As expected, the sanitary crisis that is being suffered at a global level due to the spread of COVID-19, that has left our country in “stand-by” due to confinement obligations, is leading to a major economic crisis, the consequences of which remain largely unknown.
It is obvious that the economic and social repercussions derived from this situation will become visible far after the health crisis is over, and therefore it is essential to implement measures that will minimize the consequences on our productive capacities and our social well-being.
Precisely with the aim of reducing the harmful effects of this situation, our Government has approved a new proposal of exceptional and urgent measures that complement those already adopted by Law 3/2020, of March 23, and provide mechanisms of assistance in labor, social security, leases and bank credit instruments, and tax matters, as well as measures in relation to the financial sector and suspension of procedural and administrative deadlines, time-lapse and expiration.
The new measures have been approved last Saturday, April 18 under the title of “Bill of Law for new exceptional and urgent measures due to the health emergency situation caused by the SARS-CoV-2 pandemic” that is being processed under the emergency procedure.
The main measures provided for in this new Bill of Law are detailed below, which are provisional measures that will be applied once the approval procedure of the Law is completed and the Law is published in the BOPA (Andorran Official Bulletin). It is expected that its entry into force will be on May 1 and that it will remain in force until the Government declares by decree the end of the health crisis and, in any case until next December 31, 2020 at the latest:
I. Labour law measures
a) Continuity of the employment contracts:
– Companies aimed by the obligation to suspend their activity or who have voluntarily suspended it, as well as those that are subject to a guard or permanence service:
- Are obliged to satisfy 100% of the fix salary agreed upon, except in the cases of employees that have been fired, those submitted to the temporary suspension of their employment contract or reduction of the working day pursuant to the applicable terms.
- They cannot invoke a suspension of the employment contracts due to unforeseen circumstances or force majeure.
- Until the Government does not declare the end of the health emergency and during the following 14 calendar days, the required prior notice for modifying the working hours of employees, as regulated in articles 54, 55 and 59 of Law 31/2018 of Labor Relations, does not apply.
- The company can change the functions of the employee without leading to a salary reduction.
- Workers in fields of activities that are open and authorized to open by Government decree, with children under 14 years of age or with disabilities, may be absent from their workplace to take care of their children, if the established conditions are fulfilled.
- The company must consider 50% of the hours not worked and paid for as a “paid leave”.
– To mitigate the economic effects of the obligations detailed above, the following rules apply:
- Compensating the other 50% of the time not worked and paid for with effective work of the employee through the following mechanisms and in the following order:
1st – With extraordinary hours worked and work performed during calendar holidays already accrued in favor of the worker and in accordance with the conditions of article 58.2 of Law 31/2018 on Labor Relations, without the need for an agreement between the parties or any consent from the employee.
2nd – When the provisions of the previous section are not sufficient, compensation will be done with extraordinary hours and work to be performed in the future, pursuant to an agreement between the parties in writing (under certain requirements and conditions); the increase provided for at article 58.2 of Law 31/2018 on Labor Relations is not applied.
3rd – With vacations/holidays up to a maximum of 50% of the annual vacations. If the employee is left with less than 21 calendar days or 16 business days, the worker may choose to complete their vacation in deduction of those generated in 2021 or without remuneration, at the choice of the employee.
4th – When the previous provisions are not sufficient to compensate the debt of hours by the worker, the company without obligation to negotiate may apply a compensation on future work (under certain requirements and conditions); the increase provided for at article 58.2 of Law 31/2018 on Labor Relations is not applied.
In the event an employee is fired, the amounts corresponding to the hours accumulated in favor of the employer, may not be deducted from the liquidation except in the case of disciplinary dismissal or voluntary departure from the company (provided that this does not originate from a breach of the employer’s obligations).
- Hours of work not performed by employees in the sectors of activities open and authorized to open by Government decree (the activity of which has not been subject to suspension) who have children under 14 and / or disabled and who remain at home to take care of them, will be compensated by the Government through measures that will be established by Regulation, the maximum amount being that of the interprofessional minimum wage.
b) Temporal suspension of labor contracts and reduction of work hours:
- These measures can be applied to employees registered prior to the declaration by the Government of the situation of emergency and those working on their own account who have started the activity prior to the aforementioned declaration, provided that they are not company administrators, except if they are professionals who effectively carry out their activity through the company of which they are administrators.
- They will be applicable for the period starting on May 1, 2020 and up to 180 calendar days after the day on which the Government declares the end of the situation of emergency and in any case ending on December 31, 2020, at the latest.
- The companies benefiting from this measure must cumulatively meet the following requirements:
- Company legally established in Andorra.
- Having been obliged to suspend their activity by decree, or voluntarily or are subject to a regime of guards or permanence.
- That they are open and authorized to open by the Government but demonstrate a decrease in turnover equal to or greater than 50% (comparing the period from 01/04/20 to 30/04/20 with the same period of the immediately previous year or in the case of companies not incorporated during said period, with the period between 01/02/20 and 29/02/20).
- Or that, despite not demonstrating the indicated decrease, they justify that the reduction in revenue has been of such a high volume that it puts in danger the viability of the company (subject to the prior consent of the Ministry responsible for labor matters).
- That they do not have debts with the public Administration (with certain exceptions) and provided they have paid the wages of their employees for at least the months of March and April 2020.
- Company legally established in Andorra.
These measures are not applicable to companies that only carry out their activity during the winter season.
- The modalities of application are as follows:
- Temporary suspension of employment contracts.
- Reduction of work hours not exceeding 75% of the total work hours.
- The two previous proportional and / or cumulative modalities depending on the needs of the company and the employees.
- Temporary suspension of employment contracts.
- The different modalities foreseen above will generate an economical compensation in favor of the employee.
- The amount paid to the employee that is submitted to a suspension of the employment contract and / or reduction of the work hours will be paid by the company and by the Government at a rate of 25% and 75% respectively.
- The company must also bear the cost of the employer’s part of the contribution to the general branch (7%) in the same percentages as the compensation paid to the employee.
- And retain the part corresponding to the employee of 6.5%.
- These benefits are not taken into consideration for the retirement branch with respect to the employer’s part.
- The amount paid to the employee that is submitted to a suspension of the employment contract and / or reduction of the work hours will be paid by the company and by the Government at a rate of 25% and 75% respectively.
- If the company cannot face these obligations due to financial difficulties, it can be financed through a credit program at 0 interest.
- A financial compensation is provided for those who carry out an activity on their own account (“per compte propi”):
- When they have had to suspend their activity by decree, voluntarily or the activity is subject to a guard or permanence regime.
- The benefits are subject to the fulfillment of certain requirements and will be calculated based on the price corresponding to the month of February 2020. So, if a rate of 25% is paid at the CASS, the corresponding benefit will be € 541.67 and if a rate of 50%, 62.5%, 75% and 100% is paid the benefit will be € 1,083.33.
- Company administrators are excluded from these measures unless they are professionals who effectively carry out their activity through the company of which they are administrators.
- The Government bears the payment to the CASS of 10% contribution to the general branch.
- These benefits are not taken into consideration for the retirement branch.
- When they have had to suspend their activity by decree, voluntarily or the activity is subject to a guard or permanence regime.
- The employees submitted to a reduction of the work hours cannot make overtime or work in compensation for the time not worked during the suspension of the activity while the mentioned reduction lasts.
- From the day the employment contract is temporarily suspended or the workday is reduced, the compensation rules established for the time not worked cannot be applied.
- Employees who have been submitted to a suspension of their employment contract or reduction of work time, and all employees of the same professional category not concerned by this suspension, cannot perform extraordinary work hours.
- The periods of suspension of the contract and reduction of the working day are not taken into consideration for the purposes of compensation for non- causal dismissal, prior notice when applicable and compensation for unjustified dismissal, pursuant to Law 31/2008 on Labor Relations.
- The periods of suspension of the labor contract and reduction of the working hours are taken into consideration for the calculation of seniority in the company, but do not generate the right to paid vacations.
- The periods of temporary suspension of contracts and reduction of working hours do not count in order to fulfill the requirement of permanent and effective work required to renew immigration authorizations.
II. Social security measures
- Financial benefits for temporary disability (under certain conditions) for people who carry out an activity on their own (“compte propi”) and who have been diagnosed with SARS-CoV-2 who do not have a private insurance that guarantees them a substitute benefit in the event of sickness, illness or accident at work.
- Possibility of reducing the amount paid at the CASS for people who carry out an activity on their own account if they face a significant reduction in their economic activity. This procedure is carried out online on the web http://www.cass.ad and is already active as of the entry into force of Law 3/2020 of March 23. It is not necessary to have the digital certificate as data to identify the user is required.
- Possibility of temporary suspension of the fee paid at the CASS for those with an activity for their own account while the suspension of economic activity lasts. This procedure is carried out online on the web http://www.cass.ad and is already active as of the entry into force of Law 3/2020 of March 23. It is not necessary to have the digital certificate, as data to identify the user is required.
- Financing of the employer’s part of the contribution to the CASS regarding the wages of employees who have had to temporarily stop working due to the health emergency situation, provided they are employees registered before March 15, 2020 and who are not submitted to a suspension of the employment contract or a reduction of the working day. This request must be made using a form provided by the CASS http://www.cass.ad attaching the supporting documentation required.
This measure will be incompatible with those previously provided for by the Government’s contributions to the CASS in the event of temporary suspension of employment contracts and reduction of working hours.
- The measure currently in force is different given that it provides for the possibility of financing the employer’s part of the contribution at the CASS of employees’ wages for companies that have suspended their activity. This procedure is carried out online on the web http://www.cass.ad and is already active as of the entry into force of Law 3/2020 of March 23. It is not necessary to have the digital certificate, as data to identify the user is required.
- Possibility, for the Administrators of companies in which they undertake their activity to continue to benefit from the temporary suspension of the contribution paid to the CASS as a person who carries out an activity on their own behalf, as long as the compulsory suspension, or the guard or permanence regime, continues to be in force.
III. Lease measures and measures regarding bank credit instruments
- Financing of companies’ operating expenses through credits guaranteed by the Government (See Decree of 24 March 2020 approving an extraordinary program of guarantees for businesses due to the sanitary emergency caused by the SARS-CoV-2 coronavirus).
- Reduction of the rent of business premises, measures currently in force:
– 100% reduction for businesses that have completely suspended their activity– 80% reduction for businesses that have suspended their activity, but maintain a guard service.
– 50% reduction for businesses that must remain open.
- Reduction of the rent of business premises, measures provided for by the new bill of Law:
-100% reduction for businesses that have suspended their activity both on a compulsory basis and voluntarily and for activities subject to a guard or permanence regime set out by Government decree.– 80% reduction for businesses corresponding to open activities and authorized to open by government decree.
- Once the compulsory suspension of the activity or the guard and permanence regime cease to be in force, it is expected that the applicable rent will be adjusted as follows:
In the case of businesses that have suspended their activity both by mandatory government decree and voluntarily:
– 100% reduction the first month or fraction
– 50% the second month
– 25% the third month
-Full contractual rent in force to be paid from the fourth month
In the case of businesses corresponding to activities subject to a guard or permanence regime by government decree:
– 80% reduction the first month or fraction
– 40% the second month
– Full contractual income in force to be paid from the third month
In the case of businesses corresponding to open activities and authorized to open by Government decree:
– 50% reduction the first month or fraction
– Full contractual income in force to be paid from the second month
- Companies that only carry out their activity during the winter season will not be able to take advantage of any of these rent reductions.
- Reduction of the prior notice period to terminate the rental contract for business premises during the period between 14/03/2020 and 31/12/2020. If the tenant does not fulfill this obligation, he must indemnify the landlord with half a monthly payment of the contractual rent.
- Can request a reduction of 20% of the rent regarding the lease of their house:
- Employees submitted to a temporary suspension of their labor contract or the reduction of their working day.
- Employees who have been fired as a consequence of the health emergency situation caused by the SARS-CoV-2, while they are out of work and receive financial aid for involuntary unemployment.
- Those who carry out an activity for their own account that have been suspended, either on a compulsory basis by Government decree or voluntarily, or that is subject to a guard or permanence regime while the measures remain in force.
- Employees submitted to a temporary suspension of their labor contract or the reduction of their working day.
- Possibility of requesting a delay regarding mortgage loan or personal loan installments, or a postponement of the amortization period of mortgage loans (under certain conditions) for people who carry out an activity on their own account that have been suspended in a compulsory manner by Government decree, or that is subject to a guard or permanence regime while the measures remain in force.
IV. Tax measures
- Postponement and fractioning of the tax debt for those who are not in a position to face the payment, upon request:
– Although the tax debt corresponds to withholdings, account payments or penalties.– The postponement and / or fractioning will not lead to any interest.
- New deadline for payment of the Tax on the Registry of Holders of Economic Activities beyond 30/06/2020.
- Account payment of Corporate tax (IS) for the Tax periods started between 01/07/2019 and 31/05/2020, at 20% on the settlement fee of the previous year instead of 50%.
- Fractional payment of the personal income tax corresponding to the tax period started on 01/01/2020, at 20% on the settlement fee of the previous tax period.
- Those that have rented business premises, the reduction of the tax base of the IGI (indirect tax), IS, IRNR (income tax of non-residents) and IRPF is foreseen for uncollected rents.
- Suspension of procedural deadlines (with a series of exceptions) for all Courts with effect from March 14, 2020 until the end of the situation of emergency is declared. The days included in this period are not counted for procedural purposes.
- Suspension of administrative deadlines (with a series of exceptions) to process all kinds of files and to fulfill obligations of any nature in all public administrations with effect from March 14, 2020 until the end of the emergency situation considering the days included in this period as non- working days for the purposes of the procedure.
- Suspension of time-lapse deadlines.
IMPORTANT OBSERVATIONS
- In order to protect jobs, the granting of public financial aid is conditional on the protection of the jobs by the company under the current law. Companies that have dismissed employees as of 14 March 2020 will not have access to these aids unless the dismissals are disciplinary or with a seasonal contract with a completion period prior to 01 May 2020.
The new bill of Law treats this limitation in a different way, stating that the granting of public financial aid may be conditioned by the protection of jobs by the company, in the terms established by Government decree. This subsection of the new text should lead us to assess that, even in cases where the provisions of the preceding paragraph are not respected, the aid referred to in this document may be accessed. Even so, as a matter of prudence, and considering that the wording does not specify the conditions, from Augé Legal & Fiscal we recommend complying scrupulously with the provisions cited regarding the dismissals.
- The measures summarized above, with the exception of those expressly indicated and those already approved by Law 3/2020 of March 23, are pending completion of their approval procedure and the corresponding publication of the Law in the BOPA, so they must be addressed in consequence as a guideline information until the final normative text is available.
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