In the context of the state of emergency instated on the territory of Romanian by the Presidential Decree no. 165/2020 (hereinafter referred to as the “Decree”),1 on 25 March 2020, the Ministry of Economy, Energy and Business Environment passed Order no. 791/2020 on the issuing of emergency situation certificates to companies whose activity is affected in the context of the COVID-19 pandemic (hereinafter referred to as “Order no. 791/2020”).
Order no. 791/2020, as subsequently amended as of 2 April 2020 by Order no. 822/2020, establishes that emergency situation certificates (hereinafter referred to as “ESCs”) will be issued to applicants which are entitled to receive such certificates in light of:
– Government Emergency Ordinance no. 29/2020 on certain economic, budgetary and fiscal measures (hereinafter referred to as “GEO no. 29/2020”);
– other enactments regulating measures adopted in the context of the state of emergency.
Types of ESCs
- Type 1 (Blue ESC)
- may be issued to applicants requesting the ESC based on a statement that their activity was fully or partially interrupted, as a result of the effects of the decisions issued by public authorities during the state of emergency as instated by the Decree.
- Type 2 (Yellow ESC)
- may be issued to applicants requesting the ESC based on a statement that in March 2020 they had a decrease in revenue or in cash receipts of at least 25% as compared to their average revenue or cash receipts in January-February 2020.
A model statement is provided in Annex 3 to Order no. 791/2020.
An applicant may only request one of the two types of ESCs.
ESCs will be issued during the period while the state of emergency is instated on the territory of Romania.
ESCs may be relied upon in the relationship with public institutions for obtaining certain facilities and for benefiting from support measures or in business relationships, under the conditions provided by law.
Procedure for requesting the ESCs
ESCs may be requested exclusively on-line, through the http://prevenire.gov.ro/ platform. The ESC is automatically issued in electronic form, after the request is confirmed by the system.
The following information must be uploaded by the applicant to the platform:
- identification data;
- statement of the legal representative of the applicant, confirming the veracity of the provided information and documents uploaded in support of the request. The model statement will be published on the platform;
- applicants requesting an ESC which are not registered with the Trade Registry must also provide documents showing that their activity was dully authorized.
The documents uploaded to the platform must be electronically signed by the legal representative of the applicant or by a proxy of such legal representative, holding an electronic signature.
Support measures provided under GEO no. 29/2020 for ESC holders
Upon the condition of holding an ESC, the applicants entitled to benefit from the measures provided under GEO no. 29/2020 are:
- SMEs (i.e. companies having less than 250 employees and an annual turnover of up to 50 million Euros or assets with a value of up to 43 million Euros)
- which interrupted their activity fully or partially based on the decisions issued by the competent public authorities, during the period of state of emergency.
- deferred payment of utilities (i.e. electricity, natural gas, water, telephone and internet services) and rent for the headquarters and secondary offices;
- events of force majeure may be invoked against SMEs only after trying to renegotiate the contract in order to adapt its clauses in light of the extraordinary circumstances caused by the state of emergency. Such renegotiations must be proven by documents communicated between the parties by any means, including by electronic means;
- penalties stipulated for delays in the performance of obligations arising from the contracts concluded with public authorities are not due during the state of emergency.
In addition, in light of GEO no. 29/2020, a presumption of force majeure appears to operate in favour of SMEs under certain conditions if their activity was affected by acts of public authorities in the context of COVID-19, even if such SMEs have not interrupted their activity, fully or partially, based on the decisions issued by the competent public authorities, during the period of state of emergency.
Differences between ESCs and force majeure certificates issued by the Chamber of Commerce and Industry of Romania
Based on supporting documentation professionals have the possibility to request the Chamber of Commerce and Industry of Romania and the County Chambers to ascertain the existence of an event of force majeure and the effects of such an event on the performance of their contractual obligations.2
ESCs were regulated in order to respond to the economic challenges faced in the context of the COVID-19 pandemic. The force majeure certificates issued by the Chamber of Commerce are delivered also under normal circumstances, but they might prove to be useful also under the extraordinary circumstances caused by the COVID-19 pandemic.
As opposed to ESCs, force majeure certificates are issued upon the payment of a fee amounting to the equivalent in RON3 of EUR 500 + VAT.
The force majeure certificates delivered by the Chamber of Commerce may be relied upon by the parties in order to renegotiate contracts when their performance is affected by an event of force majeure. Nonetheless, the certificate is not binding upon the other party to the contract, which may disregard such certificate. The final assessment regarding the existence of an event of force majeure belongs to national courts or arbitral tribunals, as the case may be.
By contrast with ESCs, the force majeure certificates issued by the Chamber of Commerce may not be relied upon in order to obtain certain facilities or to benefit from support measure adopted in the context of the COVID-19 pandemic by GEO no. 29/2020 and other enactments regulating measures adopted in the context of the state of emergency.
1 The Decree was published in the Official Gazette on 16 March 2020. The Decree establishes the state of emergency for 30 days as of its publication in the Official Gazette.
2 Article 4, letter j) and article 28 paragraph 2, letter i), Law no. 335/2007 on Romanian chambers of commerce, as subsequently amended and supplemented.
3 At the NBR exchange on the date of payment.