The General Data Protection Regulation (2016/679 EU) coming into force in May 2018 – why should you prepare your business?
The new General Data Protection Regulation (GDPR) will apply from 25 May 2018 and will supersede the UK Data Protection Act 1998. The GDPR expands the rights of individuals concerning the collection and processing of their personal information by third parties.
As such additional obligations to protect personal information were put on organisations. This means, for instance, that employers should review their existing privacy notices and consent clauses as usually included in employment contracts. Not only the new penalty regime which empowers national supervisory authorities to issue fines of up to EUR 20 million, or 4% of an organisation’s annual global turnover for certain data protection infringements should be reason enough to prepare well in advance and carefully to avoid any non-compliance with the GDPR.
Uber drivers are working for Uber as “workers”. Employment Appeal Tribunal decides landmark case - Aslam v Uber B. V & others
On 10 November 2017 the Employment Appeal Tribunal rejected Uber’s appeal and ruled that Uber drivers are in fact workers. Being classified as workers strengthens drivers’ rights immensely. Drivers should now be entitled to receive the national minimum wage as well as holiday pay for instance.
Uber already indicated that it might appeal the decision again and take the case to the Supreme Court next year.
New corporate offence in the Criminal Finances Act 2017 tightens duty of care for companies to fight tax evasion – also effects German companies
On 30th of September 2017 a new corporate offence came into force under Part 3 of the Criminal Finances Act 2017 (“CFA”) that makes it easier to hold domestic and foreign companies to account with regard to tax offences. If a company has failed to take reasonable steps to prevent an agent who acts on their behalf from facilitating tax evasion, the action of the agent can now be attributed to the company (see Part 3, Section 45 (1) - (3) CFA). Previously it was the public prosecutor’s responsibility to prove that the tax evasion was also known about at management level and that they intentionally tolerated it. Board members of global companies in particular could therefore not be held accountable because it was not possible to prove knowledge of these dishonest practices due to decentralised management and not every decision being penned by board members.
The new corporate offence applies to UK and non-UK companies (Part 3, Sections 45-46 CFA) provided that their trade has an effect on the English market or their activities or omissions demonstrate a connection with England and/or Wales. The new offence is based on the assumption by the British Government that every company has extensive knowledge of foreign tax laws. Again, "ignorance is no defence" in this case.
Supreme Court establishes new test for “dishonesty” in criminal matters
The test for “dishonesty” used to be different for criminal and civil matters. In criminal matters R v Ghosh  EWCA Crim 2 had established a two stage test. Firstly the action had to be objectively dishonest according to the standards of reasonable and honest people. Secondly the defendant himself had to realise subjectively that what he was doing was by those standards dishonest.
Now the Supreme Court held in of Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent)  UKSC 67 that the test for civil matters also applies to criminal cases. This test does not have a strong subjective element. First the actual state of knowledge or belief must be established based on facts, then the question is whether this state of mind is seen as honest or dishonest according to the standards of ordinary decent people.
The case at hand was a civil case. The Appellant was a professional gambler. He managed to win £7.7 million within two days at the respondent’s casino using a technique called “edge sorting”. With the help of an associate he influenced the croupier to turn cards slightly depending on whether the players considered them “good” or “not good” and then to re-use the same deck of cards. This way the Appellant changed the odds in his favour as he could recognise the good cards. The croupier was completely unaware of the technique.
The Supreme Court decided that this behaviour was cheating as it influenced the cards that were used. There was no difference in using the croupier to influence the cards or doing it with one’s own hands. In particular it was held that it was irrelevant whether the Appellant thought he was cheating. Therefore Mr Ivey did not receive his winnings. Additionally the Supreme Court criticised the two stage test in criminal cases for favouring defendants with a more abnormal state of mind. Furthermore the subjective element was seen as difficult to apply in practice. The Supreme Court thus held that the objective test for dishonesty from civil matters also applies in criminal matters.
With this ruling the Supreme Court clarified this area of law and in the future it should be easier to proof dishonesty.
Enforcement Post Brexit
In the UK it is suggested that EU Regulations can be transposed into domestic law via the so-called “Great Repeal Bill” or The European Union (withdrawal) Bill. English courts will continue to apply an essentially similar regime post-Brexit. This would be applicable for the Rome I and II Regulations. In contrast, the Brussels I Recast Regulation depends upon reciprocity and sincere cooperation between member states. If the UK is not a member of the agreed scheme then transposing the Brussels I rules into UK domestic law is of no assistance. The ease of recognition and enforcement of judgments under the Brussels I (Recast) would be lost. It is possible that superseded international conventions, such as the Brussels Convention 1968 and the Lugano Convention 1988, might spring back to life and that also old judgment recognition conventions may revive in significance after Brexit. However, we encourage our clients to commence cross-border enforcement proceedings between the UK and Germany, as soon as possible, in order to benefit from the great degree of certainty that the Brussels I (Recast) Regulation provides.
BREXIT - Implications for the different areas of law
Since Prime Minister Theresa May triggered Article 50 of the Lisbon Treaty on 29 March 2017, beginning the formal process of negotiating the UK’s withdrawal from the European Union, the primary question is what impacts Brexit will have to contractual parties and different areas of law. It is already foreseeable that international performance may become more difficult and costly.
The general uncertainty posed by the pre-negotiation and political statements as well as Article 50 negotiations is a cause of volatility in forex markets. Furthermore, concrete changes to the infrastructure of import and export will most likely increase supply chain costs and changes to customs law may impose unforeseen costs such as trade tariffs.
However, it is difficult to predict what the exact implications of Brexit will be. It is likely that the potential implications will differ in the various areas of law. It is predicted that Brexit might have a high impact to the financial service sector and in the field of competition law whereas a medium impact is expected to occur in the areas of commercial, corporate, employment and insolvency law. A low impact is estimated to arise in the legal fields of arbitration, family and planning.
In the end, it can be said that the concrete level of impact will depend on the extent of EU law governing in the specific area of law as well as on the fact whether EU law has already been implemented into domestic law or not. To date, one does not know whether UK’s plan to introduce the “Great Repeal Bill” which will repeal the European Communities Act 1972 and incorporate EU law into domestic law can effectively be realised.
ZIMMERs is on TV – about the issue of “Insolvency tourism”
ZIMMERs Solicitors is regularly engaged in problems concerning “insolvency tourism”. ZIMMERs mainly represents creditors who - for various reasons - feel that insolvency procedures in the UK are inappropriate. In this context Mr Zimmer, Senior Partner of ZIMMERs Solicitors, was interviewed by a major German public broadcaster, ZDF, in connection with insolvency proceedings of an investor adviser who - according to the German courts - had defrauded a great number of private investors of an eight figure Euro sum. Please open this link to watch the interview.
How to interpret the “Harmful event” in Article 5.3 under Council Regulation (EC) No 44/2001 (the ‘Regulation’) – decided by the Supreme Court on 1 March 2017
The Supreme Court of the United Kingdom decided in appeal proceedings brought by a London based derivatives broker (the ‘Broker’) against a German law firm whether the English courts have jurisdiction under the Regulation to hear a claim brought by the Broker against the German law firm at the High Court of Justice in London.
The Broker issued proceedings at the High Court of Justice against the German law firm claiming damages (legal costs) occasioned by court proceedings against the Broker brought by former clients of the Brooker in German courts. The German law firm represented the former clients and allegedly induced the former clients to issue proceedings against the Broker in Germany breaching an exclusive jurisdiction clause (ruling jurisdiction for the courts of England and Wales) in the Broker’s terms of business.
The Supreme Court decided in favour of the German law firm, represented by ZIMMERs Solicitors, confirming that English Courts have no jurisdiction for the claim brought by the Broker against the German law firm in London at the High Court of Justice (despite the English courts having competence over claims against the former clients). The Court pointed out:
• Any exemption from the general rule under Article 2 of the Regulation which requires that proceedings are issued at the Courts of the defendant’s domicile, must be restrictively interpreted to achieve the aim of avoiding parallel proceedings between courts of different member states
• The German court proceedings were the harmful event according to Article 5.3 of the Regulation which is why Germany was the place where the harmful event occurred. Furthermore, the place where the consequential loss caused by the German proceedings was incurred (as argued by the Broker) is not to be considered at all to determine the harmful event. It is the immediate and direct harm which is the connecting factor for Article 5.3 of the Regulation.
The Legal Consequences Following the “Brexit” Vote
On 23 June 2016 British voters by a majority of 51.9% voted in favour of the UK leaving the European Union (EU). In the face of potential uncertainties following from this result one must not forget that UK will remain a fully-fledged member of the EU for at least a further 24 months. Therefore all relevant European laws will still be effective and enforceable in the UK. The question of when "Brexit" will actually happen depends on when the UK government triggers the application under Article 50 of the Lisbon Treaty. Effectively this is a declaration to the European Council of the U.K.'s intention to exit the EU (see an extract of the relevant wording from the treaty below), following which future UK-EU relations will be negotiated. Although future developments cannot yet be predicted, we at ZIMMERs will be taking a close interest in "Brexit" and its consequences in order to advise you of the important changes in particular to employment, consumer protection, transport and customs law.
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
Further current information on “Brexit” can be found on the webpage of the Law Society here:
New Court of Appeal Decision – interpretation of an ‘excursion’ in terms of the ‘Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008’
In a Cost Appeal Decision, the Court of Appeal in London judged on the question of when ‘The Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008’ apply. According to Par. 5 b of these Regulations, which are based on the Directive 85/577/EEC, they apply to a contract, including a consumer credit agreement, between a consumer and a trader which is for the supply of goods or services to the consumer by a trader and which is made during an excursion organised by the trader away from his business premises. The Court of Appeal decided that a fee agreement made between solicitors and their clients in religious community premises, to which the clients were allegedly invited for informational purposes, is not a contract covered by Par. 5b, as there was no ‘excursion’. The Court’s reason for the decision was that some meaning had to be given to the word ‘excursion’ otherwise the use of both ‘visit’ (as mentioned in Par. 5 a and 5 c of the regulation) and ‘excursion’ would be otiose. The mere fact of travel (’joint enterprise’) would not constitute an excursion. The fact that the meeting was in the community hall did not convert what would otherwise be a visit to an excursion.
The Court of Appeal did not make a decision on the question of the organisation by the trader. As the existence of an excursion was denied, there would be no need to decide on that point. This decision seems inconclusively particularly considering that ‘excursion’ is translated with the term ‘organised trip’ (“organisierter Ausflug”) in the German version of the regulation.
What constitutes an “accident” under Art. 17 Montreal Convention 1999?
One of the three requirements for a carrier by air to be held liable under Art. 17 of the Montreal Convention for death and injury of passengers, is that the death or injury was caused by an accident. In case-law, the scope of the term “accident” under this provision has been defined as an “unexpected or unusual event or happening that is external to the passenger…”. It is distinguished between the bodily injury as such and the accident causing the bodily injury. An injury resulting from the passenger’s own internal reaction to the usual and normal operation of an aircraft does not constitute an accident under Art. 17 and thus excludes the carrier’s liability under the Convention. Only under special circumstances an exemption to the requirement that an injury has to be external (kursiv) to the passenger leads to the liability of the carrier.
New Court of Appeal decision – interpretation of “harmful events” under Art 5 (3) EC Regulation 44/2001
According to a very recent Court of Appeal decision from AMT’s High Court claim (the Defendant instructed ZIMMERs), it was decided that a tortfeasor, who was the Defendant, can be sued in his domestic court, where the tort or delict involves inducing a contractual party, AMT’s clients, to breach an exclusive jurisdiction clause. The ratio considered the correct interpretation of Art 5 (3) of the European Regulation 44/2001. Whereas the Claimant argued that the “harmful event” occured in England because the Claimant was deprived of the benefit of its jurisdiction clause conferring the right to conduct proceedings in England, the Defendant maintained that the location where initial claims (by AMT’s clients) were brought in breach of such a clause is decisive.
Reform of the Brussels I Regulation
The reform of the Brussels I Regulation is about to come into place on 10 January 2015 with a view of saving litigants costs and time of enforcing judgments obtained abroad. One of its major changes is the abolition of the need to obtain an additional court order in order to enforce a foreign judgment. Under the current rules of the Brussels I Regulation (on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), a judgment given in one Member State does not automatically take effect in another Member State. In order to be enforced in another country, a court in that country first had to validate the decision by registering it and declaring it enforceable. Defendants will still have the possibility to contest the judgment if for example they were not given proper notice of the proceedings.
Reclaim your taxation of inheritance in Spain
The European Court of Justice ruled on 3th of September 2014 against Spain in a case that gives non-residents the possibility to reclaim the tax they paid. While Spain's regional governments (comunidades) reduced or even eliminated the inheritance tax rate for those who lived in Spain, they collected the tax without any reduction in the case of people living mostly outside Spain in other European countries like England.
This is a very serious discrimination. Now we are able to reclaim the tax paid in the last 4 years for all the European non-residents and even for the cases before it would be possible to reclaim the amounts directly from the Spanish government.
Contact our office for more information. We will claim your rights together with our cooperation partner Schomerus in Spain.
On 16.08.2015 the European Succession Regulation came into force.
This European regulation applies to inheritance claims made after 17.8.2015. The regulations represent a total about-turn from the previous principles of nationality applicable in Germany. From then on the habitual residence principle applies.
Fines for stowaways – safety precautions
Shipping companies and their lorry drivers are responsible for taking safety precautions to make it impossible for someone to hide in the lorry. Due to the refugee problems in Europe, so-called “clandestine entrants” try to climb on to lorries unobserved at the borders with England (especially in Calais) in order to avoid the border crossing controls.
If no safety precautions are taken, extremely high fines, also known as “civil penalties”, can be imposed. At present the fine is £2,000.00 per stowaway.