Topic: Online publicatie

In recent years, the number of multinational fraud cases has increased significantly.

Companies and private individuals often find themselves suffering immense damages due to complex international fraud schemes in which the perpetrators reside abroad and assets are moved around internationally. Like many criminal law systems, German criminal law punishes fraud and regulates a whole range of special fraud offences. However, this alone is of only limited help to those affected. One of the main interests of damaged corporations or private parties usually is to recover their assets. Of course, German law also provides regulations for this purpose. However, before lost assets can be secured and recovered, they first have to be traced, which often proves difficult.

The problems associated with the tracing and recovering of assets are becoming more and more significant as the increasing use of technology constantly opens new ways for fraudsters to deceive their counterparties and enrich themselves. For example, cryptocurrencies are being used more and more to commit fraud offences. In addition, COVID-19 led to an increase in fraud crimes. Fraudsters took advantage of the exceptional situation at the time in a wide variety of ways. In Germany, fraud was, inter alia, perpetrated in the context of obtaining bridging loans or obtaining short-time workers’ benefits and COVID-19 aid.

Against this background, the investigation of criminal fraud and the associated tracing and recovery of lost assets is certainly a long-runner.

This chapter sets out to provide an overview of the tools for tracing assets, securing and recovering them. First, an overview of the legal framework is given before important steps in connection with fraud and the tracing and recovery of assets are discussed. This is followed by a discussion of the extent to which civil and criminal measures can be usefully combined to recover assets. Finally, the central challenges in connection with acts of fraud and asset recovery are addressed before the second part of the chapter deals with current problems and developments.

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1. Background

The law on whistleblowing is perhaps one of the transpositions in the local legislation of a European Directive that brings us closer to a culture of “compliance” but one who also triggers memories of a recent era. On June 29th, the draft Law on the protection of whistleblowers was adopted by the Parliament, the Chamber of Deputies acting as decision-making chamber regarding this draft normative act.

2. What does the Law provide?

The law implements the 2019/1937 EU Directive on “whistleblowing”.

All private and public companies with over 249 employees will be required to establish internal reporting channels during 2022, within 60 days of the publication of the Law with the Official Gazette.

Controls are announced to be carried out shortly after its entry into force, thus it’s important to note that failure to comply with the requirements of the Law may result in fines.

Similar obligations are also provided for companies with 50 – 249 employees; however, in this case, the deadline for compliance has been postponed for a period of 1-2 years.

According to the final version of the Law that was sent for promulgation, companies will be required to implement special measures such as:

• designing, establishing and managing the manner of receiving reports so as to protect the confidentiality of the identity of the whistleblower and of any third party mentioned in the reporting and to prevent access to this information by unauthorized members of the company’s staff;
• the obligation to send to the whistleblower, within a fixed dealine, feedback regarding the reporting;
• designating a person / department / third party with attributions regarding the reception, registration, examination, subsequent actions and resolution of reports, who should act impartially and who will be granted autonomy in the exercise of these attributions.

It should be noted that the Law not only allows, but also encourages the use of digital platforms to meet all these rather complex obligations, such as establishing reporting channels, communicating with whistleblowers, developing and maintaining records for reporting.

In this respect, act legal Romania (act Botezatu Estrade Partners) already offers its clients the product LegalTegrity (used by several multinational companies at European level), a platform that allows compliance with the new Law. Beyond this, LegalTegrity complies with all the national law requirements, as well as with those of the US and UK (for example: the conditions for providing feedback within a deadline set by the Law or keeping an electronic register with all reports).

If the initial form of the Law regulated the possibility of sending anonymous reports, in the current version of the Law is mentioned that the whistleblower must disclose its identity when reporting. Furthermore, it is provided that reports that are made anonymously will not be given course.

Although the European Directive leaves it to the states to allow anonymous reporting through national regulation, a set of rules requiring whistleblowers to disclose their identity could have a discouraging effect on reporting irregularities at company level.

3. Recommendations

As the law imposes a relatively short deadline for compliance and provides sanctions for non-compliance with the requirements, it is mandatory that all companies covered by the law review their whistleblowing systems as soon as possible and initiate gap analysis procedures of existing systems in order to check their compatibility with the new legal obligations. This would enable companies to take the necessary steps to adapt and / or implement a whistleblowing system in accordance with national and European legislation, in order to avoid the sanctions imposed by law. Those companies which do not have a whistleblowing system should implement it. act legal Romania (act Botezatu Estrade Partners) already offers its clients the product LegalTegrity (used by several multinational companies at European level), a platform that allows compliance with the new Law.

Proactive behavior that starts with the assessment of internal irregularity reporting procedures and channels would reduce the risk of companies being sanctioned and acting under urgent pressure to implement legal measures, as it happened when the rules on the protection of personal data entered into force.

To initiate compliance procedures or gap analysis of existing whistleblowing systems, we invite you to contact the author, Adrian Șandru, Senior Associate, act Botezatu Estrade Partners, at adrian.sandru@actlegal-bep.com

What are crowdfunding services according to the ECSP Regulation?

The ECSP Regulation covers two types of crowdfunding services:

• lending-based crowdfunding – consisting in the facilitation of granting of loans, defined as agreements whereby an investor makes available to a project owner an agreed amount of money for an agreed period of time, and whereby the project owner assumes an unconditional obligation to repay that amount to the investor, together with the accrued interest, in accordance with the instalment payment schedule;

• investment-based crowdfunding – the placing, without a firm commitment basis, of transferable securities and admitted instruments for crowdfunding purposes, and the reception and transmission of client orders. This means that the role of a crowdfunding service provider comes down to the “sale” of such securities/instruments on the public market. The provider is not obliged to subscribe the instruments that have not been acquired by third parties, unlike in the case of other types of placements.

How will the ECSP Regulation affect the maximum issue value as part of crowdfunding campaigns?

Until November 10, 2023, the maximum issue value with respect to investment-based crowdfunding is going to be EUR 2.5 million. After that date, the threshold will rise to EUR 5 million. The issue of securities whose total value will exceed the respective amount shall be based upon the conditions specified in Regulation (EU) 2017/1129.

As a general rule, the ECSP Regulation applies to crowdfunding offers with a consideration of more than EUR 5,000,000, which are to be calculated over a period of 12 months as the sum of:

• the total consideration of offers of transferable securities and shares in private limited liability companies, and amounts raised by means of loans through a crowdfunding platform by a particular project owner; and
• the total consideration of offers to the public of transferable securities made by the project owner in its capacity as an offeror pursuant to Regulation (EU) 2017/1129.

However, for a period of 24 months from November 10, 2021, in case the threshold of total consideration for the publication of a prospectus in accordance with Regulation (EU) 2017/1129 is below EUR 5,000,000 in a given Member State, the ECSP Regulation shall apply in that Member State only to crowdfunding offers with a total consideration up to the amount of that threshold. In Poland, that amount is set at EUR 2,500,000.

Which entities will be allowed to provide crowdfunding services?

Crowdfunding services can be provided by legal entities with their registered office in the European Union, which have obtained an authorization from a competent authority (in Poland: the Financial Supervision Authority). The European Securities and Markets Authority (ESMA) will hold a register of all authorized crowdfunding service providers.  The fact that such authorizations can be given exclusively to legal entities means that in Poland, only private limited liability companies, joint-stock companies and simplified joint-stock companies will be able to provide crowdfunding services. Partnership will be excluded due to their lack of legal personality.

It is worth noting that in its announcements issued in relation to the risk of failure to adjust the Polish legal system to the ECSP Regulation until November 10, 2021, the Financial Supervision Authority notes that until the Polish business crowdfunding act (the “Crowdfunding Act”) is adopted, there will be no designated authority that could grant the aforesaid authorizations, which will render it impossible to embark on licensing processes. Pursuant to the ECSP Regulation, the competent authority shall, within three months from the date of receipt of a complete application, adopt a decision granting or refusing to grant authorization. Consequently, crowdfunding service providers might find it difficult to adapt their operations to the new laws before the end of the transitional period (i.e. until November 10, 2022).

Can shares in a private limited liability company be covered by an investment-based crowdfunding campaign?

Based on new crowdfunding regulations, shares in a private limited liability company cannot be subject to a crowdfunding campaign. Investment-based crowdfunding can involve transferable securities or other admitted instruments for crowdfunding purposes. The latter means, in respect of each Member State, shares of a private limited liability company that are not subject to restrictions that would effectively prevent them from being transferred, including restrictions to the way in which those shares are offered or advertised to the public. The draft Crowdfunding Act involves a ban on addressing offers for subscription of shares in private limited liability companies to unspecified recipients, and on promoting them through advertising or other forms of promotion intended at unspecified recipients. This legislative change would mean that it is not possible to conduct crowdfunding campaigns concerning shares in private limited liability companies.

Does the ECSP Regulation include different investor statuses, depending on their level of experience?

MiFID 2 does not apply to crowdfunding service providers. The ECSP Regulation distinguishes between sophisticated and non-sophisticated investors. In order to be categorized as a sophisticated investor, it is necessary to submit a relevant request. The approval of the sophisticated investor status shall have a validity term of two years.

Legal entities meeting at least one of the following criteria shall be regarded as sophisticated investors: own funds of at least EUR 100,000; net turnover of at least EUR 2,000,000; or balance sheet of at least EUR 1,000,000. Natural persons meeting at least two of the following criteria shall be regarded as sophisticated investors:

• personal gross income of at least EUR 60,000 per fiscal year, or a financial instrument portfolio, defined as including cash deposits and financial assets, that exceeds EUR 100,000;
• the investor works or has worked in the financial sector for at least one year in a professional position which requires knowledge of the transactions or services envisaged, or the investor has held an executive position for at least 12 months in a legal entity that meets the sophisticated investor criteria;
• the investor has carried out transactions of a significant size on the capital markets at an average frequency of 10 per quarter, over the previous four quarters.

How does the ECSP Regulation protect non-sophisticated investors?

Pursuant to the ECSP Regulation, before giving prospective non-sophisticated investors full access to invest in crowdfunding projects, it is required to assess whether and which crowdfunding services offered are appropriate for them. For that purpose, service providers will be obliged to carry out an entry knowledge test and simulation of the ability to bear loss.

In case a non-sophisticated investor plans to invest an amount that exceeds the higher of either EUR 1,000 or 5% of their net worth, the crowdfunding service provider shall ensure that such investor receives a risk warning, submits an express consent, and proves to the crowdfunding service provider that the investor understands the investment and its risks.

Moreover, the ECSP Regulation provides for a four-day reflection period for non-sophisticated investors. During that period, the prospective non-sophisticated investor may revoke their offer to invest or expression of interest in the crowdfunding offer, without specifying any reason and without incurring any penalty. Crowdfunding service providers are obliged to adequately inform non-sophisticated investors about their rights related to the reflection period.

Can a crowdfunding platform facilitate the investors’ further trading of rights acquired as part of crowdfunding?

Crowdfunding service providers may operate a bulletin board on which they allow their clients to advertise interest in buying and selling loans, transferable securities or admitted instruments for crowdfunding purposes that were originally offered on their crowdfunding platforms. Nevertheless, the bulletin board shall not be used to bring together buying and selling interests by means of the crowdfunding service provider’s protocols or internal operating procedures in a way that results in a contract.

Does an authorization issued in Poland make it possible to provide cross-border services?

Pursuant to the ECSP Regulation, a provider that has obtained an authorization is entitled to perform crowdfunding services in another Member State, as long as it has gone through the relevant validation procedure. In order to do, it is required to provide the domestic supervisory authority with a notice about the intention to embark on cross-border operations. Such notice will be forwarded to supervisory authorities in the target Member States and ESMA.

How is the ECSP Regulation going to affect the Polish investment-based crowdfunding services?

Until now, Polish investment-based crowdfunding platforms have operated upon the principle of freedom of business activity. They have acted as entities that operate websites which deliver solutions making it possible to advertise public offers. Domestic entities will be obliged to adjust their activities to the ECSP Regulation and to obtain an authorization from the Financial Supervision Authority. It is worth noting that providers can continue their operations in accordance with the existing domestic regulations until the earlier of November 10, 2022 or the date when they obtain the authorization.

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.

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.

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

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.

2. 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.

…

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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

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.

2. 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.

3. 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.

4. 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.

 

 

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.

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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