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Legal Update – Nevember / December 2021
The following pieces of legislation were published in the Official Journal of Romania, Part I, during November and December 2021. They include general interest information, as follows:
I. Procedure for registration with the RO e-Factura Registrar
Order No 1713/2021 approving the organization of and the registration with the RO e-Factura Registry and the template, content, and instructions for filling in the form (084) “Application for registration with RO e-Factura Registrar/Waiver of the application for registration with RO e-Factura Registrar” was published in the Official Journal of Romania No 1040/2021.
Who is eligible for registration with RO e-Factura Registrar?
Any economic operator1 that issues electronic invoices to other economic operators (B2B operations).
When is it mandatory to issue electronic invoices via RO e-Factura?
If selling products with a high tax risk, through the B2B system, starting with July 1st, 20222.
What does “high tax risk product” mean?
A product the sale of which encompasses a high risk of fraud and tax evasion.
How do I know that a product is defined as a high tax risk product?
The high tax risk products shall be listed in an order of the chairman of the National Agency of Tax Administration.
What are the advantages of registration with RO e-Factura Registrar?
It allows economic operators to send the invoices to the addressees via the national system for RO e-Factura.
Is it necessary for the addressees to be registered with RO e-Factura Registrar?
Yes, except for the events in which high tax risk products are sold.
What does the registration procedure consist of?
Filling in of the Form 084 “Application for registration with RO e-Factura Registrar/Waiver of the application for registration with RO e-Factura Registrar”, where section III is checked and then uploading it on the platform.
Can the Form 084 be uploaded electronically?
II. Powers to investigate the misdemeanors and apply the fines laid down in the Accounting Law No 82/1991
Order No 1768/2021 approving the powers to investigate misdemeanors and apply the fines laid down in the Accounting Law No 82/1991 was published in the Official Journal of Romania No 1057 on November 4th, 2021.
Who can investigate misdemeanors and apply the fines laid down in the Accounting Law No 82/1991?
The employees of the National Agency for Tax Administration and of the subordinated structures thereof, who have tax inspection and tax anti-fraud powers.
III. Simplification of the formalities before the central public authorities
Law No 267/2021 supplementing Government Emergency Ordinance No 41/2016 which forbids central public authorities to require copies of some documents, was published in the Official Journal of Romania No 1076/2021.
Which documents can no longer be required?
The clearances/permits or other documents issued by the public institutions or specialized bodies of the central public administration.
Which authorities are no longer entitled to require copies?
The central public institutions (the ministries).
Are natural persons and corporate entities equally exempted from the obligation to submit copies?
Yes, whenever they need a public service.
How will the institutions obtain the necessary documents?
In order to obtain the necessary copies or extracts of the documents in electronic format they shall revert to the entities that issued them in the first place.
IV. The enforceable character of a bank letter of guarantee
Decision No 43/2021 of the High Court of Cassation and Justice admitting the petition regarding the construal and application of the provisions of article 2.279 and article 2.321 of the Civil Code, read in conjunction with article 120 of Government Emergency Ordinance No 99/2006 on credit institutions and capital adequacy, was published in the Official Journal of Romania No 1051/2021.
When does the bank letter of guarantee represent a writ of enforcement?
If the letter of guarantee is issued by the credit institution in order to secure a credit agreement.
V. Changes in the Labor Code
The Labor Code was amended by Law No 269/2021 amending Law No 62/2011 on social dialogue and Law No 53/2003 on the labor code, published in the Official Journal of Romania No 1076 of November 10th, 2021, as well as by Government Emergency Ordinance No 130/2021, published in the Official Journal of Romania No 1202 of December 18th, 2021.
1. The period in which petitions may be filed to settle a labor dispute was extended
The period allowed to file a petition for settlement of a labor dispute was extended from 30 to 45 calendar days.
2. Employer’s obligation to increase the salary of employees hired for the national minimum gross basic salary
2.1. What is the maximum period for which an employee may be hired for the national minimum gross basic salary?
24 months from the signing of the individual employment agreement.
2.2. Is this applicable to employees who are currently being paid the national minimum gross basic salary?
Yes, if they have signed an individual employment agreement with a more than 24-month term.
2.3. Is there an obligation to increase the salary with a specific amount?
No. Suffice it to be higher than the national minimum gross basic salary
VI. Mandatory registration with the Virtual Private Space for some categories of taxpayers
Ordinance No 11/2021 amending the Code of Tax Proceedings provides that, beginning with March 1st, 2022, some categories of taxpayers may only file their documents via the Virtual Private Space platform.
Which entities are bound to create an account on the Virtual Private Space platform?
• Corporate entities
• Associations and other entities without legal personality
• Liberal professions,
• Individual enterprises
• Family enterprises.
What is the sanction?
Documents which are not lodged via the Virtual Private Space shall not be taken into consideration.
VII. Cancelation of the Decision No 68 of February 14th, 2020, of the General Council of Bucharest Municipality approving the Zonal Urbanism Plan (PUZ) – amending and updating PUZ for Bucharest 6th district.
On November 8th, 2021, the decision issued by the Bucharest Tribunal in the case file No 12968/3/20203, whereby the court ordered the cancelation of the following documents:
• The Compliance Decision No 116 of December 19th, 2018, issued by the Bucharest Agency for Environmental Protection (hereinafter referred to as the “Compliance Decision”);
• the Decision No 68 of February 14th, 2020, of the General Council of the Bucharest Municipality approving the Zonal Urbanism Plan (PUZ) – amending and updating the coordinating PUZ for Bucharest 6th district (hereinafter referred to as the “CGMB Decision 68/2020”);
• the Decision No 336 of August 14th, 2020, of the General Council of the Bucharest Municipality rectifying CGMB Decision 68/2020 (hereinafter referred to as “CGMB Decision 336/2020”); and
• the urbanism certificate No 862/1513388 of July 12th, 2017 (hereinafter referred to as the “Urbanism Certificate”),
According to the Compliance Decision, the Bucharest Agency for Environmental Protection decided that the Zonal Urbanism Plan – Amending and updating the coordinating PUZ for Bucharest 6th district, does not require an environmental assessment and an adequate assessment and shall be submitted for approval without an environmental endorsement.
The plaintiffs raised the exception on the invalidity of the Compliance Decision and claimed that the green area percentages had been illegally reduced.
The Bucharest Tribunal upheld that the plan submitted for review to the Bucharest Agency for Environmental Protection suggested the elimination of green areas and their replacement, in a consistent percentage, with some other green areas which do not exist in fact and the existence of which in the future is impossible to determine, which would result in the conversion of a significantly large green area in a buildable area M2.
In substantiating the admission of the exception on the invalidity of the Compliance Decision, the court also referred to the existence of an infringement proceeding against Romania for failure to ensure the air quality in Bucharest; in addition, whereas the air quality in Bucharest continues to worsen, the Bucharest Tribunal considered that the Bucharest Agency for Environmental Protection manifestly breached the role and purpose for which it was created and, by its actions, it refused to implement the powers offered to it by the law.
The court upheld that the Bucharest Agency for Environmental Protection copy-pasted the data mentioned in the plan but it failed to analyze whether they were in line with the environmental regulations or not and to conduct a minimum review of the plan; but the failure to abide by the criteria listed in the Government emergency Ordinance 114/2007 amending and supplementing Government emergency Ordinance 195/2005 on the environmental protection places a significant risk on humans – a risk which results from the proposed reduction of the existing green areas which is directly related to the failure to reduce pollution in Bucharest, whereas the particles in suspension are the cause of various inflammatory diseases, heart and vascular, lung conditions as well as of various forms of cancer.
Once the exception on the invalidity of the Compliance Decision was admitted, the CGMB Decision 68/2020 was deprived of legal foundation since it was adopted in violation of the condition laid down in the Urbanism Certificate and in article 73 of Government emergency Ordinance 195/2005 on environmental protection5. Hence, the CGMB Decision 68/2020 was cancelled.
As regards CGMB Decision 336/2020, the Bucharest Tribunal decided on the cancellation thereof, basically on the ground that it fully breaches the procedure laid down in Law No 52/2003 on decision-making transparency in public administration, as long as neither the CGMB Decision 336/2020 nor the related documentation clearly state which are the exceptional circumstances contemplated by the General Council of Bucharest Municipality or the severe prejudices to the public interest; in fact, the only severe prejudices caused to the public interests are precisely the provisions of that decision, which would allow the development of residential projects which are not connected to the water and sewerage networks.
VIII. Cancelation of the Decision No 49 of January 31st, 2019, of the General Council of Bucharest Municipality approving the Zonal Urbanism Plan for Bucharest 3rd district
On November 29th, 2021, the decision issued by the Bucharest Tribunal in the case file No 26705/3/20196, whereby the court ordered the cancelation of the following documents:
• The decision regarding the compliance phase No 3 of January 28th, 2019, issued by the Bucharest Agency for Environmental Protection (hereinafter referred to as the “Compliance Decision”); and
• The Decision No 49 of January 31st, 2019, of the General Council of Bucharest Municipality approving the Zonal Urbanism Plan for Bucharest 3rd district (hereinafter referred to as the “CGMB Decision 49/2019”),
According to the Compliance Decision based on which the 3rd district PUZ was approved via the CGMB Decision 49/2019, it had been decided that the 3rd district PUZ did not require an environmental assessment, did not require an adequate assessment and would be subject to approval without an environmental permit.
The Bucharest Tribunal decided that the 3rd district PUZ being exempted from the environmental assessment is illegal because none of the two conditions regarding the use of small areas at local level and the absence of significant impact on the environment, respectively, which should have been met simultaneously so as to allow the zonal urbanism plan to be exempted from the environmental assessment, was in fact met.
Consequently, the court considered that in its Compliance Decision the Bucharest Authority for Environmental Protection illegally endorsed the 3rd district PUZ in the absence of an environmental assessment.
As regards the voidance of the CGMB Decision 49/2019 approving the 3rd district PUZ, the Bucharest Tribunal upheld the following main reasons for voidance:
(i) CGMB Decision 49/2019 was adopted with the participation of the general counsel who was also a public administrator of the 3rd district; hence, it should have been expected that the decision would offer either an advantage or a disadvantage for the corporate entity with which the counselor had a contractual relation – hence, the condition regarding the personal interest of a local public officer was met;
(ii) The zoning blueprint was modified after the permits had been obtained; the environmental permit No 2/05.11.2018 referred to the plan as it existed before the approved one and could not be validly used to adopt a PUZ in the form laid down in the CGMB Decision 49/2019; in addition, the improved version of blueprint 2.1 did not follow the required approval chain;
(iii) The 3rd district PUZ approved by CGMB Decision 49/2019 provided for the change in destination of some lands destined to be used as green areas in the urbanism documentation, i.e. the General Urbanism Plan approved by CGMB Decision 269/2000, which was in violation of article 71 of Government Emergency Ordinance No 195/2005 on environmental protection, that forbid the change in destination via the PUZ of lands destined to be used as green areas via the General Urbanism Plan – V zone.
IX. Payment of the amounts laid down in court orders issued pursuant to salary-related disputes
In the Official Journal of Romania No 1202/2021 there was published the Government Emergency Ordinance No 130 which provides the procedure for payment of amounts laid down in court orders pursuant to salary-related disputes to the personnel in public institutions and authorities.
How are payments scheduled?
– 5% of the value of the writ of enforcement – shall be paid during the first year from the date the court order becomes enforceable;
– 10% of the value of the writ of enforcement – shall be paid during the second year from the date the court order becomes enforceable;
– 25% of the value of the writ of enforcement – shall be paid during the third and fourth year from the date the court order becomes enforceable;
– 35% of the value of the writ of enforcement – shall be paid during the fifth year from the date the court order becomes enforceable.
X. The vaccination certificates shall be accepted for a 9-month mandatory period within the EU
On December 21st, 2021, the European Commission adopted some norms regarding the EU digital COVID certificates validity, which shall be a mandatory 9-month term (precisely 270 days) for travels within the EU.
XI. The provisions of article 137 par. 3, second sentence, of the Criminal Code, regarding the expression “turnover” were declared non constitutional
By Decision No 708/2021 published in the Official Journal No 1160/2021, the Constitutional Court admitted the exception on non constitutionality and decided that the provisions of article 137 par. 3, second sentence, of the Criminal Code, regarding the expression “turnover” are non constitutional and upheld that, in terms of the penalty applicable to corporate entities, the amount corresponding to a one day – fine is to be calculated depending on the turnover, but:
– The criminal law in force does not explain the meaning of the expression “turnover” by reference to which the court shall calculate the amount of a one-day fine in case of fines applied to profit-making corporate entities;
– The criminal law is also silent in respect of calculating/withholding from a temporal perspective, the turnover of a profit-making corporate entity, by reference to which the court shall calculate the amount of a one-day fine.
XII. A definition was provided for the expression “drone”
Law No 122/2011 on the regime or weaponry, military devices and ammunition held by the Ministry of Defense and foreign military forces on the territory of Romania was amended by Law No 283/2021, published in the Official Journal No 1191/2021.
What does a “drone” mean?
“Any terrestrial, aerial, water or underwater vehicle capable of navigating on its own, using automated pilot, or which can be controlled via a remote control radio-electric equipment”.
XIII. New penalties for violation of the actions intended to fight the effects of the pandemic
Law No 295/2021, published in the Official Journal No 1183/2021, amends and supplements Law No 55/2020 on some actions intended to prevent and control the effects of the pandemic of COVID 19.
What actions shall be punished?
The failure to comply with the measures regarding the limitation or suspension for a determined period of the activity of some institutions or economic operators in case of repeated violation, at the same premises, within 15 days from the previous sanction.
What are the penalties?
In addition to the fine, the inspector shall order a contraventional penalty consisting in the temporary closing – for a 15-day term – of the main or secondary seat where the economic operator carries out its activity.
How does the penalty apply?
The inspector shall arrange for the following message to be posted in visible places inside the closed headquarters: “These premises are temporarily closed until … included, due to the failure to comply with the actions intended to reduce the effects of the pandemic of COVID 19”.
Does the complaint against the report of inspection and penalty suspend the implementation of the penalty?
XIV. Increase, indexation of the state allowance for children and additional money offered
Government emergency Ordinance No 126/2021 amending Law No 61/1993 on the state allowance for children and additional compensations for disabled persons was published in the Official Journal No 1189/2021.
How much is the new allowance worth?
A. 600 Lei for:
i. Children aged maxim 2 years;
ii. Children aged maximum 3 years, if they are disabled;
B. 243 Lei for:
i. Children aged 2 to 18 years;
ii. Children aged more than 18 years, if they are still in high school or follow a vocational school, until they complete their studies.
How will the allowance be indexed?
On a yearly basis, starting with 2023, with the yearly average inflation rate published by the National Institute of Statistics.
Who is eligible for the 13th allowance?
The disabled persons, irrespective of their income.
XV. The obligation to fill in the digital form upon entry in Romania
Government emergency Ordinance No 129/2021, published in the Official Journal No 1190/2021, provides for the obligation to fill in the digital form upon entry in Romania, in order to identify the contacts of a person infected with SARS – CoV – 2 and to prevent the exposure to COVID 19.
Who is compelled to fill in this form?
Every person that enters Romania, irrespective of the country he/she comes from and irrespective of his/her citizenship.
Are there any exceptions?
Yes, for family members, the form may be filled in by only one adult and for minor, this obligation falls on the parents, the guardian or the legal representative thereof.
Instructions to fill in:
The form may be filled in digitally, on the platform plf.gov.ro.
When is it necessary to fill in the form?
– 24 hours at most before entering Romania; or
– No later than 24 hours after entering Romania.
What is the penalty for not filling in the form?
The failure to fill in the form is a misdemeanor and is punishable with a fine of 2,000 up to 3,000 RON.
XVI. Increase in pension credits
Government emergency Ordinance No 125/2021, amending and supplementing Law No 127/2019 on the public system of pension and amending and supplementing Government emergency Ordinance 6/2009 on the minimum guaranteed pension, was published in the Official Journal No 1189/2021.
What is the new value of the pension credit?
As of January 1st, 2022, the pension credit amount was increased from 1,442 RON to 1,586 RON.
• The increase in the pension credit with the yearly average inflation rate effective as of January 1st, 2022, plus no more than 50% of the effective increase in the gross average salary gains obtained.
• The social compensation for retired persons was increased by 200 RON and it is now 1,000 RON.
XVII. Tax and budgetary measures. Terms extended. Regulations amended and supplemented
Government emergency Ordinance No 130/2021 (“GEO 130/2021”), published in the Official Journal No 1202 of December 18th, 2021, amended and supplemented the Tax Code, Law No 241/2005 on prevention and control of tax evasion, Government emergency Ordinance No 120/2021 on the electronic invoice RO e-Factura, the Labor Code, Law NO 296/2020 and Government emergency Ordinance No 226/2020 on some tax measures, the Code of Tax Proceedings and some other regulations.
A. Increase in the value of gifts
The value of gifts that may be offered by employers on various occasions provided for by the law was increased from 150 RON to 300 RON.
B. Retired persons’ obligation to pay the contribution to health insurance
Persons who obtain income from pensions are bound to pay the health insurance contribution for that income which exceeds 4,000 RON monthly, in respect of each pension entitlement.
C. 5% VAT for the sale of residential units
When is this applicable from?
Since January 1st, 2022
What conditions must be met?
• The net area of the residential unit is maximum 120 sq. m., exclusive of the annexes;
• The price of the residential unit, including the land on which it is developed, is more than 450,000 EON, but no more than 700,000 RON, exclusive of VAT;
• The residential units are purchased by natural persons;
• The residential unit may be inhabited as such at the time of delivery.
Can anyone purchase more than one residential unit with 5% VAT?
D. 5% VAT for delivery of heating during cold months
When is this applicable from?
Starting with the deliveries made in January 2022.
How long is this applicable for?
For delivery of heating during cold months.
What does cold months mean?
The period elapsing between November 1st, of the current year, and March 31st, of the next year.
What categories of consumers are eligible for the 5% VAT?
– The population;
– The public and private hospitals;
– The public and private education units;
– The nongovernmental organizations;
– The cult units;
– The public or private, authorized suppliers of social services, who provide social services.
E. The failure to pay the withholding taxes and contributions is considered an offence
When is this failure punishable?
In case on intentional withholding and refusing to pay the due amounts representing withholding taxes and contributions, for maximum 30 days from the due date.
When is the penalty applicable from?
Since March 1st 2022.
What does the penalty consist of?
Imprisonment from 1 up to 6 years.
1 Any entity that carries out economic activities consisting in the execution of works, the provision of goods/services and/or the supply of services.
2 According to Government Emergency Ordinance No 130/2021, published in the Official Journal No 1202 of December 18th, 2021.
3 See the Civil Sentence No 6094 of November 17th, 2020, issued by the Bucharest Tribunal in the case file No 12968/3/2020.
4 See the Civil Sentence No 2167 of November 8th, 2021, issued by the Bucharest Court of Appeal in the case file No 12968/3/2020, whereby the court decided as follows: (i) to acknowledge the waiver of the Bucharest 6th district mayor of the ruling on the applications for final appeal; (ii) to admit the exception on the lack of interest of the Bucharest Agency for Environmental Protection and to reject the final appeal as deprived of interest; and (iii) to dismiss the final appeal filed by Vego Concept Engineering SRL as irrelevant.
5 See article 73 of Government emergency Ordinance No 195/2005 on environmental protection, according to which “The urbanism and land development plans are subject to an environmental assessment procedure before they obtain the environmental permit for plans and programs, according to the regulations in force.”
6 See the Civil Sentence No 688 of February 4th, 2021, issued by the Bucharest Tribunal in the case file No 26705/3/2019.
7 See the Civil Decision No 2569 of November 29th, 2021, issued by the Bucharest Court of Appeal in the case file No 26705/3/2019, whereby the court decided as follows: (i) to dismiss as ungrounded the exceptions on the late filing, voidance, inadmissibility and lack of interest in filing a final appeal against the resolution dated October 23rd, 2020; (ii) to dismiss the final appeal filed by Ene Gabriel Ionel and Ene Andreea Raluca against the resolution dated October 23rd, 2020, as ungrounded; (iii) to declare the final appeal filed by the appellants Ene Gabriel Ionel and Ene Andreea Raluca against Civil Sentence No 688 of February 4th, 2021, as irrelevant; (iv) to declare the final appeal filed by the appellants, i.e. the Bucharest 3rd district and the mayor of the Bucharest 3rd district against Civil Sentence No 688 of February 4th, 2021, as irrelevant.