German Federal Supreme Court Research Articles

Revisiting G 1/19 Three Years Later: A Missed Opportunity?

Abstract Decision G 1/19 of the EPO’s Enlarged Board of Appeal has changed the patentability of computer-implemented simulations. It has also had an impact on the patentability of computer-implemented inventions in Europe more generally, which has become more restrictive as existing case law has not been confirmed. Moreover, G 1/19 has started a process in which previously well-defined legal terms are becoming increasingly blurred. The author identifies the problems associated with this development and points to early case law, such as T 208/84 and the German Federal Supreme Court’s (BGH) Logikverifikation, which the Enlarged Board of Appeal could easily have followed but chose not to. Finally, the author presents his own ‘Three Motives Model’ as a possible solution and compares it with a previous, similar model based on a ‘Virtual Analog Rule’ for patent eligibility suggested by Joseph. S. Bird in the US in 2015.

Article: German Federal Supreme Court Declares Intra-EU Investor-State ICSID Arbitration Inadmissible

In 2018, the Court of Justice of the European Union (CJEU) declared arbitration clauses in intra-EU bilateral investment treaties (BITs) incompatible with EU law, extending this ruling to multilateral investment protection agreements such as the Energy Charter Treaty (ECT) in 2021. Section 1032 II German Code of Civil Procedure (ZPO), a provision solely known to German law, allows for the invalidation of arbitration agreements even before the stage of enforcement. The Netherlands and Germany sought to apply this provision to intra-EU International Centre for Settlement of Investment Disputes (ICSID) arbitrations, resulting in conflicting decisions by the Higher Regional Court Cologne and the Court of Appeal Berlin. On 27 July 2023, the German Federal Supreme Court affirmed the inadmissibility of the intra-EU investor-state arbitrations at ICSID, aligning with the previous decisions of the Higher Regional Court Cologne and the CJEU. Among other considerations, the German Federal Supreme Court ruled on the applicability of section 1032 II ZPO to ICSID arbitration proceedings, primarily justifying its decision by emphasizing the primacy of EU law. This case note analyses the German Federal Supreme Court’s reasoning and provides insights into the practical implications and the broader impact on intra-EU investment arbitration proceedings.

Another ‘Bleak House’—the decision of the German Federal Supreme Court on the inadmissibility of intra-EU ICSID arbitrations

Abstract The decision of the German Federal Supreme Court of 27 July 2023 has sparked intense discussions. Unexpectedly, the Court granted a declaration of inadmissibility of intra-EU ICSID proceedings under section 1032(2) of the German Code of Civil Procedure. The decision is of significant practical relevance and yet another push against intra-EU Investor–State Dispute Resolution. After a short introduction (i), we will describe the legal and factual background of the decision (ii) and summarize the Court’s reasoning (iii). Thereafter, we will comment on the decision (iv) and conclude by pointing out possible implications for future intra-EU ICSID proceedings (v).

Should German Courts Review Competition Law Awards on the Merits? Significance of the German Federal Supreme Court’s Decision of 27 September 2022

The extent to which courts are allowed to review arbitral awards for public policy violations in annulment or enforcement proceedings is a controversial topic. Recently, the German Federal Supreme Court (BGH) conducted an exhaustive judicial review of an award (referred to as a ‘Révision au fond’), assessing its potential breach of competition law within the framework of Germany’s public policy. This marks the first time in more than five decades that Germany’s highest civil court has taken an unambiguous stance in the ongoing discourse. Even though BGH decisions have no binding effect for lower courts in Germany, it can be expected that other German courts will follow the decision for the purpose of a uniform application of the law. This article analyses whether German courts should take the BGH’s decision as guidance and similarly conduct a Révision au fond of arbitral awards relating to competition law. It is concluded that the BGH’s decision is not in line with the internationally prevalent view that a Révision au fond is to be prohibited. Moreover, the justifications provided by the court for conducting a Révision au fond are found to be only partly convincing. In fact, there are several points in which the BGH’s approach can be countered by arguments in support of a merely limited review. Révision au fond, full review, competition law, antitrust, BGH, public policy, ordre public, cartel senate, finality of awards, Germany

독일의 형사 공판 기록의 디지털화 추진의 의미와 시사

Germany is implementing a plan to digitally video or audio record what happens in the trial court of criminal proceedings. Many German judges also have animosity or concerns about video recording of trial proceedings. However, a bill aimed mandatory recording and discretionary video recording was submitted with the goal of mandating digital video recording or recording and automatic creation of transcript records in all courts by 2030. Even in Germany, various arguments for and against this bill were presented. As Mosbacher, a judge in the criminal division of the German Federal Supreme Court, said, it is no longer a matter of wether but how, and the details have become subject to compromise.
 In this article, we looked at the contents of the related German bill, the pros and cons, especially the judges' positions and counterarguments of scholars and criminal lawyers, and looked for the implications this can have on our situation.
 Ignoring the basis of the legitimacy of the existence of criminal trials and advancing modern technology may ultimately lead to the collapse of criminal justice per se.
 The way to become a court trusted by the public, to be evaluated as a criminal judgment acceptable to the parties, and to drastically reduce the overflow of appeal cases depends, above all, on how faithfully and transparently the first trial procedures and rulings that deal with the facts are made.
 Rather than clinging to the old-fashioned slogan that video trials cannot be permitted, it is important to know where, what, and how to change in our criminal trial in order to become a functioning criminal justice system that can meet the unique challenges of criminal trials as much as possible while efficiently using the limited national budget. We have to think about it.

소송무능력자에 대한 송달의 효력과 구제방법

Although Article 179 of the Civil Procedure Act stipulates that service on a person incapable of litigation must be made to it’s legal representative and Article 55 of the same Act stipulates that only a legal representative can act for a person incapable of litigation, if a court served a judgment on a person incapable of litigation without knowing that it was incapable of litigation, there is a question of whether the appeal period proceeds and the judgment becomes final despite the invalid service. The Supreme Court believes that the appeal period does not proceed because the service of a judgment on a person incapable of litigation is ineffective. Regarding this, the German Federal Supreme Court, in view of the provisions of the retrial action and the request for legal stability, considers that the appeal period proceeds if the court does not know from the written judgment that the person is incapable of litigation despite invalid service on the person incapable of litigation. The German Civil Procedure Act, unlike Korean Civil Procedure Act, excludes the supplementary nature of retrial in relation to the appeal. Therefore, under the German Civil Procedure Act, a person incapable of litigation who has been served with a judgment can fight the judgment by appeal, or can contest the judgment by retrial after confirming the judgment as it is. The German Federal Supreme Court, citing these legal provisions, recognizes the validity of the service of judgment on a person incapable of litigation and hold the position that the retrial proceedings does not hinder the guarantee of the person's right to request a legal hearing. But the Korean Civil Procedure Act does not have a provision recognizing the independence of the retrial proceedings. Because the service on the person incapable of litigation is invalid in accordance with Articles 179 and 55 of the Civil Procedure Act, the appeal period does not proceed. Even if an appeal is filed and then withdrawn, the judgment is not finalized and another appeal may be filed again. If a judgment ignoring the flaws in litigation capacity is finalized as a supreme court judgment, it can be contested by a retrial (§ 451 I ③ Civil Procedure Act). If the court clearly recognizes a party’s litigation capacity and the service of the judgement is made on that party, the appeal period proceeds and an appeal or a retrial can be contested (§ 394 I ④, § 451 I ③ Civil Procedure Act). In this case, the supplementary nature of a retrial action(§ 451 I proviso Civil Procedure Act) does not apply to guarantee the procedural right of the person incapable of litigation.

Distant relations: business interruption insurance and business closure insurance.

This article looks at COVID-19-related issues in the context of commercial and industrial insurance cover taken out against the risk of infectious disease. The focus is on government action taken and regulation passed in the U.K. and in Germany, respectively, to redress the pandemic. The insurance market offers business interruption (BI) cover (in the U.K. and internationally) as well as business closure (BC) cover (mainly in Germany) to protect against the impact of infectious diseases on commercial enterprises. The insurance law issues that came to be analysed in relation to the COVID-19 pandemic formed the subject matter of widespread litigation in both countries. Judgements were rendered in the Supreme Court in the U.K. (the FCA test case) and in the German Federal Supreme Court and now provide some authoritative legal guidance. However, the outcome of these court battles was totally different, insofar as policyholders were concerned. This article, next to offering some historical legal analysis of BI and BC insurance cover, attempts to explain why policyholders won in court in the U.K. and lost the legal argument in Germany and seeks to reconcile these diverse outcomes. The article ends with a brief outlook on how the pertinent COVID-19 insurance law issues might come to be revisited, both by the markets and in the legal community, in the context of reinsurance coverage.

Somatic Jurisprudence: Re-Drawing the Boundaries of the Human Body

Abstract Based on adecision of the German Federal Supreme Court on the qualification of the destruction of cryopreserved sperm as bodily injury, my contribution explores the question of how law in the age of biomedicine redefines the boundaries of the human body against the background of its fragmentation and genotyping. To cope with the complexity of these processes, law makes use of both old and new techniques, thus proving to be the first technology of life ever.

Litigating in a jurisdiction that does not recognize the concept of disclosure—The German Federal Supreme Court clarifies the rules on document production

Abstract In a recent decision relating to a European patent application (and resulting patent) filed by a non-entitled person, the BGH emphasized that judges shall apply the rules on document production such that the interests of both parties are fairly weighed.

The German Federal Supreme Court’s Judgment in Booking.com as a Case Study of the Limitations of Competition Law

The German Federal Supreme Court (BGH) held that the use of narrow price parity clauses (NPCs) between Booking.com and hotels infringed Art. 101 Treaty on the Functioning of the European Union (TFEU), confirming the Federal Cartel Office’s decision. The Supreme Court based its judgment mainly on the following grounds: (1) the use of these clauses restricts intra and inter-brand competition between hotels; (2) NPCs cannot be considered an ancillary restraint in the sense of Art. 101(1) TFEU; and (3) avoiding free-riding through these clauses cannot be considered as a justifying efficiency in the present case under Art. 101(3) TFEU. The present comment focuses on the analysis of the Court regarding (3) and argues that the reasoning in the judgment made conceptual mistakes and statements against settled EU law. The case shows the difficulties the Court had in handling a case where dynamic considerations are important. Therefore, even though the Court may have had valid concerns regarding NPCs, the judgment at hand is a step in the wrong direction regarding the judicial function of guidance of undertakings throughout the economy that wish to comply with competition law.

Inheritance of social media accounts in Germany and Sweden

The question how the legal framework may cover Internet relations is not new and has been discussed at least since the end of the 20th century. But over the past decade and a half, the electronic environment has been developing, while classification and regulation of new institutions raise some complexities. One of them is social media accounts. Their legal status as objects of rights is unclear since such accounts are a set of rights and relationships laying at the intersection of different institutions and law branches such as contractual relationships, copyright for posts and photos, personal correspondence, and privacy. At the same time, commercialization of social media accounts is gaining momentum, which turns them into an “electronic enterprise”. The purpose of this research is to identify order of inheritance of accounts in Sweden and Germany. These legal systems are close to the Russian one, the results obtained may be used to improve Russian legislation. Moreover, the authors know the relevant foreign languages, which allows them to analyze the legislation in detail. The object of analysis is the relationships that arise in connection with the need to determine the legal fate of a user’s account after his death. The scope of inheritance relations is chosen because this issue has become increasingly common in law enforcement practice. Besides, the Federal Supreme court of Germany recently issued a controversial decision which might affect German law, other European legal systems, or the relevant elements of the content of user agreements. The authors use the comparative method, methods of analysis, synthesis, deduction, and induction. The authors’ conclusion is the issue is unsettled. The solution proposed by the German Federal Supreme court is imperfect. In the article there are also some comments on improving Russian regulation, taking into account the experience of the legal systems studied.

Facebook’s exploitative and exclusionary abuses in the two-sided market for social networks and display advertising

Abstract The German Facebook case has directly addressed the contentious interplay between data protection and competition law for the first time. The Bundeskartellamt’s theory of harm, which directly linked privacy violations to the strengthening of Facebook’s market power, proved controversial: it elicited strong criticism from the appeals court, but then was partially endorsed by the Bundesgerichtshof (German Federal Supreme Court). This article shows that an enforcement action against Facebook under Article 102 TFEU need not be controversial. We present empirical evidence confirming that Facebook’s ‘envelopment by privacy policy tying’ strategy exploits consumers, as it causes clear consumer harm on the market for social networks in the form of lack of choice and degradation of quality. In turn, such consumer harm on the ‘free’ side leads to a weakening of the competitive market structure and foreclosure of competitors on the ‘paid’ market for display advertising and other adjacent markets. This strategy falls neatly within the scope of Article 102 TFEU, irrespective of whether it also violates EU data protection law. In addition, the enveloping by privacy policy tying forms part of an overall anti-competitive strategy over which the Commission can assert jurisdiction and prosecute as a single and continuous infringement.

Data Processing as an Abuse of Market Power in Multi-Sided Markets – The More Competition-Oriented Approach in the German Federal Supreme Court’s Interim Decision KVR 69/19 – Facebook

Abstract The relationship between competition law and data protection law has been a highly controversial issue following the German Competition Authority’s (Bundeskartellamt, hereinafter ‘Competition Authority’) decision with regard to Facebook’s data processing policy. The Competition Authority’s theory of harm was centered around an exploitative abuse of market power through the imposition of a data processing policy which is in conflict with the data protection rules. In the interim court proceedings, the OLG Düsseldorf criticized the Competition Authority’s decision. The German Federal Supreme Court (Bundesgerichtshof, hereinafter ‘Federal Supreme Court’) upheld the Competition Authority’s decision. However, the Federal Supreme Court did not derive the exploitative abuse primarily from a mere violation of data protection law. Instead, the Court referred to the users’ lack of freedom of choice. The Court developed a modified theory of harm by identifying elements of an exploitative abuse but also of an exclusionary abuse. The Court’s line of argument is more competition-oriented and accounts for the particular economic features of multi-sided markets. In this line of reasoning, an actual violation of the data protection rules is not a necessary prerequisite for finding a violation of competition law.

The Case Review of the act of taking pictures contained in a book and posting them on the Internet in the German Federal Supreme Court

본 논문은 독일 연방대법원의 판결에 대해서 필자의 의견을 붙인 것이다. 판례평석이 국내 판결을 대상으로 하는 경우, 판결이 가지는 주요한 사회적 의미 또는 법리적 의미를 설명하거나, 필자와의 생각의 차이점이 존재한다든지, 결론이 다르다든지, 논리과정이 다른 경우에 학리해석의 하나로서 판결을 새롭게 바라보고, 새로운 의견을 제시하는 것이다. 그런데 이 사안의 경우 외국의 사안이기 때문에 깊이 있는 논의의 한계는 존재한다고 생각된다. 사안은 다음과 같다. 원고는 지방정부에서 운영하는 박물관인데, 피고는 박물관에 전시된 사진을 다시 사진으로 촬영하여 이를 인터넷에 게재하였다. 전시사진의 대상이 된 작품들은 이미 저작권 보호기간이 지난 것이다. 원고는 독일저작권법상의 사진보호에 따른 청구권 행사, 소유권침해에 따른 손해배상과 관람계약위반을 주장하였다. 그리고 이 외의 쟁점은 공공기관인 박물관이 제공하는 정보의 자유와 관련된 문제, 소유권의 제한 문제 등이다. 그런데 본고에서는 위의 쟁점들 가운데서, 우리나라의 저작권법에 규정되어 있지 않지만, 독일 저작권법에서 저작인접권으로 규정되어 있는 사진보호를 중심으로 논의를 진행하고자 한다. 우선, 사진보호의 입법연혁에 대해서 살펴보고, 사진보호와 사진저작물의 차이점에 대해서 설명하고자 한다. 더 나아가서 우리나라의 사진저작물에 관한 설명도 조금 더 부가하고자 한다. 독일 저작권법의 저작인접권으로 보호하고 있는 사진보호제도를 우리나라에 도입 여부에 관해서도 간략히 언급하였다. 저작인접권으로서의 사진보호를 도입할 경우에 실익은 아마추어나 사진기자들에게 있음을 간략하게 언급하였다. 그리고 박물관에 입장하는 입장객과 체결하는 관람계약과 관람계약위반의 의미가 무엇인지에 관해서 설명하고자 한다. 결어로서 사진보호의 우리나라 저작권법에의 도입 가능성과 박물관, 미술관 등의 문화저장소의 역할, 관람계약의 준수의 의미가 단순한 계약법적인 문제, 재산권 침해에 관한 문제를 넘어서 창작자에 대한 존중의 의미도 있음을 간략히 언급하였다.This paper is stuck my opinion to the ruling of the German Federal Supreme Court. In the case study for a domestic judgment, when there are the critical social meaning of the judgment, the difference in opinion with the writer, the difference in conclusion, or difference of the logic process, it is to look at the judgment as one of the academic interpretations and present a new opinion. In this case, since it is a German Case, it is maybe considered that there is a limit to deep discussion. The facts are as follows: The plaintiff is a local government-run museum, where the defendant reprinted the photographs on display in the museum and posted them on the Internet. The works subject to the exhibition pictures have already passed the copyright protection. In response, the plaintiff argued for the exercise of the right to claim of the Protection of Photograph under the German Copyright Act, compensation for damages caused by infringement of ownership, and violation of the admission contract. Other issues which are related to freedom of information provided by the museum, a public institution, and restrictions on ownership are also included in the debate of this ruling. However, among the above issues, I would like to discuss the protection of photographs, which are not stipulated in the Korean Copyright Act, but in the German Copyright Act. And I would like to explain the meaning of the admission contract and violation of it. In conclusion, I would like to briefly mention the possibility of introducing the Protection of Photograph into the Korean Copyright Act and the role of the cultural repository of museums, art galleries, etc., and conclude the discussion.

On the Market Dominance of the Provider of Ad Blocker Software on an Asymmetrical Two-Sided Market – Also a Discussion of the German Federal Supreme Court’s Decision of 8 October 2019, KZR 73/17 ‒ Ad Blocker III

Abstract The German Federal Supreme Court has once again ruled in the matter of advertisement blockers. It is the Court’s third decision concerning the use of ad blocking services, this time from the perspective of competition law. Of particular importance was the clarification of the market definition and market dominance in a two-sided market, where the substitution possibilities and ad blocker software countermeasures are of greater importance. The Court also developed guidelines for the balancing of interests in the context of the examination of an abusive exploitation of a possibly market dominant position by an ad blocking business model. The resolution of this dispute will provide a benchmark for the assessment of acceptable behaviour of intermediaries under competition law. It will be of considerable importance here that the company behind ‘Adblock Plus’ software is operating on an ‘asymmetrical’ or significantly imbalanced two-sided market. In this market the benefits of the software are almost one-sided on the part of the internet users, but the financing is mainly covered by website operators who themselves experience significant disadvantages from the use of the ad blocker.

Can competition law protect consumers in cases of a dominant company breach of data protection rules?

ABSTRACT This paper focuses on the “burning debate” of whether competition law and data protection could go: “hand in hand”. More accurately, whether a breach of data protection law could be considered a breach of competition law and serve as a tool to define that a dominant company abused its dominant position in digital markets. Notably, the recent preliminary finding in the favour of dual proceedings was brought by Bundeskartellamt in the Facebook case but the “too harsh” decision by the Düsseldorf Higher Regional Court created additional confusion and contradicted Bundeskartellamt’s approach. However, the twist happened this week when the German Federal Supreme Court has ruled in favour of Bundeskartellamt. The position of the author is in favour of the need for dual proceedings. A breach of data protection can be considered a breach of competition rules only if a cogent theory of harm based on solid evidence proves that competition is harmed.

Post-Mortem Protection of Human Dignity

After a long development, Rome Statute represents a codification of customary international humanitarian law. Despite of her own national history with respect to war crimes, Germany finally promotes prosecution of offences against crimes as set forth by the Rome Statute through national authorities based upon the German Criminal Code of Crimes against International Law which mirrors the Rome Statute. Desecration of dead adversaries has become outraging practice in armed conflicts of international and non-international character. The German Federal Supreme Court of Justice in its case law has stated the criminal illegality of such wrong-doing by not only referring to the Rome Statute, but either implementing international case law when it comes to desecration of corpses according to Section 8 paragraph 1 No 9 of the German Criminal Code of Crimes against International Law.

Revisiting Access to Cultural Heritage in the Public Domain: EU and International Developments

In the past year, a number of legal developments have accelerated discussions around whether intellectual property rights can be claimed in materials generated during the reproduction of public domain works. This article analyses those developments, focusing on the 2018 German Federal Supreme Court decision Museumsfotos, Art. 14 of the 2019 Copyright and Related Rights in the Digital Single Market Directive, and relevant provisions of the 2019 Open Data and the Re-use of Public Sector Information Directive. It reveals that despite the growing consensus for protecting the public domain, there is a lack of practical guidance throughout the EU in legislation, jurisprudence, and literature on what reproduction media might attract new intellectual property rights, from scans to photography to 3D data. This leaves ample room for copyright to be claimed in reproduction materials produced by new technologies. Moreover, owners remain able to impose other restrictive measures around public domain works and data, like onsite photography bans, website terms and conditions, and exclusive arrangements with third parties. This article maps out these various legal gaps. It argues the pro-open culture spirit of the EU Directives should be embraced and provides guidance for Member States and heritage institutions around national implementation.

Leaking of secret military reports qualifies as reporting of current events

Abstract German Federal Supreme Court, Judgment of 30 April 2020, I ZR 139/15—‘Afghanistan Papiere II’ The German Federal Supreme Court (BGH) followed the Court of Justice of the European Union (CJEU) in its interpretation of the exception for the reporting of current events.

No copyright infringement for publication by the press of politician’s controversial essay

Case comment of German Federal Supreme Court, Judgement of 30 April 2020, I ZR 228/15 – “Reformistischer Aufbruch II. Following the preliminary ruling by the Court of Justice of the European Union (CJEU), the German Federal Supreme Court (BGH) found that the publication on an online news portal of full versions of a previously published essay written by a politician does not infringe copyright.