Schlichtungsstelle für Suchmaschinen

Mediation board for search engines.

Since the European Court of Justice’s recent decision that Google (and all search engines) must delete on request links to pages that E.U. burghers feel violate their personality rights, thousands of deletion requests have been sent to the company.

Germany’s coalition government announced they want a board to be created to help search engines process these requests so the search engines are not the sole deciders. They said they want clear rules about how these requests are evaluated. Clear credible rules for how the “forget” requests are handled are also necessary: in the U.S.’s data protectionless jungle, companies frequently respond to consumers’ requests to forget or correct information with demands for more information, all of which is certainly not deleted. Who will be allowed access to the forget requests? Who can make copies of them, and how secure are the copies?

Germany’s data protection officers have demanded they have a significant role in the evaluation of the link deletion requests.

Update on 30 May 2014: Germany’s data protection officers have criticized that the “forget” request page Google has provided requires a scan of the requestor’s passport or other photo identification. Hamburg state data protection officer Johannes Caspar, who deals with Google questions, said that the automatic saving of personal ID’s by non-public entities was illegal and must be changed immediately. Google promptly changed the wording on the online submission form to “Please attach a legible copy of a document that identifies you.”

(SHLIH chh toongs SHTELL ah   fir   ZOO chh mosh ee nen.)

Brennelementesteuer

A tax on the radioactive fuel elements used in nuclear reactors. Germany’s federal government created this tax in 2011 (the relevant law is called the, ahem, Kernbrennstoffsteuergesetz). Apparently the fuel rods tax has had a deterrent effect on the operation of nuclear power plants, while bringing in billions in revenue. Some utilities have challenged the tax in court.

Two lawsuits are pending before the Munich Financial Court. A court in Baden-Württemberg found that the fuel rods tax was okay. Relevant cases are also going to be heard by the German Constitutional Court and the European Court of Justice.

The Hamburg Financial Court referred the question of whether the fuel rods tax is “even permissible” to the European Court of Justice in November 2013. That court could take more than a year to issue a decision.

After the Hamburg Financial Court had referred the larger question to the higher instance, it then decided this week, in response to accelerated petitions from the utilities, that the utilities could be temporarily freed from paying the fuel rod tax and that the German treasury should temporarily return 2.2 billion euros of paid tax to the utilities pending the higher courts’ decisions. The court said the government could appeal though, and if the government appeals within one month they would be temporarily freed from having to make the return payment.

(Bren ell em EN tah shtoy ah.)

(CAIRN bren shtoff SHTOY ah gez ETTS.)

“Wer Grundrechte einschränkt, ist beweispflichtig.”

“Anyone limiting fundamental rights must provide proof.”

From former federal data protection officer Peter Schaar’s blog post just before the European Court of Justice announced its groundbreaking, wonderful and “remarkably clear” decision on 08 Apr 2014 overturning mandatory dragnet data surveillance because it violates fundamental human rights [Grundrechte].

“Anyone limiting fundamental rights must provide proof. They must provide evidence that the limitations to personal freedom are necessary in the predominant interest of the general public—that’s what our constitution requires. This principle also applies in the European Union, at the latest since 2009 when the E.U. Charter of Fundamental Rights became enforceable law of the Member States with the Treaty of Lisbon. This guideline’s origins go back before Lisbon. In December 2013, the attorney general at the European Court of Justice said in his vote that he was of the opinion that the guideline violated the protection of the private sphere guaranteed in Article 8 of the Charter of Fundamental Rights.

“The authors and proponents of the mandatory retention of communications traffic data [Vorratsdatenspeicherung] have not yet provided proof of the necessity and efficacy, to this day. But surely it would have been easy for them to provide the evidence, after eight years—if their arguments were accurate ones. It ought to have been easy to show that law enforcement had been harmed by the German Constitutional Court’s finding in 2010 that the Vorratsdatenspeicherung law was unconstitutional. Did conviction rates fall in Germany? Is Germany worse off than its neighbors who implemented Vorratsdatenspeicherung? No. Furthermore, neither the governments of the Member States nor the European Commission were able to provide conclusive proof in any other way for the necessity of Vorratsdatenspeicherung.”

(Vair   GROONED rechh tah   eye n shrenked,   issed   bev ICE flichh tichh.)

Vorabentscheidungsverfahren

“Advance decision process.”

For the first time ever, Germany’s supreme court, the Bundesverfassungsgericht in Karlsruhe, sent a case on to the European Union’s supreme court, the European Court of Justice in Luxembourg. It was for a “decision in advance” on a lawsuit brought in Germany by members of the C.S.U. and Leftists political parties together with other groups, about whether the policy of the European Central Bank announced by Mario Draghi (Goldman Sachs) of buying theoretically unlimited amounts of debt from Member States would be exceeding the Bank’s current brief by redistributing money to countries that hadn’t cleaned up their governments yet. It’s also feared if left unlimited the policy might put the E.C.B. in the hazardous position of becoming a “bad bank” on behalf of the banks in the troubled countries whose debt it was buying.

Süddeutsche.de reported that this sort of debt purchasing, which a government must promise to cut costs and carry out structural reforms in order to receive, has never occurred, but the announcement that it was possible calmed the markets in 2012. Spiegel.de made it sound more like the structural reforms and cost cutting were linked to aid from the Euro-Rettungsschirm, the “euro rescue umbrella” bailout programs, but repeated that the E.C.B. has never carried out any of these so-called Outright Monetary Transactions.

After the Bundesverfassungsgericht receives the decision of the European Court of Justice on these questions, said the Spiegel.de article, it will then decide its own case. And here are four ways the Bundesverfassungsgericht said in its 52-page submission that the European Court of Justice might deal with the Bundesverfassungsgericht’s concerns:

  • “The bond purchases should not undermine the policies of the bailout funds [Rettungsschirme] which link loans to clear conditions such as savings programs and reform programs.”
  • “The E.C.B. would have to rule out the possibility of a debt haircut [Schuldenschnitt] for the purchased bonds, because in the end a haircut would mean financing of the country.”
  • “Individual Member States’ bonds may not be bought in unlimited amounts.”
  • “The E.C.B. should influence so-called pricing [Preisbildung] as little as possible by buying bonds shortly after their emission by the States.” Apparently the E.C.B. previously agreed to limit O.M.T.’s in this way to some degree by agreeing to not buy bonds immediately after emission and to follow purchasing time frames that will be defined in a guideline that will not be made public.

(Fore OB ent SHY doongs fair FAR en.)

Höhere Gewalt

Higher violence or higher power, but it means force majeure, an event or effect that can be neither anticipated nor controlled. This has been defined more narrowly recently to limit E.U. railways’ and airlines’ ability to refuse to compensate passengers by claiming helplessness after poor management.

Even in force majeure cases such as bad weather, landslides or labor strikes, the European Court of Justice in Luxembourg said on 26 Sep 2013, passenger railways will still owe customers some money back after a late train arrival.

If your E.U. train is 1 hour late, you have the right to reimbursement of 25% of the purchase price of your ticket. 2 hours, 50%.

As part of their reporting on the Court’s decision, ARD tagesschau.de interviewed rail passengers waiting at German train stations, many of whom said they had in the past qualified for money back due to late trains but didn’t bother going through with the paperwork.

On 05 Feb 2014, the E.U. Parliament voted to strengthen air passenger rights, in part by passing a stricter, eight-part definition of force majeure for airlines.

Though they’re not done wending their way through the governments yet, the new rules would give passengers on E.U. flights delayed >3 hours the right to 300 euros from their airline, >5 hours = 400 euros, and >7 hours = 600 euros.

(HƏ ƏH rah   geh VAULT.)

Wettbewerbsvorteile

Competition advantages.

The E.U. Commission said they are going to file complaints with the European Court of Justice against Deutsche Bahn, the German rail system, and Deutsche Post, the German post office, for competition violations.

Deutsche Bahn is accused of an unclear accounting system without “eindeutig geregelt,” unambiguously regulated, procedures for keeping separate money for the rails network and and for traffic [“Schienennetz und Verkehr“]; E.U. law requires separation between the ownership and operation of rails networks. The Commission said money paid by D.B.’s competitors to use its rail networks might have been “alienated from its purpose” for improper “cross-subventions.” Also, taxpayers’ money which the government must contribute to the maintenance of the rails network infrastructure might have been diverted into Deutsche Bahn’s passenger and freight traffic. Such redirection might have enabled the company to establish unfair advantages over its competitors, thus the complaint from the E.U. competition authority, though the E.U. transportation commissioner Siim Kallas (libertarianesque Estonian Reform Party) who approved the C.S.U.’s car toll on foreigners entering Bavaria also said he wants new legislation to create more competition between European railroad companies. Generally, the German government is accused of not having adequately blocked D.B. from such repurposing and unclear accounting, and if the court agrees it appears Germany may be fined.

At issue for the Post is old government aid payments for which, the E.U. said, the German government did not adequately require reimbursement. The Deutsche Post paid back ~300 million euros plus interest of the 500 million to 1000 million euros the E.U. accused it in 2012 of receiving improperly in the form of high regulated postage prices and “Zuschüsse” [grants, subsidies, subventions, extra payments, benefits] to bureaucrats’ pension plans. Calculating how much the Post had improperly received was left to German authorities.

Süddeutsche.de reported the E.U. had allowed the Post’s unusual subventions in 2012 in principle but felt they were too high. There was also disagreement about how many divisions of the Post were involved: Germany argued only Postal Services should have to pay back the subventions, while the E.U. said Postal Services and Business Customers.

(VET bev airbz FOR tie leh.)

Intransparente Preisgestaltung

“Intransparent pricing.”

The German supreme court in Karlsruhe [Bundesgerichtshof, BGH] found for the plaintiff in a case brought by the North Rhine-Westphalian consumer protection agency on behalf of natural gas customers against “intransparent price increase clauses in special contracts” of the utilities company R.W.E. Apparently “special contracts” [Sonderverträge, Sonderkundenverträge] in this case are contracts for customers who switched to their current utility from a prior utility. The court found insufficient reasons were cited for price increases on these customers’ utility bills. A ratepayer interviewed on tagesschau.de said when he asked about it R.W.E. fobbed him off by telling him their rates were raised for “responsible, suitable and well-grounded reasons” (“wir haben verantwortungsbewusst, angemessen und begründet kalkuliert”), still without citing them.

The BGH decision was based on a European Court of Justice ruling that the criteria for rate increases have to be notified to these customers when they sign their contract. It is not enough to merely notify European utility customers in advance of rate increases and give them a right to cancel their contract.

Clauses in “special gas contracts” must contain information about causes for, prerequisites for and scope of possible price increases, in a clear and understandable manner, the BGH judges said.

The German court’s decision applies retroactively for the past three years. Millions of German billpayers are now being encouraged to check their natural gas contracts’ price increase clauses for legality and apply for their money back if they don’t meet requirements. A press release about the decision from the North Rhine-Westphalian consumer protection agency said >70% of Germany’s 13.5 million gas customers are on these special contracts because they’ve switched utilities—encouraging market forces to rationalize prices for consumers!—and recommended the energy utilities provide “slender and consumer-friendly procedures” for the affected customers to ask for and receive their money back.

(Inn tronz par ENT eh   PRIZE geh SHTOLT oong.)

Bundeskartellamtliche Bußgeldleitlinien

The German Federal Cartel Authority‘s fining guidelines. Appeals to the record-breaking fine imposed on some cement companies for anticompetitive behavior in the 1990’s have prompted discussion of the rules governing Germany’s current maximum limit on cartel fines and how those rules do or do not fit into European and other international structures.

According to Hans Jürgen Meyer-Lindemann’s 08 May 2013 article in the Frankfurter Allgemeine Zeitung, the Cartel Authority updated its relevant rules in 2006 to match European regulations. IIUC, the German fine for collusion is based on the company concerned’s total collusion sales, averaging 20% of that for the “base fine”; but according to European and now German law the fine cannot exceed 10% of the total worldwide gross from the fiscal year before the year the sanction is imposed. Mr. Meyer-Lindemann wrote that the European Court of Justice in Luxemburg decreed for this purpose the definition of the company should be given a broad interpretation, and thus according to the ECJ not just a national subsidiary’s but the parent corporation’s entire worldwide sales should be used in calculating a maximum upper limit for fines for cartel law violations.

Mr. Meyer-Lindemann felt there remain some loose ends in conforming German to European regulations on this issue. Under European law, he said international corporation parent companies have responsibility in antitrust violations committed by their European subsidiaries. The German supreme court in Karlsruhe’s recent decision on the appeal to the cement companies’ cartel fine merely dealt with how to use international corporate assets to calculate more appropriate maximum antitrust fines and did not deal with assigning responsibility when international corporations are involved in such matters. The European approach of having a 10% maximum limit to cartel fines, he wrote, “has been massively criticized by some German commentators.”

(BOON dess car TELL omt lichh ah   BOOSS geld LIGHT lean ian.)

Vorratsdatenspeicherung

“Reservoir data storage,” “advance data saving,” now also being called dragnet e.g. surveillance + storage. When a government collects and saves people’s personal communication data in advance, without cause, before needing the data.

Germany is in trouble with the EU for not implementing the EU rule that telecommunications data should be collected without cause and saved for six months. German Interior Minister Hans-Peter Friedrich (CSU) supports the six-month EU plan but many other German parties and politicians do not. The German Supreme Constitutional Court found that the EU rule conflicts with German law.

Update on 18 Dec 2012: Spiegel-Online reports that more than 11,000 concerned Austrians, including telecommunications employees and Carinthian civil servants, have asked the Austrian constitutional court to postpone deliberating on Austria’s new data privacy law until the European Court of Justice can determine whether the EU rule violates basic human rights. By law, communications data in Austria have had to be saved for six months since 1 Apr 2012. The EU rule was passed in 2006. The Irish High Court asked the European Court of Justice to examine the rule in mid-July 2012, and it may happen in 2013.

Update on 12 Dec 2013: The European Court of Justice is examining the E.U. guideline requiring telecommunications companies to save customers’ data for “up to two years” in case they are suspected of committing crimes in the future. An expert opinion submitted by an E.U. Advocate General to the court found the two-year dragnet data storage guideline conflicts with the E.U. Charter of Fundamental Rights. ARD tagesschau.de moderator Jan Hofer said the court usually follows such expert opinions.

Update on 08 Apr 2014: The European Court of Justice overturned the E.U.’s 2006 guideline requiring mandatory dragnet surveillance and recording of all electronic phone and internet data because it violates fundamental human rights [Grundrechte].

(FORE rots DOT en shpy cher oong.)

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