Kategoria: Corona

The Employment Bridging Emergency Fund in 10 points

Posted on by Annette Knijnenberg

1. Introduction of the Employment Bridging Emergency Fund (NOW)

In light of the economic consequences of the coronavirus, the Employment Bridging Emergency Fund (Noodmaatregel Overbrugging voor Werkbehoud – NOW) has been introduced with immediate effect. The NOW provides for temporary wage cost subsidy for employers that are impacted by a drop in turnover. The NOW has retroactive effect from 1 March 2020.

2. Withdrawal of short-time working scheme

The short-time working scheme (regeling werktijdverkorting – wtv) has been withdrawn with immediate effect. Applications already filed for the short-time working scheme will be handled as applications for the NOW.

3. NOW conditions

Two conditions apply to the NOW: (i) you expect a drop in turnover of at least 20% as from 1 March 2020; and (ii) you will not lay off any staff on economic grounds during the period in which the NOW can be relied on.

4. Duration of the NOW

The NOW applies for a period of three months. One extension of a further three months is possible. Further conditions may be attached to that extension. It is not yet clear what exactly those conditions will be.

5. Amount of the NOW

The contribution amounts to 90% of the payroll total in the event of a drop in turnover of 100%. If the drop in turnover is lower, the contribution is determined pro rata to the drop in turnover. It is not yet clear exactly which remuneration components are counted in the payroll total.

6. Flexible contracts

Unlike in the short-time working scheme, flexible contracts, such as agency contracts and stand-by contracts, also fall within the scope of the NOW. That is of course favourable for sectors in which flexible contracts are frequently used, such as the hospitality industry.

7. Advance

The contribution under the NOW is awarded as an advance. The advance amounts to 80% of the expected contribution. If, for instance, a 50% drop in turnover is expected, the advance amounts to 36% of the payroll total. The exact drop in turnover is determined at a later time. A correction may be made when the final contribution is determined.

8. Applying for the NOW

Applications for the NOW must be filed with the UWV (Employee Insurance Agency)It is not yet possible to file an application. You will be informed as soon as that is possible. Applications in excess of an amount yet to be determined require an auditor’s report. If you have already filed an application for the short-time working scheme, you need not file a new application for the NOW.

9. Consequences of the NOW for employees

Employees are entitled to continued payment of their entire wages during the term of the NOW. Unlike the short-time working scheme, the NOW does not affect their unemployment benefits entitlement.

10. Self-employed persons

The NOW does not apply to self-employed persons. The Besluit bijstandverlening zelfstandigen (Social Assistance (Self-Employed Persons) Decree) applies to self-employed persons who are forced to cease their operations.

If you have any questions about the employment law consequences of the coronavirus, please contact our partner employment law Elias van Kampen at elias.vankampen@actlegal-fort.com.

Tax aspects of the Anti-Crisis Shield

Posted on by Lisa Fortmüller


Potential tax loss carryback – PIT and CIT (applies to losses incurred in 2020)
Taxpayers that:
(i) suffered a loss in 2020; and
(ii) generated revenues which are at least 50% lower than in 2019 (with respect to the same operations)
due to COVID-19, can apply the loss recorded in 2020 to their CIT-8 return for 2019, yet no more than PLN 5m.

Tax on revenue from buildings deferred until July 20, 2020
The payment date for tax on revenue from buildings for the period of March-May 2020 has been extended until July 20, 2020 for taxpayers:
(i) that have suffered negative economic consequences due to COVID-19 in a given month; and
(ii) whose revenue in a given month is at least 50% lower than in the corresponding month of 2019.

Deferral of PIT advances until June 01, 2020
The deadline to pay PIT advances for March and April 2020 on revenue from employment agreements, civil-law agreements , proprietary rights (if the 50% rate of tax-deductible expenses applies) and social benefits from ZUS [Social Insurance Institution] is extended until June 01, 2020 if taxpayers have suffered negative economic consequences due to COVID-19.

Exemption from tax on civil-law transactions on loans
The tax on civil-law transactions will not apply to loan agreements executed until August 31, 2020, yet only with respect to business entities whose liquidity has deteriorated as a result of the negative economic consequences related to COVID-19.

Waiver of the debtors’ obligation to apply bad debt relief in case of non-payment
The debtor is not obliged to increase the income that serves as the basis for calculation of CIT advances in 2020 by the value of unpaid obligations; this applies to debtors that:
(i) that have suffered negative economic consequences due to COVID-19 in a given period; and
(ii) whose revenue in a given month is at least 50% lower than in the corresponding month of 2019.

Possibility to drop simplified income tax advances for March-December 2020
(i) The so-called “small taxpayers” that are using simplified income tax advances in 2020 can now decide to opt out of this solution in March-December 2020 if they are bearing negative economic implications related to COVID-19.
(ii) The taxpayer should notify the tax authority accordingly in the 2020 annual return.

Deduction of donations made for COVID-19 prevention purposes
This applies to donations (cash or in-kind) aimed at prevention and combating of COVID-19, made in 2020 to:
(i) entities performing medical operations, listed in the register indicated in the COVID-19 Act;
(ii) the Material Reserves Agency for purposes related to its statutory objectives;
(iii) the Central Base of Sanitary and Anti-Epidemic Reserves for purposes related to its statutory objectives.

Deferred effective dates
Retail sales tax: January 01, 2021;
New VAT rate matrix: July 01, 2020;
SAF-T VAT for large enterprises: July 01, 2020.

No extension fee in case of tax and ZUS reliefs
(i) Waiver of the extension fee in case of a decision granting a tax exemption (on the basis of an application filed during the state of epidemic threat or the state of epidemic, or within 30 days after its revocation).
(ii) Waiver of the extension fee in case of payment in instalments or deferral of social insurance contributions for the period starting from January 01, 2020 (on the basis of an application filed during the state of epidemic threat or the state of epidemic, or within 30 days after its revocation).

Tax audits and enforcement procedures
Possibility to suspend tax audits, tax procedures and customs/tax inspections ex officio or at the taxpayer’s request. The decision takes effect as of its issue date. The authority shall deliver the decision promptly, yet no later than on the delivery date of a decision resuming the suspended audit/procedure. The periods of suspension are not taken into account for purposes related to the terms/dates of audits/procedures.

Reporting obligations – postponed deadlines
(i) Extension of the deadline to submit a notice of payment to a bank account from outside the so-called white-list to 14 days of the transfer date during the state of epidemic threat / state of epidemic, announced as a result of COVID-19.
(ii) Suspension of deadlines for mandatory disclosure reports (other than related to cross-border arrangements) between March 31 and June 30, 2020.
(iii) Extension of the term for the issue of advance tax rulings to 6 months.

Authorities’ right to offer further reliefs and solutions
(i) City/town councils can decide to pass resolutions based on which lands, buildings and structures related to business operations will be exempt from the property tax; this applies to business entities whose liquidity has deteriorated as a result of the negative economic consequences related to COVID-19.
(ii) The mayor of a city/town or head of a municipality can adopt a regulation extending the payment dates for instalments of the property tax due for April-June 2020 until September 30, 2020 at the latest; this applies to a specific group of business entities whose liquidity has deteriorated as a result of the negative economic consequences related to COVID-19.
(iii) The Ministry of Finance can issue a regulation postponing the dates for preparation, approval, publication and delivery of financial statements.

Please feel free to contact us for any assistance.

Web conferencing during the COVID-19 pandemic

Posted on by Jessica Zenz-Spitzweg

Using online tools in compliance with GDPR

In the current situation, companies are forced to reduce, if not limit, personal contact with their employees, customers and business partners to a minimum. A great portion of the daily work is moving onto digital platforms and tools for video conferencing. It’s important to know the impact of these tools on digital privacy and security and how to manage them. One priority must be the implementation of appropriate technical and organizational measures to ensure compliance with the applicable data protection laws.

What do you need to consider now?

It would be a mistake to believe that manufacturer or developer of online tool take data privacy into consideration reliably and responsibly. Although the ´ Privacy by Design´ and ´Privacy by Default´ principles (maintaining data protection through technical design and settings) were introduced by the GDPR many online tools have not implemented these legal requirements yet. In the end it is each user and each company as a controller, who is fully responsible that all online tools used are GDPR-compliant. Therefore, each company using online tools is obliged to take appropriate technical and organisational measures that effectively implement the principles.

How do I implement data protection through technology design?

The technical measures depend on the planned processing and the category of data that are shared or collected via the tool. Please note that the measures previously selected need to be reassessed concerning the Covid19.

1. Taking technical measures

The technical measures presented here are only exemplary and not conclusive, ultimately (as explained above) it always depends on the individual case.

  • Pseudonymization. Where possible process personal data in a manner that the it cannot be attributed to a specific person.
  • Encryption of data: Any file containing personal data that is shared or transmitted should be protected, preventing accidental transmission or unauthorized access.
  • Privacy notices and warnings e.g. when sharing your screen.
  • No use of shareware or freeware tools like WhatsApp and FaceTime for business purposes; in most cases business versions are available that allow specific privacy settings.
  • Restriction of log files: Data should only be used for the – clearly communicated – purpose and deleted after the purpose has been omitted.
  • Chat history and file exchange, automatic deletion within defined period of time.
  • Recording of web conferencing only with explicit prior consent of all participants.
  • Establishment of access restrictions and registration requirements. Allow the participation of guests only with the prior consent of the organizer or only after the organizer opens the conference. Notice of the incoming persons for all participants.

2. Taking organisational measures

  • Training of employees how to use the tools properly
  • Desktop sharing only, it relevant for the meeting. Take appropriate precautions, such as closing the mailbox, any other documents that are not needed.
  • Digital factory tours. If you define routes, inform the affected worker in this area.
  • Background blur. Make sure that only you are visible during the video conference, and not your background.
  • Conclusion of a contract processing agreement with the respective provider of the tool (Art. 28 GDPR)
  • If possible, do not transfer data outside the EEA area. Make sure that the servers of the provider are not located outside the EEA area or the providers have committed themselves to GDPR-compliance.

Using web conferencing software to communicate with employees?

Of course, you can also use the web conferencing software for internal communication. However, make sure that you do not use the tool for working time control by collecting the attendance information (present/employee/absentee) of the respective employee. If you want to make use of the data, you must involve your works council or provide a contractual basis.

COVID-19 – Real Estate: Review of the main measures provided by the state of emergency decree

Posted on by Ana Pandelea

The state of emergency was instituted in Romania for a period of 30 days as of 16 March 2020 (i.e. the date when Decree No. 195/2020 establishing the state of emergency in Romania was published in the Official Gazette).

We have included below a short review of the main measures provided by the state of emergency decree from real estate projects perspective:

  1. Issuance of emergency situation certificates in order to prove that an economic operator’s activity was affected because of COVID-19’s impact:
    • the Ministry of Economy, Energy and Affairs will issue emergency situation certificates based on supporting documents upon request of the economic operators whose activity is affected because of COVID-19;
  2. In relation to public authorities:
    • the validity of the documents issued by the public authorities which were to expire during the state of emergency shall be maintained;
    • during the state of emergency, the legal terms for the public authorities’ responding to requests submitted based on free access to public interest information, as well as those related to petitions, are doubled.
  3. State authorities may gradually adopt measures such as temporary closing of restaurants, hotels, coffee shops, clubs, casinos, associations’ headquarters or other public places;
    4. Thus, authorities have already ordered the temporary closing of shopping centers (except for sale of food, pharmaceutical or veterinary products or cleaning services) and suspension of activities such as food or beverage serving within restaurants or other public places, as well as cultural, sports, entertainment or gambling activities within enclosed spaces.

  4. The Government may adopt measures for supporting companies and other entities affected by COVID-19 crisis, as well as for supporting the employers and employees.
  5. Statutes of limitations and time bars do not begin to run and, if already commenced, are suspended for the duration of the state of emergency.

Anti-Crisis Shield – key changes for the real estate sector

Posted on by Lisa Fortmüller

Statutory reduction of rent in retail complexes with sales area of over 2,000 sqm
– Statutory rent reduction of 90%, applicable to retail developments with a sales area exceeding 2,000 m2, covering the period over which the Tenant’s operations are prevented/hindered (unless the Lease Agreement offers a better solution for the Tenant, in which case such solution will apply).
– The Lessor and the Tenant may apply to a court for modification of the reduction rate, subject to the principles of fairness/equity.
– No contractual penalties, interest, compensation for Tenant’s non-performance of obligations (based on the statement of reasons to the draft bill, this shall apply if non-performance results from restrictions on business operations; however, the provision is too vague and might be misinterpreted).

Perpetual usufruct fee deferred for 3 months
Deferral of the payment date for perpetual usufruct fee from March 31, 2020 to June 30, 2020.

Exemption from tax on civil-law transactions on loans
The tax on civil-law transactions will not apply to loans, yet only in case the borrower is a business entity whose liquidity has deteriorated as a result of the negative economic consequences related to COVID-19.

Suspension of retail sales tax
Further suspension of the application of the Retail Sales Tax Act. Taxpayers will not have to pay this tax between July and December 2020.

Tax on revenue from buildings deferred until July 20, 2020
Applies to the period of March-May 2020. Available to taxpayers that have suffered negative economic consequences due to COVID-19, and whose revenue in a given month is at least 50% lower than in the corresponding month of the previous fiscal year, or – in case of taxpayers that embarked on business operations in 2019 – than the average monthly revenue in that year.

Please feel free to contact us for any questions.

Capital markets – easing regulatory burdens in face of coronavirus epidemic

Posted on by Lisa Fortmüller

Supervisory Impulses Package – Polish Financial Supervision Authority’s Office (PFSAO) proposes to ease regulatory burden and supervision amid coronavirus outbreak.

As the coronavirus epidemic spreads, the PFSAO works on a set of proposals to help entities supervised by the institution carry on under the present market conditions. The package has been named “Supervisory Impulses Package for the Security and Growth of the Capital Market” (SIP), with similar programs announced for the banking and insurance sectors.

The SIP for the capital market has the following goals:
– to keep market liquidity stable;
– to help entities fulfill regulatory obligations by rescheduling reporting deadlines;
– to help businesses raise capital;
– to allow businesses to focus on clients’ needs and key processes.

Actions that the PFSAO plans to take include:

1. Individual approach to investment funds which fail to comply with applicable investment limits, covering adjustment of supervisory measures to the present market conditions;

2. Creating or launching tools to boost liquidity in the treasury securities sector by implementing as well as supporting relevant measures;

3. Legislative changes, such as:
– extending deadlines for entities supervised by the PFSA to prepare, approve and publish annual financial statements and annual consolidated financial statements;
– extending deadlines for issuers to submit quarterly reports and consolidated quarterly reports covering the first quarter of the financial year which started on 1 January 2020;
– extending deadline for holding the Annual Shareholders Meeting;
– extending deadline salary policy approval;
– modification of rules for preparing information memoranda leading to easier and faster processing of bid documents, which businesses are required to submit in order to raise capital.

4. Pragmatic approach to selected supervisory actions, including:
– review of information submitted by the entities supervised by the PFSA in fulfillment of ongoing reporting obligations to lighten the burden on them; the need to postpone deadlines for fulfillment of these obligations is also expected;
– putting off non-reporting actions (e.g. audits, information obtaining);
– taking relevant supervisory actions in case of non-compliance with capital adequacy standards, with allowances being made for the epidemic’s impact;
– revision of the PFSA’s inspection schedule (verification of upcoming inspection actions), without modifying supervisory goals;
– pragmatic approach to delaying individual supervisory deadlines, e.g. deadlines for implementation of guidance issued after inspections, including deadlines established originally;
– simplified form of PFSAO’s supervisory assessments carried out in 2020, with allowances being made for the epidemic’s impact;
– six-month extension of the deadline for brokerage houses to adopt the EBA’s guidelines on outsourcing arrangements.

Moreover, the PFSUO will increase its reliance on electronic communication channels, esp. PORTAL and e-PUAP platforms, and e-mail, to keep in touch with entities it supervises.

The SIP is a work in progress, individual elements of which may or may not be implemented, depending on market developments. It remains to be seen how the initiatives will translate into law and supervisory practice. With the PFSU’s declarations of remaining open to suggestions and discussion with market participants about any initiatives to mitigate the epidemic’s impact on entities operating in the capital market, one may be optimistic.

Do not hesitate to contact us with any questions.

COVID-19 – Employment Law: Review of the main measures provided by the state of emergency decree

Posted on by Ana Pandelea

The state of emergency was instituted in Romania for a period of 30 days as of 16 March 2020 (i.e. the date when Decree No. 195/2020 establishing the state of emergency in Romania was published in the Official Gazette).

We have included below a short review of the main measures provided by the state of emergency decree from an employment law perspective:

  1. Measures for the social protection of employees and their families in the economic sectors where the activity is affected or halted totally or partially by decisions of public authorities, during the emergency state, shall be established by way of order of minister of the Ministry of Labour and Social Protection;
  2. Private companies will implement work from home or telework during the state of emergency, where possible, by employer’s unilateral decision;
  3. Inspections of the Territorial Labour Inspectorates at employers shall be suspended, except for specific cases expressly provided under the Decree (i.e. inspections ordered by the ministry of labour and social protection, inspections ordered by the Labour Inspection for the enforcement of the decisions of the National Committee for Special Emergency Situations, necessary inspections for events having an increased degree of social danger and inspections for investigating work accidents);
  4. The validity of the Collective Bargaining Agreements and of the collective agreements (Romanian: acorduri colective) shall be maintained during the emergency state.

Furthermore, the Decree expressly provides that (i) measures may be adopted for supporting the economic operators affected by COVID-19 and (ii) the Govern may support the employers and the employees affected by the effects of COVID-19 crisis, by way of derogation from general legal provisions in force.

In addition to the above, considering school closing given the COVID-19 pandemic, the Romanian Parliament passed Law No. 19/2020 on granting paid leave to parents for child surveillance, in case of temporary closing of education establishments, as further amended and supplemented by Emergency Ordinance no. 30/2020 (“Law 19/2020”) and the Government adopted the Government Decision No. 217/2020 for the implementation of Law 19/2020 (“Implementation Norms”), including the following measures:

  • paid leave shall be granted to one of the parents for children surveillance in case of temporary closing of education establishments where the children are registered, entailed by adverse weather conditions or other extreme situations declared by the relevant competent authorities; the conditions for granting paid leave are as follows:
    • the respective parents must have children aged up to 12 years or children with disabilities aged up to 18 years registered with an educational establishment; and
    • the parents’ job does not allow working from home or teleworking;

      • The term “parent” within the meaning of Law 19/2020 is wider and includes also, for example: the adopter, the person entrusted with the child / children for adoption purposes, the parent or the legal representative of the adult with disabilities registered with an educational establishment;

  • the provisions of Law 19/2020 are not applicable in case one of the parents (within the meaning of Law 19/2020) is (i) on parental leave, (ii) on paid / unpaid leave or (iii) the personal assistant of one of the dependent children, nor in the case of parents in technical unemployment (Romanian “somaj tehnic”) or in case one of the parents does not have a taxable income;
  • special rules apply in case of parents working in units that must ensure continuity during the state of emergency;
  • the right to paid leave applies for the entire period during which the respective educational establishments are closed given the authorities’ decision. Paid leave shall be granted to one of the parents for the working days until the end of the state of emergency, with the exception of the working days during school holiday;
  • the indemnity for each day off amounts 75% of the base salary corresponding to a working day without however exceeding the correspondent per day of 75% of the medium gross salary used for substantiating of the social security state budget; and
  • the indemnity is paid from the chapter afferent to the personnel expenses of the employer’s income and expenses budget. The employer shall then settle the amounts paid for the indemnities (net values) from the Guarantee fund for payment of salary debts, as per the procedure provided under the Implementation Norms.

    • Personal data protection implications that companies should be taken into account when adopting preventing measures against COVID-19

    Posted on by Jessica Zenz-Spitzweg

    The measures aimed at ensuring a safer workplace and preventing the spread of the virus may increase personal data processing of employees and third persons outside the organization. The data fundamentally affected by these measures are concerning health.

    In accordance with article 9.1 GDPR, health data are considered special categories of personal data and, as a general rule, their processing is prohibited, unless any of the exceptions set out in article 9.2 GDPR is applicable, in which case a test of proportionality, necessity and transparency must be performed.

    In the present case, the processing of health data derived from COVID-19 of employees and third persons that are being processed by the companies is covered by the exceptions provided for in article 9.2 GDPR, that is the protection of vital interests, public interest and compliance with labour law obligations.

    Below are the main points that companies should consider at this respect:

    Contact information

    As a result of teleworking measures, it may be necessary to use contact details and personal information of employees. Consideration should be given to whether there is a legitimate basis for the processing and employees should be informed about the purpose of the use of such personal information, duration of the processing and retention period.

    Health data

    Monitoring the coronavirus situation and complying with the obligations imposed on companies by the public authorities may involve excessive processing of health data concerning employees and third persons such as suppliers, visitors, among others.

    There are two essential points:

    • These are health data, the processing of which is necessary for the protection of vital and public interests.
    • Such processing shall be limited to the specific purpose of protecting vital interests arising from the coronavirus. The information may not be used for other purposes, nor may previous health information be used for this purpose.

    Confidentiality

    The employee has an obligation to disclose personal and health information and the company must modulate the confidentiality of such information and whether it is shared with other employees.

    Retention

    Throughout these days, HR departments are collecting numerous information from workers, such as travel plans, illnesses and others. Companies must assess how long this information is being retained and when highly confidential data should be destroyed.

    Communication

    There is a high chance that health information may be shared with other entities, such as health care providers. At this point, companies need to find a legitimate basis for communicating this information, how the information should be provided and with whom it is shared.

    Transparency and duty of information

    The need to inform employees and third persons of any processing of personal data resulting from the adoption of measures to prevent the spread of the virus and to ensure workplace health.

    Compensation for loss of earnings resulting from the ordered shutdown

    Posted on by Ana Pandelea

    The Epidemic Act (Epidemiegesetz) has been in force in Austria since 1950 and, therefore, might not be flexible enough to deal with the COVID-19-Pandemic. Although the COVID-19 laws, which were passed in Austria in the last few days, provide for extensive aid measures with a total volume of EUR 38 billion, they do not grant entrepreneurs a legal claim to a payment for compensation resulting from the ordered shutdown against the state. This is the main difference to the Epidemic Act in force, which provides for such a legal claim for compensation.

    However, the Epidemic Act is only applicable to those enterprises that have been closed down on the basis of ordinances or by decisions of the district administrative authorities. Mainly cableway infrastructure and winter tourism enterprises in Voralberg, Tyrol, Salzburg and Carinthia are closed down by such ordinances or decisions. They have a legal claim to compensation for loss of earnings resulting from the close down according to the Epidemic Act.

    All other entrepreneurs who had to close down their businesses as a result of the nationwide decree of the Minister of Health are not compensated under the Epidemic Act. They are to receive benefits from the COVID-19 crisis fund or other assistance from the government’s COVID-19 aid package.

    Commercial property rental – The 10 most important questions from landlords and tenants

    Posted on by Lisa Fortmüller

    It is becoming increasingly apparent that the effects of the corona crisis will continue to preoccupy us for a long time to come and that commercial leases will therefore come under increasing pressure. Landlords must prepare themselves for the fact that their tenants will find themselves in a severe liquidity crisis as a result of collapsing sales, closures or quarantine orders ordered by the state or authorities, as well as general assembly bans or curfews, and that they will no longer be able to pay their rents now or in the foreseeable future.

    According to the information available to us, the German government is currently examining options for protecting tenants who are experiencing payment difficulties as a result of the coronavirus crisis. Apparently, this applies to both commercial and residential tenants. In this context, a ban on termination in the event of payment defaults caused by the coronavirus pandemic is being discussed. This would mean that although the obligation to pay rent would not cease to apply, rents would be temporarily deferred. As a result, the deferred rents would have to be paid later. In the case of housing, the alternative
    However, a special housing benefit is also being discussed as a possible solution, which should take effect when tenants of residential accommodation suffer considerable losses of income as a result of the coronavirus crisis and have no possibility of compensation through transfer payments. In this case the tenants of commercial space would be excluded. Until it is clear whether and to what extent the Federal Government is helping tenants in the current situation and whether this legal „protective shield”, which is currently emerging, will also cover tenants of commercial space, landlords of commercial space should take a few things into account.

    You will find answers to these and other urgent questions in our act news (in German): https://act-newsletter.com/Coronakrise_Gewerberaummiete_die_zehn_wichtigsten_Fragen_von_Vermietern_und_Mietern.pdf