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COVID-19 RESOURCE CENTER: FAQ

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EMPLOYMENT
     

 NEW 

 (11/08) 

Prolongation of the temporary unemployment for force majeure – application needed for prolongation after 31/8/2020

The Belgian scheme for temporary unemployment due to ‘force majeure COVID-19’ has been extended until 31 August 2020 and for companies 'particularly hard hit' even until 31 December 2020.

Our Labour & Employment team summarised the conditions for the further application of the system of temporary unemployment for force majeure. 

For more information , click here.

Don’t hesitate to reach out to Leen Holvoet or Siemen Buttiens should you have any questions.

 
     

 

Q: Can my employees come to work (office, factory, warehouse,...)? Is telework still mandatory?

A: The Belgian government strongly recommends telework for all non-essential companies, whatever their size. For such companies, telework is recommended for any job that can be done through teleworking.

If telework is not possible, companies must take all necessary precautions to guarantee the application of the rules on health and safety and social distancing. This includes in particular that a physical distance of 1.5 meter must be maintained at all times. The social distancing rule also applies to transport organised by the employer. In addition, the employer must take hygienic and sanitary precautions (such as regular cleaning and disinfection of the premises, provision of protective equipment, etc – see below).


 

 

Q: As an employer, where can I find information on the safety- and sanitary precautions that I should implement in the workplace?

A: A so-called ‘generic guide’ of about 50 pages has been published with measures to be taken in order to prevent the spreading of Covid-19 at work. This guide is available in Dutch, French, English and German. The generic guide contains useful information on how different types of workplaces can be adapted, the measures to be taken with regard to sanitary installations, canteens, and other premises, the measures with regard to transport for commuting to work, etc.

The generic guide can be completed with guidelines at sector or company level. Several sectors have already published sector protocols, for garages, the retail sector, etc. Several other sectors are working on sector protocols as well.

Employers belonging to the non-essential sectors should apply the generic guide and the applicable sector protocols going forward. Companies in the essential sectors, which continued their activities during the semi-lockdown and already put in place their own safety precautions, can use the generic guide as a source of ‘inspiration’.


 

 

Q: As an employer, am I free to decide which safety- and sanitary precautions I take in the workplace?

A: As per the answer above, any company belonging to the non-essential sectors should take into account the ‘generic guide’, complemented by the sector protocols (if any) when implementing safety and sanitary precautions in the workplace. Any decisions on specific prevention measures have to be taken at company level, after consultation with the (internal and/or external) health and safety service and while respecting the social dialogue in the company. The social dialogue implies that if there is a health and safety committee (‘comité voor preventie en bescherming op het werk’ – ‘comité de prévention et protection au travail’) or a trade union delegation (‘vakbondsafvaardiging’ – ‘délégation syndicale’), these representative bodies should be informed. If there are no such representative bodies, all employees concerned should be informed/consulted.


 

 

Q: As an employer, do I have to inform my workforce about health and safety measures implemented within my company to prevent the spread of Covid-19?

A: Yes. Although most employees should already be familiar with the basic principles, which are repeated over and over again in the media and applied in food stores, etc., employers have to inform their workforce about the health and safety measures they take within their respective companies. Employers must inform the employees in time on the applicable prevention measures and must provide appropriate training. Third parties ( visitors, contractors,...) should also be informed timely about the applicable prevention measures. Employers can choose the most appropriate communication methods to ensure that all employees and third parties involved are well aware of the health and safety measures (. posters, e-mail, safety guides, stickers on the floor to indicate the necessary social distance, etc). Employers, employees and third parties must comply with the prevention measures applicable in the company.


 

 

Q: As an employer, do I need to provide declarations to my employees who need to commute to work?

A: Travel from home to work by an employee who cannot perform his/her job from home is allowed. If the commute to work is within the Belgian territory, the employee is not required to show a declaration from the employer. It is however recommended that employers provide a declaration to these type of employees so that they can justify their travels if they are stopped by the police. If the employee has to cross the Belgian border to be able to go to work, a declaration using a special template will be necessary.


 

 

Q: Will my business need to run social elections in due time?

A: Social elections (i.e. the election of employee representatives for the works councils and/or health and safety committees) were to be held in May 2020. Companies that have to organise social elections were already carrying out the various steps as determined by the so-called ‘election calendar’. As a result of the covid-19 crisis, all steps on the election calendar as of X+36 are postponed. The new period for the social elections is not yet officially published. The National Labour Council has advised to postpone the social elections until the 2nd half of November 2020. However, a new act published on 13 May 2020 already organises the continuation of the election procedure and determines the exact consequences of the postponement.


 

 

Q: What happens with the protection against dismissal during the period in whichsocial elections are postponed?

A: The existing works councils and health and safety committees continue to exist during the period of postponement. Their members and employees remain protected against dismissal. This also applies to employees who; as candidate in the 2016 social elections, were granted a 4-year protection. The candidates in the elections of 2020 are also protected.

The act on the postponement of the social elections (published on 13 May 2020) also offers the trade unions a period of time during which wherein they can replace candidates they already put forward and states that these new candidates will also become protected. Thus, iIf your company is organising social elections and you received one or more (a) candidates’ list(s), you should thus be aware that other employees might still become candidates. We therefore recommend that employers carefully check the applicable situation (taking into account the potentialssible new election date) before any dismissal in order to avoid dismissing a protected employee.


 

 

Q: As an employer, can I apply for Temporary Unemployment for force majeure because of COVID19?

A: Yes. If you are no longer able to employ your (entire) workforce as a result of the COVID19-virus, you can rely on temporary unemployment for force majeure to allow employees to obtain unemployment benefits. You can use this measure for instance if you had to close your business as a result of a governmental order, if you have employees who must remain in quarantine, or if there is not enough work to be done to keep all employees occupied. The employment agreements with your employees are maintained but suspended. This can be a full or partial suspension (e.g. employees are still working on some days, butnot on others).

In order to benefit from this measure, you need to apply for temporary unemployment. The formalities have been simplified: a specific system of temporary unemployment for force majeure because of COVID19 applies until 31 May 2020 (this can be prolonged).

During this Temporary Unemployment, the employees required to stop working will receive a replacement income from the RVA/ONEM for the days of inactivity. In normal circumstances, such unemployment benefits amount to 65% of a limited remuneration, but the government has decided to increase this percentage to 70% (until 30 June 2020). On top of this unemployment allowance, the RVA/ONEM will add a supplement of EUR 5.63 per day.


 

 

Q: As an employer, can I apply for Temporary Unemployment for economic reasons?

A: Yes. Employers encountering economic problems as a result of the COVID19-crisis can also opt to apply for temporary unemployment for economic reasons. The application procedure for blue-collar workers and for white-collar workers is slightly different. The workforce and the employee representation (works council or trade union delegation) should be informed as well. However, in the current situation, the procedure for Temporary Unemployment for force majeure because of COVID19 (see above) is easier and faster. It also offers more flexibility than the Temporary Unemployment for economic reasons.

 

 

Q: As an employer, can I apply for a payment plan for social security contributions due to my employees?

A: Yes. If you are encountering financial problems as a result of the COVID19-crisis you can apply for a payment plan for social security contributions that are due to your employees. The payment plan will apply to social security contributions for the first and second quarter of 2020. If granted, you will be able to postpone your usual payments and pay your debts in monthly instalments during a period of maximum of 24 months.

The social security administration will decide on the specific terms of each plan.

If you are a natural person who has to pay social security contributions as self-employed person, there is a similar possibility to either apply for a payment plan or to apply for an exemption to pay social security contributions, if specific conditions are met.


 

 

Q: As an employer, can I obtain an automatic deferment of the obligation to pay social security contributions due to my employees, or can I obtain a deferment of payment in another way than through the application for a payment plan?

A: For companies thathad to close by governmental order, the Social Security Administration automatically grants a deferment of the payment of certain social security contributions (for the 1st and 2nd quarter of 2020) until 15 December 2020. You can easily check whether this automatic deferment applies to your company on the basis of the company registration number. The Social Security Administration created a simple online tool, which immediately indicates whether this automatic deferment applies.

Companies that decided to close their operations without being forced to do so by governmental order, and companies that are confronted with a considerable decrease of their economic activity because of the COVID19-crisis, can apply for a deferment allowing them to postpone the payment of certain social security contributions until 15 December 2020. If your company meets these conditions, you can apply for a deferment online, by completing a ‘solemn declaration’.

The content of such declaration can be checked by the authorities afterwards.


 

 

Q: As an employee, can I rely on the new system of parental leave enacted further to the Covid-19 crisis?

A: In order to cope with the continued suspension of school for some categories of school children further to the Covid-19 crisis, employees are able to take a special parental leave to care for their children. This parental leave can only be taken in the form of a 1/2 or 1/5 reduction in working hours (taking into account a full-time working schedule). Taking full-time parental leave is therefore not possible in this specific system. In order to be able to apply for a reduction to 1/2 of the working time, the employee needs to have worked on a 75% basis at the minimum.

This parental leave can only be taken with the employer's permission. The employee must apply in writing (an e-mail with confirmation of receipt is also possible), at least three working days in advance. The employer can also accept a shorter application period.

In order to be eligible for this specific parental leave, the employee must have at least one dependent child who has not yet reached the age of 12. If the child is disabled, other age limits apply. In addition, the employment contract must have been entered into for at least 1 month. Certain other conditions apply. It is also possible for employees who already benefited from certain systems of parental leave to shift to this specific system of parental leave, provided that the employer agrees.

The parental leave can be taken (retroactively) as from 1 May 2020 until 30 June 2020. This period can be prolonged by Royal Decree. The parental leave can be taken in one uninterrupted period, or in one or several periods of one month or one week.

The allowance will be paid by the National Unemployment Authority (‘RVA’/ ‘ONEm’) andis 25% higher than the usual allowance for parental leave.


 

 

Q: As an employer, can I refuse to grant an employee the parental leave enacted further to the Covid-19 crisis?

A: Yes, an employer can refuse to grant this specific parental leave to an employee. The employer should inform the employee of his acceptance or refusal within a period of maximum three working days after the employee’s application, and in any case before the start of the parental leave, in writing or by e-mail with confirmation of receipt by the employee.

 
     
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CORPORATE & M&A
Annual accounts - Shareholders meetings
     

 

Q: Have the deadlines for the approval of the (consolidated) annual accounts postponed ?

A: Yes if a company decides to postpone its annual shareholders meeting (see question below).


 

 

Q: Should the annual report (on the annual accounts for the FY2019) include any information with respect to the impact of the COVID-19 crisis?

A: Yes. The Belgian companies and associations code requires that the annual report contains information regarding important circumstances that have occurred since the closing of the financial year. If your company is impacted by the COVID-19 crisis, the annual report on the annual accounts for the FY2019 should indeed include information on this. 

 

 

Q: Given the on-going COVID-19 crisis, a physical annual general meeting of shareholders cannot be held. What are the available alternatives to hold shareholders meetings?

A: The shareholders can approve the annual accounts by means of unanimous written resolutions unless this is not allowed under the articles of association of the company.

Royal Decree n° 4 of 9 April 2020 now organises an optional regime for the convocation and the holding of shareholders meetings: during the COVID-19 crisis, the management body has the right (optional regime) to require that all shareholders express their vote :

  • only by distant voting even if the articles of association do not provide for this possibility, or alternatively,
  • by proxy with specific voting instructions, in which case the management body has the right to indicate whether the company itself or any other person is designated as proxyholder and must provide a proxy form.


Communications can take place by all means, including e-mails. Even if the convening notice of the shareholders meeting has already been sent or published, the company has nevertheless the right to apply the optional regime, but must in that case adequately communicate this.


 

 

Q: If a company opts for the optional regime (see above), can I still, as shareholder, exercise my right to ask questions ?

A: Yes. The right of shareholders to ask questions is adapted. If a company decides to apply the optional regime, the shareholders have the right to address their questions in writing and the company can require that questions be addressed at least four days before the date of the meeting.


 

 

Q: Because of the COVID-19 crisis, can we decide to postpone our annual shareholders meeting or any other already convened shareholders meeting?

A: Yes. The management body can decide to postpone the shareholders meetings. Listed companies must make such announcement on their website; non-listed companies can do so by any appropriate means. 

If a company decides to postpone its annual shareholders meeting, Royal Decree n°4 of 9 April 2020 has also extended the deadlines for the approval and filing of the (consolidated) annual accounts as fixed in the companies and associations Code with ten (10) weeks.

Already convened shareholders meetings can be postponed, but there are certain exceptions.


 

 

Q: Based on the numbers of the FY 2019, is it still possible (and under which conditions) during this COVID-19 crisis to pay out dividends to shareholders?

A: Yes, there is no general prohibition to pay out dividends to shareholders during this COVID-19 crisis. However, and especially now in light of the recent circumstances, it is important that the company meets the financial thresholds (as imposed by the Belgian companies and associations code) in order to be allowed to distribute dividends. These thresholds are as follows:

  • NV/SA: No dividends may be distributed if, as a consequence thereof, the net assets of the company would fall below the amount of the issued capital, increased with the statutory reserves;
  • BV/SRL: No dividends may be distributed if as a consequence thereof (i) the net assets will become negative or (ii) the company would no longer be able to pay its debts as they fall due over the next 12 months.

Please note that for credit institutions, the ECB has issued a recommendation on 27 March 2020 that no dividends (for the FY 2019 and 2020) shall be paid out by credit institutions to their shareholders. This recommendation lasts until at least 1 October 2020.


 

 

Q: Given the on-going COVID-19 crisis, a physical annual general meeting of shareholders cannot be held. What are the alternatives to have the annual accounts approved?

A: Unless otherwise stated in the articles of association of the company, the shareholders can approve the annual accounts by means of unanimous written resolutions. We have also been informed that the Belgian government will resolve in the upcoming days to temporarily ‘suspend’ the applicable timing delays within which the annual accounts should be approved by the general meeting.

[Update 30 March 2020] Belgian Minister of Justice Koen Geens has communicated very recently that for annual general meetings which are scheduled to take place before 19 April 2020 (this date may be modified if the time period of the measures is again prolonged), a postponement is allowed of 10 weeks. Furthermore, the board of directors may decide that the annual general meeting shall be held from distance (by electronical means), even if this is not provided in the articles of association of the company.

Please note that these measures are not yet in force at the moment, as they have been submitted for the review of the Council of State. After the approval of the Council of State, the measures will enter into force, after their publication in the Belgian Official Journal.

 
     
   Governance
     

 

Q: Given the on-going COVID-19 crisis, it is not possible to convene a physical board of directors. What are the alternatives?

A: Unless otherwise stated in the articles of association of the company, it is also possible for the directors to take resolutions by means of:

(i) a telephone- or videoconference among the directors; or
(ii) unanimous written resolutions.

Both alternatives have the same legal effect as a physical board of directors. Please note that the second alternative requires that the minutes of the resolutions are signed by all directors.

Our corporate department is standby to help find the most efficient and workable solution for your company and board.
 
Royal Decree n°4 of 9 April 2020 allows all decisions of management bodies during the COVID-19 crisis to be validly taken  either by unanimous written decision, by remote attendance via telephone conferences or video conferences, even if the articles of association do not provide for such options.

 
 

Q: Our company has a managing director (dagelijks bestuurder / administrateur délégué). What are his/her powers during this COVID-19 crisis?

A: In principle, the powers of the managing director (often also referred to as the ‘CEO’) are limited to the ‘day-to-day management’ of the company. Under the new Belgian companies and associations code, the ‘day-to-day management’ of a company is defined as “actions and decisions which do not exceed the needs of the daily life of the company, as well as actions and decisions that, either because of their minor importance or because of their urgent character, do not justify the intervention of the management body”. Consequently, all decisions and actions with an urgent character can be taken by the managing director.

One important exception should be taken into account, more specifically the situation in which the articles of association of a company would explicitly limit the powers of the managing director to certain decisions/actions or to certain monetary thresholds.

Our corporate department is standby to help you with the assessment whether or not certain decisions can be taken by the managing director.

 
 

Q: Certain strategic management decisions have to be taken but one (or more) of the directors is unavailable and our company has not appointed a managing director. Can we still take decisions?

A: In most public limited liability of companies (NV/SA), the management body is organised as a board of directors. This means that, in principle, one director alone cannot validly make management decisions, but that the board of directors, acting as a collegial body, must make these decisions. 

The board of directors can validly deliberate and decide if (i) it has been validly convened and (ii) at least half of the directors are present or represented at the meeting (unless the articles of association impose more stringent quorum requirements). In any event, at least two directors must always participate for deliberations to be valid. Therefore, if the board of directors is composed of only two directors, these two directors will necessarily have to participate in deliberations. If one of the two should be unavailable, the following options could be considered:

- if a physical board cannot be held, deliberation can take place via telephone or video conference or the board may adopt unanimous written resolutions (unless provided otherwise in the articles of association);

- an additional director can be appointed (as the case may be, temporarily) by unanimous written shareholders’ resolutions, so as to allow the board to deliberate and decide with two out of three directors;

- if a director has become definitively unavailable, the board may itself appoint a (temporary) replacement via co-optation;
In general, it is also possible for a director to grant a proxy to another director.
Management decisions that were adopted and implemented without board deliberation can subsequently be submitted to the board for ratification (and it is recommended that this be done).

Our corporate department is standby to help find the most efficient and workable solution for your company and board.
 
     
   Financial situation of the company   
     
 

Q: Are there any corporate formalities to take into account if our company is facing substantial losses due to the COVID-19 crisis?

A: Yes, if your company is facing substantial losses due to the COVID-19 crisis, it may have to comply with the “alarm bell” procedure as set out in the Belgian companies and associations code.

The criteria for the application of the alarm bell procedure are as follows:
- NV/SA: The alarm bell procedure shall be applied if the net assets of the company fall below (i) one half or (ii) one fourth of the capital.

- BV/SRL: The alarm bell procedure shall be applied if (i) there is an imminent risk that the net assets will become negative or (ii) it appears that the company will no longer be able to pay its debts as they fall due over the next 12 months.

If the alarm bell procedure applies, the management body must convene a general meeting which shall resolve upon the continuation of the activities of the company or in the alternative case, the liquidation and the dissolution of the company. The management body must prepare a report in which it proposes the measures that will be taken to preserve the continuation of the activities of the company (unless the management body would propose to cease the activities of the company).

The directors can be held liable for any losses which are suffered by third parties if the directors did not convene the general meeting of shareholders (in due time).

Our corporate department is standby to assist you with the preparation of the required documentation with respect to the alarm bell procedure.
 
     
   Listed companies   
     

 

Q: Does the COVID-19 crisis impact a listed company’s ongoing disclosure obligations?

A: No, the COVID-19 crisis does not release listed companies, subject to the Market Abuse Regulation, from disclosing inside information to the public as soon as possible. The European Securities and Markets Authority (ESMA) has moreover clarified that “issuers should disclose as soon as possible any relevant significant information concerning the impacts of COVID-19 on their fundamentals, prospects or financial situation in accordance with their transparency obligations under the Market Abuse Regulation”. We have seen several listed companies issuing profit warnings in the last few days.

This obligation also applies to companies which have already seen their stock price fallen significantly in the recent days. Such companies may believe that the “Corona effect” is fully known to the public and hence properly reflected in their stock price. Still, some companies might be much more (or much less) impacted by the COVID-19 crisis than the market can understand (for example because its key supplier has stopped delivering) and this may give rise to a disclosure obligation.
 
[Update 30 March 2020] In its press release of 26 March 2020, the Financial Services and Markets Authority (FSMA) has asked issuers “to communicate as soon as possible about any event, decision or information they have become aware of and that is likely to constitute inside information that relates to them directly. These include, for example: temporary interruption of production, the delay of important projects, and stoppage of clinical studies and suspension of dividends”.

 
 

Q: Does the COVID-19 crisis impact a listed company’s periodic disclosure obligations?

A: Yes – Royal Decree n° 4 of 9 April 2020 extends the deadlines of the following periodic reporting obligations with ten (10) weeks:

  • The obligation of an issuer to make its annual report available at the latest 4 months after the end of the accounting year.
  • The obligation of an issuer to make its H1 report available at the latest 3 months (for those listed on a regulated market) or 4 months (for those listed on an MTF) after the end of the first six months period of the accounting year.

 
 

Q: I am holding a managerial position in company whose shares are listed on the Brussels Stock Market. Because of the COVID-19 virus, the stock market price of the company is subject to very strong fluctuations. Are the rules on the reporting of share purchases or share disposals by persons holding managerial responsibilities and persons closely associated with them now relaxed ?

A: No, they are not. The Market Abuse Regulation and its Belgian implementing regulations continue to apply. As a consequence, persons holding managerial responsibilities (leidinggevenden/dirigeants) at issuers and persons closely associated with them (Managers) must still report to the relevant issuer and to the Belgian regulator FSMA each transaction pertaining to the issuer’s securities. The obligation to report applies as soon as the total amount of the transactions within a calendar year reaches the threshold of EUR 5,000 and applies to every subsequent transaction (but companies may have included a lower threshold in their dealing code).

In addition, Managers should in any event continue to respect the restrictions imposed during closed periods and, in general, refrain from trading in the issuer’s securities when in the possession of inside information. Managers should carefully follow the instructions given by the issuer’s dealing code and the dealing code officer at all times.
 
     
   Various practical questions
     
 

Q: If a company intends to take a decision that requires the involvement of a Notary (such as, a modification of the articles of association; capital increase etc.), are Notaries available for the execution of notarial deeds?

A: Notaries are still available, but we understand that they are only allowed to execute notarial deeds in extremely urgent situations or in situations where the company justifies that, without the execution of the deed, the company would suffer serious financial implications (for example in case of a capital increase, corporate reorganisations, contributions etc.).
 
     
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   COMMERCIAL CONTRACTS AND FORCE MAJEURE
     
  Contract clauses such as force majeure, hardship, or risk clauses are relevant to determine the impact of the COVID-19 pandemic on your contractual relationship, and need to be assessed as a priority. The Q&A’s hereafter apply in the absence of a force majeure or other risk clause in your contract, or as a general guideline, in case of doubt on the scope of these clauses.  
     
 

Q: Can force majeure be relied on to renege on my contractual obligations and liability further to Covid-19?

A: In light of the exceptional nature of the pandemic and of the governmental measures that are being taken, it is expected that you will often be able to rely on force majeure if you acted in a reasonable and cautious way since the outbreak of the crisis and if the performance of your obligation is reasonably or humanly impossible. Each case will need to be assessed on the basis of its own merits.

If you are a debtor of financial obligations, you will in all likelihood not be able to rely on force majeure, but the theory of abuse of rights (see further) may provide a safety net. In addition, you will be entitled to suspend payment if the reciprocal obligation of the other party is not performed.


 
 

Q: What are the consequences on my contract in case of force majeure?

A: If the impossibility to perform is temporary, your contract will not be terminated, but the prevented obligation is suspended until its performance becomes possible again. In the meantime the reciprocal obligations of the other party are suspended as well. 

If the impossibility to perform is permanent (or if its delayed performance will be useless) the reciprocal contract is automatically terminated and you and the your contractual party are definitively relieved from your obligations.

In any case none of the parties will be liable for any damages to the other party, unless the agreement provides for some kind of allocation of the financial consequences of force majeure.

 
 

Q: Can hardship be invoked to alter my contractual obligations further to Covid-19?

A: Hardship refers to similar circumstances as force majeure but without the strict condition of impossible performance. There is hardship when an unforeseeable and inevitable event substantially affects the contractual balance between the parties. Under current general Belgian contract law, hardship does not alter the contractual obligations and does not entitle you or your contract party to claim partial or total relief, renegotiation or termination of the contract, unless this is expressly agreed in a hardship clause.

If your contract contains a hardship or material adverse change (MAC) clause, it is likely to be triggered by the COVID-19 pandemic. You should refer to that clause if applicable, and check the conditions, required notifications (including time-limits) and consequences.

 
 

Q: What about an abuse of rights defence in connection with Covid-19 ?

A: In some circumstances where strictly speaking a contract party cannot invoke force majeure, a court could consider that, given the exceptional and unforeseen circumstances of the COVID-19 pandemic and the mutual interests of the parties, the party that is refusing any adjustment to the contract, claiming forced unaltered performance of the contract instead of tempering its claim, is not acting in good faith. That claim may then be rejected or reduced by the courts on the basis of abuse of rights. Although the theory of abuse of rights is applied with caution and only in cases of obvious abuse, one can expect that courts (whose own functioning is affected by the pandemic) will be more flexible than usually, both on force majeure and on abuse of rights.

 

 

Q: What about financial obligations in the context of the COVID-19 crisis? Will my financial obligations be suspended ?

A: In theory, you cannot suspend a financial obligation unless the reciprocal obligation is not performed. However financial debtors may be able to rely on abuse of rights in the framework of the covid-19 crisis, and courts can grant payment terms to the “honest but unfortunate” debtor. It is expected that the COVID-19 outbreak will justify such payment terms on a case by case basis, taking into account the respective financial situation of creditor and debtor. Parties can of course also mutually agree on changed payment terms given the circumstances. The Belgian government has now made an exception to this general position and has introduced a temporary moratorium for enterprises in order to mitigate the systemic economic consequences of the Covid-19 crisis. For the duration of the moratorium, creditors will not be able to terminate pending agreements due to payment default and to execute certain enforcement (proceedings) and security rights against a debtor.

 
 

Q: Can my contract party insist on the performance of an agreement even if it has become temporarily useless because of the COVID-19 pandemic?

A: Yes, strictly speaking you cannot rely on force majeure to excuse the non-performance of obligations that are not technically impossible but have only become useless. However it can be expected that a flexible approach of the condition of “humanly or reasonably impossible” or the theory of abuse of rights can still be invoked, not necessarily fully relieving you of your obligations, but at least entitling you to postpone or spread some of your obligations in the future.
 
 

Q: Should I notify to my contract party in case of force majeure and hardship?

A: Commercial contracts generally contain a force majeure clause, specifying the conditions for force majeure (often with examples) and possibly imposing an obligation to notify the event of force majeure to the other party within a certain time limit. If this is not the case, you should inform the other contract party as soon as you are aware of the temporary or permanent impossibility to perform.
 
     
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   INSOLVENCY, RESTRUCTURING AND REORGANISATIONS
     

 

Q: How should my business approach pending (financing) agreements?

A: It will be important to analyse the terms of your financing agreements, with a focus on force majeure, hardship or ‘material adverse change’-clauses. You may want to invoke said clauses to argue that the COVID-19 outbreak constitutes an event that justifies (temporary) non-performance of contractual obligations in order to divert some of the (economic) impacts involved. Note, however, that force majeure or ‘hardship’ – to the extent these concepts are included in your financing agreements - are rarely accepted as grounds for frustration of payment obligations under financing agreements. See also our FAQs under Commercial Contracts and Force Majeure and under Banking & Finance.

 
 

Q: How will the COVID-19 pandemic impact on business continuity and which steps should my business and its directors take in the event of liquidity shortages or default events?

A: In order to safeguard business continuity, a debtor may consider filing for judicial reorganisation proceedings (JRP) to obtain a general stay on creditor enforcement actions. During JRP proceedings, the Board remains in charge of business activities and operations (‘debtor-in-possession’) and will have to work out a restructuring plan.
 
     
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   TAX & SOCIAL SECURITY
     

 

Q: Can my business benefit from an increase of the advance payment percentage as a result of Covid-19?

A: For companies and self-employed individuals facing liquidity problems as a result of the Covid-19 crisis, the government has decided to increase the bonuses when making tax prepayments on income tax in the third and fourth quarter of 2020 (respective due dates: 10 October 2020 and 20 December 2020). As a result of this measure, making tax prepayments during the third or fourth quarter will be less disadvantageous. 

Since this measure is aimed at companies with liquidity problems, it does not apply to companies that (i) repurchase their own shares or reduce their capital, or (ii) pay or attribute dividends between 12 March 2020 and 31 December 2020.

Similarly this measure does not apply to individuals who by its application receive more bonuses than they would otherwise have received.

The percentages of the tax increases (when tax prepayments are not made), as well as the due dates for making tax prepayments remain unchanged.


 

 

Q: Can my business benefit from an accelerated VAT credit refund?

A: All monthly VAT payers – including those who do not have a license for monthly VAT reimbursements and are not considered as starters – will receive an accelerated reimbursement of their VAT credit on their current-account (as from 31 March 2020), under the following conditions: (i) for all VAT-taxpayers filing monthly VAT returns, who wish to receive an accelerated reimbursement, the filing period for the VAT return of February 2020 is now set to 3 April 2020, (ii) the VAT return must be filed via Intervat, and (iii) the reimbursement will only take place if the box “request for reimbursement” is checked.

Up to 3 April 2020 the VAT payer may file a corrected VAT return via Intervat in order to change this option. The other basic conditions for reimbursement continue to apply.

Instead of a reimbursement on 29 May 2020, or even at the latest on 30 June 2020, the reimbursement will take place on 30 April 2020 at the latest. The amount to be received may however still be the object of a retention or a use for any other outstanding debt and of a “verification VAT-credit”. Please note that this filing date does not preclude the possibility to file the other VAT returns of February 2020 (that do not have a credit position or for which no VAT refund is claimed) timely by 6 April 2020.


 

 

Q: Can the COVID-19 crisis be considered as a special circumstance justifying the exemption of value decreases on commercial receivables?

A: Yes, since the COVID-19 crisis will undoubtedly put the treasury and the solvency of undertakings in difficulties, the tax authorities will apply a more flexible interpretation of the exemption conditions for value decreases on commercial receivables. 

The tax authorities have confirmed in their new administrative circular 2020/C/45 of 23 March 2020 that the COVID-19 crisis is a special circumstance that justifies the exemption of value decreases on commercial receivables held vis-à-vis undertakings that have a delay in payment of receivables that result directly or indirectly from measures taken by the Federal Government. Upon applying for the exemption of the value decreases on commercial receivables, the undertakings must identify the debtor in the special form 204.3 and indicate that the solvency of the debtor is jeopardized. The tax authorities will evaluate these receivables on a case by case basis, but have indicated that they will apply flexibility in appreciating the recovery difficulties vis-à-vis the debtors whose turnover was significantly impacted by the lock down measures as imposed by the Federal Government.


 

 

Q: Can my business benefit from a tax advantage for donations of medical goods or devices in the context of COVID-19?

A: Yes, the Government has provided for some temporary measures (administrative circular 2020/C/46) that apply to donations made between 1 March 2020 and 30 June 2020 that relate to goods used in the medical sector. These measures include a specific VAT regime, measures with respect to corporate income tax and non-resident tax for companies and measures with respect to personal income tax and non-resident tax for individuals.


 
 

Q: Can my business rely on special tax measures as a result of Covid-19?

A: All enterprises (individuals and legal entities), irrespective of their sector of activities, with a valid registration in the Central Enterprise Register (KBO/BCE) that encounter hindrance as a result of the COVID-19 virus can rely on tax support measures from the Federal Belgian tax authorities.

These tax support measures relate to payroll tax, VAT, personal income tax, corporate income tax and legal entity tax, and consist in either a payment plan, an exemption from late payment interests and/or a waiver of fines for non-payment.
In order to benefit from the late payment plan, enterprises must file a request by 30 June 2020 at the latest via a specific form (see: https://finances.belgium.be/fr/entreprises/mesures-de-soutien-dans-le-cadre-du-coronavirus-covid-19). In this request, enterprises must indicate the financial difficulties that they suffer as a result of the spreading of the COVID-19 virus.

The enterprise must file one request per (tax) debt. Tax support measures will not be granted if the enterprise has structural payment difficulties, and this irrespective of the COVID-19 crisis.

Any tax support measure granted by the tax authorities, will be annulled if the enterprise does not respect the late payment plan (unless the debtor timely informs the tax authorities) or if a collective insolvency arises (bankruptcy, judicial reorganisation, ...).

 
 

Q: Can my business rely on a deferral of the filing deadlines of tax returns as a result of Covid-19?

A: Insofar that the ultimate filing date of the tax returns was initially foreseen between 16 March 2020 and 30 April 2020, a deferral of the filing deadline of the tax returns is automatically granted until 30 April 2020 (midnight) for filing the tax returns in relation to the corporate income tax, legal entities tax and non-resident company tax.

Furthermore, taxpayers benefit from an extension of the deadline for submitting their periodic VAT returns and intracommunity listings. The deadlines for submitting VAT returns and intracommunity listings are extended as follows : for February 2020, extended to 6 April 2020; for March 2020, extended to 7 May 2020; for the first quarter of 2020, extended to 7 May 2020.
The filing date for the yearly client listings is deferred until 30 April 2020.

If the activity was ceased, then the filing should be made at the latest on the end of the 4th month following the discontinuation of the activities.

 
 

Q: Can my business benefit from a payment deferral for my taxes as a result of Covid-19?

A: For the payment of personal income tax, corporate income tax, non-resident income tax and legal entity tax, there will be an additional period of two months that will automatically be added to the ordinary payment term, without late payment interests being due. This measure applies to the payment of taxes with respect to tax assessment year 2019 that are assessed as from 12 March 2020 onwards.
 

For the payment of tax debts with respect to the personal income tax or corporate income tax for which the tax assessment took place prior to 12 March 2020, the initial federal support measures do apply (i.e. a payment deferral plan, an exemption from late payment interests and/or a waiver of fines for non-payment may be requested).

For the tax assessment forms that were sent until 27 March 2020, the tax authorities could not modify the due date on the tax assessment forms. These forms do therefore mention the ordinary payment date of 2 months (as opposed to the current 4 months). Irrespective the fact that the additional payment term of 2 months is not mentioned on these tax assessment forms, the payment delay of 4 months does also apply to these tax assessment forms.

An automatic deferral of two months is granted for the payment of VAT and payroll tax, without any fines or late payment interests being due.

- The payment dates for VAT are as follows: monthly VAT return for February 2020, deferral until 20 May 2020; monthly VAT return for March 2020, deferral until 20 June 2020; quarterly VAT return for 1st quarter 2020, deferral until 20 June 2020.

- The payments dates for payroll tax are as follows: monthly return for February 2020, deferral until 13 May 2020; monthly return for March 2020, deferral until 15 June 2020; quarterly return for 1st quarter 2020, deferral until 15 June 2020.


 
 

Q: Can my business benefit from a tax free cost compensation for homework?

A: The Belgian ruling commission provides a possibility for undertakings to grant a tax free compensation of maximum EUR 126.94 per month to each of its staff members that is working from home, irrespective of the function of the respective staff member. This compensation qualifies as a reimbursement of a own cost of the employer (that is paid for the costs related to home work). In order to benefit from this measure the employer can file a request with the ruling commission. The ruling commission has made a draft template available on its website : https://www.ruling.be/nl/nieuws/aanvraag-thuiswerk-covid-19.

Please note that the social security authorities have also issued instructions in this respect. Please see: https://www.rsz.fgov.be/nl/werkgevers-en-de-rsz/coronavirus-maatregelen-voor-werkgevers/vergoeding-voor-thuiswerk

 
 

Q: Does the COVID-19 crisis impact my tax situation if I am a cross border worker ?

A: Certain tax residents that would normally work in a cross-border context (living in France and working in Belgium or living in Belgium and working in Luxembourg or vice versa) are now incentivised or obliged to work from home. Since their physical presence in the home state has an impact on the power of taxation that is to be allocated to either the work state or the home state (on the basis of the applicable double tax treaty and relevant administrative circulars), certain measures have been put in place as a result of the COVID-19 crisis.

With respect to France, a worker who resides in France and who physically works in Belgium in a frontier zone could normally work for a period of 30 days outside the frontier zone. The Belgian and French tax authorities have decided that this crisis qualifies as force majeure within the meaning of Art. 7, b of the additional protocol to the Belgian-French double tax treaty, and that the homeworking days will be ignored for calculating the number of days present in the other state than the work state. This measure applies as from 14 March 2020 onwards until further notice.

A similar agreement was reached between the Belgian and the Luxembourgish tax authorities. The Belgian-Luxembourg agreement allows that a worker that lives in one state and works in the other state may not be physically present in the work state for a period not exceeding 24 days. Also for the Belgian-Luxembourg amicable agreement, the respective tax authorities have decided that the current COVID-19 crisis is a force majeure situation whereby the homeworking days will be ignored as from 14 March 2020 onwards for calculating the period of 24 days.

 

 

Q: Can my business rely on regional tax measures as a result of COVID-19 ?

A: Enterprises can also rely on a series of regional tax measures:

- In the Flemish Region: (i) an automatic deferral of real estate withholding tax for enterprises with legal personality, (ii) an automatic deferral for the payment of road taxes for enterprises with legal personality, (iii) an extension of the period to comply with the tax obligations with respect to inheritance tax and registration tax, and (iv) a flexible grant of payment deferral plans upon request. Enterprises without legal entity may apply for flexible payment deferral plans;

- In the Walloon Region: (i) suspension of the payment date for taxes, that will be deferred until the end of the COVID-19 crisis, (ii) the freezing of the deadlines for introducing tax complaints (administrative appeals or judicial appeals), (iii) a softening of the tax recoveries that are in progress or that were about to be started and a facilitation of payment deferral plans, (iv) an abolishment of physical audits and control by correspondence, and (v) a moderation of administrative fines related to the mileage tax, (vi) an extension of the initial period of two years during which a property must be resold in order to benefit from the refund of 3/5 of the registration duties paid on acquisition of the property, (vii) an exceptional reduction of the registration duties to 0% with respect to mortgage mandates, and (viii) a reduction of the tax on automatic entertainment devices for undertakings with 1/12th per month or part of the month during which the establishment is mandatorily  closed.

- In the Brussels Region: (i) a suspension of the payment of the tax on tourist accommodations for the first semester of 2020, and (ii) a two-month extension of the deadlines for the payment of the withholding tax on real estate for the 2020 tax year.
 
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   REGULATORY - ENVIRONMENT
   Permits & spatial planning – Flanders
     

 

Q: I have a pending building permit request or want to apply for a new building permit. What happens next?

A: Decision periods for building requests pending in the period between March 24 2020 and April 24 2020, were extended as follows:

  • Ongoing public investigations (“openbare onderzoeken”) were suspended on March 24 and continued after April 24, 2020. Objections submitted during that period are admissible
  • The decision period (ordinary procedure) was extended by 60 days
  • The decision period for the simplified procedure was extended by 30 days
  • The decision period in an administrative appeal was extended by 60 days
  • The decision within which an administrative appeal can be submitted was extended by 30 days



 

 

Q: Can my building permit hearing (“hoorzittingen”) still take place?

A: Physical hearings can take place. However, the competent authority can decide to organize an electronic hearing


 

 

Q: What about the advice issued by the advisory body  in the context of a permit procedure pending between March 24 2020 and April 24 2020?

A: Advisory periods were not extended. However, the failure by the advisory body to provide advice or an advice issued late was not automatically detrimental. A late advice could thus still be taken into account by the competent authority and the advisory body did not lose its ability to submit an appeal in case of a late advice or no advice.


 

 

Q: I want to build temporary health infrastructure in the context of the Covid-19 crisis? Do I need a building permit?

A: The Decree of 20 March 2020 imposes a temporary derogation from the permit obligation and notification for, amongst others, the construction and exploitation of additional and temporary hospital infrastructure and other care facilities, additional production facilities for medicines and medical equipment and research institutions related to the outbreak of the Covid-19 virus.

 
     
   Permits & spatial planning – Wallonia
     

 

The Walloon Government adopted a general 43 days’ suspension of deadlines between 18 March and 30 April 2020 further to the Covid-19 crisis. This suspension period has now expired.   
     

 

Q: I have a pending building permit request or want to apply for a new building permit. What happens next?

A: Decision periods for pending and new building requests have been extended as follows:

  • Ongoing public investigations (“enquêtes publiques”) were suspended for 43 days between 18 March and 30 April 2020.
  • New public investigations were not allowed to take place between 18 March and 30 April 2020.
  • Public investigations have now (re)started after 1 May 2020.
  • For all permit requests filed before 30 April 2020, the decision period was extended by 43 days. This 43 days extension is not applicable for permit requests filed after 30 April.

 

 

Q: I have a building permit. When can I execute it?

A: Your building permit can be executed after 30 days.


 

 

 

Q: What are the main consequences of the Covid-19 crisis for filing and handling appeals against permits ?

A: Deadlines (between 17 March and 30 April 2020) for submitting appeals and starting periods were extended by 43 days. This also applied to expiry periods. New appeals against building permits are not affected by this suspension period, which expired on 30 April 2020.


 

 

Q: Can my building permit hearing (“audition”) still take place?

A: Hearings may now happen through videoconferences.


 

 

Q: What about advices given by public authorities in the context of pending building permit procedures?

A: Advisory periods (between 17 March and 30 April 2020) were extended by 43 days. However, it did not preclude the authorities from issuing their opinion on a voluntary basis, regardless of the extension period. New advice requests (after 30 April 2020) to public authorities are no longer delayed by these measures (as the suspension period has expired since 30 April 2020).


 

 

Q: I want to build temporary health infrastructure in the context of the Covid-19 crisis? Do I need a building permit?

A: Yes, no exception related to the Covid-19 crisis has been adopted in this regard.

 
     
   Permits & spatial planning – Brussels
     

 

The Brussels’ Government has adopted a general suspension of deadlines between 16 March and 15 May 2020.

 
     

 

Q: I have a pending building permit request or want to apply for a new building permit. What happens next?

A: Decision periods for pending and new building requests have been extended as follows:

  • Ongoing public investigations (“enquêtes publiques”) are suspended for 60 days, between 16 March and 15 May 2020.
  • Public investigations will (re)start after 15 May 2020.
  • The decision period is extended by 60 days.

 

 

Q: I have a building permit. When can I execute it?

A: If the building permit has been issued in the period between 16 March and 15 May 2020, it may not (yet) be executed before the end of this period. Depending on the authority who has issued the permit (municipality or Brussels Region), the permit may be executed as from 26 May 2020 (municipality) or 15 June 2020 (Brussels region).


 

 

Q: What are the main consequences of the Covid-19 crisis for filing and handling appeals against permits ?

A: Deadlines (between 16 March and 15 May 2020) for submitting appeals and starting periods have been extended by 60 days. This also applies to expiry periods


 

 

Q: Can my building permit hearing (“audition”) still take place?

A: No, a new hearing will be organised after 15 May 2020.


 

 

Q: What about advices given by public authorities in the context of pending building permit procedures?

A: Advisory periods have also been extended by 60 days. However, it does not preclude the authorities from issuing their opinion on a voluntary basis, regardless of the extension period.


 

 

Q: I want to build temporary health infrastructure in the context of the Covid-19 crisis? Do I need a building permit?

A: Yes, no exception related to the Covid-19 crisis has been adopted in this regard.


 
     
   Public contracts
     

 

Q: What happens, if as a contractor, it becomes impossible or irresponsible for me to continue executing a public procurement contract?

A: Both the awarding authority and the contractor have the option to invoke the concept of unforeseen circumstances in order to have the terms of execution of the assignment adjusted. Note that even in the current Covid-19 crisis, the usual formal notification requirements continue to apply. The contractor will therefore need to report the unforeseen circumstances that result in execution difficulties in writing and within a period of thirty days following the unforeseen circumstances to the awarding authority.


 

 

Q: Can an awarding authority suspend the execution of my public procurement contract?

A: The awarding authority can indeed unilaterally decide to suspend the execution of a public procurement contract. This will often be the most sensible decision, in particular regarding contracts that are neither urgent nor essential.


 

 

Q: Can I, as a contractor, claim compensation due to a suspension of a public procurement contract by an awarding authority in the context of the Covid-19 crisis?

A: Not necessarily. The right to compensation on the grounds of article 38/12 of the Royal Decree of 14 January 2013 does not necessarily apply here as a suspension due to the Covid-19 crisis is beyond the control of the awarding authority. It is therefore advisable to clarify this in advance with the awarding authority.


 

 

Q: Can a public procurement contract be modified in order to adapt it to the current Covid-19 circumstances?

A: Yes, as long as the modifications made to the contract are non-essential. The Royal Decree of 14 January 2013 contains the criteria for determining whether or not a modification is essential.


 

 

Q: As contractor unable to perform with the time delays due to COVID-19, will I be fined for delays in execution of a public procurement contract?

A: It seems inevitable that some public procurement contracts will be delayed in the current Covid-19 crisis. At federal level, the general policy is not to insist on penalties for delays in execution provided that the contractor can demonstrate that the delay is a direct result of the Covid-19 crisis. However, this policy does not bind regional authorities. It is, in any event, advisable for the contractor to consult the awarding authority and agree on a modification of the execution deadlines.


 

 

Q: As awarding authority, should I postpone the date for tender submissions?

A: In many cases it will be in everyone's interest to postpone the deadline for submission of tenders until there is more clarity about the situation post-Covid-19. On the other hand, it is important to avoid creating bottlenecks once the worst of the crisis is over. An assessment of priority tenders is therefore a necessary first step.


 

 

Q: What happens with urgent tenders that relate to the current Covid-19 crisis?

A: If there is a need to tender for new (urgent) public procurement contracts relating to the current Covid-19 crisis, there is scope to do so by following the negotiated procedure without publication of the public procurement contract. However, it is important that this be assessed in light of the specific circumstances of each case and each public procurement contract.

 
     
   Other Regulatory questions
     

Q: How can my business assess whether it is an essential or a non-essential enterprise?

A: The federal government has listed all essential enterprises in the Ministerial Decree of 18 March 2020. Please note that this list was updated afterwards, and will likely receive other updates in the future. You can check the list yourself (consult the 23 March 2020 version here), or contact us in order to determine which rules apply to your enterprise.

 
 

Q: My business is a non-essential enterprise. Should we close our operations?

A: Not necessarily. Generally speaking, all establishments in the hospitality sector, as well as non-essential stores, must be closed. However, that does not mean that they cannot carry out back-office operations.

Further, all non-essential enterprises are recommended to organise teleworking where possible. Employees with jobs that cannot be carried out from home, can come to work provided that the “social distancing rule” (i.e. maintaining 1.5 metres distance from all other people) can be respected. With regards to jobs that do not allow teleworking or social distancing, a non-essential enterprise has two options: (i) it can either transfer these employees into temporary unemployment but continue operations with the other employees, or (ii) it is obliged to shut down altogether.

 
 

Q: Can my employees still undertake business trips by car or public transport?

A: It depends but most likely not. The rule is that using public roads is forbidden – regardless of whether your enterprise is an essential one, or not. Only if a business trip is absolutely essential for the further functioning of your enterprise, can an employee undertake such a trip. And if so, the employee must still comply with the social distancing rules, if you are a non-essential enterprise.
 
     
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   CONSUMER LAW AND TRADE PRACTICES
     

 

Q: Does the restriction on discounts still apply?

A: No. In accordance with the Belgian Ministerial Decree of 30 April 2020, the restriction on discounts has now been lifted. Stores can now organise discounts and promotions, keeping in mind the rules regarding fair market practices (e.g. for clothing, leather and shoes: no advertising on promotional actions is allowed one month prior to seasonal sales period, i.e. this year during July).


 

 

Q: What about sales?

A: The Act on the postponement of sales was published on 29 May 2020. This year, summer sales will begin on 1 August 2020 instead of 1 July 2020.


 

 

Q: Can I, as a traveller get a refund if my package holiday is cancelled ?

A: The Belgian Ministerial Decrees of 19 March 2020 and 3 April 2020 that stipulated that in case of cancellation of a package holiday by the tour operator or by the traveller, the tour operator was allowed to offer travellers a voucher, are no longer in force since 19 June 2020.

Therefore, since 20 June 2020 there is no longer any obligation for the traveller to accept such vouchers instead of a refund.

Furthermore, the European Commission has issued some guidelines on 13 May 2020 regarding vouchers offered to passengers and travellers as an alternative to reimbursement for cancelled package travel and transport services in the context of the COVID-19.


 

 

Q: Does the covid-19 crisis impact the rules governing the legal guarantee on consumer goods?

A: No. As a general rule, every consumer has a right to a legal guarantee of 2 years when buying a consumer good (article 1649quater Belgian Civil Code). 

Further to the central website on COVID-19 https://www.info-coronavirus.be, the measures taken in light of the COVID-19 pandemic do not affect the general rules relating to this legal guarantee. The consumer is still owed the guarantee and must still notify the seller of the defect (mail, e-mail, etc.) as soon as possible.

If the seller has not received the notification about a defect from the consumer because of a closure due to the COVID-19 pandemic, he will not be able to invoke the fact that the legal term has expired and refuse to take any action. From the moment of notification, the warranty period will in principle be stayed until the seller offers a solution (repair or replacement).


 

 

Q: What kind of compensation does my business need to offer the public in the event of cancellation of an activity of cultural, social and civic importance, festive, folkloric, sporting and recreational nature?

A: The Ministerial Decrees of 19 March 2020 and 7 April 2020 entitle the organiser of a cultural, social, festive, folkloric, sporting or recreational event to grant,  in case of cancellation due to the COVID-19 pandemic, the holder of a paid admission ticket a voucher worth the amount paid instead of a refund.   The condition however is that an activity with the same essential characteristics than the cancelled activity is reorganised within two years after the date of the initial event, and that the replacement event will take place at the same location or a location nearby. If either of these two conditions is not met, the holder of the admission ticket or voucher has a right to reimbursement of the price of the original ticket. The holder of the admission ticket is also entitled to a refund if (s)he proves that (s)he is unable to attend the activity on the new date.


 

 

Q: Can my business continue to sell hydro alcoholic gel or protective masks ?

A: Yes. Surgical masks, handgel and hydroalcoholic gel may be sold to individuals.

The restrictions on the retail sale of protective equipment (including FFP2 and FFP3 masks) has ended on 23 June 2020.


 

 

Q: Does my business have to adapt its advertising practices in the context of COVID-19?

A: On April 3 2020, the Advertising Council made several recommendations relating to advertising practices in the context of Covid-19 which advertisers should take into account, such as ensuring that these campaigns do not feature any behaviour that undermines the measures taken by the public authorities; under no circumstances exploit the public’s feelings of fear ; not to make any explicit or implicit claims about the particular efficiency of a product to prevent or treat coronavirus, etc....


 

 

Q: How can a document validly be signed electronically in the context of the covid-19 crisis?

A: Under certain conditions, an electronic signature will be accepted as a valid proof of consent, including consent to a contract. 

However, not all technical means that exist to “sign” in the internet environment will be admissible and provide sufficient legal certainty. Placing a copy of a handwritten signature on the bottom of a digital document, for example, is not as such equivalent to an advanced electronic signature, let alone a qualified electronic signature that deserves full equivalence to a handwritten signature. The qualified electronic signature, which gives the recipient the possibility to check the identity of the signor in a certificate issued by a trusted third party, and gives the insurance that the content of the document has not been modified after signing, should in any event be privileged whenever the stakes are high.


 

 

Q: Am I obliged to close all my shops and businesses

A: In accordance with the Belgian Ministerial Decree of 30 June 2020, the following undertakings must remain closed:

  • Jacuzzi, steam cabins and hammams;
  • Discos and nightclubs.

 

 

Q: As a traveller, am I entitled to any compensation if my flight is cancelled due to COVID-19?

A: In most circumstances not. The European Commission recently released Interpretative Guidelines on the EU passenger rights regulations in the context of the developing situation with COVID-19. The Commission waives the right to compensation on condition that the cancellation in question is caused by extraordinary circumstances, which could not have been avoided even if all reasonable measures had been taken.

This condition should be considered fulfilled, where public authorities either outright prohibit certain flights or ban the movement of persons in a manner that excludes, de facto, the flight in question to be operated.

This condition may also be fulfilled, where the flight cancellation occurs in circumstances where the corresponding movement of persons is not entirely prohibited, but limited to persons benefitting from derogations (for example nationals or residents of the state concerned).
 
Furthermore, the European Commission has issued some guidelines and recommendations in the context of the Covid-19 crisis regarding in particular the lifting of travel restrictions, the gradual re-establishment of transport, the issuing of vouchers as an alternative to cash reimbursement for consumers, as well as criteria for restoring tourism activities safely and gradually.
 
     
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   DATA PROTECTION
     
 

Q: As an employer, can I perform systematic body temperature checks of workers and/or visitors?

A: Yes, mere temperature measurements are not considered as processing of personal data. If these measurements are not combined with the recording or processing of personal data, they do not fall within the scope of the GDPR.

 
 

Q: Can I oblige my employees to complete a medical questionnaire or a questionnaire relating to recent trips?

A: No. Recent trips, as well as any symptoms shall only be reported on a voluntary basis.

 
 

Q: As an employer, can I reveal the names of infected persons/workers to prevent the spread of the virus?

A: No, this is not allowed pursuant to the principles of confidentiality and proportionality of the GDPR. As an exception to the above, and under certain circumstances, you may communicate the names of the infected person to the doctor in charge or to the competent authorities.

 
 

Q: Can I prohibit my employees from participating in meetings or gatherings with family or friends during their free time, or from travelling abroad?

A: As a general rule, no. The Belgian Data Protection Authority points out that you may not take any measures that exceed the scope of labour law or the instructions of the competent authorities.
 
     
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   REAL ESTATE
     

 

Q: Can my business be exempted from its financial obligations under a retail lease if my leased retail premises have to close to the public by order of the government (such as the current lock down measures) ?

A: There are indeed serious grounds for retail tenants to validly claim an exemption from their financial obligations resulting from retail lease agreements, for the duration of the imposed closing by governmental measures.

The payment of rent is the contractual counterpart of the landlord’s principal obligation to provide the tenant with the peaceful enjoyment of the leased premises in accordance with the destination provided for in the lease agreement. One may argue that the lock-down measures prevent the landlord from providing such peaceful enjoyment, and that the tenant is consequently exempted from its corresponding (financial) obligations under the lease for the period during which closing is imposed by authorities.

However, it is important to note this will require a case by case assessment, as contractual derogations may apply.


 

 

Q: Is my business exempted from its financial obligations under a long term lease (emphytéose/erfpacht) if the leased retail premises have to close to the public by order of the government (such as the current lock down measures) ?

A: No. The Act of 10 January 1824 on long term leases provides that the long term lessee has no right to any fee reduction in case of a complete or partial loss of use. The parties can, however, contractually derogate from this principle. This will have to be assessed on a case by case basis.


 

 

Q: Can my business invoke the covid-19 pandemic to be exempted from its financial obligations under its office lease ?

A: As the government has not ordered offices to close, there is no reason to exempt tenants from their corresponding (financial) obligations under the lease.


 

 

Q: Can my business invoke the covid-19 pandemic to be exempted from its financial obligations under a (financial) leasing agreement ?

A: This is unlikely, taking into account the nature of the leasing agreement as a financial instrument. The defining performance of leasing agreements is the landlord’s obligation to finance the acquisition or construction of a building and not to ensure the tenant’s peaceful enjoyment of the premises during the term of the contract. However, this will have to be assessed on a case by case basis, as contractual derogations are possible.


 

 

Q: Can my business terminate its lease agreement given that the leased premises cannot be opened to the public due to the lock down measures imposed by the government ?

A: No. A contract party is released from its obligations resulting from a synallagmatic (reciprocal) contract, such as a lease, if – and to the extent that – the other party is unable to perform its obligations under the contract due to an event of force majeure. Such release of contractual obligations is, however, only temporary if the event of force majeure is temporary, as is the case here with the currently applicable governmental lock down measures. In addition, termination of a lease requires court intervention.


 
     
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   BANKING & FINANCE
     

 

Q: My business is located in the Brussels Region. Can it rely on economic relief measures enacted by the Brussels Region in response to the COVID-19 crisis?

A: Yes, the Brussels Region has announced several measures to address the COVID-19 outbreak and its economic impact on companies and businesses located in the Brussels Region.

It will make available to companies, via the Brussels Guarantee Fund (Fonds bruxellois de Garantie/Brussels Waarborgsfonds), public guarantees on bank loans (up to a certain amount).

It has also announced that capital repayments of loans granted by its investment vehicle Finance&invest.brussels (formerly the Société Régionale d’Investissement de Bruxelles/Gewestelijke Investeringsmaatschappij voor Brussel) to companies in affected sectors could be deferred.

Other measures have been announced, such as (i) a one-off compensation mainly aimed for self-employed persons and small enterprises), (ii) measures in relation to subsidies and (iii) tax relief measures.

These announced measures are in the process of being, or will be, implemented by the Brussels government.


 

 

Q: My business is located in the Walloon Region. Can it rely on economic relief measures enacted by the Walloon Region in response to the COVID-19 crisis?

A: Yes, the Walloon Region has announced several measures to address the COVID-19 outbreak and its economic impact on companies and businesses located in the Walloon Region.

Companies to which a loan has been granted by a Walloon investment vehicle (i.e. SRIW (Société Régionale d’Investissement de Wallonie), SOWALFIN or Groupe Sogepa) may benefit from an extension of capital repayment. In addition, the measures taken by these entities include (i) the granting of additional public guarantees on existing credit lines and new short term facilities and/or (ii) the making available of loans with a fixed interest rate and a grace period for capital reimbursement, amongst others.

Other measures have been announced, such as (i) a one-off compensation mainly aimed at self-employed persons and small enterprises, (ii) measures in relation to subsidies and (iii) tax relief measures.

These announced measures are in the process of being, or will be, implemented by the Walloon government.


 

 

Q: My business is located in the Flemish Region. Can it rely on economic relief measures enacted by the Flemish Region in response to the COVID-19 crisis?

A: Yes, the Flemish Region has announced several measures to address the COVID-19 outbreak and its economic impact on companies and businesses located in the Flemish Region.

It will make available to companies, via PMV (the Flemish investment fund), an extra €100 million under its public guarantee scheme. Further, it has extended the guarantee scheme until the end of this year to finance debts of up to 12 months. As a result, in this crisis period, companies can also have a bridge loan guaranteed by PMV for existing non-bank debts of up to 12 months, whereas for the existing guarantee scheme this is only possible for up to 3 months. In addition, the cost of the guarantee for the company goes down by half to 0.25%.

As far as public guarantees of over €1,5 million under the Gigarant-scheme are concerned, PMV will take the situation of 31/12/2019 as a reference for the determination of the guarantees and the premium to be paid. Gigarant’s total guarantee capacity has also been doubled to €3 billion.

In addition, PMV will also make available subordinated loans of up to 3 years to SMEs. The aim here is to provide financing instruments that create a medium-term financial buffer, in addition to the shorter-term federal bridge loans.

Other measures have also been announced, such as (i) one-off compensations mainly aimed at self-employed persons and small enterprises, (ii) measures in relation to subsidies and (iii) tax relief measures. These announced measures are being, or will be, implemented by the Flemish government.


 

 

Q: Can my business rely on financial support or moratorium granted by the Belgian government?

A: Yes, under the auspices of the Belgian National Bank, the Belgian federal government and the financial sector have entered into an agreement in order to grant a temporary relief of payment obligations under existing credit facilities, and to ensure access to new credit facilities for financially viable enterprises. This agreement consists of two pillars:

(i) Deferral of payments under existing credit facilities

Enterprises facing liquidity issues due to the Corona-crisis can apply with their bank for a deferral of payments until 31 December 2020.

On 31 March 2020, Febelfin has published a charter setting out the principles of the agreement reached between the federal government, Febelfin and the National Bank of Belgium on 22 March 2020. The measures taken on 31 March 2020 were extended on 5 June 2020.

Enterprises financially affected by the Covid-19 outbreak can apply for a payment deferral under their corporate credits until 31 December 2020. This means that enterprises will not have to repay the principal until 31 December 2020. Interest on loans remains due and payable. Once the deferral period has expired, repayment of principal will resume and the duration of the credits will be extended by the deferral period.

Payment deferrals of corporate credits may be requested by companies that are ‘non-financial enterprises’ (and also SMEs, self-employed persons and non-profit organisations) and that meet each of the following 4 criteria:

(a) facing liquidity shortages specifically due to the Covid-19 outbreak (e.g. due to a decrease in turnover);
(b) being permanently established in Belgium;
(c) not being in payment default in respect of existing credits, taxes or social security contributions on 1 February 2020 or having incurred late payment delays of less than 30 days late with respect to existing credits, taxes or social security contributions on 29 February 2020; and
(d) having fulfilled all contractual credit obligations with all banks during the last 12 months prior to 31 January 2020 and not undergoing an active credit restructuring process.

Payment deferrals may be requested for credits with a fixed repayment schedule, advances in current account and straight loans. Leasing and factoring fall outside the scope of application of the charter.

On 31 October 2020, enterprises that have requested and obtained a payment deferral and still meet each of the above-mentioned 4 criteria may request an additional payment deferral until 31 December 2020. Payment deferrals are to be granted free of charge.

(ii) State guarantee scheme

The government has pledged EUR 50 billion as part of a state guarantee scheme to cover losses incurred by the financial sector in connection with new loans made available to businesses in response to the crisis. The scheme applies to all new loans and credit facilities with a maximum maturity of 12 months granted by credit institutions from 1 April 2020 until 31 December 2020, both to non-financial enterprises as to self-employed entrepreneurs. This measure will only apply to companies that can show that they were financially healthy and viable before the Covid-19 outbreak.

All new bank loans subject to the state guarantee scheme shall be subject to an interest rate of maximum 1.25% (excl. fees). New credit facilities for any company (or group of affiliated companies) in an aggregate amount up to EUR 50 MIO per can benefit from a state guarantee; new credit facilities for any company (or group of affiliated companies) for an aggregate amount in excess of EUR 50 MIO will require additional approval. An important caveat is that the State guarantee scheme does not cover refinancings of existing loans, nor for example new drawdowns under existing credit facilities. A further important note is that the scheme technically does not cover losses on credit agreements at an individual level, but at the level of the entire loan portfolio of each credit institution. Only if the total losses on this portfolio exceed 3%, the state guarantee scheme will (partially) apply. Losses of up to 3% will have to be absorbed by the credit institution itself.

On 5 June 2020, an additional guarantee scheme of EUR 10 billion was adopted for loans with a duration of 12 to 36 months which is targeted specifically at SME. The additional guarantee scheme will use the existing envelope of EUR 50 billion.

The Royal Decree implementing this State guarantee scheme of 14 April 2020 has been published in the Belgian State Gazette of 15 April 2020. Further legislative texts implementing the measures adopted on 5 June will be available in due time.


 
     
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   Financial services - regulatory
     

 

Q: Is there a ban on short selling in Belgium?

A: Yes. The Financial Services and Markets Authority (“FSMA”) has issued a ban which :

a. prohibits the “entering into a short sale which might constitute or increase a net short position on stocks admitted to trading to Belgian trading venues, including any transaction which creates, or relates to, a financial instrument and where the effect or one of the effects of that transaction is to confer a financial advantage on the natural or legal person in the event of a decrease in the price or value of another financial instrument, in accordance with Article 20(2) a) and b)” of the Regulation (EU) no. 236/2012 of the European Parliament and of the Council of March 14, 2012 (SSR);
b. applies regardless of the place where the transaction is executed (i.e. on a trading venue or OTC);
c. is applicable to all “companies listed on Euronext Brussels and Euronext Growth where the FSMA is the national competent authority for the most relevant market;
d. is applicable from 18 March 2020 until 17 April 2020.

Therefore, in our view the ban applies/may apply to :

a. new transactions entered into as from today
b. rolling transactions if they are executed as from today;
c. the effect on existing positions is less clear. On the basis of the wide definition of the ban, it is prohibited to execute a transaction, even pertaining to an existing position, if the effect (or one of the effects) of that transaction is to confer a financial advantage (on the person executing the transaction) in the event of a decrease in the price or value of another financial instrument. Keeping existing positions would seem permitted, provided that any transaction is avoided. We will try to obtain more clarity about this from the regulator;
d. to index-related instruments, but only if the restricted shares represent more than 20% of the index weight.


 

 

Q: Is an investor allowed to create a net short position (in one of the securities concerned by the short selling ban) using derivatives ?

A: No. Investors are not allowed to use derivatives to create a net short position; derivatives may only be used to hedge, create or extend a net long position. Note however, that, since the ban on short selling only refers to creating or increasing a net short position, net short positions may be kept or reduced where an investor has opened a net short position before the entry into force of the ban. On the other hand, increasing a position after having reduced it is not allowed.


 

 

Q: How shall investment firms comply with the MiFID II requirement on the recording of telephone conversations, where clients or staff lack the necessary electronic remote communication tools due to remote working?

A: In accordance with MiFID II, and the Belgian Law of 25 October 2016 on access to the activity of investment services and on the legal status and supervision of portfolio management and investment advice companies, investment firms shall keep a record of any investment service provided, any investment activity carried out, and any transaction carried out. Such recordings shall include the recording of telephone conversations and electronic communications relating, at least, to the provision of services concerning the reception, transmission and execution of client orders.

ESMA however recognises that, considering the exceptional circumstances created by the COVID-19 outbreak, some scenarios may emerge where, notwithstanding steps taken by the investment firm, the recording of relevant conversations may not be practicable (for example due to the sudden remote working by a significant part of staff, or the lack of access by clients to electronic communication tools).

In these circumstances, investment firms may use written minutes or notes of telephone conversations when providing services to clients, subject to prior information being provided to the client of the impossibility to record the call and that written minutes or notes of the call will be taken instead. In these scenarios, investment firms will need to ensure enhanced monitoring and ex-post review of relevant orders and transactions.

Investment firms should in any event deploy all possible efforts to ensure that the above measures remain temporary and that recording of telephone conversations is restored as soon as possible.


 
     
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   STATE AID AND SUPPORT MEASURES
     

 

Q: Can my business rely on specific premiums as a result of Covid-19?

A: Undertakings that have to close due to the measures imposed by the Belgian government and which fulfil certain conditions can benefit from a one-time hindrance premium. The amount of the premium and the scope of application depend on the region in which the undertaking is located. The undertakings located in Flanders can benefit from a premium of EUR 4,000 and EUR 165 per additional day that the undertaking is closed after 5 April 2020 (per establishment unit of the undertaking, with a maximum of 5 premiums per undertaking). In Brussels and Wallonia, only the undertakings which are active in particular sectors (eg. retail, restaurants, recreational activities, etc.) and have less than 50 full-time equivalent employees may benefit from a one-off premium of respectively EUR 4,000 (per establishment unit of the undertaking, with a maximum of 5 premiums per undertaking) and EUR 5,000 (one premium per undertaking). The eligible undertakings located in Wallonia should also have a turnover of less than EUR 10 million or a balance sheet of maximum EUR 10 million. Flemish undertakings can apply here and undertakings located in Wallonia here and Brussels undertakings here

In addition, undertakings located in Flanders which were not forced to close but suffer from a significant decreased turnover, can benefit from a one-off compensation premium of EUR 3,000 (per establishment unit of the undertaking, with a maximum of 5 premiums per undertaking). This also includes self-employed workers in a secondary occupation provided that they pay social security contributions as self-employed workers in main occupation. Self-employed workers in a secondary occupation who have an income between EUR 6,996.89 and EUR 13,993.78 can benefit from a one-off premium of EUR 1,500. The beneficiaries must meet the following criteria to be eligible for the compensation premium: (i) being situated in Flanders; (ii) having a decreased turnover of more than 60% between 14 march 2020 and 30 April 2020 compared to the same period last year; and (iii) not being entitled to the hindrance premium. Flemish undertakings can apply for the one-off compensation premium here.


 

 

Q: What is the impact of State aid rules with regard to the support measures implemented by the Belgian State to cope with the economic consequences of COVID-19?

A: The existence of an aid within the meaning of Art. 107.1 TFEU is subject to four cumulative conditions: 1. the measure must be imputable to the State and financed through State resources; 2. the measure must confer an advantage on the recipient undertaking; 3. the advantage must be selective (as opposed to a measure granted to all undertakings); 4. the measure must distort/threaten to distort competition and affect trade between Member States.

Depending on the type of measure adopted by the Belgian State in the context of the COVID-19 outbreak, the abovementioned conditions might or might not be met. The Belgian State may actually adopt a broad set of support measures:

  • measures applicable to all companies (e.g. wage subsidies, suspension of payments of corporate and value added taxes or social contributions). The Belgian State has already adopted similar measures at federal level. Those measures do not constitute State aid within the meaning of Art. 107.1 TFEU as they are applicable to all undertakings and are not selective.
  • direct financial support to consumers as opposed to undertakings (e.g.: measures adopted to reimburse consumers for cancelled events that are not reimbursed by the operators concerned). As the compensation is directly granted to consumers and not to undertakings within the meaning of Art. 107.1 TFEU, those measures fall outside the scope of State aid.
  • measures applicable to certain undertakings in certain sectors or to an individual undertaking (e.g.: compensation scheme adopted to compensate undertakings organising events for the cancellation of events related to COVID-19; State aid scheme adopted to compensate certain undertakings in the HORECA/aviation sectors due to the losses of revenues as a result of the containment measures/travel restrictions implemented for the COVID-19, etc.).

For instance, the Belgian government announced on 22 March that it will activate a guarantee mechanism (EUR 50 billion in total) for all new loans granted until 30 September 2020 (up to 12 months) to viable non-financial undertakings. The Royal Decree on State guarantee on loans was published on 15 April 2020 in the Belgian Official Gazette.

As a general rule, the measures adopted to target certain companies in a specific sector (or to target an undertaking individually) are selective measures likely to constitute State aid provided the other conditions are met (i.e. involvement of State resources, advantage, affectation of trade between Member States and distortion of competition).

All new individual aid and State aid schemes must be notified to the EU Commission unless they are specifically exempted from prior notification (e.g. measures falling under the General Block Exemption Regulation or falling under the De minimis Regulation). That scheme will be notified to the European Commission for approval.


 

 

Q: What initiatives have been taken by the European Commission in the field of State aid with regard to COVID-19?

A: On 13 March 2020, the EU Commission published a communication on a coordinated economic response to the COVID-19 Outbreak.

In its Communication, the EU Commission highlighted a number of legal bases enabling the Member States to provide financial support :

  • Article 107 (2) (b) TFEU :

aid granted to make good the damage caused by natural disasters or exceptional occurrences shall be compatible with the internal market.

On 18 March 2020 the EU Commission adopted a template for notifications of State aid under Article 107 (2) (b) TFEU, which provides for the structure and information required in order to notify State aid on the basis of Art. 107 (2) (b) TFEU, including sector-specific information.

  • Article 107 (3) (b) TFEU :

aid to remedy a serious disturbance in the economy of a Member State may be considered compatible with the internal market.

The EU Commission adopted on 19 March 2020 a Temporary Framework for State aid measuresenabling Member States to use the full flexibility foreseen under State aid rules to support the economyMember States may implement five categories of measures to support undertakings facing severe liquidity needs (see next question).

  • Article 107 (3) (c) TFEU :


This legal basis as further specified in the Rescue and Restructuring State aid Guidelines, enables Member States to adopt aid schemes to meet acute liquidity needs and support undertakings facing financial difficulties

Certain Member States have already expressed the need for the EU Commission to provide for even more flexibility in the application of State aid rules to certain sectors, for example, the auto and aerospace industries may require more support measures than what is currently allowed under the coordinated response adopted by the EU Commission.

 

 

Q: Which measures are covered by the Temporary Framework adopted by the EU Commission on State aid measures to support the economy in the current COVID-19 outbreak?

A: Further to the Temporary Framework on state aid measures to support the economy in the current Covid-19 outbreak adopted by the EU Commission on 19 March 2020, Member States are allowed to adopt temporary support measures on the basis of Article 107 (3) (b) TFEU which include the following:

  1. Aid in the form of direct grants, repayable advances or tax advantages: the aid must not exceed EUR 800,000.00 per undertaking to address its urgent liquidity needs
  2. Aid in the form of guarantees on loans: State guarantees or guarantee schemes supporting bank loans taken out by companies (public guarantees on loans for a limited period and loan amount).
  3. Aid in the form of subsidised interest rates for loans: public and private loans to companies with subsidized interest rates, at least equal to the base rate applicable on 1 January 2020 plus the credit risk premium corresponding to the risk profile of the recipient, with different rates for SMEs and non-SMEs.
  4. Aid in the form of guarantees and loans channelled through credit institutions or other financial institutions: granted through a financial institution to its customers in the form of guarantees on loans (ii) and in the form of subsidised interest rates for loans (iii)
  5. Short-term export credit insurance: Member States may provide support in case they can provide sufficient evidence of the unavailability of cover for the risk in the private insurance market

The Temporary Framework was first amended on 3 April 2020 to include five additional support measures:

  1. Support for coronavirus-related research and development (R&D)
  2. Support for the construction and upscaling of testing facilities
  3. Support for the production of products relevant to tackle the coronavirus outbreak.
  4. Targeted support in the form of deferral of tax payments and/or suspensions of social security contributions
  5. Targeted support in the form of wage subsidies for employees.

A second amendment to the Temporary Framework was adopted on 8 May 2020 to provide for additional support measures in the form of subordinated debt instruments and recapitalisation measures.

Recapitalisation measures are subject to stringent conditions in order to avoid undue distortions of competition. In addition, the Temporary Framework also provides for public transparency and reporting obligations.

Aid may also be granted in the form of subordinated debt instruments on similar conditions to subsidised public loans subject to stricter conditions regarding the interest rate and the amount of the subordinated debt, in view of the higher risks associated with these instruments.

A third amendment was adopted on 29 June 2020 to further extend the scope of the State aid Temporary Framework. This amendment targets micro, small and start-up companies and enables Member States to support them further. In addition, it introduces conditions that provide incentives for private investors to participate alongside the State in recapitalisations, thereby reducing the need for State aid and the risk of distortions to competition.


 
     
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   RWANDA
     

 

Q: As an employer, can I dismiss or suspend my employees as a result of the Covid-19 crisis?

A: Under Law n° 66/2018 of 30/08/2018 regulating labour in Rwanda, different options are available to employers:

  • The employment agreement can be suspended for force majeure or economic or technical difficulties for a maximum period of ninety (90) days over the course of one year. The obligations of both parties are suspended without dismissal.
  • The employer and employee can agree to amend certain terms and conditions of the employment agreement: half time work instead of full-time work, reduction of salary, etc …
  • All or part of the employees can be dismissed for economic reasons and receive terminal benefits.

 

 

Q: Can the Covid-19 crisis be considered as force majeure in relation to contractual obligations?

A: The concept of “force majeure” is not defined as such by Law n° 45/2011 of 25/11/2011 governing contracts but the Supreme Court has clarified that in order to qualify for “force majeure”, an event needs to be unforeseeable, unavoidable and irresistible.

As a result, Covid-19 and related measures could reasonably be invoked as “force majeure” but this will have to be assessed on a case by case basis.


 

 

Q: As bank, can I grant a moratorium to my clients because of the Covid-19 crisis?

A: Yes, the National Bank of Rwanda has granted permission to commercial banks to ease loan repayment conditions and restructure outstanding loans.

Each file will be analysed on a case by case basis whereby the main focus will be on how severely the income and cash flow of the borrower has been affected by the Covid-19 crisis. Measures could include a repayment moratorium or other interventions. A few banks have already announced three months’ moratoriums.


 

 

Q: As tenant, can I suspend my rent payment because of the Covid-19 crisis?

A: In the absence of a contractual or legal basis to suspend the rent, the tenant and landlord can still mutually agree on a possible reduction or waiver of the rent.

At the moment landlords and property owners are negotiating with the banks regarding their loan repayments as in most cases rent is the main source of income for their loan repayments. It is not excluded that if landlords reach an agreement with the banks, this would have a direct consequence on rents. For example, if the banks waive the loan repayments for a certain period, rents could be waived for the same period.


 

 

Q: As taxpayer, can I suspend my tax payments further to the Covid-19 crisis?

A: The Rwanda Revenue Authority has not suspended tax payments as such, but the usual tax suspensions on a case by case basis depending on the specific case remain in place.

Tax measures announced by the Rwanda Revenue Authority so far include:

- Suspension of the yearly tax audit.
- Extension of the yearly financial statements’ certification’ deadline

One month suspension for the 25% down payment admissible for amicable settlements


 
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   DEMOCRATIC REPUBLIC OF THE CONGO
     

 

Q: As a business, can I rely on any economic stimulus measures enacted by the Democratic Republic of Congo (DRC) government in response to the Covid-19 crisis? 

A: The DRC government has taken a series of fiscal, monetary, exchange rate and financial sector measures to support the economy during the Covid-19 crisis. These include:

  • Creating a monetary fund to support governmental spending measures relating to the Covid-19 crisis; Any contributions by undertakings to this fund will be considered a deductible cost for the financial year 2020;
  • Decreasing the monetary policy interest rate fixed by the National Bank from 9.0% to 7.5%;
  • Decreasing the coefficient of the reserve of on demand deposits and national currency from 2% to 0%;
  • Supporting the revival of companies' activities by means of zero rate financing from the Fund for the Promotion of Industry (FPI);
  • Providing credit to the food and pharmaceutical sectors;
  • Granting of moratoria on loan repayments, taking into account the situation caused by the Covid-19 crisis;
  • Postponing the USD 50 Million minimum capital requirement for banks to January 1, 2022;
  • Encouraging the restructuring of delinquent loans in accordance with the borrowers’ ability to repay;
  • Uncapping the monthly limit of electronic transactions and increasing the daily limit of transactions in electronic money to USD 2,500 (or its equivalent in CDF);
  • Suspending late payment penalties on overdue receivables during the Covid-19 crisis.

 

 

Q: As a business, can I rely on any tax measures taken by the DRC government in response to the Covid-19 crisis?

A: Several tax measures have been taken by the DRC government in order to mitigate the economic effects of the Covid-19 crisis, including:

  • Exemption from all duties, taxes, levies and fees on the import and sale of pharmaceutical inputs and products, as well as medical materials and equipment linked to the pandemic for a period of 6 months;
  • Three months’ suspension of VAT on the imports and sales (as well as on the customs’ penalties for late clearance) of basic necessities or products for mass consumption;
  • Three months’ suspension of employee tax (IPR) on the remuneration and bonuses of civil servants;
  • Three months’ suspension of some local taxes on agricultural products;
  • Three months’ suspension of the tax on rent payable by companies;
  • Three months’ suspension of certain fiscal, parafiscal and economic controls;
  • Three months’ suspension of penalties in the event of delays in customs’ clearance of essential goods.

 

 

Q: As a business, What employment measures can I take in response to the Covid-19 crisis?

A: With regards to measures related to employment, the following applies:

  • Prohibition of mass dismissals based on lockdown measures: employment contracts cannot be terminated as such due to force majeure but can be suspended. In case of suspension, the “no work no pay” rule applies. Note that some costs, such as medical care, will still have to be borne by the employer during the period of suspension.
  • If the suspension lasts at least 2 months, the employment contract can be terminated for force majeure, with prior consent of the Labour Inspectorate. Note that such terminations will not be easy to obtain in practice;
  • Possibility to resort to staff rotations in the event of a proven drop in activity and minimum service.
  • Possibility for companies and employees to agree to a reduction of working hours and pay if full-time employment is no longer possible due to the Covid-19 crisis. The employee’s consent is necessary and the Labour Inspectorate must be informed.
  • Companies have a statutory obligation to ensure good health and safety conditions at the workplace. In the context of the Covid-19 crisis, specific measures have been taken by the authorities in this regard in order to strictly comply with WHO recommendations. Companies need to:
    • prioritise telework wherever possible, taking into account problems with power and internet connections;
    • ensure that hands are washed at the entrance of the company’s premises;
    • limit unnecessary visits by people from outside the company;
    • suspend non-essential business meetings;
    • avoid clustering in the workplaces and respect social distancing measures (at least 1m).
    • regularly disinfect means of transport directly provided by the company to employees;
    • display and enforce the usual hygiene measures.

 
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