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Overview on Legal News in 2022

Companies and entrepreneurs will again face numerous legal changes in 2022. In the following, we will provide you with a brief overview of what is to come:

Minimum wage

The statutory minimum wage for employees will rise to 9.82 Euros at the turn of the year. From 01.07.2022, it will increase to 10.45 Euros. As a result, employment on a 450-Euro basis will only be exempt from social security for around 45 hours per month from the start of the year, and only 43 hours per month from mid-2022. For contracts that already fully utilizing the 450-Euro limit, the scope of employment should be regularly adjusted. As of 01.10.2022, the minimum wage will most likely be raised to 12 Euros by the government coalition. After that raise, the minimum wage commission will once again be responsible for further raises. The 450-Euro basis will be adjusted to 520 Euro simultaneously, which is equivalent to 43 hours of work. 

Minimum training allowance

From the beginning of the year, the statutory minimum training allowance for the first year of training will be raised to 585 Euros. There will be surcharges in the second, third and fourth years of training: The remuneration must then be 18%, 35% and 40% higher than the starting amount for the first year of training respectively.

Health insurance for mini jobbers

Employers of employees who are exempt from social insurance will be subject to a reporting  obligation about the respective health insurance of the employees as of 01.01.2022. When registering the employee on a 450-Euro basis with the mini-job center, the employer must state with which (statutory) health insurance company the employee is insured over the duration of the employment. The aim of the regulation is to improve health insurance coverage for short-term employees.

Packaging Act: Verification and registration obligation for all packaging

As of 01.01.2022, an extended verification and documentation obligation for the return and recycling of packaging will apply. Previously, this only applied to filled sales packaging and outer packaging that accumulates as waste after use by private end consumers. From 01.07.2022, there will be a new registration obligation for manufacturers (= initial distributors) of all filled packaging at the Central Packaging Register (ZSVR). Packaging that is not subject to system participation will then also be subject to registration, such as reusable packaging, transport packaging, "commercial" sales packaging, etc. In addition, final distributors of so-called service packaging, i.e. packaging for handing over prepared food to end consumers, such as "to-go cups", pizza boxes or roll bags, are also obliged to register with the ZSVR. Previously, registration could be transferred to the pre-distributor. Manufacturers already registered must adapt their registration to the new requirements.

Plastic bag ban from 2022

At the turn of the year, the ban on plastic bags will come into force. This will affect the lightweight plastic carrier bags usually handed out at the checkout in retail stores. Excluded from the ban are the so-called shirt bags for fruit and vegetables and more stable carrier bags with a wall thickness of 50 micrometers or more.

EEG - levy decreased

Electricity customers can look forward to more stable energy costs: The EEG levy has fallen from 6.5 to 3.723 cents per kilowatt hour of electricity. Due to high procurement costs, prices are unlikely to fall initially despite the lower levy.

Bridging assistance III Plus extended

Bridging aid III Plus as part of Corona`s emergency aid program  has been extended until the end of March 2022. This supports companies and solo self-employed persons who are particularly affected by the pandemic. Under this framework , it is still possible to claim special write-offs for seasonal goods that could not be sold due to lockdowns as eligible fixed costs.

Virtual general meeting and simplified circulation procedure in the limited liability company (GmbH)

The virtual general meeting is entering its third season. The option of holding a general meeting without shareholders being present, which was introduced due to the COVID 19 pandemic and has been well received in practice, has been extended until August 31, 2022.

GmbH shareholders have the option (also until August 31, 2022) of adopting shareholder resolutions in text form (i.e., for example, by e-mail) or by written votes , even if neither the articles of association provide for this, nor all shareholders agree. In the case of a GmbH, a purely virtual shareholders' meeting is still only possible if this is regulated accordingly in the articles of association.

Subsequent notifications to the new comprehensive transparency register

The transparency register will be upgraded from the previous "catch-all" register to a comprehensive register. In future, it will contain the data of the economic beneficiaries of all (commercial) companies, associations and foundations. Beneficial owners are the natural persons who hold or control more than 25% of the capital shares or voting rights in a partnership or corporation. Accordingly, the economic beneficiaries  of all legal forms must now be identified and subsequently reported to the electronic transparency register. Depending on the type of company, the reporting deadline ends on March 31 (stock corporations (AG), SE, partnerships limited by shares (KGaA)), June 30 (GmbH, (European) cooperatives, partnerships) or December 31, 2022 (registered partnerships). Violations of the reporting obligations  may result, among other things, in (turnover-related) fines for the company concerned, its management bodies, shareholders and beneficial owners, as well as publication of the violation on the website of the Federal Office of Administration.

Equal tax treatment of partnerships and corporations

As of the 2022 assessment year, it will be possible to tax partnerships and partnership companies in the same way as corporations. In the case of the latter, taxation of the partnership and partners will be carried out separately. As a result, this leads to a higher profit distribution in terms of amount. The equalization option is intended to strengthen the tax neutrality and competitiveness of the company forms. The civil law partnership (GbR) and sole proprietorships are excluded. The application must be submitted to the local tax office at least one month before the beginning of the fiscal year from which taxation  is to take place according to the corporate income tax act (KStG). The application must be preceded by a shareholders' resolution requiring at least 75% of the votes cast. A return to the previous taxation method is possible under the same conditions (application one month before the beginning of the new fiscal year).

Possibility of (cash) online formation of a GmbH / commercial register information

For the GmbH (and the entrepreneurial company with limited liability (UG)) there is the possibility of an online formation starting from 01.08.2022. In this case, the notarization of the articles of association and the required declarations of intent by the shareholders will be carried out by means of a specially secured video communication system of the Federal Chamber of Notaries. The participants are identified by means of an electronically transmitted photograph in conjunction with an electronic proof of identity, e.g. ID card with eID function. The signature is made with a qualified electronic signature.

In future, commercial register applications can also be certified by means of video communication, provided the application is made by sole traders or corporations in the legal form of AG, GmbH and KGaA. Announcements of the registrations  will then only be made by retrieving the information for the first time via the register portal of the federal states ( Retrieval of data from the commercial register will be free of charge from 01.08.2022.

New material defect concept in sales law

In June 2021, the EU Purchasing Directive on the harmonization of the law on the sale of goods was implemented. The amendment to the law applies to contracts concluded from 01.01.2022. The new concept of material defect is the most important innovation: According to this, an item can be defective even though it has the agreed quality. According to the new definition of defect, in addition to the agreed quality, the fulfillment of objective requirements is decisive, i.e. above all the "usual" quality, as well as assembly requirements. This includes assembly and operating instructions. In B2B transactions, the scope of the objectively expected properties can be contractually agreed, in consumer transactions only under strict conditions. In particular, the contractual agreement must expressly specify the deviation from the objectively expected "usual" quality. A general reference in the general terms and conditions or in the product description is not sufficient.

When selling used goods to consumers, the trader can still shorten the statutory warranty period, but no longer in the general terms and conditions, but only by individual agreement. In addition, the period of reversal of the burden of proof for defects in the B2C sector (purchase of consumer goods) is extended from six months to a full year: If a defect occurs during this period, it is assumed that it was already present when the goods were handed over. It is then up to the trader  to prove the opposite. Entrepreneurs should adapt their sales contracts to the new regulations of the law on sales, especially about the concept of material defects.

Consumer contract for digital products

The new version of the Sale of Goods Act also includes the new "consumer contract for digital products" and warranty law. This new type of contract covers, for example, consumer contracts for smartphones, smartwatches, digital voice assistants, smart TVs and stereo systems, as well as digital household appliances or game consoles. In addition to warranty rights, the seller will have a so-called update obligation in the future. If the seller does not provide updates within the normal useful life of the product, this constitutes a material defect. This primarily affects updates that ensure the functionality and IT security of the product. Functional improvements are not owed. Sellers of digital products who do not manufacture them themselves should therefore contractually agree with the manufacturer the terms of the update  in order to safeguard their update obligation. In addition, the question of the duration of the period for the provision of updates will also need to be regulated, as this is not specified by law. This must be at least the duration of the statutory warranty (two years) and cannot be shortened by agreement. It is conceivable that digital products will be sold in the future with a "best before" date that corresponds to the expected product life.

Simplified (online) right of termination for continuing obligations

For continuing obligations in the B2C area that are concluded from 01.03.2022, the legal regulations on tacit extension  will change. An automatic extension by one year, with a prior notice period of up to 3 months, is no longer effective. Tacit extensions are now only permitted if the continuing obligation is extended for an indefinite period and can be terminated by the consumer on a monthly basis. Companies should adapt their general terms and conditions to this effect by 01.03.2022. Contradictory clauses will become invalid as of this date.

From July 1, 2022, companies will also be obliged to offer online termination for fee-based continuing obligations concluded online in the B2C sector. This is to be made possible via a clearly visible and unambiguously labeled button ("cancellation button"). The cancellation button must be presented to consumers in a way that is easy to find and must be always available. If there is no such cancellation button by the deadline, consumers may cancel  without notice.

Gender quota and #stayonboard

The so-called Second Leadership Positions Act (Führungspositionengesetz, "FüPoG II") introduced a binding gender quota for the management boards of listed companies with equal co-determination. If this consists of more than 3 members, at least one woman and one man must be represented on it. This applies to the appointment of new board members from August 1, 2022. An appointment contrary to the minimum participation requirement is void and the position remains vacant. The target of zero percent female representation for the supervisory board, the management board and the two top management levels below the management board remains permissible but is subject to a comprehensive obligation to provide reasons. In addition, the percentage of the target share must add up to a full number of persons.

Driven by the #stayonboard initiative, members of the management board will also be able to "suspend" their mandate for up to twelve months in certain cases, for example after the birth of a child, for parental leave, to care for family members or in the event of illness. For this purpose, the supervisory board resolves to revoke the appointment of the management board member, but at the same time assures reappointment. Under the previous legal situation, the office regularly had to be resigned for liability reasons in the event of such a period of leave.

Supply Chain Due Diligence Act

The Supply Chain Due Diligence Act will not come into force until January 1, 2023, and will initially apply "only" to companies with more than 3,000 employees (from 2024 more than 1,000 employees). However, even companies that do not fall within the direct scope of application are likely to feel the effects of the act as part of a supply chain as early as next year, for example in the form of new contractual clauses with which large companies pass on the due diligence obligations imposed on them by law to contractual partners.

Modernization of partnership law

The law on partnerships will not be reformed until January 1, 2024, but affected companies should already start implementing it as early as 2022. In future, a distinction will be made between the legally capable external civil law partnership ("GbR") and the non-legally capable internal GbR. The external GbR comes into being through participation in legal transactions or, at the latest, through registration, and is the only bearer of rights and obligations. In principle, there is no obligation to register the external GbR in the newly created company register. In practice, however, every GbR entered in the land register or in other registers must be listed  in the company register before changes can be made in other registers. The GbR listed  in the register must use the legal form suffix eGbR in legal transactions. In accordance  with previous contractual practice, the law now also stipulates that the distribution of voting rights and the share of profit and loss are primarily based on the agreed participation ratios. This applies to the GbR and, by way of reference, also to the general partnership ("OHG") and the limited partnership ("KG"). The law also contains a new regulation  in the law on defective resolutions for general partnerships and limited partnerships: in the event of serious errors, the resolution is exceptionally  void; otherwise, defective resolutions are valid but may be challenged. In addition, there are changes to the unity GmbH &. Co. KG ("Einheits-GmbH & Co. KG"). Rights of the partners' meeting of the GmbH are exercised by the limited partners after the amendment to the law, unless the partnership agreement provides otherwise. According to previous case law, these rights were held by the managing directors of the GmbH. Partnership agreements should be reviewed and adapted to the new legal regulations.

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