The legal press review of 9. By 11. October 2021 : ecj hears case of poland and hungary / vg berlin on the bds resolution of the bundestag / texan abortion ban back in force

ECJ hears case on new EU financial sanctions regulation. VG Berlin finds Bundestag resolution against Israel boycotts lawful. An appeals court has reinstated the Texas abortion law.

Topic of the day

ECJ – EU rule of law and finances: Starting this Monday, the European Court of Justice will hear a two-day case brought by Poland and Hungary against the regulation adopted by the EU last year, which allows financial sanctions for lack of rule of law. The two member states want the ECJ to declare the regulation null and void. They argue that the regulation circumvents the sanction mechanism actually provided for in the EU treaty, according to which the withdrawal of voting rights against a member state can only be decided unanimously by the other EU states. Reporting Mo-SZ (Wolfgang Janisch) and Mo-taz (Christian Rath).

Poland – constitutional court on EU law: After the Polish Constitutional Court last week declared the primacy of application of national constitutional law over European law, numerous media analyze the decision and possible consequences. This is how liberal Polish politicians see it, according to the Sa-FAZ (Reinhard Veser/Thomas Gutschker) the ruling as a first step towards a "Polexit". The Hbl (Moritz Koch) quotes the EU Commission announcing that it will not hesitate to "use its powers under the Treaties to ensure the uniform application and integrity of Union law". What exactly the EU Commission intends to do, however, remains to be seen. The European Parliament demands that the financial sanctions mechanism, which came into force in January and would allow the suspension of subsidies for Poland, finally be used. To force this, the already threatened action for failure to act against the Commission is to be pushed forward, reports (Markus Becker).

Law professor Alexander Thiele explains in the constitution blog, why those who equate the ruling with the ECB decision of the Federal Constitutional Court are wrong. Whatever one’s opinion of the BVerfG’s ruling, it is in any case not directed against the institutional order of the EU, but rather wants to see it strengthened in its division of powers.

EU should not give in to Poland, because only as a community of law it has a future, commented Nikolas Busse (Sa-FAZ). If the rule of law in Poland deteriorates, this will endanger one of the most important foundations for common life in the internal market and in the legal area of the EU: the guarantee that EU citizens (and companies) have the same rights everywhere and can trust that they will be protected by the local courts.

Legal Policy

Road Traffic/Catalog of Fines: Last Friday, the Bundesrat (upper house of parliament) passed a new list of fines for violations of road traffic regulations, as (Martin Wittler) reports. A new regulation had become necessary because the version adopted in 2020 was invalid due to a formal error. Unlike last year’s failed regulation, the new catalog is more restrained in its design.

Whistleblower: Many companies in Germany are not prepared for the regulations of the EU Directive on the protection of whistleblowers, which must be transposed into national law by the Bundestag by December. This has now a joint study of the Swiss professional school Graubunden and the management consultation EQS Group resulted, over which the Mo-taz (Svenja Bergt) reports. According to the report, only one in seven companies in Germany already complies with all the new rules on whistleblower protection.

§ 219a StGB: Critically comments the Mo-taz (Gilda Sahebi) the discussion about Section 219a of the German Penal Code (StGB), which criminalizes advertising for the termination of a pregnancy. Just as some men do not feel ready for a child, or simply do not want one, or their circumstances do not allow it, some women feel the same way. This is not a question of gender, but of people. One does not have to find this good, but abortions will always exist.

AGG/parenthood: In a pro& Contra will be in the Sa-FAZ by labor law experts Gregor Thusing and Richard Giesen answered the question whether a prohibition of discrimination with regard to parenthood should be included in the General Equal Treatment Act. Thusing speaks out in favor. The fact that such discrimination is currently only covered by indirect discrimination on the grounds of gender not only leads to gaps in protection, it also perpetuates gender-specific stereotypes. Giesen, on the other hand, fears that various grounds for discrimination could be played off against each other and then ultimately the glass ceiling could become thicker for women.

Federal Courts: About the still existing vacancies at the top of three federal courts writes the Sa-FAZ (Marcus Jung/Corinna Budras). At the Federal Finance Court, at least the question of the future presidency seems to have been resolved since the Bavarian Administrative Court* dismissed a competitor’s suit, thus clearing the way in principle for the current head of the central department in the CDU-led NRW Ministry of Justice, Hans-Josef Thesling. However, the position of designated Vice President Anke Morsch (SPD) is still blocked by competitor lawsuits. At the Federal Labor Court and the Federal Administrative Court, the personnel planning for the presidential offices has been unclear for months, she said.

ECJ: Five new judges and four advocates-general were nominated for the European Court of Justice by the representatives of the member states last week. beck-aktuell introduces the new members of the court.


VG Berlin on the BDS resolution of the Bundestag: The Administrative Court of Berlin has rejected the complaint of three activists against the resolution of the Bundestag of 2019, in which the parliament considered the pro-Palestinian BDS campaign and its call for an Israel boycott as "anti-Semitic" CLASSIFIED. The Bundestag does not specifically interfere with fundamental rights, but only expresses a position in a controversial debate. It reports (Christian Rath). LTO (Annelie Kaufmann) also goes into detail about the admissibility problems of the procedure.

BVerfG – IfSG/Bundesnotbremse/Befangenheit: The WamS (Elke Bodderas/Tim Rohn) is once again devoted to the joint dinner of federal constitutional judges and members of the federal cabinet in June, which led to motions of bias in the proceedings on the federal emergency brake, because at the dinner u.a. the topic "Decisions under uncertainties was on the agenda. WamS has learned that the initiative for this should have come from the Federal Constitutional Court President Stephan Harbarth himself. Barely four weeks before the appointment, he is said to have asked for the agenda to be changed. In the appropriate contribution, which held then Federal Minister of Justice Christine Lambrecht (SPD), it concerned above all the Coronapolitik of the Federal Government. Critics see this as a possible influencing of the court.

ECJ on antitrust enforcement ban: On the occasion of a recent decision by the European Court on the prohibition of enforcement under antitrust law, the attorneys deal Marcel Nuys and Juliana Penz-Evren on LTO contractual clauses which, in the event of a merger, grant the acquiring company a certain say in decisions at the company to be taken over. The purpose of such clauses, also known as pre-closing covenants, is to maintain the status quo of the target company until the transaction is consummated. However, they are only permissible within a narrowly defined framework and are being judged increasingly strictly by the supervisory authorities, the authors explain.

BGH on premium savings contracts: After the German Federal Court of Justice ruled last week in a test case that certain clauses used by Sparkasse Leipzig to adjust interest rates on premium savings contracts were not permissible, summarize Sa-FAZ (Christian Siedenbiedel) and Sa-SZ (Berrit Graber) (Sa-SZ) summarizes the consequences of the ruling and which customers are affected.

LAG Berlin-BB on mask refusal: Because a teacher in Brandenburg rejected the obligation to wear a mouth-nose protection and also strongly criticized the mask obligation to parents, he was rightly dismissed after a warning, as the Regional Labor Court Berlin-Brandenburg has now ruled. LTO reports the decision.

LG Darmstadt – attack on corona measures: A man has to answer for his assault on the cashier of a supermarket, who asked him to keep the prescribed protective distance, and on another person at the Darmstadt Regional Court. The Spiegel (Tobias Grobekemper) reports on the proceedings, which have come more into the public focus after a similar altercation in Idar-Oberstein, which however ended fatally.

Neuruppin Regional Court – Sachsenhausen concentration camp guard: (Julia Juttner) reports on the trial of a former guard at the Sachsenhausen concentration camp. The now 100-year-old is accused of aiding and abetting murder in 3518 cases. On the second day of the trial came u.a. Antoine Grumbach, whose father had fought in the Resistance and was arrested by the Gestapo in Algeria in 1942, flown to Germany and taken to the Sachsenhausen concentration camp with other resistance fighters, had his say. The 79-year-old, who is a joint plaintiff, described the brutality suffered by prisoners in Sachsenhausen.

LG Munich I on reservation costs for Oktoberfest: Reservations for the Oktoberfest in the amount of 3300 Euro are inadmissible, the LG Munchen I has determined. According to a message on an event agency had table reservations in a marquee between 1.990 and 3.299 euros and must now not only stop selling, but also pay damages to the landlady concerned. The offer of the event agency is "misleading, said the judges, because the marquee operator had prohibited the resale of table reservations to commercial resellers in its general terms and conditions of business.

AG Munich on travel cancellation due to Corona: If the pandemic situation develops differently than expected, Corona may be a reason to withdraw from a trip, according to the LTO Munich district court ruled in favor of the lawsuit filed by two people against a Swiss cruise operator for repayment of the travel price. Because the infection figures in Italy were very low both at the time of booking and at the time of receipt of the booking confirmation, and because there had been no warning from the German Foreign Office, an "objective average traveler" would have been able to Could not have foreseen such a rapid and massive deterioration as occurred then.

Law in the world

USA – Texas abortion law: The controversial Texas abortion law, after being temporarily suspended by a Texas court last week due to a lawsuit filed by the U.S. government, has now been reinstated by an appeals court. The White House is expected to appeal the appeals court’s decision to the U.S. Supreme Court, according to

South Korea – Transgender Soldier: A court in South Korea ruled last week that the dismissal of soldier Byun Hee-soo from the army was illegal. The soldier, who has since died, had fought during her lifetime to be allowed to remain in the military after her gender reassignment surgery. The Mo-SZ (Thomas Hahn) Reports.

Legal training

Online learning opportunities: LTO Career (Sabine Olschner) presents support for learning law, which can be accessed free of charge on the Internet. Among other things videos, podcasts and scripts are offered.


Digital Compliance: The fact that companies are often inadequately prepared for the legal risks associated with the use of digital technologies, writes the Mo-FAZ (Marcus Jung). 70 percent of companies are without special positions for IT legal risks, according to a survey conducted by the Technical University of Munich together with the business law firm Noerr.

BEA: LTO (Hasso Suliak) reports in depth on the dispute over the reliability of outgoing mail and deadline checks in the special electronic mailbox for lawyers. The petitioners around lawyer Christian Franz accuse the Federal Bar Association of "deceiving the public". BRAK has rejected the accusations.

Herbert Wiedemann: The former managing director of the Cologne Institute for Labor and Commercial Law Herbert Wiedemann passed away a few days ago at the age of 88. The Sat-FAZ (Helene Bubrowski) pays tribute to the "outstanding legal scholar who played a decisive role in shaping the development of German labor and commercial law". Also in the business section of the Sa-FAZ (Marcus Jung) finds an obituary for Wiedemann.

Sexual violence: About the legal and extra-legal treatment of victims of sexual violence writes the Sa-SZ (Elisa Britzelmeier). Again and again, there are cases in which criminal law does not help those affected, because investigations are discontinued, because no charges are brought, because there is an acquittal for lack of evidence. For outsiders, the matter then seems to be clear. For those affected, however, the feeling of having experienced injustice has not disappeared.

Legal History – Company Tax: Martin Rath dedicates himself on LTO of capital duty, which the Federal Constitutional Court had to deal with in 1962. The tax was incurred in connection with the acquisition of corporate rights in a domestic corporation.

Legal history – witch trials of modern times: In an interview with Mirror (Eva-Maria Schnurr) historian Monica Black tells about "witch trials, which had still existed in the first years after the Second World War. At least 77 trials between 1947 and 1956 are reported by Black, who believes that the accusations of witchcraft were a symptom of the social upheavals of the postwar period.

Legal History – Infanticide 250 years ago: The Sa-FAZ (Matthias Trautsch) looks back at a trial in 1771, in which a maid had to answer for the accusation of infanticide. Susanna Margaretha Brandt, the name of the accused at the time was the model for Gretchen in Faust.

* Correction on the day of publication at 12.25 h.

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