Last Updated October 31, 2018

Law and Practice

Authors



Luther Rechtsanwaltsgesellschaft mbH (Cologne) has more than 380 lawyers and tax advisers in ten national and six international offices, of which 16 specialise in outsourcing in the offices in Cologne, Frankfurt, Essen, Berlin and Stuttgart. The firm's key areas of practice are technology, media and telecommunications, data protection law, IT security, and public procurement law in the field of IT.

Apart from specific sectors such as healthcare and banking and finance, and excepting a number of rules protecting employees’ rights, German law allows parties comparative freedom in how they choose to structure an outsourcing project. If and as far as an outsourcing concerns personal data (as is almost always the case), specific rules need to be obeyed under the data protection framework, namely the GDPR, which applies throughout the EU.

General civil law (civil code/commercial code) is relevant for fundamental aspects such as performance, consideration, warranty and liability. An outsourcing project is made up of an abundance of individual services that must be assigned to the contract types regulated in the German civil code (BGB):

  • purchase contract (§§433 et seq of the civil code, eg, purchase of hardware and software, purchase of network components, and transfer of assets from customer to provider);
  • rental agreement (§§535 et seq of the civil code, eg, for IT services hosting, cloud computing, rental of computer centre space, rental of hardware and software, leasing of software and hardware);
  • service or work contract (§§611 et seq, 631 et seq of the civil code, eg, support, software maintenance, network services); and
  • warehousing and transportation services (§§407 et seq of the commercial code).

If the outsourcing provider is contracted to achieve a specific goal, the law on contracts for work and services applies. If, however, it is only contracted to perform one action, ie, merely to make an effort (eg, to operate a call centre), the service is assessed in accordance with the provisions of the service contract. Accordingly, contracts should provide for clear language as to expectations and consequences in cases of poor performance or failure.

Luther Rechtsanwaltsgesellschaft mbH

Anna-Schneider-Steig 22
50678 Cologne

+49 221 9937 0

+49 221 9937 110

cologne@luther-lawfirm.com www.luther-lawfirm.com
Author Business Card

Authors



Luther Rechtsanwaltsgesellschaft mbH (Cologne) has more than 380 lawyers and tax advisers in ten national and six international offices, of which 16 specialise in outsourcing in the offices in Cologne, Frankfurt, Essen, Berlin and Stuttgart. The firm's key areas of practice are technology, media and telecommunications, data protection law, IT security, and public procurement law in the field of IT.

{{searchBoxHeader}}

Select Topic(s)

loading ...
{{topic.title}}

Please select at least one chapter and one topic to use the compare functionality.