Updated – Price capping and ongoing agreements in the context of Coronavirus Pandemic

What’s new? – The Presidential Decree No. 240/2020 no longer provides for price capping at the average prices of the three months prior to 16 March 2020. Additionally, in the event of a decrease in the prices of electricity and natural gas, on the regional markets, the Decree provides that the Government will take the necessary measures so that such decrease will be partially or fully reflected in the final price to consumers. However, Parliament Decision No. 4/2020 provides that the restriction of certain rights or freedoms can be ordered only by acts having the force of law.

What is maintained? The possibility of capped prices during the prolongation of the state of emergency for public utility services such as electricity and heat, gas, water, sanitation and fuels is maintained, along with all the measures adopted to enforce the first decree, unless the Presidential Decree no. 240/2020 provides otherwise.

Which price will be applied? Unless other capped prices or tariffs are regulated by the Government, the capped prices at the level existing on 29 March 2020 shall be applied, as provided by the Military Ordinance no. 4/2020.

What’s next? The provisions of the Presidential Decree are very likely to give rise to uncertainty and debate with respect to the capping of the final prices to consumers. It is unclear how the Government will interpret the concept of “regional markets (it should be regarded as referring to EU regional markets only ?) and which measures the Government will take in order to ensure a reflection of the decrease in prices on the regional markets in the final price.

Uncertainty also persists as to how the Government will be able to adopt the restriction of rights; it cannot be excluded that the Parliament intended for the Government to be able to adopt the restrictions only by means of GEO, not by Military Ordinance. In this case, any measures adopted by the Government may be subject to further amendments by the Parliament.

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Article posted on April 4, 2020:

What’s new? Capped prices for electricity and heat, gas, water, sanitation and fuels from 29 March 2020 until the end of the state of emergency. The capping means in this case that the prices cannot increase above the level existing on 29 March 2020, but they can decrease according to supply and demand. This measure was taken through Military Ordinance no. 4/2020.

Who’s affected? The Ordinance does not differentiate with regard to whom the capping measures will apply, meaning that all prices are capped. Therefore, the measure may be applied to producers, distributors, suppliers and end customers. This leads to a certain degree of confusion, since prices in energy are mostly formed on centralized markets such as the Day-Ahead Market (PZU), OPCOM, commodity exchanges, etc.

Which price will be applied? There are inconsistencies between the price caps established under Decree No. 195/2020 and the Military Ordinance. The possibility of price capping for certain goods and/or services was first introduced through presidential Decree No. 195/2020 for declaring the state of emergency in Romania on 16 March 2020. The decree considers the average prices for the three months prior to 16 March 2020. The price capping under the Military Ordinance considers the price levels applicable on the day of the Ordinance – 29 March 2020.

What’s next? The provisions of the Military Ordinance are very likely to give rise to uncertainty and debate with respect to the capping of the prices, since they stray from the provisions of the Presidential Decree for declaring state of emergency.

Updated – Criminal Law: Review of the main measures provided by the state of emergency decree

The state of emergency initially instituted in Romania until 14 April has been extended for an additional 30 days as of 15 April 2020. Some additional measures have also been included regarding the criminal proceedings and we have listed below an updated review of their impact:

1. Criminal investigation activity has been slightly relaxed and although it can be particularly performed regarding the cases indicated in the decree and the cases considered urgent by the prosecutor, there is not anymore provided a specific restriction regarding the other cases. Essentially, the criminal investigation activity will be focused on:

  • cases in which preventive measures were ordered or proposed, cases regarding the protection of victims and witnesses, cases for applying medical safety measures and cases in which the victims are minors;
  • criminal investigation activities and evidence related activities the delay of which would endanger obtaining of evidence or catching the suspect/defendant and preliminary hearing activities, as well as imposing precautionary measures;
  • cases which are urgent given the purpose of the national state of emergency, cases regarding offences against human life, as well as urgent cases considered as such by the prosecutor and cases concerning flagrant offenses, cases in which preventive measures have been ordered, cases regarding appeals against enforcement of punishment, cases concerning appeals against precautionary measures, cases regarding international judicial cooperation in criminal matters, cases which include measures to protect victims and witnesses, cases regarding medical security measures, cases regarding crimes against national security, cases regarding acts of terrorism or money laundering
  • solving the cases in which the criminal investigation was completed before the institution of the state of emergency, verifying the resolutions by the hierarchical superior prosecutor and solving the complaints against criminal investigation measures and activities.

The competent courts can be notified with an indictment or with an agreement of guilt plea only regarding cases mentioned al let. b above.

During criminal investigation phase, the Judge of freedoms and wrights will rule on the requests, proposals, complaints, appeals and any other notifications regarding the cases mentioned al let. a-d above.

2. The activity in the preliminary chamber and court trial shall be suspended during the state of emergency, except for:

  • cases in which the urgency is justified by the purpose of instituting the national state of emergency
  • urgent cases considered as such by the judge of the preliminary chamber or by the court, as well as
  • cases indicated in the decree (flagrant offenses, preventive measures, appeals against enforcement of punishment, appeals against assets seizure measures, international judicial cooperation, measures regarding the protection of victims and witnesses, medical security measures, offenses against national security, terrorism or money laundering).

During the state of emergency, in the cases mentioned above and given the specific circumstances, the courts can set short hearing terms, including from one day to another or even on the same day. Criminal liability statute of limitations is suspended during the state of emergency:

  • in the cases where criminal investigation is not performed and
  • in the cases where criminal proceedings are suspended.

Suspension operates legally, without the need to issue an ordinance or a ruling for this purpose

3. The consent for communication of procedural documents in criminal cases by electronic mail is presumed and, if needed, the judicial bodies will urgently request by telephone the e-mail addresses for communication of documents.

4. Time limits for communication of ordinances, for submitting a complaint and ruling regarding such complaints (other than those provided at point 1 above) are interrupted. Time limits for submitting appeals in criminal cases (except for the cases tired in accordance with the Decree) are interrupted. Once the state of emergency ends, a new time limit of the same duration will commence.

5. The hearing of individuals deprived of their liberty shall be made through videoconference.

6. If there are available means, the hearing of other persons shall be made through videoconference as well, if they agree.

7. Public tenders for sale of the movable assets seized in the criminal proceedings are suspended, except for the ones performed through electronic means

8. During the state of emergency, the assets in respect of which precautionary measures have been imposed may be commandeered, according to the Law no. 132/1997 if they are necessary to prevent and combat the spread of COVID-19 infections. Criminal investigation and criminal trial are performed according to the Criminal Procedure Code, with the possibility, if necessary and depending on the evolution of the situations generated by the state of emergency or its effects, to establish special rules regarding the procedure for the investigation and trial of the crimes committed during the state of emergency. or taking advantage of this condition, as well as in the case of flagrant offenses.

9. The defendants under a preventive measure such as judicial supervision or on bail shall not present themselves before the supervision body or judicial body which ruled the measure. For the supervision of the defendant, the designated body will go to the defendant`s domicile according to the supervision plan or whenever it is considered necessary.

10. Within 10 days as of the end of the state of emergency, the judge / court will take measures for setting the hearing dates and for performing procedural activities.

The Decree also provides measures regarding the Prosecutor`s Offices and courts` activity in the case when these units are prevented to function. In this respect it is provided that some of the cases pending before these judicial bodies might be investigated/tried by an equal Prosecutor`s Office or court.

There are provided measures regarding the enforcement of the punishments and deprivation and non-deprivation of liberty measures, some activities related to their enforcement being suspended during the state of emergency. Also, exercising certain rights of the incarcerated or arrested individuals was suspended, while the time for telephone and online conversations was correspondingly increased.

Updated – The activity of the National Trade Registry Office and of local trade registry offices

The state of emergency instituted in Romania was extended for a period of 30 days as of 15 April 2020.

During the state of emergency, the activity of the Trade Registry Office continues as regards the registration of amendments regarding legal and natural persons registered with the trade registry. Such activity will be carried out by electronic means or through correspondence, on paper.

The affidavits can be submitted with the trade registry as private deeds or in electronic form, without any other further formality.

The signature specimen, where the case, can be legalized by the notary public, certified by a lawyer or signed under private deed, and can be submitted with the trade registry, without any other further formality.

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Article posted on Mar 23, 2020:

The state of emergency was instituted in Romania for a period of 30 days as of 16 March 2020 (i.e. the date when Decree No. 195/2020 establishing the state of emergency in Romania was published in the Official Gazette).

During the state of emergency, the activity of the National Trade Registry Office and of the local trade registry offices continues as regards the registration of amendments regarding legal and natural persons registered with the trade registry. Such activity will be carried out by electronic means, based on the request for registration of the amendments and documents attached to it in electronic form, having incorporated, attached or logically associated the extended electronic signature.

act legal continues to provide assistance regarding the registration of amendments with the trade registry, by using extended electronic signature.

Updated – Disputes: Civil and administrative disputes currently registered with the courts

The state of emergency initially instituted in Romania until 14 April has been extended for an additional 30 days as of 15 April 2020. Additional measures have also been enacted with respect to the courts’ activity.

We have listed below an updated review of the impact the state of emergency will have on civil and administrative disputes currently registered with the courts:

1. Only especially urgent matters will be addressed by the courts; the list will be established by the management committees of the High Court of Cassation and Justice or of the courts of appeal, as applicable, for disputes within their respective jurisdiction. The courts will observe the following rules:

  • time limits will be set on short notice, i.e. for the following day or on the same day;
  • hearings may be held by videoconference and documents may be communicated by e-mail or fax;
  • the new measures enacted on 15 April provide for logistical aspects on the conduct of hearing by videoconference and set in place a series of obligations for the courts who have jurisdiction in the areas where the parties, their representatives and other participants to the trial (the Participants) are located (which may be different from the court hearing the matter); thus, upon request from the court hearing the urgent matter, the courts who have jurisdiction at Participants‘ locations will: (i) proceed to their identification in accordance with the applicable legal provisions, through a judge appointed by the president of the court to this end and (ii) provide them with all the necessary audio-video equipment for the purposes of the audio-conference hearing;
  • throughout the process for the implementation of the measures mentioned above there is no obligation to draw-up specific minutes (such as the ones required for rogatory commission measures);
  • when possible, the statements of claim, appeals, as well as any other procedural documents addressed to the court, for which the law requires the written form and which are not submitted directly during the hearing, will be filed by electronic means;
  • urgent cases may be adjourned upon request; if the request is dismissed, the court is bound, however, to adjourn the ruling and allow written statements by the parties, either ex officio or upon party`s request.

2. Civil cases which are not particularly urgent are automatically suspended during the state of emergency, without the need to file any formal request to this effect (such as a request to adjourn or change the hearing date);

3. At the end of the state of emergency, proceedings in non-urgent matters will be resumed ex officio; within 10 days as of the end of the state of emergency the courts will take measures for setting the hearing dates and summoning of the parties;

4. Time limits for filing appeals running at 14 April 2020 (i.e. the date when the state of emergency was instituted) are interrupted and new time limits with the same duration will run as of the date when the state of emergency ends;

5. Appeals already filed in non-urgent matters will be referred to the competent courts after the state of emergency ends;

6. Statutes of limitations and time bars do not begin to run and, if already commenced, are suspended for the duration of the state of emergency;

7. If due to the COVID – 19 pandemic, the number of judges necessary to form the panel in a hearing cannot be assured, the president of the court or his substitute orders the participation of judges from other divisions of the court, appointed by lot; and

8. During the state of emergency the drafting and notification of court decisions as well as the filing of new court applications and any other activities continues,  subject to the observance of sanitary discipline rules in force during the state of emergency.

Is there a risk for companies to be exposed to criminal investigations for non-complying with the measures implemented by the authorities?

Context

Following the accelerated spread of COVID-19, the President of Romania declared the state of emergency for a period of 30 days as of 16 March 2020. According to the latest press statements this will most likely be extended by an additional thirty days term.

One of the first measures announced by the Romanian prime minister was the tightening of the criminal laws regarding the offenses of spreading the infectious diseases. The purpose of adopting the new regulation was to enforce compliance with the measures taken by the authorities to prevent and stop the spread of COVID-19.

In recent weeks the national criminal investigation bodies have announced the opening of more than 200 criminal investigations.

The main crime pursued is the Preventing the fighting of diseases that incriminates the failure to comply with the measures taken for the prevention and combating of infectious and contagious diseases, if this resulted in the spreading of the disease.

Pursuant to Article 135 of the Criminal Code, the legal entities shall have criminal liability for offenses committed in relation to the performance of their object of activity or in their interest or their behalf. The criminal liability of legal entities does not exclude the criminal liability of the individual(s) participating in the commission of the same offense.

Which are the implications for companies who do not comply with obligations established by the authorities?

Although the main legislative changes concern the facts committed by natural persons who, for example, do not comply with the quarantine or isolation measures, the offense provided in Article 352 par. (2) of the Criminal Code also incriminates the acts committed by legal entities that do not comply with the obligations established by the authorities.

For a company to be liable, the following conditions must be met:

  1. The failure to comply with a pre-existing obligation or with measures ordered by public authorities in order to prevent or combat spreading of Coronavirus (such as the obligation of all companies to provide all the materials intended for personal hygiene, to disinfect frequently door locks and other exposed areas, like conference tables). The mandatory measures ordered by the authorities are established by the military ordinances or the emergency ordinances of the government . So far, the Ministry of Labor has issued a series of recommendations but not all of them mandatory for companies. The breach of the recommendations cannot trigger the criminal liability of legal entities;
  2. the breach of measures results in the infection of at least one person with COVID -19 virus.

Sanctions

The penalties applicable to legal entities breach the criminal law provisions include fines and other ancillary measures such as: the suspension of the activity or of one of the activities performed by the legal entity for a term between three months and three years or the closure of working points of the legal entity for a term between three months and three years or in worse case scenarios even the winding-up of the legal entities.

If a legal entity is held liable for Preventing the fighting of diseases as indicated in Article 352 par. (2) of the Criminal Code, the court can sentence the legal entity to a fine of up to 300,000 euros.

In case the preventing of fighting of diseases offence is committed involuntary, the fine can be established to a maximum of approx. 185,000 euros.

Also, the companies can be held liable for the offences regarding labor health and safety rules, such as the Failure to take labor health and safety measures if an employee is infected with COVID-19 following non-compliance with the labor protection measures. For instance if a company does not comply with the measures imposed by the authorities regarding the avoidance of the spread of COVID-19 and as a result of these non-compliance a client of the company is infected with COVID-19, the company will be criminally liable for  the crime of preventing the fighting of diseases. If this non-compliance has the consequence of creating an imminent danger for infecting the company’s employees with COVID-19 during the course of their professional activity, the company will be criminally liable also for the offense of Failure to take labor health and safety measures.

Recommendations

In order to avoid criminal investigations regarding this matter, the companies should develop a contingency and business continuity plan for an outbreak in the communities where their business operates, taking into consideration the guidance published by the World Health Organization.

Companies need to remain alerted and take note of and effectively implement the measures decided by the public authorities on an almost daily basis.

Price capping and ongoing agreements in the context of Coronavirus Pandemic

What’s new? Capped prices for electricity and heat, gas, water, sanitation and fuels from 29 March 2020 until the end of the state of emergency. The capping means in this case that the prices cannot increase above the level existing on 29 March 2020, but they can decrease according to supply and demand. This measure was taken through Military Ordinance no. 4/2020. </p>

Who’s affected? The Ordinance does not differentiate with regard to whom the capping measures will apply, meaning that all prices are capped. Therefore, the measure may be applied to producers, distributors, suppliers and end customers. This leads to a certain degree of confusion, since prices in energy are mostly formed on centralized markets such as the Day-Ahead Market (PZU), OPCOM, commodity exchanges, etc.

Which price will be applied? There are inconsistencies between the price caps established under Decree No. 195/2020 and the Military Ordinance. The possibility of price capping for certain goods and/or services was first introduced through presidential Decree No. 195/2020 for declaring the state of emergency in Romania on 16 March 2020. The decree considers the average prices for the three months prior to 16 March 2020. The price capping under the Military Ordinance considers the price levels applicable on the day of the Ordinance – 29 March 2020.

What’s next? The provisions of the Military Ordinance are very likely to give rise to uncertainty and debate with respect to the capping of the prices, since they stray from the provisions of the Presidential Decree for declaring state of emergency.

Amendments to GEO no. 30/2020 on technical unemployment measures during the state of emergency

On 30th March the Romanian Government published in the Romanian Official Gazette GEO no. 32/2020 that amends, among others, the initial regulation on technical unemployment measures adopted in the context of COVID-19 epidemic by GEO no. 30/2020.

The amendments brought by GEO no. 32/2020 have the declared purpose of simplifying the conditions and formalities that need to be fulfilled in order for the employers to get the technical unemployment indemnity granted by the Romanian state.

1. Changes to the conditions that must be fulfilled by the employers in order to benefit from the indemnity granted by the state

Who shall benefit from the technical unemployment indemnity granted by the Romanian state? The employees of the employers that temporarily reduce or discontinue their activity, partially or totally, due to the effects of the COVID-19 epidemic, during the state of emergency, subject to an affidavit given by the employer in this respect.

The following documents are no longer required:

  1. the certificate of emergency situations is no longer required for the employers deciding the total or partial discontinuity of their activities based on decisions issued by the competent public authorities as per the applicable legislation;
  2. the affidavit from which to result the decrease of incomes of minimum 25% in comparison to the average incomes afferent to the period January – February 2020 and the lack of financial capacity to pay all employees, for the employers that are reducing their activities due to the effects of COVID-19 epidemic and that are not having the financial capacity to pay all the salaries to their employees.

In addition, all the employees of the employers mentioned at point 2 above shall benefit from the indemnity granted by the state (contrary to the previous regulation that capped the granting of indemnity only to maximum 75% of the employees having individual employment agreements active at the date of entering into force of the initial GEO no. 30/2020).

2. Clarifications on the amount of the indemnity granted to the employees for technical unemployment

In case the employer’s budget for personnel expenses allows it, the indemnity for technical unemployment granted by the Romanian state may be supplemented by the employer with amounts representing the difference up to minimum of 75% of the base salary corresponding to the occupied job, as per the general rule provided under art. 53 para. (1) of the Romanian Labour Code.

3. Additional provisions regarding the employees having concluded multiple individual employment agreements

In case an employee has multiple individual employment agreements concluded and at least one full-time agreement is active during the state of emergency, the employee shall not benefit from the indemnity granted by the Romanian state.

In case an employee has multiple individual employment agreements concluded and all of them are suspended due to the state of emergency, the employee shall benefit from the indemnity afferent to the individual employment agreement providing the most advantageous salary rights.

4. Changes in the procedural aspects for benefiting from the indemnity

The employers shall electronically submit with the competent employment agencies (i) a request signed and dated by the legal representative of the employer  together with an affidavit and (ii) the list of persons who shall benefit from the indemnity assumed by the legal representative of the employer, as per a template that will further be adopted by order of the ministry of labour and social protection and published in the Official Gazette.

The employers shall be held responsible for the correctness and the truthfulness of the data contained by such documents.

Please note that the templates provided under the initial GEO no. 30/2020 are no longer valid.

5. New terms for payment of indemnity by the state / employer

The term for payment of the indemnity by the Romanian state to the employer was modified to 15 days as of submission of documents by the employer (the initial term provided under the previous regulation was of 30 days as of such submission of documents).

The employer shall pay the indemnity to the employees within 3 days as of receiving the amounts from the state.

6. Provisions related to other beneficiaries of the indemnity granted by the state

Other professionals (such as individual companies or self-employed persons) and the persons having concluded individual labour agreements (Romanian: conventii individuale de munca) under Law no. 1/2005 on the management and functioning of cooperatives, that are discontinuing the activity due to the effects of the COVID-19 epidemic, during the state of emergency, shall benefit from a monthly indemnity amounting of 75% of the medium gross salary provided by Law no. 6/2020 on the state social security budget for 2020, based on an affidavit.

The natural persons obtaining incomes exclusively from copyrights and neighboring right, as regulated under Law 8/1996 on copyright and neighboring rights, that are discontinuing the activity due to the effects of the COVID-19 epidemic, during the state of emergency, shall benefit from a monthly indemnity amounting of 75% of the medium gross salary provided by Law no. 6/2020 on the state social security budget for 2020, on the basis of the documents requested by the National Agency for Payments and Social Inspection.

Also, GEO no. 32/2020 provides certain rules regarding sportsmen.

Prohibitions and restrictions imposed by the authorities under Military Ordinance no. 3/24.03.2020 in order to restrain the fast spreading of coronavirus disease among population

On March 16, 2020, the President of Romania enacted the decree declaring a state of emergency in Romania as a response to the fast spreading of COVID-19 virus.

In line with the prerogatives given to the authorities during the state of emergency, the Minister of Internal Affairs enacted Military Ordinance no. 3/24.03.2020 based on which new interdictions and restrictions were imposed with respect to the free movement of people in order to prevent the spread of Covid-19 .

We have included below a short review of the main measures implemented by this Military Ordinance:

  1. Irrespective of the time interval, the movement of people outside their home is prohibited
  • Exceptions are made for the following specific cases: travelling to work where not possible to work from distance, basic shopping, urgent medical assistance, movement for grounded reasons (such as childcare/ assistance of elderly people and people with disabilities, death in the family), short trips around the house / household for individual physical activity, as well as for pets’ needs, blood donation, humanitarian actions and volunteering, agricultural activities or trade of agri-food products;
  • A special case is provided for the old people who have reached the age of 65, as they can leave their houses only for a part of the exempted cases described above and only during the hours of 11:00 – 13:00. They can circulate outside the aforesaid hours only in case they are travelling to work (where not possible to work from distance) and for agricultural activities.
  1. Affidavit and certificates issued by the employer

The grounds for movement / circulation will be verified by the authorities based on the following deeds:

  • a work card (legitimatie) or a certificate issued by the employer for proving the movement for work purposes;
  • an affidavit for (i) operators performing agricultural activities and (ii) movement for any other circumstances than those specified above.

The certificate / affidavit can be presented to the authorities in digital / electronic form, using the telephone, the tablet or any other similar electronic device, a physical document not being necessary in such cases. Given the fact that the affidavit must include, among other, the signature of the author, there are two possibilities:

  • the statement shall bear electronic signature or
  • the statement shall bear handwritten signature and the interested person shall present to the authorities a picture / a scan of the respective statement via the chosen electronic device.

The same regime should apply to the certificate issued by the employer.

  1. Supervision of people in quarantine and self-isolation

All entrants on Romanian territory after March 25, 2020 will be put in quarantine or in self-isolation.

In order to verify the compliance with the related interdictions and restrictions, the national security institutions will design specific communication and IT applications which shall allow the permanent and real time communication of the authorities with the individuals in quarantine or self-isolation.

  1. Suspension of flights

In addition to Italy and Spain, all flights to and from France and Germany to and from Romania, from all airports, shall be suspended for a period of 14 days starting with March 25, 2020, 23:00 EET.

Note: Such measure is not applicable to state aircraft, transportation of goods and correspondence, humanitarian or emergency medical services as well as to non-commercial technical endorsements.

  1. Documents which expire during the emergency state

The documents issued by the public authorities which expire during the emergency state may be changed within 90 days calculated as of the emergency state end date.

  1. New measures applicable to economic operators
  • Additional measures must be applied by public institutions and economic operators, which are required to mark the areas designated for the public / clients’ access within their respective spaces, as well as the customer-care and the sales’ area with visible indicators to guide the people to observe the minimal safety distance of 1.5 meters.
  • Stricter safety measures have also been adopted for the agri-food market administrators, which must organise the sale activity so that social distancing is maintained between agricultural producers, merchants and purchasers. Agricultural producers and merchants are also obliged to wear safety masks and gloves.
  1. Certain activities have been exempted from the temporary suspension

The temporary suspension of the commercial activity conducted in a shopping center which was imposed by the Military Ordinance no. 2/2020 shall no longer apply in relation to (i) the economic operators selling electronic products and home appliances if they ensure home delivery and (ii) the sale of medical optical products and services.

COVID-19: Temporary closing measures under the state of emergency

Under the Covid-19 state of emergency, temporary closing measures of restaurants, hotels, coffee shops, clubs, casinos, associations’ headquarters or other public places may be ordered by the authorities. The measures currently in force include the following:

  • temporary closing of shopping centersexcept for:
    • sale of food, pharmaceutical or veterinary products;
    • cleaning services;
    • sale of electronic / electric household products by the economic operators which also ensure home delivery / delivery at the headquarters of purchaser;
    • sale of medical optics products and services;
  • temporary suspension of activities such as food or beverage serving and consumption within restaurants, hotels, cafes or other public places within the interior or exterior spaces designated for this purpose, except for the options which allow clients not to remain in the respective spaces, such as:
    • drive-in;
    • room service;
    • home delivery;
  • temporary suspension ofall cultural, scientific, artistic, religious, sports, entertainment, gambling, SPA and personal care activities which are performed in closed spaces;
  • temporary suspension of dental medicine offices, except for urgent interventions;
  • events of more than 100 persons in open spaces are also prohibited, while events with a lower number of participants may be organised provided that a distance of minimum 1 meter is ensured between participants.

At the same time, additional measures must be applied by public institutions and economic operators, which are required to mark the areas designated for the public / clients’ access within their respective spaces, as well as the customer-care and the sales’ area with visible indicators to guide the people to observe the minimal safety distance of 1.5 meters.

Stricter safety measures have also been adopted for the agri-food market administrators, which must organise the sale activity so that social distancing is maintained between agricultural producers, merchants and purchasers. Agricultural producers and merchants are also obliged to wear safety masks and gloves.

COVID-19: The new False Statements offence and how not to become a nation of criminals

Starting 23 March 2020, became applicable the measure imposed through the Military Ordinance no. 2/2020 on measures for preventing the spread of COVID – 19 according to which, between the hours 22:00 – 06:00, Romanian citizens may leave their houses only for:

  • travel for professional interest, including from the domicile to the place(s) of professional activity and back;
  • travel for the acquisition of goods that cover the basic needs of individuals and pets, as well as goods necessary for performing the professional activity;
  • travel for medical care that cannot be delayed or provided remotely;
  • travel for justified reasons, such as caring / accompanying the child, assisting elderly, sick or people with disabilities, or death of a family member;
  • short trips, near the house / household, related to individual physical activity and pets needs.

Although initially the measure was just a recommendation as regards travels between 06:00 – 22:00 for the above reasons, the Military Ordinance no. 3/2020 (effective since 25 March 202), the restriction was extended for the entire day and a few new reasons were added:

  • travel for blood donation to the blood transfusion centres;
  • travel for humanitarian or voluntary purposes;
  • travel for agricultural activities;
  • travel of agricultural producers for the marketing of agri-food products.

At the same time, new restrictions were added for people who have reached the age of 65 who may now leave their houses – for some of the reasons shown – only between 11:00 and 13:00.

Both in case of travelling for professional interest, and in case of travelling for personal interest, it is necessary for the persons who are outside their houses to have a own liability statement in order to prove the reason for their travel.

The purpose of the own liability statement is to alert the declarant on the importance of its content, on the reality that this statement must express, especially considering the purpose for which the obligation of its drafting was established.

One of the elements included in the statement model made publicly available is the one according to which the person who drafts and signs it knows the provisions of art. 326 Criminal code (on false statements) and of art. 352 Criminal Code (on compromising the fight against diseases).

Since the latter offence has been intensely debated lately, we now draw attention to the false statements offence that can be easily committed under the current circumstances, especially given the lately reluctance of Romanians to follow the authorities recommendations meant for stopping the spread of COVID – 19 virus.

According to the legal text, the false statements offence consists in the false statement of the truth, made to a person among those provided in art. 175 or to a unit in which that person performs his/her activity in order to produce a legal consequence, for himself/herself or for another, when, according to the law or the circumstances, the statement serves to produce that consequence and is punished with imprisonment from 6 months to 2 years or with a criminal fine.

A few days ago, through the Government Emergency Ordinance 28/2020, the minimum limit of the imprisonment penalty for the basic form of the offence (which was previously of 3 months imprisonment) was increased and a new form of incrimination was introduced, which consists in the false statement of the truth, made to a person from the ones provided in art. 175 or to a unit in which that person performs his/her activity, committed to conceal the existence of a risk regarding the infection with an infectious contagious disease which is now punished with imprisonment from 1 to 5 years or a criminal fine.

If the aggravated form of the offence has been designed to hold responsible (and to sanction more severely) the persons who enter the territory of Romania and falsely state before the authorities regarding the areas they came from or they have transited and / or the persons who do not declare or declare falsely any coronavirus symptoms they have, the offense having in such cases an express purpose – hiding the existence of a risk regarding the infection with an infectious-contagious disease – the basic form of the offence will now be relevant for absolutely all Romanian citizens that may be held criminally responsible, who travel outside their house under the mentioned conditions.

Thus, the offence can be easily committed by any person who chooses to alter the truth contained in the own liability statement and presents it to the authorities competent to request it.

For example, in case a person leaves the house for a purpose other than those explicitly listed by law, but drafts a statement in which he/she uses one of those cases and presents it to the competent authority in order to justify the travel, that person commits the false statements offense.

Or, another way of committing the offence is by including in the content of the statement only one of the reasons provided by law, with the travel actually extends to other purposes provided by law or not, in the sense of partially altering the truth.

Incorrect statement of the truth regarding any of the other elements contained in the statement – like place where the declarant lives, hours or places between which the person travels – can also trigger criminal liability for the false statements offence , therefore committing it can take various forms.

The sanctioning of such a criminal act is justified, on the other hand, by the value protected through its incrimination – public trust – which represents the nucleus of social relations and the guarantee that everything will develop under predictable conditions.

What is also interesting is the sanction applicable in case a person travels outside the house without however presenting an own liability statement. In this respect, the Military Ordinance 2/2020 provides that breach of the first emergency measures provided in art. 1 -7 triggers disciplinary, civil, contraventional or criminal liability, as per the provisions of the Government Emergency Ordinance no. 1/1999 on the regime of the state of siege and the regime of the state of emergency. We note in this respect that, by corroborating art. 27, 28 and 9 of Government Emergency Ordinance no. 1/1999, the breach of the obligation to comply with and apply all the established measures specific to the established state of emergency represents a contravention and is sanctioned with the contraventional fine from RON 100 to RON 5,000. Therefore, if the false statement remains a criminal offence and is punished by imprisonment or criminal fine, the lack of the own liability statement is only sanctioned contraventionally.

Moreover, since the statement must have a written form (completed in advance), we cannot help wonder to what extent such statement can be drafted by people who do not know or cannot write (which in Romania nowadays is unfortunately not a rare case).

To conclude, although the own liability statement is apparently a simple instrument, it will be necessary to pay greater attention to its drafting, since by corroborating the multitude of specific ways of committing the false statements offence with the very large number of people who have the obligation to draft the own liability statement, one can easily reach an “epidemic” of criminal files at national level.

And we do not think that one more is needed. Solving and coping with the Covid 19 one should take us sufficient time, at least for now.