Beste Auslagerung Anwälte in Berlin

About Auslagerung Law in Berlin, Deutschland

Auslagerung, or outsourcing, in Berlin involves transferring business processes, services, or tasks to a third party. In German law, outsourcing touches civil contract law, employment law, and public procurement rules. The key legal concept for employees is the Betriebsübergang, where workers may transfer with their contracts to the new service provider under certain conditions.

In Berlin, outsourcing arrangements between private companies are governed primarily by the German Civil Code (BGB) and the relevant contract laws. When public authorities outsource services, public procurement rules under the GWB and VgV apply to ensure fair competition and transparency. Data protection obligations arise if personal data are processed by the outsourcing party, invoking GDPR and the German Federal Data Protection Act (BDSG).

Understanding these intersections helps you assess risk, protect rights, and structure a compliant outsourcing agreement. Working with a specialist attorney in Berlin who can navigate civil, labor, and procurement law is often essential for complex deals or disputes.

Why You May Need a Lawyer

• Betriebsübergang risk in a Berlin outsourcing project. If a company plans to outsource a department, employees may transfer to the new contractor under BGB §613a. A lawyer can negotiate transfer terms and protect accrued rights and severance obligations.
• Public procurement pitfalls during Berlin contracts. When Berlin authorities or public agencies award contracts, strict bidding, submission, and evaluation rules apply under GWB and VgV. A lawyer can oversee bid compliance and protest rights.
• Data protection obligations in IT outsourcing. Processing employee or customer data by a contractor triggers GDPR and BDSG requirements. A lawyer helps draft data processing agreements and data breach responses.
• Contractual liability and service level disputes. If an outsourcer fails to meet SLAs or performance metrics, a lawyer can guide remedies, terminations, or renegotiations with risk-based approaches.
• Employee rights during a restructuring in Berlin. If a business reorganization leads to outsourcing, workers may have rights to information, consultation, and possible objections under works councils and collective agreements.
• Cross-border outsourcing considerations. When a Berlin company outsources to a foreign provider, data transfer and local law implications require careful contract terms and compliance checks.

Local Laws Overview

BGB § 613a - Betriebsübergang governs the transfer of employees when a business or part of a business is transferred to a new employer. The new employer must recognize existing employment contracts, and employees retain most rights and obligations. This provision is central to outsourcing in Germany and applies in Berlin just as it does nationwide. Effective since long-standing in the BGB, with ongoing application in modern outsourcing deals.

Gesetz gegen Wettbewerbsbeschränkungen (GWB) regulates competition and procurement rules for awarding public contracts. Public sector outsourcing in Berlin must comply with the GWB to ensure fair competition and transparency in bidding. The GWB sets framework conditions for how contracts are advertised, bid evaluation is performed, and remedies are available for bid challenges. Current framework used across Germany, including Berlin, for public outsourcing.

Vergabeverordnung (VgV) implements EU procurement directives at the national level. It details procedures for tenders, selection criteria, contract award, and thresholds for different contract types. Berlin authorities apply the VgV when outsourcing services that fall under public procurement. Version used in Germany and Berlin to govern tender processes.

Datenschutz und outsourcing Processing of personal data by a contractor falls under GDPR and BDSG. When outsourcing involves HR data, customer data, or other sensitive information, you must have a robust data processing agreement, data protection impact assessments, and breach notification procedures. GDPR took effect on 25 May 2018; BDSG aligns national rules with GDPR.

“A Betriebsübergang transfers employee rights to the new employer, preserving employment relations under §613a BGB.”

Frequently Asked Questions

What is Betriebsübergang and when does it apply in Berlin?

Betriebsübergang is the transfer of a business or part of it to another employer. It applies when outsourcing results in a new employer taking over operations and employees. The original employer remains liable for certain obligations, and employees keep their contracts under §613a BGB.

How do I know if outsourcing requires a public procurement process in Berlin?

If the contract crosses EU thresholds or concerns essential services, Berlin authorities must follow GWB and VgV procedures. A procurement professional or lawyer can determine whether the threshold is met and guide the bidding process.

Who is responsible for employee consent during an outsourcing in Berlin?

Employees have rights to information and consultation, often via works councils, in Germany. If a Betriebsübergang occurs, employees must be informed in a timely manner, and their consent may be required for various steps depending on the circumstances.

Do I need a lawyer to draft an outsourcing contract in Berlin?

Yes, a lawyer helps ensure compliance with BGB, GWB, VgV, and data protection rules. They can negotiate terms, clarify liability, define SLAs, and include appropriate termination and transition provisions.

What are typical data protection obligations in an outsourcing contract?

A data processing agreement should specify purposes, data categories, security measures, transfer mechanisms, and breach notification timelines. GDPR and BDSG govern these terms in Germany.

How long does a Betriebsübergang take in a Berlin outsourcing deal?

Timing varies by complexity and notification requirements. A straightforward transfer can occur within weeks, while complex reorganizations may take several months, including employee consultation and contract negotiations.

What is the difference between outsourcing and a Betriebsübergang?

Outsourcing refers to transferring tasks to a third party contractually. A Betriebsübergang involves transferring employees under law, with rights and obligations carried over to the new employer.

Should I consider a cross-border outsourcing for a Berlin project?

Cross-border deals add data transfer, regulatory, and tax considerations. You should assess GDPR compliance, local employment law, and contract enforceability before proceeding.

What are common remedies if an outsourcer fails to meet SLAs in Berlin?

Remedies include contract termination, service credits, renegotiation, or step-in rights. A lawyer can draft clear SLAs and termination clauses to reduce disruption.

How much does it cost to hire a Berlin outsourcing lawyer?

Costs vary by complexity, from hourly rates to flat fees for standard contracts. Budget for initial consultations, contract drafting, and potential dispute resolution.

Is a works council involved in outsourcing decisions in Berlin?

Yes, if a works council exists at the employer, it typically participates in information and consultation during major outsourcing steps. This protects employee interests during change processes.

Additional Resources

• Gesetze-im-Internet - Official source for German laws including BGB, GWB, VgV, and BDSG. Use for exact statutory text and current versions. https://www.gesetze-im-internet.de/
• European Commission GDPR Portal - Central EU guidance on data protection and cross-border data transfers relevant to outsourcing. https://ec.europa.eu/info/law/law-topic/data-protection_en
• EU Public Procurement Rules - Overview of EU procurement rules that influence Berlin outsourcing of public services. https://ec.europa.eu/info/policies/public-procurement_en

Next Steps

1. Assess your outsourcing scope. Draft a high level description of the services, data involved, personnel impact, and whether a Betriebsübergang may occur. This helps determine applicable laws.
2. Consult a Berlin-based attorney early. Engage a lawyer with experience in civil, employment, and procurement law to review contracts and risk areas before signing.
3. Map employee rights and consultation steps. Identify works councils, notice periods, and information obligations to ensure compliant transitions.
4. Review data protection implications. Prepare a data processing agreement, DPIAs, and breach notification plans if personal data is involved.
5. Prepare procurement strategy if public funds are involved. Determine if GWB and VgV apply, timeline, and protest rights; plan for transparent bidding.
6. Negotiate contract terms carefully. Include SLAs, liability caps, exit strategies, and transition assistance to minimize disruption.
7. Document decisions and keep records. Maintain clear documentation of all information and consultations for potential audits or disputes.