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Ricarda Fahrbach has just published a new edition of the two articles “How to incorporate a GmbH (Germany)” and “Opening a Company Bank Account (Germany)”. First published in 2020 and 2021, respectively, in collaboration with Dr. Axel Reeg, the articles have been updated annually by our law firm ever since.
We always enjoy to support our international clients in setting up their companies in Germany. Together with our partners at Altehoefer - International Tax Consulting - https://www.altehoefer.com, we are also available to advise you on tax law issues relating to your company in Germany.
Links to the articles:
The current case law of the German Federal Labor Court (BAG) has significantly expanded the options available to employers to refuse continued payment of remuneration upon presentation of a certificate of incapacity for work (AUB). Previously, it was extremely rare in practice to be able to undermine the probative value of an AUB. Today, however, doubts can be successfully raised more frequently.
The BAG's case law has gradually become more employer-friendly in this regard. In several decisions, the BAG has developed a series of case groups in which the probative value of an AUB can be undermined and, taking into account all the circumstances of the individual case, continued payment of remuneration can be refused. These include:
- Temporal coincidence between termination by the employee or the employer and a sick note if the AUB coincides exactly with the notice period from the date of receipt of the notice of termination. It is not necessary for the AUB to be handed over at the same time as the notice of termination. Serious doubts as to the probative value may also exist if, in the event of the employee's own resignation, the AUB is not submitted to the employer until after the resignation has been received – for example, on the next working day (BAG, judgment of September 18, 2024 – 5 AZR 29/24; BAG, judgment of December 13, 2023 – 5 AZR 137/23; BAG, judgment of September 8, 2021 – 5 AZR 149/21).
- Violations of the incapacity to work guideline, such as backdating by more than two days or an incorrect duration of incapacity to work, e.g., directly for four weeks and thus longer than the initially permissible seven days (BAG, judgment of June 28, 2023 – 5 AZR 335/22).
- Illness after the employer has announced that it will not extend the employment relationship or after indications of a possible termination of the employment relationship (BAG, judgment of December 13, 2023 – 5 AZR 137/23).
- Repeated illness during the period of denied leave or immediately following “home leave” (BAG, judgment of January 15, 2025 – 5 AZR 284/24; LAG Cologne, judgment of June 8, 2022 – 11 Sa 829/21).
The exact assessment of the individual case remains decisive.
We would be happy to assist you in this matter.
(Nadine Biró)
Image: AI-generated
Dr. Axel Reeg discussed the decision of the German Federal Court of Justice (Bundesgerichtshof) of January 12, 2023 – I ZB 33/22 – in a brief commentary in the legal journal EWiR 2023, 446-448 (Decisions on commercial law).
In this decision, the Federal Court of Justice takes the view that foreign applicants must also provide security for legal costs when applying for a declaration of enforceability of arbitral awards in accordance with Section 110 of the German Code of Civil Procedure (ZPO).
Axel Reeg is critical of this decision, among other things because it is counterproductive to the goal of strengthening Germany as a place of arbitration.
In October 2022, the German Frankenthal Regional Court partially dismissed a lawsuit brought by a well-known supplier of building blocks against our client for alleged trademark infringement by various mini figures in proceedings conducted by Ricarda Fahrbach on behalf of the defendant. With this decision, a court has recognized the fundamental possibility of alternative building block mini figures.