19
Mar2020

Certificates attesting a state of emergency

On 16.03.2020, the President of Romania instituted the state of emergency by Decree, for a period of 30 days. Among the measures established by the decree are the provision in Cap. II, art. 12: “The Ministry of Economy and Business issues, upon request, to the economic operators whose activity is affected in the context of COVID-19, emergency situation certificates based on the justifying documents”.

A draft for the Government Decision on the issuing of emergency certificates (CSU) was published on 18.03.2020.

Importance

The importance of CSU is mainly due to the fact that it can be used in relations with third parties for the renegotiation of certain affected contracts, as it will attest that the economic operator’s activity was affected in the context of the SARS-CoV-2 pandemic. Thus, the economic operator benefiting from this certificate will be able to renegotiate the contractual obligations that have become excessive or impossible to fulfill, or will be able to more easily invoke force majeure for the termination or suspension of supply / labor / rental contracts, or for to postpone the execution of contractual obligations.

Also, through the CSU, economic operators can benefit from fiscal facilities offered by central or local public administration institutions. It remains to be seen to what extent such facilities will be established.

Competent authority

The CSU will be issued by the Ministry of Economy, Energy and Business, through the Commissions of Analysis established in this regard, upon request, to the economic operators whose activity is affected in the context of the SARS-CoV-2 pandemic. The Commissions of Analysis will be constituted within 5 days from the adoption and publication in the Official Monitor of the Government Decision.

Period of validity

First of all, it should be mentioned that the certificates are only granted during the period of emergency operation in Romania, so until April 16, but it remains valid throughout the year of the grant.

Eligible sectors

The potential beneficiaries of the Emergency Situation Certificate (CSU) are only the economic operators that operate in at least one of the following sectors: transport, tourism, HORECA, event organizations, advertising, private education and adjacent activities, the clothing industry, footwear and leather manufacturing, services for the population (a list of eligible CAEN codes will be established later by Order of the Minister of Economy, Energy and Business Environment).

Eligibility criteria. Deadlines for release

For companies that can prove a decrease of at least 40% in earnings compared to the similar period of last year, proven with a justifying accounting balance, the Commissions of Analysis of the applications for the issuance of the CSU will carry out a formal verification, of the existence of the requested documents, they will generate the CSU and send it to the applicant via email, within a maximum of 5 working days.

For companies that cannot prove a decrease in earnings of at least 40%, but are still in difficulty, in the light of the emergency situation, the Commissions of Analysis of the requests for issuance of the CSU will verify the documents provided and will establish firstly, the existence of the emergency situation, and will send the applicant a reply regarding the granting of the CSU, within a maximum of 20 working days.

Therefore, if the documents requested can prove a decrease in earnings of at least 40% compared to the last year, the Commissions of Analysis are obliged to issue the CSU, subject to the submission by the applicant of all the documents provided. If this decrease  cannot be proven, the Commissions of Analysis have the power to determine whether or not they are in difficulty, and respectively, they have the power to decide whether or not to release the CSU, depending on whether or not the situation is of difficulty.

Application procedure

The request for the issuance of the Emergency Situation Certificates (CSU) will be made exclusively through electronic means, respectively through the platform http://prevenire.gov.ro/, a platform that will contain a section designated for this purpose and which will operate within 5 days after the adoption and publication in the Official Monitor of the Government Decision.

The applicant will complete information regarding:

– the identification data of the economic operator

– its contact details

– the reason for requesting the Emergency Situation Certificate

– justification of its need

– financial statements;

The following supporting documents will be uploaded:

  • Certificate of Registration
  • ID of the Administrator / Administrators / Legal Representative
  • certified accounting balance, during the month in which a decrease of at least 40% in the earnings was observed compared to the similar period of the year previous to the request, together with the accounting balance referred to in the report
  • In absence of a decrease in earnings of at least 40%, but in presence of a stat of difficulty for the operator, in the light of the emergency situation, he will provide additional supporting documents in the this sense;
  • a statement, through which, the applicant fully assumes that the declared ones, as well as the documents uploaded, are true, respectively that the decrease was caused by the emergence of the emergency situation, respectively the certificate issued by the National Trade Register Office;
  • All the documents uploaded in the electronic application, will be electronically signed by the legal representative of the electronic operator or his authorized person.

Regarding the electronic signature, this can be obtained from certain economic operators in one day. You can obtain an electronic signature in two ways: if you want to obtain it on the same day, you can personally go to an operator that provides such services, with the identity card, to complete the contract at their premises, in duplicate, the costs required are small, the signature being valid for at least 1 year. Another possibility is the online one, with prepayment, and the transmission of the completed, signed and scanned documents via email, in 3-5 working days you will receive the requested electronic signature.

Alternative solutions

At the time of publication of this article, the Government Decision on granting emergency certification was not published in the Official Monitor, so it has no legal effects at the moment. Moreover, from the moment of the approval and publication of the Decision, the Ministry of Economy, Energy and the Environment has 5 days to ensure the adaptation and functioning of the electronic platform, respectively the establishment of the Commissions of Analysis of the applications for the release of the CSU.

However, already the economic operators in impossibility to execute their contractual obligations, due to the epidemic of COVID-19, respectively the establishment of the state of emergency.

In these reports, notifications were issued between the contractual partners regarding the temporary impossibility for the fulfillment of their contractual obligations, respectively regarding the suspension of the fulfillment of their contractual obligations for a reasonable period of time, related to the duration and consequences of the COVID-19 epidemic. In support of this, the incidence of force majeure, respectively of the fortuitous case represented by the COVID-19 epidemic, was invoked, but this aspect was not recorded in an official document.

Thus, before the adoption, publication and implementation of the aforementioned Government Decision, it is necessary to find alternatives in order to justify through documents the incidence of the force majeure to successfully invoke it in relation to commercial partners, public authorities or financial institutions.

Moreover, economic operators excluded from the application of this Government Decision may feel the negative effects of the epidemic in the sense of the impossibility of performing the contractual obligations due to this situation and may be forced to rely on force majeure.

In this sense, there is the possibility to approve the existence of the case of force majeure by the Chamber of Commerce and Industry of Romania. The request will include the factual and detailed presentation of the event, its consequences in relation to the contractual partner and legal arguments that the event invoked represents a major force. The documents must be submitted in original or in a certified copy by the applicant, and the fee for issuing the Force Majeure Notice is 500 EUR + VAT. The term for issuing is 15 days from the date of submission of the complete documentation and payment of the service fee.

The file will contain at least:

  • the request for issuing the notice, signed by the legal representative;
  • a copy of the contract affected by the force majeure event, including the force majeure clause;
  • certifications from the authorized bodies, authorities and institutions, on a case-by-case basis (other than the Chamber of Commerce and Industry of Romania), regarding the existence and effects of the event invoked, its location, the moment of beginning and ending the event;
  • notifications addressed to the contractual partner regarding the occurrence of the event invoked and its effects on the conduct of the contractual operations;
  • Additional details: https://ccir.ro/servicii/avizi-existentei-cazului-de-forta-majora/

This article was prepared for the Costaș, Negru & Asociații website by our lawyers, Ms. Alexandra Tomuța (Arad Bar Association) and Ms. Clara Dohotar (București Bar Association).

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