Neuigkeiten zum deutschen und italienischen Handelsrecht: Inkasso, Warenlieferung, Steuer

Under the new rules, which will take effect on June 3, 2021, the definition of cash will be expanded to include all banknotes and coins, including currency that is no longer in circulation but can still be exchanged at financial institutions. In addition, gold coins and gold in the form of bars or nuggets with a minimum gold content of, for example, 99.5% will also be considered cash.

Where cash of a value of EUR 10,000 or more is sent by post, transport or courier, the customs authorities may require a declaration of origin for the cash, which must be submitted within 30 days.

If there is a suspicion that the cash may be linked to criminal activities, the customs authorities can now also intervene with amounts below €10,000.

If neither a declaration of origin nor a certificate of deposit can be provided, or if there is a suspicion of criminal activity, the money can be confiscated.

In this context, it is crucial for companies and individuals involved in Italian trade to be aware of these changes and to take appropriate precautions to comply with the new legal requirements.

The digital document function of the ID card, electronic residence permit and eID card enables secure identification of a person when using administrative services. Until now, it was necessary to have an ID card, an electronic residence permit or an eID card as well as a PIN and a card reader.

With the draft law on the introduction of electronic proof of identity with a mobile device (SmarteID Act) passed by the German parliament, the government wants to enable citizens to permanently store the required information on their mobile devices and to identify themselves using only a mobile device and a PIN. The ability to identify oneself with a smartphone should only be possible when using a smartphone. The law is in force since 1.9.2021.

It is important that Italian citizens living or working in Germany, as well as German companies doing business with Italy, are aware of these changes and take advantage of the new possibilities of digital identification.

The German Federal Court of Justice (BGH) has ruled on the validity of a clause used by banks (judgment of 27.04.2021). According to this clause, changes to general terms and conditions must be notified to customers in writing at least two months before their proposed date of entry into force. The customer is deemed to have given his consent if he does not notify his objection before the proposed date of entry into force of the amendments. The Bank shall expressly refer to this tacit consent in its notification. The customer has the right to terminate the agreement.

In this context, the BGH has ruled that clauses in a bank's general terms and conditions which imply the customer's unrestricted consent to changes in the general and special terms and conditions are invalid.

In the past, some banks and savings banks have used such or similar wording to impose changes in services and prices. It remains to be seen how the ruling will affect these changes.

In the context of "Italian commercial law", it is important for Italian companies operating in Germany and for German companies with business relationships with Italy to consider the impact of such case law on their contractual terms and conditions and customer relationships.

Germany has extended the deadline for simplified access to short-time work compensation by three months to June 30, 2021. Companies that introduce short-time work for the first time by June 30, 2021, or resume it after an interruption of three months, can apply for simplified access until December 31, 2021. Prerequisite:

- At least 10% of employees are affected by a loss of working hours.

- There is no accumulation of negative hours.

- Temporary employees are also entitled to a short-time allowance.

The regulation is intended to provide planning security for the affected companies and their employees.

The German Bundestag has approved an exemption for seasonal work. The law extends the permissible duration of short-term employment exempt from social security contributions to a maximum of 4 months or 102 working days (previously 3 months / 70 working days) for the period from March 1 to October 31, 2021.

The reason for this is that the fluctuation of foreign seasonal workers is lower than usual due to the coronavirus pandemic. This regulation for seasonal employment contracts will automatically expire on 31.10.2021.

In the context of "Italian commercial law", it is important for Italian companies that carry out seasonal activities in Germany and for German companies that employ Italian seasonal workers to be aware of this temporary regulation and to adjust their personnel planning accordingly.

In Germany, the federal government has introduced the Transparency Register and the Financial Information Act to provide greater transparency about German companies and their beneficial owners. These instruments are intended to combat money laundering and terrorist financing.

The bill provides for the transformation of the Transparency Register from a catch-all register to a full register. To this end, the so-called "fiction of notification" will be abolished, according to which legal entities whose ownership and control structure, and thus their beneficial owner, is apparent from other registers (e.g. the Commercial Register, but also the Register of Cooperatives and Associations) are deemed to have fulfilled the obligation to notify the beneficial owner for entry in the Transparency Register.

All legal entities are therefore obliged not only to identify their beneficial owners, but also to actively report them for entry in the Transparency Register. The responsibility for the accuracy and timeliness of the data clearly lies with the legal entities. As a complete register, the Transparency Register will therefore contain a quantitatively complete and high quality database on the beneficial owners of all entities subject to transparency requirements.

It is important for Italian companies operating in Germany and for German companies with business relations to Italy to be aware of the requirements of the German Transparency Register and to ensure that they fulfill their obligations to report their beneficial owners.

A German court (OLG Frankfurt, judgment of 4.2.2021) has decided a case in which a fitness studio advertised a monthly price of "€29.99 for a 24-month membership" as a registration fee. The ad included a small asterisk on the right side of the page that read "plus €9.99 service fee/quarter".

The judges clarified that price disclosures in an advertisement must show the total price the consumer will pay for the service. The aforementioned price advertisement, which does not include a service fee to be paid quarterly, violates this obligation and is unlawful.

In the context of "German-Italian commercial law", it is important for Italian companies advertising in Germany to observe the case law on price indications and to ensure that their advertising complies with the legal requirements in order to avoid infringements and possible sanctions.

When a partnership under civil law (GbR) is dissolved, the partners are entitled to a surplus in the amount of their profit shares after the joint debts have been settled and the contributions have been repaid. This was decided by the BGH (judgement of 27.10.2020).

If the company's assets are not sufficient to settle the joint debts and repay the contributions, the shareholders bear the shortfall in proportion to the loss they have to bear. If a shareholder's contribution cannot be collected from him, the other shareholders must bear the shortfall in the same proportion.

The German court has ruled that a GbR, even if it is not a stock corporation, may require additional contributions for the purpose of equalization among the partners after its dissolution, represented by the liquidator, according to this principle.

In the context of "Italian commercial law", it is important for Italian partners of a GbR or for Italian companies that maintain business relations with a GbR in Germany to understand the legal framework and case law in order to know their rights and obligations in the event of the dissolution of the company.

In Germany, the law on the creation of an integrated charging and wiring infrastructure for electric mobility in buildings has been passed and is already in effect.

For new residential buildings with more than 5 parking spaces (for non-residential buildings: 6 parking spaces), at least every third parking space must be equipped with charging infrastructure and an additional charging point must be installed. Developers or property owners whose buildings are contiguous can meet some of the requirements of the law together. For example, it is possible to create a shared infrastructure or charging points for a neighborhood.

The law does not apply to non-residential buildings owned by small and medium-sized enterprises and used primarily by the owners. Exceptions are also provided for when the cost of charging infrastructure and cabling in existing buildings exceeds 7% of the total cost of a substantial renovation of the building.

In the context of "Italian commercial law", it is important for Italian companies operating in the construction and real estate sectors in Germany, as well as for Italian investors investing in German real estate, to be aware of the requirements of this law and to take them into account when planning and implementing construction projects.