German legal issues for Indian
       technology companies
                              Ulrich Bäumer
                   ...
Agenda

1. Co-operation between Indian and German companies
2. Common Law and Civil Law
3. European Legal System
4. Law of...
… but first

a quick introduction to
   Osborne Clarke
About Osborne Clarke Alliance

• 600 lawyers in Europe
• Offices in 16 European cities + in Palo Alto, USA + in
  Shanghai...
Where are we?

Country             Cities


UK                  Bristol, London, Reading

Germany             Cologne, Mun...
Our Key Pratice Areas:

• Corporate/M & A              • Commercial law
• Financial services/Banking   • Intellectual prop...
Examples of Advice Provided to
Indian Companies
• Infosys Technologies       • MindTree
• TCS                        • Rel...
Recent Quotes

 Information Technology
 Particular strengths: Strong India expertise.
 Often recommended solicitors: Ulric...
Osborne Clarke's Clients
1. Co-operation between German and Indian
                  companies
Adapted Models for Co-operation

• Mergers
• Acquisitions
• Joint Venture
• Partnership
• Built- Operate- Transfer- IT Out...
Adapted Models for Co-operation

• Mergers: The combining of two or more entities into one, through a
  purchase or a pool...
Strategic Alliance

• Meaning:

        Strategic Alliance is the arrangement between firms to fulfill any
        number ...
Strategic Alliance

• Strategic Alliances are:

          Contractual arrangements (such as license agreements, marketing
...
Strategic Alliance

• Key Point:

         The strategic alliance agreement must include a "Mutual Non-
         disclosur...
Strategic Alliance

Examples of Strategic Alliances:


1. Cognizant and T-Systems of Germany
2. Cisco and Wipro Ltd., to j...
Acquisition History

Dr. Reddy’s Laboratories- 10 Acquisitions


         Timeline: 1 in 1998, 5 in 1998, 1 in 2000, 1 in ...
Acquisition History

HCL Technologies- 14 Acquisitions


         Timeline: 1 in 1998, 4 in 2001, 2 in 2002, 2 in 2003, 2 ...
Acquisition History

Ranbaxy Laboratories- 16 Acquisitions


         Timeline: 1 in 1998, 1 in 1999, 1 in 2000, 1 in 2001...
Acquisition History

Tata Consultancy Services- 11 Acquisitions


         Timeline: 2 in 2002, 3 in 2004, 3 in 2005, 2 in...
Acquisition History

Wipro- 14 Acquisitions


         Timeline: 1 in 2000, 2 in 2001, 4 in 2002, 3 in 2003, 3 in 2006, 1 ...
Acquisition History

• Tata Steel's $12.1 billion acquisition of the Anglo-Dutch firm
  Corus on January 2007, essaying th...
An Overview on Cross-Border
Deals
Hailing Cross Border Trade-
Highlights in Indian Press
• Indian companies becoming active globally- Low-cost
  operating e...
Hailing Cross Border Trade-
Highlights in Indian Press
• India's acquisition appetite intact despite credit crunch-
  Bull...
2. Common Law and Civil Law
Common Law and Civil Law




          Common Law (inductive)
   Problem à Judgment à Ratio decidendi

            Civil L...
3. European Legal System
European Legal System

• 27 Member States
• European Directives
         Horizontal and direct effect

• National Law
• Th...
4. Law of Associations
  Branch office or subsidiary
    Types of associations
Reasons for the Establishment of
a Branch Office in Germany
• Legal requirements: Registration with company register
• Pre...
Establishment of a Branch Office

• Notification of the trade office (Gewerbeamt)
• Registration with commercial register ...
Establishment of a Subsidiary –
German Types of Associations

Capital Company                           Partnership



Gmb...
Differences in the Law of
Associations

Capital Company                  Partnership


• Limited liability              • ...
GmbH – Private Limited Liability
Company
• The GmbH is a trading partnership with a corporation structure and
  its own le...
GmbH - Formation

• Formation by the execution of the articles of association and
  its by-laws before a German notary
• R...
GmbH - Formation

• Mandatory by-law provisions:
         Purpose of the company
         Name of the company
         Reg...
GmbH – Share Capital

• Minimum share capital of EUR 25,000
• Possibility to form an entrepreneur company (limited liabili...
GmbH – Board and Directors

• The management board consists of one or more managing
  directors (Geschäftsführer)
• The ma...
AG - Formation

• The AG formation procedure is similar to the GmbH
• One shareholder can form an AG
• The founders of an ...
AG – Share Capital

• The minimum share capital must be EUR 50,000
• Share certificates are issued
          par value sha...
AG – Structure, Organs and
Liability
• The AG is organized on corporate lines
          no dependency on any membership
  ...
AG – Supervisory Board

• The members are appointed by vote of the shareholders for
  not longer then 5 years
• The member...
AG – Board of Management

• AGs with more than EUR 3 million capital must have at least
  two people on the board of manag...
GmbH in Comparison with an AG

• The main advantages of a GmbH over an AG are:
        It is simpler to set up a GmbH
    ...
Partnerships

• Several types are available
           General commercial partnership (OHG)
           Limited partnership...
5. IT Outsourcing Contractual Issues /
          The market in Europe
            The market in Germany
         German le...
IT Outsourcing:
An Update from Germany
Outsourcing in Germany

in billion Euro



                                              60




                          ...
Quo Vadis Indian IT Service
Providers in Germany?
• trend No. 1:
          The Indian IT service provider have discovered ...
Quo Vadis Indian IT Service
Providers in Europe?
• trend No. 2:
          Indian IT service provider climb the value chain...
India, China, Eastern Europa:
What Is The Next Trend?
India: Offshoring services are popular

             2              ...
India, China, Eastern Europa:
What Is The Next Trend?
China:




• According to the Global Delivery Index from IDC the Chi...
India, China, Eastern Europa:
What Is The Next Trend?
• Eastern Europe:
         Bulgaria, Estonia, Latvia and Lithuania h...
Outsourcing Contracts –
8 Key Issues
1. Warranty              governed by
2. Liability             1. statute
            ...
1. Warranty

• Statutory period for warranty, Sec 634 a BGB
         As of 1st January 2002: 24 months


         It is po...
1. Warranty




Warranty is …      Maintenance is …


… free of charge   … billable
1. Warranty




Warranty is …      Guaranty


"Gewährleistung"   "Garantie"
2. Liability

Damages are given for
• Delay
• Non performance of a contract
• Bad performance
2. Liability

Scales of liability
• Simple negligence:
           Breach of duty of care
           (running a red light i...
2. Liability

Different types of damages


• Direct damage:
         Loss suffered as the immediate result of defects

• I...
2. Liability



                                                                     Consequential damage caused by a defe...
8. Data Protection

• An array of DP law implemented across the EU since 1984
          But many local nuances (not least ...
6. Employment Law
       What is it?
 Anti Discrimination Law
Sending Indian Employees to
Germany
Working in Germany for more than 3 months:


• residence permit which also grants acce...
Payment of Social Contribution

• Agreement on social security (only pension insurance) ratified
  8.11.2008
           Th...
Height of the social contributions,
which have to be paid by the employer
in addition to the salary

                     ...
Flexible Variation of the Size of
the Work Force
• Contract of employment for a limited period
         up to 4 years for ...
Application of the German Unfair
Dismissal Act
• In establishments in Germany with more than 10 employees
          part-t...
Protection against Dismissals

• Reasons for dismissal
         conduct (usually warning notice first)
         reasons re...
Employees Rights of Participating

• Works Constitution Act applies for establishments in
  Germany with at least 5 employ...
Application of Collective
Agreements (with Unions)
• Collective agreements (with unions) only apply:
         both parties...
Anti Discrimination Law (AGG)

• Employers are prohibited from discriminating against
          job applicants or employee...
7. German Tax Law
The most important Taxes when
doing Business in Germany
• Corporate Tax
         corporations
         tax rate 25 %


• I...
The most important Taxes when
doing Business in Germany
• Trade Tax
         tax rate fixed by local municipalities, based...
The Tax Regime of a German
Subsidiary
• Separate legal entity
• German entity, subject to taxation in Germany
          un...
The Tax Regime of a German
Branch
• Permanent establishment
• Profits attributable to the German branch will be taxed in
 ...
The VAT System

• Harmonized within EU
• Importation VAT when importing goods into EU
• Supply of goods and services by an...
Formal Requirements

• Bookkeeping
• Tax returns
          corporate Tax, Income Tax, Trade Tax, VAT: yearly


• Prelimina...
8. German Court System
The Court System –
Federal Constitutional Court
Federal           Federal                         Federal         Federal ...
Civil and Criminal Court

Local Courts:                                   663



Regional Courts:                         ...
Duration of Civil Matters

• Local court:                            4,6 month


• Regional court (1st instance):         ...
Questions?
Contacts




Ulrich Bäumer
Partner
IT / Commercial - Germany
t +49 (221) 5108 4168
f +49 (221) 5108 4169
Ulrich.Baeumer@os...
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German legal issues for Indian technology companies

  1. 1. German legal issues for Indian technology companies Ulrich Bäumer Delhi, 13. November 2009
  2. 2. Agenda 1. Co-operation between Indian and German companies 2. Common Law and Civil Law 3. European Legal System 4. Law of Associations 5. IT outsourcing Contractual Issues / The Market in Europe 6. Employment Law 7. German Tax Law 8. German Court System
  3. 3. … but first a quick introduction to Osborne Clarke
  4. 4. About Osborne Clarke Alliance • 600 lawyers in Europe • Offices in 16 European cities + in Palo Alto, USA + in Shanghai, China • Specialists in assisting international businesses in Europe • Awards/recognition Banking Law Firm of the year 2009 (by Acquisition Finance) Law Firm of the year at M&A Awards (2009) Law Firm of the year in Germany (West)– JUVE AWARD Voted European Technology Law Firm of the Year by The European Technology Forum) in 4 of the past 7 years UK Law Firm of the Year 2006 Recognized by both Chambers Europe and Legal 500 directories as a leading European law firm
  5. 5. Where are we? Country Cities UK Bristol, London, Reading Germany Cologne, Munich USA Palo Alto Osborne Clarke Alliance Offices Belgium Brussels De Wolf & Partners France Paris Stehlin & Associés Italy Brescia, Milan, Studio Legale Associato Padua, Rome Luxembourg Luxembourg De Wolf & Partners Netherlands Rotterdam Ploum Lodder Princen Spain Barcelona, Madrid Osborne Clarke Sweden Stockholm Hellström Law
  6. 6. Our Key Pratice Areas: • Corporate/M & A • Commercial law • Financial services/Banking • Intellectual property • Technology & • Competition law Telecommunications • Construction and real estate • IT outsourcing • Life Sciences • Taxation • Litigation/Arbitration • Employment • Visa, staff benefits & related services
  7. 7. Examples of Advice Provided to Indian Companies • Infosys Technologies • MindTree • TCS • Reliance Industries Ltd. • Mahindra Satyam Services • Patni • Wipro • MPHASIS • HCL • Hinduja Group • Tata Motors • ITC Infotech • Aricent • Larsen & Toubro
  8. 8. Recent Quotes Information Technology Particular strengths: Strong India expertise. Often recommended solicitors: Ulrich Bäumer, JUVE, November 2009 Another extraordinary success is based on the Indian Group led by IT partner Ulrich Bäumer JUVE, November 2009
  9. 9. Osborne Clarke's Clients
  10. 10. 1. Co-operation between German and Indian companies
  11. 11. Adapted Models for Co-operation • Mergers • Acquisitions • Joint Venture • Partnership • Built- Operate- Transfer- IT Outsourcing • Indo- German Strategic Alliance
  12. 12. Adapted Models for Co-operation • Mergers: The combining of two or more entities into one, through a purchase or a pooling of interests. • Acquisitions: An act of obtaining ownership of an asset through purchase, trade, or gift. • Joint Venture: Joining together of two or more business entities or persons in order to undertake a specific business venture. • Partnership: Form of business organization created by an agreement between two or more persons who contribute capital and/or their services to the organization. • Strategic Alliance: An agreement between two or more individuals or entities stating that the involved parties will act in a certain way in order to achieve a common goal.
  13. 13. Strategic Alliance • Meaning: Strategic Alliance is the arrangement between firms to fulfill any number of corporate goals, including gaining scale, reducing costs, accessing new skirls, products, or markets, and sharing risk. The term strategic alliance is term for describing some form of relationship but is not, in itself, a legal relationship.
  14. 14. Strategic Alliance • Strategic Alliances are: Contractual arrangements (such as license agreements, marketing agreements, and development agreements) Minority equity investments Joint ventures (such as corporations, limited liability companies, or partnerships) Parties to define the legalities of their relationship by contract as there is no defined law for strategic alliance. Parties to define their respective rights and obligations of their strategic alliance agreement. Other issues to consider are variety of accounting, tax, antitrust, and intellectual property issues when structuring a strategic alliance.
  15. 15. Strategic Alliance • Key Point: The strategic alliance agreement must include a "Mutual Non- disclosure" provision that defines "Confidential Information" and expressly states the respective parties' rights and obligations.
  16. 16. Strategic Alliance Examples of Strategic Alliances: 1. Cognizant and T-Systems of Germany 2. Cisco and Wipro Ltd., to jointly develop and deliver information technology (IT) service solutions.
  17. 17. Acquisition History Dr. Reddy’s Laboratories- 10 Acquisitions Timeline: 1 in 1998, 5 in 1998, 1 in 2000, 1 in 2002, 1 in 2004, 1 in 2006 Target Industries: Pharmaceuticals & Healthcare Target Countries: Germany, India, UK, US Average Size of Acquisitions: US$87.78 million
  18. 18. Acquisition History HCL Technologies- 14 Acquisitions Timeline: 1 in 1998, 4 in 2001, 2 in 2002, 2 in 2003, 2 in 2004, 1 in 2005, 1 in 2008 Target Industries: Capital Markets, Consumer Goods & Services, Insurance, IT Services, Telecommunications Target Countries: India, Thailand, UK, US Average Size of Acquisitions: US$43.73 million
  19. 19. Acquisition History Ranbaxy Laboratories- 16 Acquisitions Timeline: 1 in 1998, 1 in 1999, 1 in 2000, 1 in 2001, 2 in 2002, 1 in 2003, 1 in 2005, 5 in 2006, 3 in 2007 Target Industries: Pharmaceuticals & Healthcare Target Countries: Belgium, France, Germany, India, Romania, South Africa, Spain, US Average Size of Acquisitions: US$80.80 million
  20. 20. Acquisition History Tata Consultancy Services- 11 Acquisitions Timeline: 2 in 2002, 3 in 2004, 3 in 2005, 2 in 2006, 1 in 2007 Target Industries: Capital Markets, Consumer Goods & Services, IT Services Target Countries: Australia, Brazil, Chile, India, Philippines, Switzerland Average Size of Acquisitions: US$30.66 million
  21. 21. Acquisition History Wipro- 14 Acquisitions Timeline: 1 in 2000, 2 in 2001, 4 in 2002, 3 in 2003, 3 in 2006, 1 in 2007 Target Industries: Consumer Goods & Services, Energy, IT Services, Pharmaceuticals & Healthcare,Telecommunications Target Countries: Finland, India, Singapore, US Average Size of Acquisitions: US$47.85 million
  22. 22. Acquisition History • Tata Steel's $12.1 billion acquisition of the Anglo-Dutch firm Corus on January 2007, essaying the largest takeover by an Indian company. • Vodafone's purchase of India's second biggest privately- owned mobile phone service provider Hutchinson-Essar. • Daiichi Sankyo Co. of Japan acquiring 34.8 per cent stake in Ranbaxy Laboratories Ltd. for $2.40 billion in 2008.
  23. 23. An Overview on Cross-Border Deals
  24. 24. Hailing Cross Border Trade- Highlights in Indian Press • Indian companies becoming active globally- Low-cost operating environments in India and strong balance sheets with potential for leveraging, make Indian firms ideal acquirers even in international markets. “The Economic Times, Jun 13, 2008” • Indian firms are mature to handle M&A’s now- Indian companies looking to tap opportunities offshore and seen as a lucrative asset by foreign companies. “The Economic Times, Jun 29, 2008”
  25. 25. Hailing Cross Border Trade- Highlights in Indian Press • India's acquisition appetite intact despite credit crunch- Bullish Indian companies are continuing to lead the charge for acquisitions within developed economies despite the current turmoil in global financial markets. “The Economic Times, Jul 9, 2008” • Indian firm buys Jaguar and Land Rover- Creating history, Tata Motors buys luxury auto brands Jaguar and Land Rover for $2.3 billion from Ford Motor Company. “Hindustan Times, March 26, 2008”
  26. 26. 2. Common Law and Civil Law
  27. 27. Common Law and Civil Law Common Law (inductive) Problem à Judgment à Ratio decidendi Civil Law (deductive) Statute à Problem à Application
  28. 28. 3. European Legal System
  29. 29. European Legal System • 27 Member States • European Directives Horizontal and direct effect • National Law • The European Courts and National Courts • Dispute Resolution Commonly used venues, choice of law Arbitration - pros & cons
  30. 30. 4. Law of Associations Branch office or subsidiary Types of associations
  31. 31. Reasons for the Establishment of a Branch Office in Germany • Legal requirements: Registration with company register • Presence treated as branch office, if "own" business activities Some degree of independence
  32. 32. Establishment of a Branch Office • Notification of the trade office (Gewerbeamt) • Registration with commercial register (Handelsregister) notarial form local management signing authorities procedure, timing, costs
  33. 33. Establishment of a Subsidiary – German Types of Associations Capital Company Partnership GmbH -> limited liability company GbR -> BGB company (Gesellschaft mit beschränkter Haftung) (Gesellschaft bürgerlichen Rechts) OHG -> general commercial AG -> stock corporation partnership (Aktiengesellschaft) (Ordentliche Handelsgesellschaft) e.V. -> registered association KG -> limited partnership (eingetragener Verein) (Kommanditgesellschaft)
  34. 34. Differences in the Law of Associations Capital Company Partnership • Limited liability • Mainly unlimited liability • Not dependent on members • Depended on members • One man association possible • No one-man association • Legal capacity • Partial legal capacity
  35. 35. GmbH – Private Limited Liability Company • The GmbH is a trading partnership with a corporation structure and its own legal personality • Most commonly used in Germany for small and medium size firms • The structure is straightforward and flexible organisation with at least two independent bodies the managing director(s) the meeting of shareholders the appointment of a supervisory board is admissible • Reformation of the GmbHG by the implementation of the MoMiG in 1.11.2008 MoMiG: Law for the Modernization of the GmbH and to combat its Abuse
  36. 36. GmbH - Formation • Formation by the execution of the articles of association and its by-laws before a German notary • Registration in commercial register • Filing of documents • Formation possible by one shareholder Unlimited number of shareholders possible German and foreign natural persons and corporations may become shareholders
  37. 37. GmbH - Formation • Mandatory by-law provisions: Purpose of the company Name of the company Registered domicile Amount of nominal capital Amount of original capital contributions
  38. 38. GmbH – Share Capital • Minimum share capital of EUR 25,000 • Possibility to form an entrepreneur company (limited liability) with a minimum share capital of EUR 1.00 • The formation requirements for an entrepreneur company are Full share payment in cash before registration No contributions in kind Name must include entrepreneur company (limited liability) Requirement to save 25% of its annual profits for accumulation
  39. 39. GmbH – Board and Directors • The management board consists of one or more managing directors (Geschäftsführer) • The managing director has to be a natural person, not necessarily a shareholder or a German citizen/ resident • The power of appointment lies with the shareholders • By law the director's duties are: Not to disclose the GmbH's trade secrets To file for bankruptcy if the company is over indebted To call a shareholders' meeting if more than half of the GmbH's share capital is lost To ensure that the GmbH keeps proper books
  40. 40. AG - Formation • The AG formation procedure is similar to the GmbH • One shareholder can form an AG • The founders of an AG can be individuals and legal entities, including foreign ones, and commercial partnerships • The formation (simple formation) takes place in the following stages: Determination of Articles (Memorandum & Articles) Contribution of share capital Appointment of organs Part-payment of capital Provision of formation report Formation scrutiny Notification and entry in the commercial register
  41. 41. AG – Share Capital • The minimum share capital must be EUR 50,000 • Share certificates are issued par value shares (Nennbetragsaktie) non par value shares (Stückaktie) • The par value shares must be EUR 1.00 • The non par value shares have an equal share in the share capital, which must not fall below EUR 1.00 • Different classes of shares with different rights can be issued
  42. 42. AG – Structure, Organs and Liability • The AG is organized on corporate lines no dependency on any membership has autonomous organs • The law (AktG) prescribes three organs: Supervisory board Board of management Shareholder meetings • The liability of an AG is limited to the value of its assets
  43. 43. AG – Supervisory Board • The members are appointed by vote of the shareholders for not longer then 5 years • The members themselves elect the chairman • The main functions are: appointment/ dismissal of the board of management and their employment contracts supervision of the board of management representing the AG in litigation involving the validity of shareholders resolutions consenting to the business decisions of the board of management if required by the articles or the supervisory board itself taking part in the production of the annual statement
  44. 44. AG – Board of Management • AGs with more than EUR 3 million capital must have at least two people on the board of management • Bears the sole responsibility for managing the AG • A term cannot exceed five years • An appointment can be revoked by resolution of the supervisory board and only if an important cause exists • The representation manner must be specified e.g. singly, jointly, restricted
  45. 45. GmbH in Comparison with an AG • The main advantages of a GmbH over an AG are: It is simpler to set up a GmbH The articles of association of a GmbH can more flexibly reflect the requirements of the shareholders A GmbH is not subject to as many legislative regulations as an AG The rational for this is that the public can invest in AGs and should receive a greater protection
  46. 46. Partnerships • Several types are available General commercial partnership (OHG) Limited partnership (KG) • By a partnership agreement, the partners mutually put themselves under a duty to promote the achievement of a common purpose • Under a general commercial partnership there is no liability limitation • Under a limited partnership the liability of at least one of the partners is unlimited • The most common type is the GmbH & Co. KG The GmbH & Co. KG is a limited partnership with a limited liability company as general partner
  47. 47. 5. IT Outsourcing Contractual Issues / The market in Europe The market in Germany German legal issues to beware
  48. 48. IT Outsourcing: An Update from Germany
  49. 49. Outsourcing in Germany in billion Euro 60 25 20 10 11 14 2002 2003 2004 2005 2006 2010
  50. 50. Quo Vadis Indian IT Service Providers in Germany? • trend No. 1: The Indian IT service provider have discovered Europe as an attractive market The reasons are the strong Europe and a saturated US market: US market for outsourcing in 2006: 148 transactions (2005: 163) EU market for outsourcing in 2006: 157 transactions (2005: 142) (Source: Technology Partners International, TPI Index 2007)
  51. 51. Quo Vadis Indian IT Service Providers in Europe? • trend No. 2: Indian IT service provider climb the value chain: 2000: Y2K problems 2004: larger outsourcing projects (IT-, Application Management-, Infrastructure-, Business Process Outsourcing) 2006: takeover of smaller companies in Europe (Wipro– NewLogic)/ Business Consulting 2007: Collaboration / takeover of business units 2009: takeover of larger companies in Europe
  52. 52. India, China, Eastern Europa: What Is The Next Trend? India: Offshoring services are popular 2 Do not know 27 No activities planned in next 12 month 26 Activities planned in next 12 months in % Started pilot projects Smaller projects live 18 17 Larger projects live 10 • Almost 75 % of the companies interviewed are Offshoring or are planing to do so in the near future. • Forrester Research: 67% of German companies are using Indian IT service providers for Offshore Outsouring Source: Forrester Research, 2005
  53. 53. India, China, Eastern Europa: What Is The Next Trend? China: • According to the Global Delivery Index from IDC the Chinese cities Bejing, Shanghai and Dalian will overtake the Indian IT hubs (Bangalore, Neu Delhi, Mumbai) in 2010
  54. 54. India, China, Eastern Europa: What Is The Next Trend? • Eastern Europe: Bulgaria, Estonia, Latvia and Lithuania have already overtaken the old centers in the Czech Republic and Hungary Eastern Europe is an outsourcing destination because of the European law (e.g. data protection) and because of the language skills of the staff (German, French, etc) Nevertheless, Eastern Europe is trailing compared to the outsourcing hubs in India, China, Malaysia, Brazil and Mexico (Quelle: Jahresbericht AT-Kearney 2006)
  55. 55. Outsourcing Contracts – 8 Key Issues 1. Warranty governed by 2. Liability 1. statute 2. EVB-IT (in 3. Acceptance Germany) 4. Delay 3. industry standards 5. Change requests 6. IP-rights 7. Contractual penalty 8. Data Protection
  56. 56. 1. Warranty • Statutory period for warranty, Sec 634 a BGB As of 1st January 2002: 24 months It is possible for two enterprises to agree contractually to less than 24 months of warranty Industry standard in Germany: 12 to 18 months
  57. 57. 1. Warranty Warranty is … Maintenance is … … free of charge … billable
  58. 58. 1. Warranty Warranty is … Guaranty "Gewährleistung" "Garantie"
  59. 59. 2. Liability Damages are given for • Delay • Non performance of a contract • Bad performance
  60. 60. 2. Liability Scales of liability • Simple negligence: Breach of duty of care (running a red light in bad weather conditions) • Gross negligence: Significant breach of duty of care (knowingly driving in the Alps in December without snow tires) • Intent
  61. 61. 2. Liability Different types of damages • Direct damage: Loss suffered as the immediate result of defects • Indirect damage: Other loss suffered as result of the defect (e.g. financial loss, loss of use) • Consequential damage caused by a defect: Loss from a peril that is not the immediate cause of loss (provider is responsible for a system failure and customer cannot sell goods; the goods rot)
  62. 62. 2. Liability Consequential damage caused by a defect & Simple negligence Gross negligence Intent Indirect damage û û û û Unlimited û Liability û Limited Liability Excluded Liability û û û = Contract rsp. industry ? standard Limit: 1 to 3 times contract value û = Statutory ? predictable damage
  63. 63. 8. Data Protection • An array of DP law implemented across the EU since 1984 But many local nuances (not least level of fines) • "processing" of "personal data" regulated ie info that directly or indirectly identifies living individuals • Consequences of failure to comply – fines, criminal liability • Relevance to Indian companies Beware what you agree to Data protection officer Data transfers of HR and customer data Have you executed model contracts re your HR data? Binding Corporate Rules – worth considering?
  64. 64. 6. Employment Law What is it? Anti Discrimination Law
  65. 65. Sending Indian Employees to Germany Working in Germany for more than 3 months: • residence permit which also grants access to the labour market is needed • Indians may apply for the necessary permit even after their arrival in Germany but before starting to work
  66. 66. Payment of Social Contribution • Agreement on social security (only pension insurance) ratified 8.11.2008 The agreement applies, when employee is sent to Germany for not more than 48 months (with an option of another 12 months extension) employee performs services for his/ her Indian employer within the context of his Indian employment • According to the German law (§ 5 SGB IV – Einstrahlung) Indian social security legislation will apply when the employee is sent to Germany by his/her Indian employer performs services within the context of his/her Indian employment-contract is sent to Germany for a (predictable) limited period of time
  67. 67. Height of the social contributions, which have to be paid by the employer in addition to the salary Social % paid by contribution Employers' Insurance % total Employer assessment max. costs ceiling Pension 19,9 % 9,95 % EUR 537,30 p.m. EUR 64,800 p.a. Unemployment 2,8 % 1,4 % (EUR 5,400 EUR 75,60 p.m. p.m.) Health Insurance 15,5 % 7,3 % EUR 268,28 p.m. EUR 44,100 p.a. Nursing Care 1,95 % 0,975 % (EUR 3,675 EUR 35,83 p.m. (plus 0,25 % p.m.) for childless employees)
  68. 68. Flexible Variation of the Size of the Work Force • Contract of employment for a limited period up to 4 years for entrepreneurs; any number of extensions up to 2 years without a reason for the limitation; max. 2 extensions • Use of temporary workers
  69. 69. Application of the German Unfair Dismissal Act • In establishments in Germany with more than 10 employees part-time employees are counted partially • After 6 months of employment (waiting period) Ø unfair dismissals are invalid, employee will be reinstated Ø valid dismissals terminate employment without severance payment / compensation
  70. 70. Protection against Dismissals • Reasons for dismissal conduct (usually warning notice first) reasons relating to the employees person (e. g. illness) redundancy • Notice period depending on the period of employment starting with 2 weeks during the probation period standard period is 4 weeks to the 15th or end of a calendar month • No claim for compensation
  71. 71. Employees Rights of Participating • Works Constitution Act applies for establishments in Germany with at least 5 employees • Works Council's (elected by all employees) rights: information and consultation, e. g. before giving a notice codetermination in social matters (e. g. working hours, payroll principals) collective in house agreements (but not on wages) works council has no trade union rights (i.e. strikes) establishments with more than 20 employees: consultation before any proposed alteration (e. g. transfer a of department), agreement to reconcile employees interests, social compensation plan
  72. 72. Application of Collective Agreements (with Unions) • Collective agreements (with unions) only apply: both parties of the employment contract are organized or employee member of trade union employer member of employers' federation or declaration of a collective agreement as generally applicable or employment contract refers to the stipulations of the collective agreement
  73. 73. Anti Discrimination Law (AGG) • Employers are prohibited from discriminating against job applicants or employees • on the basis of gender, race or ethnic origin religion or belief age, disability, or sexual orientation • Damage claims are possible within two months from becoming aware of such discrimination • Direct and indirect discrimination can potentially be justified
  74. 74. 7. German Tax Law
  75. 75. The most important Taxes when doing Business in Germany • Corporate Tax corporations tax rate 25 % • Income Tax individuals tax rate up to 42 % (progressive system)
  76. 76. The most important Taxes when doing Business in Germany • Trade Tax tax rate fixed by local municipalities, based on the profit • Solidarity Surcharge 5.5 % of Corporate Tax or Income Tax • Value Added Tax (VAT) tax rate 19 % (7 % for some goods, in particular foods, books and newspapers)
  77. 77. The Tax Regime of a German Subsidiary • Separate legal entity • German entity, subject to taxation in Germany unless otherwise provided in tax treaty • Corporations corporate tax solidarity surcharge trade tax • Partnerships tax transparent taxation on shareholders' level trade tax (if trading activity)
  78. 78. The Tax Regime of a German Branch • Permanent establishment • Profits attributable to the German branch will be taxed in Germany
  79. 79. The VAT System • Harmonized within EU • Importation VAT when importing goods into EU • Supply of goods and services by an entrepreneur • Several exemptions • Input VAT reclaim of VAT paid to another entrepreneur • Tax rate 19 % (reduced rate 7 %)
  80. 80. Formal Requirements • Bookkeeping • Tax returns corporate Tax, Income Tax, Trade Tax, VAT: yearly • Preliminary returns VAT: monthly • Tax prepayments • Wage Tax • Social security contributions • Tax advisor
  81. 81. 8. German Court System
  82. 82. The Court System – Federal Constitutional Court Federal Federal Federal Federal Federal Labour Court of Social Administrative Finance Court Court Justice Federal Court Court Patents Court Higher Higher Regional Higher Higher Labour Court Social Court Administrative Court Court Regional Court Social Court Administrative Court Labour Local Court Finance Court Court Civil Criminal Law Law Labour Patent/Trademark Social Administrative Tax Law Law Security Law Law Law
  83. 83. Civil and Criminal Court Local Courts: 663 Regional Courts: 116 Higher Regional Courts: 24 Total Number of Courts 1131 (not restricted to civil and criminal courts)
  84. 84. Duration of Civil Matters • Local court: 4,6 month • Regional court (1st instance): 6,7 month • Regional court (2nd instance): 5,4 month • Higher Regional Court (2nd instance): 8,5 month
  85. 85. Questions?
  86. 86. Contacts Ulrich Bäumer Partner IT / Commercial - Germany t +49 (221) 5108 4168 f +49 (221) 5108 4169 Ulrich.Baeumer@osborneclarke.com

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