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Legislative Newsletter May 2016

Romanian Legislation

1. Law no 83/2016 for supplementing Law no. 8/2006 on setting the indemnity for retired persons, part of the public pension system, members of the creators’ unions which are duly incorporated and ascertained as public utility entities, was published in the Official Gazette, Part I, no. 341 of 4 May 2016.

Retired military personnel and journalists, members of creators’ unions which are duly incorporated and ascertained as public utility entities shall be entitled to receive, upon their express request, a monthly indemnity;

Given the fact that the journalism act involves creativity, at the moment of completing such, in observance of professional quality and ethics, the journalists were also included in the category which benefit from the present indemnity;

According to the applicable provisions, the special indemnity amount equals 50% of the pension due or paid at the moment of the request. A maximum limit of the present special indemnity is also provided, in amount of two minimum gross basic salaries.

2. Law no. 88/2016 on establishing certain mandatory additional measures for fresh milk and dairy products labeling was published in the Official Gazette, Part I, no. 342 of 5 May 2016.

According to the mentioned normative deed, all dairy products on the consumer market shall be labeled in respect of the powder milk percentage existing in its content;

“Natural product” mention shall be labeled on a product only in case the dairy producers use a percentage of 100 % of cow, buffalo cow, sheep or goat raw milk as raw material, (without other milk replacements or powder milk) and the raw milk is of domestic origin;

The fines provided by the present normative deed in case of breaching its provisions range between RON 15,000 and 20,000.

3. Government Decision no. 345/2016 for amending and supplementing Government Decision no. 617/2014 on establishing the institutional framework and certain measures for implementing Regulation (EU) no. 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products was published in the Official Gazette, Part I, no. 367 of 12 May 2016.

The main purpose of the present legislative amendment resides in emphasizing the sanctioning regime and implementing new offences to the companies which do not observe the applicable legislation on making available on the market and use of biocidal products;

Biocide products traded by failing to observance the content of the endorsement/authorization declaration of the company having the present object of activity shall be subject to fines ranging between RON 35,000 and RON 50,000.

4. Law no. 102/2016 on business incubators was published in the Official Gazette, Part I, no. 393 of 23 May 2016.

According to the above mentioned normative deed, a series of fiscal facilities are provided to the companies which set up business incubators, thus the founding entities shall be exempted, subject to meeting certain conditions, from the payment, inter alia, of the following:

i) property tax for the land plot related to the business incubator;
ii) property tax for the building associated with the business incubator;
iii) any other taxes owned for the issuance of any town planning certificates, construction and/or demolition authorizations for lands and buildings associated with the business incubator.

The present normative deed brings under detailed regulation the manner for setting up, operating and closing down business incubators, the persons involved in the functioning of such entities, the manner for selecting them and the types possible to be built.

5. Law no. 98/2016 on public procurement, published in the Official Gazette, Part I, no. 390 of 23 May 2016.

As a novelty element, the provisions in discussion bring under regulation the fact that the direct public procurement limits shall be established in RON and not in EURO, as previously provided, such as follows:

i) direct public procurement of products and services is permitted to the contacting public authorities only if the estimate acquisition value is below RON 132,519, VAT excluded;
ii) direct public procurement of works is permitted if the estimate value is below RON 441,730 RON, VAT excluded.

The normative deed brings under regulation, inter alia, the selection criteria in respect of economic agents which are awarded public procurement contracts, the calculation formula of the procurement estimate value, the procurement contracts exempted from the applicability of the present law, the standard rules for participating to and carrying out the awarding procedures.

6. Government Emergency Ordinance no. 18/2016 amending and supplementing Law no. 286/2009 on Criminal Code, Law no. 135/2010 on Criminal Procedure Code, as well as for supplementing art. 31 (1) of Law no. 304/2004 on judicial system organization was published in the Official Gazette, Part I, no. 389 of 23 May 2016.

Having as main basis the affluence of admitted pleas on the lack of constitutionality related to the provisions of the New Criminal and Criminal Procedures Codes enforced starting with 2014, as well as the implementation of certain European Union directives, the present government emergency ordinance amended, respectively introduced certain regulations pertaining to substantive criminal law, as well as to the criminal procedure provisions, in such fields as:

i) lapse of statute of limitation in case of crimes against freedom and sexual integrity, traffic and exploitation of vulnerable persons, as well as child pornography, perpetrated against an underage person;

ii) determining the sentence in case of traffic with underage persons;

iii) punishing the attempt and determining the punishment in case of certain crimes against assets, which produced extremely serious consequences;

iv) persons entitled to claim the joining of the legal actions;

v) changing de venue of the legal actions;

vi) the manner in which criminal prosecution actions may be carried out outside the jurisdiction where the criminal investigation is actually performed;

vii) protection of the prejudiced party and of the civil party;

viii) procuring data on the financial transactions of a person may be obtained in emergency cases and by the prosecutor without the prior consent of the justice of the peace;

ix) the possibility that computer forensics is also carried out by special police personnel, under certain conditions;

x) amending the content of certain precautionary measures;

xi) the pre-hearing procedure;

xii) dropping the criminal investigation;

xiii) the term for filing the appeal for annulment;

xiv) the guilty plea agreement.

7. Order no. 1503/2016 of the President of the National Agency for Fiscal Administration on approving the Registration Procedure, upon request, in the Registry of taxable persons which apply the VAT upon collection system and the Deregistration Procedure, upon request or ex officio, from the Registry of taxable persons which apply the VAT upon collection system, as well as the model and content of forms was published in the Official Gazette, Part I, no. 403 of 27 May 2016.

The above mentioned normative deed brings under regulation the method for registration, only by express request, of the companies which apply VAT upon collection in the Registry of taxable persons which apply the indicated taxation system;

This procedure applies to taxable companies headquartered in Romania, registered for VAT purposes and whose turnover during the previous calendar year did not exceed the threshold of RON 2,250,000;

The registration procedure also applies to taxable persons registered for VAT purposes during the current calendar year.

8. Order no. 1559/2016 of the President of the National Agency for Fiscal Administration on approving the Procedure for settlement of requests for repayment of VAT submitted according to title VII “Value Added Tax” of Law no. 227/2015 on the Fiscal Code and of title VII of the Methodological Norms for applying Law no. 227/2015 on the Fiscal Code, approved by Government Decision no. 1/2016 was published in the Official Gazette, Part I, no. 394, of 24 May 2016.

According to the above mentioned normative deeds, a new procedure for settlement of VAT repayment requests was set up, having as scope the taxpayers which invoiced with VAT certain goods to non-profit entities which transport goods outside the European Union, as part of humanitarian, charitable or educative activities;

The above mentioned taxable person may request the repayment of VAT collected and paid as a consequence for the delivery of goods. In order to materialize the VAT repayment in discussion, the taxpayer must submit with the competent tax authority a repayment request, as well as documents supporting such right;

Is important to mention that the VAT repayment procedure is different form the VAT reimbursement procedure.

9. Decision no. 7 of 4 April 2016 of the High Court of Cassation and Justice was published in the Official Gazette, Part I, no. 399 of 26 May 2016.

The Decision of the High Court of Cassation and Justice puts an end to the legal controversy in respect of the dismissal procedure for reasons pertaining to the employee herself/himself, hence, the document based on which the employer may exercise the dismissal option is the medical fitness for work certificate, irrespective whether such is challenged or not by the employee which was declared physically and/or mentally unfit.

10. Law no. 112/2016 on approving Government Emergency Ordinance no. 112/2016 for amending and supplementing certain normative deeds, as well as for bringing under regulation certain budgetary measures was published in the Official Gazette, Part I, no. 408 of 30 May 2016.

According to the above mentioned normative deed, , the natural persons who do not have income subject to the health social system contributions or who gain monthly income exclusively from investments and/or from other sources whose monthly computation basis are below the minimum gross salary value per country and do not fall within the categories of individuals exempted from the payment of the contribution or within the categories of individuals for which the contribution is covered from other sources, own the contribution, upon discretion, either monthly or at the moment when they access the services provided by the public health insurance system;

The contribution level shall be established by the competent tax authority, depending upon the insurance modality chosen by the taxpayer, further to submitting a declaration.

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Partner Ionut Bohalteanu is a registered member of the Romanian Chamber of Tax advisers – the foremost member institution for tax advisers in the country. A highly respected tax adviser, he is equally proficient providing standalone tax advice, or on the tax elements of a large transaction. Most of his clients are international and come to him for standalone tax advice, as evidenced in the work matters detailed here.
Our team provides innovative solutions to real estate issues for overseas and domestic clients alike. Able to assist with evert stage of a property deal, there are strong synergies between our real estate, corporate and banking and finance practices. Our comprehensive knowledge of the Romanian property market has served our clients well and we are natural choice for any company in possession of, or seeking to acquire, real estate assets in the country.Please click here to see what our recent experience includes.
Partner Silvia Sandu is one of the foremost privacy and data protection experts in Bucharest, amply demonstrated by the experience detailed here.
BSMP has acted in some of the most important inbound Romanian transactions for international clients as well as in some of the most important domestic deals. Equally efficient on the buy or sell-side, our experience includes negotiating mergers, demergers and joint ventures with particularly robust expertise in the regulated sectors, particularly energy, where our knowledge of the complicated Romanian regulatory regimes comes into its known.The firm has also acted in the privatization of some of the most important Romanian companies with partner Ionut Bohalteanu being a recognized leader in the field.Please click here to see what our experience includes.
Partner Silvia Sandu is a leading healthcare and pharmaceuticals lawyer, having assisted a host of multinationals with their Romanian operations for a number of years.Please click here to see what her experience includes.
The firm’s energy expertise is market leading and it is one of our core sector focuses. We have acted for a raft of multinational companies in some of the most important inbound Romanian energy transactions. Our diverse sector experience has seen us leading on major oil and gas, power and renewables projects, as well as in developing, niche fields such as mini hydro power plants and solar technology. We are able to assist our energy clients with the full life-span of a project from inception to completion, and with post-completion issues including disputes.Please click here for a summary of our team’s first-class recent experience.
Our employment client roster is comprised almost entirely of multinationals, for whom we have achieved success in a huge range of matters from cross-border redundancies and unfair dismissal claims to resolution of non-compete and high-level confidentiality issues. Practice head Silvia Sandu also has some of the foremost life sciences sector expertise in the market, as demonstrated below.Please click here to see what recent mandates include.
Our dispute resolution practice, led by Gabriela Mina, is steadily carving a reputation as one of the most sought after teams in Bucharest through a string of high-profile successes for international clients and a caseload which includes some of the most high-profile domestic disputes.Please  click here to see what the team’s recent cases include.
The highly regarded international experience of partners Ionut Bohalteanu and Daniela Milculescu, co-heads of the corporate and commercial department, make our firm a natural choice for any company with business interests in Romania. Our sector experience is vast, covering multiple areas from high-end energy instructions for European and Chinese multinationals, to major Romanian mandates in the FMCG, real estate and technology sectors among others. Our work is most often very high-value in nature, particularly by Romanian standards, and we have acted on transactions up to €50m.We assist our clients with all aspects of corporate and commercial, as demonstrated  here .
Competition is a strongly developing practice at the firm, and one in which we are carving a robust reputation for high-level advice to international clients on issues of crucial importance to their operations. Our sector expertise is vast including, among others, the FMCG, software and pharma industries. Our experience is equally wide-ranging covering competition issues as diverse as identification of risk, assistance during investigations by the competition authorities, applications for state aid schemes and training on competition matters (including simulated dawn raids).Please click here to see some illustrations of what the calibre of our practice includes.
Capital markets is one of our firm’s core practice areas. Some of the biggest banks and companies operating in Romania have turned our team , led by Ionut Bohalteanu and Daniela Milculescu. Indeed, we count the Bucharest Stock Exchange itself as one of our clients in an ample demonstration of the high esteem in which our capital markets expertise is held. Equally proficient acting for banks, companies or international investment funds, our lawyers provide clients with one of the most adept offerings available in the market.Please click here to see what our recent experience includes.
Led by Daniela Milculescu, our banking and finance practice is one of the premier offerings in Bucharest. On the lender-side our experience has few equals in the market with a client roster which includes some of the largest banks operating in the region. Our expertise covers the full spectrum of the banking and finance space from big-ticket syndicated loans, acquisition finance and restructuring, to the feasibility of new banking products, asset finance and regulatory advice.Please click here to see recent illustrations of our market-leading capabilities.