Schlecker was once Germany’s best-known drugstore chain, with thousands of small branches. In January 2012 it filed for insolvency. Several thousand employees lost their jobs. The founder, Anton Schlecker, stood trial in Stuttgart. The failure of the chain was not the charge. Insolvenzverursachung an sich ist kein Straftatbestand, causing an insolvency is not in itself a criminal offense. The central question of the trial was when Schlecker had recognized, or should have recognized, that the company could not pay its debts. On 27 November 2017 the regional court found that he and his children knew by 1 February 2011 at the latest, after a business report for 2010 had come in. After that date Schlecker had moved assets of about 3.6 million euros aside. The court convicted him of intentional bankruptcy in four cases and gave him a two-year suspended sentence. His children Lars and Meike received prison terms of two years and nine months and two years and eight months. A pharmacy trade news report summed up the line the law draws: Schlecker ist dafür verantwortlich, man kann ihm die Schuld daran geben. Dafür schuldig sprechen kann man ihn nicht. Schlecker is responsible for the collapse, and one can blame him for it. One cannot convict him for it.
Top Grade, Then Disqualified
Karl-Theodor zu Guttenberg’s doctoral thesis had received the top grade. Both reviewers rated it summa cum laude. When the plagiarism became known, the University of Bayreuth did not lower the grade. Its own explanation: Verstöße dagegen führen nicht zu einer anderen Note, sondern wie hier zur „Disqualifikation”. Violations of the rules lead not to a different grade but to disqualification. The university withdrew the doctorate on 23 February 2011. For this it did not need to decide whether he had cheated on purpose. It was enough that the title had been acquired unlawfully in objective terms. Guttenberg admitted that he had not worked correctly. He denied any intent to deceive. A commission for self-regulation in science then examined that question separately. On 6 May 2011 it found that he had die Standards guter wissenschaftlicher Praxis evident grob verletzt und hierbei vorsätzlich getäuscht, evidently and grossly violated the standards of good scientific practice and deceived on purpose.
When a Product Test Is Wrong
Stiftung Warentest publishes product tests that can make or break a product. In the 1970s a maker of ski safety bindings sued the foundation over a comparative test. On 9 December 1975 the Federal Court of Justice set the standard for such tests. The investigation must be neutral, objektiv, and sachkundig durchgeführt, carried out with expertise. The court said that nicht die objektive Richtigkeit eines gewonnenen Ergebnisses im Vordergrund steht, sondern das Bemühen um diese Richtigkeit. The objective correctness of a result is not what counts first. What counts is the effort to reach it. Testers have einen erheblichen Spielraum, a considerable latitude, in their methods. A test becomes unlawful when its examination and conclusions are no longer vertretbar, defensible. The same yardstick works the other way. In 2014 Warentest lost a case over the chocolate Ritter Sport Voll-Nuss. The Munich higher regional court found that Warentest had not proven which kind of flavoring the chocolate contained. It had geschlussfolgert, inferred it. Warentest accepted the ruling of 9 September 2014. Its board member Hubertus Primus said the report had nicht präzise und ausführlich genug dargelegt, had not explained precisely and fully enough, how it reached its verdict on the label.
The Fall on Wetten, dass..?
On 4 December 2010 Samuel Koch, then 23, made a bet on ZDF’s live show Wetten, dass..?. He would jump over five oncoming cars of growing size, one after another, in forward somersaults wearing spring boots. At the fourth car he fell. He has been paralyzed since. ZDF ordered a review of how the accident happened and of the safety measures. On 26 January 2011 the German Sport University Cologne presented an independent expert opinion. It found weder bei der Wettvorbereitung noch bei der Umsetzung ein Fehlverhalten, no misconduct either in preparing the bet or in carrying it out. A feasibility check had been made. The risk assessment was nachvollziehbar und für die Bedingungen adäquat, understandable and adequate for the conditions. The biomechanics expert Gert-Peter Brüggemann named the cause: ein bewegungstechnischer Fehler, an error in the jumping movement. ZDF still dropped high-athletic bets from the show.
The Toll Without a Risk Assessment
After the German car toll failed, the federal government had to pay the operators 243 million euros in damages. In 2023 the Federal Transport Ministry had lawyers examine whether it could make former minister Andreas Scheuer pay. Their opinion looked at how he had decided. He had signed the operator contracts at the end of 2018, noch bevor endgültige Rechtssicherheit beim EuGH bestand, before the European Court of Justice had given final legal certainty. The lawyers found: Es habe keine entsprechende Risikobewertung gegeben, there had been no corresponding risk assessment. A claim would still have needed gross negligence. Einfache Fahrlässigkeit dürfte daher, so das Gutachten, nicht ausreichen, simple negligence would probably not be enough. The burden of proof for gross negligence lay with the federal government. There were no signs of intent. Federal law also has no liability rule for ministers. In December 2023 the ministry decided not to sue. It added: Unabhängig davon bleibt es bei der unbestrittenen politischen Verantwortlichkeit von Bundesminister a.D. Scheuer. Regardless of this, the undisputed political responsibility of former minister Scheuer remains.
The Business Judgment Rule
A German board member can make a business decision that fails and still have done nothing wrong. Section 93 of the Stock Corporation Act, the Aktiengesetz, says so: Eine Pflichtverletzung liegt nicht vor, wenn das Vorstandsmitglied bei einer unternehmerischen Entscheidung vernünftigerweise annehmen durfte, auf der Grundlage angemessener Information zum Wohle der Gesellschaft zu handeln. There is no breach of duty if the board member could reasonably assume that he was acting on the basis of appropriate information and for the good of the company. The rule goes back to the ARAG/Garmenbeck judgment of the Federal Court of Justice of 21 April 1997. Parliament wrote it into the law with the UMAG of 22 September 2005. The courts give a board einen weiten Handlungsspielraum, a wide room for action. That room includes accepting the danger of Fehlbeurteilungen und Fehleinschätzungen, misjudgments and wrong estimates. In 2022 the Federal Court of Justice applied the same principles to the criminal offense of breach of trust. A court asks what the board knew and how it decided at the time, from the ex ante view. The later outcome is not the test.
Gross Negligence and the Payout
When a German household insurance or car insurance pays for damage, it asks how the damage came about. If the customer caused it through grobe Fahrlässigkeit, gross negligence, the insurer may cut the payment. Section 81 of the Insurance Contract Act lets it reduce the payment in proportion to the severity of the fault. Before the reform of 2008 the rule was alles oder nichts, all or nothing. A grossly negligent customer received nothing. Typical cases are a candle left burning in an empty room, a red light run, a phone used at the wheel, and a window left tilted open when nobody is home. Cuts of 25, 50 or 75 percent are common, and up to 100 percent in extreme cases. In 2009 the Münster regional court dealt with a driver who ran a red light. Her comprehensive insurance paid half of the damage, and the court rejected her claim for the rest.
Words for How a Win Was Earned
German football talk rarely stops at the score. It also says how the win came about.
ein verdienter Sieg — A deserved win. DWDS gives the example of a cup final that ended mit einem knappen, aber verdienten Sieg, with a narrow but deserved win.
ein glücklicher Sieg — A lucky win. DWDS lists it among the usual ways to describe a win.
der Arbeitssieg — A work win. Duden marks it as sports jargon: a win gained only with effort against an opponent who is actually weaker.
der dreckige Sieg — A dirty win. DWDS: a game won despite a weak performance of one’s own, a win that was not deserved. Coaches often say their team needs one now and then.
der Dusel — Duden: unverdientes Glück, undeserved luck. Since the 1970s the phrase Bayern-Dusel has been used about late, lucky wins of Bayern Munich.
In October 2008 Bayern won luckily at Karlsruhe. The reporter of the club’s own channel, fcb.tv, asked Uli Hoeneß: Haben wir heute wieder die Dusel-Bayern erlebt? Did we see the lucky Bayern again today? Hoeneß answered: Sie müssen sich in der nächsten Woche einen neuen Job suchen! You will have to look for a new job next week. He added that the question would have been understandable as the seventh question. From the club’s own reporter as the first question, he called it hirnverbrannt, brainless. The club’s media director said the reporter had only been standing in. He added that the young man would probably not be used again.
Sayings About Luck and Ability
das Glück des Tüchtigen — The luck of the capable. DWDS: the success that an active, determined person fights for. One sports report used it for a late goal by a player who had worked hard all game. Wikiquote gives a line by Field Marshal Helmuth von Moltke from his essay Über Strategie in shortened form: Glück hat auf Dauer […] nur der Tüchtige. In the long run, only the capable man has luck.
mehr Glück als Verstand haben — To have more luck than sense. DWDS: said of a lucky person.
Ein blindes Huhn findet auch mal ein Korn. — Even a blind hen finds a grain now and then. DWDS: even the least capable person sometimes succeeds.
auf gut Glück — On good luck. DWDS: without any guarantee of a good result.
Care Owed, Not a Cure
Under German law a doctor does not owe a patient a cure. Since 2013 the treatment contract has its own sections in the Civil Code. The treatment must follow the generally recognized professional standards at the time it is given. A legal guide puts it in one line: Der Behandelnde schuldet keinen Heilerfolg, wohl aber eine Behandlung nach anerkannten Standards. The person treating owes no cure, but does owe treatment by recognized standards. A treatment error exists when what was done, the Ist-Standard, falls short of what should have been done, the Soll-Standard. Patients who suspect an error can turn to the expert commissions and arbitration boards of the medical chambers. In 2024 these bodies received 7,607 applications and decided 4,163 cases. In 1,134 cases the medical and legal experts found a treatment error.