Antitrust Law and Merger Control20.04.2020Cologne Newsletter

What corona rules apply to the retail trade?

The “Corona Cabinet” of the Federal Government and federal states has announced new temporary regulations for containing Covid-19. During the concrete implementation of these regulations, many questions have arisen for the trade, which have also reached the Association of the German Nursery Products Industry [Bundesverband Deutscher Kinderausstattungs-Hersteller e.V. – BDKH]. Lioba Hebauer talked to the Cologne lawyers Dr. Daniel Dohrn and Jörn Kuhn of Oppenhoff & Partner about this.

 

Dr. Dohrn, Mr. Kuhn, stationary trade, for example for nursery products or toys and up to an area of 800 square meters, can reopen for its customers from today, 20 April.

Dohrn: This is basically correct. However, there are some deviating regulations in several federal states and municipalities. This is because the decision of the Federal Government and the federal states is no more than a guideline. Traders therefore have to comply with the regulations of their own federal state and municipality. This patchwork of regulations is annoying because it leads to an immense amount of information for the retail trade.

For example, there are already differences as to when the relaxation of restrictions should apply. While the regulations in most of the federal states are already in effect as of 20 April, in Brandenburg the new regulations will not take effect until 22 April, in Berlin probably not until 23 April 23, in Thuringia on April 24 and in Bavaria not until April 27. Different regulations also apply to shopping centers, depending on the federal state. In Saxony, sales outlets in shopping centers will remain closed even after 20 April, unless they provide basic supplies. In Saarland, the total area of all sales outlets within the shopping center may not exceed 800 square meters. In other federal states, such as North Rhine-Westphalia, Schleswig-Holstein, Baden-Württemberg, Bavaria and Lower Saxony, on the other hand, sales outlets may open in shopping centers if the sales area of the individual sales outlets is a maximum of 800 square meters. As you can see, there are certainly important differences in the details in the federal states.

 North Rhine-Westphalia is evidently going its own way. According to information from our members, baby shops with areas larger than 800 square meters are also going to be opened there. Are they allowed to do that?

Dohrn: Yes, in NRW baby shops are not covered by the sales area restriction. This means that they can open even if they have a larger sales area than 800 square meters. However, this special regulation only exists in NRW.

Could a trader with 900 square meters just simply cordon off a 100 square meter sales area and thus satisfy the conditions?

Dohrn: Unfortunately, there is also no uniform nationwide regulation on this aspect. Some federal states, such as North Rhine-Westphalia, Lower Saxony, Saxony, Saxony-Anhalt and Bavaria, only permit the opening of those sales outlets whose actual sales area does not exceed 800 square meters. Other federal states are more flexible in this respect and expressly permit the restriction or cordoning-off of a larger sales area to 800 square meters. This is the case, for example, in Thuringia, Mecklenburg-Western Pomerania, Bremen, Hamburg, Hesse, Brandenburg and Schleswig-Holstein.

Does the trader have to open or can it remain closed if there are concerns about the risk of infection? And who then pays employees’ salaries?

Kuhn: An obligation to open the shop only exists if the lease agreement contains so-called operating obligations. This is usually the case with lease agreements in shopping centers. Otherwise, it is the trader’s decision. However, if he does not open his shop, despite this being possible, he should consider this carefully, because this could lead to the employment agency not paying short-time work compensation.

Can employees refuse to work in stationery trade for fear of infection?

Kuhn: If the employer implements the required health and safety regulations, an employee cannot simply refuse to work because he is afraid. The employer is required to consider whether it is possible for risk groups (e.g. older employees) to work in the warehouse so that risks can be minimized.

What possibilities do colleagues from other federal states whose existence is threatened by the continued closure have to take legal - and above all rapid - action against this?

Kuhn: It is possible to take legal action against the general ruling of the respective federal state or municipality. However, previous lawsuits, such as the recent one by Galeria Karstadt Kaufhof, have all failed because the judges gave priority to health protection in the pandemic situation in Germany.

So retail trade is allowed to partially reopen if hygiene measures are observed? What precautions are meant by this?

Kuhn: On 16 April 2020, the Federal Ministry of Labor and Social Affairs [Bundesministerium für Arbeit und Soziales – BMAS] presented a "SARS-Cov2 Occupational Safety Standard" [Sars-Cov2-Arbeitsschutzstandard] in this context. This sets out the minimum standards for an operational concept for temporary additional measures to protection against infection. The occupational health and safety standard is supplemented by specifications of the accident insurance institution (employers' liability insurance association). Key measures include limiting the number of people per square meter, providing disinfectants, avoiding queues in front of shops and keeping a minimum distance of 1.5 meters between people. Some of these requirements are also clearly specified in the respective federal state ordinances. In Bavaria, the trader also has to draw up a protection and hygiene concept and submit it to the competent district administrative authority on request.

Are traders allowed to open even if they cannot currently buy disinfectant dispensers and liquid on the market? And if they are unable to obtain material for partitions in front of the checkout area?

Kuhn: The hygiene standards must be observed. This is ultimately a tough target, but the business otherwise has to remain closed. Partitions at the checkout area are a recommendation, but are not mandatory as long as an effective protection of employees and customers can be ensured by other means.

There is a "requirement" to wear mouth and nose masks in a shop. What does that mean in the legal sense? Does the trader himself have to stock masks?

Dohrn: The "requirement" in the decision reached by the Federal Government and the federal states is as such no more than an urgent recommendation and is therefore not legally binding. As long as there is no mask obligation at federal state and municipal level, our opinion at present is that no stocks of masks need to be kept. This is currently the case in most federal states.

However, a nationwide obligation to wear masks is already being discussed. In addition, some individual federal states and municipalities already have stricter requirements. In Jena and Hanau a mask obligation exists for retail trade. Saxony is also making the wearing of protective masks compulsory for retail trade as of 20 April. In Bavaria, the wearing of masks by customers and staff is envisaged as a so-called "should" provision in the Corona Ordinance. This could well be interpreted by the local regulatory authorities as a mask obligation. In federal states and municipalities with a mask obligation, traders should stock masks. In this case, employees are naturally also obliged to wear masks. Isolated violations of the mask obligation and other hygiene requirements are usually initially punished by the local regulatory authorities with a disciplinary fine. However, repeated violations can quickly lead to closure.

Is the mask requirement only for customers or also for sales staff? Can the trader/sales staff demand that "unmasked" people stay outside?

Dohrn: The voluntary mask requirement and certainly the mask obligation applies to everyone. Since the trader has a domiciliary right, he can also decide whether "unmasked" people should stay outside. In federal states and municipalities with a mask obligation, the refusal of access to persons not wearing masks is obligatory in any event.

Can the trader/sales staff ask a visibly ill customer to leave the shop?

Dohrn: The trader's domiciliary right allows him to expel persons from the shop at any time. Especially in the current situation, visibly ill persons can therefore be expelled from the shop. Printed notices in this respect are also available on the internet sites of the German Employers’ Liability Insurance Association for the Retail and Goods Distribution Industry [Berufsgenossenschaft für Handel und Warenlogistik - BGHW].

Are there specific rules on access restrictions for customers in a shop (how many customers per square meter of sales area?) or is this left to the trader's discretion?

Kuhn: This is clearly regulated in the federal state ordinances. At present, most federal states stipulate that one person is allowed per ten square meters. In Bavaria, Saxony and Hesse, on the other hand, there is a rule that no more than one person per 20 square meters may be in the shop.

The operators of the après-ski bars in Ischgl are being inundated with law suits from corona victims. How can traders protect themselves from being sued by their customers for similar constellations?

Kuhn: We currently consider the risk of such lawsuits to be low. If the trader complies with the respective requirements of the federal states and municipalities, then he has no reason to fear legal action.

What options are open to traders who have to remain closed in order for them to be allowed to continue their stationary trade? For example, are they allowed to pass merchandise through a door to the outside? Or to bring articles to the customer's door themselves?

Dohrn: If the shop is closed, only shipping by mail or (bicycle) courier can come into consideration. In some federal states, such as NRW, the collection of ordered goods by customers is only permitted in individual cases if it can take place without contact and in compliance with protective measures. One of the specific purposes of closing a shop is to prevent queues from forming at its door. This requirement would not be met if goods could be passed through the door.

What are the most pressing issues in the retail trade at present that are reaching you at your law firm?

Kuhn: The most pressing issues are compliance with health and safety regulations, questions about returning from short-time work and how to deal with rent payments.

Where can traders who fear for their existence find information?

Dohrn: On our law firm's homepage (www.oppenhoff.eu/de/recht-aktuell/articles/corona-taskforce.html) we have transparently presented all relevant questions and answers connected with the corona crisis. There, you will find information on financial support from the Federal Government and federal states, on personnel issues or matters of insolvency law. Useful information can also be found on the website of the German Trade Association [Handelsverband Deutschland] (https://einzelhandel.de/coronavirus).

One last question: How has the corona crisis changed your work as a lawyer?

Our legal work has not really changed that much as a result of the corona crisis. Most of our colleagues in the firm are currently still working from their home offices. However, this does not affect our work, because we are also available from home without restriction by telephone, e-mail or video chat for both our clients and our colleagues. In addition, our colleagues in the mail room at the office are holding the fort, ensuring that incoming faxes or letters reach their recipients on time. However, we do already miss the personal contact with clients and colleagues and this is something you cannot really replace by

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Dr. Daniel Dohrn

Dr. Daniel Dohrn

PartnerAttorney

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 221 2091 441
F +49 221 2091 333

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Jörn Kuhn

Jörn Kuhn

Bockenheimer Landstraße 2-4
60306 Frankfurt am Main
T +49 69 707968 140
F +49 69 707968 111

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