All judgments published in September 2013.

28 Mar

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All judgments published in September 2013.

Judgements, published in September 2013

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Sun

Payment

Payments from youth welfare offices to childminders are taxable »

Advertised fare must not only apply to payment with a less common credit card »

Fundamental judgment on GmbH managing director liability according to § 64 GmbH-Gesetz »

Expedia.de must offer common payment options free of charge »

You can find more current judgments on the subject of "payment" here ... »

Second home

Preliminary legal protection application by second home owners against regulation in Corona state ordinance M-V unsuccessful »

BFH: Profit from the sale of a temporarily occupied second home is not subject to income tax »

BVerfG: Broadcasting fee for primary residence and in the non-private area is constitutional »

Employee is entitled to reimbursement of costs for second home after invalid transfer »

You can find more current judgments on the subject of "second homes" here ... »

Church bells

No entitlement to omission of the daily bell ringing of a private church after 6 p.m. »

No entitlement to refrain from ringing the bells every 15 minutes between 7 a.m. and 10 p.m. or the ringing of the liturgical bells of a church »

Administrative court legal action for lawsuits against church bell ringing »

Noise pollution caused by the time bells from the church tower justifies a claim for injunctive relief »

More current judgments on the subject of "church bells" can be found here ... »

EU law

Taxation of sports betting compatible with constitutional and European law »

OLG submits questions to the ECJ on the right of withdrawal for mileage leasing »

No over-the-counter drug may be sold in other EU countries without authorization »

Emergency requests against the Agreement on a Unified Patent Court unsuccessful »

More current judgments from "EU law" can be found here ... »

structural change

Removal of an impermissible staircase from the balcony to the garden at the expense of the homeowners' association by majority vote »

Installation of an outdoor air conditioning system on a special use area requires the consent of the co-owners »

Apartment owners are not allowed to enlarge the terrace without the consent of the apartment owners' association »

The legal successor of an apartment owner is liable for dismantling an inadmissible structural change made by the previous owner »

You can find more current judgments on the subject of "structural changes" here ... »

Freedom of religion

No exemption for driving a motor vehicle with a face veil in expedited proceedings »

Priests are also required to wear masks »

Headscarf ban for legal trainees constitutionally »

Muslim schoolgirl allowed to shower in swimwear during school swimming class »

You can find more recent judgments on the subject of "religious freedom" here ... »

Scratches

No claim for damages for scratched bonnet caused by window sponge cleaner at gas station »

Car scratches: Children are not always responsible for damage to parked vehicles »

Toby is allowed to stay: the landlord may not forbid keeping the mongrel dog in the rented apartment »

Warranty claims when buying a car: the buyer must be able to prove fraudulent concealment of vehicle damage »

You can find more recent judgments on the subject of "scratches" here ... »

Loss of sales

Voluntary closure of office space due to virus pandemic does not justify rent payment freeze »

Obligation of a commercial tenant to pay rent despite corona-related business closure »

No reason for an urgent decision: the dog is allowed in the office for the time being »

Constitutional complaint against the introduction of the "ordering principle" for brokerage commissions for residential leases inadmissible »

You can find more current judgments on the subject of "loss of sales" here ... »

Testament interpretation

The child's loss of contact due to years of adultery by the last deceased spouse does not justify re-certification because of the child's "family violations" »

Ex-spouse has the right to inspect a will later made by the other ex-spouse »

Determination of the biological child and child of the second wife as subsequent heirs does not speak for the exempted pre-inheritance of the second wife »

Effective appointment of heirs by reference to another document »

You can find more recent judgments on the subject of "testament interpretation" here ... »

Healing treatment

No entitlement to assistance for individual medical treatments in addition to device-supported physiotherapy without a specific diagnosis »

BGH: Incapacity to use a limb due to failure to receive medical treatment does not generally lead to a reduced sentence for the accused »

Constitutional complaint against forced treatment in the context of public-law accommodation successful »

BGH: Free determination of will with regard to accommodation requires the person being cared for to be aware of the illness »

You can find more current judgments on the subject of "curative treatment" here ... »

all reviews (sorted by month of publication)

All judgments published in September 2013.

Jump to the judgments of 09/03/2013

Monday, September 2nd, 2013

Minden Administrative Court, decision of August 30, 2013 - 8 L 538/13 -

For the time being, a Catholic confessional elementary school is not obliged to admit a Muslim student

The administrative court in Minden has rejected the emergency application of a Muslim school entrant whose parents had filed a complaint against the headmaster of the Catholic confessional elementary school "Bonifatius" in Paderborn

Higher Regional Court of Saarbrücken, judgment of February 28, 2013 - 4 U 287/11 - 91 -

Accident between a bicycle and a car: In the case of grossly negligent traffic violations by a cyclist, the operational risk of the vehicle takes precedence over the sole contributory negligence of the cyclist

If an accident occurs between a cyclist and a motorist and the cyclist is solely responsible for the accident, the motorist is not liable for the accident. The operating risk of his vehicle is completely secondary to the fault of the cyclist. This was decided by the Higher Regional Court of Saarbrücken.Read more

Munich District Court, judgment of October 2nd, 2012 - 159 C 26871/10 -

Reimbursing hearing aids of only reasonable design constitutes undue disadvantage

A benefit limitation in the insurance conditions of medical expenses insurance, according to which only hearing aids or other aids of an appropriate design are to be reimbursed, is not effective because this regulation is not clear and understandable and thus unreasonably disadvantages the insured person. This was decided by the District Court of Munich.Read more

Hamm Higher Regional Court, judgment of August 22, 2013 - 8 U 66/13 -

Investment advisors are liable for incorrect advice on capital investments with a risk of total loss

The Oldenburg Higher Regional Court has sentenced an investment advisor to pay more than 13,000 euros in damages for incorrect advice. The advisor had recommended investments with a risk of total loss to an investor as a retirement provision, which the court judged to be unsuitable.Read more

Federal Court of Justice, decision of March 7th, 2013 - I ZB 67/12 -

Failure to meet the deadline: Unforeseen illness of the lawyer justifies reinstatement to the previous status

If a lawyer misses the deadline for substantiating his appeal because he unexpectedly falls ill, he must be granted reinstatement in his previous position. But he must try to get an extension of the deadline. This was decided by the Federal Court of Justice.Read more

Stuttgart Administrative Court, decision of 22.08.2013 - 7 K 2688/13 -

A 2-year-old child is not entitled to a daycare place for eight hours a day

The Administrative Court of Stuttgart has rejected the urgent application of a 2-year-old child against the state capital Stuttgart, with which the child had requested a place in a daycare center for eight hours a day.Read more

Berlin Regional Court, judgment of September 23, 1999 - 61 S 518/98 -

Swinger club in the residential building justifies rent reduction of 20%

A swingers club in a residential building does not in itself entitle you to a rent reduction. A reduction in rent of 20% can only be justified if specific impairments occur that go beyond moral perception. This was decided by the Berlin Regional Court.Read more

Federal Court of Justice, decision of June 18, 2013 - 2 StR 145/13 -

BGH: No completed theft in a supermarket when putting the goods in bags

If the thief puts the goods in bags in a supermarket, this does not mean that the theft has taken place, but rather that it has been attempted. Completion only occurs after leaving the checkout area. This was decided by the Federal Court of Justice.Read more

Dusseldorf Finance Court, judgment of May 16, 2013 - 12 K 2963/12 E -

Only 60% of the liquidation loss when the share capital is distributed is deductible

The Düsseldorf Finance Court has decided that a liquidation loss when distributing share capital is only 60% deductible.Read more

Federal Court of Justice, decision of August 7th, 2013 - 1 StR 156/13 -

Federal Court of Justice confirms conviction of a mayor for faking a crime

The Federal Court of Justice has confirmed the conviction of the mayor of a municipality in Baden-Württemberg for faking a crime. According to the findings of the Waldshut-Tiengen Regional Court, the accused, with the help of the co-accused, faked an attack on his person by unknown persons.Read more

Naumburg Higher Regional Court, judgment of November 16, 2012 - 1 U 109/12 -

Official liability: No compensation for damages due to vehicle damage caused by the air pressure of a landing helicopter whirling up the lid of a grit container

If the lid of a grit container is whirled up by a landing helicopter and damages a parked vehicle, there is no breach of official duty. Because this obligation does not include the prevention of damage caused by lids being thrown up as a result of a helicopter landing. This was decided by the Higher Regional Court of Naumburg. Read more

Jump to the judgments of 09/02/2013

| 09/04/2013

Tuesday, September 3rd, 2013

Dusseldorf Finance Court, judgment of February 1, 2013 - 1 K 3144/11 U -

Sales tax: FG Düsseldorf for the sale of the business as a whole when selling a rental property

If a rental activity is continued by the seller himself after the sale of the rental property, this does not constitute a taxable business sale as a whole.Read more

Hamm Higher Regional Court, judgment of February 28, 2013 - 4 U 159/12 -

Imprint obligation: Lawyer obliged to state the territorial scope of his professional liability insurance

If a lawyer does not state the geographical scope of his professional liability insurance in the imprint on his homepage, he is committing a violation of competition law. It can also be expected that a colleague will warn of this violation independently, i.e. without the help of another lawyer. This was decided by the Higher Regional Court of Hamm. Read more

Oldenburg Higher Regional Court, judgment of June 18, 2013 - 12 U 26/13 -

Suspected dioxin contamination in the feed is sufficient for a claim for damages

The suspicion of dioxin contamination in the feed is sufficient for a claim for damages. This emerges from a decision by the Higher Regional Court of Oldenburg.Read more

District Court of Elmshorn, judgment of January 25, 2013 - 51 C 180/12 -

The landlord may not install a garden fence in the stairwell

If there is a dispute between the parties to the rental agreement about the frequency and length of ventilation of the stairwell, the landlord may not end this dispute by installing a garden fence in the hallway. This was decided by the district court of Elmshorn.Read more

Federal Court of Justice, judgment of August 15, 2013 - I ZR 80/12 -

Federal Court of Justice specifies liability of file hosting services for copyright infringement

A file hosting service is obliged to carry out comprehensive regular checks on the link collections that refer to its service if its business model promotes copyright infringement to a considerable extent. This was decided by the Federal Court of Justice.Read more

District Court of Kleve, judgment of January 28, 1986 - 3 S 117/85 -

Reduction of rent due to wild pigeons not justified

If the landlord has taken all legally possible and reasonable measures against a plague of pigeons and these measures are not successful, the tenant cannot reduce his rent. This was decided by the district court of Kleve.Read more

Federal Constitutional Court, decision of August 13, 2013 - 2 BvR 2660/06 and 2 BvR 487/07 -

The Federal Republic of Germany is not liable for damages due to civilian victims of a NATO air attack in the Kosovo war

The Federal Constitutional Court has not decided on constitutional complaints about the killing and injury of civilians when a bridge was destroyed in the Kosovo war due to the lack of prospects of success. The specialist courts - most recently the Federal Court of Justice - had dismissed relevant claims against the Federal Republic of Germany for damages and pain and suffering; those decisions endure as a result.Read more

Regensburg district court, judgment of March 27, 1984 - S 320/83 -

Insignificant odor nuisance from a compost heap does not justify a claim for removal

If a tenant feels bothered by his neighbor's compost heap, he is not entitled to have it removed if the odor is only minor. This was decided by the Regional Court of Regensburg.Read more

Social Court of Karlsruhe, judgment of August 29, 2013 - S 1 SO 2004/13 -

Existing assets take precedence over claiming social assistance

If the asset allowance is exceeded due to existing assets in the form of credit balances on savings and current accounts as well as the buyback values from a home savings contract and two life insurance policies, there is no entitlement to claim social assistance. This is the result of a decision by the Karlsruhe Social Court.Read more

Higher Regional Court Hamm, decision of July 18, 2013 - 15 W 88/13 -

Testamentary substitute heir is not a subsequent heir

An arrangement in a will that determines a substitute heir in the event of the childless death of an heir cannot simply be interpreted in such a way that if the heir experiences the succession (so that the substitute succession does not occur), a prior and inheritance is wanted. This is the result of a decision by the Higher Regional Court of Hamm, which amended the first-instance decision of the District Court of Coesfeld.Read more

Regional Court of Kassel, judgment of July 30, 1987 - 1 S 274/84 -

Drafts in the house and water ingress due to defective sealing justify rent reduction of 20%

If there is draft and water ingress due to the defective seal on the doors and windows of a rented house, the tenant is entitled to reduce his rent by 20%. This was decided by the district court of Kassel.Read more

Jump to the judgments of 09/03/2013

| 05.09.2013

Wednesday, September 4th, 2013

Social Court of Karlsruhe, judgment of August 29, 2013 - S 1 SO 4002/12 -

No reimbursement of costs for obtaining a foreign national passport from social welfare funds

Costs for obtaining identity papers are included in the standard requirement. The assumption of costs for the issue of a foreign national passport does not represent a special, atypical life situation. This was decided by the Karlsruhe Social Court.Read more

Administrative Court of Berlin, judgment of August 21, 2013 - VG 14 K 80.12 -

"Dementia residential community" can be an inpatient facility

Anyone who rents apartments to people with dementia and actually links their care to a specific nursing service operates an inpatient facility within the meaning of Berlin home law. That was decided by the administrative court in Berlin.Read more

Federal Court of Justice, judgment of May 14, 2013 - VI ZR 255/11 -

Failed evacuation: Liability for failure to provide assistance

Anyone who fails to provide assistance in the event of an accident not only makes themselves a criminal offence, but also liable. Because the criminal offense of failure to provide assistance (§ 323 c StGB) represents a protective law within the meaning of § 823 Para. 2 BGB. This emerges from a decision of the Federal Court of Justice.Read more

Hamm Higher Regional Court, judgment of July 19, 2013 - 26 U 98/12 -

No claim for compensation for erectile dysfunction after prostate surgery

After a professional prostate operation with a vasectomy (severing of the vas deferens), the patient cannot claim compensation for erectile dysfunction because this is not due to the operation. He is also not entitled to any compensation for an ejaculation disorder that has occurred as an inevitable consequence of the operation and for the vasectomy that was carried out, because he was correctly informed in this respect. This was decided by the Higher Regional Court of Hamm, thus confirming the first-instance decision of the Regional Court of Paderborn.Read more

Federal Fiscal Court, judgment of May 7, 2013 - VIII R 51/10 -

Expenses for trips abroad by a part-time author of business textbooks are not deductible

The Federal Fiscal Court denied a part-time author the deduction of travel expenses to southern countries because the expenses were inseparably both business and private.Read more

Federal Court of Justice, judgment of February 20, 2013 - I ZR 172/11 -

Use of a protected trademark "Beate Uhse" in the context of the Google AdWords ad can constitute trademark infringement

If a protected trademark is used in a Google AdWords ad, this can constitute a trademark infringement from the point of view of reputation exploitation or damage to reputation. In contrast, neither the advertising nor the origin function is affected. This emerges from a decision of the Federal Court of Justice.Read more

Federal Court of Justice, decision of August 7th, 2013 - XII ZB 559/11 -

Parental consent sufficient for restraining a child in an open facility at night

Parents can effectively consent to their child being restrained at night in an open curative education facility without additional approval from the family court. This was decided by the Federal Court of Justice.Read more

Federal Social Court, judgment of September 4th, 2013 - B 10 EG 4/12 R -

Mothers in closed prisons are generally not entitled to parental allowance

The Federal Social Court ruled on September 4, 2013 that a mother who is housed with her child in a mother-child facility of the closed penal system is not entitled to parental allowance.Read more

District Court of Gifhorn, judgment of 07.03.2001 - 33 C 426/00 (VII) -

Rent reduction of 15% or 5% due to noise and odors from the supermarket

If a noise and odor nuisance arise from a supermarket due to a cardboard press, delivery traffic and garbage and organic bins, the tenant can reduce his rent by 15% because of the noise and by 5% because of the odor. This emerges from a decision by the District Court of Gifhorn.Read more

Higher Administrative Court of North Rhine-Westphalia, decision of September 4th, 2013 - 19 B 1042/13 -

Catholic denominational elementary school may reject Muslim school entrants

The Catholic Bonifatius elementary school in the city of Paderborn is allowed to refuse the admission of a Muslim school starter because his parents refuse to take part in Catholic religious instruction and school services. With this urgent decision, the Higher Administrative Court of North Rhine-Westphalia confirmed an identical decision by the Minden Administrative Court.Read more

Regional Court of Kassel, judgment of September 10, 1953 - 1 S 281/53 -

Tenant is entitled to have all keys handed over

The tenant of a room has the right to be given all the keys belonging to the room. In addition, the landlord may not enter the room in the absence of the tenant and install another lock. This emerges from a decision by the Regional Court of Kassel.Read more

Jump to the judgments of 09/04/2013

| 06.09.2013

Thursday, September 5th, 2013

Federal Constitutional Court, judgment of October 16, 1977 - 1 BvQ 5/77 -

Kidnapping of Hanns-Martin Schleyer: State does not have to meet terrorist demands

In the case of the kidnapping of employer president Hanns-Martin Schleyer, the Federal Constitutional Court did not comply with the kidnapped son's request to oblige the federal government to comply with the terrorists' demands. It is fundamentally up to the state to decide which means to use in the event of terrorist extortion. On the occasion of the anniversary of the Schleyer kidnapping, gratis- judgements.de looks back on this case. Read more

Hessian Administrative Court, judgment of September 3, 2013 - 9 C 323/12.T -

Determination of the southern bypass around Frankfurt Airport is illegal

The Hessian Administrative Court has decided that the specification of the so-called southern bypass around Frankfurt am Main Airport is illegal.Read more

Dusseldorf Labor Court, judgment of 04.09.2013 - 8 Ca 7883/12 -

Employer may prohibit employee from bringing her dog into the office

An employer is entitled to prohibit its employees from bringing their (three-legged) dog into the office if the dog disrupts work processes and employees feel threatened by the animal. This is the result of a decision by the Düsseldorf Labor Court.Read more

Federal Fiscal Court, judgment of April 16, 2013 - IX R 5/12 -

No deduction of criminal defense costs as extraordinary expenses

Costs incurred by a person convicted of an intentional act for his criminal defense cannot be deducted as extraordinary expenses. This was decided by the Federal Fiscal Court.Read more

District Court of Wiesbaden, judgment of February 25, 1991 - 1 S 395/90 -

Parquet floors need to be sanded and sealed every 15 to 20 years

A parquet floor must be sanded down and resealed every 15 to 20 years. If a parquet floor is 16 years old, a landlord can therefore not demand reimbursement for the refurbishment of a worn parquet. This is the result of a decision by the Wiesbaden Regional Court.Read more

Federal Constitutional Court, decision of August 26, 2013 - 2 BvR 371/12 -

Constitutional complaint in the "Mollath case" successful

The Federal Constitutional Court has upheld Gustl Ferdinand Mollath's constitutional complaint against decisions by the Bayreuth Regional Court and the Bamberg Higher Regional Court. The reasons listed in the 2011 decisions are not sufficient to justify the continuation of the placement. The resolutions violate the complainant's fundamental right to personal liberty (Article 2(2) sentence 2 GG) in conjunction with the principle of proportionality (Article 20(3) GG).Read more

Federal Court of Justice, judgment of February 20, 2013 - I ZR 146/12 -

BGH sees no anti-competitive behavior in the addition "Lawyer also admitted to the OLG Frankfurt".

If a lawyer advertises on his letterhead with the addition "Lawyer also admitted at the OLG Frankfurt", this does not mislead potential clients. Because in this respect he does not advertise with self-evident facts. This emerges from a decision of the Federal Court of Justice.Read more

Administrative Court of Berlin, decision of September 2nd, 2013 - VG 27 L 217.13 -

No right under press law to inspect the doping study files

The Berlin Administrative Court decided in summary proceedings that the right to information under press law does not extend to an inspection of the doping study files.Read more

District Court Solingen, judgment of June 18, 2013 - 12 C 638/12 -

Car accident: Useless petrol in the vehicle involved in the accident justifies a claim for damages

If a vehicle suffers a total loss as a result of an accident, the fuel still in the vehicle is useless and can be claimed for damages. The damaged vehicle owner is also not obliged to pump out the remaining fuel. This emerges from a decision by the District Court of Kassel.Read more

Federal Administrative Court, judgment of 05.09.2013 - BVerwG 10 C 1.13 and BVerwG 10 C 3.13 -

Manipulating the fingertips can lead to the termination of the asylum procedure

Asylum seekers are required by law to be fingerprinted to verify their identity. If they prevent their ability to be evaluated by manipulating their fingertips, the asylum procedure can be discontinued for not pursuing them without a decision being made on the merits of the asylum application. This emerges from a decision of the Federal Administrative Court.Read more

Federal Administrative Court, judgment of 05.09.2013 - BVerwG 7 C 21.12 -

Environmental organizations can sue for a clean air plan

Recognized environmental organizations can assert compliance with the regulations on clean air plans in court. This was decided by the Federal Administrative Court.Read more

Schleswig-Holstein Higher Regional Court, decision of January 21, 2013 - 16 U 117/12 -

Hyperthermia treatment to fight cancer not reimbursable

If a policyholder undergoes hyperthermia treatment to fight kidney cancer, the health insurance company does not have to cover the costs. Because there is no medical necessity for the treatment. This emerges from a decision by the Schleswig-Holstein Higher Regional Court.Read more

Jump to the judgments of 09/05/2013

| 09/09/2013

Friday, September 6th, 2013

Federal Court of Justice, judgment of July 4, 2013 - III ZR 250/12 -

The state of Brandenburg owes compensation for rockfall damage caused by mowing work on a federal highway

The state of Brandenburg has to compensate a driver whose vehicle was damaged on a federal highway by stones thrown up as a result of mowing work. The Federal Court of Justice has rejected the appeal of the state of Brandenburg against a corresponding judgment of the Brandenburg Higher Regional Court, which is therefore final.Read more

Lower Saxony Higher Administrative Court, judgment of September 3, 2013 - 11 KS 288/12 -

Ban of the association "Besseres Hannover" lawful

The "Besseres Hannover" association remains banned. This was decided by the Higher Administrative Court of Lower Saxony and thus dismissed the lawsuit brought by the association and a leading member of the association against the association ban.Read more

Federal Court of Justice, decision of June 19, 2013 - XII ZB 39/11 -

Child maintenance: A fictitious income is only taken into account if the unemployed person responsible for maintenance has a real chance of employment

If an unemployed person is dependent on his child and does not take up reasonable work, the fictitious income earned can be taken into account. In addition, the maintenance proceedings only continue with the child who has come of age if the child consents to this. This emerges from a decision of the Federal Court of Justice.Read more

Regional Court of Coburg, judgment of 04.06.2013 - 23 O 246/12 -

Ex-girlfriend obliged to pay damages in the amount of the purchase price after the car was resold without authorization

After a couple separates, the ex-partner must be able to prove that the vehicle used was given to him by the partner and not just given to him for use. If this proof cannot be provided, the vehicle rental ends with the relationship and the vehicle being reclaimed. If the vehicle has already been resold, the ex-partner is obliged to pay damages in the amount of the purchase price of the vehicle for unauthorized sale of the vehicle. This emerges from a decision by the district court of Coburg.Read more

Cologne district court, judgment of October 22, 2001 - 214 C 437/00 -

Noise from opening and closing a metal gate entitles you to a 15% rent reduction

If noise pollution occurs due to the constant opening and closing of a metal gate, the tenant is entitled to reduce his rent by 15%. This emerges from a decision by the District Court of Cologne.Read more

Hamburg district court, judgment of April 22, 2004 - 44 C 209/03 -

The landlord must remove graffiti that is unusual for the location on the house wall and in the stairwell

If the house wall and the stairwell have large areas of graffiti, the landlord is obliged to remove them. The landlord's obligation to repair results from the tenant's right to a reduction. This emerges from a decision by the District Court of Hamburg.Read more

Regional Social Court of Rhineland-Palatinate, judgment of 06.03.2013 - L 4 VG 11/11 -

Outbreak of disease closely following crime suffered sufficient to qualify for victim compensation

If victims of crime - especially sexual abuse in youth - have doubts as to whether there were signs of illness before the act of violence (so-called previous damage) or whether other causes brought about the illness, this is not to the detriment of the victim. It is sufficient for care under the Victims Compensation Act (OEG) that the illness broke out shortly after the stressful event and that no later circumstances occurred that make this event appear insignificant to the current complaints. This was decided by the State Social Court of Rhineland-Palatinate.Read more

Social Court Berlin, decision of August 21, 2013 - S 201 AS 19424/13 ER -

Hartz IV: Jobcenter does not have to cover travel expenses of more than 6,000 euros for visiting children in Australia

The job center does not have to cover the costs of around 6,500 euros for a Hartz IV recipient to visit their children living in Australia, even if it has already agreed in principle to cover the costs of such a flight. There is no obligation to cover travel expenses that are particularly high due to short-term travel planning. This emerges from a decision by the Berlin Social Court.Read more

Administrative Court Mainz, judgment of August 23, 2013 - 4 K 1016/12.MZ -

In the case of previous degenerative damage, a torn Achilles tendon after jumping over a fence is not to be recognized as a work-related accident

A police officer is not entitled to have an Achilles tendon ruptured after jumping over a hunter's fence recognized as an occupational accident if the injury is not due to the jump but to previous degenerative damage. This was decided by the Mainz Administrative Court and dismissed the police officer's claim for accident compensation.Read more

Higher Labor Court of Rhineland-Palatinate, judgment of July 11, 2013 - 10 SaGa 3/13 -

Photos of the employee permitted if there is any doubt as to their incapacity to work

If an employee on sick leave who is unable to work is found in public, photos may be taken of him/her. Because the suspicion of faking incapacity to work justifies the encroachment on the general right of personality. This is the result of a decision by the Rhineland-Palatinate State Labor Court.Read more

Rathenow district court, judgment of 06.09.2013 - 4 C 300/13 -

AG Rathenow: Smoking allowed on the balcony / neighbor must accept smoke of 12 cigarettes per day

Renters are allowed to smoke on the balcony. This emerges from a judgment of the district court Rathenow.Read more

Hamburg Higher Regional Court, decision of February 4th, 2013 - 7 W 5/13 -

Unauthorized publication of private Facebook messages prohibited

If a private Facebook message is published without authorization, there is a breach of privacy. This justifies a claim for injunctive relief. This emerges from a decision by the Hamburg Higher Regional Court.Read more

Jump to the judgments of 06.09.2013

| 09/10/2013

Monday, September 9th, 2013

Federal Fiscal Court, judgment of July 1, 2013 - IV R 9/12 -

No retrospective interest on income tax arrears if an investment deduction ceases to apply retrospectively

If the entrepreneur gives up the intention to make an investment for which he has received a tax deduction according to § 7 g of the Income Tax Act, he loses the right to the tax benefit retrospectively. He then has to pay the relevant income tax without an interest surcharge. This results from a judgment of the Federal Fiscal Court.Read more

Administrative Court Goettingen, decision of September 3rd, 2013 - 2 B 785/13 -

Broadcast contribution: Comprehensive comparison of registration data interferes with the right to informational self-determination and is not required

The Goettingen Administrative Court has partially granted the application of a citizen who opposed the comprehensive comparison of registration data in the course of the broadcast financing reform in preliminary legal protection proceedings and decided that data on the doctorate, marital status and last main and secondary residence should not be sent to the NDR may be passed on.Read more

Neustadt Administrative Court, judgment of 06.09.2013 - 4 K 242/13.NW -

Lease agreement for the mayor's company car is subject to commercial secrecy

The Administrative Court of Neustadt has ruled that the City of Neustadt is not obliged to provide a citizen with access to the information content of the leasing contract concluded with BMW for the mayor's official car.Read more

District Court of Wetzlar, judgment of 08.01.2013 - 38 C 1389/12 (38) -

Insufferable odor from cigarette smoke and poor hygiene justifies the tenant's termination without notice

If an unbearable odor emanates from a rented apartment due to cigarette smoke and a lack of personal hygiene, the tenant disturbs the peace of the house in the long term. The landlord is therefore entitled to terminate the tenant without notice after an unsuccessful warning. This is the result of a decision by the district court of Wetzlar.Read more

Hamm Higher Regional Court, judgment of August 12, 2013 - 3 U 57/13 -

The gynecologist is liable if breast cancer is detected too late

A gynecologist is liable for damages because he did not advise a patient who was diagnosed with breast cancer in 2010 to have a mammography screening during the cancer check-up carried out in 2008. This was decided by the Higher Regional Court of Hamm, partially changing the decision of the Regional Court of Essen.Read more

Rendsburg district court, judgment of October 30, 2008 - 18 C 545/08 -

Residential property law: Smoke alarm devices are part of the community property / installation can be decided by a majority

Smoke alarms within a condominium belong to the common property. However, if an apartment owner has already installed smoke alarm devices in his apartment, he cannot be obliged to install uniform smoke alarm devices for the apartment property system. This emerges from a decision by the District Court of Rendsburg.Read more

Munich District Court, judgment of January 16, 2013 - 132 C 15965/12 -

A travel defect that is beyond the tour operator's sphere of influence does not entitle the holder to a reduction

The District Court of Munich has ruled that a travel defect that is beyond the tour operator's sphere of influence does not entitle the traveler to a reduction.Read more

Higher Regional Court of Bamberg, decision of June 12, 2013 - 2 Ss OWi 659/13 -

The person responsible for load safety must carry out random checks on a regular basis

Anyone who is responsible for complying with the load securing regulations for trucks has to carry out regular and unexpected spot checks. If he fails to do so, he commits an offence. This emerges from a decision by the Higher Regional Court of Bamberg.Read more

Administrative Court Dresden, decision of 05.09.2013 - 1 L 407/13 -

Child parents fail with an urgent application against the Dresden Internet portal for child day care

The Administrative Court of Dresden has decided that the state capital of Dresden may put a planned internet portal for child day care into operation as planned. A counter-application for urgent legal protection by several childminders, who considered that the legislator did not sufficiently consider the equivalence of the offers of day-care facilities and child-care facilities, was unsuccessful. In the opinion of the court, the parents could not make it clear in what specific way they wanted to be treated on an equal footing with the day-care centers on the Internet portal for day-care and what specific programming they wanted.Read more

Amtsgericht Hamburg-Wandsbek, judgment of February 8th, 2002 - 716A C 265/01 -

Shadowing and limited field of vision due to a subsequently added balcony justify rent reduction of 10%

If the incidence of light and the field of vision of the apartment below is restricted due to the subsequent addition of a balcony, then there is a lack of rent. This justifies a rent reduction of 10%. This emerges from a decision by the District Court of Hamburg-Wandsbek.Read more

Bad Segeberg district court, judgment of 09.01.2013 - 17 C 196/12 -

Driving past a traffic obstruction requires timely flashing

If a driver wants to drive past a traffic obstruction, he/she must clearly and in good time announce that the car is pulling out. If he does not do this and a traffic accident occurs as a result, the person who pulls out is to blame for the cause of the accident. This is the result of a decision by the district court of Bad Segeberg.Read more

Jump to the judgments of 09/09/2013

| 09/11/2013

Tuesday, September 10th, 2013

Weimar Administrative Court, decision of August 26, 2013 - 2 E 779/13 We -

Issuing of a special use permit for attaching at least 51 additional election posters was rightly rejected

The administrative court in Weimar decided in summary proceedings that the party seeking legal protection, which has not yet been represented in the Thuringian state parliament, has not made a credible claim for a special use permit to affix additional posters in the municipal area of the respondent, a municipality with approx. 2,500 inhabitants.Read more

Federal Constitutional Court, decision of October 30, 1990 - 2 BvF 2/89; 2 BvF 6/89 -

Federal Constitutional Court declares the right to vote for foreigners in municipal and district elections to be unconstitutional

The term "Volk" in Art. 28 Para. 1 Sentence 2 GG means the German people. This understanding of the term excludes the right to vote for foreigners in municipal and district elections. Any law granting such a right is therefore unconstitutional. This emerges from a decision of the Federal Constitutional Court.Read more

Administrative Court of Berlin, decision of September 3, 2013 - VG 1 L 239.13 -

Grosz drawings remain in Berlin for the time being

The Administrative Court of Berlin has ruled that the drawings "Beauty, I want to praise you" and "Brillantenschieber" by George Grosz may not leave Germany for the time being.Read more

Federal Court of Justice, judgment of June 20, 2013 - III ZR 326/12 -

Black ice accident: A fall due to apparent slippery surfaces does not necessarily justify major contributory negligence

If a pedestrian recognizes the danger of black ice and nevertheless puts himself in danger, this alone does not constitute a predominant contributory fault for the subsequent fall. Such contributory negligence, which excludes liability, can only be considered in the case of an incomprehensible carelessness on the part of the injured party. This emerges from a decision of the Federal Court of Justice.Read more

Kassel Administrative Court, decision of September 9, 2013 - 4 L 1117/13.KS -

Bad Hersfeld: NPD election posters must be put up again

The Administrative Court of Kassel has decided that the advertising slogan "Money for grandma instead of for Sinti and Roma" on the NPD election posters does not clearly call for arbitrary measures against Roma and Sinti and is therefore not to be classified as hate speech. The city of Bad Hersfeld must therefore hang up the NPD election posters again in the city.Read more

Federal Fiscal Court, judgment of May 16, 2013 - IV R 15/10 -

Settlement in the event of a dispute over inheritance in a partnership leads to capital gains

If the potential heirs of the deceased shareholder of a partnership settle the dispute about who became a shareholder as an heir, the person who renounces the assertion of his rights in exchange for money and would have become a shareholder according to the rules of company law achieves this can, a capital gain that must be determined at the partnership. This was decided by the Federal Fiscal Court.Read more

Cologne district court, judgment of September 11, 1985 - 204 C 499/83 -

Nocturnal party noise justifies termination without notice by the tenant after an unsuccessful warning

If a tenant frequently celebrates loud parties until the early hours of the morning, this disturbs the peace of the house in the long term. The landlord can therefore terminate the tenant without notice after an unsuccessful warning. This emerges from a decision by the District Court of Cologne.Read more

Higher Administrative Court Bremen, decision of 06.09.2013 - 1 B 104/13 -

Ban for motorcycle club "Mongols MC Bremen" legal

The Higher Administrative Court of Bremen has declared the club ban imposed by the city against the motorcycle club "Mongols MC Bremen" to be legal based on the current state of knowledge.Read more

Cologne district court, judgment of 06.10.2000 - 218 C 138/00 -

Withdrawal of the contractually guaranteed possibility of using the laundry room, dry storage room and garden justifies rent reduction of 17.6%

If the landlord withdraws the laundry room, the dry storage room and the garden despite the possibility of use being guaranteed in the rental agreement, the usability of the rented property is significantly restricted. The tenant can therefore reduce his rent by 17.6%. This emerges from a decision by the District Court of Cologne.Read more

Federal Social Court, judgment of September 10, 2013 - B 4 AS 12/13 R -

No entitlement to payment of rental fees for a cello as part of the education and participation package

A student is not entitled to have the job center cover the cost of renting a cello as part of the education and participation package. This was decided by the Federal Social Court and pointed out that in principle only needs due to extracurricular activities in the area of participation are covered - however, in the present case the cello was used exclusively for school purposes.Read more

Saarbrücken district court, judgment of May 2nd, 2013 - 36 C 306/12 (12) -

Damage to the bathtub caused by contractual use does not justify a claim for damages by the landlord

If the contractual use of a shower enclosure leads to damage to the bathtub, this does not justify a claim for damages by the landlord. This emerges from a decision by the district court of Saarbrücken.Read more

Cologne district court, judgment of January 26, 1996 - 218 C 131/95 -

The landlord has no claim to the release of the key to the rented garden

If the landlord has rented out his house together with the garden, he is not entitled to a garden key. A right to unimpeded access can only result from a separate agreement between the landlord and tenant. This emerges from a decision by the District Court of Cologne.Read more

Lüneburg Higher Administrative Court, decision of September 10, 2013 - 4 ME 204/13 -

OVG Lüneburg: Comparison of registration data for broadcasting fees is legal

The statutory one-off comparison of registration data based on the Interstate Broadcasting Agreement is legal. This was decided by the Lower Saxony Higher Administrative Court in Lüneburg on September 10th in summary proceedings.Read more

Jump to the judgments of 09/10/2013

| 09/12/2013

Wednesday, September 11th, 2013

Administrative Court Berlin, decision of 05.09.2013 - VG 14 K 350.11 V -

Are the Federal Foreign Office allowed to make discretionary decisions on visas for study purposes?

The Administrative Court of Berlin has asked the Court of Justice of the European Union for a preliminary ruling on the question of whether the so-called European Student Directive entitles foreign students to enter and stay for study purposes if they meet the requirements laid down there.Read more

Berlin Regional Court, judgment of April 5, 2012 - 27 O 455/11 -

Google must delete critical experience report on Google Maps after notification by those affected

In principle, Google is not obliged to delete negative testimonials from Google Maps. However, if an affected person draws Google's attention to a possible infringement of the law, there may be a right to deletion. This emerges from a decision of the district court of Berlin.Read more

Higher Regional Court of Stuttgart, decision of 05.09.2013 - 201 Kart 1/12 -

OLG Stuttgart on price abuse control of water prices of Energie Calw GmbH

The Higher Regional Court of Stuttgart has (again) overturned an order by the Baden-Württemberg Ministry for the Environment, Climate Protection and Energy (formerly the Ministry of Economics) which was involved in abuse proceedings under Sections 19, 32 et seq. of the Act against Restraints of Competition (GWB) against the Energie Calw GmbH as a water supply company.Read more

Higher Regional Court of Karlsruhe, judgment of August 20, 2013 - 12 U 41/13 -

Ban on the operation of a "whorehouse" and a ban on providing living quarters to "barmaids" and persons who commit "fornication" is inadmissible due to vagueness

The ban on operating a "whores' boarding house" on a property and the ban on making living quarters available to "barmaids" and persons who practice "fornication" is inadmissible due to vagueness. If such a ban is entered in the land register, the property owner has a right to erasure. This is the result of a decision by the Karlsruhe Higher Regional Court.Read more

Regional Court of Frankfurt am Main, judgment of September 10, 2013 - 3-09 O 96/13 -

No approval for converting the Suhrkamp family foundation into a stock corporation

The regional court in Frankfurt am Main has prohibited the Suhrkamp Familienstiftung from participating in the creditors' meeting of Suhrkamp Verlag GmbH & Co. KG to vote for the acceptance of an insolvency plan that provides for the conversion into a stock corporation.Read more

Berlin District Court, decision of December 27, 1990 - 65 T 92/90 -

Ordering a landlord to hand over a key is enforced with a penalty payment

If the landlord has been sentenced to hand over a front door key and the tenant cannot make a key without the landlord's permission because the landlord needs a certificate to do so, the sentence must be enforced by means of a fine. This emerges from a decision of the district court of Berlin.Read more

Administrative Court Frankfurt am Main, decision of September 10th, 2013 - 5 L 3380/13.F -

Ban order obviously illegal: NPD meeting may take place

The administrative court in Frankfurt am Main has restored the suspensive effect of the NPD federal party's objection to an order by the city of Hanau prohibiting an NPD meeting on September 11, 2013 on the market square in Hanau, with the proviso that that the demonstration can take place between 4 p.m. and 8 p.m. Read more

Aachen district court, judgment of July 2nd, 1985 - 12 C 16/85 -

Craftsman's appointment: Without timely notification of craftsman's work, the craftsmen commissioned by the landlord have no right of access

If the landlord does not inform his tenants in good time of the necessity and time of craftsman work, the craftsmen commissioned by the landlord have no right of access to the apartment. In this case, the tenant does not breach his contractual obligations if he refuses the craftsmen access to the apartment. This is the result of a decision by the district court of Aachen.Read more

Federal Administrative Court, judgment of September 11, 2013 - BVerwG 6 C 25.12 -

No entitlement for a Muslim student to be exempted from co-educational swimming lessons

Muslim schoolgirls regularly cannot ask for an exemption from coeducational swimming lessons if they have the option of wearing a so-called burkini. This was decided by the Federal Administrative Court.Read more

Federal Court of Justice, judgment of September 11, 2013 - IV ZR 17/13 and IV ZR 114/13 -

BGH on the calculation of the surrender value of life insurance contracts concluded up to the end of 2007 after termination

The Federal Court of Justice had to deal with the calculation of the surrender value of life insurance policies after termination and decided that the policyholder is initially entitled to the promised benefit in the event of premature contract termination. However, the agreed amount of the premium-free sum insured and the surrender value must not fall below a minimum amount, which is determined by half of the non-zillmered actuarial reserve calculated using the calculation bases for the premium calculation.Read more

Osnabrück district court, judgment of June 3, 1985 - 14 C 21/85 -

Rent reduction of 10% for noise and odor nuisance due to underground car park exit

If noise and smells emanate from an underground car park exit, especially at night, this justifies a rent reduction of 10%. The right to a reduction is also not excluded by the tenant's knowledge of the exit at the beginning of the rental contract. This emerges from a decision by the District Court of Osnabrück.Read more

Federal Administrative Court, judgment of September 11, 2013 - BVerwG 6 C 12.12 -

Exemption from teaching for religious reasons is only permitted in exceptional cases

If, from the point of view of individual pupils or their parents, the content of a school lesson violates relevant religious guidelines, this does not usually justify a claim for exemption from lessons. This was decided by the Federal Administrative Court.Read more

Dresden Higher Regional Court, judgment of February 19, 2013 - 14 U 1810/12 -

Google AdWords advertising "VorratsGmbH from 1450 €" is misleading and therefore anti-competitive

If the slogan "VorratsGmbH from 1450 €" is advertised as part of an AdWords ad on Google, this is misleading and therefore anti-competitive. Such a breach of competition justifies a claim for injunctive relief. This is the result of a decision by the Dresden Higher Regional Court.Read more

Remscheid district court, judgment of 19.07.2013 - 7 C 71/13 -

The right to repayment of the rental deposit expires after three years

The tenant's claim for repayment of the deposit made expires after three years. The claim becomes due when the tenancy ends and the landlord's obligation to consider or check the property has expired after 2-6 months. This emerges from a decision by the District Court of Remscheid.Read more

Jump to the judgments of 09/11/2013

| 09/13/2013

Thursday, September 12th, 2013

Reichsgericht, judgment of May 1, 1899 - Rep. 739/99 -

Reichsgericht for confiscation of electricity: Theft of electricity is not possible (RGSt 32, 165)

Theft of electricity is not possible, since electrical energy is not an item within the meaning of Section 242 of the Criminal Code. This was decided by the Supreme Court in 1899. Free-judgments.de published this decision in the series "Judgments that wrote legal history". Read more

Frankfurt am Main Labor Court, judgment of September 11, 2013 - 9 Ca 1551/13, 9 Ca 1552/13, 9 Ca 1553/13, 9 Ca 1554/13 -

Libor/Euribor scandal: Unfair dismissal lawsuits by Deutsche Bank AG employees successful

The labor court in Frankfurt am Main had to decide on four lawsuits against dismissal by employees of Deutsche Bank AG and upheld the lawsuits against the dismissals in all cases. Deutsche Bank AG announced the terminations in February 2013 in connection with the so-called Libor/Euribor scandal. The labor court declared the extraordinary dismissals to be ineffective, as did the alternative ordinary dismissals and sentenced Deutsche Bank AG to continue employing the employees and to pay back salaries.Read more

Lower Saxony-Bremen State Social Court, judgment of July 4, 2013 - L 10 R 579/10 -

In individual cases, people with statutory health insurance are also entitled to reimbursement of costs for hearing aids above the fixed amount

People with statutory health insurance can, under certain conditions, purchase hearing aids above the fixed amount at the expense of the health insurance companies. This was decided by the State Social Court of Lower Saxony-Bremen and made it clear that health insurance companies must ensure the best possible compensation for the hearing impairments of their insured persons.Read more

All judgments published in September 2013

Regional Court of Ellwangen, judgment of February 16, 1978 - III S 99/77 (11) -

Renovation work by a tenant must be accepted by the neighbors between 7 a.m. and 8 p.m

In principle, a tenant of an apartment must keep the room volume down after 10 p.m. However, additional noise caused by remodeling may only occur between 7 a.m. and 8 p.m. This is the result of a decision by the Ellwangen District Court.Read more

Administrative Court of Freiburg, decision of August 28, 2013 - A 5 K 1406/13 -

Afghan asylum seekers must not be deported to Hungary

The administrative court in Freiburg granted an Afghan asylum seeker provisional protection against deportation to Hungary until the final decision in the legal proceedings, because Hungary will not deport him to Afghanistan after the Hungarian asylum procedure has been carried out, but there are unlikely to be any decent opportunities for him to live in Hungary. Read more

Hamburg district court, judgment of November 30, 1981 - 37 b C 125/81 -

Landlord must give permission to install a door viewer

A peephole serves the purpose of living as part of the residential purpose. Therefore, the landlord is generally obliged to grant permission for the tenant to install a door viewer. This emerges from a decision by the District Court of Hamburg.Read more

Federal Labor Court, judgment of September 11, 2013 - 7 AZR 107/12 -

Municipalities cannot justify the limitation of employment contracts with an "experimentation clause".

The municipalities cannot justify the limitation of employment contracts with their employees with the "experimentation clause" of § 6 a SGB II alone. This results from a decision of the Federal Labor Court.Read more

Berlin District Court, judgment of December 19, 2012 - 67 S 363/12 -

Rent increase: No increase in living value through shared tenants' garden

If all residents of an apartment building have access to a garden, this cannot be taken into account in the context of a rent increase. Because a shared garden for tenants does not lead to an increase in residential value. This emerges from a decision of the district court of Berlin.Read more

Federal Administrative Court, judgment of September 12, 2013 - BVerwG 4 C 8.12 -

Permissibility of a brothel-like operation in Berlin still open

The Federal Administrative Court has ruled that the Berlin-Brandenburg Higher Administrative Court has to rule again on the admissibility of a brothel-like establishment ("Laufhaus") on the second to fifth floors of a seven-story building in Berlin-Schöneberg.Read more

Federal Administrative Court, judgment of September 12, 2013 - BVerwG 5 C 35.12 -

Parents who do not have a place in a kindergarten can claim reimbursement of costs for an alternative place in a private day-care center

A child whose legal entitlement to a kindergarten place is not fulfilled is entitled, under certain conditions, to the parents' expenses for accommodation in a private day-care center being reimbursed. This was decided by the Federal Administrative Court.Read more

Higher Administrative Court Berlin-Brandenburg, decision of September 12, 2013 - OVG 6 S 46.12 -

Journalist has no right to information under press law about the use of the non-cash benefits of the members of the German Bundestag

The Berlin-Brandenburg Higher Administrative Court has ruled that a journalist cannot request information about the use of the so-called non-cash benefits to which members of the Bundestag are entitled.Read more

Hessian State Labor Court, judgment of March 20, 2013 - 18 SaGa 175/13 -

In spite of being dismissed, the employee has a fundamental right to employment until the end of the notice period

If an employment contract stipulates that the employee can be unilaterally released from work by the employer after termination, this provision is invalid. In principle, an employee has a right to continued employment until the end of the notice period. This emerges from a decision by the Hessian State Labor Court.Read more

Jump to the judgments of 09/12/2013

| 09/16/2013

Friday, September 13th, 2013

Reichsgericht, judgment of October 20, 1896 - Rep. 2609/96 -

Reichsgericht: Theft of electrical energy is not possible due to a lack of physical fitness (RGSt 29, 111)

Since electrical energy lacks physicality, it does not represent an item within the meaning of Section 242 of the Criminal Code. A punishable theft of electricity is therefore not possible. This is the result of a decision by the Supreme Court published by gratis- judgements.de as part of the series "Judgments that have written legal history". Read more

Federal Administrative Court, judgment of September 12, 2013 - BVerwG 5 C 33.12 -

The Federal Police's right to medical care requires a legal basis

The Federal Administrative Court has ruled that there is no adequate legal basis for the legal claims of federal police officers in the event of illness or care (claims for medical care). The previous practice of granting medical care services essentially on the basis of administrative regulations - the medical care regulations for the Federal Police - is unconstitutional.Read more

Amtsgericht Hamburg-Altona, judgment of April 30, 2007 - 314 a C 72/06 -

Reduction in rent: visual defects due to spak formation and mold formation in silicone jointing as well as cracks in the bathroom tiles and in the washbasin

If a bathroom has visual defects due to spak and mold formation in the silicone joints in the bathtub and cracks in the tiles and the washbasin, a rent reduction of 3% is justified. This is the result of a decision by the district court of Hamburg-Altona.Read more

Cologne district court, decision of April 1, 1985 - 207 C 489/84 -

Injunctive relief: tenants are not allowed to shake any textiles out of the apartment window

If tenants shake their textiles out of the window at the hands of a neighbor and dirt gets into the apartment, this constitutes trespassing. Those affected can therefore sue for injunctive relief. This emerges from a decision by the District Court of Cologne.Read more

Federal Court of Justice, judgment of September 13, 2013 - V ZR 209/12 -

Purchasers of residential property are not liable for arrears of house payments from the previous owner

The Federal Court of Justice has decided that the prerogative of the homeowners' association for house money arrears in the foreclosure sale (§ 10 Para. 1 No. 2 ZVG) does not mean that a purchaser of residential property is liable for the house money debts of the previous owner.Read more

Aschaffenburg district court, judgment of August 26, 1999 - 2 S 391/98 -

Noise pollution caused by time bells from the church tower justifies a claim for injunctive relief

The time ringing of a church does not fall under the protection of the practice of religion. Therefore, if the time ringing represents a significant noise nuisance, a claim for injunctive relief may exist. This emerges from a decision by the District Court of Aschaffenburg.Read more

Cologne Regional Court, judgment of May 15, 2013 - 18 O 148/08 -

Traffic accident: fundamental contributory negligence on the part of the motorcyclist if he/she does not wear suitable protective clothing

If a motorcyclist is not wearing suitable protective clothing and a traffic accident occurs, they are generally to blame for the consequences of the accident. This does not apply if the violation of the duty of care was not the cause of the injuries. This emerges from a decision by the Regional Court of Cologne.Read more

Bavarian State Social Court, judgment of June 17, 2013 - L 7 AS 48/13 -

Remittance note from the Federal Employment Agency to Hartz IV recipients does not violate social secrecy

The transfer practice of the Federal Employment Agency does not violate social secrecy. Social data that must not be disclosed without authorization also includes the receipt of Hartz IV benefits. Neither the specified Federal Employment Agency as the referring agency nor the customer number specified indicates such a benefit. This emerges from a decision of the Bavarian State Social Court.Read more

Hamburg Regional Court, judgment of June 13, 2002 - 333 S 79/01 -

Tenant's liability for water damage due to defective washing machine connection

If a washing machine connection bursts due to its long-standing defective condition, the tenant is liable for the water damage. However, the landlord must accept contributory negligence if a plumber commissioned by him does not recognize the defective condition. This emerges from a decision by the district court of Hamburg.Read more

Hessian Administrative Court, judgment of September 12, 2013 - 8 C 1776/12.N -

Employment of workers in call centers on Sundays and public holidays not permitted

Employing workers in call centers on Sundays and public holidays is not permitted. This was decided by the Hessian Administrative Court and declared some provisions of the ordinance of the Hessian state government on the employment of employees on Sundays and public holidays (requirement trade ordinance) of October 12, 2011 to be invalid.Read more

Social Court Gießen, judgment of 09.07.2013 - S 22 AS 866/11 WA -

Hartz IV: Morbid underweight can lead to additional needs

The Gießen social court has sentenced the Wetterau job center to pay a severely underweight man from a community in Wetterau an additional requirement for expensive nutrition in addition to the Hartz IV standard benefit.Read more

Higher Regional Court Hamm, decision of July 26, 2013 - 15 W 248/13 -

Land register can be corrected in the event of inheritance even without a certificate of inheritance

The land register correction required after an inheritance can be made without a certificate of inheritance if the succession results from a public testament available to the land registry. The land registry office has to interpret the will and can only insist on the submission of a certificate of inheritance – which is subject to a fee – if the facts still require clarification. This was decided by the Higher Regional Court of Hamm, amending an interim order from the land registry at the Warendorf district court.Read more

Jump to the judgments of 09/13/2013

| 09/17/2013

Monday, September 16th, 2013

Federal Labor Court, judgment of September 12, 2013 - 6 AZR 907/11 -

No exclusion of unregistered claims through insolvency plan

“Latecomers” are generally not excluded with claims that were unknown when an insolvency plan was legally confirmed. The Insolvency Code does not provide that claims that were not filed in the insolvency proceedings can no longer be asserted against the insolvency debtor after the insolvency plan has been legally confirmed and the insolvency proceedings have been terminated. However, “latecomers” must first have their claims legally established by the trial court before they can enforce their claims against the debtor by means of an action for performance. This emerges from a decision of the Federal Labor Court.Read more

Munich District Court, judgment of November 21, 2012 - 322 C 17013/12 -

Burning car in underground car park: No claim for damages for damaged neighboring vehicle

If a vehicle parked in an underground car park catches fire and damages a car parked next to it, a claim for damages requires the fault of the owner of the vehicle that caught fire. A no-fault claim under Section 7 of the Road Traffic Act does not exist, since vehicles parked outside of public traffic areas are no longer "in operation" within the meaning of this provision. This is the result of a decision by the district court in Munich.Read more

Brandenburg Higher Regional Court, judgment of June 11, 2013 - 6 U 98/12 -

Vouchers received for a fee on the Internet may only be limited in time in exceptional cases

The Brandenburg Higher Regional Court decided that the limitation of a voucher purchased for nine euros to one year for presentation in a driving school for heavily discounted driving lessons does not constitute an unreasonable disadvantage for the consumer. However, the court also pointed out that a time limit for such vouchers offered for a fee is only permissible in exceptional cases.Read more

General Court of the European Union, judgment of September 16, 2013 - T-250/10 -

The court of the European Union decides in the legal dispute over the trademark "KNUT - DER POLARBÄR" in favor of the Berlin Zoo

The Court of Justice of the European Union has ruled that the Community Trademark Office has rightly refused registration of "KNUT – DER EISBÄR" as a Community trademark for the British company Knut IP Management Ltd due to the risk of confusion with the earlier German trademark KNUD.Read You more

Cologne district court, judgment of February 24, 1977 - 154 C 423/74 -

Cosmetic repairs: Tenant does not have to bear the cost of replacing the parquet floor

The renewal of a parquet floor due to the contractual wear and tear does not constitute a cosmetic repair. The tenant therefore does not have to bear the costs for it. This emerges from a decision by the District Court of Cologne.Read more

Higher Administrative Court of Rhineland-Palatinate, judgment of August 2nd, 2013 - 2 A 10002/13.OVG -

Product placement in the Sat.1 television program is not permitted

The presentation of a beer brand before and after the live broadcast of a football match on the Sat.1 television program was not permitted. This was decided by the Rhineland-Palatinate Higher Administrative Court.Read more

Paderborn district court, judgment of October 12, 1989 - 1 S 197/89 -

Husband beat up his wife's brazen lover: lover not entitled to compensation

A lover who has been beaten by his lover's husband is not entitled to compensation. This was decided by the district court of Paderborn.Read more

Hannover district court, judgment of May 24, 2002 - 1 S 1703/01 -

Missing tiles and an uncovered drainpipe in the kitchen justify a rent reduction of 10%

If there are no tiles in the kitchen and if a drainpipe is uncovered, there is a visual impairment as well as an impairment of the functional value. In such a case, the tenant is entitled to reduce his rent by 10%. This emerges from a decision by the district court in Hanover.Read more

Münster Finance Court, judgment of June 27, 2013 - 3 K 4315/12 E -

Double household management possible in the case of a second home close to the family home

Two households may also exist for professional reasons if the second home is closer to the family residence than to the place of work. This was decided by the Münster Finance Court.Read more

Wiesbaden Administrative Court, decision of September 16, 2013 - 7 L 919/13.WI -

NPD is not allowed to put up any election posters without proof of liability insurance

The Administrative Court of Wiesbaden has decided that the city of Wiesbaden may prohibit the NPD from putting up election posters as long as the party does not present proof of valid liability insurance.Read more

District Court of Wiesbaden, judgment of December 17, 1998 - 1 S 146/97 -

Compensation for lost keys only if a new locking system is installed

If the tenant loses his key, he only has to pay compensation if a new locking system is installed. The loss of the key alone does not justify a claim for damages. This is the result of a decision by the Wiesbaden Regional Court.Read more

District Court of Zerbst, judgment of March 31, 2003 - 6 C 614/02 -

Urinating in the basement justifies immediate termination by the tenant

If a tenant repeatedly urinates in the basement, this justifies his termination without notice. If his responsibility comes to light through secret video surveillance, this is permissible. This emerges from a decision by the District Court of Zerbst.Read more

Jump to the judgments of 09/16/2013

| 09/18/2013

Tuesday, September 17th, 2013

Münster Finance Court, judgment of 06/12/2013 - 10 K 1769/11 E -

Full deduction of business expenses allowed for a tax consultant's trips to his main client

The Münster Finance Court has ruled that trips by a self-employed tax consultant to his main client are not subject to the limited deduction of business expenses for trips between home and business premises.Read more

Hessian Finance Court, judgment of July 2nd, 2013 - 13 K 985/13 -

Expert fees for the valuation of a property in divorce proceedings are not deductible as extraordinary expenses

Appraisal costs for the valuation of a property, which are incurred as part of the divorce proceedings due to the provision of information and the payment of gains, are not deductible as extraordinary expenses under Section 33 of the Income Tax Act (EStG).Read more

Düsseldorf Higher Regional Court, judgment of October 16, 2003 - I-10 U 46/03 -

The landlord is responsible for sanding the parquet floor

If a parquet floor shows signs of damage due to contractual wear and tear, the tenant is not responsible for this. In addition, the tenant's obligation to renovate the parquet floor is inadmissible due to a cosmetic repair clause. This emerges from a decision by the Düsseldorf Higher Regional Court.Read more

Berlin District Court, judgment of August 15, 2013 - 16 O 558/11 -

Berlin Regional Court imposes a fine of EUR 100,000 on Axel Springer AG for prohibited advertising strategies

The Berlin Regional Court has imposed a fine of EUR 100,000 on Axel Springer AG because the company had repeatedly asked customers who had canceled their subscription to contact them, even though the company had been prohibited from doing so by the court. The court complained of continued violation of the cease-and-desist obligation contained in the judgment. The fine will benefit the Berlin budget.Read more

Federal Court of Justice, judgment of August 8, 1969 - 2 StR 171/69 -

Laepple verdict: sit-in on tram tracks: Psychologically mediated coercion can represent violence in the sense of coercion

If a tram driver is prevented from continuing his journey by a sit-in, then there is a use of force mediated by psychological coercion in the sense of coercion (§ 240 StGB). This emerges from a decision of the Federal Court of Justice in 1969.Read more

Higher Administrative Court of North Rhine-Westphalia, judgment of September 17, 2013 - 13 A 2448/12, 13 A 2541/12 and 13 A 1100/12 -

E-cigarettes are not medicines

The Higher Administrative Court of North Rhine-Westphalia has decided in three judgments that liquids containing nicotine (so-called liquids) that are vaporized and inhaled using e-cigarettes are not medicinal products; accordingly, the e-cigarettes themselves are not medical devices.Read more

District Court Halle (Saale), judgment of December 3, 2009 - 93 C 2078/09 -

Fire brigade breaks open apartment door: sleeping tenant does not have to bear the costs

If the fire brigade breaks open an apartment door because the sleeping tenant did not answer the bell, they do not have to bear the cost of replacing the damaged door. This is the result of a decision by the district court in Halle (Saale).Read more

Federal Court of Justice, judgment of September 17, 2013 - X ZR 123/10 -

Passengers are entitled to compensation if they reach their final destination with a delay of at least three hours

The Federal Court of Justice had to deal again with compensation claims by air passengers according to Art. 7 Para. 1 Letter c* of the Air Passenger Rights Ordinance (Regulation (EC) No. 261/2004) due to a flight delay and decided that air passengers who are traveling individually If you reach your final destination with a delay of at least three hours, you are entitled to compensation under Art. 7, provided that this flight falls within the scope of the Air Passenger Rights Ordinance.Read more

Büdingen district court, judgment of August 1, 1997 - 20 C 372/97 -

Crack in toilet bowl justifies rent reduction of 10%

If the toilet bowl has a crack, this indicates a defect in the rented property. The tenant is therefore entitled to reduce his rent by 10%. This emerges from a decision by the district court of Büdingen.Read more

Jump to the judgments of 09/17/2013

| 09/19/2013

Wednesday, September 18th, 2013

Federal Court of Justice, judgment of September 17, 2013 - XI ZR 332/12 -

BGH rejects claims for damages for Lehman investors

In another proceeding, the Federal Court of Justice had to deal again with an investor's claim for damages in connection with the purchase of certificates from the Dutch subsidiary of the US investment bank Lehman Brothers Holdings Inc. The lawsuit aimed at repaying the investment amount was unsuccessful because the court decided that the advising bank does not have to inform the customer about their profit margin or that the certificate is purchased by way of a proprietary transaction (purchase agreement).Read more

District Court of Wuppertal, judgment of July 22, 1991 - 90 C 144/91 -

Unilateral withdrawal of the right to use dry storage by landlords is not permitted

The landlord is generally not entitled to unilaterally withdraw the tenant's right to use a dry storage facility. Something else applies if he offers an equivalent replacement room. This emerges from a decision by the District Court of Wuppertal.Read more

Federal Constitutional Court, decision of September 17, 2013 - 2 BvE 4/13 -

Emergency application by the NPD against the Federal President rejected

The Federal Constitutional Court has rejected an application by the NPD to issue a temporary injunction against the Federal President. With the urgent application, the NPD wanted to ensure that the Federal President refrains from making statements that would interfere with the election campaign to their detriment. In the main, the Senate will decide on the organ dispute proceedings at a later date.Read more

Hamburg Regional Court, judgment of July 5, 2001 - 333 S 13/01 -

Large construction site in the immediate vicinity justifies a significant reduction in rent

If there is a significant noise, odor and dust nuisance from a major construction site in the immediate vicinity and there is restricted incidence of light and view, this justifies a rent reduction of 35%. This emerges from a decision by the district court of Hamburg.Read more

Saxony-Anhalt State Social Court, decision of March 15, 2013 - L 5 AS 606/12 B -

No legal aid for claims of unconstitutional rule rates

Anyone who sues against the approved benefits under SGB II solely on the grounds that the standard rates for adults are unconstitutional has no right to legal aid. This was decided by the State Social Court of Saxony-Anhalt.Read more

Hamburg district court, judgment of April 24, 1986 - 22 b C 708/85 -

A fare evasion by a minor does not necessarily lead to the payment of an increased fare

If the parents agree to their underage child traveling on public transport only on condition that a ticket is purchased, a fare evasion by the child does not entitle the child to an increased fare. This emerges from a decision by the District Court of Hamburg.Read more

Oldenburg Higher Regional Court, decision of September 3, 2013 - 1 Ausl. 132/12 -

OLG Oldenburg rejects order for extradition detention for a Romanian national

The 1st Criminal Division of the Oldenburg Higher Regional Court has rejected an application by the Oldenburg Public Prosecutor's Office to order a Romanian national to be held in custody pending extradition. According to the court, the extradition order was contradicted by the fact that the person sentenced in absentia had not received a summons to the main hearing and had no other official knowledge of the criminal hearing taking place in Romania.Read more

Higher Regional Court Hamm, judgment of August 12, 2013 - 3 U 12/12 -

Hospital and chief physician are liable for fatal brainstem infarction that was treated too late

The Hamm Higher Regional Court has ruled that a hospital and the treating chief physician are liable because they failed to consult a neurologist in good time to assess the imaging of a computed tomography due to treatment errors. For this reason, a massive brainstem infarction in a patient (closure of the basilar artery) was recognized too late, the patient suffered severe paralysis (locked-in syndrome), as a result of which she died months later. The Hamm Higher Regional Court awarded the deceased patient's son and heir compensation for pain and suffering in the amount of 50,000 euros. Read more

Federal Fiscal Court, judgment of July 23, 2013 - VIII R 32/11 -

Differing information in tax returns can mean a careless tax evasion

If the taxpayer submits two tax returns to the tax office at the same time, which relate to the profit of the same year, but one of which only reflects half of the profit, this can constitute an administrative offense in the form of a careless tax reduction. This was decided by the Federal Fiscal Court.Read more

Higher Regional Court Hamm, decision of April 2nd, 2013 - 5 RBs 33/13 -

Driver identification based on speed camera photo: Verdict must include information on image quality, sharpness, content and several characteristic features of the subject

If identification of a driver based on a speed camera photo is required for a fine to be imposed, the judgment must always contain information on the image quality, sharpness and content. In addition, the judge must precisely describe the characteristic features of the person depicted. Alternatively, it is possible to refer to the speed camera photo in the file in accordance with Section 276 Paragraph 1 Clause 3 StPO and Section 71 Paragraph 1 OWiG. This emerges from a decision by the Hamburg Higher Regional Court.Read more

Cologne district court, judgment of August 22, 2012 - 25 C 15128/11 -

Commercial information center: Düsseldorf district court denies contractual relationship due to return of the signed form

Since the commercial information center wants to use its forms to conceal the fact that it is an offer for a contract that is subject to a fee, the district court in Düsseldorf denied the existence of a contract by returning the signed form.Read more

Federal Court of Justice, decision of April 9, 2013 - VIII ZR 245/12 -

The garage rental contract can be terminated independently of the living space rental contract

If two separate rental contracts are concluded for a garage and an apartment, both are legally to be regarded as independent and can be terminated separately from each other. This emerges from a decision of the Federal Court of Justice.Read more

Jump to the judgments of 09/18/2013

| 09/20/2013

Thursday, September 19th, 2013

Hamburg Labor Court, judgment of September 18, 2013 - 27 Ca 207/13 -

Extraordinary termination of a police employee after publication of a skull and crossbones photo on Facebook is invalid

The Hamburg Labor Court has declared the extraordinary dismissal of a police employee who had photographed a skull and crossbones wearing a police hat in front of a Jewish community school and published it on his Facebook page as invalid. The court found that a skull does not necessarily have to be an expression of a right-wing extremist attitude and that the police could not sufficiently prove such an attitude on the part of the employee.Read more

Münster Administrative Court, judgment of 08.07.2013 - 10 K 3093/12 -

Stalking disqualification justified

If a driver suffers from a schizophrenic illness and this leads to stalking, this constitutes a lack of suitability for driving motor vehicles. As a result, his license may be revoked. This is the result of a decision by the Münster Administrative Court.Read more

Federal Fiscal Court, judgment of 09.07.2013 - IX R 43/11 -

BFH on the acquisition costs for free purchases

Costs for the settlement of an estate can lead to ancillary acquisition costs for rented properties belonging to the estate, which are deductible as part of depreciation allowances (AfA). This was decided by the Federal Fiscal Court.Read more

District Court of Münster, judgment of 03/08/2011 - 3 C 4334/10 -

Messie syndrome: Landlords can terminate "Messie" without notice if the apartment is very dirty and there is an odor

If there is a significant odor nuisance due to a heavily soiled and untidy apartment, the tenant of the apartment disturbs the peace of the house in the long term. Termination without notice after an unsuccessful warning is therefore permissible. This emerges from a decision by the District Court of Münster.Read more

Oldenburg district court, judgment of August 20, 2013 - 16 S 702/12 -

Validity period of six months for a voucher is not permitted

The district court of Oldenburg had to deal with the statute of limitations for claims from vouchers and decided that a period of validity of just six months is invalid. At the same time, however, the court also pointed out that a voucher cannot be recognized as a so-called bearer bond, for which the limitation period is 30 years.Read more

Cologne district court, judgment of April 24, 1995 - 206 C 251/94 -

A lack of hot water supply between 10 p.m. and 7 a.m. justifies a rent reduction of 7.5%

If a tenant only has cold water available between 10 p.m. and 7 a.m., this constitutes a defect in the rented property. The tenant is then entitled to reduce his rent by 7.5%. This emerges from a decision by the District Court of Cologne.Read more

Munich Administrative Court, judgment of September 18, 2013 - M 18 K 13.2256 -

30-minute drive to the day-care center from home or work is reasonable for parents

The administrative court in Munich has dismissed the lawsuit filed by an almost 13-month-old child for a place in a municipal or non-profit day-care center and explained that a place in a day-care center that is within half an hour of the home and workplace of the Parents can be reached, is reasonable.Read more

Federal Court of Justice, judgment of September 18, 2013 - 2 StR 535/12 -

Federal Court of Justice on criminal liability for placing medicinal products on the market for doping purposes in sport

The Federal Court of Justice had to decide on the appeals of two defendants against their conviction for selling anabolic steroids to bodybuilders and strength athletes and pointed out that the use of anabolic steroids to increase performance in bodybuilding should also be regarded as doping in sport.Read more

Hagen district court, decision of August 1st, 2012 - 7 S 31/12 -

Insurance cover after a traffic accident: Failure to observe the tunnel height constitutes gross negligence

If a truck driver crashes his vehicle into a tunnel because he is not paying attention to the clearance height, this is gross negligence. In such a case, the insurance company may reduce its benefit by 50%. This emerges from a decision by the district court in Hagen.Read more

Federal Court of Justice, judgment of September 18, 2013 - VIII ZR 297/12 -

Federal Court of Justice on the assessment of evidence when concluding a rental contract between close relatives that is disadvantageous for the purchaser in the foreclosure sale

In a decision, the Federal Court of Justice dealt with the requirements for proof of an alleged rental agreement that is held up to the buyer of an apartment by a relative of the former owner.Read more

Hessian State Labor Court, judgment of January 28, 2013 - 21 Sa 715/12 -

Crudely insulting statements about employers in an open Facebook group justify the termination of the employee without notice

If an employee makes statements such as "I'm about to throw up" and "anti-social partners" in an open Facebook group, this constitutes a gross insult and justifies the employee's immediate dismissal. This is the result of a decision by the Hessian State Labor Court.Read more

Jump to the judgments of 09/19/2013

| 09/23/2013

Friday, September 20th, 2013

Federal Fiscal Court, judgment of July 4th, 2013 - V R 8/10 -

Acquisition of a portfolio of defaulted receivables is not a taxable payment made by the buyer of the receivables to the seller

The Federal Fiscal Court had to decide whether a foreign company that buys a portfolio of non-performing receivables from a major bank in a single transaction is providing the seller bank with a service that is subject to sales tax, for which the special provision of Section 13 b of the Sales Tax Act applies the bank has to pay the sales tax to the tax office and whether the seller bank provides services to the buyer of the receivables in the period between the conclusion of the contract and the cut-off date.Read more

District Court of Spandau, judgment of December 20, 2012 - 6 C 546/12 -

Theft of the house and apartment key: Tenants are not obliged to pay for the replacement of the locks if they are not at fault

If a tenant's house or apartment key is stolen and the locks are therefore replaced, the tenant only has to bear the costs if he is responsible for the theft. A clause in the rental agreement, according to which he generally has to bear the costs, is ineffective. This is the result of a decision by the Spandau district court. Read more

Federal Court of Justice, judgment of September 20, 2013 - III ZR 405/12; III ZR 406/12; III ZR 407/12; III ZR 408/12; -

BGH: Ex-preventive detainees are entitled to compensation

Based on the case law of the European Court of Human Rights and the Federal Constitutional Court, the Federal Court of Justice has ruled that the state of Baden-Württemberg must pay damages to four criminals for subsequently extended preventive detention.Read more

Federal Administrative Court, judgment of September 19, 2013 - BVerwG 3 C 15.12 -

The sale of magnetic jewelery in the pharmacy is not permitted

Magnetic jewellery, i.e. pieces of jewelery with magnets, is not one of the goods usually found in pharmacies and may therefore not be offered or sold in pharmacies. This was decided by the Federal Administrative Court.Read more

Higher Administrative Court Berlin-Brandenburg, judgment of September 19, 2013 - OVG 11 A 4.13 -

BER Airport: Nocturnal flights over Blankenfelde-Mahlow are prohibited

The Higher Administrative Court of Berlin-Brandenburg ruled on the lawsuit filed by the municipality of Blankenfelde-Mahlow that the fixed flight routes of the new capital airport BER via the town center of the municipality are legal for the day, but that there are cheaper route alternatives for the night from the point of view of noise protection.Read more

District Court of Bad Vilbel, judgment of September 20, 1996 - 3 b C 52/96 -

Rent reduction of 60% due to moisture in the apartment

If there is a significant health risk due to moisture in the apartment and there is visible moisture damage, the tenant is entitled to reduce his rent by 60%. This is the result of a decision by the district court of Bad Vilbel.Read more

Federal Constitutional Court, decision of April 9, 1994 - 2 BvL 43/92; 2 BvL 51/92; 2 BvL 63/92; 2 BvL 64/92; 2 BvL 70/92; 2 BvL 80/92; 2 BvR 2031/92 -

Cannabis decision: Federal Constitutional Court denies right to intoxication

Purchasing and possessing even small quantities of cannabis products, which is punishable by imprisonment, is not unconstitutional. This emerges from a decision of the Federal Constitutional Court. In addition, the Federal Constitutional Court emphasized that there is no right to intoxication. This decision of the Federal Constitutional Court became known as the so-called "cannabis decision" (sometimes also: "hashish decision"). Free-judgments.de publishes the cannabis decision in the series "Judgments that have written legal history".Read more

Berlin District Court, decision of September 17, 2013 - 27 O 576/13 -

Young pirates must refrain from making claims about the Alternative for Germany party

The district court of Berlin awarded the association "Junge Piraten e.V." at the request of the party "Alternative für Deutschland e.V." (AfD) prohibited by injunction from making or disseminating claims about them contained in a flyer available over the internet.Read more

Stuttgart Administrative Court, decision of September 9, 2013 - 12 K 3195/13 -

4-year-old child is entitled to a daycare place in the neighboring community

The city of Gerlingen must continue to provide a daycare place for a 4-year-old child who lives in a neighboring municipality. This is the result of a decision by the Stuttgart Administrative Court.Read more

Regional Court of Karlsruhe, judgment of August 20, 2013 - 9 O 95/12 -

Fully comprehensive insurance can cover vehicle damage due to a blown tyre

If your tire bursts on the motorway because of an object that has driven in, and you have comprehensive insurance, you can claim compensation for your vehicle damage caused by the burst tire from your comprehensive insurance. The insurance cover does not lapse due to the existence of operational damage. This emerges from a decision by the Regional Court of Karlsruhe.Read more

Jump to the judgments of 09/20/2013

| 09/24/2013

Monday, September 23rd, 2013

Social Court Berlin, decision of September 19, 2013 - S 89 KR 1636/13 -

The AOK hospital navigator may remain online for the time being

For the time being, the AOK remains entitled to use the so-called hospital navigator to provide information about the quality of treatment in hospitals on the Internet. The question of the extent to which it is entitled to do so, while open, is too complex to be decided in the interlocutory proceedings. A hospital that has waited three years before objecting to the publication of the quality comparison can therefore be expected to wait for a thorough examination of the disputed issue in main court proceedings. This emerges from a decision by the Berlin Social Court.Read more

District Court of Münster, judgment of August 16, 2012 - 02 O 160/12 -

Parental supervision: Eight-year-old child may ride a bicycle unsupervised

If you let your child ride a bike unsupervised, you are not necessarily liable for an accident caused by the child. Parents are not obliged to supervise if an eight-year-old child has been able to ride a bicycle safely for a long time and has been informed of the traffic rules. This emerges from a decision by the district court of Münster.Read more

Oldenburg Higher Regional Court, judgment of May 11, 2013 - 6 U 64/12 -

Half liability after a grazing accident at a motorway construction site

The parties involved in a so-called grazing accident while overtaking in a motorway construction site are each half liable for the damage that has occurred. This was decided by the Higher Regional Court of Oldenburg.Read more

Cologne Higher Regional Court, decision of March 11, 2013 - 2 Wx 64/13 -

Death of the spouse during the divorce proceedings: Exclusion of the spouse's inheritance right because of consent to the divorce

If a spouse dies during the ongoing divorce proceedings, the surviving spouse does not become the heir if the requirements for divorce were met and consent to the divorce was already given (§ 1933 BGB). No special form is required to declare consent. Rather, the spouse can declare this himself in a letter (§§ 134 Para. 1, 114 Para. 4 No. 3 FamFG). This emerges from a decision by the Cologne Higher Regional Court.Read more

Schleswig-Holstein Higher Regional Court, judgment of September 19, 2013 - 5 U 34/13 -

No compensation for "exchange recommendation" by the bank for securities

If a bank advises a customer to reallocate securities within a securities account, the associated sell and buy recommendation with regard to the investment object must only be "reasonable" from a retrospective perspective, taking into account the objective circumstances. The investor bears the risk that an investment decision will later turn out to be wrong. This was decided by the Schleswig-Holstein Higher Regional Court.Read more

Lower Saxony Higher Administrative Court, decision of September 19, 2013 - 5 ME 153/13 and others -

Filling promotion posts as part-time positions is temporarily prohibited

The Lower Saxony Higher Administrative Court has dismissed complaints by the Lüneburg Police Headquarters against previous decisions by the Lüneburg Administrative Court prohibiting the Police Headquarters from assigning promotion posts rated at A 11 to several police chief commissioners until the final conclusion of the respective lawsuits.Read more

Schoeneberg district court, judgment of April 10, 2008 - 109 C 256/07 -

Use of drying devices justifies rent reduction of 100%

If drying equipment causes a noise level of 50 dB (A) in an apartment, staying in the apartment is unreasonable. The tenant can therefore reduce his rent by 100%. In addition, mold growth in the bathroom, moisture and broken laminate in the hallway and a lack of tiling on the balcony justify a rent reduction of 33% in total. This emerges from a decision by the district court of Schöneberg.Read more

Court of Justice of the European Union, judgment of 09/30/2013 - C-435/11 -

A company's business practices, even when exercising professional due diligence, can be unfair and misleading

A commercial practice that misleads the consumer is unfair and prohibited; without having to prove that it is contrary to the requirements of professional diligence. This emerges from a decision by the Court of Justice of the European Union.Read more

Munich district court, judgment of April 3, 2012 - 161 C 19021/11 -

The copyright law protects not only the entire work, but also small parts of it. If fragments of a work are offered for download via peer-to-peer networks, the unauthorized provider is liable for damages. This was decided by the District Court of Munich.Read more

Federal Court of Justice, judgment of June 20, 2013 - IX ZR 310/12 -

Credit from the utility bill of an ALG II tenant cannot be attached

If a tenant receives a credit due to a utility bill, this cannot be attached if the tenant draws ALG II. Because there is a risk that there will be cuts in social benefits. This emerges from a decision of the Federal Court of Justice.Read more

Federal Constitutional Court, decision of June 19, 2013 - 1 BvR 2253/09 -

BVerfG: School attendance is constitutional

The duty of a student to go to the school in whose school district he lives (so-called school district duty) is compatible with the Basic Law. There is an exception to this obligation if a school has a special pedagogical concept. This emerges from a decision of the Federal Constitutional Court.Read more

Jump to the judgments of 09/23/2013

| 09/25/2013

Tuesday, September 24th, 2013

Federal Court of Justice, judgment of September 24, 2013 - KZR 62/11 -

Federal Court of Justice on claims for damages against the Brandenburg state lottery company

The Federal Court of Justice had to decide on a claim for damages by a service company against the Landeslottogesellschaft Brandenburg after Lotto Brandenburg stopped selling online.Read more

Higher Administrative Court of North Rhine-Westphalia, judgment of March 21, 2013 - 16 A 2006/12 -

THC concentration of 1.0 ng/ml in the blood explains a lack of separation between consumption of cannabis and driving a car

If a THC concentration of 1.0 ng/ml is detected in the blood of a driver, his driving license must be revoked. Because such a THC value justifies a lack of separation between cannabis consumption and driving. This emerges from a decision by the Higher Administrative Court of North Rhine-Westphalia.Read more

Administrative Court of Hanover, judgment of September 23, 2013 - 10 A 2028/11 -

LKA must delete DNA samples from the analysis file of the Federal Criminal Police Office

The Administrative Court of Hanover has upheld a citizen's lawsuit for the deletion of the data record (DNA identification pattern) stored about him in the DNA analysis file of the Federal Criminal Police Office (BKA).Read more

Court of Justice of the European Union, judgment of 24.09.2013 - C-221/11 -

Turkish nationals require an entry visa to use services in an EU member state

Turkish nationals are not allowed to enter the territory of a Member State of the EU in order to receive a service there without a visa. The Additional Protocol to the EEC-Turkey Association Agreement does not prevent a Member State from introducing a visa requirement for the use of services after its entry into force. This emerges from a decision by the Court of Justice of the European Union.Read more

Berlin District Court, judgment of May 21, 2010 - 65 S 540/09 -

No general right of reduction due to bird droppings on the balcony

If the balcony of the rental apartment gets dirty with bird droppings, this does not necessarily justify a right to a reduction. A right to a reduction can only exist in the event of completely disproportionate pollution. In addition, feeding birds is generally socially acceptable and therefore not in breach of duty. This emerges from a decision of the district court of Berlin.Read more

Cottbus Administrative Court, decision of September 19, 2013 - VG 1 L 219/13 -

Flughafen Berlin-Brandenburg GmbH has to disclose some of the internal information of the supervisory board

The Administrative Court of Cottbus has decided that Flughafen Berlin-Brandenburg GmbH must provide a journalist with information about when the members of the supervisory board were informed about the delays in the construction of Berlin-Brandenburg Airport.Read more

Higher Administrative Court Berlin-Brandenburg, decision of September 18, 2013 - OVG 3 S 52.13 -

Segregated physical education classes allowed at Berlin schools

The Berlin-Brandenburg Higher Administrative Court has upheld a decision by the Berlin Administrative Court according to which pupils at Berlin schools are not entitled to co-educational physical education classes.Read more

Münster Finance Court, court order dated June 12, 2013 - 3 K 204/11 Erb -

The five-year retention period continues after the death of the heir for legal successors

The Münster Finance Court has decided that the preferential treatment pursuant to § 13a ErbStG in the case of a sale of shares in a corporation by the legal successor of the deceased heir must be retrospectively denied within the five-year retention period.Read more

Federal Court of Justice, judgment of June 19, 2013 - VIII ZR 183/12 -

Without concrete indications of accident damage, there is no obligation for used car dealers to view the "repair history"

A used car dealer is not required to look at the vehicle's "repair history" unless there is concrete evidence of accidental damage. In principle, he is only obliged to carry out a "visual inspection". This emerges from a decision of the Federal Court of Justice.Read more

Regional Court of Krefeld, judgment of 07.11.2012 - 2 S 23/12 -

Deviations from the actual and contractual area of an apartment justify a defect in the rented property

If the area of a rented apartment deviates from the contractually guaranteed area, then there is a defect in the rented property. This entitles you to a rent reduction. This emerges from a decision by the district court of Krefeld.Read more

Jump to the judgments of 09/24/2013

| 09/26/2013

Wednesday, September 25th, 2013

Hessian State Social Court, judgment of September 17, 2013 - L 3 U 33/11 -

Private telephoning during working hours is not covered by statutory accident insurance

Employees are legally insured against accidents during their work. However, personal or self-financial activities - such as eating or shopping - can interrupt the insured activity and thus the accident insurance cover. This also applies to private phone calls during working hours, provided that the insured activity is not only slightly interrupted. This was decided by the Hessian State Social Court.Read more

Mainz Regional Labor Court, judgment of February 21, 2013 - 2 Sa 386/12 -

Posting on Facebook: The obligation to maintain confidentiality under the employment contract only applies if there is a legitimate interest in confidentiality

A regulation in the employment contract according to which the employee has to remain silent about internal company processes is only effective if the employer has a legitimate interest in confidentiality. In addition, the right to freedom of expression must be observed. This is the result of a decision by the Regional Labor Court in Mainz.Read more

Minden Administrative Court, judgment of September 13, 2013 - 8 K 1623/12 -

Devout Baptist not eligible for exemption from sex education class

The administrative court in Minden has dismissed the lawsuit brought by devout Baptists who wanted their daughter to be exempted from sex education in fourth grade.Read more

Federal Court of Justice, judgment of September 24, 2013 - X ZR 160/12 and X ZR 129/12 -

Bird strike constitutes exceptional circumstances within the meaning of the Air Passenger Rights Ordinance

In two cases in which a flight was significantly delayed or canceled due to turbine damage caused by bird strikes, the Federal Court of Justice ruled on compensation claims by air travelers under the Air Passenger Rights Ordinance (Regulation (EC) No. 261/2004).Read more

Hamm District Labor Court, judgment of March 14, 2013 - 16 Sa 763/12 -

Holiday and time off: Immediate time off for the employee who has been dismissed without notice, taking holiday entitlements into account, is not permitted

If an employee is given ordinary notice without notice and alternatively, the employer may not release the employee from his work obligation, taking into account outstanding holiday entitlements, in the event that the termination without notice is ineffective. This means that the employer does not fulfill the holiday entitlement. The employee is therefore entitled to vacation pay. This is the result of a decision by the Hamm Regional Labor Court. Read more

Koblenz Administrative Court, decision of August 21, 2013 - 5 K 832/12.KO -

Officials of the Federal Police authorized to enforce a ban

The forced enforcement of a ban by the Federal Police is lawful in the event of intentional disruption of the officials in the performance of the police order. This was decided by the administrative court in Koblenz.Read more

Celle Higher Regional Court, decision of August 13, 2013 - 2 W 176/13 -

Reimbursement of a lawyer's air travel expenses for economy class only

Flight travel expenses for an outside lawyer to a court hearing may only be reimbursable for use of economy class. In principle, however, travel expenses of a lawyer commissioned from outside are not reimbursable. This emerges from a decision by the Celle Higher Regional Court.Read more

Hamm Higher Regional Court, decision of August 30, 2013 - 3 UF 133/13 -

Endangerment of the child's welfare: the child's mother may not have her six-year-old son circumcised (§ 1631 d BGB)

A child's mother is currently not allowed to have her six-year-old son circumcised. This was decided by the Hamm Higher Regional Court, confirming the first-instance decision of the Dortmund district court and specifying the legal requirements of Section 1631 d of the German Civil Code (BGB) for circumcision without medical indication.Read more

District Court of Zweibrücken, judgment of June 26, 2013 - 2 C 71/13 -

"No problem" if you move out earlier: the landlord is not entitled to rent payments if you move out before the notice period has expired

If a landlord informs in connection with a termination of the tenancy that moving out before the end of the period of notice is "no problem" for him, this entitles the tenant to move out early and waive the obligation to pay the rent. This emerges from a decision by the District Court of Zweibrücken.Read more

Federal Court of Justice, judgment of September 25, 2013 - VIII ZR 206/12 -

The used car guarantee must not be made contractually dependent on maintenance in an authorized workshop

If a customer has paid for a used car guarantee, this guarantee must not be coupled with an obligation to have the car serviced or inspected only in authorized workshops. This was decided by the Federal Court of Justice.Read more

Herne district court, judgment of 07/11/2013 - 20 C 67/13 -

Setting up a narrow shoe cabinet in the stairwell is part of the contractual use

As long as a shoe cabinet does not pose a hindrance or nuisance, it may be placed in the stairwell. This is fundamentally included in the contractual use of the rental property. This is the result of a decision by the district court in Herne. Read more

Jump to the judgments of 09/25/2013

| 09/27/2013

Thursday, September 26th, 2013

Munich I Regional Court, judgment of September 19, 2013 - 29 O 18909/12 -

Discount payments to private health insurance companies according to the Drug Discount Act constitutionally

The District Court of Munich I has ruled that discount payments by a drug manufacturer to a private health insurance company are constitutional under the Drug Discount Act.Read more

Regional Court of Braunschweig, judgment of 07.02.1985 - 4 O 524/84 -

When you buy a house, you also buy the heating oil

Since the heating oil in a tank is considered an accessory (§ 97 BGB) of the property, it is bought with the purchase of the property. This emerges from a decision by the Regional Court of Braunschweig.Read more

Stuttgart Higher Regional Court, decision of September 19, 2013 - 2 Ss 429/13 -

Police officer rightly convicted of negligent bodily harm for mistakenly attacking with a baton at the Stuttgart 21 demo

The appeal of a police officer because of a fine due to negligent bodily harm must be dismissed, since there is no legal error in the sentencing. This emerges from a decision by the Higher Regional Court of Stuttgart. Read more

Federal Court of Justice, judgment of September 25, 2013 - VIII ZR 280/12 -

The landlord may also claim a rent increase later than specified in Section 558 b of the German Civil Code

The Federal Court of Justice had to deal with the effects of a rent increase requested at a later date than that specified in Section 558 b BGB* on the tenant's special right of termination under Section 561 (1) BGB** and decided that the landlord would not prevent it is to only assert a rent increase with effect at a later point in time than the point in time resulting from § 558 a BGB. The rights of the tenant with regard to the special right of termination according to § 561 BGB are not inadmissibly curtailed by this.Read more

District Court of Spandau, judgment of October 1, 2012 - 6 C 281/12 -

Tenant obliged to remove a pavilion

If a tenant sets up a pavilion on his terrace, this constitutes a breach of contract. The landlord can therefore demand that it be removed. He is also not obliged to agree to the erection of a pavilion. This is the result of a decision by the Spandau district court. Read more

Federal Labor Court, judgment of September 25, 2013 - 10 AZR 270/12 -

Employers can oblige employees to use an electronic signature card

An employer can require his employee to apply for a qualified electronic signature and use an electronic signature card if this is necessary for the performance of the work and is reasonable for the employee. This was decided by the Federal Labor Court.Read more

Regional Court of Cologne, judgment of January 21, 1993 - 1 S 365/92 -

"You can kiss my ass, you crazy asshole": Massive insult to landlord justifies immediate termination

If a tenant massively insults his landlord and this is not due to a momentary loss of control, the tenant can be terminated without notice. This emerges from a decision by the Regional Court of Cologne.Read more

Court of Justice of the European Union, judgment of 26.09.2013 - C-509/11 -

Rail passengers are also entitled to compensation in the event of significant delays due to force majeure

In the event of significant delays, rail passengers are also entitled to a partial fare refund if the delay is due to force majeure. The carrier cannot evade its obligation to reimburse by invoking rules of international law, according to which it is exempt from the obligation to compensate for damage caused by a delay in the event of force majeure. This was decided by the Court of Justice of the European Union.Read more

Federal Court of Justice, judgment of May 24, 2013 - V ZR 220/12 -

Residential property: Video surveillance of a residential property system must be designed with privacy and data protection in mind

An apartment owners' association can install a video surveillance system if the regulations of the Federal Data Protection Act and thus the privacy of the individual apartment owners are observed. This requires rules to be established on the scope and conditions of monitoring. This emerges from a decision of the Federal Court of Justice.Read more

Federal Court of Justice, decision of April 16, 2013 - X ZR 83/12 -

Missed flight due to long queue: There are no claims under the Air Passenger Rights Ordinance

Anyone who misses their flight because they waited in the queue for too long cannot assert any claims under the Air Passenger Rights Ordinance. In particular, in such a case there is no refusal of carriage within the meaning of Art. 2 j Air Passenger Rights Ordinance. This emerges from a decision of the Federal Court of Justice.Read more

Jump to the judgments of 09/26/2013

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Friday, September 27th, 2013

Administrative Court Hanover, judgment of September 26, 2013 - 6 A 4137/12 -

Successful lawsuit by a teacher trainee from Azerbaijan

The administrative court in Hanover has obliged the examination office to re-evaluate one of the two assessments of the examination paper.Read more

District Court Mönchengladbach-Rheydt, judgment of October 15, 1993 - 20 C 363/93 -

Noise caused by the operation of a washing machine does not justify a rent reduction

If household machines, such as a washing machine, make noises while they are in operation, this does not constitute a rent deficiency. The neighbor is therefore not entitled to a rent reduction. This is the result of a decision by the district court in Mönchengladbach-Rheydt. Read more

Tiergarten district court, judgment of September 26, 2013 - 397 Ds 81/13 -

Berlin: Proceedings against "Forest Boys" temporarily suspended

The Tiergarten district court in Berlin has temporarily suspended the criminal proceedings against the 21-year-old Dutch citizen Robin van Helsum, who has become known as the "Forest Boy". The accused was ordered to do 150 hours of community service and attend counseling sessions. If he follows these instructions, the proceedings will be finally discontinued.Read more

Federal Court of Justice, judgment of February 4th, 2004 - VIII ZR 171/03 -

No forfeiture of rent entitlement in the event of an objection to rent reduction

The landlord's claim to payment of the outstanding rent due to a rent reduction is not forfeited if he had previously objected to the rent reduction. This emerges from a decision of the Federal Court of Justice.Read more

Administrative Court of Berlin, judgment of September 26, 2013 - VG 3 K 269.12, 3 K 270.12 and VG 3 K 271.13 -

Students of non-German origin are not entitled to certain class compositions

Students at Berlin schools cannot claim that their class has only a certain proportion of classmates of non-German origin. That was decided by the administrative court in Berlin.Read more

Regional Court of Cologne, judgment of June 21, 2012 - 31 O 25/12 -

Teeth cleaning for 19 euros/whitening for 149 euros: Dentist advertising on Groupon and Daily Deal is anti-competitive

According to the professional regulations for dentists, it is forbidden for dentists to advertise or promote their services. If he therefore offers services at significantly lower prices on voucher portals on the Internet, he is acting anti-competitively. This emerges from a decision by the Regional Court of Cologne.Read more

Administrative Court of Hanover, judgment of September 25, 2013 - 6 A 3517/12 -

Freies Gymnasium Hannover successful in the procedure for approval of a "Montessori elementary school" as an alternative school

The Hanover administrative court has obliged the Lower Saxony state school authority to decide again on the application for approval of the construction and operation of the FGH primary school as a substitute school, taking into account the legal opinion of the court.Read more

Heidelberg District Court, judgment of May 23, 2012 - 1 S 58/11 -

Disparaging a competitor and poaching employees on the XING platform constitutes a violation of competition law

If someone makes disparaging statements to the employees of a competitor and tries to poach the employees, then that person is acting anti-competitively. The competitor is therefore entitled to an injunctive relief. This is the result of a decision by the District Court of Heidelberg.Read more

Higher Regional Court Hamm, judgment of 09.07.2013 - 26 U 191/12 -

No compensation after stillbirth and omitted emergency caesarean section

After a stillbirth, the treating hospital does not owe any compensation if treatment errors - in particular the incorrect omission of an emergency caesarean section - cannot be determined. This was decided by the Higher Regional Court of Hamm, thus confirming the first-instance decision of the Regional Court of Bochum.Read more

Social Court of Berlin, judgment of September 27, 2013 - S 181 VG 167/1 -

Compensation pension for East German doping victims

The administration of doping substances by the trainer of a GDR children's and youth sports school to a then 16-year-old competitive canoe athlete represents an intentional, illegal physical attack. It can be assumed - at least in the specific individual case - that the athlete knew about the true meaning of the the drug administered to her was deliberately left in the dark. In this respect, there was also no consent to doping. Because of the health and economic consequences resulting from the use of doping, the athlete is to be granted a pension under the Victim Compensation Act. This was decided by the Berlin Social Court.Read more

Administrative Court of Berlin, decision of September 27, 2013 - VG 1 L 276.13 -

Referendum advertising: Berliner Energietisch may also advertise at the Berlin marathon

The Berliner Energietisch can also advertise on the route of the Berlin marathon for the referendum on the remunicipalisation of Berlin's energy supply. That was decided by the Berlin Administrative Court in summary proceedings.Read more

Jump to the judgments of 09/27/2013

Monday, September 30th, 2013

Administrative Court of Berlin, judgment of September 26, 2013 - VG 27 K 231.12 -

TV station "ProSieben" is not allowed to separate advertising windows regionally

In the "ProSieben" television program, which can be received nationwide, advertising may not be separated and replaced by regionally differentiated web spots. This was decided by the Berlin Administrative Court.Read more

District Court Giessen, judgment of April 23, 2013 - 49 C 381/12 -

Passenger rights: refusal of carriage despite the boarding phase justifies a claim for compensation

If a package traveler misses his connecting flight due to a flight delay, he is usually rebooked. However, if it is possible to check in on the connecting flight despite the delay, the refusal to board with reference to the rebooking that has taken place justifies compensation payments in accordance with Art. 7 Para. 1 Air Passenger Rights Ordinance. This emerges from a decision by the District Court of Giessen.Read more

Higher Administrative Court of Rhineland-Palatinate, judgment of September 11, 2013 - 8 A 10219/13.OVG -

Winzerschorle is not only available from the winemaker: Retail companies are also allowed to offer Winzerschorle

A wine spritzer may be marketed under the name "Winzerschorle", even if it was not produced in a winery. This was decided by the Rhineland-Palatinate Higher Administrative Court.Read more

Cologne Higher Regional Court, judgment of January 11, 2013 - 20 U 164/12 -

A stay in a rehabilitation clinic is not an "accidental hospitalization"

The term "accident-related hospital stay" in the insurance conditions of a daily sickness allowance insurance requires a medically necessary inpatient treatment of the patient. This is not the case with a rehabilitation measure, so that there is no entitlement to daily sickness benefit when staying in a rehabilitation clinic. This emerges from a decision by the Cologne Higher Regional Court.Read more

Munich District Court, judgment of April 25, 2013 - 423 C 29146/12 -

Further letting of the apartment by tenants entitles the landlord to terminate the contract without notice without warning

If a tenant re-lets his apartment without justification and denies this when asked by the landlord, the relationship of trust between tenant and landlord is destroyed to such an extent that termination without notice is possible without a warning. This was decided by the District Court of Munich.Read more

Dortmund district court, judgment of January 29, 2013 - 431 C 7604/12 -

The injured party can be referred to cheaper rental car costs

The victim of a traffic accident can be referred to cheaper rental car costs. If he takes a rental car at higher prices, he is regularly not entitled to reimbursement of costs by way of compensation. Because rental car costs that are too high cannot be "necessary" in the sense of § 249 Para. 2 BGB. This emerges from a decision by the District Court of Dortmund.Read more

Hessian State Labor Court, judgment of August 20, 2013 - 13 Sa 269/13 -

Trainee has to pay 25,000 euros in damages after his colleague injured his eye

The Hessian State Labor Court has sentenced a trainee who threw a balancing weight at his colleague in a car workshop and severely injured his eye to pay compensation for pain and suffering in the amount of 25,000 euros.Read more

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