Corona I: Important information for employers

According to the Federal Ministry of Finance, employers can now pay their employees subsidies and support up to an amount of 1,500 euros tax-free or as non-cash benefits. This covers special benefits that employees receive between 1 March 2020 and 31 December 2020. This is subject to the condition that the allowances and benefits are paid in addition to the wages already owed. The tax-free benefits must be recorded in the payroll account. Other tax exemptions and valuation allowances remain unaffected. The allowances and benefits also remain non-contributory in social insurance.

The tax and contribution-free nature of the special payments recognises the special and indispensable contribution made by employees during the Corona crisis.

(Source: https://www.bundesfinanzministerium.de/Content/DE/Pressemitteilungen/Finanzpolitik/2020/04/2020-04-03-GPM-Bonuszahlungen.html )

Corona II: Important information for business clients

we would like to briefly summarise the grateful wealth of information provided by governments and business associations on the legislator's aid measures in two important points for you:

 

  1. Emergency Aid Programme of the State of Baden-Württemberg

Support under the emergency aid programme is intended to secure the economic existence of solo self-employed persons, commercial enterprises, social enterprises and members of the liberal professions. Funding is provided in the form of a one-off, non-repayable grant, initially for three months, of up to

  -  9,000 euros for solo self-employed persons and companies with up to five employees

   -15,000 euros for companies with up to ten employees,

   - 30,000 euros for companies with up to 50 employees.

 

The local Chambers of Commerce and Industry as well as the Chambers of Skilled Crafts and Small Businesses are responsible for the preliminary examination of the contents of all applications, also for members of the liberal professions.

 

We have examined the application (https://assets.baden-wuerttemberg.de/pdf/200325_Antrag_Soforthilfe-Corona_BW.pdf ) for you:

A central problem of the application is the indication of the reason for the economic situation threatening the existence of the company or the liquidity bottleneck or slump in turnover. A simple reference to the Corona pandemic and the related serious loss of demand and production, interrupted supply chains, waves of cancellations, loss of fees, massive losses of turnover and profits are not sufficient grounds for a grant.

It must be made clear at this point that and why the running costs (of what kind and amount) cannot be covered by the company itself now or in the near future.

It must be stated to what extent this can no longer be provided without additional equity or borrowed funds only after 11 March 2020 as a result of the effects of the corona pandemic. The bottleneck, which may even lead to a situation threatening the existence of the company, must be directly attributable to the corona pandemic. This means that it should be stated to what extent the company would not have experienced a liquidity bottleneck under normal circumstances (without the corona pandemic and its effects) due to its current obligations.

It may therefore be helpful or necessary for your advisors, in particular business lawyers and tax advisors, to assist in data collection and formulation.

The programmes of L-Bank and Bürgschaftsbank were adapted to the Corona crisis (https://www.l-bank.de/artikel/lbank-de/tipps_themen/programmangebot-der-l-bank-bei-abflauender-konjunktur-und-krisensituationen.html )

Here too, it may therefore be necessary for your business lawyers to be involved in data collection and formulation, but also in negotiations.

 

  1. Suspension of the obligation to file for insolvency for companies damaged by the corona epidemic

We have already reported on this. There is a formulation aid for the law, which we have studied for you. It is expected to regulate the following:

This duty of the manager to file for bankruptcy is punishable by law and liability. Further liability risks result from payment prohibitions under company law if insolvency proceedings have been initiated. The executive boards of associations are also subject to the obligation to file for insolvency with a liability. The current uncertainties also make it difficult to prepare reliable forecasts and plans on which the granting of restructuring loans could be based.  Consequently, the granting of restructuring loans is also associated with liability and rescission risks, which further inhibit the willingness to grant loans. Finally, if the debtor becomes insolvent, there is the risk that creditors and contractual partners of the debtor will have to return payments and benefits received in subsequent insolvency proceedings as a result of an insolvency challenge. This can jeopardise the maintenance of business relations with the debtor.

The aim of the proposed insolvency legislation is to enable and facilitate the continuation of businesses that have become insolvent or are experiencing financial difficulties as a result of the COVID 19 pandemic.

This suggests that not only the obligation to file for insolvency but also the right of rescission will be changed.

We assume that an insolvency which the entrepreneur justifies with the Corona crisis does not result in the creditor having to reimburse payments received from the debtor based on these grounds as a result of a rescission.

We can only make this binding once the law has been passed.

 

Consult us on the details. We will keep you informed.

Corona III: The obligation to file for insolvency for companies affected by the corona epidemic is suspended

(Press release of the Federal Ministry of Justice of 16.03.2020)

The Federal Ministry of Justice and Consumer Protection is preparing a legal regulation to suspend the obligation to file for insolvency in order to protect companies that get into financial difficulties as a result of the corona epidemic. The model for this is provided by regulations that were passed on the occasion of the floods of 2002, 2013 and 2016.
The Federal Minister of Justice and Consumer Protection, Christine Lambrecht, explains:
"We want to prevent companies having to file for insolvency only because the aid decided on by the Federal Government does not reach them in time. The regular three-week period of the Insolvency Code is too short for such cases. We are therefore flanking the aid package already adopted by the German government with a suspension of the obligation to file for insolvency until 30 September 2020 for the companies affected. With this step we are helping to cushion the consequences of the outbreak for the real economy.
The German government has announced that it will provide various instruments to support the liquidity of companies that run into financial difficulties due to the effects of the corona epidemic.
For organisational and administrative reasons, however, there is no guarantee that such assistance will reach companies in time to meet the three-week compulsory insolvency application period.
In order to avoid that affected companies have to file for insolvency solely because the processing of applications for public assistance or financing or restructuring negotiations in the current exceptional situation cannot be completed within the three-week compulsory insolvency period, the compulsory insolvency application is to be suspended by a legal regulation for a period until 30 September 2020. The precondition for suspension is that the reason for insolvency is based on the effects of the corona epidemic and that there are reasonable prospects of restructuring based on an application for public assistance or serious financing or restructuring negotiations by a party obliged to file for insolvency. In addition, an authorization for the BMJV to extend the measure until 31 March 2021 at the latest is to be proposed."

Ask us about the details. We will keep you informed.

 

Corona IV: Consequences of the corona virus for contractual obligations in business, especially in trade (11.03.2020)

The contracts concluded are decisive in the first instance. The information given here can therefore not be conclusive.

Contracts often contain clauses on "higher force". These are referred to internationally, especially in English language contracts also with the French term "Force Majeur".

Such contractual clauses are usually very general. Natural disasters, legal restrictions such as embargoes or even armed conflicts, which are beyond the control of the contracting parties, are often found in these clauses.

The aforementioned legal restrictions can also result from an epidemic such as the coronavirus. So even if epidemics are not explicitly mentioned, they are taken into account. In the future, international commercial law firms such as Dr. Einhaus & Partner will probably include more epidemics in contract clauses in order to create more legal certainty and avoid problems of interpretation.

If contracts do not contain force majeure clauses, it is necessary to check which law is applicable and what this law says on this issue. German law provides for an exemption from the obligation to perform if performance is objectively impossible.  Then claims for damages are also excluded in principle.

However, it should be emphasized that in international trade the UN Convention on Contracts for the International Sale of Goods is very often applied. This provides for similar consequences.

In principle, the parties must do everything possible to "save" the contract, i.e. they must not culpably enter into the crisis without taking the necessary precautions. Otherwise, a claim for damages may arise.

Of course, an amicable solution should take precedence in order to maintain the contractual relationship, provided that it does not involve one-off services, especially deliveries containing perishable goods.

We are happy to help you with any questions you may have!

Corona V: Sick leave by telephone (as at: 10.03.2020 07:29 h)

Sickness notifications are now easier to make: patients with mild respiratory diseases can have their doctor write a sick note by telephone. This is to prevent the coronavirus from spreading.

In order to relieve doctors in the coronavirus crisis, patients with mild diseases of the upper respiratory tract can more easily take sick leave for up to seven days.

Patients do not need to visit a doctor's practice for this; a telephone consultation with the doctor is sufficient. This was agreed by the National Association of Statutory Health Insurance Physicians (KBV) and the Central Association of Statutory Health Insurance, as both sides announced.

This agreement is valid immediately and initially for four weeks. According to the statement, it will apply to "patients suffering from mild upper respiratory tract diseases who do not exhibit severe symptoms or meet criteria of the Robert Koch Institute (RKI) for suspected infection with Covid-19".

Source: https://www.tagesschau.de/inland/krankmeldung-erkaeltung-101.html

 

Corona VI: Can I stay at home if the kindergarten or school is closed because of Corona? (10.03.2020)

This question is certainly asked by many parents of young children or school-age children. In particular, one would not like to take advantage of the grandparents, since they belong to the "endangered" group of people.

In principle, however, parents must look for other forms of care for the child(ren) - in fact, healthy ones. However, if they have no one, a discussion with the employer must be sought in order to find a joint solution (e.g. home office, reduction of overtime, accumulation of minus hours which are later reduced, unpaid leave).

If I still can't find someone to take care of me and a solution with the employer is not possible, § 616 BGB (German Civil Code) may help: Whoever is prevented from coming to work for a personal reason through no fault of their own continues to receive their salary. But be careful, because this paragraph can be excluded by the employment contract or the collective agreement.

Susan Salar, specialist lawyer for labour law

 

Corona VII: Compensation from the state in case of quarantine (10.03.2020)

Short-time work due to corona virus: Apply for short-time allowance

If the state quarantines people because of the corona virus, there is compensation for loss of wages or turnover for the self-employed. This is regulated in the Infection Protection Act. In the case of short-time work, there may be short-time work compensation from the employment agency. For example, the German Federal Employment Agency's notice that companies that order short-time work due to the worldwide cases of illness caused by the corona virus, which leads to a loss of remuneration for their employees, can apply for short-time work compensation (https://www.arbeitsagentur.de/news/kurzarbeit-wegen-corona-virus). In consulting practice, it will certainly have to be pointed out that companies that wish to apply for short-time work compensation due to the effects of the corona pandemic must notify the responsible employment agency in advance. This agency will then check whether the conditions for the benefit are met.

Infection Protection Act: Entitlement to compensation for loss of earnings

The regular 14-day seclusion periods in cases of suspected Covid-19 infection inevitably lead to the question of who bears the risk of loss of earnings in the employment relationship, also in the case of self-employed persons, and whether, for example, state authorities are responsible for the loss of earnings in the case of employees or turnover in the case of self-employed persons.

To refer to § 615 BGB (remuneration in case of default of acceptance and in case of business risk) is only correct at first glance. Although the employer bears the remuneration risk, the employees do not perform their work, because they are separated by official order in order to avoid the further spread of contagious diseases (§ 1 para. 1 IFSG), they cannot work at all.

If departing employees and those suspected of being infected are separated (i.e. put into quarantine), they are entitled to compensation according to § 56 para. 1 sentence 2 IFSG, which is based on the loss of earnings (§ 56 para. 2 sentence 1 IFSG).

How high is the compensation claim?

For the first six weeks, it is granted in the amount of the loss of earnings, and from the beginning of the seventh week in the amount of the sickness benefit pursuant to § 47 para. 1 SGB V, provided that the loss of earnings does not exceed the annual earnings limit applicable to the statutory health insurance obligation (§ 56 para. 2 sentences 2, 3 IFSG). Loss of earnings is defined as the remuneration (§ 14 SGB IV) to which employees are entitled to a reasonable amount of their regular working hours after deduction of taxes and social security and employment promotion contributions or corresponding social security expenses (net remuneration). This amount is increased by the short-time working allowance (see above) and the subsidised winter allowance to which the employees would be entitled if they had not been segregated.

Entitlement for employees and for self-employed persons

What now applies to employees and self-employed persons:

For employees, the company pays compensation during the first six weeks. The company has a claim for reimbursement against the state (§ 56 para. 5 p. 2, 3 IFSG). This claim for compensation also takes precedence (according to h.M.) over the claims for continued remuneration under § 3 of the Continued Remuneration Act (EFZG). It is not the illness that is the reason for "not working", but the official order that leads to the state's obligation to pay compensation.
The above explanations apply accordingly to self-employed persons. If their livelihood is threatened, they may also be reimbursed for additional expenses upon application, such as, to an appropriate extent, reimbursement of continuing unfunded operating expenses (§ 56 (4) IFSG).

Observe deadline for submitting applications

Claims for compensation must be submitted to the competent state authorities within a period of three months after the end of the separation (cf. § 54 IFSG, the health authorities are regularly responsible, under certain circumstances also the pension offices).