Covid 19 Insights / May 2020 – Sagasser Tax & Law participated in this world wide in-depth study on the legal and tax effects of Covid 19 for France and Germany.

FRANCE

In March 2020, French authorities have introduced (i) strict restrictions on movement of the population and (ii) ordered the administrative closedown of many activities (schools, cafés, restaurants, hotels, etc.) so as to limit the propagation of the Covid-19 Pandemic.

In a view of minimizing the impact of these restrictions on French economy, French authorities have adopted several support measures from the deferral of tax payments to the generalization of home office work and State guaranteed loans.

The most important restriction and support measures are described thereafter.

EMERGENCY MEASURES
Declaration of state of health emergency in France

France initially declared the state of health emergency until 24 May 2020⁵.

An extension thereof is in the process of being decided until 10 July 2020.

End of general lockdown

The lockdown in France ended on 11 May 2020. However, restrictive measures shall continue to apply:

• Persons may not travel further than in a radius of 100km from their place of residence
• Quarantine measures shall apply to persons arriving in France from areas where the virus is still spreading, fora period that shall not exceed 14 days. These measures do not apply to persons travelling from EU member states, Schengen area or the United-Kingdom.
• Teleworking remains strongly advised when possible.

Most shops reopened upon the end of lockdown on 11 May 2020 and cafés and restaurants are expected to reopen in june.

Schools are to gradually reopen in areas where the spread of the virus is limited, whilst health measures to limit the spread shall have to be implemented (no more than 10 or 15 students per class, rotative measures, etc.): ⁶

• Nursery schools and primary schools in green and red areas are to reopen as of 11 May,
• Secondary schools in green areas are to reopen on 18 May. State guaranteed loans for companies experiencing financial difficulties

On Wednesday 25 March 2020, the French Government set up a guarantee mechanism via the Banque Publique d’Investissement (BPI France) for loans granted by French banks to French companies experiencing difficulties in the context of the current health crisis.

This measure applies to businesses of all sizes, regardless of their legal status, including companies, traders, craftsmen, farmers, liberal professions, micro-entrepreneurs, associations and foundations with economic activity. Are however excluded real estate companies, credit institutions and financing companies, as well as firms which were in difficulty as of 31 December 2019.

The loan amount cannot exceed:

• 25 % annual turnover realised in the last approved fiscal year; or
• For companies incorporated afterJan. 1, 2019 the equivalent of 2 years of the total of salaries.

Eligible companies shall benefit from the following conditions:

• No loan repayment the 1 st year;
• Amortization over a maximum period of 5 years from the expiry of the first period;
• State guarantee ranging from 70 to 90% (depending on the size of the company, number of employees and turnover).

Solidarity fund for small-businesses

France has implemented a State solidarity fund dedicated to the direct financial support micro-enterprises.

Companies meeting the following requirements may benefit from financial aid⁷:

• Their activity started before 1 February 2020; and
• They are not in liquidation as of 1 March 2020; and
• They have, together with the companies they control (within the meaning of Article L233-3 of the French Commercial Code), less than 10 employees; and
• Their annual turnover is less than 1 million euros or, for companies that have not yet completed their first financial year, (average monthly turnover lower than 83,333 euros); and
• They are not controlled by another commercial company within the meaning of Article L233 of the French Commercial Code.

Eligible companies can benefit from the solidarity fund if⁸:

• they are subject to an administrative closedown of their activity (mainly, business receiving public such as hotels, restaurants, etc.); or
• they have suffered a loss of turnover of at least 50% in March or April 2020 compared to (i) the turnover of March or April 2019, or (ii) the monthly average turnover of 2019⁹.

The aid granted to the company shall be the following:

• Aid corresponding to the loss of turnover compared to the reference turnover but capped to €1 500;
• An additional aid may be granted in the event the company (i) employs at least one employee, (ii) has been refused a bank loan and (iii) cannot face its debts due within the upcoming 30 days. In this event an additional amount comprised between €2000 and €5000 may be granted, depending on the amount of the turnover of said enterprise).¹°

CONTRACT LAW
Force majeure Art. 1198 Code Civil

A Force majeure event may, even in the absence of contractual provision, allow a party not to satisfy to its contractual commitment. A force Majeure event is characterised when (i) the event is beyond the debtor’s control, (ii) the event could not reasonably have been foreseen at the time of the conclusion of the agreement and (iii) the force majeure event effects cannot be avoided by appropriate measures and prevent performance of the obligation by the debtor”.

To date, no specific measures in relation to Coronavirus being a force majeure event have been implemented. Therefore, a case-by-case analysis is to be made to understand if, in a determined contractual relationship, the pandemic could qualify as a force majeure event for a party. Based on French case law relating to other pandemic situations, it is to be outlined that the contractual relationship should have started before the beginning of the pandemic for the latter to be considered as a force majeure Event.

Hardship – ‘révision pour imprévision’

Under French law, agreements entered into between the parties may be subject to a renegotiation if the following cumulative conditions are met’:

• Occurrence of an unforeseeable event,
• Performance of the agreement becomes overly onerous for one of the parties, and
• Provided no contractual clause exclude this legal mechanism.

No specific legal measures have been implemented on this matter and the application of the révision pour imprévision to a contract shall be assessed on a case by case basis.

Late payments under agreements

Companies eligible to the solidarity fund (micro-enterprises, as detailed above) or companies subject to insolvency proceedings may benefit from the following protective measures if they face financial difficulties¹³:

• Electricity, gas and water suppliers will not be able to cancel, reduce or suspend their supply due to default or delayed payment;¹⁴
• upon request, extensions of the due date for payments due to such suppliers between 12 March and the end of the state of health emergency with implementation of payment instalments over at least 6 months and without penalties.¹⁵
• Landlords renting-out commercial and professional premises to such eligible companies are prohibited to (i) apply penalties or interest for late payment, or (ii) terminate the rental agreement in the event of a late payment of rent or rental charges due between March 12 and the last day of a period of two months from the end of the state of health emergency.

LABOUR LAW
Generalisation of teleworking (home office)

France had recently modified its legislation relating to teleworking so to make it easier to implement for the employers¹⁶. Since the epidemic went in phase 3, home office became compulsory for work where implementation thereof was possible.

In the event of an epidemic, French labour law notably permits the implementation of teleworking without consent of the employee and without any particular formalism.¹⁷

Work-stoppage

Parents of children under 16 or children with disabilities and whose schools or special establishments have been closed can benefit from work-stoppage measures upon request to their employer.

Partial activity (partial unemployment):

Recourse to partial unemployment (partial activity) at the initiative of employers of the private sector has been facilitated.

• The amount of compensation paid by an employer to employee under partial activity regime corresponds to 70% of the usual gross salary (i.e. 84% of the net salary) with a minimum of €8.03 gross/hour. The State coverage of this allowance has been increased so as to cover this amount in full, up to a limit of 4.5 times the hourly rate of the minimum wage (gross monthly salary of €6,927.00).
• The request for authorisation for partial activity of all or part of a company’s workforce can now be made within 30 days after the employees have been placed in partial activity;
• Applications for authorisation for partial activity may be made by any means giving a definite date of receipt;
• The time limit for implicit acceptance of a request for partial activity authorisation has been extended from 15 days to 2 days until 31 December 2020.
• Measures apply also to employees of foreign companies without a permanent establishment in France.¹⁸

Mandatory Partial activity for health reasons

Employees of the private sector listed below are automatically placed on partial activity for health reasons (see above) from 1 May onwards¹⁹, without the need of a decision of the Employer:

• The employee is a vulnerable or “at risk” person for whom the health instructions recommend that an isolation measure be observed;
• The employee is a person living with a vulnerable person;
• The employee is a parent of a child under 16 years of age whose care facility or school is closed or a parent of a child with a disability who is being cared for in a closed facility.

PRIVACY
Since the beginning of the closedown in France, the authorities have rendered public a website that generates personal travel attestation. Despite the fact that they declare that no data relating to these authorizations is being collected, some were reluctant to use this internet generator for privacy purposes.

French parliament is about to adopt a new law to extend the state of health emergency until July 10, 2020. Article 6 of this new law provides for the possibility to collect personal data referring to the state of health of a Covid-19 infected individual and of other individuals which have been in contact with such person. It is to be outlined (i) that those personal data may be processed without the consent of the concerned individuals and (ii) that the transmission of these data to the authorities are mandatory for physician and practitioners.

To the contrary of what was anticipated by French media, the draft law clearly states that these Health-related personal data may not be collected for the purpose of the setting-up of a mobile app allowing users to know if they have been in contact with a Covid-19 infected person.

CORPORATE LAW
Approval of annual accounts

In principle, companies have a period of six months from the end of the financial year to approve their yearly accounts. Article 3 of Order no. 2020-318 of 25 March 2020 provides for a 3 month extension of this period.

Thus, companies that normally have to approve their financial statements before 30 June 2020 (companies whose financial year ends on 31 December 2019) will have an additional period of 3 months to do so, i.e. until 30 September 2020.

Filings of accounts with the registry of the Commercial Court must normally be made within one month of the meeting that approved them. In the context of Covid 19, the maximum deadline will be 30 October 2020 (31 November in the case of electronic filing).

In the Covid Context, temporary measures were adopted to facilitate the holding of corporate bodies’ meetings through electronical means, among which the (i) removal of the risk of nullity of shareholders’ meetings for failure to comply with the postal notice procedures for listed companies and (ii) generalization, notwithstanding any stipulation to the contrary in the articles of association of the company concerned, of the possibility of holding shareholders’ meetings by conference call visoconference, etc.

LITIGATION
Extension of procedural time limits

Legal time limits which apply to a number of actions (filings, court submissions, limitation periods, etc.) have been extended:

• This extension applies to time limits which have expired or expire between 12 March 2020 and the expiry of a one-month period following the last day of the state of public health emergency, i.e. between 12 March 2020 and 10 August 2020 in the event of an extension of the state of emergency until 10 July.²°
• The extension is equal to the period that normally applies to the relevant action, and cannot exceed 2 months.²¹
• The extension starts to run upon expiry of a period of one month following last day of the state of public health emergency (10July 2020 if it is extended)

TAX LAW
Extension of the deadline to declare corporate incomes for corporate income tax (CIT) purpose:

For the fiscal years ended on 31 December 2019, the deadline for declaring the yearly corporate income (filing of tax return) has been extended to 30 June 2020 instead of 5 May as usual.

This measure concerns CIT but also other professional income subject to personal income tax (BIC, BNC, BA)

This deadline also applies to the filing of tax credit forms.

Deferral of payments of direct taxes:

The French tax authorities have generalised the possibility to defer the payments of corporate income tax (impôt sur les sociétés – IS), corporate property tax (Contribution Foncière des Entreprises – CFE), tax on business added value (Contribution sur la Valeur Ajoutée des Entreprises – CVAE) without penalty or late payment interest

In cases where a payment thereof has already occurred, it is also possible to request a refund.

In some very specific cases there may also be the possibility, upon proof of a severe decrease in turnover and based on cash position and current liabilities of the concerned taxpayer, of requesting a rebate of the same direct tax items.

Extension of the deadline to declare personal Income tax (Impôt sur le revenu des personnes physiques – IRPP) and real estate-wealth tax (Impôt sur la fortune immobilière – IFI):

The deadline to submit the tax return for 2019 is extended from May 4, 8 or 11 to june 4, 8 or 11 (depending on the place of residence).

Tax inventive in relation to commercial rents

Landlords may waive their right to receive rent income from their corporate tenants. The loss incurred shall be deductible from their taxable incomes, without the need to prove the existence of a commercial interest to such waiver.²²

FOREIGN INVESTMENTS
Foreign investment in critical technological sectors

Foreign investments in various French sectors, notably the critical technological sectors (i.e. artificial intelligence, semiconductor, robotics, etc.) are subject to a State control. Currently, investments in such companies require a prior authorisation when they result in a foreign entity holding 25% or more of the share capital of the entity concerned.

The French finance minister Mr. Bruno Lemaire has recently announced plans to reinforce sovereign control over foreign investments in such companies by a temporary reduction of the prior authorisation threshold to 10%.²³

According to the announcement, this reduction shall apply to public listed companies only, shall not concern European investors and shall end on 31 December 2020.

A draft law is announced in the coming days.

On top of it, biotechnologies have now been added to the current list of critical technological sectors.²⁴

Contacts:
Email: etienne.epron@sagasser.com
Email: innovationlawyer@zaglio-orizio.it  

INNOVATION LAWYER PROJECT : Global Legal Briefing – COVID 19 Insights, May 2020

GERMANY

The specificity of Germany is based in its federal, decentralised system. Every local state has to decide upon the state of emergency. With the help of the public bank KfW, extensive loan programs and allowances have been rolled out in accordance with the EU state aid provisions. Usually the existing civil and civil procedure law was sufficiently flexible to respond to the COVID 19 Crisis. Yet, temporary stipulations allow the suspension of contractual continued obligations, mostly until June 30, 2020. Even if the German law has already provided with sufficient possibilities to use video and audio conferencing, the new legal provisions for shareholder meetings allow a more extensive use of virtual meetings and electronic votes. To maintain the cash flow within the companies, tax delays for filings and regular instalments have now been temporarily extended. In the end, EU measures are also reflected in the accelerated governmental process of refraining non-EU investments in German companies especially from the health care sector.

EMERGENCY MEASURES
State of emergency

The constitution of the Federal Republic of Germany provides with the possibility of emergency measures as ultima ratio on federal level²⁵. In first line, the constitution gives the local states (Under) the power and responsibility for danger control and emergency response²⁶. Thus, no “state of emergency” has been declared on federal level but on state level, as it is the case for the much affected state of Bavaria to organise all public forces under the direction of the supreme emergency control authority²⁷.

The Law on the Prevention of Infection from July 20th, 2000 and recently updated due to the corona crisis ²⁸ applies to most of the measures establishing the necessary participation and cooperation of federal, state and local authorities in order to detect infections at an early stage and prevent their spread amongst humans. The fundamental rights of freedom of the person, freedom of assembly, freedom of movement and the inviolability of the home can be restricted by the measures based on this Law.

Beyond the emergency measures concerning lockdown and restrictions on free movement, Germany has implemented different measures to support the economy in this crisis, see below.

Financial support for companies experiencing financial difficulties

The financial support offers different cash injections ensuring the capital basis for companies depending on their size.

The Economic Stabilisation Fund (Wirtschaftsstabilisierungsfonds ²⁹) is aimed at companies of the real economy (excepted is the financial sector) whose continued existence shall be ensured since these companies have a significant impact on the economy, technological sovereignty, security of supply, critical infrastructures or the labour market. The applying companies must meet two of the following three criteria:

• More than 249 employees
• Turnover of € 50 million
• A balance sheet total of € 43 million
  The Economic Stabilisation Fund provides with:
• A €400 billion guarantee framework to make it easier for companies to refinance themselves on the capital market
• Recapitalisation measures amounting to € 100 billion to strengthen the capital base and ensure the solvency of companies
• Loans of up to €100 billion to refinance the special credit programmes provided by the public law institution KfW (Kreditanstalt fur den Wiederaufbau).

Different KfW loan programms help with rapid loans under favourable conditions and simplified risk assessment for all sorts of companies, except for companies which were in financial difficulties as of Dec 31 st, 2019. The KfW Bank is held by the Bund (Federal State) and the Linder (the local states) and guarantees mostly 90% of the loans granted within the Kfw programme by the respective bank of the company.

For companies of all sizes, loan amounts of up to €1 billion at reduced interest rates (1.00 to 2.12% p.a.) for a five years term are available to help with liquidity for acquisitions and operating costs under the after mentioned conditions. Yet, the loan amount cannot exceed:

• 25 % of the annual turnover in 2019 or
• twice the wage costs of 2019, or
• the current financing requirements for the next 18 months for small and medium-sized enterprises and 12 months for large enterprises
• 50% of your company’s total debt for loans over €25 million. .³⁰

Kfw credits for medium-sized enterprises with more than 10 employees_under the rapid loan programme have an interest rate of 3% with a 10-years term and even 100% guarantee by KfW. The medium-sized enterprise must have been active on the market since at least Jan 1 st 2019 and have reported a profit in 2019 or in the average over the last three years. The maximum loan amount is limited to:

• per company up to 25% of the annual turnover in 2019,
• maximum € 800,000 for companies with more than 50 employees,
• maximum € 500,000 for companies with up to 50 employee.³¹

Allowances for micro-enterprises with 10 or fewer employees and self-employed One-time allowance for up to three months, with a possible two additional months:

• up to five employees (full-time equivalent): up to € 9,000.
• up to ten employees (full-time equivalent): up to € 15,000.³²

CONTRACT LAW

The contract law has been modified to ease the consequences of the COVID 19 pandemic in case of default of one party during a certain period (until June 30th, 2020) as regards contracts with continuing obligations.

Right to refuse performance (“Leistungsverweigerungsrecht”) for contracts with continuing  obligations except rental, credit, working contracts³³:

• Consumers impacted by the COVID 19 pandemic shall have the right to refuse payment or any other claim resulting from a continuing consumer contract concluded before 8 March 2020. This right is excluded if the exercise of the right would jeopardise the economic basis of the business of the contractual cou nterparty.
• Micro companies³⁴ shall have the right to refuse to provide services resulting from a contract with continuing obligations concluded before 8 March 2020 if, as a result of circumstances attributable to the COVID-19 pandemic,

1. the company cannot provide the service, or
2. the company would not be able to provide the service without jeopardising the economic basis of its business. The right to refuse is excluded if the contractual counterparty or its family depends on the services for a decent standard of living or for its business.

If in both cases, no right to refuse exists the debtor shall have the right to terminate the contract.

Restrictions on the termination of rental and lease agreements³⁵:

• The landlord may not terminate a lease of land or premises solely on the ground that the tenant fails to pay the rent in the period from 1 April 2020 to 30 June 2020 despite being due, if the failure to pay is due to the effects of the COVID 19 pandemic. The connection between COVID-19 pandemic and non-payment must be substantiated.

Deferrals and restrictions on the termination for consumer loan agreements³⁶:

• For consumer loan agreements concluded before 15 March 2020, claims of the lender for loan repayment, interest or amortisations due between 1 April 2020 and 30 _lune 2020 shall be deferred for a period of three months from the due date if the consumer is unable to make the payment due because of the spread of the COVID 19 pandemic. This is the case if exceptional circumstances have led to a loss of revenue, which have the effect of causing him to be unable to pay the performance is unreasonable. The termination by the lender on account of late payment, a significant deterioration in the financial circumstances of the consumer or the value of a security provided for the loan is excluded in the beforementioned case until the expiry of the deferral.³⁷

LABOUR LAW
Short-time work / Partial activity

Conditions for short-time work compensation have been temporarily eased from March 1 st, 2020 due to the crisis³⁸:

• It is sufficient if 10% (instead of the previous one third) of a company’s employees are affected by the loss of working hours for a company to be able to apply for short-time work compensation.
• Social security contributions attributable to the short-time working allowance are reimbursed in a lump-sum by the Federal Employment Agency.
• Short-time working allowance can also be applied for for temporary workers.
• There is no need to build up negative working time balances before short-time working benefits are granted.

Compensation:

• Short-time work compensation amounts to 60% of the difference between the regular net income and the actual net income due to short-time work – 67% for parents. The compensation can go up to 80% (87%) for short-time work after seven months but limited to Dec 31, 2020 if the working time has been reduced by more than 50%.
• Payment is made by the responsible employment agency.

Compensation for loss of earnings due to infection or lockdown as prevention against a further spread

If an employee has been infected, he / she is granted sick leave with a continued payment of its regular salary paid by the employer up to six weeks³⁹. After six weeks the sick employee receives up to 70% of the regular gross income max 90% of the regular net income paid by the statutory health insurancee.

The Infection Protection Act⁴¹ grants a right of indenisation for any ban on exercising its activity, e.g. if a person is assumed to spread the virus or if public institutions such as schools or day-care centres have been closed in prevention of a further spread. Payment is made by the employer, who can submit a refund application to the competent state authority.

Home Office

Unlike other countries, the German legislator has not yet integrated any stipulations on home office into the existing labour law provisions. Thus, the employee cannot decide whether he / she wants to stay at home except if the lack of respect of security measures by the employer gives him / her a right of refusai to come to the work space. The employer determines at its reasonable discretion the content, place and time of the work performance, unless there is a contractual agreement or works council agreement. The coalition contract between the two governing parties provides with a program for facilitating home office in the future. However, no draft law exists or is at view.

PRIVACY

If personal data is collected in connection with the COVID 19 pandemic, in most cases, links are established between individuals and their state of health which is protected under the German data protection in correspondence to EU general data protection regulation⁴². Even if the processing of health data is in principle only possible on a restrictive basis, data may be collected and used in accordance with data protection regulations for various measures of protection of others and to avoid the further spread of the COVID 19, e.g. collection and processing of personal data (including health data) of employees by the employer. The principle of proportionality and the legal basis must always be observed. In that respect, also the tracking of infected persons can within the limits of necessity and proportionality be allowed for the purpose of defence against the pandemic in the event of danger to life and health.⁴³. In contrast, the disclosure of personal data of demonstrably infected or suspected infected persons for the information of contact persons is only lawful if the knowledge of the identity is exceptionally necessary for the precautionary measures of the contact persons.

CORPORATE LAW
Shareholder meetings and resolutions

Limited liability company (Gesellschaft mit beschrankter Haftung – GmbH -)

• Written resolutions are now possible even without the consent of all shareholders.⁴⁴ Stock company (Aktiengesellschaft – AG -) and similar⁴⁵
• Virtual shareholder meetings and electronic vote.

The management board of a German stock company can decide to hold a completely virtual general meeting without the physical presence of shareholders and to allow shareholders to participate and cast their vote by means of electronic communication without being authorized to do so by the by-laws or rules of procedure provided that the broadcast by means of audio and video transmission encompasses the entire general meeting and provision is made for shareholders to exercise their right to ask questions, to vote and to object the resolution by means of electronic communication (postal vote or electronic participation) and to grant a power of attorney.

• Delays

     – Shortened for fast resolutions: The shareholder meeting can be convened with a shortened period of notice (21 days instead of 30 days).

     – Extended for the annual general meeting : In the case of the AG and KGaA, the general meeting can also take place after the eight-month period within the fiscal year.

• Distribution to shareholders

The Management Board can decide, with the approval of the Supervisory Board but without a resolution of the general meeting, to pay a discount on the annual net profit to the shareholders without being authorized to do so by the by-laws.⁴⁶

Extended delays for transformations

Due to the restrictions on the possibilities for meetings and in order to ensure that transformation measures which are too costly in most cases do not fait because the statutory eight-month period for filing the transformation with the Commercial Register cannot be observed, the period in § 17 sub-section 2 sentence 4 UmwG is extended to twelve months. It will run from the effective date of the relevant closing balance sheet.⁴⁷

Insolvency: reduced notification obligations of managing directors or the managing board

The obligation to file an insolvency petition is suspended until 30 September 2020. This does not apply if the insolvency maturity is not due to the consequences of the spread of the SARS-CoV-2 virus (COVID-19 pandemic) or if there are no prospects of eliminating an existing insolvency.”

LITIGATION
General court procedure

The public cannot be excluded because of COVID 19 since security measures as milder means to avoid dangers for health and life of other persons can be applied (e.g. social distancing, disinfection). The hearing can also be adjourned or the procedure suspended.

Video hearings are admissible in particular for civil court procedures⁴⁹ if the courtrooms and the participants have the necessary technological equipment.

Civil Court

Suspension or adjournment

Prerequisites for rescheduling an appointment for a court hearing require considerable reasons. If such grounds exist, the court may, of its own motion or on application by a party, cancel or postpone the date. Considerable reasons can for instance be that the party or their attorney cannot be present due to illness or lockdown. The same reasons can avoid a judgment by default if the attorney of record in the legal proceedings or the party does not appear because of illness or lockdown.

Delays

Each party can apply for an extension for delays concerning the main hearing on the basis of existing civil procedure stipulations” if there are substantial grounds. The duration of the extension is at the discretion of the court; according to observations from practice, in the current situation the courts grant generous extensions of time limits.

Restitutio in integrum (Wiedereinsetzung) will even under the present circumstances normally not be considered. According to the consistent case law of the Federal Court of Justice, an attorney must take general precautions to ensure that the necessary steps are taken to meet deadlines even if they are unexpectedly cancelled.

Criminal Court

Delays have up to now only be extended by law in criminal court procedures by the suspension of periods of interruption due to interventions to prevent infections⁵¹.

Regardless of the duration of the main hearing, the running of the periods of interruption” is suspended for as long as the main hearing cannot be conducted on account of interventions to prevent the multiplication of infections caused by the SARS-CoV2 virus (COVID-19 pandemic), but for no longer than two months; these periods expire no earlier than 10 days after the suspension has ended. The court determines the commencement and end date of the suspension in an incontestable decision⁵³. This applies accordingly to the period for the pronouncement of judgment.

TAX LAW
Tax filings and procedure:

• Deferral of tax liabilities until the end of 2020: income and corporate income tax and value added tax.
• Adjustment of the instalments for income and corporation tax.
• Adjustment of the tax basis of trade tax prepayments, which leads also to adjusted instalments for trade tax.
• Waiver of enforcement measures and late payment surcharges on income and corporation tax and VAT.

Amendments to VAT

The VAT rate will be reduced from 19 % to 7 % for restaurant and catering services provided after 30 June 2020 and before 1 July 2021, with the exception of the supply of beverages.

Legal entities under public law are for a longer transitional period excluded from the definition of “entrepreneur” subject to VAT, which means that local municipal entities can act without being subject to VAT for COVID 19 pandemic measures⁵⁴.

Further tax-exempt income

The short-time work compensation (see above, section Labour Law) is tax-exempt.

Delays for Transformation Tax

The tax retrospective period of eight months for fusions and contributions” is temporarily extended to twelve months (see section Transformation Law before).

FOREIGN INVESTMENTS
Foreign investments in sensitive sectors

The European Commission has published guidelines on March 25th, 2020 on the review of foreign direct investment (C (2020) 1981, OJ 2020, C 99 I, 1), which aim to protect critical European assets and technologies. In Germany exists already a screening mechanism on the basis of the Foreign Trade and Payments Act”, detailed by the Foreign Trade and Payments Ordinance (AWV). The acquisition of a domestic company or a direct or indirect stake in a domestic company cannot effectively take place without the required authorisation of the Federal Ministry for Economic Affairs and Energy if, as a result of the acquisition, the public order or security of the Federal Republic of Germany is endangered.

Soon, the German government is making it more difficult for non-EU investors to take over companies from the healthcare sector. An amendment to the Foreign Trade and Payments Ordinance (AWV) drawn up by the Federal Ministry of Economics and Technology is intended to include the sector in the list of companies with particular security relevance.

For these companies, the acquisition by companies from non-EU investors is subject to reporting requirements if the planned stake in the company exceeds ten per cent. The AWV amendment is to be passed by the Federal Cabinet on May 13th, 2020. The originally planned expansion of the list of specially protected industries (see EU screening regulation) to include areas such as artificial intelligence, robotics, biotechnology or semiconductors is to be postponed until September.

Economic / financial support

Foreign companies with subsidiaries in Germany can benefit from the same Kfw loan programs as German companies under the following conditions:

• No loans to companies from tax havens (EU black list)
• Loans may only be used for investments or working capital in Germany in order to support the locations and employees in overcoming the crisis.
• Ail borrowers must prove that they use the funds in accordance with the regulations.
• KfW can verify the correctness of the information by means of on-site inspections.
• In its lending operations KfW observes all internationally agreed transparency criteria, especially in the tax area.⁵⁷

Contacts:
Email: etienne.epron@sagasser.com
Email: innovationlawyer@zaglio-orizio.it

INNOVATION LAWYER PROJECT : Global Legal Briefing – COVID 19 Insights, May 2020

FRANCE :
⁵ Article 4 of the Act of 23 March 2020.
⁶ Circulaire of 04.05.2020; https://www.education.gouv.fr/bo/20/Hebdo19/MENE2011220C.htm.
⁷ Art.1, décret n° 2020-371 du 30.03.2020, modified by décret n°2020-433 du 16.04.2020
⁸ Art.2, décret n° 2020-371 dated 30.03.2020, modified by décret 2020-433 of 16.04.2020.
⁹ Art. 5, décret 2020-433 of 16.04.2020.
¹⁰ Art. 6, décret 2020-433 of 16.04.2020.
^H Art. 1218 of the French Civil Code.
¹² Art. 1195 of the French Civil Code.
¹³ Art. 1, ordonnance n°2020-316 of25.03.2020.
¹⁴ Art. 2, ordonnance n°2020-316 of 25.03.2020.
¹⁵ Art. 3, ordonnance n°2020-316 of25.03.2020.
¹⁶ Ordonnance Nr 2017-1387 from 22-9-2017 and Law 2018-217 from 29-3-2018.
¹⁷ Art. L. 1222-11 of the French Labour law code (Code du travail).
¹⁸ Art 9, ordonnance n° 2020-346 of 27.03.2020.
¹⁹ Art. 20, rectificative finance law n° 2020-473 of 25.04.2020.
²⁰ Ordonnance n° 2020-306 of25.03.2020.
²¹ Article 2, ordonnance n°2020-306 of25.03.2020.
²² Art. 3, LOI n° 2020-473 du 25 avril 2020 de finances rectificative pour 2020.
²³https://www.tresor.economie.gouv.fr/Articles/2020/04/30/covid-19-adaptation-du-controle-des-investissements-etrangers-en-france-ief-pendant-la-crise-sanitaire.
²⁴ Arrêté ministériel du 27 avril 2020.

GERMANY :
²⁵ Art. 35 (3) Grundgesetz (German Constitution).
²⁶ Art. 70 Grundgesetz (German Constitution).
²⁷ Announcement of the Bavarian State Ministry of Interior, Sports and Integration (Bekanntmachung des Bayerischen Staatsministeriums des Innern, für Sport und Integration) dated from March 16th, 2020, Az. D4-2257-3-35.
²⁸ Infektionsschutzgesetz dated from July 20th, 2000 (BGBI. I S. 1045), amended by Law dated from March 27, 2020 BGBI. I 587 (Nr. 14).
²⁹ Created by an amendment to Law on Special Financial Market Stabilisation Funds (Finanzmarktstabilisierungsfondsgesetz) BGBI Jg 2020, Teil 1 Nr. 14, S. 543. The Law on Special Financial Market Stabilisation Funds has been created in 2008 during the “Lehman” banking crisis and now reused for the implementation of the Economic Stabilisation Fund.
³⁰ https://www.bmwi.de/Redaktion/DE/Coronavirus/coronahilfe.html
³¹ https://finanzierungsportal.ermoeglicher.de/
³² https://www.bmwi.de/Redaktion/DE/Coronavirus/soloselbststaendige-freiberufler-kleine-unternehmen.html
³³ Art. 240 § 1 EGBGB (Law of Introduction to the German Civil Code).
³⁴ Definition as to 2003/361/EG.
³⁵ Art. 240 § 2 EGBGB (Law of Introduction to the German Civil Code).
³⁶ Art. 240 § 3 EGBGB (Law of Introduction to the German Civil Code).
³⁷ Law to mitigate the consequences of the COVID 19 pandemic in civil, insolvency and criminal proceedings of 27 March 27th, 2020 (Gesetz zur Abmilderung der Folgen der COVID-19-Pandemie im Zivil-, Insolvenz- und Strafverfahrensrecht vom 27. Mârz 2020).
³⁸ Law on the temporary improvement of the regulations for short-time work compensation (Gesetz zur befristeten krisenbedingten Verbesserung der Regelungen für das Kurzarbeitergeld) amending art. 109 of the Social Code Vol. 3 (Drittes Buch Sozialgesetzbuch – Arbeitsfôrderung)and granting a temporary restricted delegated power to the executive for executing body until Dec 31st 2021.
³⁹ §§ 3, 4 EntgFG (Law on the payment of remuneration on public holidays and in the event of illness – Continued Remuneration Act).
⁴⁰ § 47 SGB V.
⁴¹ § 56 InfSG.
⁴² Article 9 of the DS-GVO (German data protection regulation).
⁴³ Article 6 (1) (d) of the DS-GVO (German data protection regulation).
⁴⁴ Art.2 Act Concerning Measures Under the Law of Companies, Cooperative Societies, Associations, Foundations and Commonhold Property to Combat the Effects of the COVID-19 Pandemic of 27 March 2020 (Gesetz über Maf3nahmen im Gesellschafts-, Genossenschafts-, Vereins-, Stiftungs- und Wohneigentumsrecht zur Bekâmpfung der Auswirkungen der COVID-19-Pandemie).
⁴⁵ Kommanditgesellschaft auf Aktien – KGaA -, societas europaea – SE – and Versicherungsverein auf Gegenseitigkeit – VvaG.
⁴⁶ Art.1 Act Concerning Measures Under the Law of Companies, Cooperative Societies, Associations, Foundations and Commonhold Property to Combat the Effects of the COVID-19 Pandemic of 27 Mach 2020 (Gesetz über Maf3nahmen im Gesellschafts-, Genossenschafts-, Vereins-, Stiftungs- und Wohneigentumsrecht zur Bekâmpfung der Auswirkungen der COVID-19-Pandemie).
⁴⁷ Law on measures in company, cooperative, association, foundation and home ownership law to combat the effects of the COVID 19 pandemic.
⁴⁸ Law on the temporary suspension of the obligation to file for insolvency and to limit the liability of organs in case of insolvency caused by the COVID 19 pandemic (Gesetz zur vorübergehenden Aussetzung der Insolvenzantragspflicht und zur Begrenzung der Organhaftung bei einer durch die COVID-19-Pandemie bedingten Insolvenz (COVID-19-Insolvenzaussetzungsgesetz – COVInsAG)).
⁴⁹ Section 128a (1) and (2) of the German Code of Civil Procedure (ZPO).
⁵⁰ § 224 (2) German Code of Civil Procedure (ZPO).
⁵¹ Art. 3 Law to mitigate the consequences of the COVID 19 pandemic in civil, insolvency and criminal proceedings of 27 Mach 27th, 2020 (Gesetz zur Abmilderung der Folgen der COVID-19-Pan demie im Zivil-, Insolvenz- und Strafverfahrensrecht vom 27. Mâlz 2020).
⁵² § 229 (1) and (2) of the Code of Criminal Procedure (StrafprozeBordnung).
⁵³ Section 10 Introductoly Act to the Code of Criminal Procedure (EGStPO).
⁵⁴ The existing transitional provision to § 2b UStG (German VAT Law) in § 27 paragraph 22 UStG (German VAT Law) will be extended until 31 December 2022 due to more urgent work by legal entities under public law, especially municipalities, to deal with the COVID 19 pandemic.
⁵⁵ § 9 sentence 3 and § 20 sub-section 6 sentences 1 and 3 UmwStG (German Transformation Tax Act).
⁵⁶ Art. 4, 5, 13, 15 Foreign Trade and Payments Act (AuBenwirtschaftsgesetz).
⁵⁷ https://www.bundesfinanzministerium.de/Content/DE/FAQ/2020-03-13-Corona-FAQ.html