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Having an ecommerce website can be a great competitive advantage for your business. But before launching it, you must make sure that it meets all of the requirements regarding Romanian ecommerce legislation. In order to facilitate the process, we prepared for you a useful checklist for e-shops in Romania, to make sure that everything is in order with your ecommerce platform.
Note: the companies which manage sales websites, take online orders and/or advertise products and/or services, tourist services, selling tourist service packages or plane tickets, including e-commerce – electronic commerce, are obliged to display on the first page of the site – home page (within menu bar of the page) the icons provided in annex no. 2 of the Order 449/2022 respectively the relevant link to ANPC SAL page and EU SOL page.
Law no. 265/2022 regarding the Trade register and for amending and supplementing other normative acts with incidence on the registration within the Trade register, was published in the Official Gazette on July 26, 2022 and will enter into force within 4 months from publication.
Of the many modifications, we will keep our attention in this newsflash on the updates brought by this normative act on the process of merger by absorption.One of the important changes brought by Law nr. 265/2022, refers to the competence to verify the legality of the merger in terms of the procedure followed by the companies participating in the merger. Thus, starting with November 26, 2022, the date of entry into force of the normative act, the competence will belong to the Trade register registrar where the Romanian legal entities participating in the merger are registered, this aspect being to generate multiple reformations and correlations on the relevant articles of the Companies Law no. 31/1990. However, the jurisdiction of the court is preserved in case of opposing the merger or for declaring the merger nullity, under the conditions mentioned below.
Another novelty refers to the fact that the joint merger project, endorsed by the Trade register registrar, will be published within the Electronic Bulletin of Trade register, as an alternative to the Official Gazette of Romania, at least 30 days before the dates of the meetings in which the shareholders are to decide on the merger.
As for the opposition to the merger, can be done within 30 days from the date of publication of the merger project within the Official Gazette of Romania, Part IV, or in the Electronic Bulletin of the Trade register, if the company has opted for publishing on its own web page. The opposition is submitted to the Trade Register Office, which, within 3 days from the date of submission, will mention it in the register and will forward it to the competent court.
Following the amendments regarding the registrar’s competence, the amending act of the articles of incorporation of the acquiring company will be registered in the Trade register in whose territorial jurisdiction the company has its headquarters and will be published in the Official Gazette of Romania, Part IV, at the company’s expense, without the validation of the delegated judge.
In addition to verifying the legality of the merger in terms of the procedure followed by the companies participating in the merger, the Trade register registrar will verify, if necessary, the characteristics of the mechanisms of employee’s involvement in the activity of the absorbing company.
The provisions regarding the date on which the merger will produce its effects by correlating the examination carried out by the registrar in the Trade register are also modified, the date of the merger being that of the registration within the Trade Register of the amending act of the articles of incorporation, unless, by the agreement of the parties, it is stipulated that the operation will take effect on another date. However, this date cannot be subsequent to (i) the end of the current financial year of the acquiring company or to the beneficiary companies (ii) prior to the end of the last completed financial year of the company or companies that transfer their patrimony, (iii) to the control of the Trade register registrar.
With regard to the nullity of the merger, although the current form of the law provides that the nullity of the merger cannot occur after the date on which it produced effects, the new provisions mention that once the merger has been finalized, it may be declared only if it has not been subject to a legality review or if the decision of one of the general meetings that voted for the merger or division project is null or voidable, correlating the provision with the attributions of the Trade register registrar in this matter.
Referring to the updates made to the process of verifying the legality and registration of a merger, we consider that they are clearly for the benefit of the companies involved. Loosening the process by transferring it from the judge to the Trade register registrar, can only have a positive impact materialized in relieving the courts and accelerating the process within the merger procedures by shifting the process management to the competent Trade register office.
In the Official Gazette no. 248, on March 25, 2020, was published the Order of the Minister of Economy no. 791/2020 establishing the procedure for granting emergency certificates.
The certificates will be issued in two forms:
The blue certificate will be issued in case the activity of the company has been totally or partially interrupted as a result of the decisions issued by the authorities in the context of SARS-CoV-2 pandemic.
The yellow certificate will be issued if the company registered a decrease of revenues in March 2020 with at least 25% compared to the average of the revenues obtained in January-February 2020.
According to article 6 of the Order, for the purpose of obtaining the type 1 or 2 certificate, the applicant will upload to the dedicated platform, respectively www.prevenire.gov.ro, the following information and documents:
The documents shall be uploaded using the electronic signature of the legal representative or of the proxy.
A company shall apply for a single type of certificate, which will be used in relation to public institutions to obtain facilities/support measures in commercial relations.
Within 5 days from the approval and publication in the Official Gazette of the Order, the Ministry of Economy will ensure the functioning of the electronic platform for obtaining the emergency certificates.
The commercial arbitration is a form of alternative jurisdiction to usual courts of law in Romania and does not apply in disputes concerning the civil status of the individual, the capacity of persons, succession debates, family relations, as well as the rights over which they cannot dispose of.
The contracting parties may insert into the contract the arbitration clause. The arbitration court or arbitrator may be determined based on the law or consent between the parties who wish to appoint a certain person or persons to deciding their dispute. In Romania, you may choose that your dispute is judged, for example, by the The Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania (www.arbitration.ccir.ro).
The proceeding in front of the Arbitration Court will be decided by one or three arbitrators.
In order to remunerate the arbitration services rendered by the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania, there will be charged a registration fee in amount of EUR 150, as well as an arbitration fee consisting of an administrative fee and arbitrators’ fee.
The arbitrator’s fee has a fixed part and a variable amount which may fluctuate between 0,3 and 5% of the claimed amount. In order to calculate the fee, you may consult the link: www.arbitration.ccir.ro
The arbitrator decision is an enforceable title and may be enforced in the same mode as a Court decision.
In case of amounts up to RON 10,000 (approx. EUR 2,000), there is a special small claims procedure to follow. By filling in a type form, attaching the relevant written evidence and paying a duty stamp of RON 200 (approx. EUR 42), you invest the judge with the case. The presence of the parties is not necessary, and the decision will be ruled in approximative 3-4 months.
In case the creditor has clear proof related to his claim and the amount is uncontested by the debtor, liquid and enforceable, would be to file a payment injunction request. The duty stamp is the same as the one mentioned for the small claims’s procedure, respectively RON 200 (approx. EUR 42), but the procedure is more formal and may last up to 6-7 months. The parties may be present at hearings and may present oral/written arguments.
If you need to present in Court more evidence, you have the option to follow the common civil procedure. The duty stamp is calculated based on the value of the claim (a fixed base and a percentual part), as per the provisions of the Government Ordinance no. 80/2013. The length of the procedure depends on the evidence adduced. In complex files, the procedure may take up to 1 year or more. Due to the complexity of the process, juridical support of a lawyer is needed and highly recommended.
The enforcement proceeding may be initiated by the creditor once the Court decision is final and enforceable. If the debtor will not execute the Court decision voluntarily, the creditor will request the support of a bailiff. For Bucharest, the list of the public bailiffs is mentioned here: www.cejbuc.ro.
Once the file is open, the bailiff requests to the competent judge the approval of the enforcement.
Related to the costs, the stamp duty applicable for the request is RON 20 (for each enforceable title).
Related to the fee of the appointed bailiff, usually there is a fixed fee which is advanced by the creditor and the rest of the amount is paid only if the debt is collected. If possible, the costs will be recovered from the debtor.
A simple search on the Courts’ portals in Romania, the portal of fiscal authorities and requesting information from the Trade Register Office where your partner is registered may outline information which will determine your decision of entering or not into a business relation.
Given the increasingly fluctuating employment force in the European Union and the growing interest of foreign companies to start different projects in Romania, our specialists consider relevant to offer basic information regarding delegation/posting and cross border posting in our country.
According to the Romanian labor code, the place of the work may be unilaterally modified by the employer by delegating or posting the employee to another workplace than the one provided in the individual employment contract. During the delegation or posting, the employee shall retain his position and every right set in the individual employment contract.
The delegation is the temporary exercise by the employee, on employer’s direction, of works or tasks similar to his usual tasks, outside his workplace. A delegation may be directed for a period of maximum 60 days and may be extended, with the agreement of the employee, with maximum 60 days. A delegated employee shall have the right to payment of transport and accommodation expenses, and to a delegation benefit, under the terms provided for in the law or the applicable collective labor agreement.
Posting is an act by which the employer directs the temporary change of the workplace to another employer, for the performance of certain works in its interest. By way of exception, the type of work may be changed during the posting, but only with the written agreement of the employee.
The posting may be directed for a period of maximum one year. By way of exception, the period of the posting may be extended every six months, with the agreement of both parties, for objective reasons that require the presence of the employee with the employer where the posting was directed.
An employee may refuse the posting directed by his employer only by way of exception and for duly justified personal reasons. A delegated employee shall have the right to the payment of transport and accommodation expenses, and a delegation benefit, under the terms provided for in the law or the applicable collective labor agreement.
The rights due to a posted employee shall be provided by the employer where the posting was directed. During the posting, an employee shall enjoy the rights more favorable to him − either the rights with the employer directing the posting, or the rights with the employer he is posted to.
The employer providing the posting has to take all measures necessary so that the employer where the posting was directed fulfils completely and in good time all obligations towards the posted employee.
The cross border posting is regulated by Directive 96/71/EC and was transposed in Romania by Law no. 344/2006 and Government Decision no. 104/2007, both referring only to the posting of citizens from other EU countries to Romania. Regarding the posting made by employers from Romania in other EU countries, there is no specific regulation at present. In these conditions, the cross border posting is interpreted and applied differently by employers.
Even if there is no specific regulation regarding posting of Romanian citizens in other EU countries (except for specific legislation in each state where there is posting), the notion of cross border posting will not be confused with the notion of posting of the Labor Code.
An essential element of distinction between the two concepts is on the effects of posting towards labor contract. In the case of posting governed by the Labor Code, there is a suspension of the labor contract during posting (which implicitly assumes the suspension of payment of wages by employer). In case of cross border posting, the labor contract with employer that post can be actively maintained. In this case, the salary will remain in pay at the seconding employer.
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