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GERMANY

N/A

Pillar Telecom infrastructure & competition  |  Sub-pillar Presence of an independent telecom authority
Presence of independent telecom authority
It is reported that the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway (BNetzA), the executive authority for the supervision and administration of services in the telecommunications sector, is independent from the government in the decision-making process.
Coverage Telecommunications sector

GERMANY

Since October 2002, last amended in December 2022

Pillar Cross-border data policies  |  Sub-pillar Local storage requirement
The Fiscal Code of Germany (Abgabenordnung)
Pursuant to Section 146 of the Fiscal Code, financial accounts and records must be kept within Germany. Exceptionally, the competent revenue authority may authorise the storage of electronic accounts data outside of Germany if certain conditions are met (e.g., information is given about the location of the data processing and name of the third party processor; the data remains fully accessible and taxation is not hampered).
Coverage Horizontal

GERMANY

Since February 2005, last amended in December 2022

Pillar Cross-border data policies  |  Sub-pillar Local storage requirement
Value Added Tax Act (Umsatzsteuergesetz)
According to §14b of the Value Added Tax Act, all VAT invoices must be stored within Germany. When these invoices are stored electronically, they can be stored within another EU member state. However, the tax authority must be notified of the location of the data servers and have the ability to access and download the data.
Coverage Horizontal

GERMANY

Since April 2020

Pillar Cross-border data policies  |  Sub-pillar Conditional flow regime
Digital Health Appliances Ordinance (Digitale Gesundheitsverordnung)
Under the Digital Health Appliances Ordinance, data related to digital health appliances can only be processed in the EU or in jurisdictions where there is an adequacy decision (Section 4.3), while other exceptions, such as standard contractual clauses, are not allowed. Digital Health Appliances (Digitale Gesundheitsanwendungen) are low-risk medical digital devices that are intended to detect or alleviate illnesses, assist in diagnosis, and are based primarily on digital technology. They include apps and browser-based applications. A "DiGA" can be used either by the patient alone or shared by the doctor and patient.
Coverage Digital health appliances

GERMANY

Since April 2016, entry into force in May 2018
Since June 2017, last amended in June 2021

Pillar Domestic data policies  |  Sub-pillar Framework for data protection
General Data Protection Regulation (Regulation 2016/679)

Federal Data Protection Act (Bundesdatenschutzgesetz)
The European Union General Data Protection Regulation (GDPR) provides a comprehensive framework for data protection that applies to all EU Member States. Germany implemented the GDPR in 2018 through the Federal Data Protection Act.
Coverage Horizontal

GERMANY

Since June 2017

Pillar Domestic data policies  |  Sub-pillar Requirement to perform a Data Protection Impact Assessment (DPIA) or have a data protection officer (DPO)
Federal Data Protection Act (Bundesdatenschutzgesetz)
Germany's implementation of the EU General Data Protection Regulation (GDPR) broadens the scope of the requirement for a data protection officer under Art. 37 GDPR. According to Art. 38 of the Federal Data Protection Act, public entities and private entities with at least 20 permanent employees in automated data processing have to appoint a data protection officer; "automated data processing" here includes most computer-based activities. In addition to GDPR requirements, all entities that perform operations for which a data protection impact assessment is necessary, according to the GDPR, also have to appoint a data protection officer.
Coverage Horizontal

GERMANY

Since June 2004, last amended in June 2021

Pillar Domestic data policies  |  Sub-pillar Requirement to allow the government to access personal data collected
Telecommunications Act (Telekommunikationsgesetz (TKG))
Sections 173 and 174 of the Telecommunications Act require that providers of publicly available telecommunications services for consumers establish an automated system for data access for the Federal Networks Agency and law enforcement agencies regarding certain types of data (name and address, date of birth, telephone number of a certain user) and immediately respond to other data demands if there is evidence of a concrete criminal act within the meaning of Section 2.1 of the Federal Criminal Police Office Act.
Coverage Telecommunications sector

GERMANY

Since July 2000
Since February 2007

Pillar Intermediary liability  |  Sub-pillar Safe harbour for intermediaries for copyright infringement
Directive 2000/31/EC (E-Commerce Directive)

Telemedia Act (Telemediengesetz)
The Directive 2000/31/EC (E-Commerce Directive) is the legal basis governing the liability of Internet Services Providers (ISPs) in the EU Member States and includes a conditional safe harbour. Not all Member States have transposed the relevant articles consistently, leading to divergent national case law that could cause legal insecurity on an EU level.
Under §7-10 of the Telemedia Act, there are liability exemptions for intermediaries in cases where these have not actively triggered a transmission, chosen its recipient, where they have no knowledge of illegal content or activities or where they immediately remove related content. This broadens the scope of Art. 14 of the EU E-Commerce Directive, which only refers to "knowledge".
Coverage Electronic information and communication services

GERMANY

Since July 2000
Since February 2007

Pillar Intermediary liability  |  Sub-pillar Safe harbour for intermediaries for any activity other than copyright infringement
Directive 2000/31/EC (E-Commerce Directive)

Telemedia Act (Telemediengesetz)
The Directive 2000/31/EC (E-Commerce Directive) is the legal basis governing the liability of Internet Services Providers (ISPs) in the EU Member States and includes a conditional safe harbour. Not all Member States have transposed the relevant articles consistently, leading to divergent national case law that could cause legal insecurity on an EU level.
Under §7-10 of the Telemedia Act, there are liability exemptions for intermediaries in cases where these have not actively triggered a transmission, chosen its recipient, where they have no knowledge of illegal content or activities or where they immediately remove related content. This broadens the scope of Art. 14 of the EU E-Commerce Directive, which only refers to "knowledge".
Coverage Electronic information and communication services

GERMANY

Reported in 2021, last reported in 2023

Pillar Intermediary liability  |  Sub-pillar User identity requirement
Mandatory SIM card registration
It is reported that Germany imposes an identity requirement for SIM registration. Anyone wanting to purchase a SIM card has to provide their national ID card or a passport in case of foreigners to activate a new prepaid SIM card.
Coverage Telecommunications sector

GERMANY

Since October 2017

Pillar Intermediary liability  |  Sub-pillar Monitoring requirement
Act to Improve Law Enforcement in Social Networks (NetzDG)
NetzDG establishes broad requirements for dealing with illegal content and user complaints. Under §3 of the law, platform operators have to remove or block manifestly illegal content within 24 hours after receiving a complaint unless otherwise agreed with the competent law enforcement agency. Other illegal content has to be blocked or removed seven days after receiving a complaint unless the decision whether the content is illegal is contingent on the veracity of a factual claim or the provider has put in place an independent body dealing with these claims. These procedures have to respect due process. Providers who receive more than 100 complaints per year have to submit two reports on these procedures each year (§2 NetzDG). The law has faced criticism from various human rights groups, the United Nations and the Council of Europe, among others. Criticisms include the potential undermining of freedom of speech and expression, vague definitions and arbitrary criteria for removal of content, and disproportionate sanctions for failing to comply.
Coverage Online platforms

GERMANY

Since March 2010

Pillar Intellectual Property Rights (IPRs)  |  Sub-pillar Adoption of the World Intellectual Property Organization (WIPO) Performances and Phonogram Treaty
WIPO Performances and Phonograms Treaty
The European Union and Germany have adopted the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty. The treaty was ratified on 14 December 2009 and came into effect on 14 March 2010.
Coverage Horizontal

GERMANY

Since June 2016
Since April 2019

Pillar Intellectual Property Rights (IPRs)  |  Sub-pillar Effective protection covering trade secrets
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)

Law Transposing Directive (EU) 2016/943 on the Protection of Trade Secrets Against Their Unlawful Acquisition, Use, and Disclosure (Gesetz zur Umsetzung der Richtlinie (EU) 2016/943 zum Schutz von Geschäftsgeheimnissen vor rechtswidrigem Erwerb sowie rechtswidriger Nutzung und Offenlegung)
The Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) is key in harmonising national laws concerning trade secrets. Germany transposed the Directive in 2018, as well as with the Law transposing Directive (EU) 2016/943 on the protection of trade secrets against their unlawful acquisition, use and disclosure.
Coverage Horizontal

GERMANY

Since November 2018
Since May 2014

Pillar Telecom infrastructure & competition  |  Sub-pillar Passive infrastructure sharing obligation
Resolution BK1-17/001 (Beschluss BK1 - 17/001)

Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks
It is reported that passive sharing is mandated and practised both in the mobile and fixed sectors. To bolster mobile coverage and stimulate infrastructure sharing for MFCN, the Federal Network Agency imposed a specific obligation as part of the frequency award decision BK1-17/001. Upon request by other nationwide assignment holders, assignment holders must, in compliance with telecommunications and antitrust law, engage in negotiations on the shared use of existing nationwide networks (roaming) and about infrastructure sharing. The negotiations should be non-discriminatory. Infrastructure sharing is practised in Germany in the fixed sector and in the mobile sector.
In addition, Directive 2014/61/EU (Art. 3.2) establishes that Member States shall ensure that, upon written request of an undertaking providing or authorised to provide public communications networks, any network operator must meet all reasonable requests for access to its physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of high-speed electronic communications networks. Such written request shall specify the elements of the project for which the access is requested, including a specific time frame.
Coverage Telecommunications sector

GERMANY

Reported in 2020, last reported in 2023

Pillar Telecom infrastructure & competition  |  Sub-pillar Presence of shares owned by the government in telecom companies
Presence of shares owned by the government in the telecom sector
It is reported that the German State holds over a 30% stake in Deutsche Telekom AG. This stake includes 13.8% owned by the Federal Republic and 16.6% by KfW Bankengruppe, a state-owned investment and development bank. Deutsche Telekom AG, based in Germany, is one of the largest telecommunications providers in Europe, operating in over 50 countries worldwide.
Coverage Telecommunications sector

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