By: Alina Moldovan, Cosmin Șovar and Ana Zagor
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Legal Update – January 2022
Among others, the following pieces of legislation were published in the Official Journal of Romania, Part I, during January 2022. They include general interest information, as follows:
I. THE DECLARATION REGARDING THE BENEFICIAL OWNER IS NO LONGER TO BE SUBMITTED ANNUALLY
Law No 315/2021 which removes the obligation to submit annually the declaration regarding the beneficial owner (“UBO declaration”) is effective as of January 1st, 2022.
When is it mandatory to submit a declaration regarding the beneficial owner?
Whenever a new company is registered in the registrar of companies;
Whenever a change occurs in respect of the identity of the beneficial owner.
What happens with the corporate entities incorporated before January 1st, 2022?
If they already submitted the UBO declaration they are no longer bound to submit a new declaration, unless a change occurred in respect of the identity of those beneficial owners.
Are there any situations in which the yearly obligation to submit the declaration regarding the beneficial owner still persists?
Exceptionally, for the corporate entities whose shareholding includes entities established in and/or whose tax residence is in tax-reluctant jurisdictions or in high risk money laundering jurisdictions.
The National Office for Prevention and Control of Money Laundering is constantly publishing on its website the updated lists of those jurisdictions.
II. LIABILITY OF THE SELLER OF GOODS AND ASSETS WITH DIGITAL ELEMENTS
Government emergency Ordinance No 140/2021 on certain aspects concerning contracts for the sale of goods (“GEO 140/2021”) and Government emergency Ordinance No 141/2021 on certain aspects concerning contracts for the supply of digital content and digital services (“GEO 141/2021”) were published in the Official Journal of Romania No 1245/30.12.2021 and No 1248/30.12.2021, respectively.
GEO 140/2021 and GEO 141/2021 are mutually explanatory and inter-related as follows:
What is the subject matter of GEO 140/2021?
The legal relations between sellers and consumers in respect of the sale of any categories of movable assets, whenever they are put up for sale in a limited volume or a set quantity, as well as the sale of any assets that incorporate or are inter-connected with digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions (the so called “goods with digital elements”).
What is the subject matter of GEO 141/2021?
The contracts based on which the provider offers the consumer digital content (for instance, software) or a digital service (for instance, social media) and, in consideration thereof, the consumer (i) pays to the provider a specific price or (ii) with some exceptions, provides or undertakes to provide to the provider personal data.
GEO 141/2021 shall be applicable also to any media, such as DVDs, CDs, USB memory sticks, provided that they serve solely as media for the digital content.
Liability of the seller of assets or goods with digital elements and of the provider of digital content or digital services for lack of conformity of the goods or services
Generally, the seller of any goods, whether incorporating digital content or not, shall be held liable by the consumer for any lack of conformity existing at the time of delivery and found for a 2-year period from the date of delivery.
In particular, the seller of goods with digital content shall be liable for any lack of conformity of the digital content or digital service that becomes apparent within two (2) years for products with an average term of use of up to five (5) years and within five (5) years for products with an average term of use of more than five (5) years, respectively. In addition, the seller shall be liable for any lack of conformity all along the period when the digital content or service must be provided, if the contracts provides for a continuous supply for more than five (5) years.
The provider shall be liable for any lack of conformity which is apparent at the time of supply and which becomes apparent within five (5) years starting with the date of supply in case of contracts which provide for a single supply activity or multiple individual supply activities. In addition, when the contract provides the continuous supply for a specific period, the provider shall be liable for any lack of conformity which becomes apparent over the period when the digital content or service must be supplied according to the contract.
The seller has the obligation to repair or replace the defective product no later than fifteen (15) calendar days from the moment it was notified by the consumer of that lack of conformity. If the lack of conformity persists, the consumer is entitled to a pro-rata reduction of the price or to terminate the contract.
Any lack of conformity found within one (1) year from the date of delivery is presumed to have already apparent at the time the goods were delivered.
III. CHANGES IN THE FORM 212 “UNIQUE DECLARATION”
Order No 2127/2021 of the Chairman of the National Agency for Fiscal Administration (“OPANAF 2127/2021”) was published in the Official Journal of Romania No 10/05.01.2021, and sets forth the new Form 212 “Unique declaration regarding the profit tax and social contributions due by natural persons”.
Additional entries in the new Form 212
Natural persons who obtain income during the year from the lease of rooms in their private residence for tourism purposes are bound to calculate and declare their income.
Natural persons are bound to calculate and declare the social contributions related to the income assimilated to salaries for activities carried out abroad.
Natural persons are bound to calculate and declare their tax liabilities in connection with the allowances offered to them based on Government emergency Ordinance No 111/2021 (allowances offered to employees and other professionals to overcome the consequences of the Covid 19 pandemic).
IV. DIGITAL NOMADS MAY APPLY FOR A LONG-STAY PERMIT
Law No 22/2022 amending and supplementing Government emergency Ordinance No 194/2002 regarding the regime of foreigners in Romania was published in the Official Journal of Romania No 45 of January 14th, 2022, and introduces some measures intended to attract some categories of IT professional to work in Romania.
Who are digital nomads?
“Digital nomads” are foreigners employed based on individual employment agreements with companies established outside Romania and who offer services via the IT&C or who hold a company established outside Romania in which they provide services via the IT&C, and are capable of working as employees or carrying out the activity remotely, using the information technology and communications.
Which conditions must they meet to obtain the long-stay permit?
Digital nomads who come to Romania with an intention to live and/travel while continuing to obtain income based on the individual employment agreement with the company established outside Romania or from activities carried out through a company established outside Romania may apply for a long-term permit if they meet the following specific conditions simultaneously:
They have the living means necessary, obtained from the activity they carry out, equal to at least three times the gross average salary of Romania, for the last six (6) months before applying for the permit as well as for the entire permit stay;
They carry out remote activities generating income, using the IT&C.
V. FORESTRY PERSONNEL ASSIMILATED TO POLICE OFFICERS AND GENDARMS IN CASE OF OFFENCES
Law No 8/2002, published in the Official Journal of Romania No 20 of January 6th, 2022, amends article 257(4) of the Criminal Code which governs the offences.
The offences against forestry personnel are subject to the punishment provided for by the law for each crime, the limits of which are increased by half, just like in case of police officers and gendarmes.
VI. INSTRUCTIONS REGARDING THE PREVENTION AND CONTROL OF MONEY LAUNDERING AND FINANCING OF TERRORISM IN CASE OF GAMBLING GAMES IN ROMANIA
Order No 370/2021 approving the Instructions for prevention and control of money laundering and financing of terrorism in gambling games in Romania was published in the Official Journal of Romania No 21 of January 7th, 2022.
According to the Instructions, the suppliers of gambling games services are bound to appoint one or several officers in charge with implementation of the company’ internal policies and procedures in the matter of prevention and control of money laundering and financing of terrorism.
Which suppliers of gambling games are concerned?
Romanian corporate entities in respect of the gambling games activity carried out in Romania based on a license to organize gambling games issued by the National Office for Gambling Games.
Romanian branches of foreign corporate entities in respect of the gambling games activity carried out in Romania based on a license to organize gambling games issued by the National Office for Gambling Games.
Foreign corporate entities in respect of the gambling games activity carried out in Romania based on a license to organize gambling games issued by the National Office for Gambling Games.
VII. THE NEW REFERENCE INTEREST RATE PUBLISHED BY THE NBR IS 2.00% PER ANNUM
Decision No 1/2022, published in the Official Journal of Romania No 29 of January 10th, 2022, refers to the reference interest rate published by the National Bank of Romania.
As of January 11th, 2022, the reference interest rate of the National Bank of Romania is 2.00% per annum.
VIII. CHANGES IN THE ADMINISTRATIVE CODE
Government emergency Ordinance No 138/2021, published in the Official Journal of Romania No 1243 of December 29th, 2021, amends and supplements Government emergency Ordinance No 57/2019 regarding the Administrative Code.
Among others, according to this GEO, the special positions, except for some positions in the defense or internal affairs departments, are eliminated and the positions of officials/servants are assimilated to specific public positions.
In addition, the inequities in the system of public servant positions are solved, such as the case of the local police officers which, according to the in force so far, had no correspondent in the local authority’s positions.