Reinier advises national and international companies
reinier.russell@russell.nl +31 20 301 55 55Which measures can you, as an entrepreneur, take to limit the impact of the coronavirus crisis on your company? What legal options do you have? In this blog, which is regularly updated, we provide answers to the most important legal questions.
We resolve many legal questions for our clients that are related to the coronavirus: about the exceptional measures taken by the government to tackle Covid-19, but also about HR/employment law, compliance with commercial obligations, force majeure clauses, refinancing and privacy. Our blogs deal with many legal questions from entrepreneurs and employers. If you have a question, please contact me (reinier.russell@russell.nl or 020-301 55 55) or one of our other specialists. We are also easily accessible during the coronavirus crisis to help you limit the damage caused to your business.
Firstly, companies that are affected by the coronavirus and therefore having liquidity problems are entitled to the SME credit guarantee scheme (BMKB) through their bank. This scheme has been extended to 30 June 2020. In this way the government is a guarantor in part if companies wish to take out a loan or increase their current account credit. This way banks can extend credits more easily and companies can borrow faster and more money. In order to be eligible for the BMKB, companies, inter alia, need to have a maximum of 250 employees and the annual turnover must be a maximum of € 50 million or the balance sheet total a maximum of € 43 million.
Secondly, companies that have difficulties obtaining bank loans and bank guarantees from € 1.5 million to € 150 million can make use of the Corporate Finance Guarantee (GO). This means that the government is a guarantor for 50%.
To ensure that business owners will be able to cope with liquidity problems, companies can request special deferment of payment of income tax, corporation tax, turnover tax and payroll tax. If you request deferment of payment, the Tax and Customs Administration will immediately stop the collection. In addition, default fines are temporarily not collected.
If you expect to make less profit due to the corona crisis, you can also adjust your income in your provisional income tax or corporation tax assessment or you can submit a request for reduction of the provisional assessment. This way, less tax is paid immediately.
It is possible that not being able to deliver will be qualified as force majeure. In the event of force majeure on the part of your supplier, he shall in principle not be liable for any damage. The arrangements made or the specific circumstances of the case however may result in you being able to recover the damage from the supplier. Therefore, make sure to check your contracts and the applicable general terms and conditions to see whether you can recover the damage or if the damage is at your expense. For instance, is there a guarantee that delivery will take place? Has an exoneration clause been included?
There may also be circumstances that prevent the invocation of force majeure. For instance, if your supplier could have foreseen problems of has foreseen them but still decided to conclude the agreement with you.
If you are not able to meet your obligations, you have to inform your counterparty. Check whether your contract includes arrangements about what you have to do if you are not able to deliver. If your General Terms and Conditions include an exoneration clause and are applicable, you may be able to invoke them. If you have not arranged anything, you may be able to invoke force majeure so that, in principle, you will not be liable for damage.
If your counterparty does not agree with your invocation of force majeure, you can try to find a solution through negotiations, for instance by paying damages or compensation. If this is not successful, the court will have to decide whether there is indeed force majeure and who has to bear the consequences.
General meetings of shareholders (AVA) may be desired or even necessary during the coronavirus crisis. Think, for instance, of the adoption of the financial statements and resolutions to pay out dividends. You can take a number of measures to meet without (or as little as possible) physical contact:
Thanks to emergency legislation, digital meetings will be allowed even if this is not provided for in the articles of association. In addition, it will be possible to defer the deadlines for general meetings and the adoption of the financial statements. The financial statements 2019 now have to be adopted before 1 November 2020. These arrangements do not only apply to companies, but also to associations and foundations.
It is not possible to oblige employees to take days off. Compulsory holidays can only be taken with the employee’s consent or if this has been agreed in the collective agreement or the employment contract. However, you can point out to employees that the statutory holidays must be taken within six months of the year in which they have accrued.
The Working Time Reduction Scheme (wtv) has been abandoned and is replaced by the Emergency Relief Measure for the Preservation of Work (NOW). The NOW is a simplified version of the wtv. If you have lost at least 20% of the turnover as from 1 March 2020, you can submit an application to the UWV in order to receive a subsidy for labour costs. The amount of the subsidy depends on the turnover loss. The maximum compensation is 90% of the wages costs for a period of three months. This period can be extended once by three months. You will receive 80% of the amount you requested as an advance. In hindsight you will have to show what the actual drop in turnover was. The condition is that you do not submit a request for dismissal of personnel due to commercial reasons.
No, you do not have to submit a new application. If you have already submitted an application for working time reduction which has not been dealt with yet, it will be considered as a an application for the Emergency Relief Measure for the Preservation of Work (NOW) scheme. You will receive information from the UWV about this. Your request for working hours will now also be subject to the guidelines of the NOW scheme. Therefore, the UWV may ask you to provide additional information.
Have you already received a working time reduction permit? It remains valid. Would you like to extend this permit? Then, the extension will fall under the Emergency Relief Measure for the Preservation of Work (NOW) scheme.
Holiday plans are cancelled at an increasing rate due to negative travel advice, closed accommodations or other measures related to the coronavirus. What do you, as employer, have to do with a request about reimbursement of scheduled leave? Although the risk that holidays are cancelled is for the employee, it is in principle reasonable that they wish to take their holiday at another time. If you do not have any substantial business interests, you will thus have to accept a withdrawal of an application for leave. There may be substantial business interests, if you have already made the work schedules for the other employees or if you have arranged for replacements.
As an employer, you are responsible for providing a safe and healthy work environment. Therefore, it is in principle allowed to deny employees access to the office if they pose a risk to the safety and health of other employees. So the employee which you suspect or know for sure to be infected with the coronavirus must stay home and you can deny him or her access to the office.
Yes, if the work so permits, you have to allow it. The government’s advice is to work from home where possible. However, if the employee does not have a cold or there is no situation as referred to by the RIVM and it is impossible to work from home, the employee in principle must go to work. If the employee refuses this, for instance out of fear of being infected where there is no concrete reason, you can consider that as refusal to perform work.
The works council has the right to be consulted on ‘major decisions’ of the entrepreneur. This right also applies in full to many coronavirus measures. Think, for instance, of working from home or even compulsory redundancies and (partial) termination of business activities. What is important is that you consult the works council when it can still influence the decision. Your decision must also be sufficiently substantiated.
In addition, the works council has the right of consent with regard to a decision adopting, amending, revoking, inter alia, regulations concerning working conditions, absenteeism/reintegration, monitoring and assessment of employees (such as homeworking arrangements) and privacy. Such regulations are subject to the consent of the works council.
As an employer you have a duty of care to ensure your employee’s safety and health. This includes ensuring a good workplace for employees, also if your employees work from home because of the coronavirus. For instance, they must be provided with a well-adjusted, chair, table and monitor. Make sure to always point out the health and safety risks to your employees and evaluate what they have to keep in mind. The latter is particularly important now that many employees are working from home for the first time and have not yet set up an appropriate place for it. In addition, you as an employer, can also ensure that good arrangements are made regarding communication, planning and productivity.
The protection of one’s own personal data, as well as those of colleagues and customers must be carefully ensured. Especially now that a lot of work is carried out at home, you, as an employer, must be aware of the privacy risks involved. First of all, inform your employees of the privacy policy and how to act in the event of certain situations (e.g. a data leak). In addition, ensure that a secure connection can also be used when working from home, by means of two-factor authentication and a VPN connection. Finally, make good arrangements with your employee about the use of the work laptop and/or their own equipment. This is the only way that personal data can be protected as good as possible when working from home.
If an employee works from home, you, as an employer, are in principle responsible to ensure that he or she has the security means necessary (anti-virus programme, authenticator, etc.). If necessary, also a computer. But what if an employee uses his or her own computer and because of this the intranet gets infected with malware? The employee will only be liable to you in the event of wilful acts or omissions or if he or she acts wilfully reckless. This must be proved by the employer and is not easily accepted by the court.
If your network gets hacked or infected because the connection or your virus software is not secure, you can address your online provider or the software supplier about this. In that case you will have to prove that the hacking is a consequence of a violation of the arrangements made in the agreement or, more generally, of the duty of care of the supplier. This will not be easy either. Make sure to make clear arrangements about liability in the event of hacking and do not cut back on cyber security. Even more so because you yourself could be liable to third parties in the event of negligence.
It is not prohibited to monitor employees. However, in doing so, the privacy of the employee and the conditions applicable to monitoring under the General Data Protection Regulation (AVG) must be taken into account. That means you have to have a legitimate ground for monitoring them and there is no other way to achieve the objective, which is less intrusive to the privacy of the employees. You are not allowed to monitor your employees all day and you have to inform your employees in advance of the possibility that they may be monitored. If you have a works council, you need the works council’s consent for the monitoring of employees.
You can also agree with your employee that you come to check if the workplace at home meets the requirements of the health and safety service. However, in that case a picture of the workplace would be sufficient.
That depends on the arrangements you made in the tenancy agreement. In turnover rent the amount of the rent (in part) matches the turnover. In many cases, however, the tenancy agreement will be based on the ROZ model for retail space. According to this model, in the event of a defect – such as forced closure – the tenant is entitled to have the defect repaired, but generally not to rent reduction. In addition, it will be difficult to hold the landlord liable when he is only carrying out measures of recommendations by the government. However, you can try to get (temporarily) a lower rent in consultation with the landlord. After all, the landlord too has no interest in your not being able to pay the rent at all.
As a good tenant, you are obliged to exploit your shop during the normal opening hours. An exception is made if, in the given circumstances and in view of the mutual interests, you can not be required to continue the exploitation. Whether the landlord can oblige you to stay open therefore strongly depends on the circumstances of the case. The coronavirus crisis qualifies as a special circumstance, but whether you may close your shop also depends on the implications for the landlord. If half of the shops are closed, this will also have consequences for the turnover and liquidity of other shops, for instance. Keep in mind that you will continue to pay the rent during the temporary closure to avoid fines.
In principle, that is not permitted. Europe’s external borders have been closed because of the coronavirus pandemic. This closure does not apply to holders of a Dutch residence permit or a long-stay visa (MVV). As it concerns only a closure of the external borders, individuals with the nationality of an EU Member State, Switzerland, Norway, Liechtenstein or the UK and diplomats are allowed to enter the Netherlands for the time being. Incidentally, the Dutch government urgently advises to only travel if it is absolutely necessary and you have to take into account limited availability of flights and (international) public transport.
Because of the current closure of the external EU borders, you can not make use of a short stay visa. Short stay Schengen visa which are not used become invalid and cannot be renewed either. If you cannot use your visa in time, you will have to apply for a new one. It would be wise to do so in good time as there is likely to be a temporary peak in the number of applications after the expiry of the restrictive measures.
Would you like more information about the above questions or do you have any other legal questions with regard to the coronavirus? Please contact our legal corona crisis team:
You can call us at 020 – 301 55 55 or ask your questions using the form below:
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