber - at every possible latent risk of a breach. The decision of the OLG Karlsruhe is final.

Exclusion of the subsidiary of a U.S. group in award procedures for hosting services

The Baden-Württemberg Procurement Chamber has ruled that the use of hosting services of a European cloud provider with a US parent company for the processing of personal data violates the GDPR. Because of the associated latent risk of access by US authorities, the use of such hosting services already constitutes a transfer of data to a third country that is not permitted under Article 44 of the GDPR. This applies even if the cloud provider stores the data exclusively on servers in Germany. An offer for an IT solution compliant with the GDPR which provides for the use of such hosting services must therefore be excluded due to a change in the award documents (VK Baden-Württemberg, decision dated 13.07.2022 - 1 VK 23/22 - not legally binding).

Welcome to the team Britta Sturm

Since August 1, 2022, Ms. Britta Sturm strengthens our team. Until joining WZM, Ms. Sturm worked in a leading position as in-house lawyer in internationally operating credit institutions and thus gained extensive knowledge of their internal workflows and requirements.

The expertise gained from these in-house activities as well as from her work as managing director and supervisory board member in various subsidiaries belonging to DVB, coupled with her many years of experience in international projects and M&A transactions, enable Ms. Sturm to implement the needs of our clients in a targeted manner. Ms. Sturms work focuses on achieving your strategic goals and a high degree of pragmatism, without our clients having to forego the legal expertise they are accustomed to. Mutual respect plays a major role in our success.

We are happy to welcome Ms. Sturm to our team. With her, we hope to be able to meet your needs even better in the future, so that you are prepared for all legal challenges.

Amendment of the NachweisG as of 01.08.2022

With the implementation of the EU Directive 2019/1152 on transparent and foreseeable working conditions, the German legislator passed far-reaching amendments to the Verification Act (NachwG), which have been in force since 01.08.2022. The amendment made extensive changes to Section 2 (1) NachwG, according to which the employer is now obliged to set out the main contractual conditions in writing and hand them over to the employee. This applies to all employment relationships concluded from 01.08.2022.

For already existing employment relationships (so-called old contracts), the employer is obliged to hand over a transcript containing the further details not already set out in writing in the employment contracts at the latest on the seventh day after receipt of the employees request. Therefore, it is recommended that the employer already has a sample with the complete information in order to be able to provide any information in due time.

Furthermore, the obligation to provide evidence applies in an adapted form to the employment of interns (cf. Section 2 (1a) NachwG). Further modifications also apply to employment contracts of employees who are posted abroad (cf. Section 2 (2), (3) NachwG).

Employers who fail to comply with the obligation to provide proof may now also be subject to fines. Therefore, it is advisable for the employer to quickly implement the obligation to provide evidence.

WZM will be happy to advise and support you in the implementation.

Welcome to the team

Today we would like to introduce our new employee Sinem Cigdem. Sinem has a further education in business administration and will support us with her experience in the office.

We are very happy to welcome Sinem in our team.

Congratulations on the first judicial state examination

Congratulations to our employee Talisa Drescher for her excellent first judicial state exam! We are happy that you are part of our team.

Shari Seitz is a certified mediator

Our colleague Shari Seitz has become a certified mediator this week and as such supports the WZM mediation team in a leading role. If you have any questions about mediation, please do not hesitate to contact Ms. Seitz directly.

Congratulations on the certification!

WZM competes in the J.P. Morgan run