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The amendments introduce a new Article 20.1 which stipulates the mechanism for terminating the rights of a foreign investor to buy back assets that it had previously owned in Russia.

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LEGISLATION

Instances where the term of office of a member of the board of directors (supervisory board) of a Russian joint stock company and limited liability company is cut short were introduced

The term of office of a member of the board of directors (supervisory board) is cut short and the individual is deemed to have stepped down in case of their death, the submission of a respective notice of resignation by the member of the board of directors (supervisory board), the individual is declared legally incompetent or partially incompetent, has been prohibited by a court sentence from engaging in specific activity or holding specific positions, if this is incompatible with the performance of the function of a member of the board of directors (supervisory board), or has been disqualified. At the same time, if the term of office of a member of the board of directors (supervisory board) is cut short further to a notice of resignation, their term ceases from the date when the company received the respective written notice from the individual. If this option is stipulated by the charter of the joint stock company or limited liability company, a new member of the board of directors (supervisory board) may be elected to replace the individual who has stepped down. In this case, the specific voting procedures in place at the joint stock company should be applied.

The amendments entered into force on 15 July 2026.

Document: Federal Law No. 237-FZ dated 4 July 2026 "On the Introduction of Amendments to the Federal Law "On Joint Stock Companies" and Certain Legislative Acts of the Russian Federation".

Changes have been introduced to the rights of creditors to demand early performance from a company in case of a reorganisation

The Ministry of Justice of the Russian Federation has proposed compelling creditors to demand security from a company that is undergoing a reorganisation. The company itself is entitled to prove in court that the reorganisation will not compromise the performance of its obligations to such a creditor and that the creditor’s interests are already guaranteed to a sufficient degree by the security held by the creditor at present.

Previously, the legislator had been compelled by the Constitutional Court of the Russian Federation to introduce amendments to the Russian Civil Code in connection with the need to recalibrate the balance of interests of creditors and a company undergoing reorganisation, see Judgment No. 17-P of the Constitutional Court of the Russian Federation dated 24 March 2026.

Document: Draft Federal Law "On the Introduction of Amendments to Article 60 of the Civil Code of the Russian Federation" (prepared by the Ministry of Justice of Russia, ID of the Draft 04/13/04-26/00167689).

An "obligatory transaction" that involves the sale or purchase of a participation interest in the charter capital of a limited liability company must be notarised

The Federal Chamber of Notaries has issued mandatory recommendations for notaries which stipulate that a "contract establishing the obligation, in the event of the emergence of specific circumstances, or the performance by the other party of a reciprocal obligation, to conclude a transaction aimed at the alienation of a participation interest or part of a participation interest in the charter capital of the company" (Paragraph Three, Clause 11 of Article 21 of the Law On Limited Liability Companies) must be notarised. In light of these recommendations, it will prove problematic to conclude any parts of transactions with participation interests in the charter capital of a limited liability company which are conditional. This concerns first and foremost transactions where the transfer of participation interests in the charter capital of a limited liability company is contingent on the receipt of a permit of the Government Commission for Control of Foreign Investments.

Document: Letter No. 4914/03-16.3 of the Federal Chamber of Notaries dated 26 May 2026 "On the Sending of Methodological Guidelines on Concluding Transactions Regarding Participation Interests in the Charter Capitals of Limited Liability Companies".

The limit on certain foreign investments performed by Russian residents without requiring a special permit has been doubled to the equivalent of RUB 30 million

The Bank of Russia has adopted a decision which authorises residents to perform operations involving the payment of participation interests, contributions, equity interests in a property (charter or joint capital, mutual fund of a cooperative) of non-resident legal entities, as well as the payment of a contribution by residents to non-residents in simple partnership agreements to invest via capital investments (joint venture agreements) (hereinafter the operation) without the receipt of individual permits of the Bank of Russia, subject to simultaneous compliance with the following criteria:

• The operation is performed in roubles or a foreign currency, regardless of the domicile of the beneficiary of such monetary funds, for a total amount that does not exceed the equivalent of RUB 30 million at the official exchange rate of the Bank of Russia on the payment date;
• Effective 1 July 2026 the aggregate volume of the resident’s operations being concluded in favour of one non-resident legal entity, taking into account the operations concluded thereby to this entity since 1 April 2024, must not exceed the aforementioned limit equivalent to RUB 30 million at the official exchange rate of the Bank of Russia on the payment date.

Previously, this limit equalled the equivalent of RUB 15 million.

The new limit has been in effect since 1 July 2026.

Document: Decision No. PRG-43-11/1199 of the Working Group of the Bank of Russia dated 1 June 2026 "On Considering the Issues of the Granting of Permits to Perform (Execute) Operations (Transactions) in Respect of Which Prohibitions (Restrictions) Have Been Established on Their Conclusion in Connection with the Unfriendly Actions of Foreign States".

Draft of New Regulations "On the General Meeting of Shareholders"

The Bank of Russia has prepared the draft of new Regulations "On the General Meeting of Shareholders" to replace the existing document. The Draft aims to improve and update the additional requirements on the procedure for preparations for the holding of the meeting or on absentee voting for the adoption of decisions by the general meeting of shareholders, as well as the list of additional information (materials), which must be provided to the parties entitled to attend the meeting or vote remotely in case of their preparation. The Draft also enshrines additional requirements on the preparation and holding and on the procedure for the adoption of decisions at meetings with remote attendance.

The Draft stipulates requirements on the contents of the minutes on the voting results, the minutes of the general meeting and the report on the voting results, inter alia, it reduces the quantity of information that must be reflected therein, and establishes additional requirements, for the purpose of eliminating the duplication of some of the information in the indicated documents and ruling out scenarios where issuers have doubts as to the various types of information they are required to include in each of the indicated documents. It is anticipated that this will lead to a decrease in the number of infringements committed during the preparation of respective documents.

The Draft will apply to both public and non-public joint stock companies, except in the case of joint stock companies where one shareholder disposes of all the voting shares.

The Draft is projected to enter into force from 1 January 2027.

Document: Draft Regulations of the Bank of Russia "On the General Meeting of Shareholders" (prepared by the Bank of Russia, ID of the Draft 04/15/05-26/00168251).

JUDICIAL PRACTICE

Business Judgment Rule

The Russian Supreme Court stated that if decisions on increasing the charter capital of a company are challenged, the business judgment rule should be applied – unless proved otherwise, it is assumed that the controlling participant (shareholder) implemented for legitimate purposes the mechanism for the additional placement of shares related to an increase in the company’s capitalisation. In the case under consideration, the Russian Supreme Court declared that it had been proved that the additional share issue conducted on non-market conditions had contravened the requirements of effective legislation and resulted in material adverse consequences for the minority shareholders, as the share issue had resulted in a material decrease in the percentage of the votes they held at the general meeting, thereby restricting their right to participate in the management and control of the company’s operations. At the same time, the respondent had filed to substantiate the economic rationale for the increase in the company’s charter capital.

Document: Ruling No. 301-ES26-1201 of the Judicial Panel for Economic Disputes of the Supreme Court of the Russian Federation dated 3 June 2026 in case No. А17-75/2023.

Secondary liability of the controlling person (director and sale participant) of a company struck off from the Unified State Register of Legal Entities for providing information that was false

The failure to submit truthful information on the legal entity in certain circumstances (for example, total relinquishment of control of the legal entity’s operations) may be classified as unreasonable and bad-faith actions, as the controlling persons as participants in entrepreneurial activity must have known that if a record containing false information on a business entity in the register remained there for a specific period of time, the entity would subsequently be removed from the Unified State Register of Legal Entities. The lack of evidence that the controlling person had duly performed its public law duties and adopted measures to delete the record containing false information from the Unified State Register of Legal Entities demonstrates that they had deviated from the standard of reasonable conduct, in the absence of respective explanations. In this instance, the creditor is entitled to file a claim on holding secondarily liable the persons that controlled the debtor’s operations.

Document: Judgment No. F05-4268/2026 of the Commercial Court of Moscow District dated 21 May 2026 in case No. А41-84043/2024.

Topics in this issue are:

Case law

• Federal Court of Justice: GDPR Damages for Misdirected Xing Massage
• Saxon Higher Administrative Court: Video Hearing from an Unsafe Third Country may be Refused
• Siegburg Labour Court: EUR 1,000 Damages fpr Disclosing a Diagnosis in a WhatsApp Group
• Arnberg Local Court: Initial Access Request may be Abusive
•  

Regulatory investigations and enforcement actions

• Italy: Fines Totalling EUR 7.72 Million for Intransparent Credit Scoring
• Italy: EUR 2 Million Fine Against Data Broker Lusha

Opinions

• EDPB: Guidelines on Anonymisation
• EDPB: Guidelines on Web Scraping for Generative AI

The Privacy Ticker is available in the download area below or under this link.

The Law must still be approved by the Federation Council and signed by the President of the Russian Federation. Based on past experience, even if amendments are made, they will be immaterial.

The amendments introduce a new Article 20.1 which stipulates the mechanism for terminating the rights of a foreign investor to buy back assets that it had previously owned in Russia.

The parties entitled to file claims for the termination of buyback rights and the assets affected

When applying the mechanism for terminating the buyback right, foreign investors are understood to mean persons from unfriendly states (legal entities, individuals, foreign organisations that are not legal entities), as well as any legal entities and organisations that are not legal entities controlled by persons from unfriendly states.

A claim for the termination of the buyback right (hereinafter the claim) of a foreign investor may be filed by the following parties (hereinafter the acquirers):

• Russian citizens,
• Russian legal entities and
• Foreign legal entities that are controlled by a Russian citizen and whose personal law is the law of a foreign state that is not included among unfriendly states.

The buyback right termination option applies to shares, participation interests in the charter capitals of limited liability companies and other business assets. A claim may only be filed in respect of buyback options that had been concluded after 22 February 2022.

The Commercial Court of Moscow Region is the competent court that will hear any such claim. The existence of an arbitration clause applicable to the resolution of disputes between contracting parties is not relevant here as the draft law stipulates to all intents and purposes the exclusive competence of the Commercial Court of Moscow Region.

A claim may be filed by:

• The acquirer after the receipt of a positive opinion (the so-called position) of the relevant federal ministry and a positive opinion of the Government Commission for Control of Foreign Investments in the Russian Federation (hereinafter the Government Commission),
• The relevant federal ministry after the receipt of the respective authorisation of the Government Commission.

The procedure for issuing opinions must be determined by the Government of the Russian Federation. We assume that this will be done through an addendum to the existing Resolution No. 295 of the Government of the Russian Federation dated 6 March 2022, which regulates at present the issue of permits by the Government Commission.

Criteria for satisfying a claim

The following are the criteria for satisfying a claim:

1. After 22 February 2022 the foreign investor committed any of the following actions (hereinafter unfriendly actions):

   (a) Supported publicly the commission of unfriendly actions against the Russian Federation, Russian citizens or Russian legal entities, advocated the commission of such actions, or

   committed actions aimed at discrediting the use of the Armed Forces of the Russian Federation and/or the exercise by the state authorities of the Russian Federation of their functions to protect the interests of the Russian Federation and its citizens, maintain international peace and security, or 

   disseminated, on the pretext of truthful communication, patently false information on the use of the Armed Forces of the Russian Federation and/or the exercise by the state authorities of the Russian Federation of their functions for the indicated purposes;

   (b) Engaged in actions associated with the financing of terrorism, extremism and/or the financing of the proliferation of weapons of mass destruction;

   (c) Issued a public statement on the termination and/or suspension of operations in the Russian Federation and/or committed actions (failed to take any action) associated with such a declaration, or did not duly perform their duties, inter alia, arising from corporate and/or other similar contracts, or

   committed actions aimed at restricting the conclusion and performance of and/or at cancelling contracts of material significance for the operations performed by the foreign investment asset, facilitated the commission of such actions by another person, inter alia, regarding prohibition on the use in the Russian Federation of intellectual property and/or means of identification, the prohibition, termination or suspension of or imposition of material restrictions on the production (delivery) of goods, the provision of services and/or the performance of work in the Russian Federation.

   The actions indicated in this paragraph are deemed to have been committed if they are not attributable to evident economic reasons (grounds) and/or there are grounds for assuming that they are related to compliance by a foreign investor with restrictive measures introduced by foreign states and/or international organisations which are committing unfriendly actions against the Russian Federation, Russian citizens and Russian legal entities;

2. The buyback option implies the purchase (buyback) of the foreign investment asset by the foreign investor at a price that deviates from the market price of the foreign investment asset by 25% and more, and/or the acquirer made additional investments in the foreign investment asset and/or in other assets, and also took other actions where failure to do so might have led to the suspension of, a material decrease in or termination of the operations of the foreign investment asset in the Russian Federation.

Compensation paid to the foreign investor

A foreign investor is entitled, not later than one year after the date of the entry into force of the court decision on satisfying the claim, to file a demand with the purchaser for the payment of compensation. In case of a dispute between the foreign investor and the acquirer on the amount of compensation, the court is entitled:

• To reduce the amount of compensation to the foreign investor, taking into account the nature of its unfriendly actions, the size of the losses associated with such actions, as well as the volume of the investments made by the acquirer in the foreign investment asset and other related business assets after the alienation by the foreign investor of the foreign investment asset;
• To deny the payment of compensation of the foreign investor in case of the commission by the foreign investor or its officials, who are or had been the sole executive officers, of actions associated with the financing of terrorism, extremism and/or the financing of the proliferation of weapons of mass destruction, if this had served as grounds for holding the indicated persons administratively or criminally liable.

Consequences

If the law is finally adopted, it is hard to say how the provision under consideration here will be applied in practice. It looks as if a key role here will be played by the Government Commission. It is unclear how compensation will be calculated and how it will be paid – abroad or to a type C account. The issue as to how extensively the presumption of the law that sanctions compliance constitutes an unfriendly action remains open at present, for sanctions are the law in the countries that approved them, accordingly compliance is a priori binding on persons from such countries.

We will keep you informed of any developments regarding this topic.

Kamil Karibov
Nikolay Potanin

We would like to remind you here that further to the amendments dated 1 June 2026 to Decree No. 95, the temporary procedure for performing obligations on loans and borrowings and financial instruments to foreign creditors associated with so-called unfriendly states (hereinafter the temporary procedure and foreign creditors accordingly) applied to the deposits of foreign creditors.

The substance of the temporary procedure is that obligations may be performed through a transfer of funds to a special C account (with limits on authorised transactions) or on the terms agreed upon in the permit of the Government Commission for Control of Foreign Investments in the Russian Federation (hereinafter the Government Commission). 

Non-resident individuals faced a number of restrictions regarding their deposits at Russian banks immediately after the entry into force of the indicated amendments. 

The clarification of the Bank of Russia represents an attempt to clarify certain issues on the application of Decree No. 95 to bank deposits. 

Deposits of Russian subsidiaries 

Even though the Bank of Russia did not address in its clarification how the temporary procedure applies to the deposits of legal entities controlled by foreign creditors, the current version of Decree No. 95 does not affect the performance of obligations under the bank deposit contracts of such entities if they are registered in the Russian Federation. This follows directly from Clause 1 of Decree No. 95. 

Accordingly, such entities may dispose of such deposits at their discretion, without adhering to the restrictions arising from Decree No. 95. The clarification of the Bank of Russia does not apply to them.     

Bank deposit and bank account

According to the clarifications of the Bank of Russia, Decree No. 95 does not apply to obligations arising from a bank account contract. 

Consequently, transactions on settlement and correspondent accounts may be performed without any of the restrictions established by the temporary procedure. 

Extension of the term of a bank deposit

The Bank of Russia clarified that Decree No. 95 does not contain any prohibition on extending the term of a bank deposit, including through the introduction of respective amendments to a bank deposit contract. At the same time, it should be noted here that the obligation to pay interest, including in instances when the term of a bank deposit contract is extended, should be performed pursuant to the temporary procedure established by Decree No. 95. 

This implies that payments of interest in excess of RUB 10 million a calendar month (or in excess of the foreign currency equivalent of this amount according to the official exchange rate of the Bank of Russia established on the first day of each month) should be transferred to a type C account. Otherwise – the transfer of the interest to the general bank account of a client - this can only be done with a respective permit of the Government Commission. 

The issue arises as to how the temporary procedure should be applied to the payment of interest income through the capitalisation of interest on a deposit. The Bank of Russia’s clarifications do not provide any instructions on this score. Consequently, it transpires that at present interest should be capitalised in compliance with the temporary procedure.

Closing of a bank deposit

According to the Bank of Russia’s clarifications, Decree No. 95 does not permit the option of terminating obligations under a bank deposit contract of a foreign creditor through the transfer of funds to the bank account (including correspondent account) of a foreign creditor that is not a type C account, and/or to the bank account of a third party without the receipt of a permit of the Government Commission. 

Notwithstanding the lack of express references to this effect in the Bank of Russia’s clarifications, there would appear to be no restrictions on transfers of amounts up to RUB 10 million (or the equivalent foreign currency amount at the exchange rate of the Bank of Russia) per calendar month to a bank account that is not a type C account. In other words, the exception to the temporary procedure stipulated by Clause 2 of Decree No. 95 applies to bank deposits. It should be borne in mind that as the closing of a bank deposit, payment of the amount of the deposit and respective accrued interest, happen simultaneously, we would expect banks to interpret any deposit over and above RUB 10 million to be covered by the temporary procedure, and it is unlikely that such a payment could be broken down by months.

However, if a permit of the Government Commission to the transfer of a deposit to bank account has been obtained, then the deposit can be transferred to other accounts, and not only to a C type account. 

How much money can be withdrawn?

The Bank of Russia’s position that the amount of the obligation of a credit institution under bank deposit contracts should be determined, for the purpose of compliance with Clause 2 of Decree No. 95, proceeding from the amount of the obligation to each depositor per calendar month, is worthy of note.

This is a deviation from the position previously articulated by the Bank of Russia that obligations for the purposes of compliance with Clause 2 of Decree No. 95 should be understood to mean the aggregate amount of all the obligations of the debtor indicated in Clause 1 of Decree No. 95 to all foreign creditors in a calendar month. If the amount of such obligations exceeds RUB 10 million a calendar month, a debtor’s performance of its obligations to any foreign creditor is contingent on compliance with the temporary procedure established by Decree No. 95, regardless of the amount due and payable to this foreign creditor¹.

Russian banks adhered to this position prior to the introduction of the amendments to Decree No. 95.

The new interpretation issued by the Bank of Russia improves the position of non-resident depositors, as the limit of RUB 10 million a calendar month is established for each depositor, thereby enabling the depositors of a specific bank to seek to recover more significant amounts than had been the case in the past. Consequently, each depositor may recover from one bank up to RUB 10 million from all the deposits opened at that bank. Moreover, it follows from the Bank of Russia’s clarifications that a depositor that has deposits at several banks may obtain amounts of up to RUB 10 million a calendar month at each bank where it has a deposit or deposits. 

However, it follows from recent judicial practice on payments of borrowings and dividends to foreign creditors that the threshold amount of RUB 10 million a calendar month which is exempt from the temporary procedure in accordance with Clause 2 of Decree No. 95, is considered the maximum limit on payments per foreign creditor per calendar month regarding all the financial obligations, the performance of which is covered by Decree No. 95 (borrowings, dividends, etc.)

In view of the above, it cannot be ruled out that banks may adopt this approach to payments on deposits, which would limit significantly the ability of foreign creditors to dispose of their funds on deposit accounts.         

In general, one can conclude that a large number of issues as to how Decree No. 95 should be applied to the bank deposits of unfriendly foreign persons have yet to be resolved. We will continue to monitor the development of legal regulation in this area and will keep you up to date.

¹ Clause 1.1 of Official Clarification No. 6-OR of the Bank of Russia dated 20 May 2022.

Kamil Karibov
Nikolay Potanin

On 1 July 2026, under the authority granted by Clause 7 of Decree No. 618 of the President of the Russian Federation dated 8 September 2022 "On the Special Procedure for the Performance (Execution) of Certain Types of Transactions (Operations) Between Certain Parties" (hereinafter "Decree No. 618"), the Ministry of Finance of the Russian Federation issued Official Clarifications No. 5¹ on the application of Decree No. 618 (hereinafter the "Clarifications").

According to the Clarifications, the procedure established by Decree No. 618 for the performance (execution) of transactions (operations) does not apply in the following cases:

1. The General Meeting of Participants of a Limited Liability Company (hereinafter "OOO") adopts decisions to introduce amendments to the OOO's charter concerning the formation of the OOO's bodies, the determination of or changes to their competence, and/or the termination of the authorities of the OOO's bodies.
   
   According to the Clarifications, the establishment of, amendments to or termination of rights, which make it possible to determine the terms and conditions of the management of the OOO and/or the operations of the OOO, which are the result of the adoption of such decisions, do not require the permit of the sub-commission of the Government Commission for Control of Foreign Investments in the Russian Federation (hereinafter the "Government Commission").
    

2. The size of the participation interest of a participant of the OOO in the OOO's charter capital is changed through the cancellation of the undistributed or unsold participation interest in the charter capital or a portion thereof belonging to the OOO within the timeframe established by the law, and the OOO's charter capital is reduced by the par value of this participation interest or a portion thereof.

This concerns the participation interest or a portion thereof in the OOO's charter capital acquired by the OOO itself in accordance with Article 24 of Federal Law No. 14-FZ dated 8 February 1998 "On Limited Liability Companies" (hereinafter the "LLC Law"). Pursuant to Article 24(2) of the LLC Law, the participation interest or a portion thereof acquired by the OOO in its own charter capital must either be distributed among all OOO participants pro rata to their participation interests in the OOO's charter capital or offered for purchase to all or some of the OOO's participants or, if this is not prohibited by the OOO's charter, to third parties within one year of the date when the participation interest or a portion thereof was transferred to the OOO.

If this is not done by the statutory deadline, then based on Article 24(5) of the LLC Law the undistributed or unsold participation interest or a portion thereof in the OOO's charter capital must be cancelled, and the amount of the OOO's charter capital must be reduced by the par value of this participation interest or a portion thereof.

Therefore, according to the Clarifications, the cancellation of a undistributed or unsold participation interest or a portion thereof in the OOO's charter capital and the corresponding reduction of the OOO's charter capital does not require the permit of the Government Commission.

At the same time, the transaction (operation) where the OOO acquires the participation interest or a portion thereof in its own charter capital may require the permit of the Government Commission if it meets the criteria established by Decree No. 618.

¹ Letter No. 05-06-13RМ/56768 of the Ministry of Finance of the Russian Federation dated 1 July 2026.

Alexey Kuzmishin
Nikolay Potanin

Topics in this issue are:

Case law

• EJ: No GDPR Prohibition on the Use of Unlawfully Obtained Data
• Federal Court of Justice: Personal Data of Third Parties Does not Need to be Redacted when Inspecting Files in Foreclosure Proceedings
• Federal Administrative Court: Health Insurance Plans Fall Under Art 9(2)(H) GDPR
• Regional Court of Freiburg: Art. 15 GDPR Covers Payment and Gaming History
• Berlin Regional Court I: Deutsche Wohnen Fine Reduced to EUR 900,000

Regulatory investigations and enforcement actions

• France: EUR 5 Million Fine Imposed on IQVIA for Health Data Violations
• Norway: EUR 1.8 Million Fine for Invalid Consent

Opinions

• Data Protection Authority Baden-Württemberg: AI Transcription of Municipal Council Meetings

The Privacy Ticker is available in the download area below.

Please find the newsletter in English and Russian by following this link.

You can find the newsletter in english and russian by following this link.

Welcome to the June issue of ADVANT Beiten's International Briefing.

For a clearer view of European M&A market, ADVANT has prepared its fifth M&A Deal Study. Aimed at professionals involved in M&A, it serves as a practical reference point, offering a data-driven understanding of prevailing practices. Drawing on 217 transactions advised by ADVANT across Europe in 2025, the Study provides insights into negotiation trends, risk allocation, and pricing, supported by benchmarks across jurisdictions and deal sizes. Explore the key findings here or download the full report from our website.

In the current newsletter as usual we will also highlight interesting developments in the European and German legal landscape, invite you to meet us at international events, and tell you about our recent deals.

Kind regards,

Dr Barbara Mayer
Prof Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

Topics in this issue are:

Case law

• Administrative Court of Berlin: Video Surveillance and ID Checks in Public Outdoor Pools Permissible
• Regional Court of Dortmund: Art. 15 GDPR not an Investigative Tool for Gambling Games

Regulatory investigations and enforcement actions

• Netherlands: EUR 100 Million Fine Against Taxi App for Data Transfer to Russia
• Italy: EUR 12.5 Million Fine Against Poste Italiane and Postepay for App Monitoring

Opinions

• BFDI, Federal Network Agency and Hesse Publish Roadmap for AI in Medical Devices
• EU Commission: Recommendation for Privacy-Friendly Age Verification

Event highlights

• Webinar: The EU Cyber-Resilience Act - What Businesses Need to Do Now, 2 July from 11:00 - 12:00 CET

The Privacy Ticker is available under this link or in the download area below.

• EU Parliament/Council: Changes to the AI Regulation via the “Digital Omnibus”

Case law

• Higher Regional Court of Düsseldorf: AI-assisted modification of a photo does not automatically infringe copyright
• Regional Court of Frankfurt am Main: Copyright protection for a partially AI-generated song
• Berlin Administrative Court: AI-“invented” case law citations in a lawyer’s brief
• Augsburg Regional Court: AI client acquisition system prohibited
• Hamm Higher Regional Court: Operator liable for false statements made by an AI chatbot

Statement / Miscellaneous

• EU Commission: Draft guidelines on transparency obligations under Art. 50 AI Regulation
• EU Parliament: Copyright and generative AI
• BMDS: “Agentic AI Hub” launches pilot in municipalities
• EU Commission: Draft guidelines on the classification of high-risk AI systems

Event Highlight

• Digital Law Day on June 24 in Frankfurt
• Webinar: “The EU Cyber Resilience Act - What businesses need to do now” on July 2

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Where does Europe stand upon the world stage today, how can it remain a key player and where are the best opportunities to shine?

As we pass the first quarter of the 21st century, the dynamics of global trade have shifted significantly, geopolitical tensions loom large and markets are in flux. Policy-makers, regulators and businesses in the EU are grappling with an array of highly complex, intersecting (and often competing) challenges and drivers. Chief among them are: how to boost productivity, deliver sustainable growth and underpin competitiveness, while maintaining consumer and worker protections. How to pursue innovation, encourage investment and attract talent, and mitigate the threat of losing ground to China and the US. How to navigate risks around critical issues such as climate change and artificial intelligence (AI), while unlocking the potential opportunities that new technologies could bring. How to leverage the advantages of this large, mature market, by being agile and ambitious, while staying true to important principles around responsibility, fairness and justice. Since the corporate legal function’s role touches all parts of a business, it is a critical barometer for issues such as these. In-house legal teams are central to how companies prepare for and respond to a world of fast-paced political, economic, societal and technological change - whether through protecting new innovations, complying with emerging legislation, or ensuring commercial opportunities are realized effectively. The scale of the economic task Europe is facing should not be underestimated. In the European Commission’s “Future of European Competitiveness” report, former European Central Bank President Mario Draghi pointed to slow growth and low productivity and said the EU is facing “an existential challenge.” European economic performance is lagging its major competitors, and EU growth in 2026 is forecast to reach 1.4%, compared to 2.1% in the US and 4.2% in China.

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You can find the Newsletter in English and Russian by following this link.

Topics in this issue are:

Case law

• Federal Court of Justice: Right to Information cannot be Asserted as a Derivative Right by Third Parties
• Administrative Court of Düsseldorf: transport Encryption for E-Mails is Generally Sufficient
• Regional Court of Krefeld: No Compensation for Zero-Day Exploit

Regulatory investigations and enforcement actions

• Italy: Fine of EUR 31.8 Million Against Bank for Unauthorized Access to Customer Data
• Italy: Fine of EUR 17.6 Million Against Bank for Passing on Customer Data
• Spain: Fine of EUR 950,000 for Inadmissible Processing of Biometric Data

Opinions

• EDPB Publishes DPIA Template
• Federal Council: Statement on Data Protection Regulations in the “Digital Omnibus”
• EDPB: Guidelines on the Processing of Personal Data for Scientific Research Purposes

The Privacy Ticker is available under this link or in the download area below.

You can find the newsletter “Selling on e-commerce platforms: What should be kept in mind?” in English and Russian by following this link.

With a strong pan-European presence and deep local expertise, our multidisciplinary teams support clients in navigating regulation, executing transactions and handling complex disputes. As part of the ADVANT alliance, we combine sector insight with seamless cross-border capability – helping you manage risk, ensure compliance and unlock opportunities in a rapidly evolving market.

From complex investigations and enforcement proceedings to the design and implementation of robust compliance systems, we support financial institutions and their key individuals across the full risk spectrum. As part of ADVANT Beiten and the ADVANT alliance, we provide seamless, cross-border advice – making us a trusted single point of contact in increasingly complex, multi-jurisdictional matters.

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Comprehensive expertise. Individual solutions.

ADVANT Beiten is a leading German commercial law firm that advises on all areas of commercial law. What sets us apart is the individual and reliable advice we offer. Our experts understand our clients’ concerns.

Topics in this issue are:

Changes in Legislation

• New Rules on AI Usage in Baden-Württemberg

Case law

• ECJ: Abuse of Access Requests Under Article 15 GDPR
• Jena Higher Regional Court: Unlawful Offsite Data Collection by Meta Business Tools
• Berlin II Regional Court: No Data Transfer from WhatsApp to Meta

Regulatory investigations and enforcement actions

• United Kingdom: EUR 16.8 Million Fine Against Reddit
• Italy: EUR 2 Million Fine for Unauthorized Contracts by Sales Partners
• Sweden: EUR 560,000 Fine Due to Lack of IT Security on Sports Platform

Opinions

• 61 Supercisory Authorities Worldwide issue Joint Statement on AI-Generated Content

The Privacy Ticker is available under this link or in the download area below.

Please find here the newsletter in English and Russian.

welcome to the March issue of ADVANT Beiten's International Briefing.

To understand what drives business success in Europe and what general counsel expect from in-house teams, external advisers, and European policymakers, ADVANT recently launched a research project to create “ADVANT Special Report: Europe’s opportunity outlook”. We surveyed 800 GCs across France, Germany, Italy, and the US, supported by interviews with senior legal leaders. The findings reveal companies’ views on Europe’s key opportunities and challenges in today’s complex economic and geopolitical climate and offer candid insights into what works well in the European legal and regulatory framework, and where improvement is needed. The results are clear: Europe remains highly attractive for investment, with 87% of US GCs viewing it as a key market for growth. If you or your clients are looking to follow this trend and take advantage of the opportunities Europe offers, ADVANT stands ready as your one‑stop shop for all Europe‑related projects.

In this issue we will also highlight interesting developments in the European and German legal landscape, invite you to meet us at international events, and tell you about our recent deals.

You can find the newsletter by following this LINK

Kind regards,

Dr Barbara Mayer
Prof Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

You can find the Newsletter “Opinion of Federal Anti-Monopoly Service of Russia: Advertising on YouTube and Telegram Is Not Permissible” in English and Russian by following this link.

Please find here the newsletter in English and Russian.

Please find here the version in English and Russian.

Topics in this issue are:

Changes in Legislation

• Act for Critical Infrastructure Protection Passed

Case law

• Federal Court of Justice on the Performance of a Contract as a Legal Basis
• Regional Court Frankenthal: Tesla Video Admitted ad Evidence Despite Possible Data Protection Violation
• Administrative Court of Düsseldorf: Redaction of Third-Party Data Permitted in the Case of Right to Information

Regulatory investigations and enforcement actions

• Adequacy Decision for Brazil
• France: EUR 5 Million Fine Agsinst State Employment Agency
• France: EUR 3.5 Million Fine for Data Transfer to Social Network

Opinions

• EDPB and EDPS: Joint Opinion on the Digital Omnibus
• EDPB: Results of the Audit Action on the Right to Erasure Published
• Google Recaptcha Moves to Order Processing

The Privacy Ticker is available under this link or in the download area below.

In this AI Briefing, we will inform you about: 

Case Law:

• Higher Regional Court Hamburg: Text and Data Mining for AI Training Permissible in Case of Insufficient Opt-Out
• Regional Court Frankfurt: Liability of Google for “AI Overview” is not per se Excluded
• Local Court Munich on Copyright Protection for AI-Generated Graphics
• Administrative Court Hamburg: Use of ChatGPT Classified as Attempted Cheating Even Without Explicit Ban

Regulatory Actions

• EU Commission: Investigtation Launched into X Regarding Systemic Risks Posed by Grok

Opinions / Other:

• Joint Opinion of the EDPB and EDPS on the Digital Omnibus on AI
• EU Commission: First Draft of AI Transparency Code Published
• EU Commission: “Agentic AI” Report and Strategy for Autonomous AI Systems
• Stanford Study: Leading Models Reproduce Copyright Books Almost Entirely

You can find our briefing here.

编者寄语

各位读者朋友：

昂帆百达律师事务所新的一期中文新闻简报现在和您见面了。值此新春佳节来临之际，昂帆百达律师事务所中国业务部的全体同仁感谢您一直以来的信任和支持，并祝您和您的家人在即将到来的 2026 丙午马年身体健康、阖家幸福、龙马精神、骏业日新。我们的新闻简报主要面向在德的中资企业和有意愿在德投资的中国企业及企业家。在简报中，我们向您介绍最新的德国法律动态以及我们的律师团队在为中国投资者提供法律服务过程中当前所遇到的法律问题。

请点击以下链接查看我们的特别新闻简报，获取更多信息

Please click here for the english version and the russian version.

The January issue of our Privacy Ticker deals with the changes in  the current case law, regulatory investigations and enforcement actions and opinions.

Topics in this issue are:

Case law

• Federal Court of Justice: Premium History Data in Private Health Insurance only Subject to Information in Case of Personal Reference
• Frankfurt Higher Regional Court: Third-Party Providers are Liable for Cookies without Consent
• Administrative Court of Wiesbaden: Data Protection Authority Must Take Action Against Schufa
• Munich Higher Regional Court: Meta Liable for Damages in Conneciton with Business Tools

Regulatory investigations and enforcement actions

• France: EUR 42 Million Fine Imposed on Mobile Telecommunications Provider for Inadequate Security Measures
• France: Further Fine of EUR 1.7 Million for Inadequate Security Measures
• LDI NRW: EUR 300,000 Fine for Misleading Advertising and Disregard of Data Subject Rights

Opinions

• GDPR Reform Suggestions by the DSK
• Joint Opinion of the EDPB and EDPS on the Digital Omnibus on AI
• BaFin: Guidanec for the Use of AI in Financial Companies

The Privacy Ticker is available under this link or in the download area below.

In a comprehensive article on gamesindustry.biz [click here to read the article], we sum up what happened last year and analyse the key legal trends to watch this year. Building on this analysis, this Games Law Briefing translates the legal developments into a practical to-do list, highlighting what companies now need to be aware of and where concrete action is required.

We are happy to provide you with more in-depth analysis or assessment of specific issues – so that you can master all regulatory levels in 2026.

All the best,
Dr Andreas Lober

Access the full “Games Law Briefing – What to Watch in 2026: Legal Developments for the Games Industry” here: LINK

Click here for the whole english version aswell as the russian version.

The December issue of our Privacy Ticker deals with the changes in  the current case law, regulatory investigations and enforcement actions and opinions.

Topics in this issue are:

Case law

• ECJ: Hosting Providers can be Rsponsible for User Content
• Federal Court of Justice: Damages for Failure to Delete Data by the Processor
• Berlin Administrative Court: Purpose of the Request for Information Irrelevant for Assertion
• Lübeck Regional Court: Damages of EUR 5,000 for Meta Business Tools

Regulatory investigations and enforcement actions

• CNIL: EUR 1.5 Million Fine Against American Express for Cookie Violations
• CNIL: EUR 750,000 Fine on Publisher for Cookies without Consent and Ineffective Refusal

Opinions

• EDPB: Recommendations on the Admissibility of Mandatory User Accounts in E-Commerce

The Privacy Ticker is available under this link or in the download area below.

Click here for the whole english version aswell as the russian version.

The November issue of our Privacy Ticker deals with the changes in legislation, the current case law, regulatory investigations and enforcement actions and opinions.

Topics in this issue are:

Changes in legislation

• Omnibus package: EU plans to amend GDPR, Data Act, AI Act, etc.
• German Parliament passes NIS 2 Implementation Act

Case law

• Federal Court of Justice: Permissible transfer of positive data to SCHUFA
• Administrative Court of Berlin: Duty to provide information on data origin in lettershop proceedings

Regulatory investigations and enforcement actions

• Federal Data Protection Authority: Recognition of the first consent management service
• Croatia: EUR 4.5 million fine for intra-group data transfer to third country
• Finland: Fines imposed on banks for security deficiencies in online banking

Opinions

• Hessian Data Protection Authority: Microsoft 365 can be used in compliance with data protection law

The Privacy Ticker is available under this link or in the download area below.

You can find the Newsletter “Liability of controlling persons: Clarifications of the Russian Supreme Court” in English and Russian under this link.

If you would like to discuss what these developments mean for your company, please do not hesitate to get in touch. We look forward to continuing the conversation – and wish you an engaging read.

In this AI Briefing, we will inform you about:

Changes in Legislation: 

• Draft Bill of the AI Act Implementation Law
• Italy: First EU Country with National AI Law

Case Law: 

• Munich Regional Court I: Inadmissible Use of Song Lyrics for AI Training and Output
• Hamburg Regional Court: AI Chatbot Grok not Spread Inaccurate Factual Assumptions
• Berlin Regional Court II: AI-Generated Voice Violates Personal Rights and Data Protection
• Cologne Local Court: Lawyer Uses AI to Invent Legal Rulings and Findings
• Great Britain: Barrister Uses AI and Cites Fictitious Judgements
• Great Britain: High Court London Dismisses Getty Images' Claim Against Stability AI
• Canada: AI Hallucinations Lead to Fine for Party

Opinions:

• DSK: Orientation Guidance Assesses RAG Method as Mitigating Action
• WhatsApp Changes General Terms and Conditions: Ban on General-Purpose AI Chatbots as of 2026

You can find the Briefing under this link.

Please find the flyer in the download area below.

You can find the newsletter in English and Russian under this link.

The October issue of our Privacy Ticker deals with the changes in legislation, the current case law, regulatory investigations and enforcement actions and opinions.

Topics in this issue are:

Case Law

• Regional Labor Court of Hamm: EUR 15,000 in Damages for Video Surveillance at the Workplace
• Administrative Court of Düsseldorf: GDPR Information Requests Do Not Have to Be Fulfilled Within One Month
• Higher Regional Court of Stuttgart: Free Service Even When “Paying with Data”
• Regional Court of Munich I: No GDPR Damages Against Facebook for US Data Transfers

Regulatory Investigations and Enforcement Actions

• Hamburg: Fine of EUR 492,000 Imposed on Financial Company for Automated Credit Card Decision
• Netherlands: EUR 2.7 Million Fine Imposed on Credit Agency for Unlawful Data Processing
• Spain: Fine of EUR 1.5 Million for Data Breach

Opinions

• German Data Protection Conference Calls on Federal Government to Reject Chat Monitoring
• EDPB: Opinions on UK Adequacy Decisions
• German Data Protection Conference: Third-Country Transfers in Scientific Research for Medical Purposes

The Privacy Ticker is available under this link or in the download area below.

You can find the newsletter in English and Russian under this link.

welcome to the October issue of ADVANT Beiten's International Briefing.

In September 2025 ADVANT Beiten celebrated the opening of its new office in London with Sebastian Diehl, LL.M. (Cambridge) joining as an Equity Partner. We are pleased to share an interview with Sebastian Diehl, in which he reflects on his professional journey and outlines his strategic vision for ADVANT Beiten’s presence in London.

In this issue we will also highlight interesting developments in the European and German legal landscape, invite you to meet us at international events, and tell you about our recent deals.

You can find the newsletter by following this link.

Kind regards,

Dr Barbara Mayer
Prof. Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

The legislative package is far more than a new version and extension of the 4th and 5th Anti-Money Laundering Directives. It represents a paradigm shift in the fight against money laundering and terrorist financing. With the new regulations, the provisions for anti-money laundering and countering terrorist financing will be comprehensively harmonised and fundamentally reorganised throughout the EU for the first time.

For obliged entities in the financial sector in particular, the implementation effort associated with the AML package is likely to go well beyond that of the 4th Anti-Money Laundering Directive and will keep institutions very busy beyond the three-year implementation period.

The particular challenge and necessity for you is to identify the need for adjustments to existing processes now on the basis of the known new regulations to ensure timely implementation of the AML package within the three-year implementation period.

At the same time, a sufficiently flexible implementation process must be defined on the basis of this initial impact analysis, which allows further adjustments to be made on an ongoing basis due to outstanding national implementation laws and more specific regulatory requirements.

Our brochure provides an overview of the new regulations in the AML package as well as tips for efficient and legally compliant implementation in the financial sector.

Topics in this issue are:

Changes in Legislation

• Data Act Applicable Since 12 September

Case law

• EGC: EU-US Data Privacy Framework Remains Effective
• ECJ: Pseudonymous Data can Lack Personal Reference
• ECJ: Negative Feelings can Justify GDPR Compensation
• Berlin Regional Court: AI-Generated Voice Violates Personal Rights and Privacy
• Administrative Court of Bremen: Automated Fee Notice Violates Data Protection

Regulatory investigations and enforcement actions

• France: Fine of EUR 325 Million Against Google For Email Advertising
• France: Fine of EUR 150 Million Against Shein For Cookies

Opinions

• Federal Network Agency: No Telecommunications Secrecy With Permitted Private Use of Emails in the Employment Relationship
• EDPB Guidelines on the Interplay Between the DSA and the GDPR

The Privacy Ticker is available under this link.

You can download the flyer here or by clicking on the ‘Download associated files’ button.

The August issue of our Privacy Ticker deals with the changes in legislation, the current case law, regulatory investigations and enforcement actions and opinions.

Topics in this issue are:

Case Law

• Federal Court of Justice denies damages for hypothetical risks
• Higher Regional Court Schleswig-Holstein on Meta’s AI training

Regulatory Investigations and Enforcement Actions

• Poland: EUR 3.96 million fine against McDonald’s due to data leak
• Spain: EUR 250,000 fine for unauthorized collection of fingerprints and missing information
• Spain: fine of EUR 200,000 against bank for excessive storage

Opinions

• BfDI on the use of social networks by the federal administration
• EU Commission uses Microsoft 365 in compliance with data protection law
• BSI & ANSSI on design principles for LLM-based systems with zero trust

The Privacy Ticker is available under this link or in the download area below.

We must admit it has been a while since we last wrote a Games Law Briefing. Not that we have been lazy – quite on the contrary, you have kept us very busy this year, and that is great.

But sometimes it takes an external event to spark us into action – and that has been a decision the German Federal Court of Justice has delivered on 31 July 2025, and some alarming news reports about it. We will come to that in a moment.

But first:
We will be at Gamescom. Get in touch with us!
We will be in Cologne from Tuesday, 19 August to Thursday 21 August (or maybe even Friday 22 – let’s see….). You can meet Peggy, Wojtek, Daniel, and me. 

And here is the reason which made us send this mail quickly:
Keep calm and fight cheating. It is true that Sony lost its case against the distribution of cheat software before the Federal Court of Justice (Der Bundesgerichtshof - Presse : Pressemitteilungen - "Cheat-Software" für Spielkonsolen verstößt nicht gegen Urheberrecht, soweit sie Objekt- oder Quellcode der Spielesoftware nicht umschreibt). The decision came as no sursprise, as Germany's highest court did pretty much what it had to do after the ECJ ruling last year in the „Action Replay“ case. But that does not mean you cannot fight cheating any more. The case was limited to a tiny fraction of arguments you can raise against providers of cheat software for multiplayer games. In fact, the arguments the ECJ and the Federal Court of Justice turned down are arguments we normally did not even raise when taking action against the providers of cheat software for multiplayer games. Last year I wrote a short article for Gamesindustry (Why the European Court of Justice's decision on cheats is not a milestone | Opinion | GamesIndustry.biz) – everything said therein is still true. A brief summary of the case can also be found on Gameswirtschaft (German language Streit um Cheat-Software: Sony verliert auch vor dem BGH (Update) - GamesWirtschaft.de). So if you have a cheat issue, please contact us.

For those of you who are interested in investing in China, my colleague Susanne Rademacher from our Bejing office has written a blog post.

Game on – and see you in Cologne! You can download the briefing here.

The July issue of our Privacy Ticker deals with the changes in legislation, the current case law, regulatory investigations and enforcement actions and opinions.

Topics in this issue are:

Changes in Legislation

• EU Platform for Online Dispute Resolution Shut Down

Case Law

• Administrative Court of Cologne Allows Federal Government to use Facebook
• Higher Regional Court of Frankfurt: Mandatory Provisioning of E-Mail Address or Mobile Number for Purchasing Train Ticket Unlawful
• Regional Court of Leipzig: Compensation of EUR 5,000 for Data Protection Violations by Meta Business Tools
• Regional Court of Nuremberg-Fürth: Social Network must Provide Information on Data in Tracking Tools and on Third-Party Websites
• Higher Regional Court of Nuremberg: Burden of Proof for Data Protection Claims in Civil Proceedings

Regulatory Investigations and Enforcement Actions

• Spain: EUR 1.38 Million Fine Against Energy Supplier due to Errors in Data Reconciliation

Opinions

• Federal Network Agency sets up AI Service Desk
• EDPB in Favor of Strenghtening and Simplifying the GDPR
• Federal Office for Information Security Publishes Criteria for the Use of Generative AI in the Federal Administration

The Privacy Ticker is available under this link or in the download area below.

请点击以下链接查看我们的特别新闻简报，获取更多信息

You can download the entire the brochure by clicking “download associated files”.

The June issue of our Privacy Ticker deals with the changes in legislation, the current case law, regulatory investigations and enforcement actions and opinions.

Topics in this issue are:

Changes in Legislation

• Council and Parliament: Agreement on Cross-Border Enforcement of the GDPR
• European Commission Extends Adequacy Decision with UK

Case Law

• Volkswagen Escapes Fine of EUR 4.3 Million Due to Formal Error
• Administrative Court of Hanover: Google Tag Manager Requires Consent
• Labor Court of Heilbronn: Employee must Specify Request for Information in the Case of a Long-Term Employment

Regulatory Investigations and Enforcement Actions

• Federal Commissioner for Data Protection: Fine of EUR 45 Million Against Vodafone
• Finland: Pharmacy Finded EUR 1.1 Million for Cookies and Tracking Technologies

Opinions

• German Data Protection Conference: Guidance on the Development and Operation of AI Systems
• German Data Protection Conference: Decision on Online Appointment Bookings in Medicial Practices
• NOYB Sues German Data Protection Authorities for Inactivity

The Privacy Ticker is available under this link or in the download area below.

welcome to the June issue of ADVANT Beiten's International Briefing.

Germany remains one of the world’s most attractive destinations for foreign direct investments. This reputation is well-deserved, as the country offers a stable legal environment, a highly skilled workforce, and a dynamic industrial landscape, all of which create a robust foundation for successful business ventures. In ADVANT Beiten's newly released guide "Investing in Germany" our experts provide a comprehensive overview of the legal framework for foreign investments in Germany - practical, understandable and with extensive experience in the field of foreign direct investments.

This year our Beijing office proudly celebrates its 30^th anniversary. We are delighted to share with you an insightful interview with our Beijing team of Susanne Rademacher, Dr Jenna Wang-Metzner, and Lelu Li, highlighting their dedication and three decades expertise in the field of the inbound and outbound investments in China.

In this issue we will also highlight interesting developments in the European and German legal landscape, invite you to meet us at international events, and tell you about our recent deals.

You can find the newsletter by clicking here.

Kind regards,

Dr Barbara Mayer
Prof. Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

With a newly flexible budget for defence spending, including a suspension of the “debt brake“ for defence
and security, there are significant opportunities for foreign companies to participate in the rapidly
expanding defence market. However, navigating the procurement process in this sector requires expertise
and proactive positioning.

Please find the flyer by clicking “download associated files”.

The May issue of our Privacy Ticker deals with the current case law, regulatory investigations and enforcement actions and opinions.

Topics in this issue are:

Case Law

• Higher Regional Court of Cologne: Meta May Use Data from Facebook and Instragram for AI-Training
• Belgian Market Court: TC-Framework Violates GDPR
• Administrative Court of Hannover: Cookie Banner must Provide “Reject All” Button
• Higher Labour Court of Hesse: Forwarding of Employee Data to Private E-Mail Account Leads to Exclusion from Works Council
• Higher Administrative Court of Berlin-Brandenburg: No Rights to Access S-Bahn Video Recordings
• Federal Labour Court: Employee Receives Compensation from Employer for Loss of Control
• Regional Court of Berlin: Google Account Registration Violated GDPR

Regulatory Investigations and Enforcement Actions

• Ireland: Fine of EUR 530 Million Against TikTok for Transferring Data to China
• Italy: Fine of EUR 5 Million for Data Protection Violations at AI-Chatbot Replika
• Italy: Fine of EUR 3 Million Against Energy Supplier for Aggressive Telemarketing
•  

Opinions

• Data Protection Authority Hamburg Publishes Paper on the Data Act
• Berlin Group: Working Paper on Neurotechnologies

The Privacy Ticker is available under this link or in the download area below.

While these Q&A answer many typical questions that businesses may have, they naturally cannot be exhaustive. You are invited to contact our experts at any time should you have any additional or clarifying questions. Our experts serve as trusted competition counsel to major industry players in many key sectors, and represent clients before the European Commission and national competition authorities. In the past year alone, we have successfully advised on numerous complex deals, and obtained unconditional clearances in the vast majority of cases. In doing so, we have often worked in close cooperation with our M&A team and have provided comprehensive regulatory advice, including on foreign direct investment
control and foreign subsidies regulation.

We advise clients on all aspects of merger control law – both at Europe-wide level and within national jurisdictions – to enable them to achieve their business goals while limiting exposure to merger control risks. We analyze filing requirements, conduct feasibility studies, conceive filing strategies and analyze risks for transactions falling in the new category of transactions below controlling thresholds. We then represent clients in merger control proceedings in the EU, France, Germany and Italy, and coordinate their foreign merger control filings. If unavoidable, we support our clients when negotiating remedies and when appealing adverse decisions. Finally, we regularly help third parties in dealing with information requests and intervening against their competitors’ acquisitions.

To order a PRINTED COPY, please send an e-mail to events@advant-beiten.com with the subject line "Printed copy: Investing in Germany" and the desired language (English or Chinese).

Topics in this issue are:

CHANGES IN LEGISLATION

• German Coalition Agreement: Demands to Adapt the GDPR and BDSG

CASE LAW

• Federal Court of Justice: Data Protection Violations can be Prosecuted by Consumer Protection Associations and Competitors
• Federal Court of Justice: Mere Loss of Control is Sufficient for GDPR Compensation
• Administrative Court of Luxembourg Confirms Fine of EUR 746. Mio. Against Amazon
• Regional Court of Berlin Obliges Meta to Pay Compensation of EUR 2,000 for Business Tools
• Local Court of Lörrach: Data Subjects have no Right to Proof of Data Erasure

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• British Data Protection Authority: Fine of EUR 3.68 Mio. for Inadequate Technical and Organizational Measures

OPINIONS

• Hamburg COmmissioner for Data Protection: Possibility to Object to Meta's AI Training

The Privacy Ticker is available under this link or in the download area below.

You can download the newsletter “Corporate law 1st Quarter 2025” in English and Russian by clicking on "Download associated files".

What companies need to know now

Dear Reader, 

The digital transformation brings opportunities, but also new regulatory challenges.

Companies are faced with a growing number of regulations designed to ensure that digital products, services and processes are legally compliant and secure.

Digital compliance encompasses a wide range of regulations that affect companies - from data law and artificial intelligence (AI) to cybersecurity and platform regulation. New regulations such as the AI Act, DORA (Digital Operational Resilience Act), CRA (Cyber Resilience Act) or NIS2 (Network and Information Security Directive) have a significant impact on business practice in many industries.

We help you to keep track: On this page, you will find the most important information on current and upcoming regulatory requirements - explained in an understandable and practical way.

Stay compliant and shape a secure and sustainable digital future.

Please find the Tech Law Briefing under this link.

Topics in this issue are:

CHANGES IN LEGISLATION

• European Health Data Space Regulation in Force

CASE LAW

• ECJ: Disclosure of the Accounting Basis of Automated Credit Rating
• Federal Court of Justice: Unlawful Advertising Email does not Automatically Lead to GDPR Damages
• Regional Court of Kaiserslautern: No Evidence Ban in Case of Secret Video Recordings of Abuse in Slaughterhouse

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Baden-Württemberg: Police Officer Fined EUR 3,500 for Private Data Query
• Poland: Fine of EUR 6.48 Million for Unlawful Processing of Voter Data

OPINIONS

• EDPB: Europe-Wide Review Action on the Right to Erasure
• Meta Reaches Agreement with Plaintiff to Refrain from Personalised Advertising

The Privacy Ticker is available under this link or in the download area below.

Topics in this issue are:

CHANGES IN LEGISLATION

• EU Commission Withdraws Plans for E-Privacy Regulation and AI Liability

CASE LAW

• ECJ: Discretion of the Authority in the Case of Excessive Complaints
• ECJ: Finde Amount Depends on Worldwide Group Turnover
• Higher Regional Court of Schleswig: Transport Encryption Insufficient when Sending Invoices by E-Mail
• Federal Court of Justice: Compensation of EUR 500 Due to Unauthorized Schufa Entry

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Italy: Data Protection Authority Bans DeepSeek
• German Data Protection Authorities Initiate Investigation Proceedings Against DeepSeek
• Spain: Fine of EUR 4 Million Against Generali Due to Data Breach

OPINIONS

• EU Commission Guidelines on Prohibited AI Practices
• EDPB Adopts Statement on Age Assurance

The Privacy Ticker is available under this link or in the download area below.

Member firms include ADVANT Altana in France, ADVANT Beiten in Germany, and ADVANT Nctm in Italy. These firms serve their clients, both in Europe and internationally, by providing the highest-quality advice and results – efficiently and cost-effectively through technical excellence, dedication, and true collaboration.

A unique venture in the European legal market, ADVANT brings together strong national players to provide clients with the ‘best of both worlds’: deep local foundations and an international vision and reach.

welcome to the February issue of ADVANT Beiten's International Briefing.

Our ADVANT M&A practice is pleased to share that in 2024 Mergermarket's Global and Regional Rankings, we were ranked among the top 20 law firms in Europe by deal count. You can download the report here. This Mergermarket highlight reflects the dedication of the whole team working seamlessly across ADVANT Altana, ADVANT Beiten, and ADVANT Nctm. We wish to thank our domestic and international clients for the growing trust in our offering on the European market.

In this issue we will also highlight interesting developments in the European and German legal landscape, give you an insight into our secondment program, invite you to meet us at international events, and tell you about our recent deals.

You can find our International Briefing by clicking here.

Kind regards,

Dr Barbara Mayer
Prof. Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

You can download the newsletter in English and Russian by clicking on "Download associated files".

Topics in this issue are:

CHANGES IN LEGISLATION

• DORA in Force

CASE LAW

• ECJ: Gender Information Unnecessary when Purchasing Tickets
• ECJ: Collective Agreements do not Create a Legal Basis

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Ireland: Fine of EUR 251 Million Against Meta Due to Data Breach
• Italy: Fine of EUR 15 Million Against OpenAI for Lack of Legal Basis and Intransparency
• Netherlands: Fine of 4.75 Million Against Netflix for Lack of Information

OPINIONS

• EDPB Adopts Guidelines on Pseudonymisation
• EDPB: Opinion on the Processing of Personal Data in AI Models
• Lowe Saxony Data Protection Authority: Criticism of the Consent Managament Regulation

The Privacy Ticker is available under this link or in the download area below.

Hence, what we set out in this publication are some of the most common question we face in regard to AI regulatory matters. Thus, please read this publication to get a first understanding on the current AI legislation in China and for any specific question, please contact us anytime!

To read the flyer please download the associated files.

Please find the flyer by downloading the associated files.

请点击以下链接查看我们的特别新闻简报，获取更多信息

China has progressively refined its AML framework, aligning it with global standards. As these regulations evolve, businesses operating in China need to stay informed about new compliance obligations, particularly those regarding UBO filings. Entities established before 1 November 2024 must ensure to identify and register their UBOs in China latest by 1 November 2025 and entities established after 1 November 2024 must prepare to submit the relevant data upon company registration.

Hence, what we set out in this publication are some of the most common questions we face in regard to AML matters and UBO filings in China. Thus, please read this publication to get a first understanding on how UBO filings are handled in China and for any specific question, please contact us anytime!

Please find the flyer by clicking the download button below.

However, the speed of developments in recent months has surprised us. There is hardly a medium that has not reported in one form or another – and the current possibilities are being tested in schools just as much as in companies. Meanwhile, the third edition of the German broschure is available and we decided to publish it in English language as well.

The aim of this brochure is to provide a brief overview of the current legal situation and the state of the discussion. A brief presentation such as this cannot claim to be complete in terms of breadth and depth.

In addition, we venture an outlook on future developments and possible adaptations of the legal framework with regard to the advancing automation of AI and robotic systems. We are particularly interested in questions concerning the protectability of works created by AI on the one hand and questions of liability on the other – up to and including the not only provocative question of whether artificial intelligences should be holders of rights, perhaps even be given a legal personality. Here, too, we can and will only provide food for thought and discussion in a work of limited scope.

The German version has been published in summer 2024. This is an English translation for which some of the chapters have been updated.

Dr. Andreas Lober
Susanne Klein

You can download the whole brochure by clicking on "Download associated files".

Topics in this issue are:

Changes in Legislation

• Cyber Resilience Act and Amendment ofProduct Liability Directive in Force

CASE LAW

• ECJ: Exemptions from Information Obligations also for Self-Generated Personal Data
• Federal Social Court: Delayed Information Does not Lead to Loss of control Over Data
• Austrian Federal Administrative Court: Consent for Google Recaptcha
• Labour court of Duisburg: Compensation of EUR 10,000 for Disclosure of Health Data

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• France: Fine of EUR 50 Million Against Telecommunications Service Provider for Unlawful Advertising
• Italy: Fine of EUR 5 Million Against Delivery Service for Unauthorized Tracking
• Spain: Fine of EUR 1.3 Million Against Telecommunication Service Provider After Cyber Attack

OPINIONS

• EDPB Guidelines on Art. 48 GDPR

The Privacy Ticker is available under this link or in the download area below.

A new article of the Criminal Code of the Russian Federation also enters into force on 11 December 2024. It establishes liability for the illegal use and/or transfer, collection and/or storage of information on computers that contains personal data.

¹Under the Russian personal data law, personal data leaks are understood to mean the illegal or accidental transfer of (the provision, dissemination of, granting of Access to) personal data which led to the infringement of the rights of personal data subjects.

You can download the newsletter “Unprecedented increase in liability for personal data leaks” in English and Russian by clicking on "Download associated files".

Topics in this issue are:

CASE LAW

• Federal Court of Justice: Loss of Control from Facebook Scraping can be Damage
• Higher Regional Court of Frankfurt: Self-Service Tool in X Fulfils Right to Information Under Art. 15 GDPR
• Regional Labour Court of Düsseldorf: Employer Must Inform Applicants that it Googles them

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Spain: Fine of EUR 3.5 Million Against Telecommunications Provider due to Ransomware Attack
• Hamburg Data Protection Authority: Fine of EUR 900,00 for Breach of Deletion Obligations
• Finland: Fine of 2.4 Million for Setting up an E-Mail Inbox

OPINIONS

• EDPB: First Report on the EU-US Data Privacy Framework
• German Data Protection Conference: Updates Guidelines for Providers of Digital Services
• German Data Protection Conference: Guidelines on Selected Issues of the New Online Access Act

The Privacy Ticker is available under this link or in the download area below.

Effective 20 October 2024, the prohibition on the transit via Russia and export from Russia of dual-use goods applies to a wider range of goods. The prohibition covers new categories of dual-use goods, in particular: electric engines and generators, communications and navigation equipment, binoculars.

You can download the newsletter “Prohibitions on the transit of dual-use goods via Russia and their export from Russia have been expanded” in English and Russian by clicking on "Download associated files".

You can download the newsletter "Dismissal of the chief executive officer of a Russian company with foreign participation" in English and Russian by clicking on "Download associated files".

Topics in this issue are:

CHANGES IN LEGISLATION

• Draft of an Employee Data Protection Act
• Cyber Resilience Act Adopted

CASE LAW

• ECJ: Order Information can Represent Health Data
• ECJ: No Obligations of the Supervisory Authorities to Take Remidial Action
• ECJ: Apology can be Sufficient Compensation for Damage
• ECJ: Sensitive Data may not be Used for Personalised Adverstising

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Fine of EUR 310 Million against LinkedIn for Unlawful Processing for Advertising Purposes
• Fine of EUR 91 Million against Meta for Storing Passwords

OPINIONS

• EDPB: Responsibilities of the Controller in the Assignment of Data Processors
• EDPB: Guidelines on the Balancing of Interests

The Privacy Ticker is available under this link or in the download area below.

welcome to the October issue of ADVANT Beiten's International Briefing.

On 15 September 2021 three independent law firms ALTANA from France, Beiten Burkhardt from Germany, and Nctm from Italy have launched their European alliance ADVANT and recently we celebrated our 3rd birthday.

ADVANT has changed and enriched our work, allowing us to rely on extensive practice and insights of our Member Firms to provide a better and seamless experience for our clients across our ADVANT jurisdictions and beyond. We have achieved a lot, and we strive for more.

In this issue, of course, we will highlight interesting developments in the European and German legal landscape, invite you to meet us at international events and tell you about our clients’ successes.

Enjoy the read!

You can find our International Briefing October 2024 here.

Kind regards,

Dr Barbara Mayer
Prof Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

Topics in this issue are:

CHANGES IN LEGISLATION

• Federal Government Adopts Cookie Regulation

CASE LAW

• Higher Regional Court of Munich: Data Breach Justifies Termination of Employment without Notice
• Regional Court of Traunstein: No Claim against Social Network for Data Processing Solely in Europe
• Administrative Court of Schleswig: Dashcam Videos on YouTube must be Pixelated

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Fine of EUR 30.5 Million against Clearview
• Fine of EUR 3.2 Million due to Meta-Pixel on Website

OPINIONS

• Data Protection Conference: Transfer of Personal Data in Asset Deals
• Data Protection Conference: Resolution on the Use of Facial Recognition Systems by Security Authorities
• Data Protection Conference: Guidelines on Data Processing in Connection with Radio-Based Meters

The Privacy Ticker is available under this link or in the download area below.

Please find the brochure by downloading the associated files.

ADVANT Beiten‘s lawyers have been shaping games law for over ten years. They have been at its very forefront and have won landmark decisions, some of them being the first of their kind in Europe, or even the world.

Over the years, we have gained particular experience in this field, which we want to share with you. This is the third edition of this booklet, last revised in summer 2024.

Games law is as dynamic as ever. New business models create new legal challenges, and regulation has become tighter. Thus, we will also cover the relevant EU laws (e.g. Digital Services Act, Digital Markets Act, Data Act, Artificial Intelligence Act, Cyber Resilience Act), which implement new obligations and GDPR-style fines, regulate online services, and try to tame gatekeepers.

This booklet gives an overview of some of the topics we consider to be especially relevant in games law today. Of course, the list is not complete, and we cannot go into detail.

What we can provide – and what we aim to provide – is a very German perspective. We have learned over the years where German law is stricter than international clients may expect; sometimes it is also more effective and occasionally it is even more liberal.

Let the games begin! We hope you enjoy reading! You can download the Briefing here.

Over this time, the use of parallel imports has exposed certain contradictions in legal regulation, the existence of a number of outstanding issues related to the use of the mechanism of parallel import, as well as ongoing risks for foreign rights holders.

You can download the flyer on the topic in English and Russian in the download area below.

Topics in this issue are:

CHANGES IN LEGISLATION

• Data Transfer to the USA: New Agreement Between Switzerland and the USA Adopted

CASE LAW

• Federal Court of Justice: Explicit Naming of Data Protection Officer not Mandatory
• Administrative Court of Stuttgart: City Ordered to Pay EUR 2,500 Compensation for Unauthorized Publication of Health Data
• Administrative Court of Ansbach: Data Subject has Right to Demand Intervention from Data Protection Authority

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Fine of EUR 290 Million Against Uber Because of Data Transfer to the US
• USD 60 Million Fine Against T-Mobile Due to Unauthorized Data Access

OPINIONS

• Guidelines for Local Authorities and Administrations on the Right to Information Under Article 15 GDPR
• EU Commission: Second Report on the Evaluation of the General Data Protection Regulation

The Privacy Ticker is available under this link or in the download area below.

At the same time, the key role played by financial institutions in sanctions compliance is increasingly attracting the attention of legislators and regulators.

In view of the unprecedented nature and scope of the EU sanctions packages against Russia, banks, insurance companies and other financial service providers had to adapt their sanctions compliance programs (SCP) to the new embargo and sanctions regulations under enormous time pressure. Due to time and personnel constraints, interim solutions had to be applied in many cases.

More than two years after the beginning of the war and the 14th sanctions package, companies are faced with the question of whether the ad-hoc adjustments to their SCP will also meet regulatory requirements in the long term and how new sanctions regulations can be integrated into the SCP with legal certainty. Moreover, it is increasingly important to ensure that attempts at circumvention are effectively identified and prevented. After all, regardless of the complexity and speed with which new sanctions regulations are issued and must be implemented, violations can result in severe fines, criminal sanctions, and reputational damage.

We provide an overview of the current challenges of sanctions compliance in the financial sector.

You can download our brochure under the associated files.

Topics in this issue are:

CHANGES IN LEGISLATION

• Digitalisation in the Healthcare Sector: Innovations for Cloud Computing in Force

CASE LAW

• ECJ: Claim by Consumer Associations in Case of GDPR Infringements Confirmed
• Federal Labor Court: Processing if Health Data in an Employment Relationship

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Online-Platform Vinted Fined Almost EUR 2.4 Million
• Fine of EUR 6.4 Million Against Italian Energy Company
• Fine of Some EUR 1.3 Million Against Swedish Bank

OPINIONS

• Agreement Between the EU and Japan on Data Flows in Force
• Hamburg Data Protection Authority: Large Language Models do not Store Personal Data
• BaFin: Implementation Information on DORA

The Privacy Ticker is available under this link or in the download area below.

The FSR defines a foreign subsidy as any financial contribution from a non-EU government that confers a benefit on an entity operating in the European Union. This includes grants, loans, tax incentives and other forms of support. Due to this broad definition, the regulation has the potential to include a large number of cases in its scope, which results in additional compliance requirements for companies in the EU.

Furthermore, the FSR empowers the European Commission to investigate and remedy distortions caused by foreign subsidies in the EU market through three main tools: screening of large mergers and acquisitions, as well as of large public procurement tenders, and ex officio investigations for all other market situations.

The FSR introduces comprehensive measures to address the impact of foreign subsidies in the EU market. By adopting and implementing a proactive approach to comply with the new regulation, companies can mitigate risks and respond effectively to regulatory controls. Our firm is well placed to provide expert advice and support throughout this process, ensuring that your business remains competitive and compliant in the evolving regulatory environment.

You can find the Brochure in the download area below.

welcome to the July issue of ADVANT Beiten's International Briefing.

We are pleased to share that the ADVANT alliance has once again been recognised by the prestigious Chambers and Partners and the Legal 500 rankings. This year ADVANT lawyers ranked an impressive 43 times across 23 practice areas in the Chambers Europe Guide 2024. Additionally, the Chambers Global Guide 2024 ranked 8 departments and 13 ADVANT lawyers across multiple practice groups. In the Legal 500 EMEA 2024 rankings, ADVANT's expertise and experience was highlighted in 58 practice areas, with 38 professionals ranked individually and over 100 professionals recommended.

It has been another few busy months for the ADVANT Midwest and Northeast teams as they have travelled to the U.S. for a series of meetings with American law firms and clients to make the unique ADVANT offering known. And the next trips are already planned for September and October. Please be in touch with Barbara Mayer and Hans-Josef Vogel if you would like to meet us on one of the upcoming ADVANT's US strategy trips.

This year ADVANT's China Outbound EU Investment Forum was a great success once again. The forum began early April in Beijing, with further events in Shanghai and Guangzhou throughout the week. ADVANT delegates together with representatives from agencies and high-ranking representatives of Chinese companies discussed developments and challenges of doing business in the EU, such as greenfield investment and distressed M&A, dispute resolution, and cross border employment.

Additionally, for the enterprises registered in the People’s Republic of China (“PRC”) and their shareholders a flyer "China: Revised Company Law", prepared by the team of ADVANT Beiten in China (Susanne Rademacher, Jenna Wang-Metzner, Lelu Li, and Kelly Tang), can be of interest as it flags the issues that must be complied under the revised PRC Company Law and related regulations, which all entered into effect on 1 July 2024.

In circumstances of increasing global economic tensions and protectionism, when every cross-border M&A deal requires analysis under foreign trade law, expertise in this area is becoming more and more important. Christian von Wistinghausen (ADVANT Beiten) was ranked among the 50 leading German foreign direct investment control experts. The full piece can be read online here (subscription required).

We would like to also mention that Andreas Lober (ADVANT Beiten) was quoted in Compliance Week on the Digital Services Act and Digital Markets Act and the impact on Big Tech across the EU. The full piece can be read online here (subscription required). Please see our Privacy Ticker and Tech Law Briefing for information and updates on IT, the Law of Data, and Intellectual Property. Martin Seevers (ADVANT Beiten) wrote an article for the Yearbook "Perspectives 2024" of the Association of Foreign Banks in Germany, where he talks about changes in requirements for tax compliance in the financial sector as a result of current measures and legislative initiatives in the area of tax transparency and to combat tax evasion and tax fraud.

Among ADVANT publications in this issue we would like to highlight:

ADVANT M&A Deal Point Study. We looked into more than 4,000 data points of our M&A deals from 2023 to keep record of our performance and to be on the lookout of M&A industry trends to provide our clients with the best services. If you wish to read our Deal Point Study, you may request a free copy here.

Overview Q&A: The VAT Group regime in France, Germany and Italy. Philippe de Saint-Bauzel, Marie Darcq (both ADVANT Altana), Markus P. Linnartz, Helmut König (both ADVANT Beiten), Andrea Mantellini, Barbara Aloisi (both ADVANT Nctm) provide an overview of VAT policy requirements and modalities for introducing the VAT Group regime in France, Germany and Italy, as well as covering the advantages and implications.

Despite our busy schedules and work commitment, to foster better connections our teams meet in person as well. Members from the Corporate / M&A practice group from across ADVANT Altana, ADVANT Beiten and ADVANT Nctm met in Freiburg in June for a productive day of workshops and talks, including from ADVANT Beiten practice group coordinators Barbara Mayer and Hans-Josef Vogel as well as Bruno Nogueiro, Lucia Corradi, and Gerhard Manz. It was great to get everyone together for a day of collaboration and fun, and to end the meeting together with a dinner party at the Rieger winery.

In the "local" news: ADVANT Beiten is further expanding its tax practice by welcoming Heiko Wunderlich as equity partner in Munich office from 1 July 2024. We are delighted to have gained another highly experienced and established expert in the market like Heiko Wunderlich, whose tax expertise, particularly in the areas of succession, restructuring and transactions, is an excellent addition to our advisory portfolio both at our Munich office and throughout the firm.

In this edition, of course, we highlight interesting developments in the European and German legal landscape as well.

You can find our briefing here.

All the best,

Dr Barbara Mayer
Prof Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

Please find the brochure by downloading the asssociated files.

China: What changed under the revised PRC Company Law?

Welcome to our latest ADVANT Beiten edition on certain questions and answers on what enterprises registered in the People’s Republic of China (“PRC”) and their shareholders must consider to be compliant with the provisions of the revised PRC Company Law!

The revised PRC Company Law entered into effect on 1 July 2024. On the same day the “Regulations of the State Council on Implementing the Registered Capital Registration Management System of the PRC Company Law” (“国务院关于实施《中华人民共和国公司法》注册资本登记管理制度的规定”) came into force.

With this publication, we aim to provide you with essential information about the topics relevant to the revised PRC Company Law and related regulations. We do this intentionally in a way which seeks to draw your attention to some important issues regarding the changes being triggered by the revised PRC Company Law.

Thus, please read this publication to get a first understanding on what aspects to pay attention to in order to become/remain compliant with your PRC-registered enterprises under the revised PRC Company Law provisions and for any specific questions, please contact us anytime! ¹

You can find the brochure in the download area below.

¹ Unless expressly stated otherwise, this publication only refers to privately invested limited liability companies (i.e. not to State-owned companies and not to joint stock companies).

Topics in this issue are:

CHANGES IN LEGISLATION

• Council of Europe Adopts AI Convention

CASE LAW

• ECJ on Damages for Identity Theft
• Federla Court of Justice Restricts Scope of the Right to a Copy
• Local Court of Gelnhausen: Inadmissible Video Surveillance With Swivelling Camera

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Fine of EUR 400,000 Against Greek Ministry of the Interior for Disclosure of Voters List

OPINIONS

• European Data Protection Supervisor Publishes Guidelines on AI
• Berlin Group Publishes Working Paper on Facial Recognition Technology
• Data Protection Authority Publishes Checklist on TikTok Rules for Public Bodies
• German Data Protection Conference: Data Protection When Closing Hospitals
• New Rules of Conduct of Credit Agencies Approved

The Privacy Ticker is available under this link.

As we enjoy a sunny spring here in Frankfurt, it is time for an update on legal news relevant to the games industry. This time we focus in particular on the developments around the Digital Services Act which has become fully applicable since our last issue. Beyond that, we also report on very relevant court decisions.

We hope you enjoy reading!

You can find the Games Law Briefing by clicking here.

Topics in this issue are:

CHANGES IN LEGISLATION

• AI Act Adopted
• New Digital Laws (DDG and TDDDG) in Force

CASE LAW

• ECJ Authorises the International Transfer of Evidence from Encrochat
• Administrative Court of Berlin: GDPR Information Does Not Have to Be Provided in the Simplest Possible Form
• Regional Labour Court of Mainz: No GDPR Compensation for Delayed Information Pursuant to Art. 15 GDPR

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Fine fo EUR 14 Million Against Avast for Unauthorised Data Disclosure

OPINIONS

• Guidelines by German Data Protection Conference on Artificial Intelligence
• State of Lower Saxony Uses Microsoft Teams After Coordination with Data Protection Authority

The Privacy Ticker is available under this link.

The Presidium of the Intellectual Property Rights Court (the "Court") has explained that even unprotected elements of a trademark could lead to liability of the rights holder for a violation of anti-trust legislation. ¹

Background

The rights holder registered several Russian trademarks² that designated all words, numbers and symbols included therein, including the word "dichlophos" and the designation "No. 1", as unprotected elements.

According to the Federal Antimonopoly Service ("FAS of Russia"), these designations inferred the superiority of the goods of one manufacturer over those of other manufacturers.

The FAS of Russia considered the rights holder's arguments that its line of products also included "Dichlophos No. 2" and "Dichlophos No. 3" to be an attempt to create the semblance of good faith when acquiring and using the trademarks.

Conclusions of the Presidium of the Intellectual Property Rights Court

First, the Court believes that the rights holder acquired the exclusive rights to the trademarks in question to "have the formal possibility to use" the designation "No. 1" in the packaging of its products, which represents a form of unfair comparison.

Second, the designation "No. 1" not only attracts the attention of consumers, but also creates in their minds the impression that the rights holder's goods are superior to other similar goods.

Third, these actions could lead to losses for competitors through there distribution of demand for goods.

The Court found that the specific actions to (1) acquire and (2) use a trademark that includes the words "best", "first", "number one", or "No. 1" can be classified as an act of unfair competition.

Notably, the Court stressed that in this case the prohibition on unfair competition through the use of an exclusive right to a means of individualisation had been breached³. Herein lies the salient feature of this case, since cases on the illegal use of the designations "best", "number one", etc. are usually classified as a breach of another prohibition – the prohibition on unfair competition through an unfair comparison⁴.

Conclusions and recommendations

This case shows once again that any act of competition that runs counter to honest practices in industry and business can be deemed unfair competition⁵.

When registering and acquiring exclusive rights to trademarks, it is important not only to check that the selected designation meets the requirements of civil legislation and the rules and regulations of the registering authority, but also to perform legal due diligence to determine whether the designation complies with anti-trust legislation.

Ignoring these steps could lead to the rights holder being held liable for a breach of anti-trust rules and to the annulment of its trademark.

As always, we are prepared to provide comprehensive legal support on issues concerning anti-trust and intellectual property legislation.

Kind regards,

Alexander Bezborodov
Ilya Titov

¹ Judgment No. S01-99/2024 of the Presidium of the Intellectual Property Rights Court dated 11 April 2024 in case No. SIP-439/2023.

² Russian trademarks Nos. 756235, 789741, and 819398.

³ Article 14.4 of Federal Law No. 135-FZ dated 26 July 2006 "On Protecting Competition".

⁴ Article 14.3, ibid.

⁵ Article 10.bis of the Paris Convention for the Protection of Industrial Property dated 20 March 1883.

Topics in this issue are:

CHANGES IN LEGISLATION

• Health Data Use Act in Force

CASE LAW

• ECJ: Companies Liable for Damages in Case of Data Protection Violations by Employees
• ECJ: TC String of the IAB Europe is Personal Data
• FCJ: GmbH Managing Director has no Right to have his Date of Birth and Place of Residence Deleted from the Commercial Register
• Delayed GDPR Information Constitutes a Breach of Competition that can be Warned

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Fine fo EUR 2.9 Million Against Greek Post After Cyber Attack

OPINIONS

• EDPB Statement on Consent or Pay Models on Online Platforms

The Privacy Ticker is available under this link.

In this issue, we present the most important aspects of the Cyber Resilience Act ("CRA"), which was recently passed by the European Parliament. The CRA introduces extensive security requirements for manufacturers, importers, and distributors of hardware and software products intended for the European market.

Learn more about the coverage of the CRA, essential cybersecurity requirements, conformity assessment and CE marking, point of contact, reporting obligations, monitoring and enforcement, and the timeline.

Please find below our Tech Law Briefing in the download area or by clicking here.

Topics in this issue are:

Changes in Legislation

• AI Act Adopted by EU Parliament
• EU Parliament Adopts Cyber Resilience Act

CASE LAW

• ECJ: Europol and Member State Jointly Liable for Data Protection Breach
• Higher Regional Court of Lower Saxony: Birth Date as Compulsory Field in Webshop Unlawful
• Administrative Court of Berlin: Right to Information also Justified in Case of High Research Effort

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Fine of EUR 2.8 Million Against Unicredit After Cyber Attack
• Fine of USD 16.5 Million for Sale of Browser Data
• European Commission Violates Data Protection When Using Microsoft 365

OPINIONS

• Europe-Wide Investigation Into the Right to Information
• EDPB Published Opinion on the Notion of Main Establishment

The Privacy Ticker is available for download in the section below or under this link.

welcome to the first issue of ADVANT Beiten's International Briefing in 2024.

We are vigorously working on ADVANT-wide synergy to provide our clients and friends with the "best of both worlds": deep local market expertise combined with international vision and reach.

The recent example when the European ADVANT Alliance with its three law firms ADVANT Nctm (Italy), ADVANT Beiten (Germany) and ADVANT Altana (France) joined their forces to ensure the smooth European legal experience is a comprehensive legal advice to Cogne Acciai Speciali S.p.A. (CAS) on the acquisition of all shares in Mannesmann Stainless Tubes GmbH (MST) in a cross-border transaction. CAS, based in Aosta (Italy), is a 70% subsidiary of Walsin Lihwa Corporation (Walsin) from Taiwan. The ADVANT law firms advised CAS under the leadership of Italian partner Vittorio Noseda comprehensively across multiple jurisdictions and locations. ADVANT Beiten, led by partners Christian von Wistinghausen, Marion Frotscher and Tassilo Klesen, advised on all matters of German law. Please see our other deals in the respective section below.

Also, in this edition we would like to highlight publications created by the ADVANT law firms together, relying on our extensive joint matter experience to assist you or your clients with navigating complex and nuanced legal and commercial landscape of Europe.

• In European M&A Outlook Partners of the ADVANT firms discuss the 2024 forecast for European M&A activity to compare notes on what awaits European dealmakers this year.
• Please assess how prepared you are for a litigation dispute in China or Russia with the help of our overview of key issues a party to litigation in China and Russia is likely to face.
• Our ADVANT-wide Restructuring and Insolvency team explores how company directors react to financial distress and risk in our publication "Company Directors Facing Financial Distress: A Cross-Border Perspective".
• Additionally, for an overview of the European Tech Law regulation that applies to all companies doing business in the European Union, whether they are registered within the EU or not, please read ADVANT Beiten's Tech Law Briefing.

To deliver our message across the Atlantic in January, February and March 2024 partners of the ADVANT firms visited New York, Boston, San Francisco, and Miami where they met representatives of the American law firms and corporates to establish new connections and explore business opportunities. Please connect with Gildas Robert (ADVANT Altana), Markus Ley, Hans-Josef Vogel (ADVANT Beiten) and Guido Fauda (ADVANT Nctm) during their ADVANT's Midwest US Roadshow of 15 – 19 April 2024 and see our other events in the respective section below.

We are also delighted to share some "local" news. On 16 March 2024 ADVANT Beiten has elected its new Management Committee to lead the firm for the next three years. In addition to re-elected Dusseldorf office Partner Guido Krüger, the partners have elected Munich office Partner Martin Fink, and Freiburg office Partner Barbara Mayer. Our fellow editor Barbara will be in particular responsible for international relationships of the firm. The Management Committee remains loyal to creating lasting value for our clients and teams and to continuing ADVANT efforts to solidify its position as a European legal industry leader.

At the turn of the year ADVANT Beiten's Corporate / M&A practice group grew by winning two Equity Partners: Eva Kreibohm (Berlin office) and Jan Eltzschig (Dusseldorf office). Eva's partnership is an important step towards strengthening and succession planning for our notary's office in Berlin. With Jan, we are gaining an established expert in the market who will work closely with our ADVANT partner law firms in this area.

Our Hamburg office has grown its team as well. We are welcoming Oliver Korte as a highly experienced colleague in the area of commercial and distribution law. Trade and distribution are firmly anchored in the Hanseatic city and Mr Korte is sharpening our profile in this area in particular. We are also delighted to have Martin Seevers and his team on board as experts who can provide comprehensive advice to both companies and private individuals in all areas of corporate and tax criminal law.

With these new additions, ADVANT Beiten's Corporate/M&A practice group comprises a total of 78 professionals, including 26 Equity Partners, 2 Of Counsels, 28 Non-Equity Partners, and 22 Associates.

In this edition, of course, we highlight interesting developments in the European and German legal landscape as well.

You can find the newsletter here.

All the best,

Dr Barbara Mayer
Prof. Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

Topics in this issue are:

CASE LAW

• ECJ: No Compensation for Non-Material Damage if Risk of Data is Only Hypothetical
• Higher Regional Court of Hamburg: Evaluation Portal Kununu must Disclose Evaluators' Identities
• Labour Court of Hamburg: Use of ChatGPT in Company not Subject to Co-Determination
• Higher Regional Court of Nuremberg: Employee's Request for GDPR Information Permissible Even for Extraneous Purposes
• Higher Regional Court of Hamburg: Eur 4,000 in Damages for Unjustified Reports to Credit Rating Agency Schufa

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Bank Fined EUR 5 Million for Sendung Receipt to Wrong Person

OPINIONS

• Bavarian Data Protection Authority Publishes Checklist Use of AI
• Guidelines by German Data Protection Conference on Questionnaires for Prospective Tenants

The Privacy Ticker is available for download in the section below or under this link.

Digital law is becoming increasingly European. With the Digital Services Act and other EU legislative acts, games companies face new challenges – even though arguably, the EU lawmaker had other sectors in mind. Our recent Tech Law Briefing provides an overview on the changing legal framework. We've also recently published a blog post (in German) providing an overview of the developments in 2023.
We hope you enjoy reading!

You can find the Games Law Briefing by clicking here or in the download area below.

请点击以下链接查看我们的特别新闻简报，获取更多信息

Topics in this issue are:

CHANGES IN LEGISLATION

• New BSI Kritis Regulation in Effect since 1 January

CASE LAW

• ECJ: Health Data Requires its own Legal Basis
• Federal Court of Justice Affirms Claim for Information Vis-à-vis Co-Shareholders in Investment Company
• Federal Fiscal Court: Insolvency Administration has no Right to Information from the Tax Office
• Suhl Labour Court: Data Disclosure by Unencrypted E-Mail is Illegal

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTIONS

• Fine of EUR 32 Million Against Amazon Due to Employee Monitoring
• Fine of EUR 10 Million Against Yahoo for Cookies
• Fine of EUR 40,000 Against Amazon for Late Access to Information
• Fine of EUR 407,000 Against the British Ministry of Defence for Disclosing Data of Arghan Local Staff

OPINIONS

• Google Chrome Eliminates Third-Party Cookies

The Privacy Ticker is available for download in the section below or under this link.

Court practice in 2023 was not unanimous in its approach, but it can be said with confidence that for importers that have paid out dividends in the past three years, the risks that dividends will be included in the structure of the customs value of imported goods have grown substantially.

Customs audits may result in importers being charged additional customs duties, penalties, and administrative fines for submitting inaccurate information on the customs value of goods. In addition, if these additional charges exceed two million roubles, the importer’s employees may face criminal liability for failing to comply with customs legislation.

Background

For a long time judicial practice took a fairly uniform approach, under which it was not permissible to include dividends in the customs value of goods.

Let us give an example¹:

• The seller of goods is the sole shareholder of the purchaser and makes the decision to distribute the net profits of the purchasing company.
• Position of the customs authorities: the dividends paid out by the company are linked to the goods being imported and should be added to the price actually paid or payable for these goods.
• Position of the courts: the custom authorities’ position is unfounded. The concept of "transaction price" has a special nature and relates only to these payments that constitute consideration for the goods. This concept is not equivalent to the aggregate of all monetary obligations.

Current approach in court practice

The opposite approach has be seen recently in many court decisions on disputes between importers and the customs authority. In one case² the Russian Supreme Court indicated that dividends remitted by the purchaser to a seller should be included in the customs value of goods if the dividends are linked to the goods being imported, which can be confirmed by the following circumstances:

• in essence these payments ensure that the seller receives part of the income (revenues) due to it from the sale of the imported goods, and they perform this function in relations between the parties to the foreign-trade contract;
• goods are imported on the basis of transactions between participants in a single corporate group, and the income (revenues) of the Russian company - purchaser are primarily the result of the sale of the imported goods;
• the decision to pay dividends is exclusively at the discretion of the foreign supplier and/or participants in the corporate group that are related to it (in the absence of statutory restrictions), which creates a substantial risk of manipulation of the elements of the cost of goods that shape its customs value;
• the declarant has not proven that the price actually paid or payable for the goods was established on an arm’s length basis, unaffected by the relations between the parties;
• dividends do not prevent the use of the first method for determining customs value, and should be considered as a component part, being an additional surcharge on the price of the goods.

Similar arguments are made in another court order of the Russian Supreme Court³:

• The dividends received by a participant (shareholder) in a company as a result of the distribution of net profits are not included in the customs value of goods on import, since by their economic nature they constitute income from investments made by the participant (shareholder) in the creation or acquisition of an enterprise (so-called “direct investments”) and are not related to the import of goods per se.
• However, payments that are called dividends but are only dividends prima facie are recognised as being related to the imported goods and are included in their customs value on the basis of Sub-Clause 3 of Clause 1 of Article 40 of the EAEU Customs Code, if these payments essentially ensure that the seller receives part of the income (revenue) due to it from the sale of the imported goods and perform this function in relations between the parties to the foreign-trade contract.
• Thus, if the founders of a company make the decision to pay income (net profits) generated in connection with the sale of goods imported under foreign-trade contracts concluded with suppliers that are simultaneously the founders (participants) of the Russian company, and the declarant has not provided proof confirming that the price of the transaction with the imported goods corresponds to their actual value, then this income (net profit) may be included in the customs value of the imported goods.

Based on these interpretations by the Supreme Court, in 2023 the customs authorities increased the number of audits of the customs value of goods, citing the need to include dividends in the customs value of goods.

Recommendations

• We recommend performing an internal review and risk assessment. A legal position prepared in advance will allow you to make thorough advance preparations for customs audits, which as a rule are performed on very tight deadlines. A competent assessment of risks will also make it possible to develop the proper approach to setting the customs value of goods for future shipments.
• During the customs audit, we recommend taking a proactive stance based on a detailed exposition of arguments and evidence in response to questions from the customs authorities.
• If goods are purchased from foreign participants or related-party suppliers, we recommend that you collect the necessary pricing documents from your foreign counterparties in advance.
• If a court dispute arises, we recommend a proactive approach through the submission to the court of the largest possible quantity of evidence to justify the position that there is no link between the dividends and the value goods being imported.

¹ Judgement No. 307-ES21-2873 of the Russian Supreme Court dated 07.04.2021.
² Judgement No. 305-ES22-11464 of the Russian Supreme Court dated 01.12.2022
³ Judgement No. 310-ES22-9639 of the Russian Supreme Court dated 01.12.2022

Kind regards,

Alexander Bezborodov
 

Natalia Bogdanova

We would like to point out here that the following key amendments should be duly considered in your work. They concern the filing of a statement of claim, the reimbursement of court costs, the calculation of procedural timeframes and other issues arising during the hearing of a case in a commercial court.

Amendments to the lists of mandatory annexes to a statement of claim, an appeal and a cassation appeal

Amendments have been introduced to the lists of documents which must be attached to a statement of claim and a cassation appeal to the Judicial Panel of the Supreme Court of the Russian Federation:

It is no longer necessary to attach to a statement of claim a copy of the certificate of state registration as a legal entity, as information from the certificate is contained in the excerpt from the Unified State Register of

• Legal Entities (USRLE).
• Regular copies of the appealed court order and other court orders adopted in the case must be attached to the cassation appeal to the Judicial Panel of the Supreme Court of the Russian Federation. Certified court orders only have to be attached if the case is being heard in a closed court session.

When filing a statement of claim, an appeal, a cassation or supervisory appeal, a copy of a document on the legal education (university or equivalent) of the representative, a document certifying their status as an attorney, patent attorney, court-appointed bankruptcy manager or chief executive officer of the organisation must be attached.

Procedural timeframes

The following key procedural timeframes have been increased by the amendments to the Russian Commercial Code of Procedure:

• Timeframe for preparing the decision of the commercial court in full from five to ten business days.
• Timeframe during which the recess of a court session may be announced, from five to ten business days.
• Timeframes for hearing an appeal and a commercial appeal from two to three months.

Procedure for considering a petition for the recovery of court costs, petition for the indexation of awarded monetary funds

In order to reduce the burden on the commercial court system, petitions for the reimbursement of court costs will be considered according to the rules of simplified proceedings, in other words, without summoning the parties to a commercial court.

Another innovation allows the parties to a dispute being considered according to the rules of simplified proceedings to present their positions orally in the court session. This is an exception to the rule in instances when a commercial court is entitled on its initiative or further to a motion of the parties in the case, owing to the nature and complexity of a case, to conduct a court session, summoning the parties to the case, without moving to a hearing of the case according to the general rules of claims proceedings.

A similar amendment is stipulated for petitions for an indexation of awarded monetary amounts which will now be considered by a commercial court without the holding of a court session and without the notification of the parties in the case. Where necessary, a commercial court will be able to summon the parties in the case to the court session, after notifying them of the time and venue of the session.

Maximum claims for the hearing of a case in simplified and summary proceedings

The maximum claims to be considered according to the rules of simplified and summary proceedings have been increased:

• Statements of claim will be considered in simplified proceedings for the recovery of funds with the value of the claim in the case of organisations of up to RUB 1,200,000 (previously RUB 800,000), and in the case of individual entrepreneurs – up to RUB 600,000 (previously 400,000).
• Claims will be considered in summary proceedings if the value of the claim does not exceed RUB 750,000 (previously RUB 500,000).

Appeals against the rulings of a commercial court

Key amendments that should be considered:

• If a party in a case disagrees with the ruling of the commercial court on interim relief, the party should submit a motion with the commercial court considering the case on revoking the interim relief. Previously the ruling of a commercial court on interim relief could be appealed with a court of appeal separately from the final decision in the case.
• A ruling on setting aside an appeal may not be appealed.

Participation in an online court session

A commercial court may send the information required to participate in an online court session electronically well in advance to the parties in a case (through the use of a web conferencing system).

If a commercial court dismisses a motion on participating in the online court session, the court must send information on such a dismissal, indicating the grounds for the decision.

The indicated amendment aims to incentivise the indicated method for participation in court sessions and expand its use.

¹ Federal Law No. 667-FZ dated 25 December 2023 “On the Introduction of Amendments to the Code of Commercial Procedure of the Russian Federation" (http://publication.pravo.gov.ru/document/0001202312250069?index=1).

Kind regards,

Alexander Bezborodov
 

Artem Nikolaev

The Year in European Tech Law Regulations

Dear Reader,

EU lawmakers have been busy in 2023 – in fact, so busy that it is difficult to keep track. With this Tech Law Briefing, we want to give an overview on the new Acts and their acronyms for those who – unlike us – do not work with these Acts every day.

All these Acts apply to all companies doing business in the European Union, whether they are registered within the EU or not. Violations can generally lead to severe fines of up to a percentage of the global annual turnover of the infringer.

Please find below our Tech Law Briefing in the download area or by clicking here.

The PRC’s top legislature, the 14th NPC Standing Committee (NPCSC) had convened for its 7th session from 25 to 29 December 2023. During such session a revised version of the PRC Company Law underwent its fourth reading, and the thus revised law was passed and will enter into effect on 1 July 2024. Long term shareholders in the People’s Republic of China (PRC) are well aware that the legal and business environment is constantly evolving and changing. The PRC Company Law dates back to 1993 when the PRC started opening up with a view to developing a market economy. It has changed several times since then and has now changed once more.

Topics in this issue are:

Changes in Legislation

• EU: Agreement on the Final Version of the AI Act
• German Parliament Adopts Electronic Patient File

Case Law

• ECJ: Non-material Damages Already in Case of Fear of Data Misuse
• ECJ Confirms Admissibility of Fines Against Legal Persons
• ECJ: SCHUFA Scoring Generally Prohibited
• ECJ: SCHUFA May Store Information Relating to the Granting of a Discharge from Remaining Debts for a Maximum of 6 Months
• Regional Labour Court of Düsseldorf: No Compensation for Delayed Data Access
• Higher Regional Court of Cologne: Data Transfer to Google Inadmissible Despite EU-US Data Privacy Framework
• Federal Fiscal Court: Tax Office May Analyze Account Statements of a Lawyer

Regulatory Investigations and Enforcement Actions

• Fine of EUR 1.7 Million Against Norwegian Labour and Welfare Administration

The Privacy Ticker is available for download in the section below or under this link.

Another eventful year of work with many important judgements and regulatory developments is nearing its end. We would like to take this opportunity to thank you for your interest in our newsletter and your input "from the sidelines" - be it through clients or discussions over the past year. Games and law are incredibly dynamic and every day holds an exciting new "quest" for our team. We wish you and your loved ones a Merry Christmas, look forward to the New Year and, as always, hope you enjoy reading this issue!

You can find the Games Law Briefing by clicking here or in the download area below.

Our dispute resolution practice

ADVANT member firms offer clients a distinctive advantage in helping them to handle even the most complex disputes and define the most appropriate and effective strategies to resolve them.

Our member firms:

• Boast some of the largest and most comprehensive teams of litigation advisors in their respective markets
• Offer the skills and experience needed to handle even the most complex disputes in each specialist field of law, as well as a broad range of sectors
• Have received top industry recognitions from the likes of Chambers, Legal 500, JUVE and Legalcommunity

Our services in these key areas are described in detail in our brochure "ADVANT Your dispute resolution advantage" which you can find in our download area below.

Our real estate practice

ADVANT member firms offer significant expertise in all facets of real estate to help clients achieve their goals and overcome their challenges.

Our member firms:

• Offer a 360-degree perspective and approach to advise on all asset classes – whether in office, retail, commercial, industrial, logistics, hospitality, healthcare, or living.
• Advise on sales or acquisitions of single assets or portfolios, complex leases and tenancy agreements, project planning and development, investment and financing, lease renewals, evictions, refurbishments, environmental or tax considerations, and fund formation/regulatory issues.
• Provide guidance on town planning issues, and advise on development projects
• Work with clients to achieve the right outcome when litigation arises, whether through the courts or by alternative dispute resolution methods.

Topics in this issue are:

Changes in Legislation

• EU Adopts Data Act: New Rules for Data Access and Use
• EU Parliament: No Mass Surveillance of Chats

Case Law

• ECJ: Vehicle Identification Number is not by itself Peronal Data
• Regional Court of Berlin: LinkedIn must Accept Do-Not-Track Function in Browser
• Administrative Court of Hanover: Video Surveillance in Betting Office Inadmissible
• Administrative Court of Berlin: No Right of Access Due to Video Surveillance in Berlin Suburban Train

Regulatory Investigations and Enforcement Actions

• EDPB Prohibits Personalized Advertising on Instagram and Facebook
• Fine of EUR 600.000 Against Groupe Canal

Opinions

• Hamburg Data Protection Authority Publishes Checklist for the Use of AI Chatbots
• Position Paper of the German Data Protection Conference on Cloud-Based Digital Health Applications
• Berlin Group Published Working Paper on Telemetry and Diagnostic Data
• German Data Protection Conference Speaks out Against Mass Surveillance in Chats without Cause

The Privacy Ticker is available for download in the section below or under this link.

on June 23, 2023, the Federal Parliament passed various amendments relating to the Skilled Worker Immigration Act (Fachkräfteeinwanderungsgesetz). Some of these amendments have been in force since November 1, 2023. The other amendments will come into force in March or June 2024. From now on, skilled labor immigration will be based on the following three pillars:

• Skilled workers pillar,
• experience pillar and
• potential pillar.

The new law offers considerable potential for employers in all industries to fill vacancies more easily with foreign skilled workers.

In this special newsletter we explain all relevant changes at a glance. Our experienced team will support you in answering all further questions and in the practical implementation or in the dialogue with the competent authorities.

You can find the newsletter under this link.

Kind Regards,
Your Experts of the Practice Group Employment Lat at ADVANT Beiten
Markus Künzel, Dr Corinne Klapper and Virginia Mäurer

Topics in this issue are:

Case Law

• ECJ: Right to Free and Complete Copy of Data Without Justification or Restriction
• Federal Court of Justice: No GDPR Right to Information for the Review of Premium Increases for Private Health Insurances
• Brandenburg Higher Regional Court: No Claim for Damages in the Case of Incorrect Debtor Data in Credit Agencies
• Dusseldorf Regional Court: EUR 120,000 in Damages for Unauthorised Publication of Intimate Videos

Regulatory Investigations and Enforcement Actions

• Fines of EUR 12.8 Million for Inadequate Safety Measures in the UK
• Fine of EUR 200,000 for Collecting Sensitive Data from Employees
• Fine of EUR 5.47 Million Against Dept Collection Agency for Unlawful Advertising Measures

Opinions

• EDPB and EDPS on the Draft Regulation on the Introduction of the Digital Euro

The Privacy Ticker is available for download in the section below or under this link.

Content:

• Insolvency Test & Commencement of Proceedings
• Claims Filing/Set-off/Debt-ranking
• Role of Administrators
• Role of Creditors‘ Meetings
• Restructuring & Settlement

Please find our flyer in the download area below.

In our October issue, we have once again put together rulings and regulatory news that we think are of particular interest to the games industry.

In less than six months, the Digital Services Act (DSA) will fully apply to all providers of intermediary services. Amazon was able to obtain a provisional judgement in its favour before the European Court with regard to individual obligations as a Very Large Online Platform. Please find more details in this newsletter.

We hope you enjoy reading! 

You can find the Games Law Briefing by clicking here or in the download area below.

THE POSITION OF DIRECTORS FACING FINANCIAL DISTRESS FROM A CROSS-BORDER PERSPECTIVE

EU Directive No. 2019/1023 on preventive restructuring frameworks (“Directive”) focuses on alternatives to insolvency liquidation when European companies are facing financial distress as well as on providing early warning to prevent insolvency proceedings and instead preserve businesses as going concerns.

We take a look at the Directive from a cross-border perspective, with a view to coordinating actions by the directors of a group of companies which we would assume to operate in the three ADVANT jurisdictions: France, Germany and Italy.

Welcome to the October issue of ADVANT Beiten's International Briefing.

Since the July issue of International Briefing our European presence has expanded to a 15th location globally, in Genoa, Italy. ADVANT Nctm’s presence in Genoa will significantly strengthen the firm’s existing maritime practice, including shipping-related insurance and finance.

We are looking forward to working together with our new ADVANT Nctm's colleagues as successfully as in the recent cooperation for EBARA Pumps Europe S.p.A. (EPE) deal on the acquisition of the business division Spandau Pumpen of SKF Lubrication Systems Germany GmbH. The ADVANT Beiten team around the lead partners Markus Ley and Moritz Kopp has rendered advice on all issues under German law and ADVANT Nctm advised on antitrust issues.

The announcement of ADVANT’s Genoa presence comes less than two years after the launch of ADVANT alliance and coincides with the first anniversary of opening the Freiburg office of ADVANT Beiten when Barbara Mayer, Jan Barth and Gerhard Manz along with the team of 8 lawyers joined us to reinforce our Corporate and M&A practice. Since then, the team has grown to more than 50 heads and brains, including 17 qualified lawyers.

Also, further expanding our Corporate/M&A practice group, Roy Naor will be joining ADVANT Beiten's Frankfurt office as Salary Partner as of October this year.

In August we extended our membership of the American Chamber of Commerce in Germany e.V. (AmCham Germany) to Patron and Executive Member in order to contribute to fostering transatlantic business. And within our US strategy in September ADVANT partners Hans-Josef Vogel (ADVANT Beiten), Jean-Nicolas Soret (ADVANT Altana), Guido Fauda and Michele Motta (ADVANT Nctm) took part in the Business Law Fall Meeting of the American Bar Association.

In this edition of our newsletter, we will highlight developments in the German legal landscape that might be of interest to you or your clients' business operations in Germany, such as:

• EU Data Act: we will talk about regulatory goals of the EU Data Act and its effects on data sharing, unfair contractual terms, data for public sector, regulating data processing services, especially cloud services, and international data transfer and interoperability.
• Data transfers from the EU to the US: we will review the long-awaited adequacy decision the European Commission for data transfers from the EU to the US and we will consider the question whether this will resolve the more than two years of uncertainty surrounding cooperation with U.S. companies.
• Cybersecurity: given the exponential increase in cyberattacks and the seriousness of their consequences we would like to share with you the ADVANT Cybersecurity in Europe / The 2023 Guide prepared in cooperation with our ADVANT colleagues from France and Italy.
• Product liability risks: we would like to build upon the article published in our July issue of the newsletter and give more insight on the product liability risks and the approaches to mitigate them within the framework of M&A transactions.
• The decision of the German Federal Government on establishment of commercial courts and English as language of the proceedings.
• Court practice on the applicability of the UN CISG on the arbitration agreement, dismissal of a supervisory board member for serious grounds related to conduct, liability of board members and managing directors for anti-trust infringements, and interim relief from an incorrect list of shareholders after a resolution.

You can find the newsletter here.

All the best,

Dr Barbara Mayer
Prof Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

Topics in this issue are:

Case Law

• Regional Labor Court of Saxony: Deputy Data Protection Officers also Benefit from Special Protection against Dismissal
• Higher Regional Court of Hamm: Advertising Messages via Social Media Portal Illegal Without Consent
• Regional Court of Bielefeld: Copying a Personal Identity Card doead not Justify Non-Material Damages
• Regional Court of Kleve: Extraneous Motives Lead to Abuse of Rights in the Case of Right of Access

Regulatory Investigations and Enforcement Actions

• TikTok Fined EUR 345 Million
• Google Pays USD 93 Million Regarding Location Data in California
• Fine of EUR 100,000 for Advertising Text Messages Without Consent

Opinions

• German Data Protection Conference Publishes Application Guidance to EU-US Data Privacy Framework
• Handout of Data Protection Authorities on the Use of Microsoft 365

The Privacy Ticker is available for download in the section below or under this link.

Abandoning the intellectual property itself or waiving the protection of it in Russia would be a rash decision that could cause Russia to become a “grey zone” beyond the control of the owner of the relevant intellectual property. There is no doubt that such a step would result in an increase in the number of counterfeit goods, Internet infringements, etc.

In this brochure we have focussed on the key challenges that foreign right holders may face or are already facing in Russia in protecting their intellectual property and effective ways to address them.

Topics in this issue are:

Changes in Legislation

• Amendment of the Federal Data Protection Act

Case Law

• Federal Labour Court: Extraordinary Dismissal Due to Insult in WhatsApp Group
• Higher Labour Court of Baden-Wurttemberg: Inadmissibility of Evidence if Private Use of E-Mail Account is Permitted
• Leipzig Regional Court: Unlawful Printing of User Photos on Reminders by Dating Portal
• Berlin Administrative Court: Secret photos of Teachers Justify Written Reprimand
• Higher Regional Court of Karlsruhe: E-Mails in Business Dealings do not have to be Particularly Encrypted

Regulatory Investigations and Anforcement Actions

• Fines of EUR 215,000 for Processing Sensitive Employee Data

Opinions

• Data Protetion Authority of Mecklenburg-Western Pomerania Considers Tesla Dash Cam and Sentry Mode Inadmissible
• Short News on Windows 10 and 11, Issued by the Bavarian Data Protection Authority

The Privacy Ticker is available for download in the section below or under this link.

The last substantial overhaul of the PRC Individual Income Tax´ Law (“IIT Law”) and related implementing regulations and other related measures became effective as of 1 January 2019. Some changes were provided to only be gradually phased out during a transitional period now extended until 31 December 2027 (“Transitional Period”) as per several announcements by the PRC Ministry of Finance on 28 August 2023.

Contens:
 

• Income categories and tax filing
• IIT rates & brackets for different income categories
• Deductions applicable to calculation of taxable income for IIT purposes
• Tax residency
• Withholding agent, taxpayer and tax ID
• Preferential tax treatments under the IIT Law
• Anti-avoidance rules

Together with our ADVANT colleagues from France and Italy, we have been working on a Guide about cybersecurity issues. 

The subject of cybersecurity, previously confined to sectoral regulations, has been the focus of European, Italian, French and German lawmakers since around 2018. Read more about this in our guide.

We hope you enjoy reading it! 

Best regards

Your ADVANT Beiten
IP/IT Team

Please find our Brochure in the Download area below or by clicking here.

Topics in this issue are:

Changes in Legislation

• EU Commission Publishes Adequacy Decision for Data Transfer to the USA
• EU Intends to Improve Enforcement of the GDPR
• EU Agrees on Data Act
• Electronic Medical File is Coming

Case Law

• ECJ: Federal Cartel Office may Consider GPDR-Compliance
• EGC on Pseudonymised Data with Relative Reference to a Person
• Federal Labour Court: No Ban on the Use of Evidence in Case of Open Video Surveillance

Regulatory Investigations and Enforcement Actions

• EUR 1 Million Fine for Use of Google Analytics
• Fine of EUR 1.1 Million Against Swedish Media Group for Profiling
• EUR 240,000 Fine Against Benetton

The Privacy Ticker is available for download in the section below or under this link.

In our July issue, we once again present decisions and regulatory news that we think are of particular interest to the games industry.

Again, we have a colourful mix of consumer protection topics that we also find in our everyday counselling.

At EU level, there is also a lot of news to report on the Digital Services Act, the Data Act and the Artificial Intelligence Act.

We hope you enjoy reading!

More importantly: If you are at Gamescom, we’d love to see you there. Please send us an e-mail so that we can set up a meeting!

You can find the Games Law Briefing by clicking here or in the download area below.

Here comes the July issue of our International Briefing, our English newsletter for our (inter-)national clients, colleagues and friends.

In this edition of our newsletter, we will, as always, highlight developments in the German legal landscape that might be of interest to you or your clients' business operations in Germany. This month, the focus lies on:

• a review of Germany’s approach to implementation of the EU Mobility Directive, attempting to balance the interests of various stakeholders,
• an update on product and management liability, and
• an outline of modernization/digitalization efforts in the field of corporate law.

But before you refer to some light legal reading, we want to share some of our exciting news and achievements with you:

• On 16-18 June 2023, the ADVANT member firms have held their second ADVANT Live Meeting, this year in Rome. Nearly 500 lawyers from France, Germany and Italy celebrated our second anniversary. We worked together on identifying current trends in the M&A market – the result of our joint effort can be inspected in form of the 2022/23 ADVANT M&A Deal Point Study, which we are happy to share with you. And to no surprise, working hard on this and other matters, paved the way for some late night celebrations. And we believe we have a reason to celebrate: since launching in September 2021, ADVANT has carved out a unique place in the legal landscape of Europe, offering a seamless client experience and a distinctive advantage to clients seeking to expand into, or within, continental Europe. In recognition of its success to date, ADVANT has been awarded International Firm of the Year at the 2022 Legal Business Awards in London.
• And we had more reason to celebrate: on 16 June 2023, the US publisher Best Lawyers, in cooperation with the German Handelsblatt, has ranked more than 70 of ADVANT Beiten’s lawyers in its "Best Lawyers in Germany" Edition 2024. We are particularly pleased that with Gerrit Ponath and Stephan Rechten we have two "Lawyers of the year" amidst our ranks – and we are very proud that three of our younger colleagues Alexander Braun, Moritz Jenne and Markus Schönherr have been nominated as "Ones to Watch".

With this great team we are happy to assist you on all matters related to your activities in Germany and continental Europe.

Now, before you take a deep dive into the July International Briefing, a piece of advice in light of recent developments: in M&A transactions, pay special attention to the notification obligations under foreign trade law, especially when performing a due diligence analysis on a transport and logistics business. Germany has had a very liberal approach in the past, but the scrutiny has increased due to recent geopolitical events.

You can find the newsletter here.

All the best,

Dr Barbara Mayer
Prof. Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

On 27 June 2023, the EU reached a political agreement on the Data Act. The regulation aims at establishing harmonized rules on “fair access to and use of data”. It is clear already that the Act will go well beyond regulating the „Internet of Things“ (IoT).

Please find below our Tech Law Briefing in the download area or by clicking here.

Topics in this issue are:

Changs in Legislation

• Alternative to Cookie-Banners:Draft Regulation on Consent Management

Case Law

• ECJ: In the Case of Data Disclosure Pursuant to Art. 15 GDPR Data Protection Rights of Employees must be Respected
• Federal Court of Justice on the Right to be Forgotten by Google
• Regional Court of Cologne: Unlawful Data Transfer to Google on Telekom Website
• Federal Labour Court: Chair of the Works Council Cannot be Data Protection Officer

Regulatory Investigations and Enforcement Actions

• EUR 40 Million Fine in France Imposed on Online Advertising Service Provider Criteo
• Spotify Fined EUR 4.9 Million
• USD 20 Million Fine Imposed on Microsoft for Xbox Accounts
• EUR 300,000 Fine Against Bank for Lack of Transparency over Automated Rejection of a Credit Card Application
• EUR 7.6 Million Fine on Italian Telecommuniations Company

Opinions

• Chat GPT Operator must Answer to List of Questions by Data Protection Authorities
• European Data Protection Board Published Guidelines on the Calculation of GDPR Fines

The Privacy Ticker is available for download in the section below or under this link.

The overview highlights the relevant positions on holding the debtor's controlling persons subsidiarily liable, explanations related to the challenging of a bankrupt's transactions on the grounds provided for by the Federal Law No. 127-FZ dated 26 October 2002 "On Insolvency (Bankruptcy)" (hereinafter the "Bankruptcy Law"), as well as procedural law clarifications.

Subsidiary Liability

1. Delegation of functions to employees does not exempt an executive from subsidiary liability in the event of the bankruptcy of the company (Clause 27 of the Overview)

An executive who has delegated certain managerial functions in the company to subordinate employees may not abdicate from supervising the performance of these functions by the employees.

When deciding on the subsidiary liability of the executive, one should consider the nature and scope of the debtor's business activities and the degree to which the executive could or could not have been aware of the committed breaches.

When considering a particular case, the Supreme Court pointed out that, based on the nature of the debtor's principal activity and the scope and repeated nature of the violations, the executive could not have been unaware of the violations of the administrative laws. Therefore, the executive may not formally refer to the fact that they had delegated the functions of determining waste disposal sites to the environmental engineer, the deputy general director for ecology and the landfill foreman as a ground for being exempt from liability, as the executive is in any event responsible for inaction resulting in its failure to supervise the actions of these employees.

Challenging the debtor's transactions

2. A purchaser who acquires property at an understated price, without a substantiated justification for such a price
 

understatement, acts imprudently (Clause 11 of the Overview)

From the perspective of a bona fide and reasonable participant in civil law relations, the repeatedly understated value of the property should cause the purchaser to doubt the lawfulness of the alienation of the property.

Any other reaction may indicate that the purchaser has direct or indirect knowledge of the unlawful purpose of the withdrawal of the debtor's asset or that management has acted unlawfully in violation of the debtor's economic interests. In such a case, the transaction may be challenged based on Clause 2 of Article 61.2 of the Bankruptcy Law.

Financing the bankruptcy proceedings

3. The costs of bankruptcy proceedings initiated by the debtor itself may be charged to the debtor's founders/participants (Clause 9 of the Overview)

Whether the costs of bankruptcy proceedings may be charged to the debtor's participant does not depend on the participant's guilt in driving the debtor into bankruptcy.

4. Before termination of bankruptcy proceedings due to the lack of funds, the court must check creditors' references to other possible sources to finance the bankruptcy proceedings (Clause 3 of the Overview)

One of the grounds for the termination of bankruptcy proceedings is the lack of sufficient funds to cover the legal costs of the bankruptcy proceedings, including the payment of remuneration to the insolvency receiver of the debtor.

The Supreme Court pointed out that the court may not terminate bankruptcy proceedings unless it has verified that a creditor's reference to the existence of a source to cover the costs of the bankruptcy proceedings has been substantiated.

Such a source could potentially be the property returned to the debtor's bankruptcy estate following a challenge of a transaction of the debtor.

Procedural issues

5. A bankruptcy creditor is entitled to refer to the fictitious nature of a transaction between the debtor and another creditor, even if the fictitious debt was previously confirmed by a court ruling (Clause 5 of the Overview)

If there are proofs that their rights and legal interests have been violated, bankruptcy creditors are entitled to appeal against a judicial ruling forming the basis of another creditor's claim against the debtor (Resolution No. 35 of the Plenum of the Supreme Commercial Court of the Russian Federation dated 22 June 2012).

The Supreme Court noted that if a creditor appeals against a judicial ruling with reference to the fictitious nature of the legal relationship between the debtor and another creditor, the court of appeal must assess this argument and admit new evidence for consideration.

¹ The full text of the Overview is available on the official website of the Supreme Court of the Russian Federation:
vsrf.ru/documents/thematics/32372/.

Kind regards,

Alexander Bezborodov
 

Artem Nikolaev

Topics in this issue are:

Changs in Legislation

• Settlement on the Whistleblower Protection Act

Case Law

• ECJ: A Mere Breach of Data Protection is not Sufficient for Non-Material Damages
• ECJ Strengthens Right to Surrender Data Copies
• ECJ: GDPR Infringement does not Automatically Lead to Unlawful Data Processing
• Frankfurt Higher Regional Court: No Injunctive Relief for Data Transfer to the USA

Regulatory Investigations and Enforcement Actions

• Record Fine of EUR 1.2 Billion Against Meta
• Fine of EUR 2.26 Million Against Dept Collection Company
• Norwegian Data Protection Authority Imposes Fine of EUR 900,000 on Fitness Centre Chain

The Privacy Ticker is available for download in the section below or here: LINK

• their plans to ensure that their business model and strategy are compatible with the transition to a sustainable economy and with limiting global warming to 1,5 °C in line with the Paris Agreement and the objective of achieving climate neutrality by 2050 and, where relevant, the exposure of the undertaking to coal-, oil- and gas-related activities as well as
• their time-bound targets related to sustainability matters, including, where appropriate, absolute greenhouse gas emission reduction targets at least for 2030 and 2050, and the progress made towards achieving those targets

Independent of already existing, if less detailed, reporting obligations of large capital-market-oriented companies and possible further-reaching obligations in the future (see for example Art. 15, 25 of the draft Corporate Sustainability Due Diligence Directive (“CSDDD”) proposed by the EU Commission in February 2022), many companies have already adopted plans to reduce their GHG emissions and report on such plans in more or less detail.

Climate change litigation exerts considerably additional pressure on companies to focus on their GHG emissions. A comprehensive climate strategy should therefore also consider the risks associated with this kind of litigation.

The subsequent ADVANT FAQs explain why.

Please find the brochure in the download area below.

In our May edition, you can once again expect case law and regulatory news that we think are of particular interest to the games industry.

This time, for instance, there is a special focus on consumer protection and loot boxes.

Two very interesting rulings have their origin in Austria, but their effects can be felt in Germany and Europe.

Please find our Games Law Briefing in the download area below or by clicking here.

Topics in this issue are:

Changs in Legislation

• German Government Plans Act Against Digital Violence

Case Law

• ECJ Decides on German Provisions Regarding Employee Data Protection
• Higher Regional Court of Dresden: No Right of Prohibitory Injunction Under GDPR for Legal Entities
• Local Court of Ludwigsburg Confirms Abuse of Rights in Google Fonts Cease-and-Desist Letters
• Constitutional Complaints Against Data Retention Unsuccessfull

Regulatory Investigations and Enforcement Actions

• TikTok UK Fines EUR 14.4 Million
• Italian Data Protextion Authoriry Imposes Requirements for Operation of ChatGPT

Opinions

• DSK Consideres "Pure Subscription Models" Permissible

The Privacy Ticker is available for download in the section below or here: LINK

Topics in this issue are:

Changes in Legislation

• Data Protection Refrom in UK
• EU Commission Plans New Regulations Regarding GDPR Implementation
• EU Commission Specifies Feed for DSA Control

Case Law

• Local Court Munich Affirms Expiry Date for Declarations of Consent for E-Mail Advertising
• Oldenburg Labour Court: EUR 10,000 in Damages Due to Delayed GDPR Information

Regulatory Investigations and Enforcement Actions

• Federal Data Protection Commissioner Prohibits Facebook Fan Page of the Government
• Fine of EUR 2.45 Million for Unlawful Advertising Measures
• Austrian Data Protection Authority Considers Facebook Business Tools to be Illegal 
• EU Commission Bans TikTok on Business Mobile Phones

Opinions

• EDPB Expresses Positive Views on EU-US Data Privacy Framework
• Warning Notices for Using US-Newsletter Service Providers

The Privacy Ticker is available for download in the section below or here: LINK

A similar regulation has been in force for medicinal products since 2018.

In practice, however, these provisions raise many questions in the professional community, as the legislators have not defined a specific procedure for these processes.

At the request of ADVANT Beiten, Roszdravnadzor (Federal Service for Surveillance in Healthcare) has clarified a number of ambiguous provisions.¹

The essence of the restrictions

According to the new restrictions, manufacturers and importers of medical devices must notify Roszdravnadzor at least six months in advance of any planned suspension or cessation of the manufacture or import of medical devices.

This restriction was imposed in order to reduce the risk of inventory shortages in medical devices and the threat to the life and health of citizens.²

Is the importer obliged to notify of the suspension or cessation of import of each medical device?

The aforementioned notification obligation arises for each medical device that has undergone state registration in accordance with the procedure established by the Government of the Russian Federation and each medical device that has undergone registration in accordance with the international treaties and acts constituting the law of the Eurasian Economic Union.

What period of time is considered to be a suspension?

The product range of medical devices imported to Russia by large foreign manufacturers may consist of a large number of goods. Imports of any particular medical device may be carried out irregularly, depending on the demand on the Russian market and the stocks remaining in the importer’s Russian warehouses. In this regard, the term "suspension of
 

import of medical devices" is a matter for evaluation.

Roszdravnadzor also points out that the concept of a "period of suspension of manufacture of medical devices" has not been established by law. This leaves room for interpretation, depending on the circumstances of each specific situation.

However, given the rather long advance period for notification (six months), we believe it is not intended to notify the state in the event of short-term suspension of shipments related to the search for new logistic routes, delays at the border, or other circumstances that do not potentially result in a shortage of the medical device.

How should Roszdravnadzor be notified of the suspension or cessation of import of medical devices into Russia?

The law also does not define the scope or form for notifying Roszdravnadzor of a planned suspension or cessation of the manufacture of medical devices or their import into the territory of the Russian Federation.

Roszdravnadzor points out, however, that such notification must be made by manufacturers of medical devices or entities importing medical devices into the Russian Federation in accordance with the laws of the Russian Federation.

This means that, firstly, the notification must be made by an authorised person of the manufacturer or importer of the medical device.

Secondly, the notification must contain sufficient registration data for the agency to properly identify the medical device.

Thirdly, as the new regulation is aimed at preventing shortages of medical devices, it is recommended that the notification specify a timeframe for the anticipated suspension of import or manufacture (the Law does not explicitly make such a requirement).

Liability

The Law does not provide for special liability for or any other consequences of a failure to notify Roszdravnadzor of the suspension or cessation of import or manufacture of medical devices.

At the same time, the Code of Administrative Offences of the Russian Federation (the "Administrative Offences Code") contains Article 19.7.8 "Failure to submit information or submission of deliberately false information to the federal executive body responsible for control and supervision in the field of healthcare".

According to this regulation, the following liability is established for a failure to submit, late submission, or submission of false information to Roszdravnadzor:

• an administrative fine of RUB 10,000 to 15,000 for officials;
• an administrative fine of RUB 30,000 to 70,000 for legal entities.

In each case, based on the general provisions of the Administrative Offences Code, it must definitely be taken into account whether, for example, an importer who failed to notify Roszdravnadzor of the suspension of import of medical devices into Russia in a timely manner was aware of this suspension, or whether the manufacturer notified it less
 

than six months before the date of the proposed suspension of shipments, etc.

Should you have any further questions, we would be delighted to answer them.

¹ Letter No. 10-8363/23 dated 16 February 2023 of the Federal Service for Surveillance in Healthcare (Roszdravnadzor) "On the Provision of Information" is available at ADVANT Beiten.
² Explanatory note to Draft Federal Law No. 84920-8 "On Amendments to Certain Legislative Acts of the Russian Federation".

Kind Regards,

Alexander Bezborodov
 

Ilya Titov

Here is our latest edition of our International Briefing pointing out important legislative developments that may be relevant for you or your client's business operations in Germany:

As digital business models penetrate all spheres of life the questions whether an App or another form of consumer facing online service operators qualifiy as an "online platform" under the Digital Services Act is critical. If your German business could fall into this category, be aware of new rules applicable as of February 2023.

2023 may be a year of increased distressed M&A. In Germany, better buy a business after insolvency has been declared rather than before, we explain why.

ESG continues its path from soft to hard law: The Corporate Sustainability Reporting Directive (CSRD) recently came into force at EU level and must now be transposed into national law by the EU member states. This will lead to a considerable widening of the range of companies subject to reporting requirements throughout the EU.

Furthermore, we have updates for you regarding the (potential and future) use on English in German court proceedings, the legal qualification of e-mail statements in business transactions, the use of employee participation plans and new rules affecting transactions for international companies exiting Russia.

Should you be in Europe at the end of March, we would be happy to catch up with you at 6th IBA Mergers and Acquisitions in the Technology Sector Conference in Berlin. 

Enjoy the read! You can find the Newsletter here. 

Dr Barbara Mayer
Prof Dr Hans-Josef Vogel
Dr Christian von Wistinghausen
Moritz Kopp

Topics in this issue are:

Changes in Legislation

• EU-U.S. Collaboration for Development of AI

Case Law

• Federal Constitutional Court: Police Act of Mecklenburg-Western Pomerania in Part Unconstitutional
• Admin Court of Hanover: Amazon Data Collection in Lower Saxony Legal
• ECJ: Activity as Works Council Member and Data Protection Officer not Generally Impossible
• Federal Administrative Court: Analysis of Digital Data Carriers Inadmissible in Asylum Proceedings
• Federal Constitutional Court: Use of Data Analysis Software by Police Unconstitutional

Regulatory Investigations and Enforcement Actions

• French Data Protection Authority Imposes EUR 3 Million Fine on Voodoo
• Irish Data Protection Authority: WhatsApp Fines EUR 5.5 Million for Incorrect Legal Basis
• Italian Data Protection Authority Prohibits Use of Chatbot Replika

Opinions

• European Data Protection Board Publishes Report on Cookie Banners
• DSK Evaluates Possibilities of Access by Third Country Public Bodies

The Privacy Ticker is available for download in the section below or here: LINK

For our first Games Law Briefing in 2023, we have selected exciting case law and regulatory news that we found of interest for the games industry.

This month we place a special focus on case law and legal developments regarding content moderation, which - considering the Digital Services Act and increasing discussions on hate speech - will be of particular importance. (If you want to know what other topics we consider highly relevant this year, please read our feature on GamesIndustry.biz.)

Finally, we would like to take this opportunity and inform you that our games law team has grown again: Dr Peggy Müller joined us in January and has very relevant experience: Formerly, she was head of IP at Nintendo of Europe.

Please find our Games Law Briefing in the download area below or by clicking here.

With this publication, we aim to provide you with essential information about this topic. We do this intentionally in a way which seeks to draw your attention to some important issues impacting the deregistration of companies who have their business license revoked. Hence, what we set out in this publication deals with some of the most common questions and situations we came across in our advisory services. Thus, please read this publication to get a first understanding on what aspects to look at when deregistering a company whose business license has been revoked and for any specific questions, please contact us anytime!

Please find the flyer in the download area below.

The January issue of our Privacy Ticker deals with changes in Legislation, the current case law, regulatory investigations and enforcement actions and opinions.

Topics in this issue are:

Changes in Legislation

• German Parliament Passes Wistleblower Protection Act
• Criticism of German Annual Tax Act: Tax ID to be Linked to Account Data

Case Law

• ECJ: Data Controllers Must Name Specific Recipients of Data
• Hamm Higher Regional Court: Unclear Consent to E-Mail Advertising is Invalid
• Munich Higher Regional Court: Credit Reference Agencies are Allowed to Store Insolvency Data for a Longer Time
• Munich I Regional Court: Cookie-Banner on focus.de Unlawful
• Celle Higher Regional Court: The Right to Information Under the GDPR May Also be Used for Other Than Data Protection Purposes
• Hamm Regional Labour Court: No Protection Against Dismissal for Voluntarily Appointed Data Protection Officers

Regulatory Investigations and Enforcement Actions

• EUR 390 Million Fine Against Meta Over Facebook and Instagram
• French Data Protection Authority Imposes EUR 60 Million Fine Against Microsoft
• EUR 8 Million Fine Against Apple for App Store Advertising
• EUR 5 Million Fine Against TikTok Because of Cookie Banner

Opinions

• Searches Due to Google Fonts Warnings

The Privacy Ticker is available for download in the section below or here: LINK

Please find the flyer in the download are below.

• Are trusted advisors to clients across the industry, including manufacturers and OEMs, suppliers, dealers, operators, and service providers
• Offer market-leading disputes expertise when conflicts arise, as well as top-notch regulatory advice – based on robust experience – to help clients to navigate a complex regulatory and international trade landscape

Our clients include:

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• A leading European and highly renowned automaker
• One of Europe’s major national airlines/carriers
• Many of Europe’s major shipping and port operators

Please find our Brochure in the download area below.

We do this intentionally in a way which seeks to draw your attention to some important issues impacting enterprises entering into commercial contracts which contain GTCs. Hence, what we set out in this publication deals with some of the most common questions and situations we came across in our advisory services. Thus, please read this publication to get a first understanding on what aspects to look at when creating or using GTCs in relation to commercial contracts in a China legal context and for any specific questions, please contact us anytime!

Please find the flyer in the download area below.

Against this backdrop, amendments to the Federal Law "On Advertising" came into force on 1 September 2022, aimed at keeping records of Internet advertising. The legislator's idea is to create a unified information system for keeping records of Internet advertising (hereinafter the "Unified Registry of Internet Advertising"), which should ensure that the procedures for gathering and processing information about Internet advertising are automated, that the information itself is recorded and stored, and that it can be accessed ⁴.

1. The nature of the new requirements

According to the new rules, certain categories of Russian and foreign advertisers, advertising distributors, and advertising system operators placing online advertisements targeted at Russian advertising consumers are required to obtain an advertising identifier in advance from a special organization, i.e. the advertising data operator.

After the actual dissemination of the advertisement, information about the advertisement is again transmitted to the advertising data operator, which then transmits it to the Unified Registry of Internet Advertising.

2. Who do the new requirements apply to?

2.1 Advertisers

The advertiser is the manufacturer or seller of a product, or the person who determined the subject or contents of the advertisement ⁵.

As a general rule, the new requirements apply to all advertisers, whether legal or natural persons, as well as individual entrepreneurs.

The only exceptions are those advertisers who:

• have an exclusive right to the subject of the advertising, or
• are manufacturers or sellers of goods

for which advertising information is provided to the Russian communications regulator Roskomnadzor by advertising distributors or advertising system operators under an agreement.

2.2 Advertising distributors and advertising system operators

As a general rule, the new requirements apply to all advertising distributors, i.e. persons distributing advertisements by any means, and advertising system operators, i.e. persons administering information systems and programmes for the distribution of advertisements. These can be legal entities or natural persons, as well as individual entrepreneurs.

It does not matter who acts as the advertiser.

Advertisements may be distributed on the Internet in the form of banners, text blocks or text/graphic blocks, videos, audio recordings, or live audio or video broadcasts.

Specific categories of advertising distributors, i.e. the owners of social networks, audiovisual services, news aggregators, organisers of the distribution of information on the Internet, including instant messaging service providers, and search engine operators, are also required to comply with the new requirements.

2.3 Advertising data operators and advertising identification

Advertising data operators will play a crucial role in the new system for keeping records of Internet advertising.

Advertising data operators are Russian companies that are authorised by Roskomnadzor and which possess special software designed to establish the fact that advertisements are being distributed on the Internet ⁶.

The advertising data operator is a new entity that performs many functions in the new system:

Firstly, it keeps records of Internet advertising and provides information to the Unified Registry of Internet Advertising.

Secondly, it assigns an identifier to each advertisement. The advertising identifier is a unique alphanumeric designation in the form of a link or in the adChoice menu, which is used to track and keep records of Internet advertisements ⁷. Requirements on the advertising identifier, its content, and the procedure for its assignment and placement are to be developed by Roskomnadzor.

Advertising data operators include companies such as MTS, VimpelCom, VK, Ozon, AmberData, Yandex and Sber.

As soon as the operators have been identified, advertisers, advertising distributors, and advertising system operators will have to enter into agreements with the advertising data operators.

For example, the subsidiary OOO Internet Resheniya (OZON) was incorporated in June 2022. OOO OZON ORD is already proposing to conclude the relevant agreements.

3. Information to be recorded by Roskomnadzor

According to the new rules, quite a lot of information is to be recorded, both about the advertiser, advertising distributor, and advertising system operator and about the advertisement itself ⁸.

The following information must be provided in respect of the advertisement itself, for example:

• the advertising identifier (assigned by the advertising data operator);
• a description of the subject of the advertisement in Russian;
• the means of distribution of advertisements (e.g. websites or software);
• on the volume and distribution of ad impressions;
• the advertisement period;
• the target audience for the advertising - information on sex, age, territory of residence (if available);
• information on the entire chain of agreements between the advertiser, the advertising distributor, and the advertising system operator.

Quite detailed information will also be recorded about the advertiser, the advertising distributor, and other persons, such as names, locations and contact details, telephone numbers, etc.

All of this information is supposed to be provided to the advertising data operator 20 calendar days after the date of distribution of the advertisement on the Internet ⁹.

An exception is made for social advertising operators: they are not required to provide all of the aforementioned information ¹⁰.

4. Access to information on Internet advertising

Roskomnadzor is entitled to grant access to information on the distributed advertisements to the Federal Antimonopoly Service (the "FAS") and the Federal Tax Service (the "FTS"). These authorities will interact with Roskomnadzor in two ways:

• through requests sent by the FAS and FTS to Roskomnadzor;
• and vice versa: Roskomnadzor will automatically make a selection of advertisements based on certain criteria and send them to the FAS or the FTS. The specific criteria and other terms are to be stipulated in an agreement on information interaction between these agencies.

All interactions will take place online, i.e. the employees of the FAS and FTS will have user accounts (login and password) to access Roskomnadzor's information system ¹¹.

Advertisers and other persons will be entitled to access the information stored by Roskomnadzor on advertisements that directly relate to their rights and obligations.

The information can be accessed at www.erir.grfc.ru. To log in, the advertiser or other person will need to have an approved account on the State Services (Gosuslugi) portal.

5. Labelling of Internet advertisements

According to the new requirements ¹², Internet advertisements mustinclude the following information:

Firstly, advertisements disseminated on the internet must be appropriately marked as an "advertisement". The Federal Antimonopoly Service of Russia points out that the laws do not provide for any other designation ¹³.

Secondly, in the case of Internet advertising, it should be stated who the advertiser is. Alternatively, the website where such information about the advertiser can be found may be specified.

6. Bloggers

Advertisements posted by bloggers and other influencers are also subject to the new restrictions. An advertising identifier must be obtained before a blogger publishes a post with advertising information.

This can be done either by the blogger itself or by anyone else in the advertisement placement chain, such as an advertiser.

Since the blogger acts as the advertising distributor, once an advertisement has been published, the blogger will also be under the obligation to provide information about it to the Unified Registry of Internet Advertising.

7. Exceptions

The new advertising record-keeping requirements do not apply in a number of cases.

The first exception is the case where advertising about one's own products is distributed through e-mail newsletters or in the form of e-mails on the Internet.

The second exception applies to advertisements in TV and radio programmes broadcast over the Internet, if they are identical to the
 

advertisements in the same programmes broadcast by a different means of broadcasting.

8. Liability

There are currently no specific regulations establishing liability for violating the requirements for keeping records of Internet advertising.

However, the Code of Administrative Offences of the Russian Federation (hereinafter the "Code of Administrative Offences") contains a general rule providing for liability for breaches of advertising legislation, i.e. Article 14.3 of the Code of Administrative Offences.

According to the general rules, breaches of advertising legislation by an advertiser, advertising producer, or advertising distributor are punishable by an administrative fine:

• from RUB 2000 to RUB 2500 for citizens;
• from RUB 4000 to RUB 20,000 for officials;
• from RUB 100,000 to RUB 500,000 for legal entities.

At the same time, Roskomnadzor has reported that interactions within the system for keeping records of Internet advertising will continue to be refined until March 2023, and therefore there are no plans to impose administrative penalties for breaches of the new requirements ¹⁴.

¹ https://www.akarussia.ru/knowledge/market_size/id10152
² Meta Platforms, Inc. has been declared extremist and is banned in Russia, and has been entered on Rosfinmonitoring's List of Terrorists and Extremists.
³ https://www.coca-cola.ru/news-and-trends/news/all-promotions-in-russia-suspended
⁴ Explanatory note on Draft Federal Law No. 1173900-7 "On Amending the Federal Law 'On Advertising' to Create the Unified Information System for Keeping Records of Advertising on the Internet Information and Telecommunications Network".
⁵ Clause 5 of Article 3 of the Law on Advertising
⁶ Clause 2 of the Terms and Conditions for the Selection of Advertising Data Operators, approved by Resolution No. 966 of the Government of the Russian Federation dated 28 May 2022.
⁷ Clause 17 of Article 18.1 of the Law on Advertising; https://interactivead.ru/wp-content/uploads/2022/08/arir22_rkn.pdf
⁸ Order No. 1362-r of the Government of the Russian Federation dated 30 May 2022 "On Approving the Content of Information on Advertisements Disseminated on the Internet That Is to Be Recorded, Stored and Processed by Roskomnadzor".
⁹ Draft Resolution of the Government of the Russian Federation "On Amending Certain Acts of the Government of the Russian Federation" (prepared by the Ministry of Digital Development, Communications and Mass Media, draft ID 02/07/08-22/00130611).
¹⁰ Clause 4 of Article 18.1 of the Law on Advertising
¹¹ Clause 4 of the "Rules for the Federal Service for Supervision of Communications, Information Technology and Mass Media to Provide Access to Information about Advertisements Disseminated on the Internet to the Antimonopoly Authority and the Federal Executive Body Authorised to Control and Supervise Taxes and Levies", approved by Resolution No. 969 of the Government of the Russian Federation dated 28 May 2022.
¹² Clause 16 of Article 18.1 of the Law on Advertising.
¹³ Letter No. KT/90922/22 of the Federal Antimonopoly Service of Russia dated 3 October 2022 "On Clarification of Parts 12, 15, 16 of Article 18.1 of the Federal Law 'On Advertising'".
¹⁴ https://adindex.ru/news/right/2022/08/15/306103.phtml

Kind regards,
 

Ilya Titov

With time, the texts of regulations are refined, and court judgements get overturned.

However, when trying to find information on intellectual propertyprotection in Russia, popular search engines still show headlines such as "Kein IP Schutz in Russland für EU Unternehmen" (EU Companies’ Intellectual Property Is Not Protected in Russia), "Has Russia Legalised Intellectual Property Theft?", and "How Russia Is Using Intellectual Property as a War Tactic".

In this overview, we will look at current myths and at what is now the reality when it comes to the protection of intellectual property in Russia.

Myth No. 1: Trademarks of foreign right holders are not protected in Russia

This misconception was caused by the world-famous Peppa Pig case, which was heard in the first instance by the Commercial Court of the Kirov Region ¹. The dispute concerned the use by a Russian entrepreneur of the trademarks and pictures associated with Peppa Pig without the consent of the right holder — Entertainment One UK Limited, a UK company.

The right holder claimed the standard monetary compensation provided for by Russian law for the unlawful use of trademarks and works.

However, the court found that the right holder had abused the right by seeking judicial protection "In view of the restrictive measures imposed on the Russian Federation and the plaintiff's status (the plaintiff's place of residence is the United Kingdom)". Accordingly, the claim was dismissed.

Reality

This judgement was overturned by the superior court of appeal, the court's findings were verified by the Intellectual Property Rights Court of Cassation, and the right holder's claim for compensation was (partially) satisfied ².

In addition, in similar cases where infringers cited the registration of right holders in so-called "unfriendly states" ³ and demanded that their claims be dismissed on that ground, the courts protected the rights of foreign right holders and upheld their claims ⁴.

The Russian Federation is a party to the Protocol to the Madrid Agreement Concerning the International Registration of Marks dated 28 June 1989. In accordance with Article 4(1)a) of the Protocol to the Madrid Agreement, starting from the date of registration or entry made in accordance with the provisions of Articles 3 and 3ter, the protection of the mark in each contracting party concerned will be the same as if this mark had been applied for directly at the authority of that contracting party.

The right holders of international and Russian trademarks protected in Russia are entitled to file claims against infringers for monetary compensation in the amount of up to RUB 5,000,000 (approximately EUR 82,000), or double the value of the goods on which the trademark was illegally placed, or double the value of the right of use of the trademark, claims for restraint of violation, etc.

Thus, the equal protection of intellectual property of foreign entities, including those registered in so-called "unfriendly states", is guaranteed in the territory of the Russian Federation, and adequate judicial protection of rights is ensured.

Myth No. 2: All patents of foreign patent holders may be used in Russia free of charge

According to the current civil laws, the Government of Russia may decide to use an invention, utility model or industrial design without the consent of the patent holder ⁵.

The right in question is not unique in the world practice and is based on Article 31 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS").

A decision to use a patent without the consent of the patent holder may only be taken by the Government of Russia in compliance with the criteria set forth in Article 31 of the TRIPS in cases of urgent necessity and for strictly defined purposes:

• to ensure the defence and security of the state; or
• to protect the life and health of citizens.

In practice, such permission is granted only occasionally:

• In 2020 the Government of Russia authorised ⁶ Pharmsintez Joint-Stock Company to use inventions of the US companies Gilead Sciences, Inc. and Gilead Pharmasset, LLC for one year without the consent of the patent holders, in order to provide the Russian populace with pharmaceuticals with the international non-proprietary name Remdesivir.
• On 5 March 2022 the Government of Russia reauthorised the use of inventions of the US companies Gilead Sciences, Inc. and Gilead Pharmasset, LLC until 31 December 2022 without the consent of the patent holders in order to provide the Russian populace with pharmaceuticals with the international non-proprietary name Remdesivir.

As this is a case of non-contractual use of patents, the general rule is that compensation should be paid to right holders.

On 6 March 2022 the Government of Russia, by its Decree No. 299, in addition to the rate of 5%, introduced a 0% rate in respect of compensation to the right holders whose patents were used on the basis of the authorisation of the Government of Russia without the consent of these patent holders. This rule applies to patent holders affiliated with foreign states that commit unfriendly acts against Russian legal entities or individuals.

Myth No. 3: Any goods may be imported into Russia without the consent of the right holder

The ability of right holders to control the import of trademarked goods into a country depends on the principle of exhaustion adopted in that country.

There are three such principles: international, regional and national. In the case of the international principle, once goods have been put into circulation with the consent of the right holder, the latter loses control over their subsequent resale worldwide in terms of intellectual property.

In the case of the regional or national principle, the right holder controls the import of its goods into each region or country, respectively.

In Russia, as before, the regional principle (within the EAEU) of exhaustion of the exclusive right to a trademark applies as a general rule: until the right holder gives its consent to the import of trademarked goods into the EAEU, this import will be considered to be illegal and may be prohibited by the customs authorities under certain conditions and by the right holder itself, for example, in a court of law.

However, the Government of Russia has made exceptions to this rule in respect of right holders who have declared a suspension of deliveries of their goods to Russia ⁷. Certain goods may now be imported into Russia without the consent of the right holder with whose trademark such goods are marked. This refers only to genuine goods, while counterfeit goods may not be imported in any case – such a ban is enforced through both administrative and criminal penalties.

The approved list ⁸is used to determine which goods are allowed for parallel import into Russia. Goods are only considered to be allowed for parallel import if the group of goods according to the customs nomenclature, the description of the goods, and the customs code (TN VED code) or trademark specified in the list coincide.

Thus, although parallel import is allowed, these rules are limited in nature. As a general rule, if the right holder makes the relevant goods available on the market, the risks of being included in this list are minimal.

¹ Judgement of the Commercial Court of the Kirov Region dated 3 March 2022 in case No. A28-11930/2021.
² Ruling No. 02AP-2571/2022 of the Second Commercial Court of Appeal dated 27 June 2022 in case No. A28-11930/2021; Ruling of the Intellectual Property Rights Court dated 19 October 2022 in case No. A28-11930/2021.
³ A note on "Unfriendly States": The Government of Russia has established a list of so-called "unfriendly states", which includes all EU countries, the US, the UK, Switzerland, and certain other countries. However, this list tends to have a specific application related to the fulfilment of obligations to certain foreign creditors, including right holders. However, this list is of no relevance for the purposes of trademark protection in Russia.
⁴ Ruling No. 18AP-6139/2022 of the Eighteenth Commercial Court of Appeal dated 22 June 2022 in case No. A76-42835/2021 (Rovio Entertainment Corporation vs. Individual Entrepreneur Igbal Mamed Ogly); Ruling No. 09AP-33279/2022 of the Ninth Commercial Court of Appeal dated 19 July 2022 in case No. A40-162262/2020 (Medtronic, Inc. vs. OOO V-D-M); Ruling No. 05AP-1199/2022 of the Fifth Commercial Court of Appeal dated 1 April 2022 in case No. A51-20464/2021 (MGA Entertainment, Inc. vs. Individual Entrepreneur Olga Borisovna Savchenko), etc.
⁵ Article 1360 of the Civil Code of the Russian Federation.
⁶ Decree No. 3718-r of the Government of the Russian Federation dated 31 December 2020 authorising Pharmasintez Joint-Stock Company to use inventions without the consent of patent holders in order to provide the Russian populace with pharmaceuticals with the international non-proprietary name Remdesivir.
⁷ Resolution No. 506 of the Government of the Russian Federation dated 29 March 2022 "On Goods (Groups of Goods) in Relation to Which Certain Provisions of the Civil Code of the Russian Federation on the Protection of Exclusive Rights to Results of Intellectual Activity Expressed in Such Goods and Means of Individualisation with Which Such Goods are Marked May Not Be Applied".
⁸ Order No. 1532 of the Ministry of Industry and Trade of the Russian Federation dated 19 April 2022 "On the Approval of the List of Goods (Groups of Goods) in Relation to Which the Provisions of Subclause 6 of Article 1359 and Article 1487 of the Civil Code of the Russian Federation Do Not Apply, Provided That the Right Holders (Patent Holders) Put These Goods (Groups of Goods) into Circulation outside the Territory of the Russian Federation, and with Their Consent".

Kind regards,

Alexander Bezborodov
 

Ilya Titov

1. Transactions with participation interests/shares

Pursuant to clause 1 of the above Extract, when considering whether the Sub-Commission should grant permits to carry out (execute) transactions (operations) aimed at the alienation of shares, participation interests, contributions in/to the charter capital of Russian business entities (hereinafter "Assets") by persons from "unfriendly" countries or persons under their control, regardless of their place of registration or place of primary business activity, it was decided as a rule to proceed from the feasibility of establishing the following conditions on the performance (execution) of such transactions (operations):

1. the availability of an independent appraisal of the market value of the Assets;
2. the sale of Assets at a discount of at least 50 % of the market value of the relevant Assets as stated in the Asset appraisal report;
3. the establishment of key performance indicators for the new shareholders (owners);
4. the availability of an installment payment plan for 1-2 years and/or the obligation to make a voluntary contribution to the federal budget of at least 10 % of the amount of the transaction (operation) to be executed (performed).

This officially confirms the information that was previously circulating in the market and which had been expressed unofficially during various interviews, to the effect that there is a requirement that a discount be provided of at least 50 % of the market value of participation interests/shares in the charter capital of Russian legal entities being sold by persons from "unfriendly" countries.

At the same time, we believe that the Sub-Commission assumes that all the aforementioned conditions for the performance (execution) of the
 

relevant transactions must be met simultaneously.

2. Payment of dividends

Clause 2 of the above Extract contains information from the Ministry of Finance of Russia and the Bank of Russia on approaches to deciding
 

whether or not to authorize organisations to pay profits (dividends) to foreign participants (shareholders) in cases provided for by Decrees of the President of the Russian Federation.

As a rule, such permits are granted if the following conditions are met:

1. the amount of profits (dividends) payable does not exceed 50 % of the net profit for the preceding year;
2. accounting for the results of a retrospective analysis of the payment of profits (dividends) for past periods;
3. the willingness of the entity’s foreign participants (shareholders) to continue their business activities in the Russian Federation;
4. taking into account the positions of the federal executive authorities and the Bank of Russia assessing the significance of the entity's activities and the impact of its activities on the technological and production sovereignty of the Russian Federation and the social and economic development of the Russian Federation (constituent entities of the Russian Federation);
5. the establishment of quarterly key performance indicators for entities by the federal executive authorities;
6. the possibility of paying profits (dividends) on a quarterly basis, provided that the entity meets the established key performance indicators.

Again, we assume that all of the above conditions for the payment of dividends must be met simultaneously.

Kind regards,

Alexey Kuzmishin
 

Nikolay Potanin

In the download area you can also find the Newsletter in Russian.

We would like to offer for your information some important changes in the practice of the tax inspectorate when registering the addresses of legal entities.

The inspectorate now strictly demands that the State Register of Addresses (GAR) must indicate not only the address of the building but also the address of the specific premises that the legal entity uses as its address. If the address of the premises is not listed in the GAR, this will constitute grounds to refuse registration of the address. You can check whether the GAR lists the address of the premises online at: https://fias.nalog.ru/. We expect that this change in practice will lead to a new surge of reviews of legal entities’ address and to information on incorrect addresses being entered in the Unified State Register of Legal Entities.

If the address of the premises that you are using is not listed in the GAR, the owner of the premises must register it there. In Moscow, this can be done remotely using the site mos.ru.The service is free of charge and generally takes seven business days.

Should you have any questions, we would be happy to assist you in registering the change of address.

Kind regards,

Andrey Slepov
 

Nikolay Potanin

Please find the russian version in the download area below.

Topics in this issue are:

Changes in Legislation

• EU Commission presents Draft for Provacy Shield Successor
• Protection for Critical Infrastructure - German Federal Government Apprives Key Issues of the Kritis Umbrella Act
• Reform of German Telefommunications Act in Force - Better Protection Against Spam Calls

Case Law

• ECJ Strenghtens Data Protecction Rights Against Providers of Telephone Directories
• Data Breach: Ambry Genetics Agreees to USD 12.25 Million Settlement
• Administrative Court of Hanover: Church is Subject to GDPR and Supervision by the State Data Protection Authority
• Gießen Regional Court: No Damages Claim Against Facebook Based on GDPR for Data-Scraping by Third Parties
• Lawsuit Against TikTok in Indiana

Regulatory Investigations and Enforcement Actions

• Irish Data Protection Authority Imposes EUR 265 Million Fine on Facebook
• EUR 2 Million Fine Against Social Network Clubhouse
• EUR 1.4 Million Fine for Keetping Customer Data Without Consent

The Privacy Ticker is available for download in the section below or here: LINK

In the same way that video games combine different art forms, games law is an interdisciplinary topic that raises a multitude of very different legal questions - therefore, we have a broad team of experienced lawyers specialized in this industry. The pictures below show our core team (which will further grow in January).

"Games Law Briefing" is our new newsletter format - this is volume II. We have again selected case law and regulatory news that we found to be of particular interest for the games industry. We found developments in intellectual property, consumer law and youth protection of particular interest, but we have also important news on e-sports, gambling, and games subsidies.

As the year comes to an end, we wish you a relaxing holiday season, some time to collect trophies in your favorite game, and all the very best for 2023.

Please find our Games Law Briefing in the download area below or by clicking here.

Topics in this issue are:

Changes in Legislation

• Proposal for a regulation on data collection and sharing Relating to short-term
• Digital Service Act entered into force 

Case Law

• CJEU must decide again on consumer protection associations' right of action
• Administrative court of Ansbach: Forwarding pictures of illegally parked cars to police is not a GDPR violation
• Advocate-general on the requirement of damage for non-material compensation

Regulatory Investigations and Enforcement Actions

• French data protection authority imposes fine against discord
• 5 million fine in the UK for employee data disclosure by cyber attacker

Opinions

• Google publishes privacy FAQ on Google Fonts
• DSK in favour of data protection compliant processing of health data in scientific research
• DSK: Microsoft 365 still in breach of data protection law
• Data protection authority of Baden-Wuerttemberg approves rules of conduct for data processors

The Privacy Ticker is available for download in the section below or here: LINK

Topics in this issue are:

Changes in Legislation

• Data Transfer to Third Countries: "Old" Standard Data Protection Clauses Expire
• USA: Biden Signs Decree for EU-US Data Protection Agreement
• Digital Services Act and Digital Markets Act Clear Final Hurdle 

Case Law

• ECJ on the Storage of Customer Data in an External Database

Regulatory Investigations and Enforcement Actions

• Criteria for Data Protection Certification Approved by Companies for the First Time
• Berlin Data Protection Authority Imposes Fine due to Conflict of Interest of the Data Protection Officer
• French Data Protection Authority Imposes EU 20 Million Fine against Clearview

Opinions

• Due to Current Events: Wave of Warnings due to the Use of Google Fonts
• Overview of Causes of Data Protection Breaches and Defence Measures Published

The Privacy Ticker is available for download in the section below or here.

it is our pleasure to introduce you to our latest International Briefing and to point out important legislative developments that may be relevant for you or your client's business operations in Germany.

The common denominator of these important developments is that all of them derive from EU regulations. For general counsels this means that although the law in Europe still reflects the diversity of its member states, the major legal developments in corporate law, the rules on foreign direct investment, digital services or on corporate compliance highlighted in this Briefing are driven by the EU in an effort to harmonize the legal framework for doing business in Europe and to improve the competitiveness of the EU as a single market.

This is good news, and it reinforces our conviction we can serve our clients best with ADVANT, combining national expertise and a seamless European experience to clients seeking to expand into or within, continental Europe.

Last but not least we would like to draw your attention to the fact that shortly after the 1st anniversary of ADVANT, we were awarded as International Firm of the Year 2022 by Legal Business.

To find out more about our recent journey, our team would be happy to catch up with you at IBA Miami.

Enjoy the read!

Prof Dr Hans-Josef Vogel
Dr Christian von Wistinghausen

Games are arguably the most dynamic media of our time. The legal framework for digital businesses is equally dynamic.

"Games Law Briefing" is our new newsletter format which is aimed to help you navigate through the jungle of new regulations and case law - we have selected what we found to be of particular interest for our industry, with a focus on intellectual property, consumer law, and youth protection.

We hope you find it useful - please let us know your thoughts.

Please find our Games Law Briefing in the download area below or by clicking here.

We do this intentionally in a way which seeks to draw your attention to key issues impacting foreign and domestic enterprises entering into commercial contracts in, or with relation to China. Hence, what we set out in this publication deals with some of the most common questions and situations brought to our attention. What can make these topics challenging is the complexities in understanding the differences between “domestic commercial contracts” and “commercial contracts with a ‘foreign relation’”.

Thus, please read this publication to get a first understanding on what aspects to look at when making such determinations in relation to commercial contracts with a China connection and for any specific questions, please contact us anytime!

Please find the flyer in the download area below.

Due to the EU Directive of 20 June 2019 on transparent and predictable working conditions in the EU, Member States were required to adopt the laws, regulations and administrative provisions necessary to comply with this Working Conditions Directive by 31 July 2022. It is of immense significance for the practice of labour law. In our latest ADVANT Labour & Employment Newsletter you will learn about the implementation status in France, Germany and Italy.

We hope you have an interesting read! Should you have any questions, please do not hesitate to contact us.

Best regards,

Your ADVANT Labour & Employment Law Team

Please find our Newsletter here.

Topics in this issue are:

CHANGES IN LEGISLATION

• German Federal Council Criticises Planned Chat Control

CASE LAW

• ECJ: German Data Retention is Unlawful
• German Federal Labour Court: Companies must Record Employees' Working Hours
• German Federal Labour Court: EUR 1,000 Compensation for GDPR-Damages after Incomplete Information by the Employer not too low
• Karlsruhe Higher Regional Court: No Exclusion of Hosting Provider with US Parend From Award Procedure

REGULATORY INVESTIGATIONS AND ENFORCEMENT ACTION

• Irish Data Protection Authority: EUR 405 Million Fine Against Instagram
• Berlin Data Protection Authority Issues Ultimatum on Use of Cicso Webex
• Volkswagen Finded in Millions for Missing Privacy Statement on Test Vehicles
• French Data Protection Authoriry: Fine Against Car Sharing Company for Collection of Location Data
• None of Your Business Activist Group Files 226 Complaints with 18 Data Protection Authorities against the Cookie Banners of One Trust

OPINIONS

• Data Protection Authority of North Rhine-Westphalia Publishes Handout on Online Examinations at Universities
• Schleswig-Holstein Data Protection Authority: Sending E-Prescription by E-Mail or SMS Illegal
• Thuringia's Data Protection Commissioner Warns of Wave of Warning Notices due to Integration of Google Fonts

The Privacy Ticker is available for download in the section below or here.

值此国庆佳节来临之际，昂帆百达律师事务所（ADVANT Beiten）中国业务部的全体同仁在此送上我们最诚挚的祝福：祝您和您的家人度过一个美好的国庆假期，祝您身体健康、阖家幸福、万事如意！

借此机会，我们想要为您介绍欧洲昂帆律师事务所联盟的最新动态：

• 欧洲昂帆律师事务所联盟 (ADVANT) 成立一周年
• 《投资德国 – 法律和税务指南》
• 弗莱堡分所官宣成立

我们希望我们提供的信息能够对您和您的企业有所帮助。

顺颂商祺

冯蔚豪 博士

Dr Christian von Wistinghausen

您可以点击“这里”查看本期的新闻简报特刊。

Antitrust compliance regulations have currently been adopted in the European Union, the EAEU, the United States, and many other developed countries. In Russia, regulations that directly regulate antitrust compliance came into force in 2020.

It is essential that due attention be paid to this area not only for the current law and the available clarifications and recommendations of the antitrust service, but, first and foremost, in connection with the possible employment of antitrust compliance systems to identify violations of antitrust legislation, and the possible mitigation of and even complete release from liability for certain antitrust violations.

Please find the flyer in the download area below.

Please find the flyer in the download area below.

Topics in this issue are:

Changes in Legislation

• Europol Regulation Entered into Force

Case Law

• ECJ: Member States can Adopt Stricter Legislation for Dismissal of Company Data Protection Officers
• ECJ: EU Member States must Significantly Restrict Transmission of Passenger Data
• Administrative Court of Wiesbaden: Inadmissibility of GPS Tracking by Logistics Company 

Regulatory Investigations and Enforcement Action

• Hellenic Data Protection Authority: EUR 20 Million Fine Imposed on Clearview AI
• Italian Data Protection Authority Fines Data Disclosure to Unauthorised Third Parties
• French Data Protection Authority Imposes EUR 1 Million Fine for Mishandling Data Subject Rights

Opinions

• German Data Protection Authorities Check Data Processing Agreements of Hosting Providers

The Privacy Ticker is available for download in the section below or here.

Russia offers a wide range of opportunities for dispute settlement. In addition to Russian state courts, professional mediators are also available, or disputes can be referred to an arbitral tribunal for consideration, with proceedings held in Russia or in a foreign country.

In this brochure, we offer you the opportunity to learn about the special features of consideration of disputes by arbitral tribunals in Russia.

competent national tribunals for acts violating the

fundamental rights granted him by the Constitution

or by law.”

– Universal Declaration of Human Rights, 1948 –

When doing business in Russia, as in other countries, disputes sometimes occur. A number of them can be settled through negotiations with the counterparties; however, some of them can grow into genuine conflicts that can be resolved through recourse to the courts.

As a law-based state, the Russian Federation guarantees that everyone can defend their violated rights, including in court. This concerns both foreign companies and investors. Owing to the reforms of recent years the guarantees enshrined in the Constitution of the Russian Federation are not merely decorative, but ensure a real and effective system for protecting violated civil rights.

Russia provides a broad range of opportunities to settle disputes. In addition to Russian state courts, professional mediators can be engaged, or the dispute may be referred to (international) arbitration. In addition, disputes may be referred to the state courts of foreign states for resolution.

In this brochure, we provide important information on how disputes are considered in Russian state courts. As the saying has it, forewarned is forearmed.The international law firm ADVANT Beiten wishes you every success in Russia, and hopefully without any litigation!

The European Parliament and the EU Member States reached a political agreement on the Digital Services Act. The Act aims to create a safer digital space where the fundamental rights of users are protected and to establish a level playing field for businesses.

Please find below our Tech Law Briefing in the download area or by clicking here.

On 23 June 2022, the German Bundestag approved the draft law implementing Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union. The "Working Conditions Directive" aims to improve working conditions by promoting transparent and predictable employment while ensuring the adaptability of the labor market. The law still has to pass the German Bundesrat and is expected to come into force as early as 1 August 2022. This newsletter provides you with information on what needs to be done by 31 July 2022 with regard to (almost) all existing model employment agreements, as well as by August 2022 at the latest with regard to already existing employment agreements.

Kind regards,
The ADVANT Beiten Team of authors

Peter Weck
Dr Erik Schmid
Asil Buruncayir
Jörn Manhart

You can read the newsletter by clicking here.

Topics in this issue are:

Changes in Legislation

• USA: Federal Data Protection Act under Discussion
• EU Commission: Planned Chat Control Criticised

Case Law

• German Federal Supreme Court on the Entitlement to be Delisted from Google Search
• Higher Administrative Court of Nort Rhine-Westphalia: Applications against Police Video Surveillance in Central Places in Cologne Largely Unsuccessful
• Cologne Regional Court: GDPR Damages for Failure to Delete Access Data to IT-System
• USA: Twitter Pays EUR 150 Million Fine for Processing Contact Data for Advertising Purposes

Regulatory Investigations and Enforcement Actions

• Federal Commissioner for Data Protection and Freedom on Information: Consultation Letter to the BPA on the Operation of Facebook Fan Pages
• Spanish Data Protection Authority: EUR 10 Million Fine against Google

Opinions

• EU Commussion Publishes Q&A on the Application of Standard Data Protection Clauses
• Hessian Commissioner for Data Protection and Freedom of Information: Universities May Use Zoom for Lectures
• French Data Protection Authority: Handout on the Use of Google Analytics

The Privacy Ticker is available for download in the section below or here.

Topics in this issue are:

Changes in Legislation

• EU Institutions Agree on Digital Services Act

Case Law

• ECJ: Consumer Protection Associations with Authority to File Lawsuits in Data Protection Violations
• Federal Surpreme Court Submits Question to ECJ on Abusive GDPR Information Claims
• Neuruppin Labour Court: EUR 1,000 Damages if Employee Data is not Deleted From the Website After Leaving the Company

Regulatory Investigations and Enforcement Actions

• Bavarian Data Protection Authority Does not Impose a Fine Despite Significant Violation
• French Data Protection Authority Imposes Million Dollar Fine for Disclosure of Health Data

Opinions

• EDPB: New Guidelines for the Calculation of GDPR Fines
• DSK Demands the Introduction of an Employee Data Protection Act
• DSK Demands Guest Access in E-Commerce
• Data Protection Authorities Want to Prohibit Address Trading

The Privacy Ticker is available for download in the section below or here.

Topics in this issue are:

Changes in Legislation

• Data Governance Act passed

Case Law

• Hagen Local Court Submits Key Questions on the GDPR Damaged Claim to the ECJ
• Pankow Local Court: GDPR Information on Video Recordning in Commuter Train Unreasonable
• Nuremberg Higher Regional Court: Request for Information not Primarily for Data Protection Purposes Abusive
• Ansbach Administrative Court: Constant Vieo Surveillance of the Training Area of a Fitness Studio Unlawful

Regulatory Investigations and Enforcement Actions

• Danish Supervisory Authority imposes Million Dollar Fine on Bank for Inadequate Documentation
• Swedish Data Protection Authority Fines Payment Service Provider for Failure to Specify Legal Basis
• Irish Data Protection Authority Fines for Incorrect Data Breach Notification and Inadequate Data Processing Systems

Opinions

• Data Protection Conference: Operation of Facebook Fanpages unlawful
• Lower Saxony State Data Protection Authoriy: Delete Corona Data of Employees "Now at the latest"

The Privacy Ticker is available for download in the section below or here.

These articles come from our member firms – ADVANT Altana in France, ADVANT Beiten in Germany and ADVANT Nctm in Italy – to provide you with valuable insights to navigate the many complex issues in the employment space.

We welcome your feedback on any of this content, or indeed your ideas for future articles which you would find helpful. Feel free to speak with your regular ADVANT contact if you have suggestions.

You can find the full newsletter in the download section or by clicking here.

For more information about ADVANT, please visit our Website.

We are pleased to present our special newsletter on the subject of "The reform of property tax and the resulting need for action".

We hope you enjoy reading it.

You can access the newsletter here.

Topics in this issue are:

Changes in Legislation

• Utah passes Data Protection Law

Case Law

• Higher Regional Court of Frankfurt: Unlawful Transfer of Applicant Data does not lead to GDPR Damages
• Regional Labour Court of Berlin-Brandenburg: EUR 1,000 GDPR Damages per Incomplete GDPR Information
• Higher Regional Court of Dresden on the Erasure of Data in Case of Retention Periods

Regulatory Investigations and Enforcement Actions

• Data Protection Authory Bremen imposes Million-Euro Fine on Housing Association
• Irish Data Protection Authority imposes EUR 17 Million Fine on Meta
• Italian Data Protection Authority imposes EUR 20 Million Fine against Clearview AI
• French Data Protection Authority: Focus on Direct Marketing, Employee Monitoring and Cloud Computing in 2022

Opinions

• Data Protection Conference: Updated Guidance for Direct Marketing
• Data Protection Authority of Baden-Württemberg publishes FAQ on Tracking and Cookies

The Privacy Ticker is available for download in the section below or here.

European Union (EU) stakeholders reached a provisional political agreement on the Digital Markets Act (DMA), which aims to make the digital sector fairer and more competitive.

The text is almost finalised. The summary below is based on public information provided by the Council of the European Union (as of 28 March 2022).

Please find below our Tech Law Briefing in the download area or click here. 

Topics in this issue are:

Changes in Legislation

• EU Commission presents Draft Data Act

Case Law

• German Federal Supreme Court: No obligation to provide Real Name on Facebook
• Conseil D'État confirms Fines of EUR 100 Million against Google
• Higher Administrative Court in Kassel overrules Cookiebot Judgement
• Higher Regional Court in Dresden: Managing Director resonally liable for GDPR Infringements
• Regional Court of Wiesbaden: No Injunctive Relief for Infringement of GDPR
• Regional Court of Munich I: Integrating Google Fonts is unlawful without Consent
• Regional Court of Hannover: Credit Agency must pay EUR 5,000 in Damages for false Negative Entry

Regulatory Investigations and Enforcement Actions

• Central Mechanism for Consent in Cookie Banner (TCF) does not comply with the GDPR
• French Data Protection Law Authority: Use of Google Analytics is unlawful
• Italian Data Protection Authority: Advertisers liable for Infringements of GDPR by Advertising Agencies

Opinions

• EDPB publishes Guidelines on GDPR Right of Access

The Privacy Ticker is available for download in the section below or here.

The overview represents the current court practice of the cassation commercial courts and the Supreme Court of the Russian Federation, whose position must be duly considered when challenging transactions during bankruptcy proceedings.

The entire newsletter "Russian Desk: Challenging Transactions During Bankruptcy Proceedings, February 2022" can be found in the download area.

Obligation to disclose information

In 2022 foreign companies in Russia registered with the Russian tax authorities are required to notify the tax inspectorate at their place of registration of the following¹:

• information on their direct participants, as well as
• information on indirect participants if their participation interests exceed 5%.

This disclosure notice on participants as of 31 December 2021 must be submitted not later than 28 March 2022. Subsequently the notice must be submitted annually not later than 28 March on participants as of 31 December of the previous year. There is no need to submit information on any changes to the company’s participants which occurred during the previous year².

This rule applies both to standard legal entities and also to unincorporated foreign structures. This includes, for example, foreign partnerships, partnerships or other associations.

If the foreign entity is only registered for tax purposes in Russia in connection with the provision of e-Services, in this case there is no need to disclose the information.

Direct and indirect participants (beneficiaries)

The new norm raises a number of issues related to its interpretation.

In the opinion of the Ministry of Finance and the Federal Tax Service, information must be disclosed on all the direct participants of a foreign company.

Information on indirect participants must be disclosed “to the level”

• of the individual if their indirect participation interest exceeds 5%, and
• of the public company if its indirect participation interest exceeds 5%.

Information "higher than the level" of a public company is not disclosed. This also follows from analysis of the form used to disclose the information.

Form of the disclosure notice

The Federal Tax Service has approved the form of the disclosure notice³. The notice is filed electronically via the channels used to communicate with the tax authority.

The notice must be filed with the tax authority at the place of registration of the foreign entity, in other words, with the tax inspectorate of the representative office, branch, construction site, other division of the  foreign company in Russia, at the location of immovable property or a bank account. If the foreign entity is registered with several tax inspectorates, then the notice is filed with one of them at its discretion.

The notice is signed by the director or representative of the foreign entity. If the power of attorney of the director of the representative office, branch, construction site, other division in Russia includes the power to file information with the tax authority (this is normally the case), then he/she signs the notice with an electronic signature and does not need additional powers to do so.

The information may also be filed by a third party based on a power of attorney issued specifically for this purpose.

What does this innovation mean for foreign companies?

As the timeframe for the filing of the information expires in several weeks, information must start to be collected on the participants of the foreign entity (direct and indirect) immediately. A fine has been established for the failure to disclose or late disclosure of information on beneficiaries – RUB 50,000 (approximately EUR 600)⁴.

How can ADVANT Beiten help?

We will clarify to you and designated persons located outside Russia the specific information and specific companies in a group that must be disclosed to the tax authority. Should you so require, we would be ready to help you fill in the form of the disclosure notice.

Kind regards

Anna Lesova

¹Clause 3.2 of Article 23 of the Tax Code of the Russian Federation in the version of Federal Law No. 100-FZ dated 20 April 2021.
²See Letter No. ShYu-4-13/13705@ of the Federal Tax Service of Russia dated 28 September 2021.
³Order No. ED-7-13/1046@ of the Federal Tax Service of Russia dated 1 December 2021
⁴Clause 2.1 of Article 129.1 of the Tax Code of the Russian Federation.

Topics in this issue are:

Changes in Legislation

• EU Parliament passes Digital Services Act
• South Korea Classified as a Safe Third Country

Case Law

• German Federal Supreme Court: Operation of Physicians' Rating Portal Lawful
• German record Fine at the European Court of Justice
• Regional Labour Court of Cologne: Termination Without Notice due to Unauthorised Access to and Disclosure of Thirt-Party Data
• Regional Court Frankfurt: GDPR Information is not a Pre-Trial Discovery

Regulatory Investigations and Enforcement Actions

• Fines of EUR 210 Million Imposed for Deficiencies in Cookie Settings
• Using Google Analytics unlawful?
• Italien Date Protection Authority Imposes Million-Euro Fine on Energy Group

Opinions

• Data Protection Conference: Guidance for TTDSG and Cookies
• EDPB Published Study on the Level of Data Protection in Russia, China and India

The Privacy Ticker is available for download in the section below or here.

You can find the full flyer in the download area.

Russian Federation [1].

Let’s have a look at the most important ones.

1. The court may, at its own initiative, declare the behaviour of one of the parties to be an abuse of a right if its behaviour clearly differs from good-faith behaviour. If the court establishes that a right has been abused, it is entitled to charge court costs to the party acting in bad faith and to deny a motion, if the motion was purposefully filed by a party at the wrong time.

2. If the court establishes that the claimant is guilty of committing bad-faith actions aimed at artificially changing the venue when filing a claim, then the court shall hand over the case to the court that would have had jurisdiction if the bad-faith actions had not occurred.

3. Based on a petition filed by a participant in the case, the court may reclaim the required evidence from third parties. The petition does not have to contain an indication of the specific details of the evidence and proof that the corresponding person has this evidence does not need to be attached to the petition.

4. The court may accept a counterclaim if it is a plea in reconvention of the original claim. For example, counterclaims on the payment under several different contracts can be considered within a single case if there are grounds to offset the claims under these contracts.

5. If a counterclaim was not filed on time by a party due to an abuse of procedural law, and the filing of the counterclaim is unquestionably aimed at dragging out the court proceedings, the court is entitled to issue a ruling concerning the return the counterclaim.

6. The place of actual performance of obligations or an indication in a contract of the place of performance of one of the obligations (for example, the address of the seller’s warehouse) are not, in and of themselves, sufficient grounds for filing a claim at the place of performance of the contract. If the contract does not directly indicate the place of its performance or there is no address of performance, jurisdiction over the case shall be determined based on the general rules.

7. The rules on exclusive jurisdiction at the location of real property do not apply to corporate disputes involving the transfer of immovable property (for example, on the transfer of real estate due to the creation, reorganisation and liquidation of a legal entity, when a corporation challenges the real estate transactions).

8. An agreement of the parties to change the venue (a contractual jurisdiction clause) that is part of a contract does not depend on the other terms and conditions of the contract, i.e., it is autonomous. Therefore, if a civil-law contract is deemed invalid (void) this itself does not invalidate this clause.
 

However, in certain circumstances the grounds for the invalidity of the main contract and the contractual jurisdiction clause may be identical (for example, on the establishment of a failure of intent at the onset of the agreement, the text of which includes a contractual jurisdiction clause, or on the discovery of falsification).

[1] Judgment No. 46 of the Plenary Session of the Supreme Court of the Russian Federation dated 23 December 2021 "On Applying the Commercial Procedure Code of the Russian Federation during the Consideration of Cases in the Courts of First Instance".

Kind regards,

Alexander Bezborodoz
Natalia Bogdanova

The key amendments are as follows:

1. Statements of claim, petitions, appeals, disclosures, and other documents may be filed with the court in electronic form via:

• the federal Gosuslugi [State Services] system, or
• another unified information system, as established by the Supreme Court or Russia, or
• the electronic document exchange systems of participants in the arbitration process, using the unified interagency electronic communications system.

Documents sent via the Gosuslugi system may be signed with a simple electronic signature. Exceptions are applications for granting interim measures and motions in arrest of judgment: these should be signed by an enhanced encrypted and certified digital signature.

2. Claimants that are legal entities must also indicate their taxpayer identification number (INN), while individuals must indicate one of several identifiers (individual insurance account number ("SNILS"), INN, or the series and number of their passport, driver’s license, or vehicle registration certificate).

3. The claimant has the right to send other parties to the case a copy of the statement of claim with attachments through the Gosuslugi system instead of sending it by mail. The respondent has a similar right when sending his/her response to the claim.

4. Notices of process and acts of the court in electronic form are sent to participants of commercial arbitration proceedings using the Gosuslugi system. In order to receive notices via Gosuslugi, participants in the proceedings should give their consent using the same system.

5. If the commercial court has evidence of the receipt of rulings on the acceptance of a statement of claim for proceedings, the initiation of case proceedings and information on the time and place of the first court session by parties to a case, then court rulings that set the time and place of subsequent court sessions are sent to parties by posting these court rulings to the information system determined by the Supreme Court of Russia, in limited-access mode.

The commercial courts also have the right to notify the given parties of subsequent sessions by sending information by email or using other means of communications.

6. A list of cases in which a notice is considered to have been received has been added to the Civil Procedure Code of the Russian Federation: (1) if it has been hand-delivered to the authorised official of a branch and representative office; (2) if it has been hand-delivered to the representative of a party to a case; (3) if there is proof of the delivery of the electronic court notice.

7. The procedural codes now foresee holding court sessions and receiving submissions in web conference format. A petition must be filed to participate in a web conference. The court issues a ruling on the party’s participation in the session via web conference; this ruling indicates the time of the session. Information necessary to participate in the session is sent to the participants in advance.

8. The identity of the parties participating in a court session via web conference is to be established using a unified biometric system.

9. Web conference participants may file statements, motions, and other documents in electronic form.

10. The commercial court obtains signatures from witnesses, experts, and translators participating in the court session via web conference to attest that their rights and obligations have been explained to them and that they have been warned of their liability for violating them; these signatures are to be provided to the commercial court in the form of an electronic documents signed with an enhanced encrypted and certified digital signature.

11. When a web conference system is used, minutes are taken and the court session is recorded on video. A physical copy of the video recording is to be attached to the minutes of the court session.

For the practical implementation of the new provisions, the Russian Supreme Court has to establish requirements on the hardware and software to be used when organising web conferences.

All amendments will apply contingent on whether the specific court has the necessary technical facilities.

[1] Federal Law No. 440-FZ dated 30 December 2021 "On Amending Certain Legislative Acts of the Russian Federation".

Kind regards

Alexander Bezborodov

Natalia Bogdanova

Artem Nikolaev

1. Background

A railcar supply contract was concluded in 2013 between a Russian company (the "Buyer") and a Polish company (the "Supplier"). The Buyer has the status of a strategic entity. When the Buyer entered the contract, however, it acted as an indepentend legal commercial entity which was not exercising the functions of a state authority and was not representing the interests of the Russian Federation. The contract was a commercial supply contract between two business entities which was not related to the public interest or the interests of the Russian Federation.

The parties agreed that any disputes would be resolved at the Arbitration Institute of the Stockholm Chamber of Commerce (the "SCC").

Since 2014 the EU, the USA, Switzerland, Ukraine and Liechtenstein have introduced sanctions against the Buyer.

In September 2018, the Supplier filed a request for arbitration with the SCC, demanding the recovery of debt and fines exceeding EUR 55 million from the Buyer. The Supplier paid the arbitration fee on behalf of the Buyer as the latter had alleged its poor financial situation. The Buyer did not submit arguments that it was technically unable to pay the arbitration fee owing to the sanctions.

The SCC started considering the dispute in accordance with its rules.

The Buyer participated fully in the arbitration proceedings (appointed an arbitrator, submitted a statement of defence on the merits of the claims, filed a counterclaim, etc.)

The SCC issued an arbitral award based on the merits of the claims on 12 May 2021.

The Buyer had filed a petition in November 2018 in the Russian state court at its place of registration to have the arbitration clause contained in the contract declared invalid and unenforceable. The petition was dismissed by the court (case No. A60-62910/2018).

New provisions of the Russian Commercial Procedure Code entered into force in June 2020 (Articles 248.1 and 248.2), stipulating that Russian legal entities subject to foreign sanctions may litigate with foreign counterparties in a Russian state court, regardless of whether the respective contract contained an arbitration clause in favour of a foreign arbitration institution (or a foreign state court). If an arbitral award has already been issued, then Article 248.1 of the Russian Commercial Procedure Code will not obstruct the recognition and enforcement of the decision of the foreign court or the foreign arbitral award adopted further to the claim of a Russian party subject to sanctions. This provision is also applicable if this person did not object to the consideration of the dispute by a foreign court or an international commercial arbitration institution located outside the Russian Federation, inter alia, it did not file a petition prohibiting the initiation or continuation of the proceedings in the foreign court or international arbitration institution located outside the Russian Federation.

In July 2020 the Buyer, based on the new provisions of the Russian Commercial Procedure Code, filed a petition with the Russian state court at its place of registration, requesting that it prohibit the Supplier from continuing proceedings in the SCC (an "Anti-Suit Injunction"); and in case of the non-performance of the court ruling to prohibit the continuation of proceedings – to recover approximately EUR 56 million in favour of the Buyer (case No. A60-36897/2020).

The Buyer’s petition was dismissed by the court of first instance in November 2020 and by the court of cassation in March 2021. The courts held that there was no evidence attesting to facts that obstructed the Buyer’s access to justice or prevented the Buyer from exercising its right to legal protection in the SCC.

2. Position of the Supreme Court of the Russian Federation

The Supreme Court disagreed with the conclusions of the lower-instance courts and stated the following [1]:

1. The goal of adopting the amendments to the Commercial Procedure Code of the Russian Federation was to establish guarantees to protect the rights and legitimate interests of certain categories of Russian citizens and Russian legal entities subject to restrictions introduced by foreign states, as the restrictions de facto deprive them of the ability to protect their rights in the courts of foreign states, international organisations or arbitration tribunals located outside the Russian Federation.

2. The actual introduction per se of sanctions against a Russian party in a dispute in an international commercial arbitration institution outside the Russian Federation serves as sufficient grounds for concluding that the access of the Russian party to justice is limited.

3. A unilateral expression of will expressed in a procedural form is sufficient for the transfer of a dispute to the jurisdiction of Russian courts.

4. There is no mandatory need to prove the impact of sanctions on the enforceability of an arbitration clause. On the contrary, the wording of the law emphasises that proving this fact is optional.

5. The introduction by foreign states of restrictions (bans and personal sanctions) on Russian persons impairs their rights, at the very least from a reputational perspective, and thereby deliberately places them on an unequal status with other persons. In such circumstances, doubts that a dispute with a person located in a state that introduced restrictions will be considered on the territory of the foreign state that also introduced restrictions in compliance with the guarantees of a fair trial are entirely justified, inter alia, when it comes to the impartiality of the courts, which constitutes one of the components of access to justice.

6. Under this approach, there is no material infringement of the rights of the claimant (the foreign company) to legal protection, as the claimant can turn to a Russian state court for legal protection.

7. An anti-suit injunction is only a relevant and effective interim measure before [judicial] actions have been completed. Once they have been completed, injunctive relief is no longer enforceable, does not provide the applicant with legal protection and as a result loses all meaning. 

As the proceedings in the SCC had already been completed on the date of the consideration of the case in the Supreme Court of the Russian Federation (December 2021) and an arbitral award had already been issued in May 2021, the Supreme Court, with due account of the actual circumstances, dismissed the petition for an Anti-Suit Injunction.

3. Consequences for foreign companies

Before filing a claim with a foreign arbitration institution, we advise foreign companies to check whether the respondent has been included in the US sanctions list and/or the sanctions list of European countries.

If such restrictions have been introduced in respect of the respondent (Russian company), then the company should assess in advance the consequences related to the possible issue of an anti-suit injunction by a Russian state court further to the petition of the Russian company (the "Petition"). During the consideration of the Petition in a Russian court, the foreign company may participate in the court sessions and submit its objections.

If the Petition is satisfied, the claim of the foreign company against the Russian respondent can be considered in a Russian state court, regardless of whether the respective contract contains an arbitration clause (or clause on contractual jurisdiction) in favour of a foreign forum.

[1] Ruling No. 309-ES21-6955 (1-3) of the Judicial Panel for Economic Disputes of the Supreme Court of the Russian Federation dated 9 December 2021 in case No. А60-36897/2020

Kind regards,
 

Alexander Bezborodov

Natalia Bogdanova

Topics in this issue are:

Changes in Legislation

• Agreement on Data Governance Act

Case Law

• European Court of Justice: inbox advertising only permissible with consent
• Administrative Court of Wiesbaden: use of "Cookiebot" on website is illegal
• Regional Labour Court lower saxony: EUR 1,250 GDPR compensation for incomplete information

Regzlatory Investigations and Enforcement Actions

• Norwegian Data Protection authoroity imposes million dollar fine for data sharing for advertising purposes

Opinions

• The Data Protection authority of lower saxony: FAQ on the TTDSG

The Privacy Ticker is available for download in the section below or here.

Topics in this issue are:

In Focus

• The Coalition Agreement from A to Z from a Labour Law Perspective
• 3G Requirements in the workplace and a return to the pbligation to work from home
• The "Corona Jurisprudence" - Storm in a Labour Law Teacup?
• Ready for Digitalisation (Betriebsrätemodernisierungsgesetz)
• Matrix Structures

Judgements

• Operational Risk and Lockdown
• LAG Cologne: No Right to Claim continued employment in the case of a medical certificate that the employee is unable to wear a mask
• LAG Dusseldorf: "Corona Cougher" as grounds for termination
• Crowdworker
• BAG: He who has suffered damage: The financial burgden of compliance investigations by external third parties
• BAG: A disclaimer in an employment conteact forfeiting all claims invalid
• Staff Secondments in Danger! Federal Labour Court appeals to the ECJ on the effectiveness of personnel assignments

The articles and the news flash in the newsletter can be read here.

Dear Clients, Friends and Colleagues,

We are very happy to send today our new client information.

Key takeaways:

• The EU Commission recently carried out an unannounced antitrustinvestigation in a company active in the defence sector.
• The need for a common security and defence policy within the EU impliesenhanced cooperation between defence companies across Europe. This may lead to higher risks of anticompetitive behaviour.
• Companies are well advised to implement or update dawn raid guidelines and compliance programmes to minimise antitrust risks.

We hope you enjoy the reading. Please do not hesitate to reach out to us with any questions.

Yours sincerely,
Dr Andrea Pomana 
Rechtsanwältin

You can find the Client Information 2021 here or download it in the download area.

A new name, a new look, a new European alliance: ADVANT.

ADVANT is an alliance of BEITEN BURKHARDT, Altana and Nctm, including more than 600 professionals in 13 locations across Europe and beyond. Built on the core values of trust, excellence, and efficiency, we have combined forces to provide legal services to those seeking to expand in or into Europe. We retain our excellent national practices and add a new layer of European expertise, helping clients achieve their goals throughout the continent.

In this first edition of our ADVANT Beiten International Briefing, we have compiled articles and information that we hope will be of use and interest to you and your clients. ESG principles impact legislation and jurisprudence in all spheres of business law and we give an overview of the most important developments in Germany, including the German Act on Due Diligence in the Supply Chain.

Another important trend is the strengthening of consumer protection – Germany implements the EU Digital Content Directive and passes a new act on Fair Consumer Contracts, and we inform you about the most relevant new rules. Please also take note of the new rules for digital sales and sales of goods: the new EU directive will require a thorough review of terms and conditions.

New legislation on Foreign Direct Investment has been a recurring topic in 2021, and our ADVANT alliance partners Altana and Nctm inform on the French and Italian Foreign Direct Investment regimes.

We wish you and your families and friends all the best for the festive
season, take a break, and stay safe!

Looking forward to continuing this conversation in 2022, kind regards,

Prof. Dr Hans-Josef Vogel
Dr Christian von Wistinghausen

Topics in this issue are:

Case Law

• EU Parlament positions itself with regard to the Digital Markets Act

Case Law

• ECJ reviews SCHUFA-scoring
• Regional Court of Frankfurt: technically defective cookie banners are a breach of competition law
• Regional Court of Krefeld: no GDPR claim in the event of legal abuse
• Regional Court of Munich on the obligation to provide information under the GDPR: electronic information via a link is sufficient
• Administrative Court of Hannover: query of date of birth in order process unlawful
• Administrative Court of Wiesbaden: data subject has right to intervene against Data Protection authority

Regulatory investigations and enforcement actions

• Italian Data Protection Authority launches investigation after hacker attack
• Fine imposed by the Dutch Data Protection Authority for insufficient data security at airline
• Fine imposed by the Polish Data Protection Authority due to inadequate reporting of a data breach

Opinions

• Federal commissioner for data protection and freedom of information: implementation of 3G at the workplace "defective"
• Bavarian Data Protection Authority: collection of FAQs on the processing of 3G/2G data at the workplace 
• Data protection conference: resolution on the processing of the "vaccination status" date at the workplace

The Privacy Ticker is available for download in the section below or here.

However, the situation changed dramatically after February 2022. According to experts, the regional share of Russia in the structure of consumer spending on mobile games has contracted from 50% to 10% since then. This decline is primarily attributable to the suspension of payment processing by Google and Apple, as well as the refusal of some services, such as Steam, to accept payment made using Russian bank cards.
 

In light of these developments, the state authorities have taken steps to assist the video games sector.
 

In May 2022, a meeting was held behind closed doors between representatives of the Executive Office of the Russian President and Russian video game developers. They discussed the possibility of redirecting the industry towards the Chinese market in a bid to reverse current negative video game development trends.
 

With these challenges in mind, in this overview we will describe the most pressing legal issues arising in the online gaming sector in Russia.

1. Background information on online games in Russia

Under Russian law, online games are computer programs. Accordingly, online games (including the right of protection or right of commercialisation) are regulated on the basis of the Civil Code of the Russian Federation (“RF Civil Code”, “Civil Code”).

No special regulator (state authority) is responsible for online games in Russia. At the same time, the Federal Service for Supervision of Communications, Information Technology and Mass Media (Roskomnadzor), which monitors the distribution of information of potential harm to children, may also within known limits exercise control over online games, as they are played more often by children, in other words individuals under the age of 18 according to Russian legislation. In addition, Roskomnadzor is authorised to block websites, which also makes this an important agency for the online games industry.

All companies and individual entrepreneurs that concluded contracts with mobile phone operators earlier than 1 June 2021 are required to disclose information on all corporate mobile numbers to a special federal state information system by 30 November 2021.

Such a deferral is not stipulated for new corporate numbers: they must be registered immediately.

Federal Law No. 533-FZ dated 30 December 2020 "On the Introduction of Amendments to the Federal Law On Telecommunications" stipulates that such information must be confirmed by the user of the corporate SIM card (employee) or entered by the latter through the use of the Unified Portal of Public and Municipal Services – the Public Services Portal (Gosuslugi) (https://www.gosuslugi.ru/).

In practice, foreign companies and their employees working in Russia encounter a number of difficulties when registering corporate SIM cards. We analyse them here, taking into account the most recent clarifications of the Ministry of Digital Development, Communications and Mass Media of the Russian Federation ("Ministry of Digital Development") granted to us further to a request from ADVANT Beiten.

Mandatory registration on the Public Services Portal

To confirm his or her SIM card, the employee must have an account on the Public Services Portal. Furthermore, the individual’s user account must be confirmed. To confirm this account, the employee is required, bringing along their passport and individual insurance account number (SNILS), to contact one of the bank partners of this programme, (on the date of this information letter, the following banks were listed as such partners: Sber, VTB Bank, Tinkoff Bank, Post Bank, Bank Saint Petersburg, Ak Bars Bank, SKB Bank, Gazenergobank, DeloBank, RNCB Bank, PSB Bank, Bank Avangard, MTS Bank), the service centre "My Documents" or an office of Russian Post, or do this independently online on the Public Services Portal, provided that they have an enhanced qualified electronic signature.

A foreign organisation may only register on the Public Services Portal if it has a representative office or branch in Russia which has been registered with the Federal Tax Service.

In addition, foreign citizens may only register on the Public Services Portal if they have an individual insurance account number that they can obtain from the centres "My Documents" or from the Pension Fund of Russia.

The legislator did not stipulate any other procedure for activating corporate SIM cards, which is also confirmed by the clarifications of the Ministry of Digital Development.

One employee may have several SIM cards

No limitations are stipulated by the Law regarding the number of SIM cards that may be registered with one employee.

The Ministry of Digital Development also confirms in its clarifications that there is no limit on the corporate numbers that may be registered with an employee who has a "confirmed" account on the Public Services Portal.

What should be done about a SIM card if an employee resigns or is dismissed?

If a company employee who has a corporate SIM card registered in his name, resigns/is dismissed, this employee may independently delete the registered corporate number from the Public Services Portal. All the employee needs to do on the Public Services Portal is to click the "delete" button against their respective corporate number in the "Corporate Communications" section.

If a former employee did not delete their former corporate number from the Public Services Portal for some reason, this will not create a problem for the employer: when the employer enters information on the new user of this SIM card, or the new employee provided with this SIM card registers it on the portal, then the number of the previous user will be automatically "unlinked".

What will happen after 30 November 2021?

If organisations or their employees do not register/confirm their corporate SIM cards on the Public Services Portal by the end of this month, effective 1 December 2021 the mobile phone operator is required to stop providing telecommunications services for this subscriber number, whereof it must duly notify the respective legal entity or individual entrepreneur.

If no response is received by the established deadline, the subscriber number is deleted from the contract between the mobile phone operator and the legal entity or individual entrepreneur.

Andrey Slepov and Ilya Titov

Topics in this issue are:

Case Law

• Higher Regional Court of Munich: right to copies of data includes E-Mails, letters, telephone notes, memos and minutes of conversations
• Higher Regional Court of Dresden: no further duty to provide information after negative GDPR notice
• Administrative Court of Wiesbaden: no right to intervention by the Data Protection Authority

Regulatory investigations and enforcement actions

• Italian Data Protection Authority imposes Million Dollar fine for illegal advertising calls
• Austrian Data Protection Authority sets EUR 9.5 Million fine for missing E-Mail contact
• French Data Protection Authority fines commercial platform for various data protection violations
• EDPB forms "Task Force" for cookie banner complaints

Opinions

• The Feeral Office for Information Security publishes FAQ on IT Security act 2.0

The Privacy Ticker is available for download in the section below or here. 

You can download the entire flyer "The German Act on Corporate Due Diligence Obligations in Suppy Chains" in the download area below.

Topics in this issue are:

Case Law:

• ECJ must decide on the assessment of damages under the GDPR
• Higher Regional Court of Brandenburg: GDPR compensation only in the event of actual damage
• Higher Regional Court of Hamm: Stating of employee's surname on rating platform permissible
• Regional Court of Wuppertal: No right to information under the GDPR if only pursuing objectives unrelated to the purpose of the GDPR

Regulatory Investigations and enforcement Actions:

• Fine of EUR 225 million against Whatsapp
• Consumer organisations warn some 100 companies about cookie banners
• Italian data protection authority imposes fine for unlawful data processing in whistleblowing system
• Hamburg Commissioner for Data Protection: fine for intransparancy on matching bonus-relevant customer data

Opinions:

• HBDI: Fax is not in conformity with GDPR
• BAY LFD: New orientation guide on consent

Implementation of most of the actions stipulated in the anti­corruption plan is based on the interaction of different agencies to obtain the necessary information and prepare joint reports and proposals.

The new anti­-corruption plan expands (from eight to 16) the number of areas in the fight to counter corruption and eliminate the consequences of such corruption.

Particular attention is paid to the following actions in the anti-corruption plan:

1. Regarding improvements to the procedure for verifying information on the property and incomes of a person under investigation.

The plan proposes regulating the procedure governing the receipt by the monitoring authorities of certain types of information for anti­corruption monitoring purposes:

­- The submission by the Central Bank of the Russian Federation of the credit history of a person under investigation from the Central Credit History Catalogue and credit history bureaus;

­- The submission by civil registry offices of information from the Unified State Register of Civil Registry Records;

- The submission by the tax authorities of information on the accounts and deposits of persons under investigation at banks in the Russian Federation;

­- The submission of information on the securities owned by persons under investigation.

2. Regarding the application of administrative and criminal law enforcement actions.

The plan refers to the need to introduce amendments to the Criminal Code of the Russian Federation regarding penalties based on offences stipulated by Parts 1 and 4 of Article 204.1 (Mediation in commercial bribery) and Part 5 of Article 291.1 (Mediation in bribery).

The Office of the Prosecutor General of the Russian Federation has been instructed to take additional measures jointly with the security, defence law and enforcement agencies and the Federal Court Bailiff Service of the Russian Federation to recover the damage caused by corruption offences.

3. Regarding the use of digital technologies to counter corruption.

The main emphasis in the anti­corruption plan is placed on the need to develop solutions in the fight against corruption offences which concern digital financial assets, digital rights and currencies.

4. Educational activities aimed at inculcating in the population an intolerance of corruption.

If these plans are implemented, there is hope that the investment climate will improve and investments will be protected in Russia.

Alexander Bezborodov 
 

Artem Nikolaev

In the bankruptcy case of a debtor (individual), the financial administrator filed a petition in court for approval of Regulations on the Procedure for the Sale of the Car of the Debtor.

In the opinion of the debtor, the Regulations should have stated that the car had been pledged with a third party (legal entity) to ensure the performance of obligations under a loan agreement.

The financial administrator objected and noted that the claim of the pledgee had not been included in the creditor claims’ register. Consequently, the contested property may not be sold as property encumbered by a pledge.

The courts of all three instances supported the debtor’s position, holding that the inclusion of the claim of the pledgee in the creditor claims’ register only affects the exercise thereby of the pledgee’s rights in a bankruptcy case, while the pledge retains force from the perspective of substantive law, irrespective of whether the pledgee participates in the bankruptcy case of the pledgor or not.

The Supreme Court of the Russian Federation disagreed with this approach, stating:

• The approach drafted in 2009 is no longer relevant (namely Clause 18 of Judgment No. 58 of the Plenum of the Supreme Commercial Court of the Russian Federation dated 23 July 2009 “On Certain Issues Related to the Satisfaction of the Claims of a Pledgee in the Bankruptcy of a Pledgor”).
• Pursuant to legal regulation in effect at present, after the sale of pledged property in a bankruptcy case, the pledge ceases and the property is transferred to the buyer free of any encumbrances.
• In such cases, any pledge creditor that failed to submit their own claims in a bankruptcy case forfeits their rights to said property and may not file a claim for the receipt of the proceeds from its sale.
• The conclusions of the courts that information on the encumbrance of the car by a pledge must be indicated in the text of the regulations are mistaken.
• A similar approach has been adopted in instances of the bankruptcy of legal entities (Ruling No. 308­ES16­1368 of the Supreme Court of the Russian Federation dated 26 May 2016).

Alexander Bezborodov
 

Natalia Bogdanova

Topics of this issue include:

• New rules for consent to telephone advertising
• People`s Republic of China passes data protection law
• Higher Regional Court of Duesseldorf: Publication of children's photographs in social media requires consent of both parents
• Higher Regional Court of Bremen: GDPR Compensation only in the event of actual damage
• Regional Labour Court of Hamm: EUR 1,000 GDPR Compensation for incomplete information provided by the employer
• Luxembourg data protection authority: Record fine of EUR 746 million imposed on Amazon
• Berlin commissioner for data protection: Action against 50 website operators using unlawful tracking
• Austrian data protection authority: EUR 2 million fine for formatting errors in consent
• Italian data protection authority: EUR 2.5 million fine against food supplier
• The data protection authority of Lower Saxony imposes a fine for outdated website software
• EDPB: Guidelines on codes of conduct as a tool for data transfers to third countries

Please find the full article in die download area below.

Topics of this issue include:

• EU Commission classifies UK as safe third country
• Federal Supreme Court: GDPR right to information includes internal memos and communications
• EDPB waives emergency decision against Facebook
• Federal Commissioner for Data Protection: Authorities should shut down Facebook fan pages

1. Proposed EU Regulation: The "Artificial Intelligence Act"

The EU Commission intends to harmonize the law on artificial intelligence (AI) across the EU. Therefore, on 21 April 2021, it proposed a new Regulation, the so-called “Artificial Intelligence Act”.¹

Overview

The Regulation

• applies to the placing on the market, putting into service and use of “AI systems”, 
• establishes prohibitions on certain AI practices,
• imposes requirements specifically for AI systems posing a high risk, and
• requires high transparency regarding the use of “AI systems intended to interact with natural persons” as well as emotion recognition and biometric categorization systems, and image, audio or video content generation or processing systems.

According to the EU Commission, the proposal aims to “turn Europe into the global hub for trustworthy Artificial Intelligence”.² [...]

You can find the whole version of this newsletter in the download area below.

New notification obligation for all companies

The new German Transparency Register and Financial Information Act (Transparenzregister- und Finanzinformationionsgesetz, TraFinG) is designed to make some significant changes to the Transparency Register obligations, which are part of the German Money Laundering Act (Geldwäschegesetz, GwG). The Act will enter into force on 1 August 2021 and includes obligations which apply on foreign companies.

What is the aim of the new Act?

The main aim of the Act is to network the German Registry with the European Transparency Register in order to allow money laundering and terrorism financing to be fought more intensively.

How is this goal to be reached?

Until now, the Transparency Register only had to be notified when the information about the beneficial owners was not available from certain other registers (e.g. from the German Commercial Registers) so that the Transparency Register did not contain all information about beneficial owners (so-called overflow register).

In order to network with the European Transparency Register, it was necessary to transform the German Transparency Register into a full register. This was the only way to guarantee that all information on the beneficial owners would be available to the Transparency Registers of the EU Member States in a uniform data format and could be accessed from anywhere in Europe.

Which significant changes does the new Act introduce?

To achieve this goal, the Act abolishes the so-called notification myth. Until now, this myth had meant that many limited liability companies (GmbHs), in particular, were not required to notify their economic beneficiaries to the Transparency Register. Instead, the information about the beneficial owners of a limited liability company could be gleaned from the list of shareholders available electronically from the Commercial Register or from the overview of various lists of shareholders in a chain of investors.

The planned abolition of the notification myth will mean that, generally, all companies with a registered office in Germany will have to provide information on their economic beneficiaries to the Transparency Register in the future.

Even stock corporations listed on a stock exchange (and their subsidiaries), which were exempt from the notification requirement until now, will have to notify the Transparency Register in the future in accordance with the new Act. A privileged status does only apply on registered associations.

Which time limits must be observed?

Under the new Act, a staggered transition period will apply. Companies, which were exempt from notifying their economic beneficiaries to the Transparency Register in accordance with the notification myth, will have to make their first notification by the following dates:

• Stock corporations (Aktiengesellschaften, AG), partnerships limited by shares (Kommanditgesellschaften auf Aktien, KGaA) and Societas Europaea (SE) must notify by 31 March 2022;
• Limited liability companies (Gesellschaften mit beschränkter Haftung, GmbH), cooperatives, European Cooperatives and partnership companies (Partnerschaftsgesellschaften) have until 30 June 2022;
• all other companies required to notify must do so by 31 December 2022.

Which obligations apply to foreign companies?

Since 1 January 2020, foreign companies have had an obligation to notify the German Transparency Register in the case of the planned acquisition of real estate in Germany (asset deal). This obligation will now be extended to cover share deals.

Under the new TraFinG, foreign companies must also notify their economic beneficiaries to the German Transparency Register where they wish to acquire shares in a German company that holds property in Germany. This notification obligation applies where the planned share deal triggers the requirement to pay property transfer tax under § 1 para. 3 of the German Real Estate Transfer Tax Act (Grunderwerbsteuergesetz, GrEStG).

An exception to the notification requirement applies only where the information about the economic beneficiaries has already been notified to the Transparency Register of another EU Member State.

If a foreign company fails to fulfil its notification requirements prior to the notarisation of the sale and purchase agreement (asset or share deal), the German notary will not be able to notify the agreement.

What are the consequences of a breach of the Transparency Register obligations?

Failure to comply with the notification obligation, providing incorrect or incomplete information or failing to notify the Transparency Register within the applicable time periods constitute an offence. In the case of simple infringements, companies and their directors may be fined up to EUR 150,000; in the case of serious, repeated or systematic infringements, fines of up to EUR 1 million or up to twice the economic benefit resulting from the infringement.

In addition to the threat of fines, since 1 January 2020, any final decisions imposing fines for a breach of a Transparency Register obligation has been published on a website of the German Federal Administration and will be able to be viewed by anyone for a period of five years (naming and shaming). The website shows both the name of the company and the type of infringement committed.

Need for further action and conclusion

The elimination of the notification myth means that numerous companies (especially limited liability companies) will have significantly more work.

These companies must not only notify their economic beneficiaries to the Transparency Register for the first time, but they must also regularly review the information that has been provided and update it as necessary. This means that companies will need to implement a compliance system (effective internal monitoring and reporting system).

We are happy to provide support if you have any questions in relation to the Transparency Register and the planned updates introduced by the TraFinG. We are also happy to help with the notification of the economic beneficiaries to the Transparency Register.

In addition to your normal BEITEN BURKHARDT expert, our Team is ready and willing to assist you in all matters relating to the Transparency Register.

Petra Bolle
Tassilo Klesen
Dr Julia Offermanns (geb. Thöle)
Dr Winfried Richardt

Topics of this issue include:

• NEW STANDARD DATA PROTECTION CLAUSES ADOPTED
• IT SECURITY ACT 2.0 ENTERS INTO FORCE
• ECJ: BELGIAN DATA PROTECTION AUTHORITY RESPONSIBLE FOR GDPR VIOLATIONS BY FACEBOOK IRELAND
• GERMAN DATA PROTECTION AUTHORITIES MONITOR IMPLEMENTATION OF THE SCHREMS II RULING
• EU AUTHORITIES PUBLISH UPDATED RECOMMENDATIONS ON THIRD COUNTRY TRANSFERS

Topics of this issue include:

• German Parliament passes Telecommunications and Telemedia Data Protection Act: Consent for Tracking Cookies required by Law

• ECJ called in on Requirements for GDPR Damages

• Hamburg Data Protection Officer prohibits Facebook from processing WhatsApp User Data

• Data Protection Officer of the State of Bremen: Telefax is not data protection compliant

百达律师事务所的第二十六期中文新闻简报现在和您见面了。本期简报将为您提供以下信息：

• 收紧关于透明登记簿的法律 - 毫无例外的登记义务
• 《德国供应链法》：政府草案、常见问题及欧盟
• 新《德国反垄断法》简析

您也可以通过关注我们律师事务所的微信公众号进一步了解相关信息。请搜索微信号bblawgermany或扫描二维码订阅律所公众号。

我们希望本期新闻简报对您和您的企业能够有所帮助！

如果您希望获取更多关于百达律师事务所法律咨询实务的相关信息，请浏览我们的官方网页或者点击链接阅读我们律所的中文版简介。

顺颂商祺

冯蔚豪 博士

Topics of this issue include:

• Register modernisation act promulgated: Tax ID to be the central personal indentifier for administrative data
• Stutthart higher regional court: no reversal/easement of the burden of proof for claims for damages under article 82 GDPR; submission of the original power of attorney for request for information
• Bavarian data protection authority: Unverified use of newsletter tool mailchimp illegal

Positive news from us: Despite all the waves, one spectacular financing round is lining up after the next and our start-up location is thriving – even when the Suez Canal is closed for a few days.

Next good news: We were delighted to celebrate the 8^th Birthday of Werk 1 on 19 March 2021. If you haven’t yet heard about this high-performance centre for start-ups in Munich, you can read more here. We’ve partnered with Werk 1 since 2019 and want to take this opportunity to again wish this fantastic project a very happy birthday.

Our series of workshops is also about to start again. Unfortunately, all workshops (scheduled for 13, 15, 20 and 22 April) will be held virtually, at least for now. The advantage of this is that we have a lot more “space” than we normally do, so make sure you register for your spot. 

We’ve got the following articles for you in this newsletter:

• The new German competition law: What’s in it for start-ups and VC? (Christoph Heinrich, Cathleen Laitenberger)
• EU First – Venture Capital Funds, start-ups and the German Foreign Investment Control (Dr Patrick Alois Hübner, Dr Christian von Wistinghausen)
• Will there soon be a new limited liability company form for start-ups? (Tassilo Klesen)
• SPAC Fever 2021: Recommendations for Early-Stage start-ups (Dr Mario Weichel)
• Brexit: Impact on the transfer of personal data to the United Kingdom (Katharina Mayerbacher)
• Update 2021 – an overview of the most important labour law updates for start-ups (Dr Michaela Felisiak, Dr Erik Schmid)
• Recent EU Regulation on crowdfunding (Dr Christoph Schmitt, Joel F. Schaaf)
• The legal framework for crowdfunding (Christoph Daniel, CrowdDesk)

We hope you enjoy reading it!

As always, we welcome your input and comments.

See you soon!

Your BEITEN BURKHADT Start-up and Venture Capital Team

You can find the whole newsletter here.

On the one hand, foreign rights holders that are the manufacturers of medical goods still retain almost complete control over the import of goods bearing their trademark into Russia, as well as the ability to preclude unauthorized shipments.

In general, in 2022, thanks to the joint work of rights holders and the Russian customs authorities, more than 7 million non-genuine goods were identified at the import stage, although in 2020 this number was over 13 million — almost twice as much.

The ability to control the import of trademarked medical goods allows rights holders to increase their sales, protect their distributors in the country, and also protect their brand’s reputation.

However, the situation is changing rapidly. The partial legalization of parallel imports is affecting more and more sectors, and already calls are being heard for parallel imports of medical goods to be allowed as well, if rights holders reduce supplies to Russia or even suspend and withdraw their business from the country.

The antitrust risks that result from the fight against parallel imports and the restriction on the ability importers to bring authentic goods into Russia also add fuel to the flames.

In addition, the distribution of medical goods is a centre of contention: on the one hand, rights holders fight to ensure the quality of goods being delivered, but on the other hand the Russian antitrust authorities believe that under certain circumstances imports by parallel or “independent” importers can be a good thing.

In this brochure, we will talk about how to do business in turbulent conditions and how to maintain control over imports and avoid falling into antitrust traps.

Two hearts beat inside me right now: the rejuvenation of approaching spring but also the ennui of seemingly identical days with no travel, physical meetings or even a commute most days due to COVID-19. "Déjà vu all over again", to quote Yogi Berra (for those who are not baseball cognizant, Yogi Berra was a famous player, coach and manager – and coined numerous phrases, so-called Yogiisms).

But let’s embrace spring (at least in the Northern Hemisphere) with a bevy of highly interesting articles compiled by the lawyers and tax advisors at BEITEN BURKHARDT. You may notice how many times the word "new" shows up in the articles we compiled for you: if you did not notice, I counted 7 times (9 if we count "evolving" and "recent" as well). The European and German legislative bodies and the German courts have not taken a break during the pandemic but are still working at high levels. New FDI regulations will require careful structuring of transactions and sound time management skills to navigate the threat of a monthlong suspension of activities. The Transparency Register will undergo significant changes and require the urgent attention of shareholders outside of Germany, too. Foreign directors will also be interested to hear that the German courts have clarified the obligations of managers in times of financial crisis, adding the threat of criminal prosecution to the mix.

Take a few minutes to read what we hope will be of interest to you, your clients and colleagues and join us in looking forward to better times and the return (at least, a bit…) of life as we knew it. All of us at BEITEN BURKHARDT look forward to meeting many of our friends again, the sooner the better.

Prof. Dr Hans-Josef Vogel
Co-Head of the Corporate/M&A practice group

Topics of this issue include:

• Berlin Regional Court: No GDPR fine of more than EUR 14.5 million
• Fine imposed on German Premier League Football Club VfB Stuttgart
• Supervisory authoritites on reporting and notfication obligations in the event of a Microsoft exchange server compromise

Topics of this Issue include:

• Brexit and Data Protection: Adequacy Decision in Sight
• German Federal Constitutional Court: Materiality Threshold for GDPR Damages must go to the European Court of Justice
• “Task Force” of the Data Protection Authorities plans to examine the Use of US-American Cloud Services by German Companies

Topics of this Issue include:

• EU Commission proposes regulation on data governance
• German Federal Court of Justice (BGH): No right to information under copyright law with regard to e-mail and IP adresses
• CNIL imposes record fines on Google and Amazon
• State Commissioner for Date Protection (LfD) Lower Saxony publishes guidance for cookie banners

Dear Reader,

Shortly before the end of the year we would like to get back to you and report on the latest news and ideas from our sector.

We hope you all got through this challenging year smoothly and without problems. Should you find yourself in a situation, though, where we can do something for you on the legal side, just give us a call. One thing has surprised us this year in a particularly positive way: The willingness to help each other; we are pleased to join in.

As terrible as many experiences were in the past months, we have also learned a lot. For instance, that for a founder the “mindset” can be very helpful in phases like these. We had to constantly adapt, change and rethink concepts and come together again to cooperate with each other. It was, thus, hardly surprising to us that most of you are quite laid back in dealing with this crisis.

So business as usual – we have the following articles for you in this newsletter:

• “Corona Pandemic – Labour Law Helps Start-ups Save Money”, Dr Michaela Felisiak and Dr Erik Schmid
• Legislative Initiative to Simplify Taxation of ESOPs, Dr Christian Kalusa
• Second Closing for Financing Rounds, Markus Schönherr and Dr Sebastian Weller
• Duty of Notification Under the German Foreign Trade and Payments Act and the German Foreign Trade Act and Payments Regulation, Benjamin Knorr and Robert Schmid
• Will There Soon Be a New Legal Form for Start-ups? Dr Gesine von der Groeben
• Decentralized Autonomous Organizations – Vision and Classification Under Corporate Law, Julius Weishaupt

Right at the beginning of the new year we will again start our workshop series and are looking forward to welcoming you – therefore, we further develop our digital offers, and of course we all hope that we can meet face to face again.

Until then we have our work cut out for us. The lockdown phases with their restrictions have to be made up for and numerous projects still have to be completed. The next weeks will be packed with work and very busy.

So let‘s get to work and not let it get us down.

Best regards,
Your BEITEN BURKHARDT Start-up / Venture Capital Team

Topics of this Issue include:

• New standard contractual clauses of the EU Commission
• Updated draft for the e-privacy regulation
• ECJ: No consent via pre-checked checkboxes even for "offline" signing
• EDPB release recommendations on international data transfers

Topics of this Issue include:

• Switzerland adjusts data protection law to the GDPR
• Federal court: insolvence administrator cannot assert rights under gdpr
• DPA Hamburg: record fine for database on employee's private life
• German DPAS deem office 365 not compliant with GDPR

各位读者朋友：

我们希望您度过了一个愉快的国庆假期。百达律师事务所 的第二十四期中文新闻简报现在和您见面了。我们的新闻 简报主要面向在德的中资企业和有意愿在德投资的中国企 业及企业家。在简报中，我们向您介绍我们的律师团队在为 中国投资者提供法律服务过程中常遇到的法律问题，以及 业界的一些最新动态。

本期简报将为您提供以下信息：

• 百达律师事务所近期涉及国内企业案例的报道

• 百达律师事务所荣幸赞助德国中国商会2020中国日 活动

• 百达律师事务所参加主题为“全球性流行病中的科技 与法律前沿问题”的第十二届知识产权大会并就中国 对德国的技术投资和德国的外商投资审查发表见解

• 收购在德危机企业

您也可以通过关注我们新发布的 微信公众号进一步了解相关信 息。请搜索微信号bblawgermany 或扫描二维码订阅律所公众号。

我们希望本期新闻简报对您和 您的企业能够有所帮助！

如果您希望获取更多关于百达律师事务所法律咨询实务的 相关信息，请浏览我们的主www.beitenburkhardt.com，或 者通过以下链接阅读我们律所的中文版简介。

顺颂商祺

冯蔚豪 博士

Topics of this Issue include:

• Regional Court Hamburg: No Damages for Pain and Suffering because of Data Breach without nameable Damage
• Taskforce of European DPAS to review Google and Facebook Services on Websites
• Updated Guidlines of EDPB on Distinguishing between Controller and Processor

You can watch the video with the presentation of our partner Falk Tischendorf under the following link: https://youtu.be/hOMENdyjxH8

You can download the newsletter in the area below.

Topics of this Issue include:

• Regional Court of Munich: GDPR-based Access extends to copies of internal Memos
• DPA Hamburg penalizes non-confidential handling of Corona Guest Records by Restaurants
• Guidance of European Supervisors on Data Transfer to the USA as per ECJ`s Ruling

The “Study on directors’ duties and sustainable corporate governance” (“Study”) prepared by EY addresses centrally the phenomenon of “short termism”, the short-term thinking in corporate governance (Study on directors’ duties and sustainable corporate governance – Publications Office of the EU). The focus of corporate decision-makers on short-term shareholder value maximisation instead of long-term corporate interests reduces the long-term economic, environmental and social sustainability of European
companies, according to the underlying thesis of the Study. The Study uses data material from recent decades to substantiate the phenomenon of short termism, and then presents essentially seven main causes (“Drivers”) of short termism as well as three possible responses by the European Commission (“Commission”) as remedies.

You can download the whole newsletter in the area below.

More importantly, the Court cast aspersions on the use of Standard Contractual Clauses (“SCCs”) as a mechanism for international data transfers, though it did not declare these to be invalid per se.

This decision will have an enormous impact on both transatlantic and global data transfers. Data exporters within the EU will need to take urgent action to ensure compliance.

You can find the complete newsletter in the download area below.

You can download the ticker in the area below.

You can download the entire ESG and Law newsletter in the download area.

You can download the ticker in the area below.

2020 China Outbound EU Investment and M&A Forum

30 June 2020 / 2020年6月30日

The German supervisory authorities require providers to ensure that every cookie used is justified under the GDPR. As concrete example they only comment on the analysis service Google Analytics, for which the consent of the user is necessary in any case.

Many providers ask users for their express consent to all or specific cookies. Some are content with just pointing out their use of cookies which they justify with legitimate interests, or assume the users’ tacit consent if they continue to use the website.

Today’s ruling by the Federal Court of Justice (Bundesgerichtshof,‘BGH’) in the “Planet49” case (file ref. I ZR 7/16 –“Cookie Einwilligung II”) makes a significant contribution to clarification. The BGH has ruled that cookies for advertising and market research require consent of the user. This is based directly on the ePrivacy Directive, not the GDPR. To obtain such consent, providers cannot rely on an opt-out procedure, whereby consent is pre-selected so that users must actively deselect the consent to refuse it.

Welcome to the first edition of our International Briefing for 2020!

Coronavirus. Almost everything in the first few months of 2020 has revolved around it. The pandemic has forced us from our workplaces into our homes, together with our children whose schools, kindergartens and childcare centres have closed. The global impact of the coronavirus on society and companies is tremendous. In the economic world, employees have been just as affected as customers, suppliers and investors. Numerous legal fields and many industries have faced with new questions and challenges.

To help you navigate this difficult time, we are bundling answers and information from all fields of law in our Corona Information Centre on our website.

This edition contains a broad array of topics of interest to international business, with contributions from many of our practice groups, ranging from Corporate and M&A Law to IP/ IT and Labour Law.

We look at the current German legislative initiatives for tighter controls on investments from non-EU countries, provide updates on the reporting obligations for the German Transparency Register and review the status of Brexit.

Distressed M&A in Germany – the acquisition of companies out of insolvency – offers opportunities, but also risks. A broad range of legal issues and areas must be considered in such transactions (e.g. insolvency, corporate, labour and tax law issues, and in some cases even antitrust law issues). We highlight and explain a few of the more general legal issues.

We also delve into the issue of cybersecurity under German law, provide an overview of what needs to be considered with respect to unions and works councils in Germany and, last but not least, give a detailed overview of the current developments concerning sustainability in times of coronavirus.

We hope that you will find the information provided helpful in your daily business.

Stay safe!

Best regards,

Dr Maximilian Emanuel Elspas

You can download the ticker in the area below.

At its annual press conference on 12 May 2020, the German Federal Financial Supervisory Authority (BaFin) addressed the emerging regulatory challenges. Although it cannot and does not want to suspend existing supervisory law, it will use legal leeway to adapt supervisory practice to the crisis. This applies, for instance, to the following measures.

各位读者朋友：

百达律师事务所的第二十三期中文新闻简报现在和您见面了。我们的新闻简报主要面向在德的中资企业和有意愿在德投资的中国企业及企业家。在简报中，我们向您介绍我们的律师团队在为中国投资者提供法律服务过程中当前所遇到的法律问题，特别是涉及欧洲新冠大流行所造成的影响。

本期简报将为您提供以下信息：

• 新冠病毒危机下的供应链断裂
• 德国政府对外商收购健康领域内的企业其框架条件拟进行修订
• 增加短时工作津贴

您也可以通过关注我们新发布的微信公众号进一步了解相关信息。请搜索微信号bblawgermany或扫描下方二维码订阅律所公众号。

我们希望本期新闻简报对您和您的企业能够有所帮助！

我们如何帮助企业应对围绕新冠病毒大流行所面临的法律上挑战的实用信息，请参见点击https://www.beiten-burkhardt.com/de/corona-informationscenter访问我们的新冠病毒信息中心。我们就此专题与德国中国商会共同举办的网络研讨会，详细信息请点击此链接。

如果您希望获取更多关于百达律师事务所法律咨询实务的相关信息，请浏览我们的主页www.beitenburkhardt.com或者通过以下链接阅读我们律所的中文版简介。

顺颂商祺

冯蔚豪 博士

However, these reliefs are only to apply until 30 September 2020. If necessary, this suspension period can be extended to 31 March 2021 by statutory order.

You can download the newsletter in the area below.

You can download the ticker in the area below.

Practical advice and recommendations for the gradual reopening of retail outlets 

Who may open, who may not? What about the 800 square metres? Is there a chance of opening my store and getting compensation? These are the questions that worry retailers these days. Before proceeding any closer to the actual debate on opening up the market, let us briefly shed light on the currently confusing and extremely volatile legal situation and make recommendations for action, one essential thing first:

Your position should not be "Tolerate and liquidate"!

Some people may think that it makes no sense to resist and that one can wait and still insist on compensation later on. However, such a procedure contradicts central principles of state liability law and can quickly lead to a situation in which one can neither open one's shop nor assert claims later on. Hence the clear recommendation: Seek opening first and foremost! 

You can find the complete newsletter in the download area below.

You can download the flyer in the area below.

You will also find further assistance in the Corona-Information-Center of BEITEN BURKHARDT.
 

The following considerations address the legal implications of this issue and serve as a guide for action to be taken.

You can find the complete newsletter in the download area below.

Yet again, the first two months of the year have just flown by. We are particularly happy to announce that we are now cooperating with both The Growth Stage and Werk1 in Munich.

The Growth Stage entered the market in autumn 2018 as the world’s first financing platform for private growth companies. We have been working together with The Growth Stage as exclusive legal adviser since 31 January 2020 and assist companies when accessing institutional investors via this platform. (You can find the press release here.)

One of the reasons why the start-up Öko System in Munich has developed so well is the digital start-up center Werk1. In addition to two co-working spaces, Werk1 hosts an incubator, which focuses on digital start-ups of all industries, and the accelerator InsurTech Hub Munich in the fields of InsurTech and HealthTech. We decided to support Werk1 as a partner not only financially, but with our legal expertise, too. Our Werk1 Team is made up of experts for corporate law, labour law, IP/IT law and data protection law and it sponsors and supports Werk1 start-ups with workshops and regular office hours. Werk1 start-ups can also contact us at any time for advice and support.

You can find the following articles in this newsletter, together with our usual calendar of events:

• Dr Gesine von der Groeben from our Frankfort Office reports on the special features of M&A for start-ups.
• Our Hamburg colleague, Jan Christian Eggers addresses the question of when competition authorities will have a say in the sale of a start-up.
• Our experts for director liability, Drs Daniel Walden and Florian Weichselgärtner have analysed the liability risks for the directors of start-ups and the possibility of taking out D&O insurance as security against such risks. They also spoke to insurance expert Marcus Helmich from hendricks GmbH about this issue.
• Tassilo Klesen and Dr Eva Kreibohm look at the issue of “beneficial owner” and the new obligation on notaries to perform anti-money laundering checks – we should all have these checks on our radars in order to avoid unnecessary delays in notarisation.
• Jan Mohrmann from our Frankfort Office and Christian Philipp Kalusa from our Munich Office inform about their last experience with the design of an employee participation plan and the tax relevant points in time of valuation and receipt thereof.
• Our Munich labour law experts, Drs Erik Schmid and Michaela Felisiak clear up numerous misunderstandings about the question of “trial periods”.
• Finally, Frank Mayer from Barmer Insurance provides some answers on the right health insurance for founders.

Happy reading!

We keep you up to date.
Your BEITEN BURKHARDT Start-up / Venture Capital Team

• Chapter I: How & When to Resume Work
• Chapter II: Most Urgent HR Matters
• Chapter III: Impact on Labour Contracts & Arbitration

Topics:

• Draft of new regulations for the implementation of the Californian Consumer Privacy Act (CCPA)
• Danish supervisory authority considers common cookie banner design to be insufficient for obtaining consent
• Italian supervisory authority imposes million-euro fine for illegal direct marketing
• Public consultation by the Federal Commissioner for Data Protection and Freedom of Information (BfDI) on the handling of anonymisation
• Activity report of the supervispry authority of Baden-Wuerttemberg with details on obtaining valid consent for sweepstakes
• Guidelines of the European authorities on data protection related to connected vehicles
• Event information: Breakfast Seminar Privacy Policy, March 2020 in Berlin, München, Hamburg, Frankfurt

• EU action plan on sustainable Finance
• Sustainability disclosure regulation
• Taxonomy regulation
• Coming into effect and further steps
• Supervision and sanctions
• Practical implications

The legislator has already stipulated use of state-of-the-art communication tools in certain sectors. In addition, it is advisable for enterprises to align their internal documentation with the requirements of today's realities. Electronic media may offer competitive advantages.

Topics:

• Tax Consultants are not Processors
• The California Consumer Privacy Act in Force
• Fines imposed by the Belgian Supervisory Authority for incorrect Information on Cookies and Consent
• Italian Supervisory Authority imposed a Fine of Millions for Unsolicited Direct Marketing
• ICO imposes Fine for Inadequate Security Measures against External Attacks
• Baden-Wuerttemberg Supervisory Authority Discontinues Activity in Twitter
• CNIL Publishes Draft Recommendations for Consent to Cookies

百达律师事务所的第二十一期中文新闻简报现在和您见面 了。在此圣诞和新年来临之际，我们百达律师事务所中国业务 部衷心祝您佳节愉快，2020年一切顺利、心想事成！我们的新 闻简报主要面向在德的中资企业和有意愿在德投资的中国企 业及企业家。在简报中，我们向您介绍我们的律师团队在为中 国投资者提供法律服务过程中常遇到的法律问题，以及业界 的一些最新动态。 本期简报将为您提供以下信息：

• 百达律师事务所2019年9月路演活动汇报
• 《关于外国投标人和货物参与欧盟采购市场的指导意 见》
• 德国新《商业秘密保护法》概述
• 德国将加强外商投资审查 − 《德国工业战略2030》
• 数据保护处罚案例 − Deutsche Wohnen SE
• 新专栏：在德国进行企业并购 – 法律问题和战略方针之 签署和交割

我们希望本期新闻简报对您和您的企业能够有所帮助！

如果您希望获取更多关于百达律师事务所法律咨询实务的 相关信息，请浏览我们的主页www.beitenburkhardt.com， 或者通过以下链接阅读我们律所的中文版简介。

顺颂商祺

冯蔚豪 博士

Welcome to the December edition of our International Briefing.

In this edition, we provide insight on several hot topics that will continue to be in the focus for clients and the legal profession in 2020.

Some months ago, the German Federal Ministry of Justice and Consumer Protection presented its plans for a new law imposing corporate sanctions and combatting corporate crime. Although the draft bill is still being discussed, you must consider the potential effects of this new law now, because it will, for example, significantly increase financial penalties, necessitate compliance activities and regulate internal investigations.

We inform on new plans to further strengthen the rules for controlling and approving foreign (non EU) direct investment resulting from Guidelines for German and European industrial policy (Industry Strategy 2030) published by the German Federal Ministry for Economic Affairs and Energy, and in addition, we provide an update on the delay to the reform of the planned real estate transfer tax for share deals.

Besides, the German Bundestag finally agreed on reforms to German stock corporation law to implement the second EU Shareholder Rights Directive. These reforms have particular implications for the remuneration of the executive board, also under CSR considerations. Therefore, we provide a respective update on CSR requirements for corporates in Germany. Therein, we will also briefly inform you about new binding due diligence obligations for supply chains regarding conflict minerals, based on EU law. Though such obligations will only enter into force on 1 January 2021, companies importing such conflict minerals into the EU will need to prepare well in advance.

Last but not least, our IP and IT colleagues outline the new concept for the imposition of administrative fines for violations of the General Data Protection Regulations, which the German Data Protection Conference presented in October. They also inform you about some record-breaking administrative fines imposed for breaches of the GDPR in Germany and other European countries.

We hope that you will find the information provided helpful in your daily business and we wish you Happy Holidays, a few days of repose during the coming festive season and a great start to 2020!

Best regards,
Prof Dr Hans-Josef Vogel
 

“More Than Just a Game” conference for international games law experts held in Germany for the second time

Dear Reader,

Computational creativity and autonomous content generation, eSports, all-you-can-game offerings. These were the subjects of this year‘s “More Than Just a Game” conference in Frankfurt am Main on 17 October 2019.

“More Than Just a Game” is the Queen Mary University conference series, which has started in London in 2015 and has successfully expanded into other European cities. This is the second year MTJG returned to Frankfurt. At the heart of the format are panel discussions as well as the exchange of experience between gaming researchers and industry experts from all over the world. Like last, the conference 2019 was held at the Frankfurt office of BEITEN BURKHARDT.

Among the speakers were well-known representatives of major games publishers such as Nintendo and ZeniMax, scientists from the Queen Mary University of London as well as representatives of the German Entertainment Software Self-Regulation Board (Unterhaltungssoftware Selbstkontrolle – USK) and the Commission for the Protection of Minors in the Media (Kommission für Jugendmedienschutz – KJM). In addition, the panel on eSports featured, among other speakers, the persons in charge of the eSports programs of the German Football Association (Deutscher Fußball-Bund e.V. – DFB) and of Eintracht Frankfurt. As in the previous year, the audience could share their opinion at the end of the panel discussions.

In this newsletter, we present the most important topics and findings of the “More Than Just a Game” conference in Frankfurt. If you would like to get more information on the following topics or if you have any questions on other topics regarding the games industry and games law, please do not hesitate to contact us at any time. As you will see: it‘s about more than just a game!

Best regards,
Dr Gaetano Dimita and Dr Andreas Lober

• New Concept for the Imposition of Administrative Fines for Violations of the GDPR

Welcome to the Autumn 2019 edition of our International Briefing. While the Brexit date is fast approaching, it is still not possible to anticipate what precisely will be agreed, if anything. Nevertheless, you must prepare your business for the day when the UK becomes a third country from an EU perspective. We therefore would like to remind you of the Brexit related commercial and corporate law issues.

At the end of July, the EU provided guidance on the participation of third­country bidders and goods in the EU procurement market. You will find an overview of this new guidance in this edition.

If you are involved in the cross­border sale of goods, you should be aware of the restrictions resulting from EU antitrust law. We provide high­level information to help you make sure your business is compliant.

We provide also updates with respect to the planned legislative reform of real estate transfer tax in share deals, on corporate social responsibility matters, as well as on the case law to be aware of if you plan to merge an overindebted limited liability company with another previously solvent limited liability company in Germany.

If a merger has to be notified to the EU Commission and an interim buyer is used for the acquisition, the interim acquisition itself requires merger control clearance under specific circumstances. We look at the fine line between so-­called warehousing and gun­jumping.

Moreover, you should bear in mind that group parent companies are liable for the cartel damages caused by their subsidiaries. According to a recent judgment of the European Court of Justice, the entities liable for cartel damages are to be determined on the basis of EU law.

Last but not least, we are proud to announce that the leading German economy weekly Wirtschaftswoche ranked BEITEN BURKHARDT in the top tier of the best legal firms in the field of Mergers & Acquisitions for 2019. We hope that you will find the information provided helpful in your daily business.

Best regards,
Dr Christian von Wistinghausen

Dear Reader,

It’s half-time for 2019 – we want to use the opportunity to take a deep breath and take stock. Germany is quickly becoming a start-up country and, apart from residual issues, such as the fact that financing rounds are too small by international standards, our Start-up / Venture Capital Team has had much to do in the first half of 2019. We are very pleased with the strong growth in our sector and the great response we have received for our work. We would like to thank all of our clients, both old and new, for their trust in us. We enjoy working with you and are looking forward to helping you to make our business location more sustainable. Keep on pushing!

Unfortunately, we must admit that our newsletter has suffered somewhat as a result of our workload – that’s why we have a mid-year edition of our newsletter.

You can find the following articles in this issue of our newsletter:

• Tassilo Klesen, one of our colleagues from our Berlin office, looks at the buzzword “purpose” and how it can be legally secured.
• Next is an article by our colleague Dr Christian Gloger, who is a partner in the New York law firm of Kleinberg, Kaplan Wolff & Cohen. We asked him to tell us how and where to best raise capital in the US at the Moment.
• The article by Laureen Lee keeps our sights on the other side of the Atlantic. She looks at the ECJ judgment in Maximilian Schrems vs. Facebook Ireland Limited and the answer to the question of when personal data may be transferred to the USA.
• Christian Hess, one of our IP lawyers based in Munich, provides an overview of the new Trade Secrets Act.
• Our labour law duo, Dr Erik Schmid and Dr Michaela Felisiak have provided us with two articles for this issue. One looks at the important judgment of the ECJ of 14 May 2019 on monitoring working time. The second examines the practical question of whether it is sufficient for employees to send their employers a WhatsApp message to let them know that they are ill.
• We finish with an article by Christian Kalusa entitled “A short word about Vesting”. Too often over the last few months, we have been presented with clauses that initially have little to do with vesting. Christian clarifies several aspects.

Happy reading and thanks for sticking with us!

Best regards,
The BEITEN BURKHARDT Start-up / Venture Capital Team

百达律师事务所的第二十期中文新闻简报现在和您见面了。我们的新闻简报主要面向在德的中资企业和有意愿在德投资的中国企业及企业家。在简报中，我们向您介绍我们的律师团队在为中国投资者提供法律服务过程中常遇到的法律问题，以及业界的一些最新动态。

本期简报将为您提供以下信息：

• 百达律师事务所2019年四月路演活动
• 新版《投资德国指南》发布
• 德国《商标法》修正案 –《 商标法现代化法案》
• 休假请求权失效 – 雇主须采取的行动

我们希望本期新闻简报对您和您的企业能够有所帮助！

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顺颂商祺

Welcome to our Summer 2019 edition of our International Briefing.

This briefing focuses on recent EU legislative developments and its transformation into German law that we consider of interest to our international clients.

We provide updates with respect to the EU Company Law Package, in particular on the use of digital tools and processes in company law and on the future procedures for the cross-border conversion of a German GmbH and relocation of the registered office within the EU.

We also inform on the status of the implementation of the second EU Shareholder Rights Directive with respect to the remuneration of Executive Board members in stock listed companies as well as on the ministerial draft on the transposition of the 5th Money Laundering Directive into German law.

The EU Directive on common European standards for the protection of trade secrets has also currently been implemented in Germany, and you will find an overview of the new German Trade Secrets Act herein.

From a tax perspective you should be aware of German case law on total buyout agreements regarding copyrights and last but not least we provide news on „whistleblowing“.

We hope that you will find the information provided helpful in your daily business.

Best regards,
Dr Maximilian Emanuel Elspas
 

Germany‘s Federal Cartel Office: Facebook‘s data collection and aggregation – an abuse of a dominant market position

The German Federal Cartel Office (Bundeskartellamt) has issued a landmark ruling concerning the collection and aggregation of data by Facebook, holding the practices of the company to breach German anti-trust laws. The decision comes as a surprise to many and will have wide-ranging effects, meaning that compliance with data protection laws is now no longer merely a matter for data protection supervisory authorities, but also for anti-trust regulators. This is the end of the “One Stop Shop“ the GDPR promised, and means potentially higher fines – up to 10 % of a company‘s annual world-wide turnover. The FCO‘s decision might also be the starting point of a discussion as to what extent companies (whether dominant or not) can still rely on the argument that their data processing activities are required for the performance of a contract.

Once entering into effect, the FI Law will be the comprehensive law governing foreign investment activities in the PRC. Forthwith, the PRC Wholly Foreign-Owned Enterprise Law (“WFOE Law”), the PRC Sino-Foreign Equity Joint Venture Enterprise Law (“EJV Law”) and the PRC Sino-Foreign Cooperative Joint Venture Enterprise Law (“CJV Law”) will be abolished.

The issuance of the FI Law corroborates the trend of unifying the legislation for domestic and foreign investments in China.

Once in effect, the FI Law will adjust the corporate legal framework governing FIEs in many aspects, some of which will materially impact on the operation of the existing FIEs and some of which will impact the strategy applied by foreign investors to enter the PRC market.

For existing FIEs the FI Law provides a five years transition period (counted as of 1 January 2020 and hence lapsing on 31 December 2024) to adjust their corporate governance to the new system of the FI Law.

Since the FI Law is a very simple and short piece of legislation, many aspects of the actual application will be subject to (yet to be published) specific implementing measures.

This publication is hence designed to summarise the key points of the FI Law. At the same time, one shall closely monitor the issuance of the specific implementing measures of the FI Law.

Since the beginning of this year stricter rules for controlling and approving foreign (non EU) direct investment apply in Germany and the EU just published a framework for screening of foreign direct investments into the Union on 21 March 2019. You will find updates thereof herein.

We also inform on experiences on cross-border conversion of a German GmbH and relocation of its registered office within the EU, also taking into consideration the reforms proposed by the EU Company Law Package in this respect.

From a tax perspective you should be aware of new recent legislative initiative regarding a reform of real estate transfer tax in share deals. The proposed legislation may require a different structuring and therefore should be kept in mind in M&A transactions involving real estate.

Finally, our IP and IT colleagues showcase two interesting cases regarding data protection and trade secret protection as well as on the amendements of the German Trademarks Act applicable since January, implementing an EU Directive.

Last but not least we would like to inform you that the new edition of our investment guide “Investing in Germany” is now available in English and Chinese for download here.

We hope that you will find the information provided helpful in your daily business.

We already look forward to seeing many of you at the IBA Conference in Barcelona or ABA Spring Conference in Vancouver!

Best regards,
Prof Dr Hans-Josef Vogel

Our team of German lawyers and Chinese legal consultants has many years of experience in advising and assisting Chinese clients with all legal aspects of cross-border matters, including complex projects and transactions. Our Chinese colleagues have graduated from the country‘s elite universities and have gained additional qualifications from other countries. They are fluent in Chinese, German and English.

We offer the highest level of local expertise from our offices in Germany and Beijing, and can utilise the network and resources inherent in a large international law firm.

For the standard incorporation and successful implementation of your new subsidiary we offer fixed rates.