Special publication: Law firms in labour law 2021

New business models require suitable structures, targeted training concepts and HR work that supports strategy. HR is challenged to develop new and forward-looking answers. Here, good advice will not infrequently be needed. The now 11th edition of this compendium will support you in choosing an employment law advisor.

Click here to download the full issue of personal magazin plus (06.21) – available in German only.

Romanian Kurzarbeit scheme

Short history of the Romanian Kurzarbeit scheme

The Romanian Kurzarbeit scheme has a short and tumultuous history which began in august 2020 by the adoption of Government Emergency Ordinance no. 132/2020 on support measures for employees and employers in the context of the spread of COVID-19 and the stimulation of employment growth (“GEO no. 132/2020”).

Following the adoption of GEO no. 132/2020 the Romanian Kurzarbeit scheme was amended several times in a very short time frame (i) first, by the government in early December 2020 by the adoption of Government Emergency Ordinance no. 211/2020 on the extension of enforcement of social protection measures adopted in the context of COVID-19 spread (“GEO no. 211/2020”) and (ii) second, by the parliament just few days after the adoption of GEO no. 211/2020 through Law no. 282/2020 on approving GEO no. 132/2020 (“Law no. 282/2020”).

As expected, the Romanian Kurzarbeit scheme was once again amended this year by the recently enacted Law no. 58/2021 on approving GEO no. 211/2020 and amending GEO no. 132/2020 (“Law no. 58/2021”) which was published in the Official Gazette on 5 April 2021 and went into force on 8 April 2021.

Main takeaways from the newly enacted Law no. 58/2021

1. Reducing the working time

Law no. 58/2021 provides that, subject to a temporary reduction of the working time determined by a state of emergency, alert or siege, the employers are entitled to derogate from the Labour Code provisions during such state of emergency, alert or siege and up to 3 months as of the termination of such state and unilaterally reduce the working time of their employees by up to 80% of the daily, weekly or monthly work as provided for in their employment agreements.

Before Law no. 58/2021 the employers where able to reduce the working time only up to 50% of the daily, weekly or monthly work as provided for in their employment agreements.

2. Involvement of the trade unions or of the employees representatives

Law no. 58/2021 provides that, where there are trade unios or employees representatives, the measure from point 1 above will be taken by the employers only with the prior approval of such trade unios or employees representatives, as the case may be.

Nevertheless, if there are no trade unions or employees representatives then the employers may adopt the measure from point 1 above shortly after simply informing the employees of the measure.

Before Law no. 58/2021 the employers only needed to inform and have consultations with the trade unios or employees representatives before reducing the working time.

3. The minimum period for which the reduced working time applies

Law no. 58/2021 provides that, the reduced working time established for the employees should cover at least 5 consecutive working days out of 30 calendar days, calculated from the first day of the effectiveness of the measure.

Thus, the employers obligation to establish the reduced schedule for the entire month that was in force before the enactment of Law no. 58/2021 was repealed.

4. Communication rules with the employees

Similar to the regime prior to Law no. 58/2021, the new enactment provides that the employers must communicate their decisions to implement the measure from point 1 above to the concerned employees at least 5 days before the effectiveness of the measure.

Furthermore, Law no. 58/2021 provides for another communication rule that did not exist prior to this enactment and which provides that the employers must communicate to the employees at least 24 hours before their effectiveness the following amendments to the employees working schedules:

  • amendment of the employees working schedules determined by an increase in the employers business activities that requires the supplementation of personnel, or
  • amendment of the employees working schedules determined by the need to replace employees which find themselves in impossibility to perform their duties according to their work schedule.

5. Supplementation of the indemnity by the employers

Law no. 58/2021 provides that the employers may supplement the indemnity granted by the state (i.e. 75% of the monthly gross base salary afferent to the hours by which the work schedule was reduced) to the employees affected by the measure from point 1 above with amounts representing the difference until the full gross base salary of the employees without such additional amounts being deductible for the employers.

6. Interdiction to hire new employees/subcontract activities

The interdiction to hire employees who perform identical or similar work, or subcontract activities carried out by the employees whose work was reduced was clarified by Law no. 58/2021 in the sense that the new enactment expressly states that such interdictions are only applicable at the level of the branch, subsidiary or other secondary offices where the measure mentioned at point 1 above was applied by the employers.

Furthermore, Law no. 58/2021 expressly provides that hiring is not forbidden if the employers want to replace the employees whose schedules were reduced in accordance to point 1 above if the termination of such employees employment agreements occurred for one of the following reasons:

  • cases when the employment agreements are rightfully terminated;
  • cases where the employment agreements are terminated for reasons that relate to the employee’s person;
  • cases when the employees resign.

7. Amendment of the condition regarding the turnover

Prior to Law no. 58/2021, the condition regarding the turnover reduction of the employers, necessary for the application of the measure mentioned in point 1 above, was objectively assessed according to the decrease of turnover in the last / penultimate month by at least 10% compared to the same month of the previous year, respectively 2019.

The new enactment changed the assessment of the turnover reduction by reporting it to  the same month or to the monthly average of the turnover from the year prior to the declaration of the state of emergency / alert / siege, respectively 2019.

This change was normal due to the fact that 2019 was the last year without COVID-19 and thus, 2019 should be the reference year when reporting the level of the turnover of an employer who wants to use the kurzarbeit scheme.

8. Update of the relevant norms

Law no. 58/2021 provides that the norms approved by Government Decision no. 719/2020 on the reimbursement of the amounts granted through GEO no. 132/2020 will need to be correspondingly updated by the government within 30 days as of the entry into force of Law no. 58/2021.

Whistleblowing. New legal obligations imposed on companies to ensure a healthy business environment

Transparency International recently stated that in 2020, there is no justification on leaving the whistleblowers unprotected. The message was addressed to both the authorities and the business environment. A whistleblower is a person who provides information about certain illegal, incorrect or unethical conduct within a private or public company.

The same press release stated that recent global events have shown that the biggest challenges of today’s society can only be solved if mistakes or violations of the law are reported and the truth is exposed. The world is facing the combined threats of a global pandemic, global warming, exacerbated by systemic corruption.

Read more on Juridice.ro

Who should worry about the European Public Prosecutor’s Office?

Context

In just a few months the European Public Prosecutor’s Office will be operational – the official date is November 2020. This new institution of the European Union has the stated aim of effectively combating crimes against EU financial interests and crimes inextricably linked to them.

A recent report[1] of GRECO (Group of States against Corruption) took over an article written the European Chief Prosecutor, Laura Codruța Kovesi, who stated that the European Public Prosecutor’s Office has the potential to completely change the paradigm in the field of criminal justice, being a results oriented institution .

The European Chief Prosecutor also stated on another occasion that the European Public Prosecutor’s Office will start its activity with 3,000 cases, and that approximately 2,000 new cases will be registered annually[2].

In order to have a complete picture of the impact of the European Public Prosecutor’s Office on natural or legal persons in Romania, it should also be mentioned that Romania is ranked first for fraudulent European funds[3], which will certainly be reflected in an intensified activity of the European Public Prosecutor’s Office in connection with the frauds or acts of corruption associated with EU funds on the Romanian territory.

Activity of the European Public Prosecutor’s Office

Within its competence, the European Public Prosecutor’s Office (EPPO) will investigate and prosecute perpetrators, accomplices or instigators of offenses affecting EU financial interests (provided for in Directive (EU) 2017/1371). To this end, EPPO will conduct investigations and will prosecute before the courts of the Member States until the case is completed.

Under Romanian legislation, the crimes that will be investigated EPPO are mainly those found under Section 41 of Law no. 78/2000 (those regarding the fraud of European funds), under Law no. 241/2005 for preventing and combating tax evasion or corruption offenses regulated under the Criminal Code (such as  bribery, or influence peddling) or misappropriation of funds also incriminated under the Criminal Code.

Without carrying out a technical and exhaustive analysis of the crimes falling within the competence of the European Public Prosecutor’s Office, it is important to note that EPPO will investigate a wide range of crimes, from the classic fraud of EU funds to tax evasion or corruption, while also being competent to investigate any crime inextricably linked to them (a phrase used by the European Public Prosecutor’s Office Regulation, but not yet defined).

Thus, it is expected for many of the crimes that until now were investigated in Romania by the National Anticorruption Directorate (DNA) to be taken over and investigated by the new EU institution of the European Public Prosecutor’s Office.

The investigation by EPPO of these crimes will be slightly different from the classic investigations in Romania carried out so far by DNA. Within the new institution, the European Chief Prosecutor, together with other European prosecutors (forming the Permanent Chambers), will coordinate investigations and make timely decisions on the conduct of each investigation. Moreover, there are situations in which, if the investigated persons allege infringement of rights or a conflict of jurisdiction, the procedure for resolving this dispute may be attributed to the Court of Justice of the European Union based in Luxembourg.

When participating in a conference dedicated to the European Public Prosecutor’s Office, at the end of last year in Germany, we have discussed with other lawyers specialized in European criminal law and magistrates from other Member States about the particularities of investigations conducted by the European Public Prosecutor’s Office and about the need to adapt to an investigation with a pronounced cross-border character[4].

Who is concerned?

Given criminal participation and the range of crimes falling under the competence of the European Public Prosecutor’s Office, any person could be the subject of such an investigation. In particular, any person or company (whether it is a start-up or a multinational company) that manages or wants to obtain financing through European funds can be subject to investigations.

There are many discussions these days about European regional development funds, European social funds, cohesion funds or European agricultural funds for rural development. Regardless of the type of funds intended to be obtained through grants or agreements concluded by the EU institutions, individuals and companies seeking to obtain EU funds must take into account that irregularities in obtaining and managing such will entail the competence of the European Public Prosecutor’s Office.

Grants provide direct support, while other programs based on the provision of European funds are managed by national institutions. Even if the obtained funds are managed by Romanian state institutions, as long as the origin of the funds is from the European Union, all regulations on controls and sanctions for EU funds management will be applicable.

So, whether we are talking about SMEs, NGOs, young people or farmers seeking to obtain European funds to finance their businesses, or legal entities or individuals who manage such funds, everyone should be interested in the European Public Prosecutor’s Office becoming operational in just a few months.

Recommendations

As the European Public Prosecutor’s Office will be operational in a very short time and its aim is to achieve effective results in the shortest possible time, two courses of action are recommended:

  1. Prevention

Although there has been quite a bit of discussion in Romania about criminal prevention, with the European Prosecutor’s Office’s investigations carried out at European standards, Romanian companies (SMEs or multinationals or others) will certainly need to acknowledge as soon as possible the importance of preparing  and implementing criminal prevention policies. As part of my daily professional activity, I met a few Romanian companies, subsidiaries of companies from other EU member states or the US, that had implemented the notion of criminal prevention at the level of organizational culture.

We refer here to anti-corruption policies (globally known as the “Anti-Bribery and Corruption Policy”). This type of policy should no longer be an unknown concept for start-ups or any other type of SME seeking EU funding, as the development and implementation of effective anti-corruption policies can prevent the company being held criminally liable and differentiate between the survival of the business and its closure.

  1. Reaction

Although specialized legal assistance is always recommended when participating in any legal proceedings, in the case of an investigation by the European Public Prosecutor’s Office, a lawyer specializing in white collar crimes and cross-border investigations should all-the-more be contacted as soon as possible for several reasons.

First of all, the start-up phase of the investigation is the most important in its subsequent development and outcome, so it is necessary to have specialized legal assistance from the outset.

Secondly, the lawyer assisting a person under investigation by the European Public Prosecutor’s Office must know, in addition to national law, the European directives on defence rights or the European Public Prosecutor’s Office’s regulation, criminal procedural law on international judicial cooperation and even legislation of other EU’s Member States.

The lawyer is the one who must know all the rights of the person he represents and their extent, and in the context of an investigation of the European Public Prosecutor’s Office the situation is complex.

I have pointed out on another occasion[5] that there are three layers of protection for persons investigated by the European Public Prosecutor’s Office: rights provided under national law, rights established by the 2010 EU directives and the fundamental rights guaranteed by the Charter of Fundamental Rights and the Council of Europe.

It would be impossible for a person under investigation by the European Public Prosecutor’s Office without professional legal assistance to know all his or her procedural rights and ensure an effective defence.

Moreover, investigations by the European Public Prosecutor’s Office often involve carrying out activities and gathering evidence from the territory of different Member States. In this situation, it is extremely important that persons under investigation have knowledge of the relevant procedural rules applicable in the states where the evidence was collected, in particular the rules for gathering evidence, in order to be able to challenge them before the court and benefit from the right to a fair trial.

However, it is almost impossible for a single person to know in detail the criminal procedure legislation of several Member States of the European Union.

For example, we in the act team have often managed to offer the most effective defence for our clients, since as part of the European network of act legal lawyers, we have instant access to the expertise of our colleagues specialized in white collar crimes in other  EU Member States.

Cooperation between lawyers at the level of different Member States is crucial for being able to respond to the intensified international judicial cooperation between the investigative bodies of the EU Member States.

Therefore, with the start of operation of the European Public Prosecutor’s Office, a new type of criminal investigation will begin at EU level, much more complex than those previously carried out in Romania and with much higher aspirations to obtain effective results. These investigations should interest anyone who is looking to obtain European funds but should not represent a risk for those who implement an effective criminal prevention policy and receive specialist assistance in this area.


Notes:

[1] Please see GRECO, Anti-corruption trends, challenges and good practices in Europe & the United States of America, May 2020, available at: https://rm.coe.int/

[2] Please see  https://euobserver.com/justice/147386

[3] Please see https://business-review.eu/business/legal/olaf-romania-has-the-most-eu-funds-fraud-cases-172359

[4] Please see A. Șandru, Apărarea în viitoarele proceduri ale Parchetului European

[5] Please see A. Șandru, Drepturile persoanei anchetate de Parchetul European

New measures in the field of companies regarding the organization and conduct of meetings of statutory bodies

In the context in which the authorities imposed measures that gradually restricted the movement of persons and limited the possibility of carrying out actions involving the reunion of groups of people, it became difficult to organize general meetings of shareholders / associates or collegiate governing and management bodies.

Even in the conditions in which the state of emergency will be lifted from 15 May, the recommendations are already in the sense that the restrictions on social distancing should continue to be observed.

The Government thus came to help the companies that did not provide by their articles of association the possibility to hold general meetings by correspondence and encourages the companies regulated by the Companies Law no. 31/1990 to use alternative legal means in order to be able to continue and adapt their operation to the new reality.

In this sense, the Emergency Ordinance no. 62/2020 for the adoption of measures in the field of companies, with a view to the meetings of the statutory bodies (“GEO”), published on 8 May 2020, includes temporary aspects of novelty that allow the adoption of rapid measures by the company bodies, the physical presence of their members not being required.

  1. Methods of Convening General Meetings

According to the GEO, the general meetings of shareholders / associates can be convened by:

a) the existing legal modalities provided by art. 117 para. (3) of the Companies Law: publication of the call in the Official Gazette and in a widely circulated newspaper; or through

b) any means of distance communication, which ensures the transmission of the text, provided that each shareholder / associate communicates / has communicated in writing to the directors / board of directors / directorate the postal address or, as the case may be, the e-mail address, the number of telefax or other coordinates at which it can receive the correspondence with the company.

The novelty is that the statutory body that has the power to convene the general meeting will decide which is the most appropriate way to convene, having at hand the possibility to combine the above convening methods, regardless of the provisions of the articles of association.

Of course, there is still nothing to stop the shareholders / associations from unanimously renouncing the formalities provided for the convening of general meetings.

  1. Conduct of General Meetings

Even if the articles of association prohibit or do not provide for the possibility of holding general meetings by correspondence or by electronic means of direct distance communication, the statutory body competent to convene the general meeting may decide to hold them by one of the meeting methods regulated by the GEO.

Conducting meetings by mail means that the participants are not physically in the same place and cannot communicate directly and in real time with other shareholders / associates and participants in the meeting. On the other hand, if the participants can discuss in real time in the meeting, even if they are not physically in the same place, the meeting is not considered to be conducted by correspondence, but is a direct, remote communication.

a) General Meetings Held Exclusively by Correspondence

In this scenario, some rules related to the physical presence of shareholders / associates are incompatible with the manner of holding the meeting by mail. Also, the directors and members of the board of directors or, as the case may be, the members of the board of directors and those of the supervisory board or the director or directors who should normally have attended the general meeting of shareholders / associates, may not be bound by this obligation, in the case of meetings held exclusively by correspondence.

Shareholders / associates communicate their vote by mail in the manner indicated in the convocation, so that it is received by the company by the date of the meeting.

The chairman of the board of directors or the director with powers of representation or, as the case may be, the chairman of the board of directors or a representative thereof, together with a technical secretary, if possible, shall draw up and sign a report indicating, inter alia, the convening formalities according to the GEO and the decisions adopted and the number of votes cast for each voting option related to each item on the agenda that is subject to the vote and, as the case may be, the way in which the shareholders / associates voted on each agenda item.

b) General Meetings Held by Electronic Means of Direct Distance Communication

The statutory body empowered to convene the general meeting may decide to hold it by electronic means of direct distance communication, such as teleconferencing or videoconferencing, subject to the secrecy of the vote, if any, and the right to vote by correspondence.

In this way of holding the meetings, the debates keep an interactive character that allows the expression of opinions and the exchange of ideas between the participants.

Electronic means of distance communication must meet the technical requirements which are compatible with the most common fixed or mobile access technologies, with as many operating systems as possible and connect to fixed or mobile public electronic communications networks and which ensure the transmission and real-time two-way communication, so that shareholders / associates can remotely address the general meeting, participate effectively in the debate on each item on the agenda, cast their vote and be able to then check how it was voted in the assembly.

Minutes shall be drawn up at the general meeting held by electronic means of direct distance communication.

  1. Other Provisions

The decision of the general meeting of shareholders / associates will be prepared and signed with handwritten signature or extended electronic signature by the chairman of the board of directors or the director with powers of representation or, as the case may be, by the chairman of the board or a person authorized by them. In order to be opposable to third parties, the decisions of the general meetings of shareholders and the decisions of the general meetings of the associates amending the articles of association will be submitted to the commercial register office, to be mentioned in the register and published in the Official Gazette of Romania, part IV.

Even with the provisions of the GEO at hand, it is possible that some companies will still encounter difficulties in organizing general meetings during this period. In this regard, according to the new regulations, ordinary meetings are not required to meet within 5 months of the end of the financial year, but no later than 31 July 2020. In connection with the postponement of the date for the ordinary general meeting to approve and the annual financial statements, Emergency Ordinance no. 48/2020 on some financial-fiscal measures extended the deadline for the submission of annual financial statements for the financial year 2019, respectively of the annual accounting reports concluded on 31 December 2019, until 31 July 2020 inclusively.

Particular attention should be paid to the net asset position of the company, determined as the difference between total assets and total liabilities, as evidenced by financial statements approved by law, in particular by those companies that in the past had a net asset position of less than half of the value of the subscribed share capital, as the effects of the pandemic could have a severe impact on the net asset position. Normally, if the net assets are negative, the board of directors and the directorate must convene an extraordinary general meeting immediately in order to decide whether the company should be dissolved. According to the new GEO, until 31 July 2020, the board of directors, respectively the directorate is not bound by this convocation obligation.

Other provisions of the GEO concern the possibility of including the collective corporate bodies of administration, supervision and / or of the directorate to conduct meetings by means of direct distance communication, with the guarantee of the principle of collegiality of deliberations.

  1. Applying the GEO Along a Period of Time

The provisions of the GEO are also applicable to the general meetings of the associates / shareholders:

  • convened during the state of emergency, but which are convened after the end of that state of emergency, as well as meetings
  • convened and gathered within the first 2 months after the end of the state of emergency.

Also, the general meetings of shareholders / associates convened prior to the entry into force of this GEO, but for which the meeting is scheduled for a date subsequent to the establishment of the state of emergency may opt for the meeting by correspondence or electronic means of direct distance communication.

To the extent that, after the establishment of the state of emergency, but before the entry into force of the GEO, the shareholders / associates unanimously decided to hold general meetings and exercise the voting in one of the ways provided by the GEO, the decision thus adopted may not be annulled for non-compliance with the procedures for conducting and exercising the right to vote.

Taking into account the fact that even in the period following the end of the state of emergency, some rules of social distancing will have to be observed, but also the fact that companies must constantly and quickly adapt their business strategy, use alternatives to convene and conduct meetings of shareholders / associates and of the administrative and management bodies without the physical presence of their members, will be the option used more and more often in the company life.

 

 

The measure of preventive detention in the context of the COVID-19 pandemic

Current framework

The pandemic of the COVID-19 outbreak worldwide has changed the entire ecosystem of the society and severely affected the professional activity and personal life of each person. All public authorities have prioritized public health insurance, assuming the inherent negative effects on the economy, justice or other areas of social life.

This context has made the freedom of the persons subject to the measure of preventive detention acquire new values. Incarcerated people are some of the most vulnerable to infectious diseases, due to limited access to health and sanitation systems, unsanitary conditions and overcrowding in places of detention, aspects that make social distancing and physical isolation impossible. One of the most important public health measures to fight against COVID-19 is to restrict physical contact and proximity. But the very nature of the measure of preventive detention makes this practically impossible.

The measure of preventive detention is the most intrusive measure of deprivation of liberty over the exercise of the person’s right to liberty[1]. This measure par excellence is exceptional and can only be ordered when it is the only way to achieve the purpose for which a certain preventive measure is taken.

For the time being, the only way to maintain public health and safety and protect the right to life is to reduce the number of people in detention facilities. If the persons pre-trial arrested make up a large percentage of the prison population, reducing the use of preventive detention would protect the health not only of detainees but also of many professionals who come into contact with detainees (including system staff, detention centers and lawyers) and the families and communities to which both staff and prisoners in the penitentiary return.

However, there are recent cases in which several people have been detained and the measure of preventive detention has been proposed, including as a result of corruption offences (on 15 April 2020 the National Anticorruption Directorate announced the detention and proposal for preventive detention of a school principal from Bucharest, a representative of a company and a businessman)[2]. There are still many people who were detained before the crisis began and whose release should be considered.

Therefore, we believe that during this period, when the courts rule on the taking or revocation of the measure of preventive detention, they should take into account the following considerations:

  • Health protection measures against infection recommended by health authorities, including regular hand washing, social distancing and regular cleaning of clothes, are addressed to the general population and impossible to implement effectively in prisons, where contact between detainees and between detainees and prison staff cannot be avoided.
  • The recently published World Health Organization (WHO) Guide emphasizes that persons deprived of their liberty are more vulnerable to COVID-19 infection than the rest of the population, due to the precarious conditions in which they live together for long periods of time: “physical proximity in detention can act as a source of infection, amplification and spread of infectious diseases in prisons and later outside them”[3]. As such, the World Health Organization recommends that greater attention should be paid to the possibility of recourse to non-custodial measures at all stages of the administration of criminal justice, including the trial and sentencing phase, as well as the post-conviction stages.
  • The administration of detention centers does not have all the necessary means to prevent the spread of the virus in prison. Given the current health crisis, the detention of a person poses a risk to his or her life, as well as to the lives of other detainees and prison staff.
  • Detention is justified in a particular case only if the concrete evidence demonstrates a genuine requirement of public interest that prevails, despite the presumption of innocence, over the rule of respect for individual liberty established in art. 5 of the European Convention on Human Rights[4], and the reasons for refusal of release must not be general and abstract.
  • The courts must consider alternative measures to preventive detention as long as the accused provides guarantees regarding his/her presentation at trial. In certain cases, the violation of art. 5 para. 3 of the Convention, as a result of the fact that the national courts did not show in the motivation of the decisions by which they extended the measure of pre-trial detention, which is, in fact, the danger to public order, limiting themselves to reproducing the text of the law the arguments presented by the defendant regarding his personal profile and family situation, not taking into account, at any time, the possibility of adopting an alternative measure[5].
  • The Committee of Ministers of the Council of Europe published on 27 September 2006 a recommendation to the Member States on the conditions for pre-trial detention, including the following suggestion: in individual cases, pre-trial detention will be used only when strictly necessary and as a last solution; it will not be used for punitive reasons. And in order to avoid the improper use of pre-trial detention, the court must have at its disposal the widest possible range of alternative, less restrictive measures related to the behaviour of a suspect.
  • The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) noted that the spread of contagious diseases, and in particular tuberculosis, hepatitis and HIV / AIDS, has become a major problem of public health in a number of European countries. Although it affects the general population, these diseases have emerged as a dramatic problem in some prison systems. The material conditions in which some people are detained have often proved to be such that they can only promote the spread of these diseases[6].
  • Providing medical care to people in prisons and other places of detention is the responsibility of the state. Placing a person in detention means placing the life and health of a person under the responsibility of the state. If a person is in good health when detained and is no longer in good health when released, it is for the State to provide explanations, in the absence of a violation of Article 3 ECHR. A 2019 UNO Human Rights Council (HRC) report points out that even when people are deprived of their liberty, states take responsibility for protecting the lives and bodily integrity of these people[7].

Conclusion

Therefore, when assessing the need for a pre-trial detention measure, the court must take into account the requirement of public interest to take all possible measures to avoid the spread of this serious and unprecedented epidemic. The court must consider as well the current exceptional circumstances, which undergo that the detention of the suspect will present a serious health risk.

Although during this period, the National Anti-corruption Directorate has intensified its activity, we consider that the provision of pre-trial measures should be the exception, especially in criminal cases involving acts of corruption, the court will decide whether the measure reaches its purpose, taking into account all the above considerations.


Notes:

[1] Please see Gh. Mateuț, Procedură Penală Partea generală, Editura Universul Juridic, Bucharest, 2019, p. 818

[2] Please see https://www.pna.ro/comunicate.xhtml.

[3] Please see Preparedness, prevention and control of COVID-19 in prisons and other places of detention, Interim guidance, World Health Organisation, 15 March 2020, available here

[4] Case Begu c. Romania

[5] Case Tarău c. Romania

[6] Please see https://rm.coe.int/1680696a75

[7] Available here

Day Zero after the Emergency State End – the kit of measures for the transition to a „new“ normal

If by 15 May 2020 the main rule was clear and quite sharp: ‚#STAYHOME‘, as of 16 May, things are no longer so clear.

We know that we will no longer fill out an affidavit to go out for a run and we are also preparing our face masks’ and visors’ stocks to wear indoors, but it is not clear how we will return to the office, how office and business meetings will look like, how future transactions will be concluded and, briefly, how business and everyday life can be brought back to a point close to the one before the coronavirus pandemic.

Nevertheless, we believe that this grey area can be clarified with a set of measures which we anticipate to be very useful starting with day zero after the emergency state end.

  1. Back to the office – measures for a safe transition from work from home to work from the office.

In this respect, several recommendation measures have already been developed at both national and European levels.

However, the practical measures to be taken into account by employers with regard to the employees’ return to the office should be customized according to the activity type and the internal organisation of each employer, including, among others:

  • Repositioning of desks in such a way as to comply with the rules of social distancing.
  • Where the office space or surface does not allow, it is recommended to develop a schedule for working in shifts at the office in order to avoid the presence of a large number of employees in a limited space at the same time. The schedule may be organised in hourly or weekly intervals, with the recommendation for the spaces to be thoroughly sanitized between the shifts of employees.
  • The work from home measure could be removed gradually, depending on the evolution of the new coronavirus cases, with a regular increase in the presence of employees at the office from week to week.
  • Providing employees with adequate means of protection: face masks, gloves, visors, disinfectant solutions.
  1. Back on site – measures to restart the activity of employees who perform work on site
  • The implementation by the employer of permanently functional call centre / video centre systems in order to attempt, in the first phase and to the extent possible, to remotely remedy / analyse the functioning of certain systems. The system could be similar to those of online medical consultations currently adopted by certain private medical networks.
  • Regarding the employees for which going on site will prove to be necessary, it is mandatory for the employer to provide them with adequate means of protection: face masks, gloves, visors, disinfectant solutions.
  1. Conclusion of transactions during post-coronavirus period
  • It would be prudent for the transaction negotiations and business meetings to be kept, for a period, in the form of video conferences on online platforms.
  • Regarding the conclusion of transactions and their signing before the public notary, a first remedy to minimize risks and human contact is for the parties to present themselves separately before the public notary, at pre-set times.
  • In addition, for projects requiring long-term negotiations, documentation preparation or other preliminary steps, the parties could, in a first phase, conclude promises for the transfer of rights in rem (under private signature) instead of the actual transfer deeds, and the conclusion of the deeds under notarized form will take place at a subsequent stage.
  1. Ongoing contractual relations
  • If the state of emergency period was mainly focused on requests for postponing / suspension of contractual obligations, we anticipate that the post-coronavirus period will have a strong component represented by renegotiations and contractual adjustments based on exact figures and consequences, as the contractual partners will have a clear record of the business fluctuations during the state of emergency.
  • We anticipate that the companies in the horeca field shall have a strong argument – they will have a well-founded negotiating point based on the financial statements from March – May period and will be able to guide the negotiations for the post-coronavirus period, when it is expected for the reactivation of business in this area to take place at a very slow pace.
  • At the same time, however, regarding the companies that have had an intense activity during the state of emergency – e.g. courier companies, disinfectants’ producers, etc. – it is expected that any initiatives to renegotiate agreements will be more difficult in the absence of financial results reflecting significant decreases.
  1. Cash vs card
  • Romania does not hold a leading position in the number of card payments per capita, but certainly the coronavirus pandemic and all hygiene rules are now a much stronger argument in favour of using cards and opting for contactless payments.
  • We anticipate an ascending trend in this area, thus requiring the alignment of all merchants, regardless of their field, with the card payment systems, as well as the permanent adjustment and refinement of online transaction and payment processing systems.
  1. Free time
  • Access to this kind of activities – e.g. cinema, theatre, concerts, sports competitions, etc. – will most likely not be granted in the next period, as the rules of social distancing will probably remain in force for a significant period of time. Most likely, this sector will also require the implementation of certain measures such as: maintaining empty seats between spectators, stricter measures to sanitize the halls and also having temperature-measuring devices, in order to limit, as much as possible, the risks of infection. Regarding the temperature measuring process, it should be noted that, in so far as the visitor’s first and last name are not processed/stored in any way in this process, the temperature values do not constitute by themselves personal data within the meaning of the GDPR (they represent anonymised data). Thus, even if we are talking about sensitive medical data, the latter cannot lead to the actual identification of the data subject, therefore such measure is in line with the provisions of data protection legislation.
  • Insofar as outdoor sports competitions are concerned, we believe that they will be reactivated before those in enclosed spaces, but most likely in a different structure and with a limited number of people.

This pandemic will bring massive changes in business, consumer strategy and everyday life. But the right choices and the right set of measures will contribute to an easy and safe transition to the „new“ normal, as well as avoiding, to a large extent, the inherent risks in the coronavirus pandemic.

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.

Employment Relations of Medical Personnel During the State of Emergency

Who is obliged to provide medical equipment? Can medical personnel refuse to provide health care? Is the resignation of medical personnel allowed during the pandemic period? These are the questions increasingly discussed during the pandemic.

The short answers to these questions would be:

  • public health unit
  • no, with some exceptions
  • yes, with some observations

The public’s interest in these subjects is natural given the COVID-19 pandemic, as well as the fact that on 12 April 2020, 812 cases of infection with SARS-CoV-2 virus of the medical personnel were reported in Romania and several medical personnel submitted their resignations. One of the main causes of infection with the new SARS-CoV-2 virus within medical personnel is the lack of appropriate personal protection equipment.

Therefore, the natural questions that arise in this situation and which we will address are:

  • what are the legal implications of the SARS-CoV-2 virus infection of the medical personnel?
  • can medical personnel refuse to provide healthcare?
  • can medical personnel resign during the state of emergency?

COVID – 19 – professional disease?

Most qualified doctors and all resident doctors carry out medical activities in the public health system and/or in the private system under an employment agreement[1]. This implies that, in their case, the provisions of the Labour Code and Law No. 319/2006 on occupational safety and health are applicable.

According to the Labour Code, the employee (in this case the medical personnel) is entitled to safety and health at work. Collaterally, the employer (in this case, the public health unit employing medical and health care personnel) is obliged to ensure the health of employees under all aspects related to the provided activities, including the obligation to ensure all employees in case of accidents at work and professional diseases[2].

One of the ways in which the employer fulfils this obligation is to provide individual protection equipment[3] and new personal protection equipment in the event of degradation or loss of protection
qualities. This obligation of health units is also stipulated in the Collective Labour Agreement[4], which establishes that protection equipment is provided compulsory by the employer in the quantity and quality necessary to ensure adequate healthcare. For example, the rule related to the equipping of SMURD staff[5] expressly establishes that items of special protection equipment are provided free of charge by the employer[6].

Moreover, to consider that the obligation of public health units has been fulfilled, the equipment must be suitable for the work particularly performed by medical personnel.

By the Order of the Ministry of Health No. 555/2020[7] the recommendations have been established for the use of personal protection equipment in the context of the COVID-19 pandemic, depending on the ward, type of personnel and type of activity. For example, the equipment of medical personnel performing aerosol-generating procedures for COVID-19 patients consists of standard or equivalent N95 or FFP2 mask, single-use robe over which apron/combination is placed, gloves, eye protection. Failure by the employer to observe this obligation may lead to an accident resulting in death or injury to the body of the employee who may take the form of a professional disease or accident at
work.

Professional disease means: the condition that occurs because of the exercise of a job or profession, caused by physical chemical or biological harmful agents characteristic of the workplace, as well as by the overuse of various organs or systems of the body, in the process of work (s.n.). Infection of a healthcare professional with SARS-CoV-2 virus in the workplace is a case of professional disease[8], which attracts the incidence of specific legal provisions.

As the employer is liable for damage caused to victims of accidents at work or professional diseases, to the extent to which the damage is not fully covered by the state social security benefits, the infection of a medical personnel with the SARS-CoV-2 virus as a result of the provision of professional activity under improper conditions (e.g. without adequate personal protection equipment), entails the pecuniary liability of the public health unit for damage caused by professional disease (e.g. hospital expenses, compensation for temporary incapacity for work, covering the costs of treatment).

Can medical personnel refuse to provide healthcare?

Another issue addressed during this period is whether medical personnel can or cannot refuse to provide healthcare.

According to the legal provisions[9], the doctor or nurse is obliged to provide medical care/healthcare to a person if they have accepted them as a patient in advance. The doctor, nurse/midwife, employees of an institution providing medical services, are obliged to provide medical assistance to the patient who has the right to receive medical assistance within the institution, in accordance with the legal regulations.

The relationship between the patient and the doctor can be interrupted only in the following situations:

  1. the moment the disease is cured;
  2. by the patient;
  3. by the doctor in the following situations:
    • when the patient is sent to another doctor, providing all the medical data obtained, which justifies the assistance of another doctor with increased competence;
    • the patient manifests a hostile and/or irreverent attitude towards the

Therefore, the doctor or nurse cannot refuse to provide medical care to patients suspected or infected with the SARS-CoV-2 virus on the grounds that there is a risk of infection.

The obligation to provide medical assistance was also reiterated in Article 4 of the Order of the Ministry of Health No. 555/2020, according to which: all health units in the public and private systems are obliged to provide medical care to all patients […]. Refusal to provide medical care may result in the liability of medical personnel on three levels:

  • disciplinary liability pursuant to Article 450 of Law No. 95/2006;
  • civil liability for damage arising from non-compliance with the obligation to provide healthcare, pursuant to Article 653 para. (3) of Law No 95/2006;
  • criminal liability, with respect to this type of liability, we note that we have not identified a special offence with such a material element. However, we cannot rule out that certain facts may be classified as abuse or negligence at work.

However, medical personnel are not held liable for harm caused to patients in the exercise of the profession when they are due to working conditions, insufficient equipment for diagnosis and treatment, nosocomial infections, side effects, complications and generally accepted risks of the methods.

Therefore, although medical personnel cannot refuse to provide medical care on the grounds that there is a risk of infection, they are not responsible for harm or prejudice caused to patients due to working conditions, insufficient equipment or nosocomial infections (e.g. SARS-CoV-2 virus).

Can medical personnel resign during a state of emergency?

Resignation is a unilateral act of will of the employee (in the given case of the doctor/medical assistant) who, by written notification, communicates to the employer (medical unit) the termination of the individual labour agreement after the expiry of a period of notice.

Does the medical unit have the right to refuse resignation? No, according to the provisions of the Labour Code[10] and the Collective Labour Agreement[11] the employer is obliged to register the resignation. The employer’s refusal to register the resignation entitles the employee to prove it by any means of proof.

Moreover, the employee may resign without prior notice in accordance with Article 81 para. (8) of the Labour Code if the employer fails to fulfil the obligations under the individual labour agreement, or as I have outlined above, one of the obligations of the employer is to ensure safety and health at work.

However, the right of medical personnel to resign without prior notice pursuant to Article 81 (1) para. (8) of the Labour Code was substantially affected/censored by the Decree of the President of Romania No. 240/2020 on the extension of the state of emergency in Romania. 

 The decree stipulates that art. 81 para. (8) of the Labour Code, which regulates the employee’s right to resign without notice if the employer does not comply with its obligations under the individual labour agreement, does not apply, inter alia, to staff in health or social care units during the state of emergency. Moreover, Decree No. 240/2020 also brings changes on the manner of running of the notice period, in case of resignations already submitted. Therefore, since the entry into force of Decree no. 240/2020 (15 April 2020), the notice periods do not start to run, and if they have started to run, they are suspended for the entire duration of the state of emergency.

Is this a measure that does not affect the very substance of the right to resign as the preamble of Decree no. 240/2020 claims that would not do?

We believe that the answer is a negative one especially in cases where employers – hospitals – cannot provide the necessary means of protection of medical personnel. In particular, the individual labour agreement for the medical personnel who submitted their resignation and who were on notice at the time of the entry into force of Decree no. 240/2020 will cease only after the end of the state of emergency and the fulfilment of the suspended notice period.

In view of the principle of non-retroactivity of the law, Decree No. 240/2020 will not have any effect on individual labour agreements which have ceased because of the resignation of medical personnel and for which (i) there has been no notice period (according to Article 81 para. (8) of the Labour Code) or (ii) the notice period shall be reached at the time of entry into force of Decree No. 240/2020. Therefore, from the moment of entry into force of Decree no. 240/2020, the medical personnel may resign, the notice period being suspended during the state of emergency, and the effects of the resignation, namely, the termination of the labour agreement, shall take place only after the end of the state of emergency and the fulfilment of the suspended notice.


Notes:

[1] Art. 386 para. (3) and (4) of Law No 95/2006 on health reform

[2] Article 179 of the Labour Code

[3] Article 13 lit. r) of Law 319/2006 on health and safety at work

[4] Art. 85 of the Collective Labour Agreement at the Health Sector Level for the years 2019-2021, registered at the M.M.J.S.-D.D.S. under no. 1206 dated 4.11.2019 („Collective Labour Agreement“)

[5] The norm regarding the equipment of the medical, paramedical and civil personnel within the mobile emergency, resuscitation and release services, as well as the rules for their application from 19.12.2008

[6] Art. 3 of the Norm regarding the equipment of the medical, paramedical and civil personnel within the mobile emergency, resuscitation and release services, as well as the rules for their application from 19.12.2008

[7] Order no. 555/2020 on the approval of the Plan of measures for the preparation of hospitals in the context of the coronavirus epidemic COVID-19, of the List of hospitals providing healthcare to patients tested positive for SARS-CoV-2 virus in phase I and phase II and the List with support hospitals for patients tested positive or suspected of having the SARS-CoV-2 virus

[8] See Annex no. 22 to the Methodological Norm for the application of the provisions of the Law on safety and health at work no. 319/2006 of 11 January 2006 in conjunction with the provisions of Directive 2000/54/EC

[9] Art. 663 of Law 95/2006 on healthcare reform

[10] Article 81 para. (2) of the Labour Code

[11] Article 64 para. (2) of the Collective Labour Agreement

Digitization of the criminal process and the right to a fair trial

Context

As a result of the COVID-19 pandemic, the activity of the courts has been severely affected. During this period, the digitization of justice is under intense discussion, as being the only solution not to obstruct justice and at the same time to respect the rules of public health, effectively protecting the participants in the act of justice.

Although orality is a fundamental concept of criminal justice, in exceptional situations such as the period of the state of emergency, we consider that conducting legal proceedings through digital platforms is a sustainable solution to ensure the trial of cases within a reasonable time.

Fair Trials Organisation recently published a Guide for Respecting the Right to a Fair Trial along the COVID-19 pandemic period.

Fair Trials acts as a centre of expertise in respecting the right to a fair trial, relying on experienced staff based in London, Brussels and Washington D.C., working in partnership with the best local experts in several regions.

It has been argued that, as a rule, defendants should be able to participate in court proceedings in person and it is often crucial to be physically present in the courtroom during the trial. The absence of defendants in the courtroom seriously undermines their ability to participate effectively in criminal justice proceedings and the exercise of the right to defence.

Even in these extreme and unusual situations, there should be a strong preference for court proceedings to be conducted in person to protect the rights of defendants.

Specifically, non-urgent criminal proceedings should not take place if the defendant cannot be physically brought to court for public health reasons. However, criminal justice systems must continue to function during this global health crisis, and courts will have to resort to remote hearings to deal with urgent issues and prevent an unprecedented delay in cases that could harm the effective administration of justice in the future.

It was argued that when determining whether a court hearing should take place remotely or not, the following factors should be considered, inter alia:

  • the length of the delays and their likely impact on the defendants‘ rights (especially if the defendant is in the pre-trial detention is likely to be extended);
  • the nature of the hearing, inclusively:
    • the complexity of the case and the issue addressed;
    • the need to call witnesses; and
    • the likely impact of the hearing on the defendant’s rights (for example, whether it threatens the defendant’s deprivation of liberty).
  • the availability and quality of equipment and systems used for communication between the court and the defendant; and
  • the existence of deficiencies or other factors that could adversely affect the defendant’s ability to participate effectively in court proceedings.

In case there are strong justifications for the use of distance justice proceedings, distance hearings should only take place if there are adequate safeguards in place that do not affect the right to a fair trial.

The guide contains several recommendations on the following issues:

1. The right to be assisted by a lawyer:

A. For defendants deprived of their liberty

  • All penitentiaries and detention facilities should have adequate facilities to ensure that all detainees have efficient and frequent access to telephones (and other permitted forms of distance communication). This measure may include upgrading or increasing the number of pieces of equipment to meet the increased demand.
  • Prisons and places of detention should aim at making video conferencing facilities available to defendants.
  • Confidentiality or defendant-lawyer communications should be strictly respected. Defendants should have access to secure spaces for confidential discussions, the defence strategy discussed with the lawyer should not come to the attention of prison auxiliaries or police. Communication channels should be secure so that calls cannot be intercepted or recorded.
  • If there are restrictions on client-lawyer correspondence (including, for example, the frequency and duration of telephone calls), they should be significantly relaxed to compensate for the reduction in legal visits in person.
  • The use of telephones (and other permitted forms of remote communication) should be made available free of charge to defendants when communicating with their lawyers.

B. Before, during and after the court hearing

  • Defendants should be given sufficient time before, during and after court hearings to consult their lawyers.
  • Courts should be provided with adequate facilities to allow confidential video conferencing or telephone calls between defence lawyers and defendants without time pressure. These could include separate court spaces with video conferencing equipment for lawyer-defendant discussions.
  • Defendants must be given access to safe rooms or areas before, during and after hearings, where they can communicate with their lawyers in confidence.

2.  The right to participate effectively in legal proceedings

  • If a defendant is not represented at a remote hearing, judges, prosecutors or court staff (as appropriate) should proactively assist the defendant to ensure that he or she has access to legal aid.
  • Eligibility rules for legal aid should be reviewed to ensure that no defendant participating in remote court hearings is represented for financial reasons.
  • The video equipment must simulate as authentically as possible the participation in the courtrooms. Defendants should be able to have a full view of the courtroom and be able to observe all participants present in the courtroom.
  • Where distance hearings involve the submission or review of evidence, the defendant should be given access to facilities that allow him to inspect and present evidence during the hearing.
  • Communication equipment and systems used for remote hearing should continuously provide decent sound and video quality.
  • Hearings must be stopped if the connection is interrupted and continue only after the problem has been solved.
  • Technical assistance should be readily available in courts and detention facilities to remedy defects affecting the quality and reliability of audio-visual communications.
  • Defendants must be able to contact their lawyer in confidence during the proceedings to seek clarification or to receive instructions on the defence strategy.

3. Access to the case file

  • Defendants and defence lawyers should be given access to case files in a way that allows defendants to exercise their right of defence effectively.
  • Defendants must be given physical or electronic access to the case file free of charge.

4. Compliance with the presumption of innocence

  • Defendants in detention should be presented in appropriate attire for court hearings and should be given access to facilities that allow them to wear appropriate attire.
  • Defendants should be presented during video hearings with a neutral background, which does not suggest that they have been deprived of their liberty.

Conclusions

The digitization of criminal proceedings is a subject that should be under the scrutiny of public attention, regardless of the existence or not of the COVID-19 pandemic.

We consider that the digitization of criminal proceedings represents a necessity and a normal approach in the evolution of the justice system. The initiative of the Bucharest Court to introduce the possibility of holding court hearings by videoconference is commendable. We support the steps of the courts in this direction, steps that must consider the conduct of the process in optimal technical conditions and at the same time respect for the rights of persons participating in judicial proceedings.

However, given the pioneering nature of the digitization of the justice system, voices in favour of the accelerated digitization of criminal proceedings must pay greater attention to respect for the rights of the defence and the right to a fair trial, regardless of the manner and circumstances of criminal proceedings.