Wednesday, June 27, 2018

Procedures before CEDO

CEDO – the European Court of Human Rights – is made of Chambers with 7 judges, the Big Chamber with 17 judges and Committees with 3 judges. This organization is at the disposal of any citizen that lives in a state that recognizes the Universal Convention, in cases in which all internal attack ways have been exhausted. Additionally, the European Council has developed a free juridical assistance system to support those citizens that have no funds to hire their own attorney. Russia, Turkey and Romania are top 3 states that are being sued. This organization has closely worked with the European Commission since 1950, when it started, still after 1990, due to the increasing volume of the judges’ activities, they have reduced the interdependency. 

Judges that are part of CEDO develop their activity with an individual title not representing any state, unable to exercise their powers in any activities that is not in accordance with their obligations, and their seats expire once they get 70 years old. Presently, in CEDO there is one Romanian judge.
Any citizen that considers that his rights were broken (right to life, freedom, safety, privacy, family, freedom of thinking and speaking, consciousness, religion, forbidding slavery. forced labor, torture, the absence of a fair trial) can address a request to CEDO, but only after 6 months from the date of the final internal decision, obtained from the Court graft. On the other hand, the court has the right to reject the applications that had already received a solution, are submitted without new evidence or anonymous requests. 

This application addressed to CEDO must be written in one of the official languages of the states members of CEDO, and after its admission, must be translated into English or French – the official languages of the Court. The citizen that submits the complaint can do it on its own or be represented by an attorney, as for those who don’t afford an attorney they can use the free juridical assistance system. After submitting the request and its admission, all documents that are considered relevant for the case must be submitted, most of them being considered opened to the large public. The next step is the transfer of the request to one of the departments where it will be examined by the assigned reporter with decision-making enforcement. 

After the request is been declared as admissible, the Court will recommend the involved parties: the applicant and the state in cause, to try have an amicable resolution. Also, you can appeal the Chamber’s decisions to the Grand Chambers in three months, and after this pronunciation, the decisions become final. Either the Court will present the decisions in open court or in written, these being mandatory in the international law, thus forcing the state in cause to apply the necessary measures in order for the human rights that have been broken won’t be broken again. In the case in which the court rules in the applicant’s favor, the state in cause will pay a certain amount as moral or material damages, plus the judgment costs.

Tuesday, November 1, 2016

The funding of companies who wish to the production of organic materials and / or products

The project of the Ministry of Environment, Water and Forests regarding the Start-Up Pilot Environmental Program for technologies which develop the production of organic materials and / or products aims to grant funding for the production technologies of materials and organic products using natural raw materials and secondary raw materials, thus inserting them in various sectors of the green economy. The purpose of this project is to encourage the development and production of environmentally friendly products.
Regarding the conditions that the applicant must meet to be eligible as beneficiary of the project, the law provides the following:
• the applicant is a Romanian legal entity, doing business in Romania;
• the applicant functions and develops economic activity for at least 1 year at the date of submitting the funding dossier, and has at least one closed financial year;
• the object of activity   allows the production of organic materials and products;
• the applicant is the owner, administrator, grantee or lessee of the building and the land on which the project will take place;
• the applicant is not in any of the steps or procedures of company termination;
• the applicant has fulfilled all the financial obligations to the state;
• the applicant has no banking interdiction;
• the applicant complies with EU regulations on the de minimis aid;
• the applicant did not infringe the laws on environmental protection and does not sponsor activities with detrimental effect on the environment;
• the applicant hasn’t obtained or isn’t about to obtain funding through projects or programs financed from other public funds;
• the applicant holds all the documents required by the feasibility study;
• the de minimis aid requested in the application for funding will not be used for carrying out activities in one of the sectors prescribed by law;
• The total amount of the de minimis aid from which the applicant benefited for a period of 3 consecutive years, cumulated with value of financial allocations granted under the de minimis scheme, isn’t higher than the RON equivalent of 200.000 EUR, at the date of the application;
Regarding the funding method, the funding guide stipulates that the granted amount will be equal to the eligible costs of the project, without being able to exceed the RON equivalent of the maximum level of the de minimis aid of 200.000 EUR, at the date of signing the grant contract.
Each applicant may submit one grant application during a session for submitting projects, and funding of the program is made from the revenues of the Environment Fund, as a percentage of the eligible costs of the project, and the unfunded percentage of eligible costs represents the contribution of the applicant, made out of personal financial sources;
Annually, more funding sessions can be organized depending on the allocated amount. After the publication of the opening funding session on the Internet, the applicant can submit the funding application which will be analyzed in terms of administrative and eligibility compliance of the applicant or project, after which the analysis and project selection will take place.
Regarding a definition of eligible costs, the law defines them as being represented by:
• Investments for setting up a new establishment, extension of existing establishment, diversification of production unit, by making new, additional products or a fundamental change in the production process of an existing establishment;
• realization of buildings and / or constructions required for the establishment and installation of machinery, plants and equipment purchased under the project, with associated facilities - electrical installations, gas supply, heating, ventilation, air conditioning, telephone, PSI, intranet. Plants mentioned above are only related to the building interior;
• purchase of machinery, plants, new equipment needed to fulfill the objectives of this project;
• installation of machinery and technological equipment;
• installation and commissioning; training the operating personnel - necessary costs of training / schooling of the staff for the proper and efficient use of tools and technologies; technological tests and quizzes - the cost of execution samples / tests included in the project, expertise at the reception, homologation;
f) feasibility studies, engineering design, up to 8% of the eligible costs for the basic investment.
The Annex of the Guide states that the documents to be submitted by the applicant are:
• application;
• foundation documents of the applicant;
• certificate of registration at the National Trade Register Office;
• tax certificate on payment obligations to the state budget;
• tax certificate on local taxes and local income taxes;
• fiscal record;
• clearance certificate on obligations to the Environment Fund;
• certificate issued by the Trade Register;
• documents that prove the quality of the applicant as owner, dealer or administrator, tenant of the building on / in which the project is implemented;
• judgment / decision of the deliberative forum showing the agreement regarding contracting the funding, ensuring their contribution for implementing the project, the project manager, the person appointed to represent the applicant in relation to the Authority;
• judgment / decision of the deliberative forum showing agreement on guaranteeing the funding;
• affidavit regarding the de minimis aid obtained in the last 3 years, respectively 2 previous fiscal years, and the tax year in which the owner enrolls in the program;
• affidavit of the legal representative containing the main activities, sectors in which the applicant actually activates and the activity for which the funding is requested;
• the annual financial situation at the end of the last financial year;
• grid computing's economic and financial situation of the applicant;
• bank reference letter which will include the history of the applicant's request for at least one year;
• feasibility study;
• technical project.

For more information regarding the Environmental Program for technologies which develop the production of materials and / or organic products do not hesitate to contact one of the lawyers of the law firm Darie, Manea & associates.

Sunday, October 16, 2016

The registration procedure for debt recovery entities in Romania

According to the Emergency Ordinance no. 52/2016 on credit agreements granted to consumers for immovable property, the debt recovery activity can only be performed by entities registered with the NACP (National Authority for Consumer Protection). The ordinance also sets out the procedure to be followed for the registration of such entities to the National Authority for Consumer Protection.
This being said, in accordance to the normative act mentioned above, the "entity performing the debt recovery" is represented by a legal person, other than the creditor, with a minimum share capital subscribed and paid which can not be less than 500,000 lei, that conducts debt recovery activities and / or that obtains rights to some due debts arising from credit agreements.
As mentioned, the Emergency Ordinance no. 52/2016 establishes that only will registrants of the National Authority for Consumer Protection  will be able to operate debt recovery activities.
In order to be registered, such entities must fulfill the following conditions:
• have their registered office, a branch or representative in Romania to resolve any disputes and to respond to the potential disputes and to contraventionally and/or criminally answer before public authorities;
• the persons responsible for the management and administration of the business to have a good reputation;
• the manner in which the staff is remunerated and motivated should not depend solely on the achieving recovery objectives nor nor to be reported exclusively to the recovered amounts.
The entity in discussion must send the National Authority for Consumer Protection a request, accompanied by the information and documentation demonstrating compliance with the above requirements.
The National Authority for Consumer Protection evaluates and notifies the applicant of its decision regarding the acceptance or rejection of the registration within 30 calendar days of the receipt of the request.
In case the National Authority for Consumer Protection rejects the application for registration, the applicant is entitled to challenge the decision, and the dismissal of the the application for registration by the National Authority for Consumer Protection does not limit the applicant's right to introduce a new application on the same subject.
Debt recovery entities are required to report to the National Authority for Consumer Protection the number of cases or credit contracts that are ongoing.
The recovery of debts can be equally held by both entities which carry out recovery activities and by creditors.
Moreover, the Emergency Ordinance regulates the possibility of the National Authority for Consumer Protection to radiate the registration of a debt recovery entity, in cases where the entity:
a) expressly renounces the registration or hasn’t conducted any debt recovery activities in the last six months;
b) has obtained registration by making false or misleading statements or through any other irregular means established by law;
c) no longer meets the requirements under which it was registered;
d) has repeatedly violated legal provisions in the consumer protection field;
e) seriously or systematically infringed the provisions of the Emergency Ordinance mentioned above.

For more information on the new legislative provisions in matters of entities which carry out debt recovery activities, as well as for legal advice regarding the procedure for the registration of such entities with the National Authority for Consumer Protection, you can confidently contact the team of lawyers within the Darie, Manea & associates law firm.

Monday, September 19, 2016

The new obligations of economic operators regarding packaging and packaging waste

On June 30, 2016, the Emergency Ordinance no. 38/2016 amending and supplementing Law no. 249/2015 on the management of packaging and packaging waste came into force, bringing along a series of changes regarding the obligations of traders on the management of packaging waste.
The argumentation of the emergency ordinance states: "Given that increasing quantities of recovered waste is an essential objective of sustainable economic growth, it is mandatory to adopt urgent measures on packaging and packaging waste in preventing, reducing and eliminating their negative effects on the environment and avoiding negative consequences resulting from market blockage, such as the inability to reach the national annual recycling objectives. "
Furthermore, it is necessary and important to mention the fact that the emergency ordinance was adopted on grounds of "immediate financial impact that this sector has on society and the national economy, the impact on the environment and on human health."
Thus, economic operators selling products packaged in reusable packaging are obliged to receive reusable packaging in exchange or to refund, at the request of the buyer, the deposit amount.
Furthermore, the amendment provides that, in order to encourage the reuse of returnable packaging, manufacturers and retailers apply warehouse systems of package management, according to the procedure of implementation, control and monitoring of system-warehouse approved by the Minister of environment, water and forests.
The procedure for the implementation, monitoring and control of the warehouse system approved will be approved within 60 days of the date of entry into force of the emergency ordinance.
Equally, the commission authorizing operators to take over responsibility for managing packaging waste is approved within 60 days of the entry into force of the emergency ordinance.
In order to achieve the annual objectives regarding the recovery or incineration in waste incineration plants with recovery of energy, as well as the recycling of packaging waste, the economic operators are responsible for ensuring the management of packaging waste on national territory:
▪ individually, through the collection and recovery of packaging waste from their own operations or taken from generators or holders of waste, sorting stations, authorized collectors, administered through authorized economic operators in terms of environmental protection for collecting and recycling waste packaging;
▪ by transferring responsibilities, under contract, to an authorized economic operator of central public authority for environmental protection.

For additional information regarding economic operators’ obligations concerning the management of packaging waste, don’t hesitate to contact the team of lawyers from the law firm Darie, Manea & associates. Our lawyers are committed to meeting our customers' needs by providing specialized legal advice based on extensive experience in the field and the latest legislative changes, as well as through representation before competent authorities, when necessary.

Monday, August 29, 2016

The new European customs provisions 2016

Although Regulation (EU) No 952/2013 of the European Parliament and of the Council came into force in October 2013, certain legislative provisions of this regulation were set to go into effect on May 1, 2016.
At a national level, these new regulations have been implemented in the Romanian legislation through two legislative acts of the National Agency for Fiscal Administration published in the Official Gazette in early July, namely Order no. 1882/2016 approving the extended use of electronic signatures to customs formalities for goods imported and exported to and from the European Union through customs offices in Romania and Order No. 1884/2016 approving the Technical regulations authorizing the special regimes.
These changes, according to the president of ANAF, were designed to streamline the economic activity and to provide protection to the domestic market, the most targeted being companies that carry out operations of import and export within the European Union.
Thus, Order no. 1882/2016 implements the extensive use of electronic signatures to customs formalities for imported and exported goods to and from the European Union through customs offices in Romania, this order settling in art. 2 that the legal regime of the electronic signature used in the extended customs formalities for goods imported and exported to and from the European Union through customs offices in Romania is provided by Law no. 455/2001 regarding the electronic signature.
Order No. 1884/2016 implements the technical rules for the authorization of special regimes, as regulated at the European level.
Art. 4 of the technical rules for the authorization of special regimes stipulates that a special regime may be authorized by:
◦ a standard customs declaration, verbal or through another action, of an ATA or CPD; or
◦ a request made under the pattern and instructions stipulated by the regulation.
Art. 5 of the same rules states that a special regime may be authorized on the basis of a customs declaration, provided it is accompanied by a document containing the following information:
◦ nature of the processing or use of the goods;
◦ technical description of goods and / or processed products and means of identifying them;
◦ estimated period for discharge;
◦ proposed office of discharge (except the final destination);
◦ place of processing or use.
Furthermore, the request for authorization must be completed using the electronic management application of special regimes, found on the website of the General Customs Directorate, under the "economic agents / use of the customs information system" section. The request registered in the software application is printed, signed by the applicant and filed to the competent customs authorities with the necessary documents for authorization.
It is useful to know that art. 10 para. (3) from the above mentioned rules presents the cases where the application for authorization is needed, namely when:
◦ the declaration of goods is done via a simplified declaration or by the registration in the declarant's records;
◦ an authorization involving more than one Member State is required, except where the request is regarding the temporary admission regime;
◦ an examination of the economic conditions is required;
◦ the application concerns the processing of goods and sensitive products;
◦ an authorization with effect is required, unless it is required for outward processing;
◦ the authorization of customs warehousing regime is required;
◦ the use of equivalent goods is requested.
The application for authorization must be filed to the customs authority competent for the place in which the main accounts for customs purposes of the applicant is kept or available and where at least some of the processing, specific use or storage operations are to be ongoing.
In case the regime is claimed by a person who is not established in the customs territory of the Eruopean Union, the application is submitted to the competent customs office for the place where the goods are to be used first for the active destination or inward regime.
The competent customs authority has the obligation to communicate to the applicant if the application has been accepted or not, and the authorization shall be issued without delay and no later than 30 days from the date that the application was accepted. The date of acceptance of the application, under the rules previously invoked, is the date on which all the necessary information has been received by the customs authority.

For additional, updated information regarding the new customs rules as provided by the Order no. 1882/2016 and 1884/2016 of the National Agency for Fiscal Administration, don’t hesitate to contact one of the lawyers within the law firm Darie, Manea & associates.

Sunday, July 17, 2016

The legal status of freelancers in Romania

A freelancer is represented by a person who works for themselves, so without being employed, who can set working hours for themselves as they please, while also having the right to choose their own customers based on criteria that they establish on their own.
A freelancer may conduct their business in a wide variety of fields such as photography, IT, article writing, blogging, social media, virtual assistant and many others.
We can say that a freelancer is a service provider that offers his services in exchange for money, a price that the freelancer sets on their own.
We can say that the income of a freelancer who is not organized as a company in accordance with the Romanian law falls in the category of income from independent activities, as qualified by the provisions of the Tax Code in art. 67-75.
According to art. 67 of the Tax Code, income from independent activities includes income from activities of production, trade, services, income from liberal professions and income from intellectual property rights, made individually and / or in a form of association, including adjacent activities.
As we examined in previous articles, the year of 2016 brought along certain legislative changes in fiscal terms regarding the manner of taxation of natural persons (PFA).
This being said, as was previously stated, a PFA in 2016 will pay tax at the following levels:
▪ income tax, amounting to 16%;
▪ individual contribution to pensions, amounting to 10.5%;
▪ contribution to health insurance, amounting to 5.5%.
Therefore, the level of taxation of the PFA in 2016 will reach 32%.
As we can see, a freelancer is not classified as a separate category in the provisions of the Tax Code, but rather falls within the already determined categories of the Tax Code, the income of a freelancer thus being considered to be income from independent activities, alongside the income of a PFA or, for example, an individual enterprise.
Moreover, our legislation does not provide freelancers with different tax incentives from the ones that are established for those whose income falls within the category of income from independent activities, according to the provisions of the Romanian Tax Code.

If you wish to perform activities as a freelancer and you require more information regarding the legal status of this profession under the legal provisions of Romania, please feel free to contact the lawyers specializing in tax law at the law firm Darie,Manea & associates. For more information regarding the tax status of a PFA, you can also review the articles written on the taxation of PFA, in accordance with the legislation on the matter..

Our lawyers are committed to finding optimum solutions to legal problems of various kinds, offering specialized legal advice based on accurate and complete information, according to the latest legislative changes in this area, as well as representation before the competent authorities, if necessary .

Wednesday, June 1, 2016

The procedure for the recognition of the training and professional experience gained in Romania in other EU countries

The procedure for the recognition of the training and professional experience gained in Romania in other EU countries is regulated by Order no. 134/2016 of the Ministry of Labor, Family, Social Protection and Elderly People.
This Order regulates the approval of the procedure of attestation of the training and work experience for the recognition of professional experience in Romania for persons wishing to engage in certain professional activities in another Member State of the EU, EEA or the Swiss Confederation. These activities, among other things, imply the exercise of professions in the field of textile production, wood production, the beverage industry, as well as postal and telecommunication solutions.
This being said, this Order is aimed at individuals who wish to practice in another Member State of the EU, EEA or the Swiss Confederation.
The recognition of professional experience under these regulations will result in the applicant's right to access the territory of another member state of the EU, EEA or Swiss Confederation for practicing the same activities or occupations such as that for which he was qualified in Romania and to exercise the same conditions as the nationals of the EU, EEA or the Swiss Confederation where the applicant wishes to practice.
In order to obtain the certificate provided by the Order mentioned above, the applicant will have to submit a dossier containing the following documents to the registration office of the agency in the county where the applicant has the domicile or residence:
◦ the application;
◦ identity document;
◦ birth certificate;
◦ marriage certificate;
◦ affidavit made before a notary public.
These documents can be submitted personally, by mail with return receipt, as well as by email, but in the latter case the applicant must submit the original of the affidavit by mail.
Moreover, for the recognition of professional experience required in order to practice these activities in another country, the applicant will have to prove a relevant work experience for a minimum period of time, regulated in the above-mentioned Order.
According to art. 8 paragraph. (1) of the attestation procedure regulated by the Order, the documents required to prove professional experience gained as an employee are:
◦ a copy, certified by the legal representative of the employer or by a person authorized by him, of the page of the electronic register, which contains entries concerning the employee;
◦ certificates issued by employers containing the records found in the General Registry of employees: name, identification number (PIN), date of employment, job title, contract type; duties performed;
◦ the employment record book, if applicable;
◦ any other document issued by the employer, stating the work done by the applicant and seniority in the occupation for which he obtained the qualification.
Par. (2) of the same Article provides that proving the professional experience as an independent worker involves submitting the following documents:
◦ a copy of the registration certificate issued under the law;
◦ documents provided by the law, issued by the National Trade Register Office;
◦ any document showing the periods of time during which the employee actually performed the activity for which he is requesting the certificate and achieved revenues.
The application for a certificate shall be resolved within 30 days from the date of filing the complete documentation, or 15 days from the date of solving irregularities regarding the submitted documents.

For more information on the recognition of professional experience acquired in Romania in other countries of the EU, EEA or the Swiss Confederation, as well as submitting the application for obtaining the necessary certificate, do not hesitate to contact one of the lawyers within the Darie, Manea & associates law firm.