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tax · legal · audit · advisory
tax · legal · audit · advisory
05.06.2020 – This page will be updated continuously.
Ensure solvency quickly – avoid managing director risks
COVID-19 hits entrepreneurs hard. From one day to the next, customers stay away, bookings are cancelled, and projects are postponed. You may also be no longer be able to produce because the supply chains are broken. Sales break off, but the costs remain. As a result, the liquidity cushions melt away. Now you must first make the right decisions quickly to ensure your solvency. Our experts are at your side so that you can quickly obtain an overview of all the funding instruments for securing your liquidity. If you wish, we will support you immediately in applying for funding and preparing all the necessary documents. We create dynamic liquidity planning tools quickly and comprehensively so that you can make the right decisions.
Likewise, our expertise gives you security in all questions of the obligations and risks that management faces in times of crisis. And if the situation is so serious that a reorganisation plan becomes necessary, we will establish one for you and examine all possible options for non-insolvency reorganisation or with tried and tested instruments such as the protective shield procedure.
Overcoming the crisis in the long term
Once the epidemic has subsided, the long-term goal is to get back on track. Business plans must be revised and bank financing adjusted if necessary. Likewise, special losses from the COVID-19 crisis may have to be financed in the long term. It may also be necessary to find new suppliers and implement new forms of financing for goods. In some cases, it will also be necessary to initiate a restructuring process. Whatever the exact task, we will support you with a great deal of knowledge and practical experience. If desired, we will also be happy to provide you with digital controlling tools that will help you get back on the road to success with reliable figures and a comprehensive overview at any time.
We are the right partner at your side for all of this. Please contact us.
On March, 23 2020, the Federal Cabinet adopted the draft of the COVID-19 Insolvency Suspension Act. According to this draft, the obligation to file for insolvency will be suspended for companies that have fallen into crisis after March 1, 2020. Reorganisation measures will be privileged.
In principle, the following applies: The obligation to file for insolvency pursuant to sec. 15 a InsO/ sec. 42 (2) BGB does not apply until September 30, 2020. There are exceptions, provided that the insolvency is not based on the consequences of the spread of the COVID-19 pandemic and there are no prospects of eliminating an existing insolvency. For both cases, we recommend obtaining the confirmation of an expert.
Consequences of suspension if the above reasons apply:
For you as a managing director or creditor to be able to act with legal certainty it is necessary for an expert to assess the ability to restructure as well as business and legal aspects. We are happy to advise you.
Pacta sunt servanda – Contracts must be respected. Even the Corona crisis does not change this.
I. Only for some consumer contracts the Bundestag has now decided to make things easier.
Thus, from the outset, only a few contracts are affected, and even for these, the benefit can only be withheld if the specified personal requirements are met.
Even if all prerequisites are met, the right to refuse performance does not exist if the refusal of performance is unreasonable for the creditor. This is the case if the creditor’s economic basis or reasonable livelihood is endangered due to the non-performance.
2. Similar rules apply if the debtor is not a consumer but a micro-enterprise (max. nine employees and annual turnover or balance sheet total max. EUR 2 million).
3. Special regulations have been created for leases and loan agreements in Art. 240, §§ 2, 3 EGBGB.
a. In the case of leases, termination is excluded if it is solely due to the tenant not paying the rent between 1 April and 30 June 2020, but only if the reason for non-payment is the corona pandemic. However, all other possible reasons for termination remain unrestricted, e.g. termination for personal use. It is unclear whether the moratorium on terminations protects only consumers or companies as well.
It should be noted that the rental claim does not expire, but is only deferred. It is to be assumed that interest must also be paid on it; in any case, the law does not contain any exception to this rule.
b. Deferral regulations and limited termination options also apply to consumer loan agreements (Art. 240, § 3 EGBGB). It should be noted here that facilitations for loan agreements only apply to consumer loans; there is no corresponding regulation for micro-entrepreneurs.
II. This draws attention to the fact that the exceptions are essentially consumer protection provisions. Businesses, including those in the B2B sector, cannot rely on these rules. Here, all contracts continue to apply unchanged. If the service is provided, the consideration can be demanded.
The special circumstances can therefore only be taken into account with individual negotiations and agreements.
Under German law, an exception applies if the contractual service can no longer be provided due to the Corona crisis. In this case, the debtor is released from the obligation to perform due to impossibility (§ 275 BGB), but the obligation to provide consideration is also waived (§ 326 BGB), advance payments can be reclaimed. This is assumed in the case of air transport, for example, if the airline can no longer fly to the airport due to the corona crisis in the destination country, in the case of accommodation services, if the destination area or the accommodation company is quarantined by the authorities or is no longer accessible, in the case of events, if they are cancelled due to official requirements. The same applies in the event of a delay in performance, if the delivery date is exceptionally such an essential part of the contract that a delayed performance would be pointless (so-called absolute fixed date transaction).
Even in the case of a so-called relative transaction for delivery by a fixed date, as is the case, for example, in so-called just-in-time delivery contracts, and in which compliance with the time of performance is so essential that the transaction is to “stand and fall” with the timely performance, the creditor can easily withdraw without setting a deadline (§ 323 Para. 2 No. 2 BGB). Claims for damages may only be made after setting a deadline; however, these are likely to fail anyway due to lack of fault.
In the event that circumstances change which were the basis of the contract for both parties, § 313 BGB (disturbance of the basis of the contract) provides for an adjustment of the contract. However, in this case, too, no contractual partner is entitled to refuse performance. The law rather requires that the contract be adapted. The contractual relationship shall be structured as it would have been structured if the parties had known and taken into account the new circumstances. It therefore depends on the individual circumstances of each individual contract which must be renegotiated.
But not every contract is adaptable. If the changed circumstances fall within the risk area of a contractual partner, which will often be the case with employment relationships, for example, the contractual partner must bear the consequences alone.
We will be happy to advise you on the review of your contracts and the adaptation to the changed situation.
The impacts of the Corona crisis, particularly for the economy, are difficult to assess. However, the federal government and federal state governments have announced that they are closely coordinating their efforts during the crisis and want to prevent company insolvencies and redundancies as far as possible. This means that financial policy is also obliged to offer companies solutions and possibilities of relief.
The first appropriate measures to counter the loss of liquidity were already taken in mid-March.
Since then, the federal government and the governments of the federal states have continuously expanded the measures taken. We will keep you informed about further tax policy measures of the Federal Ministry of Finance and the tax authorities of the individual federal states in our detailed overview of immediate measures taken by the federal government and the federal state governments. These include in particular:
We would be pleased to support you in the implementation and the filing of applications with the relevant authorities.
The rapid spread of COVID-19 poses great challenges for companies and the public sector. Overnight you need more human resources to set up effective project management for your company or institution. At the same time, your staff may not be fully operational due to school closures or quarantine measures.
At this point we can support you temporarily in commercial and administrative areas. Our employees are there for you with modern technical equipment from their home offices. Whether it is applications for subsidies and short-time working allowances, personnel management and employee communication, support in processing applications or the handling of urgent administrative issues – please contact us to analyse your individual situation and to work out proposals for solutions.
On March 23, 020, the Federal Cabinet passed amendments to the law to make it easier for companies, cooperatives and associations to respond to the restrictions imposed by the Corona crisis. In particular, the aim is to keep companies etc. capable of acting when attendance is no longer possible.
The regulations are applicable initially for the year 2020, with the possibility of an extension until December 31, 2021 by means of a regulation authorisation. The Bundestag is expected to decide on the changes to the law this week.
Furthermore, there are also possibilities for action in areas not covered by the changes in the law, since many statutes and existing laws already allow for decision-making by organs even outside of face-to-face meetings and temporarily allow e-mail voting, video conferences or telephone conferences.
We would be happy to advise you on all corporate law issues regarding Corona.
In a circular letter, dated March 19, 2020, the Federal Ministry of Economics and Energy (BMWi) published current information on the application of public procurement law in connection with the procurement of services to contain the spread of the coronavirus SARS-CoV-2. The BMWi highlights that in the current situation the conditions for emergency awards are met.
The special situation caused by the pandemic results in a particularly short-term procurement need. Contracts must be awarded and executed as quickly as possible due to the existing threats to fundamental legal assets such as life and health. The procurement market is also particularly difficult due to market shortages and the restriction of available services. The BMWi is attempting to counteract this by means of various procedural simplifications:
This circular refers to the notice of the European Commission, dated September 9, 2015, which can be found here.
We would be happy to advise you on all public procurement law issues in connection with Corona.