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Legal Newsletter December 2021

What will the new EU Regulation on electronic identification and services bring?

The ambition of the proposal is to allow at least 80% of EU citizens to identify themselves through a digital "Wallet". This will be issued by all Member States, and it should take the form of an application for mobile phones, tablets, and computers. The primary function of the application will be to verify an individual’s identity when dealing with public administrations, similarly to what is already partly possible today through a bank identity or a data box, except that the wallet will also work in other Member States. If the user so wishes, the wallet will also contain other uploaded documents, such as a driving licence or an insurance card, which can also be used physically in an offline environment.

Another feature is the possibility to create a qualified electronic signature of highest level (i.e. the legal equivalent of a handwritten "certified" signature), again applicable and valid in all Member States. This should prevent situations where an electronically signed document created under the rules of one Member State cannot be used in another Member State.

At present, the proposal is not yet approved. If it passes, within two years we should no longer need to carry a wallet with plastic cards, and we should be able to sign all contracts and other documents electronically from anywhere without any other requirements.


Employers' obligations in relation to coronavirus

Effective on 29 November 2021, the Ministry of Health has ordered employers to test employees at least once a week with antigen tests. The obligation can also be fulfilled by conducting the test in a laboratory or medical facility. Mandatory testing does not apply to employees who are fully vaccinated, had COVID-19 less than 180 days ago, had another test within the applicable time period, or do not encounter any third parties at work (not even other employees).

Exempt employees must demonstrate to the employer the prerequisites for claiming the exemption. For example, a certificate from the so-called “Tečka” application or “Covidpass” are sufficient for this purpose. Other employees have to be tested. If they refuse, the employer must notify the health authority, and these employees must also wear a respirator at all times in the workplace and keep a distance of 1.5m from other employees. It should be stressed here that it is not only the employer's obligation to test, but it is also the employee’s obligation to be tested. Therefore, in cases where an employee is unable to work at all because he/she refuses to be tested and for objective reasons it is not possible to work with the respirator on or at the indicated distances, the absence is considered “an obstacle to work on the employee’s part”.

The employer must keep a record of the tests carried out, recording the dates of testing and the names of the persons tested. In the event of a positive antigen test result, the employee must leave the workplace immediately and inform his/her physician. The latter shall issue a request for a follow-up PCR test. Until getting the test result the employee is not allowed work, while the absence is considered “an obstacle to work on the employer’s part”. Therefore, for this absence the employee is entitled to a wage compensation corresponding to his/her average earnings.

We are monitoring the current measures and are ready to assist to employers in setting up a corresponding regime.


How to protect ourselves against inflation from a contractual perspective?

Unexpected changes in input prices due to inflation or other extraordinary fluctuations can be defended against by including an inflation or price clause in the contract. An inflation clause is a provision in a contract that links an increase in a recurring payment (e.g., rent, wages, service charges) to the value of inflation, while a price clause links an increase in payment to a change in the price of a particular commodity. In both cases, if the clause is set up correctly, prices can be increased unilaterally. They make price increases more predictable for the buyer, and they represent a reduced risk of revenue erosion for the supplier.

After years of relative price stability, when these clauses were not essential for the parties, it is now necessary to pay more attention to their setting. The most frequent case where inflation clauses are used in contracts is in lease agreements. However, clauses can be used in all contracts under which there will be recurring payments.

Neither inflation nor price clauses are generally regulated by any legislation. When concluding a contract, particular care must be taken to ensure that they are sufficiently specific. The clause should therefore be linked to a clear and verifiable indication of inflation or price increases. In the case of inappropriately set price clauses, the other party may require, for example, disclosure of input costs, which may not be appropriate in a competitive environment. At the same time, a time limit should also be agreed by which the inflation clause can be invoked. It may also be crucial whether the price is increased from the originally agreed price or whether the price increased in the previous year is already included in the calculation. Poorly drafted clauses can unfortunately lead to protracted disputes.

Our law firm is fully at your disposal to deal with inflation and other price fluctuations in your business.