By: Alina Moldovan and Ana Zagor
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Legal Update – June 2022
Some of the pieces of legislation that were published in the Official Journal of Romania during June 2022 include general interest information, as follows:
I. THE SYNDIC JUDGE IS ENTITLED TO CONFIRM THE REORGANIZATION PLAN
In its decision No 28 dated the 9th of May 2022, published in the Official Journal of Romania No 534, the High Court of Cassation and Justice determined that the syndic judge is entitled to confirm a reorganization plan only insofar as a decision approving it was made by the creditors’ meeting.
What is the context of HCCJ’s decision?
▪ In the event that the creditors’ meeting was unable to pass a decision approving the reorganization plan or one of the proposed reorganization plans, because the quorum could not be met in the absence of creditors duly convened for at least two meetings with the same agenda, the High Court of Cassation and Justice determined that the syndic judge is not entitled to undertake the role of approving the plan, and the passive behavior of the creditors registered in the table of claim does not equal a negative vote, but it shall be considered one of the situations in which the syndic judge decides the opening of the bankruptcy proceedings against the debtor.
II. SUSPENSION OF THE RUNNING OF TIME IN RESPECT OF CRIMINAL LIABILITY
Government Emergency Ordinance No 71 of the 30th of May 2022, published in the Official Journal of Romania No 531/2022, amends and supplements Law No 283/2009 on the Criminal Code in respect of the running of time.
▪ The Constitutional court determined that the legislative solution – which provides for the suspension of the running of time in case of criminal liability on the ground that “any procedural act” was performed – is unconstitutional because it is unclear, incoherent and unpredictable, likely to create an ambiguous legal situation for the suspect or the accused in terms of its criminal liability for the acts committed.
▪ Thus, in light of the above-mentioned decision, according to Government Emergency Ordinance No 71, the running of time in respect of criminal liability is suspended if any procedural act was performed in the matter if, according to the law, it was communicated to the suspect or the accused.
III. KURZARBEIT PROGRAMME TO CONTINUE
Government emergency Ordinance No 73/2022 (“GEO 73”), published in the Official Journal of Romania No 536/2022 provides for the extension until 31st of December 2022, of the period of application of the financial support offered in case of worktime reduction, dedicated to employers and other economic agents facing the downsize of production as a result of the worldwide economic crisis.
▪ To allow companies to keep their employees in place and prevent large scale unemployment, GEO 73 provides that the 75% portion of the monthly gross basic salary corresponding to the worktime reduction shall continue to be offered to the employees impacted by the reduction of their worktime by maximum 80% of the daily, weekly or monthly worktime laid down in their individual employment agreements.
What are the conditions to be met?
– The measures should apply to at least 10% of the number of employees;
– The downsizing of the business relies on a downsize of the turnover for the previous month or at least for the month before that, by at least 10% compared to the similar month or to the monthly average of turnover during the year before the emergency/alert was declared, that is, 2019.
▪ The financial support shall be paid on the date of payment of the salary for that month, is provided by the employer and is recovered from the unemployment insurance budget.
IV. APPROVAL OF IMM PROD AND GARANT CONSTRUCT STATE AIDS
The European Commission approved the state aid schemes for SMEs, coordinated by the Ministry of Finance, that is, IMM PROD and GARANT CONSTRUCT, and the interested companies may lodge their applications for state aid with the 21 partner banks.
What is the budget for IMM PROD and GARANT CONSTRUCT?
▪ GARANT CONSTRUCT has a dedicated budget worth 495,572,822 Lei, i.e. approximately 99.11 million Euros, whereas the total threshold of guarantees for 2022 is 2.5 billion RON.
▪ IMM PROD has a dedicated budget worth 268,544,792 Lei, i.e. approximately 54.25 million Euros, whereas the total threshold of guarantees for 2022 is 1.5 billion RON.
V. INTERDICTION TO PURCHASE FERROUS MATERIALS FROM NATURAL PERSONS
Law No 166/2022, published in the Official Journal of Romania No 542 of 2022 amends the Government Emergency Ordinance No 31/2011 regarding the interdiction to purchase ferrous and non-ferrous metals as well as alloys of the same from natural persons.
What are the categories of ferrous and non-ferrous metals concerned?
– Ferrous and non-ferrous metals used in the railway, road, aviation, maritime and fluvial industries, subway transportation, public and electric land transportation or irrigation and drainage activities;
– Ferrous and non-ferrous metals used in the supply of electricity, water – sewerage, gas and heating;
– Ferrous and non-ferrous metals used in the infrastructure related to the extraction, processing, distribution, transport and sale of natural gas, oil and oil products;
– Ferrous and non-ferrous metals used in signaling and control of traffic on public roads;
– Ferrous and non-ferrous metals such as rails, railway devices components, small railway items, check-rails, fish-plates, components of traffic safety installations, signaling and telecommunication cables, components of electricity installations, components of rolling stock, traffic signaling and control signs, traffic lights, covers of manholes or components thereof and the like, snow-screens or components of metallic constructions intended to protect against blizzards, avalanches, floors or other acts of god;
– Ferrous and non-ferrous metals obtained by chemical or heat processing of composite materials, cables and conductors of any type.
▪ The purchase of such materials from natural persons is considered an offence and shall be punished by a fine worth 100,000 RON up to 150,000 RON.
VI. ELIMINATION OF AIRWORTHINESS CERTIFICATES FOR SOME AIRCRAFTS
Oder No 544/2022, governing the operation of ultra-light aircrafts in Romania was published in the Official Journal of Romania No 460/2022.
▪ Ultra-light aircrafts shall be permitted to operate in the national air space without a specific and/or airworthiness certificate, based on equivalent airworthiness documents or without any such document; however, flights must be performed according to the requirements laid down in the annexes to Order No 544.
▪ To be able to operate in the Romanian airspace, an ultra-light engine propelled aircraft must be provided with a registration certificate issued in accordance with annex 7 to the Convention on International Civil Aviation signed in Chicago on the 7th of December 1944.
VII. PERMITTING OF TAX WARHOUSES, REGISTERED ADDRESSEES, REGISTERED SENDERS AND AUTHORIZED IMPORTERS
Order No 1329/2022 setting out the procedure and conditions for the permitting of tax warehouses, registered addressees, registered senders and authorized importers was published in the Official Journal of Romania No 559/08.06.2022.
What does the Order set forth?
▪ Permits shall be issued by the regional customs authority in the jurisdiction of which the applicant has its corporate seat/domicile.
▪ Any person who intends to obtain such a permit shall lodge an application for tax warehouse, registered addressee, registered sender and authorized importer with the domestic or border customs office dedicated to excisable products in the jurisdiction of which he/she/it has its domicile/corporate seat.
▪ Large taxpayers shall lodge the application with the General Directorate of Customs of Bucharest – Permitting Office for Large Taxpayers.
VIII. PETITIONS FOR ADVISORY OPINION SHALL BE LODGED WITH THE EUROPEAN COURT OF HUMAN RIGHTS
Laws No 172 and 173 of 2022 for the ratification of the Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, adopted in Strasbourg on the 2nd of October 2013 and signed by Romania in Strasbourg on the 14th of October 2014, were published in the Official Journal of Romania No 560/2022.
What do these laws provide for?
▪ The High Court of Cassation and Justice and the Constitutional Court may revert to the European Court of Human Rights for advisory opinions on issues of principle regarding the interpretation or implementation of the rights and freedoms defined in the Convention or in the protocols thereto.
▪ The High Court of Cassation and Justice may decide on the suspension of trial until the Governmental Agent for the European Court of Human Rights provides the advisory opinion of the European Court of Human Rights, translated in Romanian.
▪ If the Constitutional Court of Romania is the one that seeks advisory opinion, the trial is lawfully suspended until the Governmental Agent for the European Court of Human Rights provides the advisory opinion of the European Court of Human Rights.
When can the advisory opinion be required?
▪ The court seeking advisory opinion may only apply for such an opinion if it is called to rule on a matter pending before it, after the 10th of June, 2022.
What does the advisory opinion qualify for?
▪ The advisory opinion is optional.
IX. REQUEST TO REUSE DOCUMENTS
Law No 179/2022 on open data and reuse of public sector information was published in the Official Journal of Romania No 277/2022.
What does the Law provide for?
▪ Any natural person or corporate entity may file with any public entity an application to reuse the documents that include any IT contents or any part thereof, irrespective of the storage form, be it on hard copy, electronically or audio, video or audio-visual recording.
What is the procedure?
▪ Any natural person or corporate entity may file an application in digital format or on hard copy, providing the identification data or the applicant, the mailing address, the documents required and the purpose for which they shall be used.
▪ The public entities shall examine the application and shall provide the applicant, using electronic means to the largest extent possible and adequate, with the documents required for reuse.
▪ Where a fee must be paid for the supply of such documents, the public entities are under the obligation to post on their websites the fee and the calculation method thereof.
X. CHANGES IN THE REGULATIONS GOVERNING THE BILLS OF EXCHANGE AND PROMISSORY NOTES
Law No 180/2022, amending and supplementing Law No 58/1934 on the bills of exchange and promissory notes was published in the Official Journal of Romania No 582/2022.
▪ Article 1(9) of Law 58/1934 is amended and shall read as follows: “the signature of the drawer means the handwritten signature of the natural person who is a drawer or of the proxy thereof, and the handwritten signature of the attorneys-in-fact or representatives of the corporate entity who is a drawer or of other categories of entities who use such instruments, as appropriate”.
▪ 2 new paragraphs are added to article 1, i.e. (10) and (11), according to which the bill of exchange shall also include:
– “10. The signature of the person accepting the bill, i.e. the drawee. The signature of the drawee means the handwritten signature of the natural person who is a drawee or of the proxy thereof, and the handwritten signature of the attorneys-in-fact or representatives of the corporate entity who is a drawee or of other categories of entities who use such instruments, as appropriate”;
– “11. The code of the drawer, that is, the unique identifier retrieved from the identification or registration documents of the drawer. The original bill of exchange is a bill of exchange issued on hard copy, bearing a handwritten signature. The image of the original bill of exchange means the electronic copy of the original bill of exchange”.
▪ A bill of exchange that misses either one of these elements, except for the place of payment, the place of issuance and the due date does not qualify for a bill of exchange.
XI. NEW PROCEDURE FOR COMMUNICATION WITH THE CENTRAL TAX BODIES
Order No 1090 approving the Procedure for communication by remote electronic communication means between the central tax body and natural persons, corporate entities and other unincorporated entities, was published in the Official Journal of Romania No 585
What does the Order provide for?
▪ The Order sets forth the procedure for communication by remote electronic communication means via the “Spatiul privat virtual” (virtual private space) between the central tax bodies and natural persons, corporate entities and other unincorporated entities.
▪ The natural persons, corporate entities and other unincorporated entities may, via “Spatiul privat virtual”, upload applications, writs or any other documents on the central tax body’s website.
XII. PENALTIES FOR SPECULATION
Government Emergency Ordinance No 84/2022 (“GEO 84”) on control of speculative activities and amending and supplementing some other regulations, was published in the Official Journal of Romania dated the 20th of June 2022.
What is the purpose of GEO 84?
▪ GEO 84 addresses some aspects regarding the direct or indirect protection of consumers during partial or total mobilization of the armed forces and during wartime, state of siege and emergency, state of alert or other crisis situations.
What does GEO 84 provide for?
▪ It offers an enhanced protection of consumers (citizens or economic operators) against unfair increases in prices and unbalances artificially created on the market between demand and offer, intended to lead to increases in prices or resale of products for speculative prices.
▪ Speculative activities are:
– Using unreasonably high prices;
– Unreasonably limiting the production or sale of products;
– Commodities amassing on the foreign or domestic markets with the purpose of generating a shortage of products in Romania and resell them later at unreasonably higher prices.
▪ The violation of these rules is considered an offence and shall be punished by a fine worth 50,000 RON up to 500,000 RON.
XIII. UPDATED FARES FOR THE SERVICES PROVIDED BY THE NATIONAL AGENCY FOR CADASTER AND REAL ESTATE PUBLICITY
Order No 599 approving the tariffs for the services provided by the National Agency for Cadaster and Real Estate Publicity and its subordinated units was published in the Official Journal dated the 20th of June 2022.
What does the Order 599 provide for?
▪ The tariff for cadastral registration and creation of land book for properties located in the land book regions listed in Decree-Law No 115/1938 and for registration in the cadastral plan and for extension/de-registration of constructions is 120 RON/construction.
XIV. CHANGES IN LAW NO 59/1934 ON CHEQUES
Law No 182/2022 amending and supplementing Law No 59/1934 on cheques was published in the Official Journal No 599/20.06.2022.
▪ A cheque which misses one of the elements, except for the place of payment and place of issuance, shall not be considered a cheque. If the place of payment is absent, the cheque is considered payable at the corporate seat of the drawee.
▪ For the beneficiary’s credit institution to present the cheque for payment the beneficiary, client of that credit institution, must provide with the original of the cheque or the image of the original cheque, via a secured electronic channel.
▪ Payment of cheques issued in foreign currencies which have a currency exchange rate at the place of payment and are payable in RON shall be made by exchanging the amounts against the rate of the National Bank of Romania valid for the day when the cheques are presented for payment.
XV. GOVERNMENT IS ALLOWED TO ISSUE ORDINANCES
Law No 186/2022 allows the Government to issue ordinances in areas that are not subject to the organic laws, at any time between the effective date of this law but not before the end of the first ordinary session of the Parliament for 2022, and the time the Parliament resumes its activity in the second ordinary session of 2022.
XVI. VALIDITY OF COVID CERTIFICATE IS EXTENDED UNTIL THE 30TH OF JUNE 2023
The regulation on the issuance of the EU digital certificate on COVID shall be extended until the 30th of June 2023.
This extension is intended to cause that the EU travelers as well as third party countries’ travelers who logged into the system are permitted to use their EU digital certificates on COVID for their trips into the EU member states where these travel documents are required.
XVII. FUNDS FOR THE ROMANIAN BUSINESS ENVIRONMENT
The Ministry of Finance prepared the regulation that governs the IMM INVEST PLUS program, one which is intended to facilitate the access to funds for companies facing a shortage of cash necessary to implement their investment projects and continue their operations.
What does the IMM INVEST PLUS include?
▪ The program shall be implemented under the form of a state-aid scheme offering guarantees and grants intended to cover part of the costs of financing of the credits taken.
▪ The state-aid covers maximum 90% of the bank loans offered for investments and/or for current activity support, as well as a grant comprised of a maximum 10% non-refundable portion of the guaranteed financing, administration and risk fees and partially the costs for interests.
How long are the funds available?
▪ No later than the 31st of December 2022 payment of interests shall be made no later than thirteen (13) months from the credit granting date.
XVIII.OPERATION OF COSTS SHARING SYSTEMS
Order No 87/2022 approving the Regulation for issuance of authorization for installation, commissioning, repair and operation of cost sharing systems was published in the Official Journal of Romania No 628/27.06.2022.
What does the Order provide for?
▪ The order governs the issuance, modification, suspension, refusal or withdrawal by the National Energy Regulatory Authority, as competent regulatory authority, of the authorizations for corporate entities to install, commission, repair and operate the costs sharing systems.
Who is eligible?
▪ Romanian or foreign corporate entities; the foreign entities may apply for the authorization in accordance with the Regulation only if they have established a secondary seat in Romania for the entire validity of the authorization, whereby they shall conduct their activities.
How long is the authorization valid?
▪ The authorization is valid for five (5) years.
XIX. NEW REGULATIONS ON CONTROL OF WASTES TRANSFER
Order No 1647/2022 approving the Norms for control of wastes transfer was published in the Official Journal of Romania No 628/28.06.2022.
What does the Order govern?
▪ According to the order, the organization, monitoring and control of wastes transfers shall be performed so as to consider the need to preserve, protect and improve the environment’s quality and public health.
What does the Order provide for?
▪ The import and/or transfer of any types or quantities of wastes in Romania may only be performed toward installations for recovery/capitalization of wastes solely for one’s own profit with no possibility to transfer the ownership title therein to other entities.
▪ In addition, the import and/or transfer of wastes of any nature in Romania, for the purpose of eliminating them here is forbidden.