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Legal Update – April 2022
Some of the pieces of legislation that were published in the Official Journal of Romania during April 2022 include general interest information, as follows:
I. MEDICAL LEAVE FOR CARING FOR A QUARANTINED OR ISOLATED CHILD
Law No 73/2022 amending the Government Emergency Ordinance No 158/2005 on leaves and health social insurance allowances was published in the Official Journal of Romania No 315 on 31st of March 2022.
• If a child was quarantined or isolated according to the provisions of Law 136/2020, the insured which are not placed under quarantine or isolation are entitled to a medical leave and an allowance for monitoring and caring for the child aged under 18.
How can the allowance be obtained?
• Based on the certificate of medical leave issued by the attending physician or by the family physician, as applicable, who recorded and monitored these persons, for a period determined depending on the progress of the illness and the duration of monitoring.
For how long is the allowance offered?
• The duration corresponds to the number of calendar days of the medical leave, as determined by the attending physician or by the family physician, as applicable.
II. CHANGES IN THE COPYRIGHT LAW
Law No 69/2022, published in the Official Journal of Romania No 321, amends and supplements Law No 8/1996 on the copyright and the related rights.
What does Law 69/2022 provide for?
• There is a new definition, according to which the supplier of an online service for content sharing is “the supplier of a service of the informational society, the main purpose of which or one of the main purposes of which is to store and offer to the public the access to a significant amount of works protected by copyrights or to other protected items, uploaded by the users, which it organizes and promotes directly or indirectly, such as, by using targeted promotion means, for profit-making purposes”.
• There are two new categories which may not benefit from the legal protection offered to the copyright, that is:
– The photos taken of letters, documents, papers or any kind, technical sketches and the like;
– The materials resulting from the reproduction of a visual work of art, the protection period of which elapsed, unless the material resulting from the reproduction is an original, that is, it represents an author’s own intellectual creation.
• It is also considered that a protected work or other item is outside the commercial circuit whenever one may, in good faith, presume that the entire protected work or the entire protected item is not available to the public via the usual commercial channels, after reasonable efforts were made to determine whether it is available to the public or not.
• The research organizations and the institutions dedicated to the preservation of cultural patrimony are permitted to reproduce and retrieve text and data from protected works or other protected items, which they have access to according to the law, for scientific purposes.
III. EXEMPTIONS FROM PAYMENT OF THE VIGNETTE
According to the Government Emergency Ordinance No 34/2022, published in the Official Journal of Romania No 323, vehicles who perform transports on the territory of Romania or transit Romania for civil protection missions or humanitarian mission purposes are exempted from payment of the vignette applicable in Romania.
How does this exemption apply?
In this respect, an application shall be filed with the National Company for Administration of the Road Infrastructure S.A., by the Ministry of the Interior, via the Department for Emergency Situations.
The Department for Emergency Situations attached to the Ministry of the Interior shall require the National Company for Administration of the Road Infrastructure S.A., within at least one (1) business day, or as soon as it receives the application, to issue free of charge vignettes.
The application must include as list of the vehicles’ number plates, accompanied by copies of their registration certificates as well as the period for which transports shall be carried through Romania.
IV. THE NEW REFERENCE INTEREST RATE OR THE NBR IS 3% PER YEAR
According to NBR Order No 7/2002 published in the Official Journal of Romania No 336/2022, effective as of the 6th of April, 2022, the reference interest rate of the National Bank of Romania is 3.00% per year.
V. PROCEDURE FOR CONTROL ON COMPLIANCE WITH THE LEGAL PROVISIONS UPON ISSUANCE OF URBANISM CERTIFICATES
Order No 310/2022 approving the state’s control procedures on compliance with the legal provisions upon issuance of urbanism certificates, building/demolition permits and upon approval and endorsement of urbanism documentations was published in the Official Journal of Romania No 337/2022.
This Order sets forth a new control procedure available to the state as regards compliance with the legal provisions upon issuance of urbanism certificates, building/demolition permits and upon approval and endorsement of urbanism documentations and repeals Order No 456/2014 of the minister of regional development and public administration.
VI. BURNING ANY KIND OF WASTE REPRESENTS A CRIME
Government Emergency Ordinance No 38/2022 was published in the Official Journal of Romania No 344 on 7th of March, 2022. It amends and supplements some provisions regarding the efficient waste management.
• It is forbidden to set fire to any kind of wastes and/or substances or objects;
• The burying of any kind of wastes is strictly forbidden;
• The following crimes are introduced, which are punished with imprisonment from 3 to 5 years or a fine:
– The burning of any kind of waste and/or substance or object;
– The burying of wastes;
– The disposal of wastes outside the authorized places.
VII. RO E-TRANSPORT – A NATIONAL SYSTEM IS IMPLEMENTED FOR MONITORING OF ROAD TRANSPORTATION OF HIGH TAX RISK GOODS
Government Emergency Ordinance No 41 was published in the Official Journal of Romania No 356 of 11th of April, 2022. It provides for the creation of a national system for monitoring of road transportation of high tax risks goods, hereinafter referred to as the RO e-Transport System.
What is the RO e-Transport System intended for?
The system is intended to monitor the transport of goods with a high tax risk on the territory of Romania.
Which are the goods with a high tax risk?
The goods for the sale of which there is a high risk of fraud and tax evasion (for instance, vegetables, fruits, roots and tubercula, alcohol, clothing etc.).
These goods are listed in the Annex to Order No 12/2022 of 6th of January 2022, issued by the chairman of the National Agency for Tax Administration.
How is monitoring going to be performed?
Users are under the obligation to provide the carrier operator with the UIT code corresponding to the carried goods, directly or via the carrier’s organizer, as appropriate, the latest on the presentation of the vehicle at the border point of entrance to Romania or at the import place, or at the time the vehicle starts moving, as appropriate.
Who are the users and what does UIT code mean?
The users are defined in Government Emergency Ordinance No 41/2022, as follows:
• The addressee written down in the import declaration or the sender written down in the export declaration, as appropriate, in case of goods with a high tax risk which are subject to import or export operations, as applicable;
• The beneficiary in Romania, in case of intra-community purchases of goods with a high tax risk;
• The supplier in Romania, in case of domestic transactions or intra-community deliveries of goods with a high tax risk, as applicable;
• The depository, in case of goods with a high tax risk which are subject to intra-community transactions in transit, both in respect of goods unloaded on the territory of Romania for storage purposes or for the formation of a new transport comprised of one or more groups of goods, and in respect of goods unloaded after storage or after formation of a new transport on the territory of Romania, comprised of one of more groups of goods.
The UIT code is
• The unique code generated by the RO e-Transport System which allows verification of the goods corresponding to each commercial relation which forms the subject matter of the carriage of goods with high tax risk.
Is it mandatory to sign the transports in the RO e-Transport System?
• Effective as of the 1st of July 2022, it shall be mandatory to sign all transports in the RO e-Transport System.
VIII. NEW RULES REGARDING THE UNFAIR COMMERCIAL PRACTICES BETWEEN ENTEPRISES WITHIN THE SUPPLY CHAIN
Law No 81/2022 was published in the Official Journal of Romania No 363 of 12th of April 2022. It sets out new rules for the commercial relations between suppliers and purchasers within the supply chain, as regards the unfair commercial practices used for the sale of agricultural and/or food products.
What does Law 81/2022 provide for?
• The purchaser is forbidden, inter alia:
– To unilaterally amend the clauses of a commercial agreement for agricultural and/or food products in terms of the frequency, method, place, schedule or volume of supply or delivery of agricultural and foods products, the quality standards, the payment terms and conditions, the prices or the supply of services;
– To threaten to or to commercially retaliate against the supplier, in the event that the supplier exerts its rights under the law or the contract, including by notifying the law implementing authorities or by cooperating with the law implementing authorities during a thorough investigation;
– To remit to the supplier the agricultural and/or food products remaining unsold;
– To delist, to threaten to delist or withdraw from exposure one or several agricultural and/or food products, in order to force the supplier into or retaliate against the supplier in order to cause it to accept some contractual clauses which are not favorable to it.
What are the penalties?
• These unfair commercial practices are considered an offence unless they were committed so as to be considered crimes according to the criminal law and the applicable fines may be up to 600,000 Lei.
IX. PRICE ADJUSTMENT FOR PUBLIC PROCUREMENT CONTRACTS
Government Emergency Ordinance No 47 (“GEO 47”) was published in the Official Journal of Romania on the 15th of April, 2022, and it adjusts the prices under the public procurement contracts/sectoral contracts/concession agreements/framework agreements.
What is the purpose of GEO 47?
• Whereas the construction market was impacted by the accelerated increase in the price of construction materials, which also impacted other elements of the costs for public investments, such as: the international increase in prices of electricity and natural gas, of fuels, of the transport of commodities, GEO 47 was adopted so as to allow the adjustment of the prices of contracts.
What categories of contracts are subject to GEO 47?
• The following categories of contracts ongoing on the effective date of GEO 47 are subject to the provisions thereof:
– Public procurement contracts/sectoral contracts/concession agreements/works framework agreements, including those signed before Law No 98/2016, Law No 99/2016 and Law No 100/2016 became effective;
– Public procurement contracts/sectoral contracts/products framework agreements for:
* Technological and functional devices and equipment/plants necessary for commissioning and/or specific equipping and endowing of investment objectives/investment projects/maintenance works and current repairs/capital repair works, depending on their predetermined function, or strictly necessary for the execution of works in connection with one of the activities referred to in Annex 1 to Law No 98/2016, Law No 99/2016 and Law No 100/2016;
* The acquisition of accessories and/or technological and functional plant and equipment as well as the acquisition of products dedicated to the execution of maintenance/repair/administration/operation works for national, county or local interest roads, if the acquisition is made via a distinct contract;
– Public procurement contracts/sectoral contracts/services framework agreements for the performance of feasibility studies and/or technical projects, which include a geotechnical investigation component for the foundation land by drilling/testing for the national transport infrastructure;
– Public procurement contracts/sectoral contracts/concession agreements/framework agreements for design works/products/services for national interest transport infrastructure in respect of which the awarding procedures or the direct procurement procedures are ongoing on the date the GEO 47 became effective.
How does the price adjustment procedure work?
• Within forty-five (45) days from the effective date of GEO 47, contractors may notify the contracting authorities/entities requiring them to adjust the price for the remaining works/services/products to be executed/provided, as existing on the effective date of the ordinance, by applying the computation formula specified and by signing an addendum to the contract.
• The contracting authorities/entities are under the obligation to initiate the legal actions necessary no later than forty-five (45) days from expiration of the deadline for submission of the application.
X. CHANGES IN THE LAW ON MONEY LAUNDERING PREVENTION AND CONTROL
Government Emergency Ordinance No 53/2022 was published in the Official Journal of Romania No 394/2022. It amends Law No 129/2019 on prevention and control of money laundering and financing of terrorism.
• The reporting entities referred to in article 5(1)(g)-(k) of Law 129/2019 are under the obligation to notify the National Office for Prevention and Control of Money Laundering – solely by electronic means – of the commencement, suspension or termination of the activities that fall under the scope of application of this law, within fifteen (15) days from the date when the activities were commenced, suspended or terminated.
What are the reporting entities concerned?
• According to article 5(1)(g)-(k) of Law 129/2019, the following are reporting entities:
– The suppliers of services for companies or trusts, other than the ones referred to in (e) and (f);
– The suppliers of services of exchange between virtual coins and fiduciary coins;
– The suppliers of digital wallets;
– The real estate agents and developers, also whenever they act as agents in the lease of real estate properties (only for transactions for which the monthly rent is the Lei equivalent of Euro 10,000 or more);
– Other persons who, in their capacity as professionals, sell goods (only for transactions in cash the minimum limit of which is the Lei equivalent of Euro 10,000);
– The persons who sell works of art or act as agents in the sale of work of arts, also whenever this activity is carried out by art galleries and auction houses (only if the price of a transaction or series of transactions is the Lei equivalent of Euro 10,000 or more);
– The persons who store or sell works of art or act as agents in the sale of works of art, when this activity is carried out in free zones (only if the price of a transaction or series of transactions is the Lei equivalent of Euro 10,000 or more).
What form must the notification have?
• The form and contents of the notification shall be set out in an Order of the chairman of the Office, no later than thirty (30) days from the effective date of the ordinance.
What penalties can be applied?
• The failure to comply with this obligation is an offence that may be punished with a warning or a fine of 5,000 up to 10,000 Lei.
XI. CHANGES IN THE SECTORAL PROCUREMENT LAW
Government Emergency Ordinance No 55/2022 was published in the Official Journal of Romania No 393. It supplements Law No 99/2016 on sectoral procurement.
• The contracting entity is entitled to revert to the negotiation procedure without first sending an invitation to the competitive bidding procedure for the purposes of awarding sectoral contracts the subject matter of which consists in the execution of the remaining works for execution and development of electricity production facilities, if they represent less than 40% of the physical stage of the investment objective.
XII. CHANGES IN THE COMPETENCE TO SETTLE THE COMPLAINTS AGAINST THE CONTRAVENTION REPORT
As of the 24th of April 2022, new provisions are applicable in terms of the competence to settle the complaints filed against the contravention reports.
• Law No 107/2022 provides that complaints are submitted to and are ruled upon either by the district court in the jurisdiction of which the contravention was committed, or by the district court in the territorial jurisdiction of which is located the domicile or corporate seat of the offender.