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Clifford Chance advises Shuanghuan on latest acquisition

Clifford Chance has advised China-based auto component producer Zhejiang Shuanghuan Driveline Machinery Co., Ltd (Shuanghuan) on the acquisition of a majority share in German gearbox and auto component manufacturer Schmiedetechnik Plettenberg GmbH & Co. KG and Werkzeugtechnik Plettenberg GmbH & Co. KG. German VVP Vermögensverwaltung Plettenberg GmbH & Co. KG is selling its 81 percent of its shares in both companies. Upon closing of the transaction the Chinese investor will inject further capital into the group and thereby increase its shareholding.

Schmiedetechnik Plettenberg and Werkzeugtechnik Plettenberg are engaged in R&D, manufacturing, and sale of metal mold and precision molding parts for the automotive and construction machinery sectors.

Zhejiang Shuanghuan Driveline Co., Ltd., a listed company based in Hangzhou, China, produces and sells gears and shafts. The company’s products are widely used in the fields of inter alia cars, electric cars, high-speed rail traffic, electric tools and industrial robots. By acquiring the German gear manufacturers, Shuanghuan is accelerating its international development and further expanding its European business.

The Clifford Chance team advising Shuanghuan on the acquisition comprised partner Nicole Englisch and associate Sebastian Lahner, senior associate Nico Basener, associate Annika Ascher (all Corporate/M&A, Munich), counsel Dimitri Slobodenjuk and senior associate Caroline Scholke (both Antitrust, Dusseldorf), partner Claudia Milbradt, counsel Florian Reiling and senior associate Nicolas Hohn-Hein (all IP, Düsseldorf), partner Ines Keitel, senior associate Christopher Fischer (both Frankfurt) and associate Mario Maier (Munich, all Employment), partner Mathias Elspaß, senior associate Philipp Büsch and associate Felix Feldmann (all Corporate/Public Law, Düsseldorf), partner Christian Keilich (Frankfurt), counsel Dennis Blechinger and foreign lawyer Marion Dalvai (both Munich, all Real Estate), partner Barbara Mayer-Trautmann and senior associate Jennifer Seipelt (both Acquisition Finance, Munich) and partner Olaf Mertgen and counsel Dominik Engl (both Tax, Frankfurt) as well as a team from the Clifford Chance office in Shanghai lead by partner Glen Ma and including counsel Richard Cui (both Corporate/M&A).

Bringing true mettle to complex multijurisdictional deals

Eversheds Sutherland has advised Sims Metal Management Limited (Sims) on the agreed €83.5m sale of its European compliance scheme orientated recycling operations to German-based TSR Recycling, a subsidiary of REMONDIS Group.

Sims is one of the world’s largest metal and electronics recyclers with over 250 facilities, including joint venture operations, in 18 countries.

The operations that have been sold are located in Germany, Austria, the Netherlands, Belgium and Sweden. The deal, which is subject to competition approval by the European Commission, includes the sale of Sims’ waste electrical and electronic equipment (WEEE) treatment facilities in Sweden, Norway, Belgium and the Netherlands.

The sale does not include Sims’ global e-recycling IT asset disposal business.

The multijurisdictional Eversheds Sutherland team was led by corporate Partner James Trevis with Principal Associate Anthony Cross (corporate, Germany) and Senior Associate Thomas Plant (corporate, UK).

The wider team included Partners Peter Harper (competition, UK), Simon Weppner (tax, Germany), David Beswick (employment, UK), Jane Southworth (EHS, UK) and Tom van Wijngaarden (corporate, Netherlands), Consultant Stephen Rose (competition, UK), Principal Associates Evy Verhaeghe (corporate, Belgium), Claire Morgan (competition, UK), Anique Bitterlich and Marieke Koster (both employment, Netherlands), Senior Associates Christian Lindner (corporate, Germany), Michael Hardiman (employment, UK), Lukas Ploesch (corporate, Austria) and Laetitia Goor (real estate, Netherlands) and Associates Jake Perryman (corporate, UK), Rachael Tattersall (EHS, UK) and Dane Stattin (corporate, Sweden).

James Trevis commented: “This was a complex, multijurisdictional deal where strong collaboration and careful project management was absolutely key. We have a long standing 20 year relationship with Sims and we’re delighted to have been able to assist on what is a notable transaction for them. We look forward to continuing to support Sims in the future.”

Josef Malik, Director of Business and Legal Affairs at Sims Metal Management Limited, commented: “This was a strategically important deal for our company and we are pleased with this outcome. The Eversheds Sutherland team was excellent, combining a comprehensive understanding of our business with first class legal advice, commercial nous and innovative solutions to ensure the very best result.”

Pinsent Masons bolsters its Trade Group in Düsseldorf

Pinsent Masons continues to expand its Competition, EU & Trade Group, with the appointment of competition law specialist, Prof. Dr. Hans Jürgen Meyer-Lindemann, as a partner in the Düsseldorf office.

Regarded as one of the leading competition practitioners in Germany, he joins from Dechert, where he was a senior partner. Hans Jürgen’s focus will be on clients within the Advanced Manufacturing & Technology (AMT) sector, including Life Sciences.

Hans Jürgen’s work includes handling high-profile merger control cases before the European Commission and national competition authorities; major cartel investigations in a variety of industries; and numerous litigation matters concerning both public and private enforcement before local and district courts, Germany’s Federal Supreme Court and the European courts.

Commenting on Hans Jürgen’s appointment, Alan Davis, Head of Competition, EU & Trade at Pinsent Masons said: “We are delighted to welcome Hans Jürgen to the Competition, EU & Trade Group. Hans Jürgen will work closely with the Head of our German Competition Team, Michael Reich in Munich. His outstanding reputation, track record and wealth of experience in German and EU competition law significantly strengthens our pan-European competition law practice advising on complex merger and anti-trust cases.”

Head of the Advanced Manufacturing & Technology (AMT) sector, Florian von Baum added: “Across the AMT sector, we are seeing more disputes with a competition law background and Hans Jürgen’s expertise means that we can support our clients as their needs develop and change. His skillset, knowledge and experience will enable us to deepen our ability to offer high quality competition law advice across the sector and I look forward to working with Hans Jürgen.”

His appointment follows the appointment of Robert Vidal, formerly head of Taylor Wessing’s UK competition team, in the Competition, EU & Trade Group in London and brings the number of partners in the Group across the UK and Germany to nine. The team is currently advising on EU, UK and German antitrust enforcement investigations in the pharmaceutical, financial services, construction and manufacturing sectors, as well as mergers and market investigations. The team is also advising on a variety of competition litigation matters, including follow-on and stand alone damages claims.

Roland Berger appoints eight new partners in Europe

In home-country Germany, Frank Pietras and Uwe Weichenhain have joined the firm’s leadership. Pietras is based in Roland Berger’s Munich office and is an automotive expert. He specialises in automotive advisory, commercial due diligence, growth strategy, market & product strategy and business processes transformation.

Uwe Weichenhain has been with the consultancy for over a decade, and has been named a partner in the firm’s Energy & Infrastructure arm. He is an expert in new technologies that drive the transition towards sustainable infrastructure, including offshore wind, power transmission, gas and LNG, hydrogen, and digital technologies.

In the Netherlands, where Roland Berger has a team of around 100 consultants based in Amsterdam, Koen Besteman and Sameer Mehta have been promoted to partner level. Besteman specialises in the life sciences, and biopharma industry, supporting companies with innovation management, new market development, business cases, and setting up value models for research projects and portfolios. He also has gained extensive experience supporting universities with strategic and financing topics.

Having joined Roland Berger in 2010, Sameer Mehta focuses on merger & acquisition and investor support services. He works with private equity firms and corporate clients on topics related to due diligence, growth & performance improvement and restructuring. Mehta advises clients in a broad range of industries, including pharmaceuticals, healthcare and industrial products, with a particular focus on automotive, media, technology and steel.

In Sweden, Benny Guttman has been appointed a partner in the Gothenburg office. He has previously worked for three consulting firms, Accenture, EY and McKinsey & Company, prior to joining Roland Berger in 2017. In between consulting, he spent eight years at Volvo, the last six of which he was Senior Vice President at Volvo Logistics where he headed Strategy, Corporate Values and Operational Development. Guttman’s work is focused around strategic and operational improvement at clients in the automotive, manufacturing, med-tech and retail industries.

Artem Zakomirnyi has been serving the consulting firm for over twelve years, working from the offices in Moscow, Russia, and Kiev, Ukraine. He specialises in strategic and operations work in the consumer goods and retail industries. Zakomirnyi also has a deep understanding of supply chain and logistics topics, for both the traditional retail as well as online (e-commerce) retail channels.

Based in Bucharest, Romania, Szabolcs Nemes has been with the firm since 2001, in the period developing industry expertise in energy & utilities, telecommunications and transportation. His functional expertise spans strategy development, large-scale transformation, definition of new organisation models, operational excellence and efficiency improvement. Nemes supports clients in Romania and throughout the Central Eastern European region.

Last but not least, the Frenchman Pierre-Antoine Bodin, who has been named a partner in Roland Berger’s Pharma and Healthcare practice. Prior to joining the management consultancy in 2012, he spent eight years in various supply chain and marketing positions at pharma companies Johnson & Johnson and Pfizer.

Beyond the eight new partners in Europe, Roland Berger also promoted four partners in Asia and the Middle East.

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Report on Authorised Dealer’s Entitlement to Compensation

Under certain circumstances, an authorised dealer may be entitled to claim compensation after termination of the contract with the company if the latter continues to be able to use its business contacts.

In our experience at the commercial law firm GRP Rainer Rechtsanwälte, it is common for an authorised dealer’s potential claims for compensation after termination of the contract with the company to lead to legal disputes. We note that because the German legislature has not explicitly regulated authorised dealers’ entitlement to compensation, it is possible for the provisions governing commercial agents’ right to compensation under sec. 89b of the Handelsgesetzbuch (HGB), Germany’s Commercial Code, to be applied analogously.

These state that the commercial agent is entitled to claim compensation after termination of the contractual relationship with the company if he or she has established new business contacts and the company continues to be able to benefit from these contacts after the contract has come to an end. This right to compensation cannot be contractually excluded.

The provisions can be applied analogously to an authorised dealer’s entitlement to compensation under certain circumstances. The conditions that need to be met for this to happen were set out by the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in a ruling from 5 February 2015 (Az.: VII ZR 315/13). According to this ruling by Germany’s highest court of ordinary jurisdiction, the right to claim compensation only arises if the authorised dealer was integrated into the company’s sales force and committed to making his or her business contacts available to the company so that the latter can continue using them. The authorised dealer must have committed to transferring his or her client base to the company in such a way that the company is able to readily harness the benefits of this client information without any delay. Furthermore, the authorised dealer must by virtue of special contractual arrangements be integrated into the company’s sales force to such an extent that he or she from an economic per
spective has extensive duties to perform that would otherwise have to be met by a commercial agent.

In the case in question, the BGH denied the authorised dealer the right to claim compensation because the company had not been entitled to use the client information, having contractually committed to block the transferred data and delete it at the request of the authorised dealer.

The right to claim compensation is a controversial topic in the case of commercial agents and all the more so in relation to authorised dealers. Lawyers who are experienced in the field of commercial law can assist authorised dealers and businesses in drafting agreements as well as in the event of legal disputes.

If you would like to find out more, please visit https://www.grprainer.com/en/legal-advice/commercial-law.html

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Rechtsanwälte GRP Rainer

Criteria for Assessing Whether GmbH Managing Directors are Subject to Mandatory Social Security Contributions

According to a decision of the Bundessozialgericht, Germany’s federal court of appeals for social security matters, GmbH managing directors are ordinarily deemed to be employees of the company and hence subject to mandatory social security contributions.

It is not uncommon for disputes to arise over whether GmbH managing directors are subject to mandatory social security contributions. We at the commercial law firm GRP Rainer Rechtsanwälte note that it can prove to be a costly affair for the company if it is determined that the managing director is subject to mandatary social security contributions but no payments have been made to this end and therefore supplementary contributions become payable.

In rulings from 14 March 2018, the Bundessozialgericht set out clear criteria for assessing whether GmbH managing directors are subject to mandatory social security contributions (Az.: B 12 KR 13/17 R and B 12 R 5/16 R). According to these judgments, the managing director of a GmbH is ordinarily deemed to be an employee of the company. The Court held that they are only considered not to be employees if they own more than 50 per cent of the company’s share capital and are thus majority shareholders. The Court went on to state that if they have a 50 per cent stake in the share capital, a presumption in favour of self-employed status is then only possible if the articles of association clearly confer a full blocking minority on the managing director and this enables him or her to prevent instructions from being issued by the general meeting of the shareholders. The Court therefore concluded that the decisive factor for the managing director’s status as self-employed is whether he or she has the legal power to determine the fate of the company by influencing the general meeting of the shareholders.

In doing so, the Bundessozialgericht has set high standards for recognizing managing directors as self-employed. It also made clear that the crucial factor in assessing whether the managing director is an employee and thus subject to mandatory social security contributions is not how he or she acts in relation to third parties. Even if he or she is granted broad powers and freedoms, this alone does not indicate that they are self-employed. Instead, it is the extent to which the managing director has recourse to legally enforceable measures for the purposes of influencing resolutions of the general meeting of the shareholders that is the key factor.

Companies should keep in mind the issue of mandatory social security contributions for managing directors as early as when agreements are being drafted in order to avoid unpleasant surprises at a later date. Lawyers who are experienced in the field of company law can provide companies as well as shareholders with expert advice on matters that go beyond mandatory social security contributions.

If you would like to find out more, please visit https://www.grprainer.com/en/legal-advice/company-law.html