For further information please visit the German version of this site or contact realestate @ sibeth.com

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Google Analytics is a service which runs in the background on numerous websites and analyses the use patterns of visitors to the website. In normal operation, the user's IP address in particular is stored; this is the number which identifies the user's computer on the Internet, at least during each session.

The use of Google Analytics is only permissible with limitations under data protection law in Germany because even dynamic IP addresses – in the controversial but persistently advocated opinion of the data protection authorities – are regarded as personal data. At least in cases in which it is possible to identify the user's geographical position, this is probably true.

In 2009, the central supervisory authorities for data protection in the public sector decided on requirements for the use of Web analysis services which can be found at: http://www.datenschutz-mv.de/dschutz/beschlue/Analyse.pdf

In the middle of September 2011, Google reached an agreement with the Hamburg data protection representative for a solution which permits the use of Google Analytics in accordance with data protection law. The Hamburg data protection representative published a to-do list for this purpose. He recommends:

• That the existing Google Analytics account be deleted and a new account created, because there is no other way to delete the old data collected in violation of data protection law, 
• That IP address masking be activated by Google,
• That an agreement be concluded with Google for contract data processing according to the template published by Google, which is agreed with the Hamburg data protection authority.

The fact that the Hamburg data protection representative demands that website operators use a tool to mask the users' IP addresses and at the same time demands the conclusion of an agreement with Google for contract data processing has been criticised as contradictory. The argument of the critics is that if Google does not receive any personal data, why is an agreement for contract data processing needed? Technically, however, the procedure is apparently that the IP address is initially transmitted to Google in full, and is only then masked by Google.

It is not yet known whether the data protection representatives in the other federal states will also demand compliance with the Hamburg guidelines and actively enforce them. More detailed information about the Hamburg to-do list can be found at http://www.datenschutz-hamburg.de/news/
detail/article/beanstandungsfreier-betrieb-von-google-analytics-ab-sofort-moeglich.html.

On the other hand, the admissibility of “social plug-ins” for social networks under data protection law is still a subject of heated controversy. The data protection authority in Schleswig-Holstein, the Independent Federal State Centre for Data Protection (ULD) Schleswig-Holstein, believes especially that Facebook's “Like” button is a violation of data protection law and has threatened fines for all companies from Schleswig-Holstein which use Facebook services which pass on user data to Facebook in the USA. More information is contained in the written statement by the ULD to the media committee of the German parliament in the public experts' discussion on the subject of “Data security of Facebook and other social networks in view of a decision by the data protection representatives of the federal states and the national government of 24 October 2011 (https://www.datenschutzzentrum.de/facebook/20111014-bt-uanm-facebook.pdf). However, the assumptions of ULD about the underlying technology and its legal views are extremely controversial. The federal state government of Schleswig-Holstein decided on an unemotional north German compromise: it continues to operate its Facebook page – with a “Like” button, but at the same time with a warning (http://de-de.facebook.com/SchleswigHolstein). According to press reports the Schleswig-Holstein data protection representative, Thilo Weichert, commented: “We don't think that it is funny at all. We will file an official complaint.”

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With a decree of 17 August 2011, the Bavarian State Tax Office ruled on the VAT treatment of the lease of roofs to pholtovoltaic installation operators.

With regard to the remuneration for the roof lease, the following is possible:

1) The use of the roof by the installation operator is in return for payment (“roof lease contracts” or “roof use contracts”)

With these contracts, the owner of the building allows a photovoltaic installation to be installed on the roof. Therefore, they constitute tax-free letting of land property which is comparable with site rental agreements for mobile phone masts.

2) “Roof lease” in return for roof refurbishment by the installation operator

This type of usage agreement constitutes  turnover which is similar to an exchange. The refurbished roof becomes the property of the owner of the building, so the installation operator provides a delivery of work when the roof refurbishment is accepted. The invoice for this delivery of work is issued to the building owner by the installation operator. The installation operator is entitled to claim a deduction of the input tax for the roof refurbishment. In addition, the installation operator must enter a free withdrawal of assets in its accounts if the roof is provided free of charge. Whether the owner of the building can claim a deduction of input tax for the delivery of work depends on the use of the building.

In the event of an additional payment by the installation operator to the owner of the building, it constitutes tax-free letting of a land property as in point 1. If the owner of the building waives the tax exemption, the delivery of work (roof refurbishment) constitutes a taxable down payment for the roof lease which has not yet been rendered.

Another problem is the question of when the installation operator becomes liable for the tax on the delivery of work if it declares is tax on the basis of income received (cash-based taxation). In taxation on the basis of income received, the tax becomes due at the end of the preliminary tax return period in which the income was received. But in this case, the income consists of the provision of the roof for use by the installation operator. Therefore, the income must be continuously entered in the preliminary VAT returns in the form of the proportional value of the provision of the roof. Here, it can fundamentally be assumed that the value of the provision of the roof is equal to the costs of the roof refurbishment.

In this connection we would point out that the tax office is entitled to reject taxation based on income received (cash-based taxation) for the delivery of work performed. In individual cases, this is to prevent the income from the provision of the roof from being distributed for tax purposes over the period of the lease contract (generally 20 to 30 years).

If the installation operator declares the tax on the basis of agreed income (accruals-based taxation), the tax becomes due in the preliminary returns period in which the work delivery was implemented.

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On 7 July 2011 the German Federal Parliament passed a law concerning the modification of § 522 section 2 and 3 of the German Code of Civil Procedure – ZPO. Up to now a Court of Appeal was able to dismiss an appeal immediately through unanimous decision if the Court of Appeal was convinced that

1. the appeal has no prospect of success
2. the case has no fundamental relevance; and
3. a decision of the Court of Appeal is not necessary for the protection of a consistent jurisdiction or for a development of the law.

The decision was incontestable (§ 522 section 3 ZPO).

The modified version of § 522 section 3 ZPO provides that there will be the ability to lodge a complaint against dismissal decisions exceeding an amount of € 20,000.00. Besides that, the modified law establishes that a dismissal is only possible if the appeal is obviously without success and if a hearing is unoffered.

With this reorganisation the government meets the intense concerns which the previous regulation caused due to its proceeding without a hearing and the restriction of the right to be heard. The requirements of a dismissing decision are now tightened. On the one hand the appeal can only be denied by unanimous decision if the Court of Appeal is convinced that the appeal is obviously  without success. On the other hand a dismissal is only possible if a hearing is unoffered.

The law will take effect on the day after its proclamation in the Federal Law Gazette – probably fall 2011.

The modification of § 522 section 2 and 3 ZPO shall stop the different handling of the Court of Appeals in Germany. It can highly anticipated be awaited if the law will successfully restrain the different handling of the Courts of Appeal in Germany in view of the various legal definitions in the new ruling. It is still up to the relevant Court of Appeal to decide if the appeal has “obviously” no success and if the hearing is “unoffered”.

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From 13 to 15 October Sibeth Partnership, being the only German member of Meritas Law Firms Worldwide, a worldwide network of selected law firms, will be co-hosting the EMEA Regional Meeting (Europe, Middle East, Africa). This year, the meeting takes place in Munich at the hotel Bayerischer Hof. The meeting schedule includes, apart from a planned short welcoming speech from the Bavarian State Chancillery, speeches by Philippe Legrez, General Counsel of  Michelin Group Worldwide and Prof. Dr. h.c. Horst M. Teltschik, as well as a variety of networking events.

We look forward to welcoming colleagues from all over the EMEA region to Munich. Find out more about Meritas Law Firms Worldwide here.

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Press report February 14, 2011

SIBETH expanded real estate and construction law practice with Taylor Wessing partners Jan Wunschel and Ralf Euling.

For further information please visit the German version of this site or contact Thomas Richter t.richter @ sibeth.com.

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For further information please visit the German version of this site or contact t.richter @ sibeth.com.

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For further information please visit the German version of this site or contact Thomas Richter t.richter @ sibeth.com.

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With nine runners of the Frankfurt office as well as of the Munich office, in 2010 SIBETH was lined up at the annual JPMorgan Chase Corporate Challenge in Frankfurt/Main for the second time and proved that the SIBETH members are athletic as well.

At the JPMorgan Chase Corporate Challenge in 2010 all in all 73,719 runners took part. The 5.6 km long running track which was lined with thousands of viewers passed through the inner-city of Frankfurt as well as through the banking district. The proceeds and contributions in the amount of € 218,223 were donated for the promotion of young handicapped athletes.

The SIBETH-Team which was composed of Frank Lenzen, Dr. Wolfgang Hermann, Dr. Christina Prinzhorn, Nadine Zimmer, Anja Bähner, John-Patrick Bischoff and Dr. Gesine Wolf-Zimper achieved good runing times between 40:00 and 28:56 minutes.

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On June 26, 2010, the SIBETH-soccer team will meet the challenge of defending the title at the benefit soccer cup 2010 of the Munich law firms. The kickoff will be at 11.00 a.m. at the sports ground of the HVB Club in Munich.

This year again, both the players and the fans do not only seek for winning the title but also for a high donation. As well as in the last year the proceeds of the soccer cup will be donated for a good cause. This year the proceeds will support the foundation for children´s health (Stiftung Kindergesundheit).

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