COVID-19: The new False Statements offence and how not to become a nation of criminals Posted on 25. března 202025. března 2020 by Ana Pandelea 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.
COVID-19: Employment Law – The Romanian state decided to grant support to companies for technical unemployment Posted on 24. března 202024. března 2020 by Ana Pandelea Per GEO no. 30/2020, during the state of emergency, for the period of suspension of the individual employment agreements initiated by the employers due to technical unemployment caused by the effects produced by COVID-19, the affected employees shall benefit from an indemnity of 75% of the basic salary corresponding to the occupied job, which will be borne from the unemployment insurance budget (but no more than 75% of the medium gross salary provided by Law no. 6/2020 on the state social security budget for 2020). The employers must meet the following conditions: the employers decide the total or partial discontinuity of their activities based on decisions issued by the competent public authorities as per the applicable legislation, during the state of emergency (in this case, a certificate of emergency situations issued by the Minister of Economy, Energy and Business Environment is required); or the employers reduce their activities due to the effects of COVID-19 epidemic and do not have the financial capacity to pay all the salaries to their employees, the indemnities being covered by the unemployment insurance budget for maximum 75% of the employees having individual employment agreements active at the date of entering into force of GEO no. 30/2020 (in this case, an affidavit given by the employer is required from which must 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). The indemnity is subject to taxes and other mandatory social contributions that shall be calculated, retained and paid from the indemnities received from the unemployment insurance budget. In order to obtain the amounts representing indemnities, the employers shall submit a series of documents having the form and content provided by the annexes to GEO no. 30/2020.
COVID-19 – Real Estate: Review of the main measures provided by the state of emergency decree Posted on 23. března 202023. března 2020 by Ana Pandelea 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). We have included below a short review of the main measures provided by the state of emergency decree from real estate projects perspective: Issuance of emergency situation certificates in order to prove that an economic operator’s activity was affected because of COVID-19’s impact: the Ministry of Economy, Energy and Affairs will issue emergency situation certificates based on supporting documents upon request of the economic operators whose activity is affected because of COVID-19; In relation to public authorities: the validity of the documents issued by the public authorities which were to expire during the state of emergency shall be maintained; during the state of emergency, the legal terms for the public authorities’ responding to requests submitted based on free access to public interest information, as well as those related to petitions, are doubled. State authorities may gradually adopt measures such as temporary closing of restaurants, hotels, coffee shops, clubs, casinos, associations’ headquarters or other public places; Thus, authorities have already ordered the temporary closing of shopping centers (except for sale of food, pharmaceutical or veterinary products or cleaning services) and suspension of activities such as food or beverage serving within restaurants or other public places, as well as cultural, sports, entertainment or gambling activities within enclosed spaces. The Government may adopt measures for supporting companies and other entities affected by COVID-19 crisis, as well as for supporting the employers and employees. 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.
COVID-19 – Employment Law: Review of the main measures provided by the state of emergency decree Posted on 23. března 202023. března 2020 by Ana Pandelea 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). We have included below a short review of the main measures provided by the state of emergency decree from an employment law perspective: Measures for the social protection of employees and their families in the economic sectors where the activity is affected or halted totally or partially by decisions of public authorities, during the emergency state, shall be established by way of order of minister of the Ministry of Labour and Social Protection; Private companies will implement work from home or telework during the state of emergency, where possible, by employer’s unilateral decision; Inspections of the Territorial Labour Inspectorates at employers shall be suspended, except for specific cases expressly provided under the Decree (i.e. inspections ordered by the ministry of labour and social protection, inspections ordered by the Labour Inspection for the enforcement of the decisions of the National Committee for Special Emergency Situations, necessary inspections for events having an increased degree of social danger and inspections for investigating work accidents); The validity of the Collective Bargaining Agreements and of the collective agreements (Romanian: acorduri colective) shall be maintained during the emergency state. Furthermore, the Decree expressly provides that (i) measures may be adopted for supporting the economic operators affected by COVID-19 and (ii) the Govern may support the employers and the employees affected by the effects of COVID-19 crisis, by way of derogation from general legal provisions in force. In addition to the above, considering school closing given the COVID-19 pandemic, the Romanian Parliament passed Law No. 19/2020 on granting paid leave to parents for child surveillance, in case of temporary closing of education establishments, as further amended and supplemented by Emergency Ordinance no. 30/2020 (“Law 19/2020”) and the Government adopted the Government Decision No. 217/2020 for the implementation of Law 19/2020 (“Implementation Norms”), including the following measures: paid leave shall be granted to one of the parents for children surveillance in case of temporary closing of education establishments where the children are registered, entailed by adverse weather conditions or other extreme situations declared by the relevant competent authorities; the conditions for granting paid leave are as follows: the respective parents must have children aged up to 12 years or children with disabilities aged up to 18 years registered with an educational establishment; and the parents’ job does not allow working from home or teleworking; The term “parent” within the meaning of Law 19/2020 is wider and includes also, for example: the adopter, the person entrusted with the child / children for adoption purposes, the parent or the legal representative of the adult with disabilities registered with an educational establishment; the provisions of Law 19/2020 are not applicable in case one of the parents (within the meaning of Law 19/2020) is (i) on parental leave, (ii) on paid / unpaid leave or (iii) the personal assistant of one of the dependent children, nor in the case of parents in technical unemployment (Romanian “somaj tehnic”) or in case one of the parents does not have a taxable income; special rules apply in case of parents working in units that must ensure continuity during the state of emergency; the right to paid leave applies for the entire period during which the respective educational establishments are closed given the authorities’ decision. Paid leave shall be granted to one of the parents for the working days until the end of the state of emergency, with the exception of the working days during school holiday; the indemnity for each day off amounts 75% of the base salary corresponding to a working day without however exceeding the correspondent per day of 75% of the medium gross salary used for substantiating of the social security state budget; and the indemnity is paid from the chapter afferent to the personnel expenses of the employer’s income and expenses budget. The employer shall then settle the amounts paid for the indemnities (net values) from the Guarantee fund for payment of salary debts, as per the procedure provided under the Implementation Norms.
Compensation for loss of earnings resulting from the ordered shutdown Posted on 23. března 202023. března 2020 by Ana Pandelea The Epidemic Act (Epidemiegesetz) has been in force in Austria since 1950 and, therefore, might not be flexible enough to deal with the COVID-19-Pandemic. Although the COVID-19 laws, which were passed in Austria in the last few days, provide for extensive aid measures with a total volume of EUR 38 billion, they do not grant entrepreneurs a legal claim to a payment for compensation resulting from the ordered shutdown against the state. This is the main difference to the Epidemic Act in force, which provides for such a legal claim for compensation. However, the Epidemic Act is only applicable to those enterprises that have been closed down on the basis of ordinances or by decisions of the district administrative authorities. Mainly cableway infrastructure and winter tourism enterprises in Voralberg, Tyrol, Salzburg and Carinthia are closed down by such ordinances or decisions. They have a legal claim to compensation for loss of earnings resulting from the close down according to the Epidemic Act. All other entrepreneurs who had to close down their businesses as a result of the nationwide decree of the Minister of Health are not compensated under the Epidemic Act. They are to receive benefits from the COVID-19 crisis fund or other assistance from the government’s COVID-19 aid package.
Corona crisis – „Don’t panic!“ Correct customer communication in the financial sector Posted on 22. března 202022. března 2020 by Ana Pandelea What exactly is the problem? Crises that affect the capital markets have always led to short-circuit reactions among investors. Since stock exchanges have theoretically processed every piece of information the moment it ceases to be insider information, reactive action on the capital market is usually too late. The usual advice in stock market crises such as those triggered by the current corona crisis is therefore always the same: „Don’t panic!“ Consequently, private wealth managers usually advise their clients to be patient and prudent in times of crisis. This advice is correct, but there are numerous legal stumbling blocks that you should avoid when communicating with your clients and choosing your course of action. What do you need to do now? Carefully review your clients‘ portfolios in light of the current situation on the capital market, taking into account various future scenarios. Pay particular attention to compliance with agreed investment limits, loss thresholds, investment guidelines and customer wishes. If you identify a need for action, do not act against your own advice: „Don’t panic!“, so this also applies to you. Choose your communication with your clients carefully. Obtain instructions from your customers if necessary. If there are several options for action, make your choice carefully and document it in detail. What are the risks for you? In investor protection processes, investors always bring up the same arguments again and again when investments prove to be loss-making in retrospect: „I did not understand the product, but blindly trusted my advisor’s advice“„If I had known that my investment strategy would have this effect, I would have chosen another“„I only chose this investment strategy because my advisor told me that it had to be designed in this way for efficient advice“„My counselor advised me to do this“„Despite the crisis, my advisor has not carefully informed me of its possible consequences“ The result is not only lengthy and therefore costly investor protection proceedings, which are usually conducted through several courts and therefore over many years. In the worst case scenario, clients may also claim damages, as a result of which they would ultimately have to pay for the losses caused by the Corona crisis. What other risks exist? There are also considerable regulatory risks in the medium and long term. Particularly after the subprime crisis in the years from 2007 onwards, the regulatory and supervisory authorities spent almost 10 years drawing conclusions for the financial industry, some of which are still being implemented today. Even „investor protection lawyers“ have jumped on this bandwagon and have covered the financial industry with lawsuits. Not least because internal and external processes, documentation guidelines and the information and reporting systems of numerous private wealth managers were not adequate, a very consumer-friendly legal system has emerged, which has cost the financial industry billions. The regulatory authorities have derived numerous measures from this, which have been reflected in MiFID and MiFID II, for example. The corona crisis has the potential to have an even more serious impact on the real economy and thus on investors than all crises in the past 50 years. If this potential has a corresponding regulatory impact, the financial industry will also face some regulatory challenges in the coming decade. What can we do for you? We have many years of experience in defending numerous investor protection lawsuits and the first test case in the financial services sector. In addition, we know what you need to pay attention to in your daily business due to our consulting practice. In addition, we communicate with the regulatory authorities on an equal footing and can also proactively influence them. We make this accumulated know-how available to you in the well-known quality and speed, even in times of „Don’t panic!“ When communicating with your customers, customer advisors and external sales staff, we ensure that it is not only comprehensible but also legally sound. When selecting the right courses of action and developing internal and external processes and documentation guidelines, we ensure that your records, procedures and decisions are legally sound. Finally, we are happy to coordinate with the regulatory authorities in order to agree on packages of measures and to reduce or, in some cases, completely eliminate intervention by the authorities „ex officio“. Please do not hesitate to contact us!
COVID-19 – Energy and Competition / State aid: Review of the main measures provided by the state of emergency decree Posted on 20. března 202023. března 2020 by Ana Pandelea 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). We have included below a short review of the main measures provided by the state of emergency decree from an energy and competition / state aid perspective: The Government may adopt measures to support the economic operators in the areas affected by COVID-19; Beneficiaries of European funds affected by the emergency measures provided in the state of emergency decree may decide, together with the managing authorities / intermediary bodies, to suspend the financing agreements; The Ministry of Economy, Energy and Business Environment may issue, upon request, to the economic operators whose activity is affected in the context of COVID-19, certificates attesting the emergency situation, based on supporting documents; Measures will be provided to ensure continuity in supply, respectively extraction, production, processing, transport, distribution, supply, maintenance and repair, of resources and raw and / or semi-processed materials necessary for the proper functioning of the national energy system, as well as ensuring the continuity of operation of the energy system and all public utility services; The validity of documents issued by the public authorities that were to expire during the state of emergency is maintained; During the state of emergency, prices for medicines and medical equipment, for foods of strict necessity and for public utility services (electricity and heat, gas, water supply, sanitation, fuels, etc.) can be capped, within the limit of the average price of the last 3 months before declaring the state of emergency; During the state of emergency, it is forbidden to declare, commence or carry out collective labour conflicts within the units of the national energy system, operating units from nuclear sectors, continuous fire units, health and social assistance units, telecommunications, radio and public television, rail transportation, units ensuring public transport and sanitation of towns, as well as supplying the population with gas, electricity, heat and water.
Last Call – Be prepared for the possible shutdown! Posted on 20. března 202022. března 2020 by Ana Pandelea Starting Sunday, nationwide curfews are threatened. Ensure the legally compliant work of your employees in the mobile office. The conclusion of appropriate agreements is very useful for this. In addition to the framework conditions under labour law, above all data protection regulations must also be laid down, as is the case with office work. Read more (german version): https://act-newsletter.com/Coronakrise_Arbeiten_im_mobileoffice_datenschutzkonform_gestalten.pdf We are happy to support you. Please contact us.
COVID-19 – The activity of the National Trade Registry Office and of local trade registry offices Posted on 20. března 202023. března 2020 by Ana Pandelea 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.
