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.

Sunday, April 24, 2016

The Inter-institutional Council for combating unfair competition

The Government Resolution no. 162/2016, published in the Official Gazette no. 209 of 22 March 2016, on the organization and functioning of the Inter-institutional Council for combating unfair competition, represents the measure adopted by the Government for the establishment of a new permanent and advisory body that aims to maintain a fair competitive market. According to art. 2 of G.R. 162/2016, the Inter-institutional Council makes connections and cooperates with government authorities and institutions, as well as any entity operating in specific areas with a relevant impact in maintaining a fair and competitive market that can provide support in order to achieve its objectives.
The composition of this new inter-institutional Council will consist of two representatives of each of the following institutions:
◦ Ministry of Finance;
◦ Competition Council;
◦ National Audiovisual Council;
◦ National Authority for Consumer Protection;
◦ State Office for Inventions and Trademarks;
◦ Romanian Office for Copyright.
The president of the Inter-institutional Council will be constituted by one of the representatives of the Ministry of Finance and will be appointed by order of the Minister of Public Finance, while the Competition Council will act as a secretariat. In the situation that the president of the Inter-institutional Council can’t fulfill his duties for objective reasons, the meetings of the Inter-institutional Council shall be chaired by a member of the Council appointed by the President during his absence or unavailability.
The attributions of the Inter-institutional Council, according to G.R. no. 162/2016, are the following:
◦ ensuring the consistency of the foundation and implementation of public policies in specific areas of activity that have a relevant impact in maintaining a fair competitive market;
◦ ensuring institutional communication in specific areas of activity with relevant impact in maintaining a fair competitive market;
◦ harmonizing the points of view of the institutions with attributions in the field at a national level;
◦ submitting to debate the results of the evaluation of specific legal framework of each authority with relevant impact in maintaining a fair and competitive market, as well as drafting proposals for improvement in accordance with EU regulations and practice in this area;
◦ preparing the annual report on the implementation of legislation with relevant impact in maintaining a fair competitive market for the preceding year;
◦ issuing advisory opinions in its field of competence, in order to maintain a fair competitive market.
Both the advisory opinions and the annual report on the implementation of legislation with relevant impact in maintaining a fair competitive market for the previous year must be approved unanimously by the members and will be forwarded for information to the institutions and authorities provided by law.
The above-mentioned Government Resolution also regulated the obligation of the institutions whose members make up the Inter-institutional Council to publish on their official websites both the advisory opinions of the Council, and its annual report.

For further information on the organization and functioning of the new Inter-institutional Council for Combating Unfair Competition, please don’t hesitate to contact the team of lawyers within the law firm Darie, Manea & associates who have extensive experience in commercial law.

Wednesday, April 6, 2016

Social enterprises, new type of companies in Romania

Law No. 219/2015 on social economy provides for the establishment of new types of enterprises, namely social enterprises and social enterprises of insertion.
The law went into effect in August 2015, setting forth that social enterprises can be represented by: cooperative societies of 1st degree, credit cooperatives, associations and foundations, unions of employees, unions of pensioners, agricultural companies, as well as any other categories of legal entities that meet the definition and principles of social economy, as set out in this law.
According to the law, the social economy contributes to the development of local communities, creating jobs and the involvement of persons belonging to vulnerable groups in social activities and / or economic activities, facilitating their access to community resources and services.
Law no. 292/2011 on social assistance defines "vulnerable group" in art. 6 letter p) as individuals or families who are at risk of losing their capacity to meet the needs of daily living because of cases of disease, disability, poverty, drug addiction or alcohol or other situations that lead to economic and social vulnerability.
The notion of "social enterprise" presented by the law refers to any private legal entity engaged in the social economy, which holds an attestation of social enterprise and complies with the national economy’s principles.
The status of a social enterprise is recognized by granting a certificate of social enterprise, certificate that is issued at the request of the legal entities listed above and is valid for a period of 5 years, with possibility of extension.
The criteria to be met by the social enterprise in order to obtain the certificate are:
◦ acting in a social and / or general interest of the community;
◦ allocates at least 90% of the profit to the social purpose and the statutory reserve;
◦ undertakes to submit the assets remaining after liquidation to one or more social enterprises;
◦ applies the principle of social equity to employees, ensuring fair wage levels, between which there can’t be differences exceeding the 1-8 ratio.
The obligations of social enterprises are as follows:
◦ communicates any changes of the constitutive acts or the acts of establishment to the employment agency, within 15 days of the change;
◦ communicates the activity reports and annual financial statements to the employment agency;
◦ publishes, within 3 months from the end of the calendar year, the annual social report on the developped activity and annual financial statements in the Unique Registry of evidence of social enterprises.
Social enterprises of insertion, on the other hand, are considered those social enterprises that:
◦ permanently have at least 30% of staff belonging to the vulnerable group, so as the cumulative working time of these employees represents at least 30% of the total working time of all employees;
◦ target the fight against exclusion, discrimination and unemployment through social and professional insertion of disadvantaged people.
Furthermore, the insertion social enterprises have an obligation to ensure, for employees who belong to the vulnerable group, accompaniment measures to guarantee the professional and social insertion.
Among the measures of accompaniment, the legal framework on social economy mentions: information, counseling, access to forms of training, adapting the workplace to a person's ability, accessibility of the workplace according to the needs of individuals as well as other measures aiming to support professional and social insertion.
Similar to social enterprises, the status of social enterprises of insertion is certified by awarding the social label, which represents a certificate valid for a period of 3 years starting from date of issue, as well as a specific element of visual identity which mandatorily applies to manufactures, executed works or documents that demonstrate the performance of a service.

Contact one of the lawyers within  the law firm Darie, Manea & Associates for more information on Law no. 219/2015 on social economy and social enterprises, social enterprises of insertion, as well as the means for their establishment in Romania. Do not hesitate to contact our time at any time you see fit for specialized, legal advice on this matter!

Monday, March 28, 2016

The supervision of employee's internet communications - Barbulescu V. Romania

The recent ECHR judgement "Barbulescu v. Romania "is a controversial judgement that refers to surveillance of the employees’ communications by the employer, and the notion of privacy in the workplace. This judgement concerns the case of Mr. Barbulescu who created a Yahoo Messenger account at the employer's request in order to meet the demands of his customers. Subsequently, the employee was informed that the employer monitored his conversations on Yahoo Messenger between July 5 and July 13, noting that Mr. Barbulescu used Yahoo messenger for personal purposes, contrary to the internal regulation. Mr. Barbulescu responded in writing denying the accusations, stating that his account was used strictly for professional purposes. The employer then showed him a transcript of 45 pages containing his conversations among which there were also conversations with his brother and his fiancĂ©e. Following this, Mr. Barbulescu accused the employer of violation of correspondence in accordance with the Criminal Code.
The employer has ceased the employment contract of Mr. Barbulescu on the basis of the violation of the internal regulations which, among other things, provide that the use of the company’s computers for personal use is strictly prohibited.
The applicant challenged the decision of the employer in national courts which have ruled that the employer acted pursuant to the dismissal procedure stipulated by the Labor Code, the employer was informed about the ban of using company resources for personal purposes and that monitoring of the employee’ communications in Yahoo Messenger on the company’s computer during working hours, whether legal or not, does not affect the validity of the disciplinary action taken in this situation.
Mr. Barbulescu has addressed in this respect the ECHR, the Court strictly analyzing this case, namely the interception of communications in open disciplinary proceedings in accordance with the Labor Code and not the preventive or continuous monitoring of employees.
Although the Court held that there is a right to privacy in the workplace, and Yahoo Messenger communications represent „private life” and „correspondence” within the meaning of the concept of art. 8 par. 1 of the Convention, the right to privacy must be balanced with the legitimate interest of the employer, which in this case presented a legitimate reason for it was believed, according to Mr. Barbulescu’s submissions, that the account is used strictly for business purposes. Moreover, the employee couldn’t argue the use of the account for personal and the access of the communications has been made during the disciplinary procedure stipulated by the Labor law. The Court also considers that the measure taken by the employer to oversee Yahoo Messenger communications on the employer was limited in scope and proportion as it was limited only to these conversations and not other data or documents from the computer. Moreover, the employee was informed about the ban to use computers, and not only, for personal purposes.
Finally, the Court finds that there was no violation of Article 8 of the Convention.
Judge Pinto de Albuquerque had a dissenting opinion, saying that regarding private conversations on the Internet, the obligation to promote freedom of expression is connected with the obligation to protect the right to respect private life and that a general prohibition on the personal use of the Internet by employees is inadmissible. The judge states that there was no clear policy regarding the use of the Internet, that the messages were personal in nature and yet they were copied, distributed and reviewed along with other co-workers and the dismissal was a disproportionate measure.
However, the Court does not state in any way the employer's right to unlimitedly monitor employee activity, and the jurisprudence of the ECHR constantly holds the exitance of the right to private life in the workplace.

Don’t hesitate to contact one of the lawyers within the Darie, Manea & associates law firm for more information regarding the notion of private life at the workplace. Our lawyers are dedicated to offering their customers complete and accurate information, guaranteed through a vast experience in a variety of law fields.

Sunday, March 6, 2016

Law no. 120/2015 regarding the stimulation of individual investors - business angels

Law no. 120/2015 regarding the stimulation of individual investors, known as business angels, regulate the conditions under which individuals named individual investors, business angels, can benefit from tax incentives as a result of acquisition of shares through investments in micro and small enterprises which fulfill the following conditions:
◦ are established as limited liability companies under art. 2 of the Company Law no. 31/1990;
◦ are autonomous enterprises under the Law no. 346/2004;
◦ are not in default, insolvency or bankruptcy and the procedure of arrangement with creditors or the liquidation of the company has not been opened.
In order to benefit from these facilities, any person can become an individual investor through the following cumulative conditions:
◦ is a person outside the company and becomes the associate of the company by cash contribution to the capital of the company, resulting in the issuance of new shares in their favor;
◦ invests an amount between EUR 3,000 and EUR 200,000, equivalent in RON at the National Bank of Romania from the date of transaction in the company whose associate he becomes through the acquisition of shares; the acquisition of shares takes place through the capital increase as provided in the preceding paragraph, and the amount invested will be paid through the banking system in Romania and will be recorded in the company’s accounts according to the law; what’s more, these cumulative amount limits apply regardless of the number of investors;
◦ the investment is done strictly to fulfill the core activity of the company and the business plan for which the business angel will invest;
◦ does not have records in the tax record issued by the competent authorities at the time of investment;
◦ can not hold, as a result of the investment, in their own name or through intermediaries, more than 49% of the share capital of the company concerned;
◦ is incapable or has been convicted for crimes against property through disregard of confidence, corruption, embezzlement, forgery of documents and tax evasion offenses, or for offenses under Law no. 31/1990.
In case more individuals become business angels under the aforementioned conditions, tax incentives may be granted for a maximum of 49% of the share capital of the company concerned in proportion to the percentage of shares held.
The business angel is exempt from income tax as dividends for a period of 3 years from the acquisition of shares, for dividends on shares acquired by obtaining the associate status thereof by his contribution in cash to the company's share capital.
The individual investor is exempt from tax on gains from redemption of shares in an open investment fund if the transfer of shares occurs after a period of at least 3 years after the acquisition.
The investor can surrender his shares in a closed society alongside the investment paid to the company to another individual investor who at the date of acquiring the rights of participation was not an associate.
These facilities will be granted if the following conditions are met:
◦ the business angel does not alienate the shares before the expiry of 3 years from the date of acquisition;
◦ the articles of incorporation, submitted to support the application for registration of the capital increase by issuing new shares in the Trade Register, contains clauses which stipulate that participation in the profits and losses of associates will become proportional to the percentage of shares held by each associate, and that decisions on the business plan and giving up profit sharing related to the investment made will be taken with the agreement of all partners;
◦ the company and associates don’t use the share premium at the capital increase and don’t distribute it to shareholders for a period of 3 years from the date of registration of the individual investor in the trade register;
◦ the company has no debts to the general consolidated budget at the date of the surrender of shares by the business angel.

If you would like to obtain additional information regarding the tax facilities granted to individual investors, also known as business angels, do not hesitate to contact our team of lawyers within the Darie, Manea & associates law firm who will provide you with legal, specialized information on the matter, as well as representation before the competent authorities if required.

Sunday, February 7, 2016

New rules and sanctions on packaging and packaging waste 2016

Law no. 249/2015 on the management of packaging and packaging waste represents the new rules regarding waste management. Thus, this law imposes certain requirements regarding the essential nature of unusable or exploitable packaging, manufacture and the composition thereof, equally imposing responsibilities and objectives regarding the collection of waste, as well as setting the penalties for non-compliance with this law.
This being said, his law clarifies the meaning of terms, regulating that, "packaging" is represent by any object, regardless of the material from which it is made or the nature thereof, for retention, protection, handling, distribution and presentation of products, from raw materials to processed products, from the producer to the user or consumer. More, even, the non-refundable object which is intended for the same purpose is also considered packaging.
Regarding the requirements introduced in the annexes of this law, the essential requirements relating to the manufacture and composition of packaging are:
▪ packaging shall be manufactured so that its volume and weight be limited to the minimum necessary to ensure the required level of safety, hygiene and acceptance for both the packaged product and the consumer;
▪ packaging shall be designed, manufactured and marketed in a way to allow reuse or recovery, including recycling, and to minimize the negative environmental impacts;
▪ packaging shall be manufactured aiming at minimizing the content of substances and toxic materials and other hazardous substances in the packaging material and its components, substances which may be present in emissions, ash or leachate resulting from the elimination processes of the packaging waste.
The essential requirements specific to the reusable nature of packaging are well defined, namely:
▪ the physical properties and characteristics of the packaging must allow multiple rotations in normal conditions of intended use;
▪ reused packaging must be prepared, as appropriate, to meet the requirements of health and safety;
▪ the packaging that can not be reused must become  capitalized packaging waste.
What’s more, the essential requirements of capitalized packaging establish that:
▪ packaging must be manufactured so as to allow, when it becomes packaging waste, that a percentage of the weight of materials to be recycled. Setting this percentage may differ depending on the type of material used in the manufacture of packaging;
▪ packaging must be manufactured so as to allow, when it becomes packaging waste, that the packaging waste processed for energy recovery to have a minimum calorific value that allows the optimization of energy recovery;
▪ packaging must be manufactured so as to allow, when it becomes packaging waste, that the packaging waste treated and composted be sufficiently biodegradable;
▪ biodegradable packaging must be manufactured so as to allow, when discarding packaging, a decomposition of physical, chemical, thermal or biological, so most of the material to be converted into carbon dioxide, biomass and water.
Furthermore, these conditions should be considered fulfilled only in case packages are compliant with both the Romanian standards and / or national standards of other Member States of the European Union, which adopt harmonized standards, and by Romanian standards for areas in which European harmonized standards are not adopted.
Regarding the obligations of economic operators, they need to market only packaging of which the sum concentration levels of lead, cadmium, mercury and hexavalent chromium present in packaging or its components does not exceed 100 parts / million by weight, but they also need to use a system of labeling and identification of the packaging in order to improve packaging recovery and recycling of packaging waste and to apply the system of marking and identification required by law.
Also, economic operators that produce reusable packaging own the obligation to comply with the essential requirements regarding reusability of packaging during its manufacturing, so as to allow multiple reuse.
Operators producing or selling products packaged in reusable packaging are obliged to apply the deposit system to ensure an optimum number of cycles of use, while those that manufacture goods packed in reusable packaging shall organize a collection system, with the purpose of multiple packaging for reuse, by operators selling these products or specialized centers for collection of these types of packaging.
Regarding annual targets on recovery or recycling of packaging waste, to be achieved at national level, the legal framework in this matter establishes that these are:
a) recovery or incineration, in waste incineration plants with energy recovery, of at least 60% of the weight of packaging waste;
b) recycling of minimum 55% of the total weight of packaging materials contained in packaging waste, with achieving minimum recycling values ​​for each type of material contained in packaging waste.
The value of these objectives for the recycling of each type of material found in packaging waste are as follows:
a) 60% of the weight for the glass;
b) 60% of the weight for paper / cardboard;
c) 50% of the weight for the metal;
d) 15% of the weight for wood;
e) 22.5% of the weight for plastics, considering only the material that is recycled as plastic.
The penalties for breaching the provisions of this law are represented by fines whose amount varies from 400 lei to 25,000 lei, depending on the seriousness of the offense.

The new law in the matter of the management of packaging and packaging waste contains strict and complex legislative provisions enabling effective management of waste in Romania, in line with European standards and the national ones. If you want to get more information on your obligations in this area as an economic operator, you can contact one of the lawyers within Darie, Manea & associates who will provide legal assistance and representation before the competent authorities when appropriate.