What's happening now: News

We are happy to keep you informed about current developments in case law and the latest decisions of the Federal Court of Justice. Here you can read the most important updates from our daily legal practice and rulings at various levels of jurisdiction.

Copyright: no freedom of panorama for drone photographs
November 2024

Drone images are not subject to the freedom of panorama under copyright law, as clarified by the Federal Court of Justice in its ruling of October 23, 2024. Images of copyrighted sculptures, installations, paintings, etc. that were created using a drone may therefore not be used commercially, published in magazines or made publicly available online, e.g. on websites or in social media, without the consent of the author.
Unit price contract: Construction schedules are not instructions within the meaning of Section 2 (5) VOB/B.
October 2024

The Federal Court of Justice set out the requirements for a change to the construction process in the unit price contract within the meaning of Section 2 (5) VOB/B in its ruling of 19.09.2024. According to this, a change order requires a legal declaration from which the intention to unilaterally change the contract can be inferred. According to the BGH, the interpretation according to the general rules also shows that reactions to construction schedule disruptions, including in the form of amended construction schedules, do not constitute an amendment in this sense. In addition, the BGH confirmed that a claim for damages pursuant to Section 6 (6) VOB/B requires the breach of a contractual obligation by the client, not merely an obligation.
Commencement of limitation period in the event of improper use of funds in the contract
September 2024

According to a recent ruling by the Federal Court of Justice, if an agent uses funds provided for investment at a bank for an improper purpose, the client's claim for restitution against him only becomes due when it is established between the parties that the funds were not invested in accordance with the order and the agent is therefore no longer in a position to do so. The mere improper use does not start the limitation period if the client has no knowledge of this.
Necessary assertion of a value in dispute enabling an appeal against non-admission in the courts of fact
August 2024

On 11.07.2024, the First Civil Senate of the Federal Court of Justice made an interesting decision for civil procedural practice. According to this decision, the parties must already assert a complaint (and thus an amount in dispute) of more than € 20,000.00 in the factual instances and present the factual requirements for this if they want to keep the path to the third instance open. Furthermore, if the appeal judgment does not contain any facts, the appellant's submission must be assumed in the appeal against denial of leave to appeal proceedings, which can make it easier to assert a violation of the right to be heard.
Medical liability: no reversal of the burden of proof in the case of a (simple) breach of the duty to provide therapeutic information
July 2024

The reversal of the burden of proof in the event of a simple error in the assessment or securing of findings in accordance with Section 630h (5) sentence 2 BGB does not apply if a treating physician has breached the obligation to provide therapeutic information, according to the VI Civil Senate of the Federal Court of Justice in a recent ruling. Sections 630a et seq. of the German Civil Code have not changed its previous case law on the reversal of the burden of proof in medical liability law. The distinction between an error in making a diagnosis and an error in providing therapeutic information still depends on where the focus of the medical error lies according to the circumstances of the particular case.
Contracts between banks in cashless payment transactions and third-party claims settlement
June 2024

The contractual relationships between the banks involved in cashless payment transactions do not have a protective effect in favor of third parties; as the Federal Court of Justice ruled in a recent judgment, the principles of third-party damage liquidation apply in this respect. The payment service provider of the payee is obliged to inform its intermediary bank that the interests of the payer are at risk if the risk is objectively evident. If a bank breaches a duty to warn or inform in payment transactions, the presumption of correct disclosure applies, which reverses the burden of presentation and proof in favor of the party to be informed.
Federal Court of Justice on the initial jurisdiction of an antitrust senate in appeal proceedings
May 2024

According to a recent decision by the Federal Court of Justice, the jurisdiction of a special senate - in this case for antitrust cases - in appeal proceedings is also conceivable if a general civil law dispute was conducted at first instance. This applies to proceedings in which aspects relevant to antitrust law are asserted for the first time in the second instance, provided that they can be taken into account in civil proceedings, in particular if they are not late. In order to effectively lodge such an appeal with the Higher Cartel Court, the antitrust aspects must be raised within the time limit for filing the grounds of appeal. In individual cases, however, the admissibility of the appeal may also result from uncertainty regarding the jurisdiction of the general court of appeal.
The German Scale of Medical Fees (GOÄ) also applies to contracts with legal entities.
April 2024

In its ruling dated 04.04.2024 (III ZR 38/23), the Federal Court of Justice ruled that the scope of application of the GOÄ (scale of fees for doctors) also extends to contracts for outpatient medical services concluded between a patient and a legal entity, such as a hospital operator. It is only important that remuneration is claimed for the professional services of a doctor. A flat-rate price agreement between, for example, a hospital and a patient is therefore invalid.
Federal Court of Justice: no general right under Article 15(3) GDPR to the disclosure of complete documents
March 2024

In its ruling of March 5, 2024, the Federal Court of Justice clarified that the right to "copies" within the meaning of Art. 15 para. 3 GDPR does not refer to the complete documents relating to the data subject. The claim only relates to the personal data itself, not to the documents in which it is contained. The data subject may request complete copies of such - still existing - documents that they themselves have created and sent to the party obliged to provide information, such as their own emails or letters. However, there is generally no entitlement to the complete handover of, for example, file notes, telephone notes or consultation minutes.
Requirements for a subsequent decision on the admissibility of the appeal by the court of appeal
February 2024

If the court of first instance assumed that the weight of the losing party was more than € 600.00 and therefore saw no reason to decide on the admission of the appeal, according to the case law of the Federal Court of Justice, the court of appeal, which assesses the weight to be lower, can decide on the admission of the appeal. However, if such an assessment by the lower court is doubtful, for example because it may have assumed that a non-pecuniary dispute exists, the court of appeal is prevented from making a subsequent decision on the admission of the appeal. The appeal is then not admissible.