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Corona news portal – How you as a company will master the crisis

03.08.2020 – This page will be updated continuously.

The Coronavirus hits companies hard. Here you will find an overview of legal, tax and business management questions employers and entrepreneurs must answer now to manage the crisis and to secure the solvency and restructuring ability of their companies.
Download (PDF, 29.05.2020)Checklist of measures for entrepreneurs and employers
Download (PDF, 02.07.2020)Overview of immediate measures by the Federal and State Governments
Download (PDF, 29.05.2020)Legal, tax and corporate finance advisory support for companies
1. Employment law and short-time work – What employers need to know now
  • Employees who fall ill as a result of COVID-19 are normally entitled to continued remuneration in accordance with sec. 3 EFZG. If an employee is quarantined without being ill, the employer also pays for six weeks, but is reimbursed by the competent authority (sec. 56, sec. 5 of the IfSG). Important: The employer must apply for reimbursement within a period of three months.
  • If the failures are limited to a few days and affect only a few employees, the authority may regard this as temporary prevention in the sense of sec. 616 BGB. It remains the employer’s obligation to continue to pay wages if sec. 616 BGB is not excluded by individual contract. Recommendation: In the event of an official measure under the IfSG, you can agree an exclusion with the employees.
  • As a general rule, exceptions from the obligation to appear at the workplace only exist in the case of official quarantine measures and if there is a concrete risk of infection in the company.
  • Closure of schools and day-care centres, necessary childcare (up to the age of 12 years):
    Continued payment of remuneration according to sec. 616 BGB (unless this is contractually excluded) for a few days (or weeks, in dispute).
  • Arrangement of home office: The activity in the home office can be temporarily arranged unilaterally by the employer. The prerequisite is that the employee can work at home (technical equipment, guarantee of data protection, etc.) and that this is reasonable.
  • If the business is closed due to an official order because of the risk of infection (sec. 16 IfSG), the employer must continue to pay the wages, since the closure of a business falls within the general economic risk sphere of the company. However, a claim for reimbursement for the damage incurred can then be considered (sec. 56 IfSG).
  • In the event of closure or restriction of operations without an official order: The obligation to pay wages without a claim to reimbursement remains in force. Short-time work may be considered here. The Federal Ministry of Finance has decided on measures for ordering short-time work which make it easier for the employer to apply for short-time work. The new regulations come into force retroactively as of March 1, 2020.
Advisory Support Employment Law (PDF)
Your personal advisors

Dagmar Stabernack

Partner, Lawyer, Certified specialist lawyer for employment law

Phone: +49 (0) 341 9999 2111

d.stabernack@eureos.de

Sebastian Wagner

Lawyer                                                                            

Phone: +49 (0) 341 9999 21312

s.wagner@eureos.de

2. Securing liquidity and crisis management

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.

Advisory Support Securing Liquidity (PDF)
Your personal advisors

Dirk-Ulrich Krüger, CFA

Partner

Phone: +49 (0) 351 4976 15901

d-u.krueger@eureos.de

Prof. Dr. Ulf Gundlach

Partner, Lawyer, State Secretary (retired)

Phone: +49 (0) 391 5628 6911

u.gundlach@eureos.de

3. Insolvency law – Suspension of the obligation to file for insolvency

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:

  • 1. The following shall be considered compatible with the diligence of a prudent and conscientious manager
    – Payments made in the ordinary course of business do not constitute prohibited payments within the meaning of sec. 64 GmbHG, sec. 92 AktG, sec. 130 a, 177 a HGB, 99 GenosG – no personal liability of the management
    – In particular, payments for the maintenance/restart of business operations
    – In particular, payments to implement a restructuring plan
  • 2. The following shall not to be regarded as disadvantageous to creditors:
    – Repayment of a new loan granted during the suspension period / provision of collateral to secure such loans until September 30, 2023
    – the repayment of shareholder loans and payments on claims arising from legal acts which correspond economically to such a loan until September 30, 2023, but not their collateralisation.
  • 3. No application of sec. 39 (1) no. 5 (subordination of shareholder loans) and sec. 44a InsO (subordination of loans secured by shareholders) in insolvency proceedings concerning the debtor’s assets which have been applied for by September 30, 2023
  • 4. The granting of credit and collateral during the suspension period shall not be regarded as an immoral contribution to the delay in filing for insolvency.
  • 5. No contestability of legal acts in subsequent insolvency proceedings which grant or enable the other party to grant security or satisfaction during the suspension period.
  • 6. ll legal acts which grant or enable the other party to grant security or satisfaction during the suspension period (e.g. payment facilities, payments by third parties) shall not be contestable in subsequent insolvency proceedings – ATTENTION: Does not apply if the creditor was aware that restructuring efforts were unsuitable (have the ability to restructure confirmed by third parties!).
  • 7. Nos. 2 to 5 should also apply to enterprises which are not subject to an obligation to apply and to debtors who are neither insolvent nor overindebted.
  • 8. Nos. 2 and 3 shall apply to loans granted in the context of government assistance programmes in the context of the COVID-19 pandemic, even if the loan is granted or secured after the end of the suspension period, and for an unlimited period of time for their repayment (privileged treatment of government assistance loans).
  • In addition, a far-reaching suspension of creditor insolvency applications is planned. Creditors’ insolvency petitions require in a period (to be defined) that the reason for opening the insolvency proceedings existed before March 1, 2020.

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.

Advisory Support Insolvency Law (PDF)

Your personal advisors

Dirk-Ulrich Krüger, CFA

Partner

Phone: +49 (0) 351 4976 15901

d-u.krueger@eureos.de

Prof. Dr. Ulf Gundlach

Partner, Lawyer, State Secretary (retired)

Phone: +49 (0) 391 5628 6911

u.gundlach@eureos.de

4. Contract law – Facilitation for consumers (only)

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.

  1. Until 30 June 2020, consumers may refuse to pay if
  • it is a continuing obligation (e.g. rent, energy supply),
  • the contract was concluded before 8 March 2020,
  • the service would not enable the consumer or his dependants to earn a reasonable living, and,
  • it is an essential continuing obligation (these are those which are necessary to be covered by services of general economic interest).

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.

Advisory Support Contract Law (PDF)

Dr. Almuth Werner

Partner, Lawyer

Phone: +49 (0) 341 9999 2120

a.werner@eureos.de

Claus Ludwig Meyer-Wyk

Partner, Lawyer

Phone: +49 (0) 351 4976 1520

c.meyer-wyk@eureos.de

4. Tax measures in the crisis

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:

  • Granting of tax deferrals for income tax, corporate tax as well as for VAT
  • Waiver of late payment fines and enforcement measures
  • Reduction of current advanced payments
  • Support for the establishment of home office workplaces

We would be pleased to support you in the implementation and the filing of applications with the relevant authorities.

NEWS UPDATE: Temporary reduction of VAT rates >>> read more

Advisory Support Tax Law (PDF)
Your personal advisors

Ines Kanitz

Partner, Tax Advisor

Phone: +49 (0) 341 9999 2102

i.kanitz@eureos.de

Sören Münch

Partner, Tax Advisor

Phone: +49 (0) 341 9999 2101

s.muench@eureos.de

5. Crisis management for your company

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.

Advisory Support Crisis Management (PDF)
Your personal advisors

Dirk-Ulrich Krüger, CFA

Partner

Phone: +49 (0) 351 4976 15901

d-u.krueger@eureos.de

Frank Hübner

Senior Associate

Phone:+49 (0) 351 4976 15902

f.huebner@eureos.de

6. Corporate law – Ensuring the capacity of companies to act

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.

  • Possibility to participate in the Annual General Meeting online and to hold an Annual General Meeting without presence
  • Reduction of the period of convocation to 21 days
  • Possibility of making advance payments on the balance sheet profit
  • Possibility of holding the Annual General Meeting within the financial year, i.e. extension of the existing eight-month period

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.

Advisory Support Corporate Law (PDF)

Your personal advisors

Dr. Almuth Werner

Partner, Lawyer

Phone: +49 (0) 341 9999 2120

a.werner@eureos.de

Claus Ludwig Meyer-Wyk

Partner, Lawyer

Phone: +49 (0) 351 4976 1520

c.meyer-wyk@eureos.de

7. Public procurement law – Facilitation of procedures 

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:

  • Fast and procedurally efficient procurement via the negotiated procedure without competitive offering – this applies to procedures both above and below the EU thresholds
  • Offers may be requested informally and without observing specific time limits within the framework of a negotiated procedure without a call for competition
  • It is sufficient in negotiated procedures without a call for competition for only one undertaking to be invited to submit an offer
  • To cope with short-term procurement needs, use should also be made of the possibility of amending, extending or expanding existing contracts pursuant to sec. 132 (2) sentence 1 no. 3 GWB – without, however, changing the overall character of the contract. According to the provisions of sec. 47 para. 1 UVgO, this also applies to procedures below the EU thresholds

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.

Advisory Support Public Procurement Law (PDF)

Your personal advisors

Stefan Fenzel

Partner, Lawyer, Certified specialist lawyer for administrative law                                                                     

Phone: +49 (0) 341 9999 2127

s.fenzel@eureos.de

Lars Mörchen

Lawyer, Certified specialist lawyer for administrative law, Certified specialist lawyer for tax law

Phone: +49 (0) 391 5628 6912

l.moerchen@eureos.de