Authors: Dr. Jens Uwe Rügenhagen, Alexander Oberdiek, Attorneys-at-Law, GSK STOCKMANN (Heidelberg, Germany).
Overview of legal measures as of June 14, 2020 as response to the coronavirus. Please note: Due to the extraordinary situation, the legislation is in continuous evolution and may change very fast.
GERMANY is a federal republic consisting of sixteen partly-sovereign states (federal countries). Under the principle of federalism the exclusive legislative competence for some topics is assigned to the federation (Bund), while others fall under the shared competence of the federal countries and the federation. For all other areas - as far as neither exclusive or shared competence of the federation is assigned by the constitution - the federal countries retain residual legislative competence.
In order to combat the COVID 19 outbreak in Germany the federal government and the heads of government of the federal countries agreed on guidelines for fighting the Corona-Epidemic on March 16, 2020 ("Leitlinien zum Kampf gegen die Corona-Epidemie") and amended these on March 22, on April 15, on April 30 and on May 07, 2020. These guidelines contain inter alia restrictions for retail businesses and public access to other sorts of establishments, prohibition of most sorts of gatherings and restrictions of allowed contacts among individuals, and stipulations on regulations to be adopted by the individual federal countries. According to the agreement of May 07, 2020 the individual federal countries should start to ease these restrictions where they deem it necessary, except for the restrictions of allowed contacts among individuals, which should stay in place until at least June 29, 2020.
The German Act on the Prevention and Control of Infectious Diseases in Man ("Infektionsschutzgesetz" - "IfSG") provides the legal basis for the issuing of ordinances by the respective federal countries. Ordinances implementing the aforementioned guidelines have been issued by all federal countries, although differing in some details.
For these interventions and restrictions see Part 1. below.
Furthermore on March 27, 2020 a federal act on mitigating the effects of the COVID 19 pandemic in civil law, insolvency law and the law on criminal procedures ("Gesetz zur Abmilderung der Folgen der COVID-19-Pandemie im Zivil-, Insolvenz- und Strafverfahrensrecht") was passed by German parliament (Bundestag) stipulating temporary amendments to different acts of federal law.
For these amendments to federal law see Part 2. below.
The below sections contain more detailed information on the legislative measures taken and their impact on the different areas of law and public life in Germany and provide links to the corresponding legal basis and official sources with more information. The information provided here is not comprehensive. We strive to add further aspects of COVID 19 related legislation and to keep the present information updated.
As far as English language versions of German legal texts are provided or linked on this website, please note that only the German language version has legal force.
1. INTERVENTIONS AND RESTRICTIONS
1.1 Legal basis
Most interventions and restrictions in Germany in order to combat the COVID-19 outbreak are based on the Act on the Prevention and Control of Infectious Deseases in Man ("Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen - Infektionsschutzgesetz , IfSG")
Section 32 of the IfSG empowers the individual federal countries to issue orders and prohibitions by means of ordinances for the control of communicable diseases. On this legal basis the 16 federal countries have issued ordinances in order to implement the measures agreed on by the federal government and the heads of government of the federal countries in their guidelines for fighting the Corona-Epidemic of March 16, 2020 ("Leitlinien zum Kampf gegen die Corona-Epidemie"), as amended on March 22 on April 15, 2020, on April 30, 2020 and on Mai 06, 2020.
Below you can find links to the Corona ordinances of the German federal countries as of today:
Lower Saxony [German]
Mecklenburg-Western Pomerania [German]
North Rhine-Westphalia [German]
As far as English language versions of German legal texts are provided or linked on this website, please note that only the German language version has legal force.
Internal border crossings:
On the basis of Articles 25 and 28 of the Schengen Borders Code, border controls were reintroduced in Germany on a temporary basis in order to combat the COVID-19 outbreak. Nevertheless internal border controls are being abolished. Thus there will not be any further restrictions concerning crossing the borders to the following countries From June 16, 2020, onwards there are no restrictions concerning crossing the borders to
Austria (from June 16, 2020, onwards)
France (from June 16, 2020, onwards)
Luxembourg (restrictions have already been abolished)
Denmark(from June 16, 2020, onwards)
Switzerland (from June 16, 2020, onwards)
Restrictions on air travel within the European Union:
Checks at Germany’s borders are imposed and include flights from Italy until 16 June, 2020, and Spain until June 21, 2020. For travellers who have no urgent reason to travel, restrictions apply to these travel routes. Travellers who have an urgent reason to travel are required to provide appropriate proof of the necessity to cross the border.
Restrictions on air and sea travel outside of the European Union:
Extensive restrictions on entry at Germany’s external Schengen borders are in place since March 17, 2020. The restrictions apply to international aviation and maritime traffic originating outside the European Union at least until June 15, 2020 . They do not apply to German citizens.
Effective April 1, 2020, the Federal Ministry of Health has also prohibited flights arriving from Iran.
1.4 Export control
As a result of the corona crisis special measures were taken with regard to medical protective equipment:
An obligation to present an export license when exporting certain products imposed a licensing requirement for the export of medical protective equipment to third countries.
The licensing requirement concerns exports (i.e. deliveries outside the EU) of the goods listed in Annex I to Art. 1 Commission Implementing Regulation (EU) 2020/402.
This list concerns goods of protective medical protective equipment intended both to prevent transmission of infectious diseases to healthcare professionals and to protect the healthy population from infection by sick persons. It is divided into the following categories:
Protective spectacles and visors
Deliveries within the European Union (so-called shipments) are not restricted by the Regulation (EU) 2020/402. A national directive of March 12, 2020 (BAnz AT 12.03.2020 B1), which also applied to deliveries within the EU, was repealed with respect to the uniform EU approach).
Also not restricted are deliveries to the EFTA states (Norway, Iceland, Liechtenstein, Switzerland) and to the overseas countries and territories listed in Annex II of the Treaty on the Functioning of the European Union
as well as to the Faroe Islands, Andorra, San Marino and the Vatican City (amendment by Commission Implementing Regulation (EU) 2020/426 of March 19, 2020).
Applications for the export of respective protective equipment can be submitted via the ELAN-K2 export portal
The Federal Office for Economic Affairs and Export Control (BAFA) has established a telephone hotline (+49 6196 908-1444) with regard to the delivery of protective equipment. Written inquiries can be sent to the e-mail address: firstname.lastname@example.org. Companies that already have access to the ELAN-K2 export portal should use the form "other inquiry" for inquiries.
1.5 Prohibition of crowds
In the whole of Germany prohibitions of gatherings and restrictions on contact between individuals apply due to the COVID 19 pandemic. As such measures are in the competence of the federal countries, these have issued ordinances in order to implement the guidelines for fighting the Corona-Epidemic ("Leitlinien zum Kampf gegen die Corona-Epidemie") agreed on by the federal government and the heads of government of the federal countries. These measures differ slightly from federal country to federal country. Legal basis for these ordinances is Art. 32 in conjunction with Art. 28 Para. 1 Sentences 1 and 2 and Art. 31 of the German Infection Protection Act ("IfSG") of 20 July 2000 (as amended by Article 1 of the Act of 10 February 2020).
In general for most federal countries gatherings of more than 2 households or more than 10 persons are prohibited and individuals need to keep a minimum distance of 1.5 metres from each other. Gatherings for example work purposes, funerals, administration of justice, demonstrations and religious services like worships are permitted. For the time being these restrictions are in place until June 29, 2020.
Detailed measures applying in the individual federal countries can be found through the links to the corresponding ordinances under section 1.1 Legal basis.
Sources: See section 1.1. Legal basis and [German]
According to the agreement of May 07, 2020 the individual federal countries should start to ease corona restrictions where they deem it necessary.
If there are more than 50 new Covid-19-cases in one district within a week, this district has to roll back to a hard lockdown to prevent the corona-virus from spretting to other districts.
Schools and universities:
Schooling for most students has resumed.
Nevertheless, universities are still closed and students are schooled through distance education. University libraries are allowed to open again.
Allowed leisure activities, subject to strict hygiene measures, are for example:
Zoos, libraries as well as cultural establishments like theatres, opera houses and cinemas.
Restaurants and similar establishments.
Mass events to remain prohibited until August 31, 2020.
Source: See section 1.1. Legal basis and [German]
1.7 Open Businesses, Industries and allowed Gatherings
In all federal countries it is prohibited to enter shops and in most federal countries also to use public transportation without wearing mouth/nose protection.
While as a general rule most enterprises and especially all retail trade is allowed again, some businesses are still forced to be closed; for example:
Source: see the Corona ordinances of the German federal countries under section 1.1. Legal basis as well as [German]
1.8 Persons with a higher risk
In principle, there is a ban on visitors entering old people's and nursing homes. But each resident is allowed to be visited regularly by one priorly defined person.
Source: see the Act on the Prevention and Control of Infectious Deseases in Man and the Corona ordinances of the German federal countries under section 1.1. Legal basis as well as [German]
Violations of the standards issued in connection with the corona crisis can be sanctioned as an infraction with a fine or, in some cases, even as a criminal offence with fines and imprisonment. Please see the Infection Protection Act mentioned at the beginning of this article and the Epidemic Protection Ordinances of the federal states based on it.
2. Amendments to German Insolvency, corporate and civil law and law of criminal procedure
2.2 Insolvency Law
Article 1 of the act referred to under 2.1. provides for five measures in the field of insolvency law:
1. The three-week obligation to file for insolvency will be temporarily suspended until September 30, 2020. This only applies to cases in which the insolvency or illiquidity is due to the consequences of the COVID 19 pandemic. In addition, it should be necessary that there are prospects of overcoming the insolvency. Companies obliged to file an application should be given the opportunity to avoid insolvency proceedings by making use of state aid, but also, if necessary, by means of restructuring or financing agreements.
2. During the suspension of the obligation to file for insolvency, managing directors have only limited liability for payments which they make after the company has entered insolvency.
3. New loans granted to companies affected by the COVID19 pandemic during the suspension of the obligation to file for insolvency should not be regarded as a contribution contra bonos mores to delaying insolvency.
4. Services provided to contractual partners during the suspension are only contestable to a limited extent.
5. The possibility of creditors to enforce insolvency proceedings by filing for insolvency is limited for three months. These measures are intended to give companies affected by the consequences of the COVID 19 pandemic time to restructure.
2.3 Corporations, Cooperatives, Transformations of Corporate Form, Associations and Foundations
Article 2 of the act mentioned in 2.1. provides the following regulations with regard to the corporate law, law on cooperative societies, transformation of corporate form, associations, foundations and properties:
Public limited companies (AG) and similar legal forms:
For German corporations in the legal form of public limited company ("Aktiengesellschaft" or "AG") and similar legal forms as "KGaA", "SE" and "VVaG" the possibility was created to hold a completely virtual annual general meeting without the physical presence of shareholders. In addition, shareholders may also be allowed to participate in or vote at an annual general meeting by electronic means without a corresponding authorisation within the company's Articles of Association.
Annual general meetings may be convened with a shortened period of notice (21 instead of 30 days).
For corporations in the legal form of "AG" and "KGaA", the annual general meeting may also take place within the fiscal year after the eight-month period has lapsed.
Limited liability companies (GmbH) and cooperatives:
Shareholders of limited liability companies ("GmbH") can pass written resolutions even without the consent of all shareholders.
For cooperatives ("Genossenschaften") the possibility has been created to hold meetings without physical presence, irrespective of any provisions in the articles of association, i.e. in particular for passing resolutions in writing or electronically. It is also ensured that a member of the management board or supervisory board remains in office until a successor can be appointed.
Transformation of corporate form:
To ensure that transformation measures under the German Act on Transformation of Corporate Form ("Umwandlungsgesetz" or "UmwG") do not fail due to restrictions on personal meetings, filings of the transformation with the commercial register are valid 12 months after the last balance sheet date, instead of the statutory eight-month-period.
Associations and foundations:
Board members of associations ("Vereine") remain in office regardless of their usual term until a successor can be appointed. The right to dismiss a board member remains.
Virtual general meetings are possible. Members are also able to cast their votes in writing before the general meeting.
2.4 Criminal Procedure
Articles 3 and 4 of the act referred to in point 2.1. provide the following for the German Code of Criminal Procedure:
Courts can interrupt trials for a maximum of three months if they cannot be held due to measures to prevent the spread of infection with the coronavirus SARS-CoV-2. Up to now, trials may only be suspended for three weeks, and if they have taken longer than ten days, for one month. The time limit for the rendition of judgement has also been extended, to a maximum of two months and eleven days.
2.5 Civil Law
Article 5 of the act referred to in point 2.1. provides for the following rules for continuing obligations, rental and lease agreements and loan agreements:
Moratorium on continuing obligations
Consumers will be granted a temporary right to refuse payment, i.e. de facto a deferment of payment for essential service contracts concluded before March 8, 2020. The right to refuse payment means that they will not be in default despite non-payment.
The same applies to small traders with regard to ongoing contractual relationships that serve to cover services that are essential for the economic basis of the business. The right to refuse payment is initially limited until June 30, 200.
The right of the consumer and the small trader to refuse payment shall be subject to the condition of reasonableness for the creditor. Furthermore, the right to refuse payment does not apply to certain rental and lease relationships, loan agreements and claims under employment law.
Restriction on the termination of rental and lease agreements
Lease agreements cannot be terminated for the period from April 1 to June 30, 2020 for non-payment of rent due to the COVID 19 pandemic. The rent remains due for this period; interest on arrears may also be incurred. Rent arrears for the period from April 1 to June 30, 2020 must be paid by June 30, 2022, otherwise the lease can be terminated. In the event of a dispute, tenants must provide credible evidence that the non-payment of rent is due to the effects of the COVID 19 pandemic.
Regulations on loan law
For consumer loan agreements concluded before March 15, 2020, the lender's claims for repayment, interest or amortisation payments due between April 1, 2020 and June 30, 2020 shall be deferred. A prerequisite for the deferral is that the consumer has lost income precisely because of the COVID 19 pandemic, with the result that the continued provision of repayment, interest or amortisation payments under the loan agreement would jeopardise the consumer's reasonable livelihood.
3. Tax measures
3.1 Legal basis
On 19 March 2020, the Federal Ministry of Finance (BMF) and the highest tax authorities of the federal states took action in order to mitigate the consequences of the current corona crisis for all taxpayers and companies operating in Germany. The Finance Ministry sent out a letter in this regard and the tax authorities of the federal states issued a decree of identical content.
FAQ by the BMF to all text relevant questions: [German]
3.2 Tax deferrals
Until 31 December 2020, affected taxpayers can submit applications to their competent tax office to defer payments for income or corporate income taxes that are due now and until that date. Deferrals of tax payments due after 31 December 2020 require a special justification. These regulations also apply to VAT, as the Federal Ministry of Finance (BMF) has clarified.
3.3 Adapting prepayments on income, corporate and trade tax
Taxpayers may submit applications to their respective tax office for adapting prepayments on income and corporate income tax as well as for adapting the trade tax assessment amount in the context of trade tax prepayments. If a tax office approves adapting the trade tax assessment amount, this will also be binding for the municipalities responsible for levying trade tax.
3.4 Suspending enforcement measures
Until 31 December 2020, affected taxpayers will be exempted from enforcement measures regarding income and corporate income tax payments (currently) pending or due by that date. Taxpayers seeking to benefit from this must actively inform the relevant tax office, unless the tax office has direct knowledge of the fact that thoese taxpayers are directly affected. In addition, for the period from 19 March 2020 to 31 December 2020, late-payment penalties will be waived for those affected.