I INTRODUCTION

Germany is a mature franchising market, with a good number of indigenous franchises ranging across more than 42 different sectors, from retail and fast food through hotels, education, car rental and domestic services to energy, health care and telecommunications. The three biggest sectors are services (40 per cent), hotels and gastronomy (24 per cent) and retail (24 per cent).

There are currently more than 990 active franchise systems and 167,961 franchise businesses in Germany, employing more than 715,362 employees, according to the German Franchising Association. The current annual turnover of the German franchise sector is estimated at about €122.8 billion.2

Domestic franchise chains, such as Apollo-Optik, Arko Kaffee und Confiserie and BabyOne sit side by side with the likes of McDonald's, Hertz, Intercontinental Hotels and Mail Boxes Etc. The average franchise business operating in Germany is active in 17 different countries at the same time. Over 55 per cent of all franchise systems in Germany are still expanding, while only 14 percent are already fully developed.

The German Franchise Association and the German Franchisee Association are both active, and the German Franchise Association is a member of the European Franchise Federation and of the World Franchise Council.

II MARKET ENTRY

i Restrictions

Although the General Trade Act imposes some sector-specific regulations, Germany is a market economy, which typically imposes no restrictions on foreign franchisors as regards the granting of master franchise or development rights.

ii Foreign exchange and tax

There are no foreign exchange controls or restrictions on foreign currency payments applicable to cross-border franchising in Germany. It is prudent to ensure that franchise documentation states the currency in which payments should be made and the rate and time of currency conversion. Likewise, it is preferable to describe ongoing fees as service fees rather than royalties, as these can be more advantageously dealt with tax-wise.

Germany has double-taxation treaties in place with most countries and the terms of the relevant treaty should always be taken into account when structuring international payment flows.

III INTELLECTUAL PROPERTY

i Brand protection and search

The key intellectual property rights involved are trademarks, designs, domain names, copyright, database and know-how rights (patent rights are usually not relevant). Although copyright is not registrable in Germany, trademarks are, and franchisors can choose whether to register them as domestic German or European Union trademarks (EUTM) or international registrations. The registration fee for an application for a German registration is €300 with a discount of €10 should the registration be made online. A fast-tracked examination is available for an additional fee of €200. If more than three classes of goods and services are requested, a fee of €100 for each additional class will be charged. Before application, the applicant is expected to make an availability search (at least briefly) in respect of the trademark, which is usually carried out by specialised service providers, to avoid a conflict with a prior rights holder.

Not surprisingly, however, most franchisors opt for EUTM registrations rather than German domestic registrations, although domestic registration is more common if it is a German-language mark used solely for a domestic German business. Franchisors can extend their trademarks to Germany as part of an international registration or subsequent designation, as Germany is a party to the Madrid Protocol.

Germany is a first-to-file jurisdiction, although unregistered marks can be acquired by way of usage if they have acquired a reputation in Germany, and Article 6 of the Paris Protocol also ensures that 'well-known marks' can be protected even if there is no evidence of use in Germany. The German Unfair Competition Act provides relevant supplementary protection to trademarks.

In addition to pure trademark protection, the German Trademark Act also grants special protection for trade designations, which could be business names or titles of works. Their protection does not require a registration, but rather a certain level of usage of the trade designation by the proprietor.

As trade designations are not contained within the trademark register, special search tools are required to identify existing prior third-party rights.

Just recently know-how protection has been modified by the new German Trade Secrets Protection Act (based on the EU Trade Secrets Directive3), which has been implemented to improve protection for companies' technical and commercial trade secrets, and which provides additional stipulations to concretise existing protections for companies.

ii Enforcement

Trademark proprietors are entitled to commence enforcement proceedings based upon their trademark rights. It is possible to obtain a preliminary injunction (ex parte) in Germany, even without an oral hearing, within a very short time ('urgency period'), but any delay in issuing proceedings can mean that this right may fall away. Both parties must be represented before the court by a lawyer admitted to the German Bar.

German litigation lawyers usually work on an hourly fee arrangement – conditional fees are generally not compliant with German Bar rules. In German litigation, the English rule applies, so attorneys' fees are usually paid by the losing party to the winning party. The amount to be refunded is, however, limited by the Attorney's Remuneration Act and, as a result, the winning party may end up bearing part of its own attorney's fees.

iii Data protection, social media and e-commerce

The rules of data protection law play an important role in any dealings with the personal data of end users (and employees); these rules have a significant impact, for example, when franchisors run loyalty programmes and promotional campaigns. The former German Federal Data Protection Act (GDPA), which was based on the EU Data Protection Directive 95/46/EC, has been replaced by the General Data Protection Regulation (Regulation (EU) 2016/779 (GDPR) since 25 May 2018, and it must be read in conjunction with national derogations laid down in the new GDPA. Any processing of personal data by the franchisee (and franchisor) must be based on the consent of the data subject or legal justification under law. Wherever a data controller transfers data outside the EU or EEA, for example, into the United States, measures to ensure an adequate level of data protection compliance must be met by suitable means, such as data subject consent, the EU Model Contract Clauses, Binding Corporate Rules (for transfers within corporate organisations) or the EU–US Privacy Shield Framework (the Privacy Shield).4 Where a data controller instructs a data processor to process data on its behalf and subject to its instructions within the EU, the parties have to enter into a commissioned data processing agreement. Under the GDPR (Article 28), the data processor assumes a higher level of liability towards the data subject and the authorities for complying with data protection law, whereas under the former GDPA only the data controller was responsible towards the data subject and the authorities. Data protection authorities have issued further guidance on the requirements regarding processor obligations and liability.5 Franchisors and franchisees must, however, also consider whether they could be tied into joint controllership, namely where they jointly determine the means and purposes of processing personal data (Article 26 GDPR). Depending on the circumstances, this can well be the case; for example, where a franchisor provides infrastructure or a platform, or both of these, for the franchisees to jointly process end customer data.6 As a result, both parties will have to define their joint controllership in a relevant agreement, or in an annex to their franchise agreement, pursuant to Article 26 GDPR, as well as having to be aware of their joint and several liability towards the data subjects and authorities (Article 82(4) GDPR).7 Subsequent to the statement by the EU Commission on 21 October 2019 that an investigation had revealed serious concerns over the role of Microsoft as a processor for EU institutions using its products and services, Microsoft recently admitted its role as processor and joint controller and announced an update to the privacy provisions in its contractual services terms.8 For guidance on this matter, consideration should be given to the guidelines on joint controllership recently published by the European Data Protection Supervisor.9

As regards online tracking and profiling, use of cookies and personal data collected in the context of electronic communications, parties should be aware of the discussion on the ePrivacy Regulation. Currently, the Council's position on the draft ePrivacy Regulation has been rejected by the Permanent Representatives Committee of the Council of the European Union. The Commission may either withdraw the entire proposal or the Council may prepare a new draft. Until then, German data protection authorities have made it clear that the use of cookies is subject to consent or opt-in requirements under the GDPR, and the data protection provisions of the German Telemedia Act shall no longer apply.10 This position has been reaffirmed by the recent cookie decision of the European Court of Justice (ECJ), according to which technically non-essential cookies are subject to consent. The ECJ ruled that users must actively consent to the retention of cookies (i.e., they must opt in), whereas consent by default is not permitted.11 The German data protection authorities announced fines and restrictions on website tracking. As a precaution, it is therefore highly advisable to switch to an opt-in implementation of non-essential cookies.

Notably, each regional state in Germany has its own data protection authority, which can take slightly different views on interpreting and enforcing the law. However, under the GDPR, the possible scope of interpretation has now narrowed down, given the GDPR's universal application throughout the EU and EEA; additionally the European Data Protection Board plays an important role in providing further guidance; the GDPR also makes provision for other forms of secondary law that may take consideration of particular industry and sector practices, such as codes of conduct (Articles 40 and 41 GDPR) and certifications (Articles 42 and 43 GDPR).

Further to that, there are also various sector-specific regulations, such as those that apply to providers of telemedia services under the German Telemedia Act, which is relevant for online marketing and user-tracking activities, or to internet service providers. Lack of compliance with data protection laws and those of the Telemedia Act can lead to serious consequences, including monetary fines and cease-and-desist orders, as well as reputational issues and negative publicity in Germany. To date, there has been no harmonised framework for determining monetary fines under the GDPR. The German group of national and regional data protection authorities, the Data Protection Conference (DSK), recently published a concept document12 providing guidance on the imposition of fines against companies in proceedings within the scope of the GDPR, and introduced this at European level to harmonise it with existing frameworks of other Member States. In the past, the German data protection authorities had imposed only rather moderate fines and had not advanced into the range of millions. However, this changed recently with the imposition by the Berlin data protection authority of a fine of around €14.5 million on a real estate company for not maintaining a proper deletion process for customer data.13

Social media monitoring, as well as active marketing through social media, raises a considerable number of issues under the GDPR – as was previously the case under German privacy rules, which is why use of these channels is typically less developed than in other European jurisdictions. Accordingly, taking proper legal advice on a case-by-case basis is required for activities in this field.

German regulations on e-commerce mainly derive from EU legislation, such as the directives on distance selling14 and on consumer rights.15 E-commerce providers need to observe a variety of information obligations; failure to comply with these obligations can trigger extended rights of withdrawal for consumers, as well as possible competitor actions.

On the basis of unfair competition law, competitors as well as competition associations, qualified consumer protection associations and chambers of industry and commerce, or craft chambers, can launch cease-and-desist actions against market players that do not 'play by the rules' with regard to compliance with requirements on electronic contracting, information obligations, unlawful advertising or even, in certain circumstances, presenting clauses in standard terms of business that are partially or entirely unenforceable. Given the quick reaction times and the speed of courts in granting injunctions (including ex parte injunctions), businesses need to pay particular attention to the potential pitfalls in the area of unfair competition law.

IV FRANCHISE LAW

i Legislation

There is no franchise law as such in Germany; provisions concerning franchising can instead be found in the general codes of law such as the Civil and Commercial Codes. These provisions, inter alia, impose pre-contractual disclosure obligations and a heavy expectation of good faith on all parties, making claims of profit to potential franchisees particularly risky.

ii Pre-contractual disclosure

Pre-contractual disclosure obligations are imposed on the principle of culpa in contrahendo, which is codified in Section 311(2) of the Civil Code. In addition, the law concerning misrepresentation is also relevant.

During the negotiations, both parties – not just the franchisor – must tell the truth, make no false promises and disclose all material facts to each other. This is especially true as regards those facts that will have a material impact on the success of the franchise and that may induce the potential franchisee to become part of the network. Earnings claims are particularly difficult and must be based on reliable and relevant empirical data – estimates must be clearly labelled as such. It is even possible that should the franchisor's directors or agents make dishonest or misleading statements to potential franchisees, they could be held personally liable according to Section 311(3) of the Civil Code.

Franchisors should therefore be very cautious in marketing their franchises in Germany. Any failure to comply with the principle of culpa in contrahendo will mean that a contract could be set aside, and any fees paid may have to be repaid in full. There is a statutory period of limitation of three years for claims that a contract failed to comply with this principle, which commences at the end of the year in which the claim arose and the franchisee obtained knowledge of the circumstances giving rise to the claim.

iii Registration

Germany does not require franchises to be registered.

iv Mandatory clauses

The ongoing relationship between franchisor and franchisee is especially affected by agency laws16 if the franchisee commits to the ongoing purchase of products and equipment. Antitrust law, based upon Article 101 of the Treaty on the Functioning of the European Union (TFEU), also has an impact on issues such as the grant of exclusivity, tying and price control.

A test of fairness by the rules on unfair contract terms will be imposed on any provision in a standard form agreement that has not been negotiated by the rules on unfair contract terms.17 The threshold for qualifying as 'negotiated' is rather high in Germany, so it is very likely that a standard form agreement will fall within the scope of the rules on unfair contract terms. Special justification is generally needed if a provision deviates from the fallback position as set out in the Civil Code to the detriment of the franchisee. Franchisees can be treated as if they were consumers in domestic agreements.

Several statutory provisions will be implicit in the agreement, such as a right of the franchisee to terminate and the franchisor's obligation to provide certain services. There is a great deal of case law on the question of what constitutes sufficient grounds for termination, so franchisors must be cautious when exercising or contesting this right.

v Guarantees and protection

The principle of contra bonos mores has a limiting effect on securities, especially if the value of the surety clearly exceeds the debt; where this is the case, the suretyship agreement might be declared void or the debtor can demand a partial release of the security.

V TAX

i Franchisor tax liabilities

Franchisors that are tax resident in Germany are liable for corporation tax of 15 per cent plus a solidarity surcharge that is added to the corporate income tax and set at a rate of 5.5 per cent of the corporate income tax rate (equalling an additional 0.825 per cent) and trade tax. Trade tax is a municipal tax. As such, tax rates are individually determined by each municipality (the German average is around 14 per cent). Withholding tax of 25 per cent is payable on dividends.

Royalty fees for the granting of rights under the German Copyright Act (e.g., software licences, although not the licences to use patents or trademarks) bear a reduced VAT rate of 7 per cent, while all other fees paid to the franchisor by the franchisee are subject to VAT at 19 per cent. The initial franchise fee is usually amortised over the duration of the franchise for income tax purposes.

ii Franchisee tax liabilities

In addition to corporation tax and the solidarity surcharge, trade tax is also payable by franchisees.

Tax on personal income falls into bands ranging from 14 to 45 per cent; corporate tax, municipal trade tax and VAT also apply at the rates mentioned in Section V.i.

VI IMPACT OF GENERAL LAW

i Good faith and guarantees

Franchisors cannot exercise their contractual rights or change their business formats with impunity, as the concepts of good faith and fair dealing are implicit in all agreements. Although both franchisors and franchisees benefit from and carry reciprocal burdens, it is generally franchisors, as the dominant parties, that find they have to defend themselves from allegations of behaving unfairly or in bad faith. This is particularly the case when franchisors seek to issue disciplinary or other actions against their franchisees, so their actions need to be proportionate.

ii Agency distributor model

The courts often apply agency law to franchise agreements by analogy.

iii Employment law

Some employers in low-skill businesses, such as contract cleaning, have been known to use a form of 'false franchising' as a way of reducing their liabilities to their employees. The German courts are very sensitive to this type of abuse and the Federal Labour Court's decision in the Eismann case18 established that franchisees can be deemed to be 'in fact' employees of a franchisor if the franchisor controls every aspect of an individual franchisee's business.

As of 2015, a uniform nationwide statutory minimum wage was introduced in Germany. This wage is intended to be reviewed by a commission every two years. As of 1 January 2020, it was increased from €8.84 to €9.35.

iv Consumer credit protection

Section 513 of the Civil Code protects new businesses, including some franchisees, in relation to loans, respites or any other forms of financial aid, as well as instalment supply contracts. Specific statutory information requirements apply and such franchisees may be entitled to withdraw from their contracts.

v Competition law

German competition law is based on the corresponding provisions contained in the TFEU. Nevertheless, the German courts can be particularly strict in their approach.

vi Restrictive covenants

Franchisors can prevent their franchisees from competing with them for the duration of their agreements, but prohibiting franchisees from supplying other franchisees within the same franchise systems is regarded as contravening Article 4(b) of the Block Exemption Regulation. Post-termination restrictive covenants must be explicitly provided for in the franchise agreement and limited in time, scope and territory, and are only enforced by the courts in the event that the franchisor has paid the franchisee a consideration for them.

vii Termination

The franchisor cannot terminate a franchise contract for a minor breach. Termination must be proportionate, fair and in good faith.

If the franchisee undertakes to sell its business to the franchisor on termination, this will be enforced by the courts, but is not common practice among franchisors in Germany.

viii Anti-corruption and anti-terrorism regulation

In practice anti-corruption and anti-terrorism compliance considerations do not apply in the context of franchising in Germany.

ix Dispute resolution

Foreign law is generally acceptable in agreements. Even if foreign law has been agreed, mandatory German and European laws will apply if the franchisee is operating in Germany. Under the Brussels I Regulation, judgments of a court of an EU Member State are enforceable in other Member States without the need for any special procedures, and arbitration awards are fully recognised; mediation is also available.

Injunctions are relatively easy to obtain. Ex-franchisees that continue to use former franchisors' marks are easily stopped by way of interim injunctions. Damages can be awarded but are usually intended to cover actual losses incurred.

VII CURRENT DEVELOPMENTS

The courts continue to wrestle with issues concerning pre-contractual disclosure, termination, the need to give notice, and cooling-off periods. It is likely that this will remain the situation for the next few years.


Footnotes

1 Stefan Münch, Alexander Duisberg and Markus Körner are partners and Michael Gaßner is a counsel at Bird & Bird LLP. This chapter was originally drafted by Stefan Engels and Bahne Sievers, formerly lawyers at Bird & Bird LLP.

2 Figures as at 2018 by the German Franchise Association (Deutscher Franchise-Verband e.V.).

3 Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

4 Certain civil rights organisations have challenged the Privacy Shield; proceedings are pending before the court of first instance, Case T-670/16, Digital Rights Ireland.

5 DSK (16 January 2018): Kurzpapier Nr. 13, Auftragsverarbeitung, Art. 28 DS-GVO, available at https://www.datenschutzkonferenz-online.de/media/kp/dsk_kpnr_13.pdf (last accessed 26 November 2019).

6 A similar case was decided by the European Court of Justice (ECJ): the ECJ ruled that Facebook and the administrators of Facebook 'fan pages' are to be considered joint controllers (ECJ ruling from 5 June 2018 (Case No. C-210/16, paragraph 39).

7 See also DSK (19 March 2018): Kurzpapier Nr. 16, Gemeinsam für die Verarbeitung Verantwortliche, Art. 26 DS-GVO, available at https://www.datenschutzkonferenz-online.de/media/kp/dsk_kpnr_16.pdf (last accessed 26 November 2019).

8 Julie Brill (18 November 2019): Introducing more privacy transparency for our commercial cloud customers, available at https://blogs.microsoft.com/eupolicy/2019/11/18/introducing-privacy-transparency-commercial-cloud-customers/ (last accessed 26 November 2019).

9 European Data Protection Supervisor (7 November 2019): EDPS Guidelines on the concepts of controller, processor and joint controllership under Regulation (EU) 2018/1725, available at https://edps.europa.eu/sites/edp/files/publication/19-11-07_edps_guidelines_on_controller_processor_and_jc_reg_2018_1725_en.pdf (last accessed 26 November 2019).

10 DSK position paper (26 April 2018): Zur Anwendbarkeit des TMG für nicht-öffentliche Stellen ab dem 25 May 2018, available at https://www.ldi.nrw.de/mainmenu_Datenschutz/submenu_Technik/Inhalt/TechnikundOrganisation/Inhalt/Zur-Anwendbarkeit-des-TMG-fuer-nicht-oeffentliche-Stellen-ab-dem-25_-Mai-2018/Positionsbestimmung-TMG.pdf (last accessed 26 November 2019).

11 ECJ ruling from 1 October 2019 (Case No. C-673/17).

12 DSK concept (14 October 2019): Konzept der unabhängigen Datenschutzaufsichtsbehörden des Bundes und der Länder zur Bußgeldzumessung in Verfahren gegen Unternehmen, available at https://www.datenschutzkonferenz-online.de/media/ah/20191016_bu%C3%9Fgeldkonzept.pdf (last accessed 26 November 2019).

13 Berlin Data Protection Commissioner press release (5 November 2019): Berliner Datenschutzbeauftragte verhängt Bußgeld gegen Immobiliengesellschaft, available at https://www.datenschutz-berlin.de/fileadmin/user_upload/pdf/pressemitteilungen/2019/20191105-PM-Bussgeld_DW.pdf (last accessed 26 November 2019).

14 Directive 97/7/EC.

15 Directive 2011/83/EU.

16 Agency laws, inter alia, impose the duty on franchisors to pay compensation to franchisees on termination, the principle of good faith, the rule that unfair contracts are void and the principle that long-term contracts can be terminated for good reason, and cooling-off rights in accordance with European consumer protection law.

17 Section 305 et seq. of the Civil Code.

18 NJW 1997, 2973.