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04/30/2021 | Newsletter on the current situation 38/2021

Bridging aid III and equity grant: amendments now possible

Equity grant and other elements of the extended bridging aid III can now also be applied for by means of an amendment request if the initial application has been approved or partially approved.

The equity grant must also be applied for and is not paid out automatically. For companies, self-employed persons and self-employed members of the liberal professions with a monthly turnover drop of at least 50 percent within the period from November 2020 to June 2021, the following surcharges are granted on the bridging allowance III in the respective month in which the threshold is reached:

• 25 percent on the total of the fixed cost reimbursement according to No. 1 to 11 in the event of a decline in sales of at least 50 percent in three months,

• 35 percent on the total of the fixed cost reimbursement according to No. 1 to 11 in the event of a decline in sales of at least 50 percent in four months,

• 40 percent on the total of the fixed cost reimbursement according to No. 1 to 11 in the event of a decline in sales of at least 50 percent in five or more months.

For companies that receive November and / or December aid, a sales decline of 50 percent is assumed in the respective month of November and / or December.

The equity contribution to strengthen the substance is therefore up to 40 percent of the amount that a company is reimbursed for the eligible fixed costs according to Section 2.4 No. 1 to 11. The equity grant is staggered and increases the longer the company has suffered a drop in sales of at least 50 percent. It is paid from the third month of the drop in sales and amounts to 25 percent in this month. In the fourth month with a drop in sales of at least 50 percent, the surcharge increases to 35 percent; for five or more months it increases again to 40 percent per month.

 

An example of the equity grant:

November 2020 Sales slump by more than 50 percent No surcharge

December 2020 sales drop by more than 50 percent No surcharge

January 2021 sales slump by more than 50 percent 25 percent of fixed costs

February 2021 sales slump over 50 percent 35 percent of fixed costs

March 2021 sales slump by more than 50 percent 40 percent of fixed costs

April 2021 sales slump over 50 percent 40 percent of fixed costs


DSSV demands a longer suspension of the obligation to file for insolvency
So far, the suspension of the obligation to file for insolvency is limited to April 30, 2021. The DSSV calls on politicians to extend this again. Not only are the companies threatened with bankruptcy through no fault of their own, many are still waiting for the aid programs to be paid out.

Politicians now have to make a quick decision and continue to suspend the obligation to apply in order to make possible upcoming aid programs and supplements available to the companies threatened with bankruptcy and to be able to wait for the aid to be paid out openly.

The suspension of the obligation to file for insolvency was decided in the Corona crisis. It was last extended in February to the end of April to help companies that were entitled to state aid from the Corona programs but had not yet received any money.


BGH: No tacit approval of changed banking terms and conditions
On April 27, 2021, the Federal Court of Justice (BGH) had to clarify the following question: May a bank require the consent of its customers for changes to the terms and conditions if these do not explicitly contradict them? The BGH says: No. Clauses in the general terms and conditions (GTC) of a bank, which, without any content restrictions, feign the customer's consent to changes to the GTC and special conditions, are ineffective.

The case:
The Federal Association of Consumer Organizations had sued. Among other things, it was about the clause of a bank, according to which changes to the terms and conditions are offered to customers in text form at least 2 months before the proposed date of their coming into effect and which states that the customer's consent is deemed to have been given if he does not reject his or her rejection before indicated the proposed point in time for the changes to take effect. The bank specifically points out this approval effect in the offer and the customer is given the option of termination. The BGH has now decided that the bank must refrain from using this clause.

Justification:
Such clauses put the customer at an unreasonable disadvantage; The clause deviates from the essential basic ideas of Sections 305 (2), Section 311 (1), and Sections 145ff of the German Civil Code (BGB) in that it qualifies the customer's silence as acceptance of a request for a contract change; the customer must therefore take active action to prevent a change. Without a content restriction, the consequences are far too far-reaching. In the most extreme case, the bank could use this clause without the active consent of the customer to make such a far-reaching change that could amount to the conclusion of a new contract.

Conclusion:
Since the rules of general terms and conditions content control also apply in the area of ​​fitness studio contract law, the studio should refrain from using general terms and conditions clauses with which consent to a change to the clauses is fictitious within a period of time, as it were through silence.

(BGH, judgment of April 27, 2021, Az. Xl ZR 26/20)


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