Coronavirus update no. 6/2020 – Other business measures dedicated to SMEs and other professionals

Measures for companies

In accordance with article X of GEO 29/2020, during the state of emergency, small and medium-sized enterprises which disrupt the activity in whole or in part based on the decisions issued by the competent public authorities and which hold an emergency state certification issued by the Ministry of Economy, Energy and Business, shall qualify for:

- deferred payment of utilities services – electricity, natural gas, water, phone and internet services,

- deferred payment of rent for the space intended for the registered headquarters or the secondary establishments.

Small and medium-sized enterprises are those that cumulatively fulfill the following requirements:

- their annual average number of employees is less than 250;

- their net annual turnover is up to 50 million euros, the equivalent in lei, or hold a number of total assets that do not exceed the equivalent in lei of 43 million euros, according to the last approved financial statement. Total assets are defined as fixed assets plus current assets plus advance payments.

 

By way of derogation from other legal provisions, within the ongoing contracts, other than those provided at point 1 above, concluded by small or medium-sized enterprises, the force majeure against them may be invoked only after the attempt of renegotiation of the contract, proven by documents notified between the parties by any means, including by electronic means, in order for the clauses to be adapted by taking into account the exceptional conditions generated by the state of emergency.

Therefore, before invoking the force majeure, the attempt for renegotiation of the contractual clauses is mandatory, in order for the clauses to be adjusted to the current situation.

For the purposes of the provisions of this ordinance, a case of force majeure is presumed to be represented by the unpredictable, absolutely invincible and inevitable circumstances referred to in art. 1.351 paragraph (2) of the Romanian Civil Code, which results from an action of the authorities in the application of the measures imposed by the prevention and control of the pandemic caused by the infection with the COVID-19 coronavirus, which affected the activity of the small and medium-sized enterprises, an impact attested by the emergency situation certificate.

Art. 1.351 of the Romanian Civil Code defines the force majeure as the unpredictable, absolutely invincible and inevitable circumstances.

However, we do not deal with an absolute presumption: the opposing party, the co-contractor, can prove that the small or medium-sized enterprise is not entitled to oppose the case of force majeure, but, until proven otherwise, it will be considered a case of force majeure. Anyhow, the unpredictable character refers to the moment when the legal relationship affected was founded.

Along with the special provisions provided by GEO no. 29/2020, the force majeure intervention according to article 1.351 paragraph (2) of the Romanian Civil Code is also acknowledged by the Chambers of Commerce and Industry of the Counties.

NB! The Chambers of Commerce are not competent to declare an event as force majeure or to intervene in any contract. The Chambers only approve, based on the documentation submitted by the applicant, the existence of a force majeure situation as an exoneration of contractual liability.

Therefore, in order for the certificate to be issued, the interested parties shall submit a request to the territorial competent Chamber of Commerce, along with supporting documents, such as the contract affected by force majeure, notices addressed to the contractual partner, a descriptive memorandum of the situation, the proof of payment of the fee of 500 euros plus VAT (the listing is not exhaustive).

 

Measures for other professionals

Other professionals (as regulated by Law no. 287/2009 on the Romanian Civil Code) who do not have the status of employers and disrupt the activity in whole or in part based on the decisions issued by the competent public authorities according to the law, during the state of emergency, benefit from the general budget consolidated by an allowance equal to the minimum gross basic salary in the country guaranteed in payment established for 2020.

This allowance is subject to taxation and payment of contributions under the conditions provided by the Romanian Fiscal Code.

According to the Romanian Civil Code, all those who operate a business are considered professionals. In the light of the Code, the operation of a company represents the systematic exercise, by one or more persons, of an organized activity consisting of the production, administration or alienation of goods or the provision of services, whether or not it has a profit-making purpose.

 

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