Search results for

Lawyers

42

Dr. Dorothee Altenburg represents clients in all aspects of intellectual property law. She is particularly experienced in the area of trademark law. Operating in Germany as well as internationally, Dr. Altenburg devises legal strategies to establish and defend trademarks, design rights, and patents. She represents clients before the relevant authorities in Germany, in the European Union, and in WIPO proceedings. She conducts trademark registrations worldwide. She has substantial experience in drafting licensing agreements. She is acquainted with the litigation issues that arise in the environs of intellectual property and (unfair) competition law. She represents clients before customs authorities counterfeiting cases. She also coordinates EU-wide customs seizure proceedings against counterfeit products.

Dr. Altenburg further represents publishers, media companies, and artists in matters to do with copyright, publishing law, and personality rights. 

Frank van Alen advises banks and savings banks, especially when it comes to litigation. His expertise ranges from banking supervision law to the market launch of new products.

In terms of corporate law, he advises shareholders and general managers on founding new companies and restructuring existing ones. He is familiar with the legal implications governing limited liability companies, limited partnerships, as well as registered associations. Mr. van Alen’s expertise further includes M&A transactions concerning companies and holdings.

Since his education, Mr. Antholz focussed on insolvency law. He advises company and credit institutions, especially in times of crisis. He has special expertise in contesting insolvencies. Germany-wide, he defends clients against unauthorized claims of insolvency administrators. His business qualification enables him to professionally support reorganization procedures and to draft expert opinions. As a lecturer, he provides training on insolvency topics to companies and authorities. Since 2005, Mr. Antholz has been appointed insolvency administrator by courts in northern Germany in more than 120 insolvency proceedings. He has successfully managed numerous restructuring procedures.

Nikolaus Bertermann has been a lawyer for a Europe-wide leading internet service provider for ten years and can therefore rely on in-depth technical expertise, a sound knowledge of the IT industry, and many years of experience as a company lawyer.

He provides comprehensive advice on all forms of classic and agile software creation and IT project contracts, the use and adaptation of open source software, and cloud computing within and outside the EU.

Mr. Bertermann conducts data protection audits, advises companies on the legally compliant design of data processing procedures within and outside corporate structures, and accompanies clients in projects to implement the requirements of the EU General Data Protection Regulation. He commented on the central provisions of the GDPR for publishing house C.H.Beck.

Eva Bonacker advises German and international clients on diverse matters of competition, M&A, corporate and general commercial law, with a special focus on European and German antitrust and competition law.

Eva Bonacker has advised clients from various industries including media, IT and software, e-commerce, publishing, information and business intelligence, energy, climate technology, and consumer goods.

Dr. Mathias Pajunk advises on all issues of public commercial law. The main focus of his work lies on advising public authorities on the award of public contracts and service concessions. This includes the monitoring of awards at all stages, including the drafting of contracts. At the same time, Dr. Mathias Pajunk represents both public authorities and bidders in the context of review proceedings. His other fields of activity include dealing with complex issues in the areas of state aid and antitrust law.

Dr. Brock specializes in IP law (trademarks, patents, designs, copyright law, etc.), unfair competition law (including advertising law), IT law, data protection law as well as distribution and contract law.

He advises comprehensively on IP matters, including the filing of national and international intellectual property rights as well as licensing and enforcement in disputes in and out of court. He further advises on innovation and know-how protection (including trade secrets), on cross-border research and development projects, on employees’ inventions law, and on standard essential patents (SEP). Furthermore, his advice includes the development of brand-based labeling and quality seal systems.

While his client base covers a wide selection of industries (for instance health care & life sciences, information technology and consumer goods), he focuses on technology-driven and innovative companies, ranging from start-ups to mid-sized companies to globally operating corporations.

Dr. Oliver M. Bühr has been advising on IT matters for many years. This includes software, hardware, projects, and outsourcing. He frequently supports his clients in all matters relating to data protection, especially in the implementation of the GDPR. He also has extensive experience in e-business and advises companies on designing their offerings on the internet. Innovative topics such as cloud computing or the advising of FinTechs are also a key part of his work. Many of the projects on which he advises have an international dimension, and he works closely with lawyers from foreign legal systems.

As a notary, he works particularly in the areas of property law, corporate law, and inheritance law.

Markus von Fuchs advises in intellectual property law, in particular in competition, patent, and trademark law as well as on the protection of know-how. He advises companies on protecting and commercially exploiting intellectual property, for example through licensing, sales, R&D, and cooperation agreements. He also focuses on the judicial and extrajudicial defense of intellectual property rights in interim injunction and principal proceedings. He further advises on border seizing procedures, initiates and advises on criminal measures relating to product and brand piracy, and on the infringement of business and business secrets. Markus von Fuchs also advises many companies on developing and introducing new technologies and business models. He has particular expertise in the optical and medical technology sectors.

Christoph Haesner’s work comprises the entire range of media law, copyright law, and entertainment law. He advises clients in the fields of film and TV, and in sales and licensing on legal issues at all stages of development, production, distribution, and evaluation of audiovisual productions, both nationally and internationally.

His work focuses on all matters pertaining to movie financing, not only for purely national projects, but also for those with major international connections.

He also advises on transactions (M&A) in the media sector. Christoph Haesner regularly supports companies throughout the transaction phase and advises on all matters arising from M&A transactions, under corporate law, contract law, copyright law, and media law.

Dr. Johann Heyde provides comprehensive legal advisory throughout media and entertainment law, in which film and television compose a main focus of his practice. Mr. Heyde advises on all aspects of national and international film and TV productions from film financing and subsidization, right clearance particularly in terms of copyright and privacy law, as well as licensing and exploitation of such productions.

Moreover, Dr. Johann Heyde’s advisory work spans all levels of digital commerce and business with a particular emphasis on improving internet portals, online services and other digital media (including on- demand platforms) and counseling on all relevant legal issues in e-commerce, some of which include terms and conditions, consumer protection, advertising and competition law, licensing and the dissemination of all forms of content over the internet.

Dr. Johann Heyde’s expertise includes his command of music law and especially collecting societies law in particular with respect to digital media.

Dr. Magnus Hirsch advises both German and international clients on a wide variety of matters which fall within the area of trademarks, designs, copyrights, patents, and unfair competition – in both preventative and contentious situations.

He also has more than 25 years of intellectual property litigation experience, having worked on numerous litigation matters regarding all kinds of IP issues and has appeared in many Federal District Courts, as well as Courts of Appeal, throughout Germany, and has represented several clients in proceedings up to the Federal Court of Justice.

In particular, his specialization comprises portfolio management as well as enforcing clients’ rights against counterfeiters, parallel importers and domain name pirates, both through court proceedings, as well as international dispute systems. Mr. Hirsch also represents clients before the German Patent and Trademark Office and the European Union Intellectual Property Office (EUIPO) registering or opposing German national trademarks and Community Trade Marks, respectively. He also has significant experience in drafting IP-related agreements, such as trademark license agreements, priority agreements and agreements with publicity agencies.

A further focus lies in the field of trademark and competition infringements on the Internet, in particular in the conduct of litigation in and out of court, also in connection with Internet domains, as well as the litigation of patent infringements.

Dr. Magnus Hirsch spent several months practicing at the Hong Kong office of an international law firm where he focused on Asian IP law, especially the enforcement of intellectual property rights in and out of court and the prosecution of product piracy and trademark counterfeiting in Southeast Asia.

Dr. Oliver Hornung advises national and international IT service providers and users in the legal structuring and negotiation of IT, project, and outsourcing contracts, as well as in matters of copyright and licensing. He is also regularly involved in distressed projects (dispute management) and advises clients in conciliation and arbitration proceedings and, where necessary, in litigation.

Due to his industry focus on digital business, Dr. Oliver Hornung advises his clients on all legal matters dealing with cloud computing, Big Data, Industry 4.0, and FinTech.

Another focus of his practice is data protection and IT compliance. Dr. Oliver Hornung advises cloud providers and users in developing national and international data protection concepts and on IT compliance. He currently advises on numerous projects to implement the EU General Data Protection Regulation.

Finally, Dr. Oliver Hornung advises start-ups on all questions relating to IT law and data protection law. In addition to his extensive practical work, Dr. Oliver Hornung is also a frequently requested lecturer in IT law and data protection law.

Klaus Jankowski advises on complex investment projects and company settlements, with a focus on public building and planning law.

For several years, he has also been advising the public sector on legislative projects and sensitive infrastructure projects.

He plays a leading role in the international network of lawyers First Law International and has excellent contacts to law firms worldwide.

Dr. Bernd Joch advises on corporate restructuring in employment law and corporate law, conducts balancing of interests and social plan negotiations, and represents his clients in arbitration proceedings.

He has many years of experience in advising companies, executive board members, general managers, and employees, in particular also in the field of dismissal protection matters.

In the area of commercial law, he advises and represents companies, in particular, in the areas pertaining to agencies and representatives.

René M. Kieselmann specializes in EU public procurement law and associated legal fields. Among others he is a member of SKW Schwarz’s IT & Digital Business and Life Sciences & Health Practice Group and has wide-ranging technical expertise in various areas. In addition to IT law, he advises on state aid law, subsidy law/grant law, and on rescue services and civil protection, i.e. the prevention of health hazards. Jointly with his team he is designing complex public procurement projects. René Kieselmann ensures adequate communication between bidders and clients, constructively conducting negotiations. SKW Schwarz advises on major bidding projects, including in the housing, in healthcare/pharmaceuticals and IT/banking sectors. He is also familiar with the structures of rescue services, civil protection, and disaster control as well as the regulatory context (SGB). Here he constructively designs award procedures on a long-term basis (“planning model”). In this connection, he also deals with issues of medical law ranging from emergency physicians to paramedics. While he is not litigating in court or before the Public Procurement Tribunal frequently, he has nevertheless gained considerable forensic experience since 2009, including at the Court of Justice of the European Union.

Norbert Klingner specializes in national and international movie/TV and advertising film production, financing, insurance, and distribution. He represents well-known producers, distributors, global distributors, and movie financing entities. His expertise ranges from negotiating and drafting contracts from the beginning of the material development to all matters related to production and financing up to the strategically correct exploitation and licensing. A selection of the film productions in which Mr. Klingner was involved can be found on the Internet Movie Database IMDb.

Margret Knitter advises her clients in all matters of intellectual property and competition law. This includes not only strategic advice, but also legal disputes. Her practice focuses on the development and defense of trademark and design portfolios, border seizure proceedings and advice on developing marketing campaigns. She advises on labelling obligations, packaging design, marketing strategies and regulatory questions, in particular for cosmetics, detergents, toys, foodstuffs and Cannabis. She represents her clients vis-à-vis authorities, courts and the public prosecutor's office.

In the field of media and entertainment, she mainly advises on questions of advertising law, in particular product placement, branded entertainment and influencer marketing. She is a member of the board of the Branded Content Marketing Association (BCMA) for the DACH region and member of the INTA Non-Traditional Marks Committee.

Dr. Kreißl mainly advises domestic and foreign clients in the area of real estate law. He has many years of expertise in the acquisition and sale of real estate and real estate portfolios, in the area of real estate management as well as in private construction and architectural law. The focus is also on advising on legal issues in connection with the management of real estate (commercial leasing, asset management, etc.), the realisation of a construction project and the drafting and negotiation of the corresponding real estate-specific contracts. Furthermore, Dr. Kreißl advises in the area of insolvency law (enforcement of claims) and reorganisation. 

In addition, Dr Kreißl has been admitted as a notary since 2020. He primarily runs a real estate law notary's office and assists, inter alia, in real estate transactions, project developments, property development projects, land and condominium purchase agreements. Furthermore, Dr. Kreißl offers all notarial consulting and certification services in the areas of corporate law and inheritance and family law.

Stefan Kridlo regularly advises national and international companies on all material issues of business law, commercial law, and corporate law, in particular also on corporate acquisitions.

The main focus of his many years of work is the support of real estate investors pertaining to real estate transactions and real estate portfolios, their structuring and administration. As notary, Stefan Kridlo works in the fields of corporate law, property law, and inheritance law. He also works as an executor.

Sabine Kröger is a Certified Expert for Commercial and Corporate Law as well as for Banking and Capital Markets Law and advises and represents national and international companies, executives and shareholders comprehensively in the field of corporate law and banking law.

As an experienced litigator, she also comprehensively represents her clients in court (corporate litigation / banking litigation).
Ms. Kröger's activities focus in particular on:

  • advising and representing mid-sized enterprises (SMEs) or their managing directors or shareholders in shareholder disputes and internal company disputes;
  • the assumption of committee representation for shareholders;
  • advising and representing financial investors and credit institutions in the field of credit law and collateral security law and in defending claims of clients/investors, including the representation in mass claim proceedings.

Dr. Petra Steinheber is a lawyer in the real estate department at SKW Schwarz in Munich. She advises project developers and real estate investors on the acquisition and sale of real estate.

Her main areas of work are real estate transactions and project development. She advises clients in the implementation of due diligence under real estate and public law, the design of the land purchase contracts, neighborhood agreements, and other land contracts and assists in subsequent handling and enforcement questions. Dr. Steinheber is also the contact person for all matters relating to public construction and immission protection as well as commercial tenancy law. In this respect, she has extensive knowledge and experience in the development and purchase of onshore wind turbines, solar parks, and large-scale retail projects.

Eberhard Kromer’s traditional focus in media law is entertainment and music. He counsels artists, publishers, labels, internet service providers, managements, as well as tour promoters. He has been active and well-versed in digital commerce issues since the inception of the internet. Eberhard’s practice is constantly affected by rapidly changing e-commerce models, social media platforms and ongoing digitization (Web 4.0, Internet of Things).

Dr. Kromer’s many years of experience as General Counsel and VP Business Affairs for a global media corporation give him the insight to recognize a corporation’s operational strengths and weaknesses. This enables him to find the best solution together with and for the client.

Franziska Ladiges advises clients on all questions of IT and data protection law. Thanks to secondments and many years of experience, she has in-depth knowledge of data protection. In this area, she supports companies (from small businesses to listed companies) from various industries with the implementation of data protection compliance. In addition, she advises on various individual data protection issues, including order processing, data subject rights and international data transfer. Finally, she regularly carries out data protection quick checks for companies on site.

In addition, Franziska Ladiges has experience in drafting contracts regulating the creation, use or transfer of software. She also drafts and reviews general terms and conditions (both purchasing and sales and internet platforms) and advises on the development of online shops and internet platforms. She often represents her clients before state courts in contract disputes or data protection matters.

Christine Lingenfelser herself specializes in trade, contract, and product liability law. She operates on national and international levels. She advises her clients in planning and designing new projects and supports them in contract negotiations.

In the field of real estate law, Christine Lingenfelser advises companies on drafting construction and leasing contracts and supports her clients when it comes to  enforcing their claims.

In the area of private clients, Christoph Meyer has special expertise in establishing and managing family foundations, the creation of succession rules for medium-sized companies and high-net-worth individuals, as well as in all matters pertaining to family law, with a focus on more complex asset situations. The drafting of wills, powers of attorney, and marriage contracts also play an important role, with a considerable proportion of cases having international relevance. Should amicable solutions not be achievable, Mr. Meyer advises the clients, with careful strategic and tactical planning, but also with the required readiness to resolve disputes, through possible legal proceedings before civil and financial courts.

Dr. Ulrich Muth advises companies, in particular banks and financial service providers.

In particular, he specializes in consulting for creditors of loan claims secured by real estate, in the monitoring of credit and reorganization negotiations, in the prevention of damage claims on account of alleged breaches of the duty of disclosure and consultation as well as in the enforcement of creditor interests in the event of the insolvency of the debtor. Based on many years of experience of proceedings in the fields of banking, commercial and company law, as well as in disputes involving competition law, Dr. Muth works together with the clients to develop economic solutions for avoiding legal disputes as well as efficient trial strategies.

Stephan Neubauer is appointed as insolvency administrator and advises companies and entrepreneurs in crisis cases. Insolvency law is used as a reorganization instrument. Stephan Neubauer also represents general managers and shareholders in personal liability cases. Stephan Neubauer advises creditors in the structuring of business relations with insolvent companies and the enforcement of their claims. He also advises on preventing and defending unjustified challenge claims.

Dr. Matthias Nordmann advises international groups, mid cap companies, investors and entrepreneurs on company, commercial and corporate law in particular on structuring and mergers & acquisitions. He has a special focus on transactions in IP/IT driven industries as well as real estate.

Show more
Marketing Manager
Head of Controlling
Head of IT
COO
Legal Tech & Innovation Manager
Head of Marketing & Communication
Head of Business Development
Business Development Manager
Marketing Manager
Head of HR
Management Accounting
Legal Tech Advisor

News

30

brand eins: SKW Schwarz is one of Germany's best commercial law firms 2025

05/06/2025

KI Flash: Consultation of the AI Office on the pre-paration of guidelines for GPAIM

Following on from our last AI Flash, in which we reported on legal issues relating to the use of AI tools, we would like to continue to provide you with legal advice at regular intervals.

 

Today's topic: Consultation of the AI Office on the preparation of guidelines for GPAIM

 

On 22 April 2025, the AI Office of the European Commission launched a consultation on the preparation of guidelines for GPAIM (see the official press release here). The background to the consultation is the provisions of Art. 51 et seq. of the AI Act, which regulate the development of general purpose AI models (GPAIM) and will apply from 2 August 2025.

The aim of the consultation is to involve steak stakeholders with relevant specialist knowledge and expertise (e.g. industry associations and GPAIM providers) in the process of developing guidelines. The consultation will run until 22 May 2025, while publication of the finalised guidelines is planned for May or June 2025. The guidelines are intended to supplement the practical guide (see Art. 56 AI Act), which is also currently being consulted on, and provide further assistance for practitioners.

Even if the current working documents of the AI Office have naturally not yet been finalised and a binding interpretation of the AI Act is always the responsibility of the European Court of Justice (ECJ), some legal classifications of the AI Office can already be derived, which will be presented in this AI Flash.

 

When is an AI model a GPAIM?

The question of whether an AI model is to be considered a GPAIM depends primarily on whether it ‘that displays significant generality and is capable of competently performing a wide range of distinct tasks“. The clarification of these requirements is of fundamental importance, as only AI models that are categorised as GPAIM are subject to the requirements of the AI Act.

The AI Office currently assumes that an AI model that can generate text and/or images is to be regarded as a GPAIM if its training calculation exceeds 10^22 FLOPs (= floating-point operations). According to Art. 3 No. 67 AI Act, floating point operations are

‘any mathematical operation or assignment involving floating-point numbers, which are a subset of the real numbers typically represented on computers by an integer of fixed precision scaled by an integer exponent of a fixed base;’

AI models that generate neither text nor images can be categorised as GPAIM if they have a degree of generality comparable to the AI models primarily considered by the AI Office for generating images and/or text.

The AI Office's working documents contain various calculation options and associated examples that can be used to estimate the number of FLOPs. In particular, a distinction is made between a hardware-based approach and an architecture-based approach. In principle, providers of AI models should be able to choose freely between the two calculation methods, whereby further requirements are set for the type and timing of the calculation.

It is important to note that the presumption rules are explicitly rebuttable based on the above threshold. If the training calculation reaches the above-mentioned threshold, it is therefore initially assumed that the AI model has sufficient generality to be categorised as a GPAIM. However, this only applies if there are no indications to the contrary. According to the AI Office, whether an AI model has sufficient generality and is able to perform a wide range of different tasks competently depends not only on the training calculation, but also on the modality and other characteristics of the data used for training. For example, according to the AI Office, an AI model that is only suitable for transcribing speech should not be considered a GPAIM, even if its training computation reaches the above-mentioned threshold.

 

Differentiation between AI model and model version

Since, according to recital 97 AI Act, GPAIMs can be ‘further modified or fine-tuned into new models’, the question arises as to where exactly the boundary to the development of a (new) independent GPAIM lies, particularly in the case of fine-tuning. The question has already been the subject of numerous discussions, with different characteristics being used to draw the line.

The AI Office currently assumes that changes to an AI model are only to be regarded as an independent development if the changes require more than one third of the computing power required to categorise the model as a GPAIM. This means that the computing power for fine-tuning would have to exceed the value 3 * 10^21 FLOPs in order to justify classifying the modified AI model as a (new) GPAIM. In contrast, further developments that are below the aforementioned threshold should only be categorised as a new model version.

The question of whether it is an independent development of a GPAIM or merely the creation of a new model version also plays a decisive role in determining the relevant obligations. According to recital 109 AI Act, ‘the obligations for providers of general-purpose AI models should be limited to that modification or fine-tuning, for example by complementing the already existing technical documentation with information on the modifications, including new training data sources, as a means to comply with the value chain obligations provided in this Regulation.’

The AI Office's approach to drawing boundaries is very ‘technical’, but the result is consistent. The AI Office's working documents expressly point out that although the training calculation can only be regarded as an imperfect indicator for determining GPAIM, it currently offers the greatest degree of legal certainty. However, the AI Office expressly points out in its working documents that the threshold values used and their calculation may (have to) be adjusted again in future.

 

Who is the provider of the GPAIM?

From a practical point of view, the question of who can be considered as a provider of a GPAIM and must therefore implement the obligations of Art. 51 et seq. AI Act must be implemented.

In order to determine whether a company is to be regarded as a provider of a GPAIM, the respective GPAIM must be placed on the market by the company. According to Art. 3 No. 9 AI Act, this is the first making available of the GPAIM on the Union market, whereby the GPAIM must be ‘supplied’ in return for payment or free of charge in the course of a business activity. Placing on the market therefore primarily focuses on the provision of the GPAIM to external third parties - from the provider's perspective - so that the purely internal use of AI models is at least not primarily covered. Recital 97 AI Act, however, states verbatim:

‘This Regulation provides specific rules for general-purpose AI models and for general-purpose AI models that pose systemic risks, which should apply also when these models are integrated or form part of an AI system. It should be understood that the obligations for the providers of general-purpose AI models should apply once the general-purpose AI models are placed on the market. When the provider of a general-purpose AI model integrates an own model into its own AI system that is made available on the market or put into service, that model should be considered to be placed on the market and, therefore, the obligations in this Regulation for models should continue to apply in addition to those for AI systems. The obligations laid down for models should in any case not apply when an own model is used for purely internal processes that are not essential for providing a product or a service to third parties and the rights of natural persons are not affected. Considering their potential significantly negative effects, the general-purpose AI models with systemic risk should always be subject to the relevant obligations under this Regulation.’

This system (consisting of exceptions and re-exceptions) must therefore be examined in each individual case. Only in this way can it be determined with certainty whether provider status can also be considered for purely internal use of the GPAIM. Details on this are not yet included in the current working papers of the AI Office, which is why further developments must be kept under review.

However, the AI Office has already developed a number of examples where it should be assumed that the GPAIM has been placed on the market:

  • Provision of the GPAIM via a programming library
  • Provision of the GPAIM via a programming interface (API)
  • Provision of the GPAIM for direct download
  • Provision of a physical copy of the GPAIM or upload of the GPAIM to a third party's own infrastructure
  • Integration of the GPAIM into a chatbot that can be accessed on a public website or in an app
  • Integration of the GPAIM into a product or service offered on the market

 

Exceptions for open source

Recital 102 AI Act states that ‘The providers of general-purpose AI models that are released under a free and open-source licence, and whose parameters, including the weights, the information on the model architecture, and the information on model usage, are made publicly available should be subject to exceptions as regards the transparency-related requirements imposed on general-purpose AI models, unless they can be considered to present a systemic risk’. The AI Act therefore provides for exemptions for certain providers of GPAIM - which do not pose a systemic risk - when determining the relevant obligations.

According to the AI Office, GPAIM providers must fulfil the following conditions in order to benefit from exemptions:

  • The GPAIM is published under a free and open source licence that allows access, use, modification and distribution of the AI model;
  • The parameters, including the weights, the information on the model architecture and the information on the use of the AI model are made publicly available;
  • The GPAIM is not subject to systemic risk.

The AI Office working papers already contain further explanations of all the requirements mentioned.

 

Importance of practice guidelines and position of the AI Office

In its working paper, the AI Office also briefly discusses the importance of practice guidelines and its own position as a supervisory authority.

The AI Office is responsible for checking the requirements for providers of GPAIM (see Art. 88 AI Act). The same applies to providers of AI systems that are technically based on a GPAIM, provided that the same provider is involved in both cases (see Art. 75 para. 1 AI Act). The AI Office itself states that it wishes to pursue the most cooperative and proportionate approach possible when enforcing the AI Regulation. It remains to be seen how this will play out in practice.

Pursuant to Art. 53 para. 4 and Art. 55 para. 2 AI Act, compliance with approved codes of practice is in any case a suitable means of ensuring compliance with the requirements of the AI Act. The signing of corresponding practice guidelines is therefore intended in particular to provide simplified proof. The AI Office expressly points out that if companies sign a code of practice, they should be able to rely on the fact that regulatory audits are limited to compliance with these codes of practice. By contrast, providers that do not sign a corresponding code of practice must demonstrate by other appropriate, effective and proportionate means that they implement the requirements of the AI Act.

 

Practical note

Artificial intelligence is becoming increasingly important. From a data protection perspective, numerous statements have already been published by data protection supervisory authorities that deal with both the development and use of AI. The European Data Protection Board also refers to the topic of AI several times in its current activity report for 2024 (published on 23 April 2025). Due to the gradual validity of the AI Act, the (further) regulatory requirements are now also picking up speed.

Even if the topic of GPAIM - and the development of AI in general - is often shifted to the area of responsibility of tech giants, there are a large number of practical constellations in which SMEs can also take on the role of AI provider. In particular, when fine-tuning AI models and depending on how AI is used, ‘developing’ and ‘placing on the market’ within the meaning of the AI Act may need to be considered.

Our recommendation can therefore only be that companies deal with the regulatory requirements as early as possible and have a concept in place for the development and use of AI. The deadline for GPAIM on 2 August 2025 is getting closer and closer, meaning that basic requirements should already be known now - despite some existing transitional provisions and regulations to protect existing requirements.

 

Feel free to contact us if you have any questions about developing or using AI!

04/24/2025, Marius Drabiniok, Dr. Oliver Hornung

SKW Schwarz supports Forest Stewardship Council with its sustainability statements

Munich/Bonn, April 15, 2025

SKW Schwarz has supported Forest Stewardship Council (FSC®), one of the world's largest certification systems for sustainable forest management, in implementing the requirements of the EU directive on empowering consumers for the green transition for the FSC labelling scheme.

 

A team of experts from SKW Schwarz with expertise in the areas of sustainability communication, competition law, and green claims has reviewed FSC's established certification system in detail with regards to compliance with the Empowering Consumers Directive (EmpCo; Directive (EU) 2024/825). This ensures that FSC can continue to enable its customers to label and advertise forestry-based products made from materials such as wood, paper and rubber, which originate from sustainable forest management in accordance with FSC's high standards, with transparent, clear sustainability labels and environmental claims in a legally compliant manner. 

The EmpCo Directive, which will also apply at a national level from 2026, will increase the legal requirements for environmental and sustainability statements in corporate communications throughout the EU. Generic environmental claims without explanation or specification will no longer be possible; (specific) environmental claims must be explained in detail. Sustainability labels must be based on a certification scheme that is open, transparent and non-discriminatory and whose requirements are monitored by independent third parties. 

FSC already uses a comprehensive system of numerous publicly accessible standards and checks to ensure that its labels are only applied to products that demonstrably comply with the principles of responsible forest management.

Nevertheless, it was necessary to have the processes for awarding the label by FSC reviewed to ensure that they also meet the new requirements of the EmpCo Directive.

“In selecting a legal partner, FSC sought a firm with not only the technical expertise but also a deep understanding of our industry; qualities that SKW Schwarz clearly demonstrated. Their ability to navigate the complexities of our certification system, combined with their tailored guidance, has been invaluable,” says Ana-Maria Băban, Commercial Director of FSC.

Dr. Daniel Kendziur, Partner at SKW Schwarz, explains: “As one of many certification schemes that are important for the environment, FSC addressed the important issues associated with EmpCo at an early stage. We are pleased that we were able to support FSC in strategically aligning the certification system with the future legal framework so that FSC and its customers can continue to successfully promote sustainability and forest management.”

 

About SKW Schwarz

SKW Schwarz is an independent law firm with around 120 lawyers, four offices and a common claim: We think ahead. As a member of TerraLex, the law firm is globally networked and advises in all relevant areas of commercial law. Including in an area that is particularly important for companies: the future. We analyze, create clarity and advise today in the key legal areas of tomorrow.

 

About the Forest Stewardship Council™ (FSC®)

FSC is a non-profit organization that provides a proven sustainable forest management solution. Currently, over 150 million hectares of forest worldwide is certified according to FSC standards. It is widely regarded as the most rigorous forest certification system among NGOs, consumers, and businesses alike to tackle today’s deforestation, climate, and biodiversity challenges. The FSC forest management standard is based on ten core principles designed to address a broad range of environmental, social and economic factors. FSC’s “check tree” label is found on millions of forest-based products and verifies that they are sustainably sourced, from forest to consumer. For more information, visit www.fsc.org.

04/15/2025, Dr. Daniel Kendziur, Yves Heuser

Coalition agreement 2025: Tax policy decisions for companies and employees

On 9 April 2025, the CDU/CSU and SPD presented their draft coalition agreement for the 21st legislative period. This will result in relevant tax policy changes, particularly for our entrepreneurial clients and employees. Below we provide an overview of the planned measures:
 

Corporate taxation:

The corporation tax (Körperschaftsteuer) rate is to be gradually reduced from the current 15% to 10% over five years from 1 January 2028. In addition, a so-called ‘investment booster’ is planned: For the years 2025 to 2027, a declining balance depreciation of 30% on investments in equipment is to be possible. At the same time, an increase in the minimum trade tax (Gewerbesteuer) rate from 200% to 280% is planned. The solidarity surcharge (Solidaritätszuschlag) is to remain in place. In addition, the VAT (Umsatzsteuer) rate on food is to be reduced (again) to 7%. At European level, the introduction of a financial transaction tax and the implementation of the global minimum tax for large corporations will be maintained.
 

Taxation of employees:

A reduction in income tax (Einkommensteuer) is planned for ‘small and medium’ incomes. Overtime in excess of full-time work and an amount of up to 2,000 euros after retirement age are to be tax-free in future. Premiums paid to part-time employees for extending their working hours are also to be tax-favoured. There are also plans to increase the commuter allowance to 38 cents per kilometer from the first kilometer from 1 January 2026.
 

Conclusion:

The tax policy plans for corporate taxation are a good approach to strengthening German small- and medium-sized companies and Germany as an investment location and making it (more) competitive. This applies in particular to the ‘investment booster’ already in place for this year. The reduction in the corporation tax rate is also welcome in principle, although the final reduction to 10% will not take effect until 2032. The changes to employee taxation are welcome and also provide the right incentives at this level, which are necessary to strengthen the German economy. It is also worth mentioning that the coalition agreement does not contain any statements on inheritance and gift tax or capital gains tax.

04/15/2025, Dr. Alexander Tegge

The coalition agreement and its impact on employment law

Many of the plans that have now been written into the coalition agreement were already part of the results of the “Labor & Social Affairs” working group. In addition to a planned reduction in bureaucracy, including the elimination of the written form requirement for fixed-term contracts or a more transparent status determination procedure for determining dependent or independent employment, the following key points have been included in the coalition paper:

 

Working hours - weekly instead of daily maximum working hours 

Working time models should be more flexible. Instead of the daily maximum working time, a weekly maximum working time is to apply in future - as already provided for in the European Working Time Directive. However, the coalition partners have not yet decided on the specific details. 

 

Electronic time recording and trust-based working hours without time recording

The obligation to record working hours electronically is to be regulated “unbureaucratically” in future. Appropriate transitional periods for small and medium-sized companies are also promised. Trust-based working hours are to remain possible without time recording “in line with the EU Working Time Directive”. Whether and how this can be implemented in accordance with EU law remains to be seen.

 

Tax concessions for overtime bonuses and working time bonuses

Bonuses for overtime that exceed the collectively agreed or collectively agreed full-time working hours are to be made tax-free. Part-time employees are not to be covered by this regulation. Whether this is permissible will have to be clarified in court in case of doubt. Employer bonuses are to be tax-privileged to encourage part-time employees to extend their working hours.

 

Minimum wage - 15 euros in future

The statutory minimum wage will continue to be set by the Minimum Wage Commission, but will in future be based on the development of collective wage agreements and 60 percent of the gross median wage for full-time employees. According to the future government, a minimum wage of 15 euros could be achieved in 2026. 

 

Securing the skilled labor base 

The shortage of skilled workers is to be counteracted by promoting the participation of women in the workforce, making it easier for retirees to return to their old employer and encouraging qualified immigration to Germany. A “work-and-stay agency” is to be created as a single point of contact for foreign skilled workers and processes are to be simplified with the involvement of the employer. 

 

Digitalization, AI and digital co-determination options

The coalition partners want to create the “right framework conditions” for the use of digitalization and AI in the world of work. At the same time, however, they are completely vague about what these could look like. Works council meetings, works assemblies and works council elections should also be possible “online” in future. 

 

Conclusion

On a positive note, it should be emphasized that working time recording in compliance with European law is finally to be tackled - however, it remains to be seen how and when this will actually be implemented. In this respect - as with the other projects announced - it is important to continue to monitor developments in order to be able to act when binding requirements are issued.

 

04/14/2025, Sabrina Hochbrückner, Tamara Ulm

SKW Schwarz and df-mp.tech successfully enforce Contour's camera patent against infringers

The law firms SKW Schwarz and df-mp.tech have enforced an important camera patent of the Contour Group against a provider of action cams.

The European patent (EP 2 617 186 B1) protects an invention which, in particular, makes it possible to receive a preview video from a digital video camera via a wireless connection such as Bluetooth or Wifi on a mobile device (e.g. smartphone) and to adapts camera settings before a recording is started.

The action cam provider had used this invention in its digital cameras. He refused to acquire a license, but was also not willing to refrain from using the patented technology. SKW Schwarz and df-mp.tech therefore filed a patent infringement suit against the provider with the Mannheim Regional Court.

In a ruling dated April 1, 2025, the Mannheim Regional Court ordered the provider in full to cease and desist from the patent infringement, provide information, render accounts and reimburse the pre-litigation warning costs due to patent infringement. The provider was also ordered to recall the products, remove them from the distribution channels and destroy them. The court also ruled that the provider must pay damages for the patent infringement.

The judgment is not yet final.

Contour specializes in the development and commercialization of inventions and patents in the field of camera technologies. The commercialization and licensing of the European patents is carried out by Contour Technosciences Ltd. based in Ireland.

Contour Technosciences Ltd., represented by SKW Schwarz and df-mp.tech, is currently taking legal action against a number of other providers who are also using the patented technology without a license.

The SKW Schwarz team includes partner Dr. Oliver Stöckel and associates Afra Nickl and Jan Möbus. Patent attorneys David Molnia and Stefan Sohn as well as attorney-at-law Jakob Dandl are involved in the proceedings on behalf of df-mp.tech.

04/10/2025, Dr. Oliver Stöckel, Afra Nickl, Jan Möbus

Business succession in the skilled trades - what you should bear in mind

The topic of business succession is increasingly becoming a major challenge for skilled trades businesses. It is estimated that around 600,000 small and medium-sized businesses in Germany are thinking of a business succession by the end of 2025. However, around 165,000 businesses are threatened with closure due to a lack of suitable successors. Yet the skilled trades sector not only has proverbial golden soil, but actually has very good opportunities for growth. And succession offers a decisive advantage over starting a new business: company successors usually also take over a loyal customer base.

Fewer and fewer young people are interested in self-employment or business succession.  Many also shy away from the bureaucratic effort involved in fulfilling information and reporting obligations (e.g. land registry, commercial register, chambers and professional associations) as well as the legal and tax complexity of a business succession. And finally, there are the not inconsiderable problems of the purchase price and payment modalities as well as the financing of the business succession.

The desire to find a suitable business successor within one's own family remains strong in German companies. However, it is not always possible to find a suitable candidate within the family. An obvious alternative is to hand over the business to an experienced employee who not only has industry knowledge, but is also already familiar with the structures and processes within the business.

Depending on the legal form in which the craft business is operated, such a transfer can take the form of an asset deal or a share deal. While in a share deal the company is transferred as a whole and thus a universal succession takes place while retaining the business, in an asset deal only the assets of the company are transferred individually. In contractual terms, a share deal is generally simpler because only shares in a company are transferred and not its assets. However, a share deal is not possible if the craft business is operated as a sole proprietorship and there are therefore no company shares.

 

Sales tax

A good thing is that if a company is sold as a whole, no sales tax is incurred. Less good is the fact that, depending on how the business is organised and how the sale ultimately takes place, income tax will be incurred. What this means will be explained here as an example for the sale of a GmbH and a GmbH & Co. KG.

 

Sale of a craft business GmbH & Co. KG

If a private entrepreneur sells his shares in a GmbH & Co. KG by way of a share deal or the ongoing operation of the company, i.e. the individual assets of the company, in the form of an asset deal, income tax is also payable on the capital gain. 

The taxable profit is calculated from the sale price less costs such as consultancy fees or notary fees and the book value for tax purposes. The hidden reserves of the business are realised and taxed upon sale. The profit from the sale of the business calculated in this way is then taxed at the entrepreneur's individual income tax rate of up to 42 % (even 45 % in the case of the ‘wealth tax’).

The German Income Tax Act (Einkommensteuergesetz - EStG) provides some tax benefits for the sale of a GmbH & Co. KG. For example, a tax-free allowance of up to EUR 45,000 applies to the sale of a smaller business, but this is reduced from a capital gain of EUR 136,000. Due to this melting effect, the tax advantage is completely cancelled out from a capital gain of EUR 181,000.

For business succession in larger craft businesses organised as GmbH & Co. KG, a seller who has already reached the age of 55 receives a tax reduction of 56 % of the average income tax rate (Section 34 (4) EStG). However, this only applies to capital gains of up to five million euros. It should also be noted that the minimum tax rate here is 14 %.

A further tax privilege in favour of the seller of the company can be the one-fifth rule, which leads to a reduction in progression.

Finally, the profit of a co-entrepreneur - i.e. an entrepreneur who is not the sole owner of the company - can be exempt from trade tax if the entire co-entrepreneur share, including the special business assets, is sold. Particularly in the case of GmbH & Co. KG, it must be taken into account that the shares in the general partner GmbH constitute special business assets and should also be sold. If the seller does not wish to sell his special business assets, such as a property, appropriate tax planning is required beforehand.

 

Sale of a craft business GmbH 

If, on the other hand, the craft business is operated in the legal form of a GmbH and all GmbH shares are sold, the decisive factor for tax purposes is whether the shares were held as private or business assets of the company.

If the shares are held as private assets, the so-called partial income method applies in the case of a share deal. This means that 60 % of the sales profit is taxed at the entrepreneur's individual income tax rate, provided the seller holds at least 1 % of the GmbH. The partial income method also applies if the GmbH shareholding is not held directly by the seller, but indirectly via a partnership (e.g. seller has a shareholding in a limited partnership (KG), which in turn holds the GmbH shareholding). If, on the other hand, the seller holds a small stake of less than 1 %, the flat-rate withholding tax generally applies, whereby the capital gain is taxed at 25 % plus solidarity surcharge and, if applicable, church tax.

However, if the seller holds the GmbH shares as business assets, the capital gain is again subject to the partial income method. The seller's profit is then subject to 60 % income tax and possibly trade tax. At the level of business assets, however, it does not matter how high the seller's shareholding is; there is no withholding tax here.

However, if the craftsman holds an indirect interest in the operationally active Handwerksbetriebs (craftsman’s business)-GmbH via another GmbH (e.g. a family holding GmbH), the shares in the Handwerksbetriebs-GmbH are legally sold by this parent GmbH. In this case, the capital gain is tax-exempt due to the intercompany privilege in accordance with Section 8 b of the German Corporation Tax Act (Körperschaftsteuergesetz - KStG). The capital gain is then only subject to a non-deductible operating expense of 5 %. 

 

Sale of the assets of a GmbH trading business

If the trading business is transferred in such a way that all of the GmbH's operating assets, i.e. land, vehicles, employment relationships, are transferred individually to the buyer (asset deal), the GmbH's capital gain is subject to normal corporation and trade tax. The capital gain generated from the purchase price is therefore taxed as current profit of the GmbH (i.e. at around 30 % in total). The hidden reserves in the sold business of the GmbH are also disclosed and are taxable for the GmbH. This also applies to the sale of a part of the GmbH's business.

If the profit resulting from the purchase price is now distributed by the selling GmbH to its shareholders (the craftsman), this profit distribution is subject to the entrepreneur's income tax at 60 % of the respective individual tax rate as part of the partial income procedure.

 

Conclusion

In order to overcome all the challenges and hurdles associated with business succession, the search for suitable candidates should begin at least three years before a planned business transfer. All the advantages and disadvantages of a family-internal or external takeover should be weighed up first. The tax implications should also be examined to ensure that a succession solution is chosen that is as favourable as possible for the company from a tax perspective and places as little burden as possible on private and business assets.

04/07/2025, Dr. Thomas Hausbeck

SKW Schwarz advises Amplex on the acquisition of Filtertechnik Jäger GmbH

SKW Schwarz has advised the Swedish industrial holding Amplex AB on the acquisition of all shares in Filtertechnik Jäger GmbH, a leading specialist in filtration technology. The two previous owners will continue to be active in the company in the future. 

Amplex AB, headquartered in Spånga, Sweden, is a group of companies with around 30 subsidiaries specialising in the acquisition, management and further development of technology-oriented companies in industrial niches.

Filtertechnik Jäger, based in Weissenhorn, Bavaria, develops and produces products for industrial liquid filtration, including filter media, filter elements and filter housings with accessories. The company was founded in 1995 and employs around 20 people. 

SKW Schwarz has already advised the Amplex AB group on several acquisitions in Germany in the past. 

 

Advisor to Amplex: 
SKW Schwarz, Munich: Dr Sebastian Graf von Wallwitz (M&A/corporate law, lead), Nicole Wolf-Thomann (tax law); Associates: Nick Niederberger (M&A/corporate law), Sabrina Hochbrückner (employment law, Frankfurt), Raluca-Ramona Calin (transaction management)

04/04/2025, Dr. Sebastian Graf von Wallwitz, Nicole Wolf-Thomann, Nick Niederberger, Sabrina Hochbrückner

Digital Decade Update - What's next on the EU's digital regulation agenda?

The EU's “Digital Decade” is the European Union's central strategy for making Europe digitally competitive by 2030 and driving forward the digital transformation in a targeted manner. It focuses on four key areas: promoting digital skills and skilled workers, expanding secure and sustainable digital infrastructures, supporting the digital transformation in companies and digitizing the public sector.

In order to achieve these ambitious goals, the EU has adopted a series of far-reaching legislative initiatives. We have set up a landing page for the “Digital Decade” on our website, where you can find an overview of the individual legislative initiatives and we provide regular updates on their practical impact. The following overview article summarizes the current status of the most important initiatives.

 

Data Act

What is it about?

The Data Act (DA) regulates access to and the use of data generated when using networked products and associated services. The aim is to ensure fair access to usage data, break up data monopolies and promote innovation in the internal market. The regulation particularly affects manufacturers of connected devices, providers of digital services and users of these products. Other aims of the Data Act are to simplify the switching of cloud services and improve the interoperability of data.

What is the current status and what is next on the agenda?

  • The regulation came into force on January 11, 2024 and will be fully applicable from September 12, 2025.

  • Sector-specific implementation guidelines (by the Commission or standardization organizations) are currently being developed.

     

Data Governance Act

 What is it about?

The Data Governance Act (DGA) regulates access to and use of personal and non-personal public sector data. In addition, the DGA contains regulations on the activities of data sharing services (so-called “data intermediaries”) and provisions to promote “data altruism”, i.e. the voluntary sharing of data by third parties.

What is the current status and what is next on the agenda?

The regulation came into force on January 11, 2024 and will be fully applicable from September 12, 2025

 

Regulation on Artificial Intelligence

 What is it about?

The Artificial Intelligence Regulation (AI Act) is intended to create comprehensive rules for artificial intelligence systems in Europe. The use of certain AI systems will be completely banned, while others may be used subject to strict compliance requirements and safety measures (high-risk AI systems). The AI Act establishes transparency and information obligations for certain low-risk AI systems. Through ethical and technical standards, the AI Act is intended to create a legal basis for the responsible use of AI in the EU.

What is the current status and what is next on the agenda?

  • The regulation came into force on August 1, 2024 and will be fully applicable from August 2, 2026. Certain parts will already be applicable before this date:
  • The regulations on prohibited practices (prohibited AI systems) provided for in the AI Act and the AI competence requirements for providers and operators of AI systems will already apply from February 2, 2025.
  • The regulations on general purpose AI models (GPAI) will apply from August 2, 2025.
  • Various guidelines are to be issued by the Commission, in particular on the implementation and interpretation of the regulation. The guidelines on prohibited practices (Art. 5 AI Act) and the guideline on the definition of an AI system pursuant to Art. 3(1) AI Act have already been available since February 2, 2025.

 

Accessibility Strengthening Act

 What is it about?

The Barrierefreiheitsstärkungsgesetz (BFSG) brings far-reaching changes for the accessibility of products and services. It obliges a large number of economic actors, including manufacturers, importers, retailers and service providers, to meet specific accessibility requirements. The regulations on e-commerce services in particular will affect numerous website and online store operators.

What is the current status and what is next on the agenda?

The BFSG comes into force on June 28, 2025 and is fully applicable from this date.

 

Digital Services Act

 What is it about?

The Digital Services Act (DSA) modernizes the foundations of the E-Commerce Directive, which was issued in 2000, and creates new rules for the Internet, which particularly affect online platforms. The aim is to promote greater transparency, security and European values on the Internet.

What is the current status and what is next on the agenda?

The Digital Services Act came into force on November 16, 2022 and has been fully applicable since February 17, 2024

 

Markets in Crypto-Assets Regulation

What is it about?

The Markets in Crypto-Assets Regulation (MiCAR) is intended to create a uniform and harmonized regulatory framework for crypto-assets in the European Union. The aim is to make the market for crypto-assets more transparent, secure and efficient. The regulation includes rules for value-referenced tokens, e-money tokens and utility tokens.

What is the current status and what is next on the agenda?

The regulation was adopted in April 2023 and came into force in June 2023. All parts of the regulation have been fully applicable since December 30, 2024.

 

Digital Operations Resilience Act

What is it about?

The Digital Operations Resilience Act (DORA) places comprehensive requirements on IT security in the financial sector. The aim is to strengthen the digital resilience of the affected companies and thus increase the overall security of the financial sector.

What is the current status and what is next on the agenda?

The DORA came into force on January 17, 2023 and has been fully applicable since January 17, 2025

 

NIS 2 Directive

What is it about?

The second EU Network and Information Security Directive (NIS-2 Directive) provides for comprehensive cybersecurity requirements for companies in various sectors such as energy, transport, health and digital infrastructure.

SKW Schwarz's NIS 2 tool allows companies to check the extent to which they are affected by the directive.

What is the current status and what is next on the agenda?

  • The directive has been in force since the beginning of 2023. The transposition deadline expired on October 17, 2024. The government bill passed last year (NIS2 Implementation and Cybersecurity Strengthening Act) must be passed again by the new government and submitted to the Bundestag (“discontinuity principle”).

  • The law is currently not expected to be passed again until summer 2025 at the earliest. It can also be assumed that changes will be made to the previous draft bill.

     

Cyber Resilience Act 

What is it about?

The Cyber Resilience Act (CRA) contains requirements for the cyber security of products with digital elements. These include networked hardware and software products as well as essential remote data processing solutions. The requirements of the CRA affect product manufacturers in particular, while importers and retailers must fulfill certain control obligations.

What is the current status and what is next on the agenda?

  • The CRA came into force on December 10, 2024. From June 11, 2026, conformity assessment bodies will be able to verify compliance with the safety requirements.
  • From September 11, 2026, manufacturers must report actively exploited vulnerabilities of affected products From December 11, 2027, the CRA will be fully applicable.

---

We are familiar with the legal issues, risks and opportunities associated with the new EU legislative initiatives. Please contact us if we can support you with the implementation.

04/02/2025, Johannes Schäufele, Corinna Schneiderbauer, Dr. Daniel Meßmer, Jan-Dierk Schaal, Henrik Hofmeister, Dr. Christoph Krück

Quadruple regulation: What manufacturers of connected products need to know now

Cybersecurity, data access, and liability – four new EU regulations are fundamentally reshaping the legal framework for connected products.

Whether intelligent household appliances, industrial equipment or smart home systems: Manufacturers and distributors of connected products are facing much stricter requirements. 

The EU is getting serious about product safety, resilience and data transparency - and is intervening deeply in product development and manufacturer responsibility with the Cyber Resilience Act, the Data Act, the Product Safety Regulation and the new Product Liability Directive.

What does this mean for existing processes, data strategies and product conformity? The following overview shows which requirements apply when and how companies can prepare for them now.

 

 

1. Product Safety Regulation (GPSR)

The General Product Safety Regulation (EU) 2023/988 applies from December 13, 2024 and replaces the previous Product Safety Directive 2001/95/EC. It ensures that all consumer products made available on the European market - including those with digital functions - guarantee a high level of safety. In contrast to product liability, product safety concerns preventative obligations: Companies must ensure that their products do not pose any risks to health and safety before they are placed on the market.

The GPSR brings the following innovations, among others:

  • Mandatory risk analysis and technical documentation, including for digital products; Increased responsibility for online marketplaces and fulfilment service providers;
  • Expanded recall and information obligations for unsafe products;
  • Obligation to designate an economic operator within the EU;
  • Requirement for digital traceability (e.g. QR code for product tracking).

For companies, this means that not only physical defects, but also software errors, missing safety updates or deficiencies in the instructions for use can become relevant under product safety law.

 

2. Cyber Resilience Act (CRA)

With the Cyber Resilience Act (CRA), which entered into force on December 10, 2024, the EU is pursuing the goal of ensuring a uniform minimum level of cyber security for products with digital elements. The CRA is the first EU-wide regulation to define specific requirements for the security of hardware and software across the entire product life cycle. 

In future, manufacturers, importers and distributors of connected products must, among other things:

  • guarantee secure default settings (security by default),
  • provide regular and documented security updates,
  • establish processes for vulnerability assessment and
  • fulfill reporting obligations in the event of serious security incidents.

In addition, companies must carry out a so-called conformity assessment before products are launched on the market. Depending on the risk class, internal procedures or external test centers are required. The transition period is 36 months. From December 11, 2027, products that do not meet the requirements may no longer be placed on the market. Notification obligations already apply from December 11, 2026. 

 

3. Data Act

The Data Act applies from September 15, 2025 and particularly affects manufacturers and providers of networked products and connected digital services. The aim is to ensure fair access to and use of data and facilitate the economic use of machine-generated data in the European single market. Central regulations concern

  • direct user access to the data generated by the product,
  • the possibility of passing on data to third parties (e.g. for repair services or analysis providers)

The Data Act is particularly relevant for providers of IoT products, smart home solutions and machine-based applications in industry. Companies must examine how they will contractually and technically structure transparency obligations, access rights and commercial usage options in future. This is because User data may only be used with the explicit consent of the user. 

 

4. New Product Liability Directive (EU) 2024/2853

The new Product Liability Directive came into force on December 8, 2024. It replaces Directive 85/374/EEC and modernizes the liability requirements, especially for digital products such as software, AI systems and smart devices. Unlike the directly applicable Product Safety Regulation, this is a directive: the member states have until December 9, 2026 to transpose it into national law. The new liability standards will only become binding after national transposition.

 

Among other things, the new directive brings:

  • A clear inclusion of software and AI in the scope of application,
  • Extended liability for faulty updates and security flaws,
  • Easing of the burden of proof for injured parties,
  • Liability also for breaches of cybersecurity or data protection obligations.

For companies, this means that anyone offering digital products must expect increased liability in future - including for intangible components such as algorithms or updates. A review of risk management, documentation and contract design is already recommended.

 

What companies should do now

Manufacturers and suppliers of connected products should assess at an early stage whether their products and processes meet the new requirements. This applies to the technical design as well as the contractual framework, labelling and information obligations and the internal compliance structure. The four regulations are partly interlinked and require a comprehensive legal and technical assessment. In many cases, a strategic adaptation of product design, supply chain and support processes is necessary.

 

We are happy to support you in the legally compliant implementation of the new requirements.

04/02/2025, Dr. Daniel Meßmer

New competition for better data protection - German Federal Court of Justice confirms the right of action of competitors and consumer protection associations regarding GDPR violations!

On March 27, 2025, the Federal Court of Justice (“BGH”) published three rulings with particular significance. In the three groundbreaking decisions, the BGH implements the requirements of the European Court of Justice (“ECJ”) and opens the door to competition law claims by competitors and consumer protection associations in the event of data protection violations. Is this the beginning of a new wave of warning letters?

 

I. Background

The General Data Protection Regulation (“GDPR”) primarily protects data subjects. If a controller violates GDPR provisions, the data subject is entitled to legal remedies, such as the right to data erasure or, depending on the case, claims for damages. In addition, data protection authorities can take various measures to enforce the GDPR, such as issuing a prohibition order or imposing fines on the controller. 

In contrast, it was unclear for a long time whether a competitor could also make a claim against the controller for removal and injunctive relief under the Unfair Competition Act (“UWG”) due to a data protection breach by the controller. Specifically, the question was whether the sanctions regime of the GDPR must be regarded as exhaustive or whether Sections 3 (1), 3a UWG (“Vorsprung durch Rechtsbruch”, “Advantage through breach of law”) can be applied additionally. In the past, German regional courts have judged this in different ways, and the feared wave of warnings following the introduction of the GDPR in 2018 did not materialize so far. 

Also, it was not clear for a long time, under which conditions consumer protection associations could invoke a right of action in connection with GDPR infringements. 

As expected, these unresolved issues finally reached the BGH. In two parallel proceedings (Ref.: I ZR 222/19 and ZR 223/19), the BGH had to clarify the entitlement of pharmacists in competition to bring claims for GDPR infringements. A third case (Ref.: I ZR 186/17) concerned the right of action of the Federation of German Consumer Organizations (“vzbv”) in a legal dispute against the operator of a social media platform due to breaches of data protection and fair-competition information obligations. 

After the BGH had referred all three proceedings to the ECJ for a preliminary ruling, which has since ruled in favor of the applicability of competition law (see our press release dated  October 8, 2024 here), the final decisions of the BGH are now also out:

 

II.  BGH, judgment of  March 27, 2025, case no. I ZR 186/17 – right of action of consumer associations

In the first case, the vzbv brought an action against the operator of a social media platform. 

On the social media platform, users were offered free online games in an “app center”. In November 2012, certain notices were displayed in some of these games under the “Play now” button: 

“By clicking “Play Game” above, this application will receive: Your general information (?), Your e-mail address, About you, Your status messages. This application may post on your behalf, including your score and more.” [translated by the authors] 

One of the games also stated that the application was allowed to “post status messages, photos and more on your behalf”. The vzbv saw this as a violation of the data protection requirements of the GDPR, as users were not sufficiently informed about the collection and use of their personal data and no required effective consent was obtained.

The ECJ had already ruled in 2022, following a referral from the BGH in this case, that consumer protection associations can also challenge violations of the GDPR on the basis of consumer and competition law. Upon further referral by the BGH, the ECJ specified on 11 July 2024 that violations of the obligation to provide information pursuant to Art. 12 et seq. GDPR and Section 5a UWG may be sufficient to justify a consumer association's right of action.

In its ruling of 27 March 2025, the Federal Court of Justice confirmed that the infringement of the GDPR can be challenged under competition law. The BGH thus dismissed the appeal by the operator of the social media platform. The defendant's conduct constituted a breach of the data protection information obligation under Art. 12 para. 1 sentence 1, Art. 13 para. 1 lit. c), lit. e) GDPR. At the beginning of the game, the users were not sufficiently informed about the type, scope and purpose of the collection and the legal basis for the processing of their data. On the one hand, this constitutes a breach of competition law in terms of withholding material information pursuant to Section 5a (1) UWG. At the same time, the wording “This application may post status messages, photos and more in your name” did not sufficiently fulfill the information obligations under data protection law and was to be classified as an invalid clause pursuant to Section 3 (1) sentence 1 no. 1 of the Act on Injunctions for Consumer Rights and Other Infringements (“UKlaG”). Such clauses can be prohibited in accordance with Section 1 UKlaG.

Thus, the core element of the ruling is the finding that breaches of data protection information obligations can also constitute breaches of competition law. Pursuant to Section 8 (3) No. 3 UWG and Section 3 (1) No. 1 UKlaG, these can be challenged by consumer action associations before the civil courts.

 

III. BGH, judgments of March 27, 2025, Ref. I ZR 222/19 and I ZR 223/19 - Competitors' right of action 

In the second and third parallel case, two pharmacists had brought an action against a competitor. The latter had sold medicines via an online marketplace and processed the personal data of its customers, including customer names and information on the medicines sold. The customers' explicit consent was not obtained for this.

The two plaintiff pharmacists saw this as a violation of Art. 9 GDPR. According to this, explicit consent pursuant to Art. 9 para. 2 lit. a) GDPR was required, which was not given. 

According to the BGH, such an infringement can be pursued by competitors by means of an action under unfair competition law. The ECJ recently ruled on this matter in its highly regarded judgment of October 4, 2024, Ref.: C-21/23 (“Lindenapotheke”), as a result of a question referred by the BGH. We have already published a comprehensive article on this judgment in GRUR-Prax (GRUR-Prax 2025, 171). 

As a result, it was already decided by the highest court in October last year that the GDPR, in principle, does not stand in the way of a claim for removal and injunctive relief of a data protection breach pursuant to Sections 8 (1), (3) No. 1 in conjunction with 3 (1), 3a UWG.

It was (and still is) unclear which provisions of the GDPR are actually to be regarded as market conduct rules within the meaning of Section 3a UWG. For Art. 9 GDPR, this has now been affirmed by the BGH in the two judgments of March 27, 2025. Art. 9 GDPR not only protects the data subjects' right to informational self-determination, but also serves to protect them as market participants. 

 

IV.        Practical consequences

In future, in addition to the data subjects and data protection supervisory authorities, there will be two further potential claimants with regard to possible GDPR infringements: the competitor and the consumer action associations. In this respect, the UWG and the UKlaG serve as instrument for asserting such claims.

Is there now a threat of a new wave of warning letters? This is doubtful. On the one hand, reimbursement of the warning party's expenses is excluded pursuant to Section 13 (4) No. 2 UWG if the warned party generally employs fewer than 250 employees. Secondly, in the case of a first-time infringement, the possibility of agreeing a contractual penalty in accordance with Section 13a (2) UWG is excluded if the warned party generally employs fewer than 100 employees. It is therefore likely to be difficult for warning law firms (“Abmahnkanzleien”) to turn data protection violations into a business model. 

Now that the German Federal Court of Justice has already classified Art. 9 GDPR as a market conduct rule within the meaning of Section 3a UWG, it remains to be seen which other GDPR provisions will be classified as such by the courts. This will be particularly exciting with regard to Art. 25, 32 GDPR (privacy-by-design, privacy-by-default and technical and/or organizational measures for the protection of personal data).

In any case, companies should take the three decisions of the Federal Court of Justice from March 27, 2025 as an opportunity to thoroughly examine and safeguard their business models both from a data protection law perspective and from the perspective of unfairness. Companies should pay more attention to ensuring that their privacy notices are up to date.

04/01/2025, Jan-Dierk Schaal, Dr. Stefan Peintinger, Henrik Hofmeister, Nikolaus Bertermann

Farewell to pseudo self-employment? Legislator creates transitional regulation on social security obligations in the education sector

The distinction between self-employment and dependent employment as well as the risks associated with possible pseudo self-employment have always caused difficulties for those involved.

Now, as a result of the so-called ‘Herrenberg decision’ of the Federal Social Court (BSG), the legislator has felt compelled to include a new transitional regulation in the Social Security Code (SGB) IV with effect from 1 March 2025 so that educational institutions can employ teachers as freelancers with legal certainty until the end of 2026.

 

Background

In the ‘Herrenberg decision’ (BSG, judgement of 28 June 2022 - B 12 R 3/20 R), the BSG applied the already known criteria for distinguishing self-employment from dependent employment, which had been developed by case law, much more strictly than before. In doing so, the BSG assumed that dependent employment already exists if, among other things, work equipment and premises are provided by the client. This should also apply if there is a high degree of freedom of instruction between the parties to the contractual relationship. As a result, the umbrella organisations of the social insurance system and the courts of lower instances adapted their standards for assessing status to the stricter requirements of the BSG.

Following the BSG's decision, educational institutions that had based their teaching activities on the standards developed over the last few years were suddenly confronted with additional claims for social security contributions that jeopardised their existence.

 

The transitional provision of Section 127 SGB IV (new version)

The transitional regulation of Section 127 SGB IV (new version), which applies from 1 March 2025 to 31 December 2026, now enables educational institutions to employ teachers on a fee basis under certain circumstances with legal certainty, even if the activity would actually be considered dependent employment and would therefore be subject to social security contributions.

The legislator's decision to introduce this transitional regulation is based on the outstanding importance of the education system for society as a whole (BT-Drs. 20/14744, p. 28 f.).

In order for the use of freelancers in the education sector to be legally secure, pursuant to Section 127 (1) SGB IV (new version)

  • the contracting parties must have unanimously assumed a self-employed activity when concluding the contract and
  • the person carrying out the teaching activity must give their consent.

If these conditions are met, the obligation to pay social security contributions will cease to apply by the end of 2026.

If the teacher does not give the required consent, the obligation to pay social security contributions is, as before, dependent on the status assessment - applying the now stricter standard of review.

 

Conclusion

It is true that the transitional regulation relieves the education sector financially to a large extent and enables educational institutions and teachers to adapt the structure of their activity and business models during the transitional period to the stricter requirements of the BSG, the courts of appeal and the umbrella organisations of the social insurance system regarding the existence of self-employment.

However, the legislator fails to recognise that it is not only the education sector that is affected by the impact of the ‘Herrenberg decision’. The judgement is already having an impact on other areas of activity and is also creating a high degree of legal uncertainty and financial burdens in these areas due to high additional claims for social security contributions.

Against this background, the question inevitably arises as to whether the legislator is violating the constitutional principle of equal treatment under Article 3 (1) of the German Basic Law by defining the scope of application so narrowly.

The general reference to the outstanding importance of the education sector for society as a whole (BT-Drs. 20/14744, loc. cit.) is probably not sufficient to justify unequal treatment. After all, the outstanding importance of the education sector for society as a whole is not a unique selling point of the education sector. Other sectors - such as care, construction and transport and logistics - are also of such importance. In times of demographic change, housing shortages and ever-increasing globalisation, it would be foolish to deny that these sectors are of comparable importance to the education sector in society as a whole.

Finally, it is questionable whether a transitional regulation such as Section 127 SGB IV (new version) - whether limited to the education sector or not - is at all the right answer to the question of how to deal with the risks of pseudo self-employment or whether the legislator should not instead come up with a permanent solution for distinguishing self-employment from dependent employment.

Until the legislator addresses the core problem of pseudo self-employment, those affected who are not educational institutions still have no choice but to adapt the design of their activity or business models as quickly as possible to the current, stricter standards of the BSG, the courts of lower instances and the umbrella organisations of social insurance when determining status.

03/27/2025, Bettina-Axenia Bugus-Fahrenhorst

AI Flash: European Commission guidelines on prohibited practices under Art. 5 of the AI Regulation

Since February 2, 2025, the provisions of the AI Regulation on prohibited AI systems, namely those that pose an unacceptable risk, must be observed. 

In February of this year, the European Commission published guidelines on prohibited practices in accordance with Art. 5 of the AI Regulation (AI Regulation). The AI Regulation follows a risk-based approach that defines a comprehensive catalog of prohibited practices in the field of artificial intelligence (Art. 5 AI Regulation). Art. 5 of the AI Regulation regulates a ban on certain AI and sanctions infringements with fines of up to EUR 35 million and, in the case of companies, alternatively up to 7% of the total global annual turnover of the previous financial year. Accordingly, the relevant provisions are likely to be open to interpretation. Nevertheless, the regulation contains a number of undefined legal terms.

The guidelines now address this issue by providing non-binding explanations on definitions, applicability and enforcement options. This article provides a rough overview of the individual prohibitions. For a detailed summary of the guidelines and a detailed explanation of the provisions of Art. 5 of the AI Regulation, we recommend our white paper, which will be available for download shortly.

 

Art. 5 para. 1 a) AI Regulation: AI systems that influence persons outside their awareness or intentionally use manipulative or deceptive techniques 

According to this provision, it is prohibited to exert a subliminal influence outside a person's awareness or to intentionally manipulate them using AI. The guidelines state that this primarily refers to exerting a significant influence on a person's ability to make decisions without them being consciously aware of it and causing or being likely to cause material or immaterial harm. Manipulative techniques are therefore subliminal techniques that escape a person's awareness, targeted manipulative and deceptive techniques. Accordingly, the person concerned makes a decision based on coercion, manipulation or deception that they would not normally have made. It is also necessary for there to be a causal link between the behavior and the manipulation.

 

Art. 5 para. 1 b) of the AI Regulation: AI systems that exploit the vulnerability or vulnerability of a natural person

Closely related to the above prohibition is the prohibition on using AI systems to exploit the vulnerability or vulnerability of individuals. In this context, older people, children, people unable to work and people in special socio-economic situations, such as extreme poverty, are considered to be particularly vulnerable. As an example, the guidelines refer to digital toys that use targeted manipulative mechanisms to encourage excessive consumption or risky behavior. Here, too, a sufficient causal link and material or immaterial harm is required for the ban to apply.

With the two above-mentioned prohibitions, it is important to distinguish between unlawful manipulation and legitimate persuasion. The dividing line should be transparent persuasion, including the provision of factual information and respect for the individual's freedom of choice.

 

Art. 5 para. 1 c) of the AI Regulation: AI systems for the assessment or classification of persons on the basis of their social behavior or personal characteristics

AI systems that make a social assessment of individuals on the basis of data on their social behavior or personal characteristics and thereby disadvantage or disadvantage them in a social context unrelated to the data collection are therefore prohibited. Furthermore, the effect must be disproportionate and unjustified with regard to the scope of the social behavior. The relevant data for this prohibition is usually behavior-related, meaning that it generally includes actions, behavior, habits within society or information about gender, ethnicity, family situation, etc. Here too, a causal link between the assessment and disadvantage and the occurrence of a disadvantage is important.

 

Art. 5 para. 1 d) of the AI Regulation: Carrying out risk assessments of a person with regard to the commission of a criminal offense 

Art. 5 para. 1 d) of the AI Regulation regulates the prohibition of AI systems for carrying out risk assessments with regard to the commission of a criminal offense. This concerns an individual risk assessment and prediction of criminal offenses, exclusively on the basis of profiling or the assessment of personality traits and characteristics. A risk assessment for the commission of administrative offenses should not be prohibited in any case, as its prosecution is less invasive of fundamental rights. The AI in question works by recognizing and linking patterns in historical data and generating risk values for prediction on this basis. Parallel to the ban on automated decision-making, it is not relevant here if the AI is only used to support the assessment. 

 

Art. 5 para. 1 e) AI Regulation: Creation of a database for untargeted facial recognition 

This prohibition covers the generation of a database for untargeted facial recognition. The specific act of biometric identification is regulated in provisions below. In this context, untargeted means that data is collected indiscriminately, without information on a specific individual or a definable group of people.

 

Art. 5 para. 1 f) AI Regulation: AI systems for inferring emotions in the workplace and in educational institutions 

This provision prohibits AI systems that can recognize and infer emotions in the workplace and in educational institutions. The main reason for this is that emotion recognition is often criticized for its effectiveness, accuracy and limited generalizability. The AI systems in this case draw conclusions about the emotion of a natural person by comparing an emotion that was previously programmed into the emotion recognition system by processing biometric data. The restriction to the workplace or educational institution relates to the particular imbalance of power between individuals that prevails here.

 

Art. 5 para. 1 g) AI Regulation: Systems for biometric categorization

The AI Regulation also prohibits AI systems that can carry out biometric categorization in order to draw conclusions about sensitive characteristics such as ethnicity, political opinion, religious or philosophical beliefs, sexual orientation, etc. The process typically works by using biometric data to determine whether the data subject belongs to a group with certain predefined characteristics. The process typically works by using the biometric data to determine whether the person concerned belongs to a group with certain predefined characteristics. It is not the identification of a person that is relevant for the ban, but only the resulting assignment to a certain category.

 

Art. 5(1)(h) of the AI Regulation: real-time biometric remote identification in publicly accessible spaces for law enforcement purposes

Finally, the prohibition of real-time biometric remote identification in publicly accessible areas for law enforcement purposes should also be addressed. Systems that are used to identify people remotely - without any significant time delay - by comparing their biometric data with the biometric data stored in a reference database are therefore covered by this ban. This is justified by the resulting feeling of constant surveillance and the massive infringement of fundamental rights. In addition, the limited verifiability and lack of possibility to correct these systems entail considerable risks. The provision provides for three cases in which the security needs of society outweigh the associated risks and the procedure should therefore be permitted.

 

The guidelines therefore help with the definitions and application of the prohibition provisions. They not only provide interpretation aids, but also explain the interaction of the AI Regulation with other Union provisions.

03/24/2025, Dr. Oliver Hornung, Fabian Bauer, Dr. Christoph Krück, Moritz Mehner, Jan-Dierk Schaal

SKW Schwarz secures a victory for Dr. Eckart von Hirschhausen against providers before the Higher Regional Court of Frankfurt

Host provider must delete semantically identical deep fakes – a legal milestone

SKW Schwarz has achieved a milestone in the fight against deep fakes on behalf of the renowned physician and TV moderator Dr. Eckart von Hirschhausen at the Higher Regional Court (OLG) in Frankfurt am Main. In an expedited proceeding, the OLG ruled that a provider who has been notified of an infringement, warned, or sued must proactively and actively address and delete other semantically identical infringements on its platform.

“Semantically identical,” the court stated in its now-published decision, refers to posts with identical text and image, but also those with different formatting (resolution, size/cropping, use of color filters, framing), including mere changes in typographic symbols or the addition of elements such as so-called captions that do not alter the overall meaning.

With the decision, the OLG Frankfurt continues its case law on the “Künast Meme,” while also taking into account the recently enacted Digital Services Act, and for the first time, formulates the so-called “active duty to monitor.”

“The active monitoring duties of the providers are now clearly, concretely, and predictably defined with this decision,” emphasizes Götz Schneider-Rothhaar, partner at SKW Schwarz, who represented Dr. Eckart von Hirschhausen together with counsel Fabian Bauer in the case. The OLG made it clear in its decision that the monitoring obligations imposed on the service provider are reasonable and that the provider is technically capable of implementing this monitoring. The court further noted that the service provider breaches its duty if it does not immediately, upon becoming aware of a concrete infringement, fulfill its obligation to identify all identical and essentially similar videos on its platform.

“This decision is a fantastic milestone and breakthrough, and it will most likely have far-reaching consequences for many celebrities and other rights holders across all creative industries,” says Götz Schneider-Rothhaar. “If a service provider is informed in the future about a deep fake or other potential infringements, they can be warned not only at cost for semantically identical content that they have not proactively deleted from their platform, but the affected parties can also directly sue, claim damages, and, if necessary, even seek compensation.”

According to Götz Schneider-Rothhaar, platforms will have to react. “Because there are significantly more opportunities to hold service providers accountable for infringements in a more concrete manner than before.”

The decision issued in the expedited proceedings is not subject to appeal.

Higher Regional Court of Frankfurt am Main, Decision of March 4, 2025, Case No. 16 W 10/25
(preceded by the Frankfurt am Main Regional Court decision of November 29, 2024, Case No. 2-03 O 393/24)

03/19/2025, Götz Schneider-Rothhaar, Fabian Bauer

KI-Flash: DeepSeek AI - Navigating Legal & Cross-Cultural Challenges

Just published in the New York Law Journal: William A. Tanenbaum and Dr. Matthias Orthwein, LL. M. (Boston) examine the Chinese AI model DeepSeek's dual-edged implications for international business.

Their analysis covers:

  • Impact of the Thomson Reuters fair use ruling on AI training data
  • DeepSeek as insight tool for Chinese business perspectives
  • Data confidentiality risks and corporate espionage concerns
  • GDPR compliance challenges facing European operations
  • Actionable guidance for corporate AI governance

Essential reading for cross-border businesses and legal professionals navigating the evolving AI landscape.

Read the full article here.

03/19/2025, Dr. Matthias Orthwein

Lexology European Awards 2025: SKW Schwarz is Law Firm of the Year in Telecoms, Media & Entertainment

SKW Schwarz has been named Law Firm of the Year in Telecoms, Media & Entertainment at the Lexology European Awards 2025. The awards ceremony took place in London on March 13, 2025 and brought together over 200 legal professionals from across Europe to recognize excellence in the industry.

The selection is based on the Lexology Index (formerly Who's Who Legal), Client Choice and independent research. The assessment process includes nominations, peer reviews and client feedback.

This award underlines SKW Schwarz's position as one of the leading law firms in the Media & Entertainment sector and reflects our commitment to professional excellence and innovation. It confirms the quality of our daily work and the added value we offer our clients.

We congratulate all the winners of the Lexology European Awards 2025 and thank our clients for their trust and Lexology for this recognition.

03/18/2025

We recycle ourselves! - OLG Frankfurt a.M. on mislea-ding advertising of an ecological cleaning agent

The decision of the Federal Court of Justice (BGH) in the ‘climate-neutral’ case on the competition law requirements for advertising with ambiguous, environmentally-related terms is now being implemented by the courts of first instance. After the Higher Regional Court of Cologne commented on CO2-neutral travel, the Higher Regional Court of Frankfurt a.M. now also considers ambiguous advertising statements on the environmental compatibility of recycling material from the yellow bag, on the defendant's recycling efforts and on climate neutrality to be misleading and also applies the standards to web links to further information (Higher Regional Court of Frankfurt a. M. (6th Civil Senate), judgement of 12/19/2024 - 6 U 33/24).

 

Advertising statements on pollutant content and carbon footprint
The dispute between two manufacturers of ecological laundry detergents and cleaning products before the Frankfurt Higher Regional Court centred on advertising statements made by the defendant about its dishwasher detergent bottles. Specifically, it concerned the statements that these were the ‘first recycled bottles’ from the defendant itself, that it would recycle them itself, and that ‘recycled PE’ from the yellow bag could always contain residues of synthetic fragrances, heavy metals, pesticides, etc.

In addition, the defendant used the ‘climate neutral’ logo of the company ClimatePartners on its homepage, behind which a website with further information could be called up by clicking on it. The plaintiff considered the advertising claims and the presentation of the information on ‘climate neutrality’ to be misleading.

 

Ambiguous environmental term ‘recycled PE’ not sufficiently explained

The Higher Regional Court of Frankfurt a.M. has now largely ruled in favour of the plaintiff. The term ‘recycled PE’ was ambiguous in the specific context. It could either refer to already recycled polyethylene or the source material or plastic (‘PE’) from the Yellow Bag. If, as the defendant had to accept, the statement was understood in relation to the already finished recyclate, this would be misleading, because this material would in any case not harbour a higher risk of containing heavy metals and/or pesticides if the starting material was sufficiently processed as usual by the plaintiff and in accordance with the state of the art. The defendant should have clearly and unambiguously resolved this ambiguity in the advertising itself.

 

Environmental contribution must be more than just symbolic

The court also considers the defendant's statement that it recycles itself to be misleading because consumers would expect that a significant return system already exists and that the specific product depicted has outer packaging that consists at least to a significant extent of recycled material. However, the defendant had set up a maximum of 150 return boxes in small and smaller organic markets and the proportion of self-recycled bottles was therefore well below 1%. In addition, a large number of the new bottles advertised were made entirely from virgin plastic.

 

Clear references to links to further information necessary

The court also commented on the specific presentation of further information on climate neutrality by means of a link behind the climate neutral logo, which was not relevant to the decision. Although a link is permissible in principle, it must be sufficiently clear and unambiguous. However, the public would not expect or regularly simply find out that a corresponding link was hidden behind the logo. A clear reference to the link is therefore necessary.

 

Conclusion: Requirements for environmental claims further specified

The Higher Regional Court of Frankfurt a.M. continues the case law of the Federal Court of Justice on ‘climate neutral’ and shows that there is a fundamental risk that environmental terms, in this case ‘recycled PE’, have more than one meaning. This ambiguity must therefore be taken into account in environmental advertising and clarified on the spot. Anyone using a link to further information must make sufficient reference to this.

03/12/2025, Yves Heuser

SKW Schwarz and Dr. Daniel Kendziur nominated for Managing IP EMEA Awards 2025

SKW Schwarz receives nominations in the Trademark and Copyright & Design categories. Attorney Dr. Daniel Kendziur is nominated in the category Soft IP Practitioner of the Year. These nominations reflect our leading position in IP law and underline our ongoing commitment to effectively protecting and defending the interests of our clients.

 

The prestigious Managing IP Awards have been recognizing outstanding achievements in the field of IP law in over 50 jurisdictions for 20 years. The research and selection process is based on an independent analysis by experts who collect extensive data from law firms, IP practitioners and their clients by means of interviews, emails and online surveys. Publicly available information such as court and IP office files are also included in order to precisely assess the significance and relevance of the individual cases.

 

The ceremony will take place on April 10 at the Royal Lancaster in London. We would like to thank our clients for their continued trust and look forward to the announcement of the Managing IP EMEA Awards 2025.

 

03/11/2025, Dr. Daniel Kendziur

The Medical Cannabis Act at a Glance: Legalization with conditions

The new Cannabis Act (CanG) came into force in Germany on April 1, 2024. Article 1 of the CanG contains the Consumer Cannabis Act (KCanG), which regulates the handling of cannabis for personal use, while Article 2 contains the Medical Cannabis Act (MedCanG), governing the supply of cannabis for medical and scientific purposes. 

As a result, cannabis has been removed from the scope of the Narcotic Drugs Act. The reclassification of cannabis from a narcotic drug to a regulated substance and its partial decriminalization mark a significant shift in German drug policy. The goal is to curb the black market and reduce health risks, such as contamination.

While the handling of cannabis was previously subject to a Europe-wide tender by the Federal Institute for Drugs and Medical Devices (BfArM), authorization is now granted through a licensing procedure. This is intended to create more flexible market conditions and expand production capacity in Germany.

 

Permit for the handling of medicinal cannabis under Section 4(1) MedCanG

Companies that intend to cultivate, produce, trade, import, export, dispense, retail, otherwise place on the market, obtain, or acquire cannabis for medical or medical-scientific purposes require a permit under Section 4 MedCanG. This permit is issued by the BfArM upon application.

Exceptions apply to the sale of medical cannabis by doctors and pharmacies, which fall under the supervision of the respective state authorities.

The costs incurred are regulated by a special fee ordinance and generally fall within the five-digit range (see BMGBGebV Chapter 15). Licenses issued under the BtMG before the CanG came into force remain valid. Pharmaceutical wholesalers holding a permit under Section 3 BtMG for domestic trade will also be granted a permit under Section 4 MedCanG. However, an application is required, though it does not need to specify the type of cannabis, as a full permit has already been issued.

 

Application and scope of the permit

The permit application must include details of the responsible person and supporting documents, such as a certificate of good conduct and proof of the required expertise in handling cannabis. The required proof of expertise is governed by Section 7(3) MedCanG. Depending on the intended activities, applicants must provide evidence of a medical license to practice as a pharmacist, a degree in biology, chemistry, pharmacy, human or veterinary medicine, or proof of training as a wholesale and foreign trade clerk, along with confirmation of at least one year of experience in the pharmaceutical trade.

The permit includes details about the location of the business premises, whether handling for medical or medical-scientific purposes is permitted, the specific activities allowed, and the type of cannabis with which these activities may be carried out. It should be noted that for cultivation, multiple business premises of a company can only be combined under a single permit if they are located in neighboring municipalities.

It is therefore important for companies to apply for a permit under Section 4 MedCanG and to comply with the documentation requirements (e.g., for business premises or the type of cannabis). Violations may result in fines of up to EUR 30,000.

 

Storage of cannabis products

According to Section 21 MedCanG, companies must take appropriate measures and safety precautions, such as storing cannabis in sealed containers or rooms. Logistics companies that transport, store, or hold cannabis on behalf of authorized participants do not require a permit under Section 4 MedCanG, but the shipments may not be stored for longer than necessary for onward transport. If longer storage is required, a separate permit must be obtained.

 

Distribution of medicinal cannabis

Medicinal cannabis may only be dispensed by pharmacies with a doctor's prescription, according to Section 3(2) MedCanG. Pharmacies are not subject to the licensing requirement (see Section 5(1) No. 1 MedCanG), as they are already regulated and monitored under pharmaceutical and pharmacy laws.

According to Section 3(1) MedCanG, medicinal cannabis may only be prescribed by doctors or administered as part of a medical treatment and is subject to the general requirements for prescription-only medicines. The prescription does not have to be linked to a specific diagnosis; rather, the doctor alone decides whether treatment with medicinal cannabis is necessary. Private prescriptions can be issued for self-payers, or reimbursable prescriptions can be issued through statutory health insurance in accordance with social insurance regulations.

Accordingly, seriously ill health insurance policyholders are entitled to a supply of medicinal cannabis if no generally recognized treatment is available or cannot be used, based on the doctor's decision, and there is a (not entirely implausible) prospect of a positive effect. This must be assessed on a case-by-case basis. Until now, the prescription had to be approved by the health insurance fund. Since October 2024, exceptions have been made for doctors holding certain additional qualifications; initial approval by the health insurance fund is no longer required in these cases. This aims to reduce administrative hurdles and prevent delays, enabling patients to obtain cannabis for medical purposes more easily and quickly. However, the dispensing of medicinal cannabis for consumption purposes remains excluded.

 

Excursus: Telemedicine

Telemedical treatment refers to the prescription of medicines through remote treatment using audiovisual communication methods or video consultations. Section 3(1) MedCanG does not provide further detailed regulations on this matter; therefore, a physical separation between doctor and patient is not excluded and may be permissible depending on the individual case.

Caution should be exercised with business models where operators of an online platform offer cannabis while simultaneously connecting doctors and a mail-order pharmacy to the platform. Typically, after completing a questionnaire, the user is either offered a video consultation or a prescription for medicinal cannabis is immediately issued after submitting the data. This prescription is then forwarded to the connected mail-order pharmacy, which sends the medicinal cannabis to the patient.

It is doubtful whether the evaluation of a questionnaire without personal contact can truly be regarded as medical treatment. If there is no proper prescription, this does not legitimize the dispensing of medicinal cannabis. In such cases, both doctors and pharmacists may be liable to prosecution under Section 25(1) No. 2, (4) sentence 2 No. 1 MedCanG, while the operators of the platform may generally be liable for incitement. However, if a video consultation takes place, these risks do not typically arise, as it can be considered medical treatment, although this still depends on the individual case.

03/05/2025, Margret Knitter

SKW Schwarz strengthens its Public Sector and Real Estate divisions with partner and counsel in Berlin

Berlin, February 28th, 2025

SKW Schwarz is once again strengthening its Berlin office: Christoph Conrad will join as a partner from Leinemann on the 1st of March 2025. He will work at SKW Schwarz in the Public Sector and Real Estate departments. Counsel Annett Hartwecker, who already joined SKW Schwarz in January, will become part of Christoph Conrad's team, also from Leinemann.

Christoph Conrad specialises in construction and architectural law and administrative law. He specialises in public construction and planning law as well as environmental and nature conservation law. He advises public clients as well as private investors on development plan and planning permission procedures and represents them in judicial review proceedings. In construction and architectural law, he advises and represents project developers, builders, property developers and construction companies both in contractual matters and in the enforcement and defence of claims. Christoph Conrad began his career as a legal adviser at Planungsgesellschaft Bahnbau Deutsche Einheit mbH, where he was responsible for the planning approval procedures for two German Unity rail transport projects. In 1995, he founded a supra-local law firm with other partners. From 2003 to 2007, he was a partner at the Berlin office of Heuking Kühn Lüer Wojtek and has been a partner at Leinemann Partner since 2007.

Annett Hartwecker advises both public clients and bidders on the implementation of and participation in procurement procedures in the areas of construction, supplies and services. She advises clients on the preparation of tender documents, supports them in the strategic planning and implementation of complex tenders and represents them in public procurement review proceedings.

‘With Christoph Conrad and Annett Hartwecker, we have gained two very experienced colleagues who will be an excellent addition to our team with their expertise, particularly at the interface between the real estate and public sector areas. We are very much looking forward to working with them,’ says Partner and Head of Real Estate Dr Klaus Jankowski.

Christoph Conrad says ‘I am very pleased to be able to support the two teams at SKW in a pleasant, collegial environment.’

The Real Estate and Public Sector departments at SKW Schwarz have a total of 15 lawyers at the Berlin, Hamburg, Frankfurt and Munich offices, including eight partners.

02/28/2025, Christoph Conrad, Annett Hartwecker

Luchterhand Verlag achieves stage victory in court with SKW Schwarz: “Innerstädtischer Tod” may continue to be distributed for the time being

The press chamber of the Hamburg Regional Court has rejected the application by the Berlin gallery owner couple König for an injunction against the novel “Innerstädtischer Tod” by Christoph Peters.

Johann and Lena König had applied to the court for an injunction against the distribution of the novel because they believed they recognized themselves in the fictional gallery owner character Konrad Raspe and his wife. They claimed that their personal rights had been violated.

The decision means that distribution of the book by Luchterhand Literaturverlag, a member of the Random House publishing group, remains permitted for the time being.

The court followed SKW Schwarz's argument that artistic freedom outweighed the asserted personal rights in this case.

The decision is not yet final.

02/27/2025, Dr. Konstantin Wegner, Johanna Weiß

SKW Schwarz advises Synapsion on the sale of a majority stake in bb-net media to Econocom

Munich, February 17, 2025

SKW Schwarz has advised Synapsion GmbH on the sale of its majority stake in bb-net media GmbH to Econocom Deutschland GmbH.

Econocom acquires 80 percent of the shares in bb-net media from the founder Michael Bleicher and the previous CEO Marco Kuhn. bb-net media GmbH will remain an independent company and will continue to be managed by Marco Kuhn as CEO. Michael Bleicher and his investment company Synapsion will remain shareholders.

bb-net media GmbH, founded in 1997 and based in Schweinfurt, is the market leader for IT refurbishment.

Econocom Deutschland, headquartered in Frankfurt am Main, is part of the internationally active Econocom Group and has been supporting medium-sized companies, corporations and the public sector in the field of IT procurement, financing and services for almost 40 years.

Consultant Synapsion GmbH: 
SKW Schwarz, Munich: Dr. Martin Böttger (Partner, Corporate M&A, lead), Christine Wärl (Associate, Corporate M&A), Dr. Johann Heyde (Partner, Media Law)

02/26/2025, Dr. Martin Böttger, Christine Wärl, Dr. Johann Heyde

SKW Schwarz recognized in Chambers Germany 2025 for excellence in media, IT, IP and M&A

The British specialist publisher Chambers and Partners has published the Chambers Germany 2025 ranking. We are proud of the renewed recognition in our core areas, which further consolidates our position as one of the leading law firms in Germany.

Outstanding expertise in TMT: Media

SKW Schwarz was particularly highlighted in the area of TMT: Media, confirming its top position in Band 1/4. Our firm is characterized by comprehensive expertise in media law issues - from film production and licensing agreements to music law and gaming. Our ability to resolve complex media disputes and our in-depth understanding of the industry are highly valued by our clients.

Recognition in other core areas

SKW Schwarz was also ranked in the following areas:

  • Corporate/M&A: Mid-Market in Band 6/6
  • Intellectual Property: Trade Mark & Unfair Competition in Band 4/5
  • TMT: Information Technology in Band 3/4

Individual awards for leading lawyers

In addition to the firm, one female lawyer and four male lawyers were also recognized for their outstanding achievements in their areas of expertise:

  • Dr. Rembert Niebel in Intellectual Property with Band 5/5
  • Sandra Sophia Redeker in the field of Intellectual Property with Band 5/5
  • Prof. Dr. Mathias Schwarz, recognized as Senior Statespeople in the field of TMT: Media, for his many years of formative expertise
  • Dr. Andreas Peschel-Mehner in the field of TMT: Media with volume 4/4
  • Dr. Martin Böttger, recognized as a Notable Practitioner in the field of Corporate/M&A

Since 1989, Chambers and Partners has conducted thousands of interviews each year with a team of 130 editors to list the leading lawyers and law firms in 175 countries.

02/24/2025, Dr. Martin Böttger, Sandra Sophia Redeker, Prof. Dr. Mathias Schwarz, Dr. Rembert Niebel, Dr. Andreas Peschel-Mehner

The Legal 500 Germany Ranking 2025: SKW Schwarz once again among the top tier law firms

The current Legal 500 Ranking 2025 has been published. The law firm is recommended in a total of 13 practice areas. SKW Schwarz's inclusion in the Private Clients and Non-Profits category is particularly pleasing. We are also pleased about the firm's renewed top-tier rankings in the areas of media/entertainment, media/digital content and media/gaming.

We congratulate all lawyers recommended in the ranking:

IT-Transactions and Outsourcing:
Dr. Daniel Meßmer, Dr. Matthias Orthwein
“Daniel Meßmer acts as practice group head and is particularly in demand for IT law issues relating to contract drafting and negotiation. Data protection in the context of innovative business models is one of Matthias Orthwein's core areas.”

Trademark law:
Dr. Oliver Stöckel, Sandra Sophia Redeker
“The team is headed by Oliver Stöckel, who is primarily active in the life sciences and healthcare sectors and advises on the entire spectrum of soft IP. In addition to disputes, Sandra Sophia Redeker's core areas of expertise include the development of brand and design portfolios and acts at the interface with competition law.”

Competition law:
Dr. Markus Brock, Dr. Magnus Hirsch, Dr. Oliver Stöckel
“Oliver Stöckel is particularly active in the life sciences sector and heads the practice group, in which IP lawyers Markus Brock and Magnus Hirsch are among the other core contacts.”

Media – Entertainment:
Dr. Johann Heyde, Moritz Mehner, Dr. Andreas Peschel-Mehner
“Practice head Johann Heyde primarily advises film and television clients on the financing of their productions, copyright and personality rights issues and the distribution of their media. He also advises clients on publishing and music law. Andreas Peschel-Mehner offers further expertise in the area of film financing and is also frequently mandated by video-on-demand platforms and other digital clients on issues relating to usage concepts, the protection of minors and age verification, while Moritz Mehner, partner since January 2024, is an expert in e-sports law.”

Media – press & publishing law:
Dr. Johann Heyde, Dr. Konstantin Wegner
“Konstantin Wegner focuses on advising publishers on the risk of legal challenges to upcoming publications and represents clients in court when lawsuits are filed. He heads the group together with Johann Heyde, a specialist in the film and television sector.”

Public law – public procurement law:
René M. Kieselmann, Dr. Karin Deichmann, Dr. Mathias Pajunk
“The expertise in the latter area was recently demonstrated in a successful case before the Higher Regional Court of Thuringia, which concerned a sector exception in the awarding of rescue services; here, practice group head René Kieselmann often acts as lead counsel.”

Client reference:
“The strength of the team around René Kieselmann, Mathias Pajunk and Karin Deichmann lies in their willingness and ability to penetrate and analyze the client's interests as well as the particular characteristics of the respective business model.”

 

Private clients and non-profits:
Dr Gerd Seeliger, Dr Christoph Philipp
“SKW Schwarz complements its advisory capacities in strategic succession planning, which routinely consists of corporate, inheritance, tax and foundation law matters as well as contentious issues, with family law expertise. Wealthy private individuals, foundations and family companies rely on these interface competences in both national and cross-border contexts. Gerd Seeliger (inheritance and inheritance tax law, reorganisations and transformations, succession planning) heads the team. In November 2024, a three-person team led by Christoph Philipp (asset structuring as well as national and international succession planning) joined POELLATH.”

Commercial Litigation:
Martin Himme, Franziska Ladiges, Dr. Ulrich Reber, Arndt Tetzlaff
“Practice group head Arndt Tetzlaff is the central point of contact, in particular for companies, banks and insurance companies in directors' and officers' liability and product liability cases in international commercial law as well as in the area of post-M&A litigation. Other practice areas include civil law and insolvency-related disputes, which are the focus of Ulrich Reber, who is experienced in international commercial law. Franziska Ladiges focuses on disputes in IT and data protection law, while counsel Martin Himme has expertise in contract law disputes, product liability proceedings and damages litigation.”

Special congratulations go to Dr Daniel Meßmer and Moritz Mehner for being nominated in the ‘Next Generation Partner’ category.

The Legal 500 Germany provides a comprehensive overview of around 400 commercial law firms and 2,700 lawyers in Germany. The evaluation is based on extensive research, law firm interviews and client surveys.

02/14/2025, Dr. Daniel Meßmer, Dr. Matthias Orthwein, Dr. Oliver Stöckel, Sandra Sophia Redeker, Dr. Markus Brock, Dr. Magnus Hirsch, Dr. Johann Heyde, Moritz Mehner, Dr. Andreas Peschel-Mehner, Dr. Konstantin Wegner

Chambers Global 2025 - Award in the categories Corporate/M&A and Intellectual Property

SKW Schwarz has been recognized by the British specialist publisher Chambers and Partners in the current Chambers Global 2025 ranking. We are delighted to have been recognized in the Corporate/M&A: Mid-Market category and again in the Intellectual Property: Trade Mark & Unfair Competition category.

Chambers Global lists the two partners Sandra Sophia Redeker and Dr. Rembert Niebel among the leading names in Intellectual Property: Trade Mark & Unfair Competition.

The British specialist publisher Chambers and Partners has been listing the leading lawyers and law firms in 175 countries since 1989. According to its own information, 130 editors conduct thousands of interviews with lawyers and clients every year in order to identify the best law firms and lawyers.

02/14/2025, Dr. Rembert Niebel, Sandra Sophia Redeker

KI-Flash: European Commission guidelines on the concept of an AI system

After reporting on the market surveillance of AI in our last AI Flash, we would like to continue to provide you with legal impulses at regular intervals. 

 

Today's topic: European Commission guidelines on the concept of an AI system

 

On February 6, 2025, the European Commission published guidelines on the definition of AI systems, among other things. In addition, guidelines on prohibited AI practices under Art. 5 of the AI Regulation were also published, which will be dealt with in a separate AI Flash in the near future. 

As expressly stated in the accompanying press release from the European Commission, the guidelines are not binding, but are intended to facilitate the effective application of the provisions of the AI Regulation. A final classification is therefore naturally reserved for a judicial decision by the European Court of Justice (ECJ), which is why further developments should always be closely monitored.

The guidelines are based on the provisions of Art. 96 para. 1 lit. f) of the AI Regulation, according to which the European Commission is obliged to specify the definition of the term “AI system” for practical application. Even though the guidelines have so far only been approved but not formally adopted, the statement contains a large number of welcome examples and aids for application. 

The following AI Flash is intended to highlight the key messages of the publication and conclude with some practical tips for providers and operators of AI systems.

 

 

The definition of an AI system

According to Art. 3 para. 1 of the AI Regulation, an AI system is

“a machine-based system that is designed to operate with varying degrees of autonomy and that can be adaptive once operational and that derives outputs such as predictions, content, recommendations or decisions that can affect physical or virtual environments from inputs received for explicit or implicit goals.”

The European Commission correctly points out that the definition is based on a total of 7 components, some of which overlap or are mutually dependent. An AI system is classified according to the following characteristics:

  • Machine-supported system (1)
  • Degree of autonomy (2)
  • Adaptability (3)
  • Goals of the AI system (4)
  • Ability to draw conclusions (5)
  • Generation of specific outputs (6)
  • Interaction with the environment (7)

These 7 components are further specified in the European Commission's guidelines and provided with corresponding examples. In the following, the individual characteristics of the definition will be examined in detail and also provided with further examples.

 

(1) Machine-based system
The term “machine-supported” initially refers to the fact that AI systems are developed with machines and operated accordingly. The term “machine” can be understood to include both the hardware and software components that enable the AI system to function at all. The hardware components refer to the physical elements of the machine, such as processing units, memories, storage devices, network units and input and output interfaces that provide the infrastructure for calculations. The software components, on the other hand, comprise computer code, Instructions, programs, operating systems and applications that control the processing of data and the execution of tasks by the hardware. 

The requirement “machine-supported” therefore ultimately only underlines the fact that AI systems must be computer-supported and based on machine operations. The term AI system therefore - unsurprisingly - covers a wide range of computing systems.

 

(2) Degree of autonomy
The second element of the definition states that AI systems must work with varying degrees of autonomy. This means that they function independently of human intervention to a certain degree. The degree of autonomy can vary from manual operation to complete independence from human intervention. According to the European Commission, “human involvement” and “human intervention” are at the heart of the concept of autonomy.

If a system is designed in such a way that it is able to work completely independently without any human involvement or intervention, it is an autonomous (AI) system. Systems that only perform manually operated functions, on the other hand, should be excluded from the definition of an AI system. Human involvement can take place both directly and indirectly, for example through manual controls or automated, monitoring. In contrast, a system that independently generates output based on manually entered data is considered partially autonomous. 

 

(3) Adaptability 
The third element of the definition in Art. 3 para. 1 of the AI Regulation states that an AI system “may” exhibit adaptability after its introduction. Autonomy and adaptability are different but closely related concepts. Adaptability refers to the self-learning capabilities of a system that enable it to change its behavior during use. This allows the system to produce different results, even with the same inputs. The ability of a system to learn automatically and discover new patterns is an optional, but not a mandatory, prerequisite for classification as an AI system.

 

(4) Goals of the AI system
The fourth element of the definition refers to the goals of the AI system, which can be defined either explicitly or implicitly. Explicit goals are clearly formulated goals that are coded directly in the system by the developer, such as the optimization of a cost function or a probability. Implicit goals, on the other hand, result from the behavior of the system or the assumptions underlying the system and can be derived from the training data or the interaction of the AI system with its environment. 

Recital 12 of the AI Regulation clarifies that the objectives of an AI system may differ from its intended purpose. The objectives of an AI system are internal to the system and relate to the tasks and their results that the system is intended to perform. The intended purpose, on the other hand, is external and includes the context in which the system is used and its operation. According to the European Commission, a virtual AI assistance system in a company can have the goal of answering user questions precisely, for example, while the intended purpose is to support a specific department in its tasks.

 

(5) Conclusions
The fifth - and probably most difficult to define - element of an AI system is that it must be able to deduce from the respective inputs how it can generate outputs. An essential feature of AI systems is therefore their ability to draw conclusions, which distinguishes them significantly from conventional software systems. Recital 12 of the AI Regulation expressly clarifies that AI systems must be different from conventional software systems and that this should not include systems that are based exclusively on rules defined by natural persons for the automated execution of processes.

Cases in which the classification as an AI system must be affirmed:

Techniques that enable reasoning and therefore fall under the definition of an AI system include machine learning approaches such as supervised, unsupervised, self-supervised and reinforcement learning.

  • In supervised learning, the system is trained with labeled data in order to recognize patterns and classify new data. 
    Example: An AI-supported email spam detection system that is previously trained with labeled data (“spam” or “not spam”) in order to classify “new” emails accordingly.
  • In unsupervised learning, the system discovers patterns in previously unlabeled data in order to discover structures or relationships in data using various techniques (clustering, dimensionality reduction or anomaly detection).
    Example: AI systems in pharmaceutical companies that are used for drug discovery.
  • Self-supervised learning is a subcategory of unsupervised learning in which the system uses unlabeled data in order to subsequently (then supervised) independently label it and learn from it. 
    Example: An image recognition system that learns to recognize objects by predicting missing pixels in an image.
  • Reinforcement learning is based on a “reward function” in which the system learns through trial and error and refines its strategy in the process.
    Example: An AI-supported robotic arm that can perform tasks such as grasping objects.
  • Deep learning is a sub-area of machine learning that uses artificial neural networks (ANN) to learn features from raw data, whereby very large amounts of data are regularly required for training.
    Example: Complex AI systems that are capable of recognizing and reproducing speech and communicating with natural persons, such as ChatGPT, Micro-soft Copilot, etc.

In addition to machine learning approaches, there are also logic- and knowledge-based approaches that are based on coded knowledge or symbolic representations. These systems learn from knowledge that has been encoded by human experts and draw logical conclusions using deductive or inductive methods. Examples include expert systems based on predefined rules and ontologies, and classical language processing models that use grammatical knowledge and logical semantics to extract meaning from texts.

Cases in which the classification as an AI system is to be denied:

Recital 12 of the AI Regulation clarifies that the definition of AI system should not include systems that are based exclusively on rules established by natural persons for the automatic execution of operations. Some systems that are able to draw conclusions do not fall under the definition of AI systems, as they are only able to analyze patterns and adapt their output independently to a limited extent.

Systems for improving mathematical optimization or for accelerating established optimization methods, such as linear or logistic regression, do not fall under the AI definition, as they only perform basic data processing. Examples are systems that use machine learning to improve optimization algorithms or physics-based systems that use machine learning to accelerate physical simulations.

Simple data processing systems that follow predefined instructions and do not use AI techniques such as machine learning or logic-based inference also do not fall under the AI definition. This includes database management systems that sort or filter data, as well as software for descriptive analysis, hypothesis testing and visualization.

Systems based on classic heuristics that find solutions to problems using rule-based approaches or pattern recognition also do not fall under the definition of AI. One example is a chess program that uses heuristic evaluation functions without learning from data. Simple prediction systems that operate through basic statistical learning rules, such as predicting stock prices through historical averages, are also not classified as AI systems. These systems provide basic predictions, but their performance does not match the complexity of modern machine learning models.

In summary, systems that only use basic data processing or fixed rules without data-driven “learning” are therefore not covered by the definition of AI systems under the AI Regulation.

 

(6) Generating specific outputs
The sixth element of the definition of an AI system states that the system must be able to produce outputs such as predictions, content, recommendations or decisions. 

  • Predictions are estimates of unknown values from known inputs and require the least human intervention. AI systems that use machine learning can uncover complex patterns in data and make accurate predictions in dynamic environments. Examples include self-driving cars that make real-time predictions and adapt decisions in complex traffic situations, or systems for estimating energy consumption based on data analysis.
  • Content refers to the generation of new material such as text, images or videos, often based on machine learning models such as GPT technologies. 
  • Recommendations are suggestions for specific actions or products based on user preferences and behavioral patterns. AI-powered recommendation systems can process large amounts of data, adapt in real time and provide personalized recommendations, which in turn distinguishes them from static, rule-based systems.
  • Decisions refer to automated conclusions or actions traditionally made by human judgment. An AI system that makes decisions automates this process and achieves results without human intervention.

To summarize, AI systems are differentiated from non-AI systems by their ability to process complex relationships and patterns in data and generate differentiated results such as predictions, content, recommendations and decisions. This ability enables them to “think” in a more differentiated way and to act in structured environments.

 

(7) Interaction with the environment
The seventh element of the definition of an AI system is that the results of the system influence the physical or virtual environment. This emphasizes that AI systems actively influence their environment instead of being purely passive. The influence of an AI system can affect tangible, physical objects such as a robotic arm, as well as virtual environments, including digital spaces, data streams and software ecosystems.

 

Practical advice

Even if some technical nuances remain open despite reading the guidelines, the European Commission's elaborations are very welcome. Since the question of whether a system is an AI system or not has a decisive impact on the applicability of the AI Regulation, companies must examine very carefully for each system whether the respective characteristics of the definition of an AI system are fulfilled. As this cannot be done in detail (solely) through a legal review, the IT managers must always be involved in the process. In our view, it is also advisable to draw up a detailed audit template that can be used to document the results of the audit accordingly.

In cases of doubt, it will probably be advisable to affirm the existence of an AI system. The legal risk is generally considered to be significantly greater if mandatory requirements are not implemented than in the exact opposite case. Of course, this only applies if the non-existence of an AI system cannot be justified with reasonable arguments from a technical point of view. 

We will be happy to support you with a corresponding audit and the subsequent implementation of all requirements for legally compliant AI compliance!

02/12/2025, Jan-Dierk Schaal, Marius Drabiniok, Dr. Oliver Hornung

Podcast "ILTA Voices" zum Barrierefreiheitsstärkungsgesetz

02/04/2025, Johannes Schäufele, Yves Heuser

Market surveillance and AI: Who will monitor whom in the future?

The Federal Ministry for Economic Affairs and Climate Protection and the Federal Ministry of Justice recently published the draft bill for a law to implement the European Regulation on the implementation of the Regulation on the protection of personal data. Although everyone is already talking about the AI Regulation and the first regulations are to be complied with from February of this year, various regulations still require implementation at national level. For example, each member state must appoint a notifying authority and a market surveillance authority. 

Like the regulation, the draft bill aims to create a standardised internal market for AI-based goods and services. Special attention is paid to promoting innovation, while at the same time ensuring a high level of protection in terms of health, safety and the fundamental rights enshrined in the Charter, including democracy, the rule of law and environmental protection.

 

Regulatory content of the planned implementation law

As part of the AI Implementation Act, the Federal Network Agency is to be established as the central market surveillance authority and contact point in accordance with Article 70 (para. 2 sentence 3) of the AI Regulation (KI-VO). The authority would then also function as a central complaints office. It would also operate the sandboxes referred to in Articles 57 and 58 of the AI Regulation and set up a coordination centre to support other competent authorities in their tasks. Furthermore, an independent body will be set up at the authority, which will also be responsible for market surveillance in the cases referred to in Article 74(8) of the AI Regulation. The Chamber will play a key role in monitoring the implementation of tests for high-risk AIs. The aim here is to pool expertise in relation to artificial intelligence (AI) and make it available to the existing authorities in a resource-efficient manner. 

Various implementation models were examined with regard to ensuring the independence of market surveillance. The decision in favour of the current solution, which is based on the principle of the existing Board of Appeal, should be the most appropriate solution based on a consideration of the legal requirements and practical feasibility.

Section 7 of the draft stipulates that those authorities that have been designated by federal or state law as market surveillance authorities for the implementation of the harmonisation legislation listed in Annex I Section A of the Regulation (e.g. Directive 2009/48/EC, Directive 2013/53/EU or Directive 2014/53/EU) are to be transferred to the competent authorities under national law or, for example, the Federal Office of Consumer Protection and Food Safety or the Federal Ministry of Food Safety. Directive 2009/48/EC, Directive 2013/53/EU or Directive 2014/53/EU, which apply to the competent authorities under national law or (such as the Federal Office of Consumer Protection and Food Safety or the Federal Ministry of Defence) should also perform the tasks as competent market surveillance authorities if AI systems are associated with products to which the provisions listed in Annex I Section A apply. This is intended to ensure a seamless integration of the existing regulatory structures into the implementation of the AI Regulation. 

The sanctioning provisions of the AI Regulation (Article 99 (3) to (5) AI Regulation) will be transposed into national law in that the provisions of the Act on Regulatory Offences (with the exception of Section 17 OWiG) will apply accordingly.

 

Open points and criticism

However, the draft bill raises various questions and concerns. At the centre of these are the selection of the authority and the practical implementation of the proposed responsibilities, which entail both legal problems and challenges related to the federal structure in Germany. 

 

1) Federal Network Agency as the central supervisory authority 

A key point of the draft is the decision to appoint the Federal Network Agency (BNetzA) as the central supervisory authority for the implementation of the AI Regulation. This choice is not uncontroversial and has led to discussions regarding practical feasibility and the legal framework. In the past, the Federal Data Protection Authority (the Federal Commissioner for Data Protection and Freedom of Information [BfDI]) has offered itself as an alternative for this task.

It is argued against the BfDI that its expertise is primarily focussed on data protection and not on the technical market surveillance of AI. Arguments in favour of the BNetzA, on the other hand, include technical expertise and the standardised interpretation of regulations. The BNetzA already has extensive expertise in the area of product safety, particularly with regard to AI models and how they work. In addition, the transfer of competences to a single authority would lead to a uniform interpretation and application of the requirements of the AI Regulation. Another aspect cited was that this would avoid sectoral fragmentation and ensure a practical, low-bureaucracy and innovation-friendly implementation of the AI Regulation. In particular, the fact that there was a lack of sufficient AI specialists argued against splitting the process between different authorities.

 

2) Compatibility with Article 74(8) of the AI Regulation 

However, there is uncertainty as to whether the requirements of Article 74(8) of the AI Regulation have been adequately observed. This stipulates that, with regard to the market surveillance of high-risk AI systems used in security-relevant areas such as law enforcement, border management, justice and democracy, the competent authority must implement the conditions of the JHA Data Protection Directive (EU) 2016/680, in particular Articles 41 to 44. This directive stipulates that the processing of personal data by the authorities must be lawful, purposeful and secure. It explicitly stipulates that independent supervisory authorities must be appointed to monitor the application of the directive.

According to the explanatory memorandum to the AI Implementation Act, the provision in Section 3 (5), according to which the Market Surveillance Chamber acts completely independently and is not subject to any direct or indirect influences or instructions, would guarantee the independence of the authority in accordance with the requirements of Article 41 (2) of the JHA Data Protection Directive. In this respect, the implementation of the requirements of Articles 41 - 44 of the JHA Data Protection Directive is guaranteed by Section 3 (3) and (4). The draft bill therefore takes the JHA Data Protection Directive into account, but consistent application and review of the high requirements would still be necessary in order to ensure the appropriate standard of data protection when monitoring high-risk AI.

 

3) Conflict with the federal structure 

Another challenge that the planned regulations will have to face concerns the federalist distribution of competences and the constitutionally guaranteed autonomy of the federal states in Germany. As the central market surveillance authority, the Federal Network Agency would have far-reaching powers of control over state authorities. In practice, this is usually implemented through a federally structured organisation of authorities that preserves the responsibilities at federal and state level, such as in data protection.

The high level of complexity and intricacy of AI regulation may stand in the way of an implementation similar to data protection. However, the planned establishment of joint AI supervision would require an international treaty between the government and the states in order to create a sufficient legal basis for breaking through the federal system. The federal and state governments can regulate and distribute competences and the coordination of task fulfilment by means of an international treaty. However, this would require a considerable amount of justification and administration, so it is questionable whether this would really be a sensible solution that could be implemented in a timely manner.

 

What happens next?

The implementation of the AI Implementation Act is urgent: The EU member states are obliged to complete the implementing legislation by 2 August 2025. In view of the upcoming change of government, it remains to be seen how the new government will deal with the draft and when it will come into force. It therefore remains exciting!

02/04/2025, Jan-Dierk Schaal

World Trademark Review WTR 1000: Another silver ranking for SKW Schwarz's outstanding German IP practice

The renowned magazine World Trademark Review has once again published the WTR 1000 Germany ranking this year and awarded SKW Schwarz the coveted silver ranking for its excellent performance in the IP field.

 

The WTR editorial team comments on this recognition as follows:

“SKW Schwarz is the top address for advice in Germany and the EU.” The team continues to make inroads and has recently launched its Branded Content Focus Group, which covers new topics in IP, IT and entertainment and has been very well received by clients.

Also commended are Dorothee Altenburg (Bronze), Magnus Hirsch (Bronze), Margret Knitter (Gold) and Sandra Sophia Redeker (Silver).

 

The WTR writes:

“Sandra is extremely knowledgeable and highly regarded in the field of intellectual property. She is responsive, clear and her advice is easy to understand. Sandra is thoughtful, highly skilled and understands the business needs of her clients.

“Magnus is an excellent advisor. He is a very pragmatic litigator who is willing to settle but also fights hard to the end when necessary. Magnus is a vigorous advocate for his clients.”

“Margret is detail oriented, extremely professional and knowledgeable. Her timely, precise and immaculate business advice is invaluable. Margret is always realistic with her recommendations and maintains a commercial outlook at all times.”

Munich-based Altenburg excels in developing global trademark strategies for her domestic and international brands.

Rembert Niebel, the head of Baker McKenzie's German IP practice, joined the team in July 2023. Clients are enthusiastic about “his very high performance and high level of service.”

Daniel Kendziur, who joins the team from Simmons & Simmons, has a well-rounded practice covering unfair competition, trademark, design, copyright and plant variety matters. He has also diligently acquired expertise in the automotive industry, making him a go-to person for IP-related disputes in this sector.

 

The WTR 1000 remains the only publication to exclusively recommend experts and law firms in the trade mark sector and this year, for the thirteenth time, lists the leading players in over 80 key jurisdictions worldwide. Individuals and law firms are only included in the WTR 1000 if they receive sufficient positive feedback from market sources. The comprehensive selection and vetting process involved hundreds of in-person and telephone interviews with trademark professionals around the world and serves as a one-stop shop for those seeking trademark services.

02/04/2025, Dr. Dorothee Altenburg, Dr. Magnus Hirsch, Margret Knitter, Sandra Sophia Redeker, Dr. Rembert Niebel, Dr. Daniel Kendziur

SKW Schwarz: 18 Lawyers Recognized as "World's Leading Practitioners Germany 2025" in Six Categories

The prestigious Lexology Index (formerly Who's Who Legal) Germany 2025 has recognized 18 experts from SKW Schwarz as leading lawyers in Germany. These accolades span six key legal areas.

The honored experts are as follows:

Commercial Mediation:

  • Dr. Alexander Steinbrecher

Data:

  • Nikolaus Bertermann
  • Oliver M. Bühr
  • Dr. Matthias Nordmann
  • Dr. Matthias Orthwein
  • Dr. Andreas Peschel-Mehner
  • Stefan C. Schicker
  • Prof. Dr. Mathias Schwarz
  • Martin Schweinoch

IP-Trademarks:

  • Dr. Dorothee Altenburg
  • Dr. Magnus Hirsch
  • Margret Knitter
  • Sandra Sophia Redeker

Life Sciences:

  • Dr. Matthias Nordmann
  • Dr. Tatjana Schroeder
  • Markus von Fuchs

Product Liability Defence:

  • Arndt Tetzlaff

Sports & Entertainment:

  • Dr. Johann Heyde
  • Götz Schneider-Rothhaar
  • Prof. Dr. Mathias Schwarz

 

The inclusion of these lawyers underscores SKW Schwarz's leading position in Germany. The Lexology Index is considered one of the foremost international accolades in the legal market, based on comprehensive analyses and evaluations by clients and industry experts.

01/31/2025, Dr. Dorothee Altenburg, Nikolaus Bertermann, Dr. Oliver M. Bühr, Markus von Fuchs, Dr. Johann Heyde, Dr. Magnus Hirsch, Margret Knitter, Dr. Matthias Nordmann, Dr. Matthias Orthwein, Dr. Andreas Peschel-Mehner
Show more

Events

30

Esport Level Up

January 28, 2021, Online

01/28/2021, Dr. Markus Brock, Moritz Mehner, Dr. Andreas Peschel-Mehner, Sandra Sophia Redeker

Whistleblowing system – deadline for implementation is approaching

February 2, 2021, Online

02/02/2021, Dr. Matthias Orthwein, Franziska Ladiges, Alexander Möller

The top 10 legal developments for music in 2020 - and how to survive 2021

January 13, 2021, Online

01/13/2021, Götz Schneider-Rothhaar

PTMG@home - “Testing Times in the Twenties – Vaccine and Brexit”

March 15, 2021, Online

03/15/2021, Margret Knitter

TerraLex Webinar: The Future of Class and Collective Actions

March 4, 2021, Online

03/04/2021, Dr. Sebastian Graf von Wallwitz

Module Five - Esports & Gaming

March 10, 2021, Online

03/10/2021, Moritz Mehner

TerraLex Webinar: The Trademark Modernization Act: What you need to know

March 16, 2021, Online

03/16/2021, Dr. Magnus Hirsch

Protecting your concept in a hyper-competitive industry

August 26, 2021, Berlin

08/26/2021, Margret Knitter

SportsTech - Are We Getting More Inclusive?

November 11, 2021, Lisbon

11/11/2021, Dr. Matthias Orthwein

Regulation of Digital Services and Markets

November 11, 2021, Online

11/11/2021, Dr. Christoph Krück

APM Online Seminar Series "The Brand Protection Manager"

December 14, 2021, Online

12/14/2021, Dr. Magnus Hirsch

3rd Conference of the Research Centre for eSports Law

October 7, 2021, Mittweida

10/07/2021, Dr. Andreas Peschel-Mehner

SULC Esports Summit 2021

April 10, 2021, Online

04/10/2021, Moritz Mehner

e-Crime & Cybersecurity congress DACH: Cybersecurity in 2022 - A legal perspective

January 20, 2022, Online

01/20/2022, Dr. Matthias Orthwein

EU Whistleblower Directive armed - What to do?

February 24, 2022, Online

02/24/2022, Dr. Oliver Hornung, Franziska Ladiges, Alexander Möller, Michael Wahl

Webinar: NFTs in Media - new revenue streams for film, TV and music industry?

April 6, 2022, Online

04/06/2022, Moritz Mehner, Alexandra Streichfuss

Virtual Influencer – Use opportunities, avoid risks

April 26, 2022, Online

04/26/2022, Lara Guyot, Maximilian König

Cannabis and Intellectual Property – International Considerations

April 28, 2022, Online

04/28/2022, Margret Knitter

ICBC: International Cannabis Business Conference

July 19-20, 2022, Berlin

07/19/2022, Dr. Martin Böttger

IBA Annual Conference Miami 2022

October 30 - November 4, 2022, Miami

10/30/2022, Marion Anzinger, Dr. Matthias Orthwein

6th Mergers and Acquisitions in the Technology Sector Conference

March 23-24, 2023, Berlin

03/24/2023, Dr. Martin Böttger, Markus von Fuchs, Hannah Mugler, Dr. Matthias Nordmann, Dr. Matthias Orthwein, Dr. Angela Poschenrieder

Managing International IP Disputes

Mai 10, 2023, Online

05/10/2023, Dr. Dorothee Altenburg

ICBC: International Cannabis Business Conference

June 29-30, 2023, Berlin

06/29/2023, Margret Knitter

Black Sunday @ Filmfest München 2023

June 25, 2023, Munich

06/25/2023

Global Games Summit 2023

August 22, 2023, Cologne
08/22/2023, Dr. Andreas Peschel-Mehner

AI Across EMEA: Key Considerations for In-House Counsel

September 13, 2023, Online

09/13/2023, Markus von Fuchs

SKW Schwarz goes DMEXCO 2023

September 21, 2023, Cologne
09/21/2023, Margret Knitter

Esports Equal Festival Vol. 3

September 20-21, 2023, Cologne

09/21/2023, Jan Möbus, Sandra Sophia Redeker

Thats Entertainment’s Law – The AI Special Edition

September 22, 2023, Hamburg

09/22/2023, Götz Schneider-Rothhaar

TerraLex presents: UPC Update and Enforceability Overview

December 6, 2023, Online

12/06/2023, Dr. Christoph Wiegand
Show more

Focus topics

24

Artificial intelligence

SKWhistle: Implementing a whistleblower system in a legally compliant manner

Branded Content and Influencer Marketing

Digital Health

Corporate Venture Capital

Digital Services Act (DSA)

Digital Female

Esports Law

FinTech

Medical Cannabis

Digital Regulation

The EU Digital Decade

Data Act (DA)

New Deal for Consumers

Digital Operations Resilience Act (DORA)

Markets in Crypto-Assets (MiCAR)

Artificial Intelligence Act (AI Act)

Data Governance Act (DGA)

AI Liability Directive

Cyber Resilience Act (CRA)

NIS 2-Directive

Legal BootCamp for Start-ups

Sustainability & Green Compliance

Space

Expertise

30

Employment Law

Automotive & Mobility

Banking & Finance

Corporate sustainability and ESG

Corporate Law

Mergers & Acquisitions

SME financing. Digitalization. Turnaround. M&A.

Venture Capital

Private Equity

Intellectual Property

Trademarks, Designs & Domains

Competition and Advertising

Product Regulation

Copyright Law, Privacy Protection & Art Law

Technical Property Rights & Know-how

Data Economy

Trade & Logistics

Commercial and Distribution

Antitrust and Merger Control

Transport and Logistics

Insolvency and Restructuring

IT & Digital Business

Cloud Computing

Data Protection

Esports

FinTech

Internet and e-Business

IT Litigation

IT Outsourcing

IT Security

Mixed

21

Playground

Expertise

Startpage

Focus topics

Professionals

News

Business Services

Legal Tech

About us

Contact

International

Legal Notice

Data protection information

Thank you

404

Newsletter confirmation

Search

Newsletter Unsubscribe

Newsletter registration

Security

Christmas