Tuesday, June 30, 2015

Engagement vs. Cohabitation. Legal provisions and application in Romania

Engagement under the provisions of the New Civil Code of Romania

 At this point, the institution of engagement is governed by the provisions of the New Civil Code, specifically by the provisions of articles 266-270 of Law no. 287/2009 on the Civil Code.
Article 266 thus states that "the engagement is the mutual promise to enter into marriage". However, all regulations related to this institution are applicable provided that the engagement was concluded after the date of entry into force of the Civil Code.
The conclusion of an engagement in Romania does not imply the observance of any formalities, the Civil Code expressly stating that its evidence can be achieved through any means of proof. Moreover, the conclusion of the engagement is not a criterion for the conclusion of marriage.
Romanian legislation does not recognize same-sex marriage or engagement. This emerges clearly from the provisions of par. (5) of art. 266 which provides that the above-mentioned possibility to conclude an engagement exists only between a man and a woman. Similarly, the provisions of art. 271 of the New Civil Code regulates marriage "between a man and a woman through free and personal consent".
Engagement is considered to be a social and moral relationship, consensual and freely consented, that offers parties a certain legal status and is also a producer of some patrimonial effects in the event of cessation. Like any social relationship, it can be broken, and the New Civil Code of Romania provides for this possibility in art. 267, stating that the fiance who breaks the engagement will not be obliged to conclude the marriage, and the establishment of any penalty clauses on breaking the engagement will be considered unwritten. Regarding the possibility of breaking the engagement, there is a manifestation of symmetry with its conclusion, being that the break of engagement is not subject to any formality and may be proved by any means of evidence.
As we mentioned the existence of certain patrimonial consequences in the event of a break of engagement, it should be mentioned that the break will result in the obligation to repay the gifts received in the consideration of engagement or throughout the engagement, as well as in the consideration of marriage, the exception being the usual gifts. The refund will be made in nature or to the extent of enrichment, if the first method of reimbursement is not feasible. The situation in which there is no obligation of restitution regards the termination of engagement by the death of either one of the fianc├ęs.
Romanian legal drafters felt necessary to establish the liability for the abusive break of engagement, so that the person responsible for this will be obliged to pay compensation for the expenses incurred or contracted in consideration of marriage, but also for any other caused damages. In identical circumstances, the person culpable of causing the break of engagement party can be held accountable. These actions have an accountability limitation period of one year, which begins to run from the break of engagement.

Cohabitation

Cohabitation is accomplished between a man and a woman who do not make any promises regarding the conclusion of the formalities relating to marriage. We see here the first difference between cohabitation and engagement, seeing that while engagement involves a promise from both sides to enter into the marriage, cohabitation does not require such a promise, but the simple cohabitation of the parties without the consideration of the marriage. Therefore, the engagement may involve cohabitation in some degree, specifically in terms of coexistence, but cohabitation can not involve engagement.
Paramours do not conclude any form of promise between them. However, even if the parties to a cohabitation would promise each other something, they would not be penalized for failing to comply with the promise because the cohabitation is not regulated by the Romanian legislation, specifically by the New Civil Code, this being the second difference between engagement and cohabitation .
Cohabitation is not an institution regulated by law and its development is based merely on traditions and customs, not on legal provisions, while engagement is specifically regulated by the Romanian legislation regarding family law.


Darie, Manea & associates guarantee its clients professional legal consulting and representation with all the competent authorities. If you need further information regarding the engagement or the implications of cohabitation in Romania, don’t hesitate to contact one of our specialized lawyers. Family law represents an important field of our activity and we look further to offering you the information and guidance you need.

Open a business with alcoholic and tobacco products in Romania

How can I open a business regarding the production and marketing of tobacco or alcoholic products in Romania?

In Romania, these activities are regulated by the Tax Code currently in force, as well as by the subsequent amendments. Alcoholic and tobacco products represent excise products, i.e. products whose consumption are laid on special taxes levied directly or indirectly.
The authorized warehouse keeper is a natural or legal person authorized by the competent authority to produce, process, hold, receive or dispatch the excise goods mentioned above in a suspensive regime, in a tax warehouse.
We can define the tax warehouse as the place where the authorized warehouse keeper develops the activities referred to in terms of excise goods.
There are, however, excise products whose production and transformation does not involve a tax warehouse. These products are: beer, wine and fermented beverages other than beer and wine, produced in individual households for their own consumption, as well as wines made by small producers who obtain on average less than 1000 hl of wine per year.

How can I get the fiscal warehouse keeper authorization and what is the competent authority?

If you intend to get the authorization for fiscal warehouse keeper, you must submit a request to the territorial customs authority or the interior customs offices and the General Directorate of Customs, in the case of large taxpayers.
A fiscal warehouse may operate only on the basis of a valid permit issued by the competent authority - the Commission instituted by the Ministry of Finance for the licensing of excise products.
The application must contain the following information and documents concerning:
a) the location and nature of the place;
b) the types and quantity of excise goods which are estimated to be produced and / or stored in the course of one year;
c) the list of excise goods to be procured for use as feedstock in the production activity of excise goods;
d) the identity and other information concerning the person who will carry out the activity as an authorized warehouse keeper;
e) the administrative organization, operational flows, the yield of the machines and other data collection relevant to determining the excise duty, set out in a procedural manual;
f) the ability of the person to be authorized as a warehouse keeper to meet the chargeability conditions - these conditions are those in effect on the date on which the  excise become chargeable in the Member State in which the release for consumption takes place;
g) the maximum production capacity and / or storage capacity, declared by the natural person or the legal person’s director who intend to be authorized as a warehouse keeper;
h) the environmental authorization / integrated environmental authorization issued under the relevant laws, or proof that steps were taken to achieve them;
i) proof of minimum capital subscribed and paid in the amount provided in the methodological norms.
The level of minimum share capital subscribed and paid in Romania set on excise product are established on categories as follows:
▪ Beer storage - 10,000 lei;
▪ Wine storage - 2,000 lei;
▪ Storage of fermented beverages other than beer and wine - 50,000 lei;
▪ Intermediate products storage- 100,000 lei;
▪ Ethyl alcohol and / or spirits storage - 100,000 lei;
▪ Tobacco storage - 500,000 lei;

If there are being stored and / or produced more categories of excise products, the minimum share capital subscribed and paid will be that corresponding to the category of excise goods for which a higher level is provided.

Apart from the conditions regarding minimum share capital subscribed and paid, are there any other conditions that must be met in order to obtain the authorization of fiscal warehouse keeper in Romania?

Yes, the competent authority for the authorization of tax warehouse keeper will proceed to grant the authorization only if the following conditions are being met:
a) the place is to be used for the production, processing, storing, receiving and / or sending of excise goods;
b) the place is located, constructed and equipped so as not to allow the removal of excise goods from this place without excise duty;
c) the place will not be used for the retail sale of excise products;
d) a natural person who wishes to carry out the activity as an authorized warehouse keeper has not been definitively convicted for certain offenses listed in the Fiscal Code and incriminated by various laws;
e) a legal person who wants to carry out the activity as an authorized warehouse keeper or the directors of such legal person have not been definitively convicted of certain offenses established by the Tax Code;
f) the person wishing to operate as an authorized warehouse keeper must prove that they can meet the requirements of enforceability;
g) the person wishing to operate as an authorized warehouse keeper must not have any outstanding tax liabilities at the consolidated general budget, such as those managed by the National Agency for Fiscal Administration;
h) the excise duty on the finished product can not be lower than the weighted average of the rates of excise duty of the raw materials;
i) the legal entity does not find itself in the bankruptcy or liquidation proceedings.


Seeing that the authorization for fiscal warehouse keeper implies many factors and is a rather complex process, Darie, Manea & associates wishes to help its clients with proper and complete information. You can contact our law firm and consult our list of lawyers specialized in commercial and fiscal law and we will make sure that the clients’ preferences are being met with minimal effort on their side. Feel free to contact us at any given time.