Romania is a civil law jurisdiction where most of the laws are codified. As Romania is a member of the European Union, the European mandatory legislative framework takes precedence over the national laws. The legislative body in Romania is the Romanian parliament, which under certain conditions delegates its legislative powers to the Romanian government. In addition, the national or public authorities are also granted the power to enact mandatory and generally applicable administrative deeds in their area of jurisdiction.
With respect to the courts, the Romanian Constitution vests judicial powers in the High Court of Cassation and Justice and the common courts (local courts, tribunals and appeal courts, and military courts). In line with the principle of separation of powers, judicial power is independent of legislative and executive powers.
As such, judges solely interpret and apply the law and do not have powers to enact laws (in Romania, a legal precedent is not recognised as a source of law). Nevertheless, courts of law tend to follow the landmark decisions issued by the High Court of Justice. In addition, the High Court of Cassation and Justice also has a responsibility to ensure the unitary interpretation and application of the law.
The Constitutional Court plays an important role by rendering legal provisions unconstitutional and thus ending their effect.
Proceedings before the court generally consist of two stages – first instance and the appeal. In some situations, the law provides for a third level of jurisdiction – the second appeal, as well as for other extraordinary means of appeal that are also available under certain conditions and are generally applicable.
The free access to justice is normally conditional upon the payment of a stamp fee. Regarding administrative matters, it should be noted that, as a rule, a preliminary procedure must be followed before addressing the courts of law.
The main principles, according to the European Convention on Human Rights, are fully applicable in court proceedings, although the duration of the proceedings remains lengthy in most cases (sometimes up to four or five years).
Review by the Romanian Competition Council
Foreign investments require approval from the Romanian Competition Council if the merger control thresholds under 6.1 Merger Control Notification are cumulatively met.
In Romania, the European framework is applicable for the screening of foreign direct investments (FDIs), the legal basis being the Regulation (EU) 2019/452 of the European Parliament and of the Council on 19 March 2019 (the “FDI Regulation”). The FDI Regulation aims to establish a mechanism for co-operation between member states, and between member states and the European Commission in relation to FDI likely to affect security or public order.
Although the FDI Regulation came into force at European level on 11 October 2020, no specific national legal provisions have so far been issued in Romania. At national level, a draft emergency ordinance currently going through the legislative process is meant to cover the measures required for the application of the FDI Regulation, as well as to amend and supplement Competition Law No 21/1996 (the “Draft GEO”).
According to the Draft GEO, for an investment to be considered an FDI, the following cumulative conditions must be met:
Foreign investments may be subject to scrutiny and authorisation if their value exceeds the threshold of EUR2 million and if the economic activity concerns one of the following:
Significantly, even if it does not exceed the EUR2 million threshold, the FDI will be subject to examination and authorisation if, by its nature, it could have a significant impact on security or public order (however, no clear criteria in this respect are mentioned in the Draft GEO).
Review by the Romanian Competition Authority
There is currently a similar (less formal) screening in force, covering transactions which are reviewed by the Romanian Competition Authority for merger control purposes (only for transactions exceeding the turnover thresholds – see6. Competition Law). After receiving a merger notification form, the Competition Authority must notify the Supreme Council of National Defence. It is possible for the Romanian government, at the proposal of the Supreme Council of National Defence, to prohibit a transaction from happening, although this has never occurred so far.
For the application of these provisions, the Supreme Council of National Defence issued Decision No 73/12 listing the areas in which economic concentration operations are subject to control, namely:
Currently there is no obligation to notify the authorities of a foreign investment (if the cumulative conditions from the mergers and acquisitions are not met), considering the fact that (i) on the one hand, the Draft GEO is currently undergoing the legislative process, and (ii) on the other hand, should an economic concentration, notified in advance to the Competition Authority, present risks for national security, the Competition Council will notify the Supreme Council of National Defence.
According to the Draft GEO, foreign investors must seek authorisation before the Competition Council prior to implementation.
In the case of FDI by two or more independent undertakings, an application for authorisation must be submitted by each of the parties involved.
Implementation of an FDI without prior authorisation under the conditions of the emergency ordinance risks being sanctioned with a fine of between 1% and 5% of the total turnover in the financial year prior to the sanction.
If it is considered necessary to impose certain commitments on the investor, the investment will be conditionally authorised. Failure to observe the commitments imposed, whether intentionally or through negligence, is sanctionable with a fine of between 1% and 5% of the total turnover of the financial year preceding the sanctioning decision.
Decisions may be challenged before the administrative contentious courts of law. More specifically, a government decision regarding the prohibition of a foreign investment during merger control proceedings may be subject to an annulment claim according to the general framework regarding administrative deeds issued by the public authorities.
Several types of legal entities can be used as corporate vehicles in Romania, among which, the most commonly used are joint stock companies and limited liability companies, both characterised by the shareholders’ limited liability. As a rule, Romanian regulations do not provide for a different fiscal or foreign investments regime depending on the form of corporate entities.
Limited Liability Companies
The limited liability company is the most popular form of corporate vehicle in Romania, given the flexible governance rules and incorporation procedure.
The decision-making body is the general meeting of shareholders. In the case of limited liability companies, the law does not distinguish between an ordinary and an extraordinary general meeting. Regarding quorum and voting requirements, these can be determined by the articles of association, without any specific limitations imposed by law.
Specific rules regarding share capital and the number of shareholders
As a result of the latest amendments to Romanian company law, there is no longer a minimum threshold requirement for the share capital of limited liability companies, the sole provision being that the share capital must be entirely paid up by the incorporation date. The share capital can be constituted in RON or foreign currency or a combination of the two. However, payment of the share capital must be made in RON.
With respect to the number of shareholders, a limited liability company can have as few as one shareholder, but the maximum number cannot exceed 50. Regarding the nationality or citizenship of the shareholders, no specific restrictions are imposed.
Joint Stock Companies
One of the fundamental differences between a limited liability company and a joint stock company (societăți pe acțiuni sau SA)is that in the latter, the share capital may be raised by public subscriptions and the shares can be issued in the form of securities. Joint stock companies are corporate vehicles usually chosen for investment projects, having a complex corporate structure and being the most regulated form of corporate entity under Romanian law.
As in limited liability companies, the decision-making body in joint stock companies is the general meeting of the shareholders which, in this case, can be either ordinary or extraordinary, depending on the issues to be decided. However, the fundamental difference is that in the case of joint stock companies, the articles of association must require higher quorum and voting majorities than those required by law for each type of general meeting of shareholders.
Specific rules regarding share capital and the number of shareholders
The minimum amount of share capital for a joint stock company is RON90,000, the clarifications made for limited liability companies regarding the currency being applicable. On incorporation date, the subscribed share capital of each shareholder must be paid up to 30%, while the remaining 70% must be paid within 12 months of the incorporation. Since July 2019, bearer shares (available in case of joint stock companies) have been outlawed in Romania as a prevention measure against money laundering and financing of terrorism.
Joint stock companies must have a minimum of two shareholders, either natural persons or corporate entities, irrespective of their nationality or citizenship, while the maximum number of shareholders is unlimited.
Less Common Types of Corporate Vehicle in Romania
There are also other, less common types of corporate vehicle in Romania.
For example, a partnership (societate în nume colectiv) is a corporate vehicle characterised by the fact that the social obligations are guaranteed by the assets of the company and the partners are jointly liable, their liability being unlimited.
There are also limited partnerships (societate în comandită simplă), representing corporate vehicles characterised by the existence of two types of shareholders: shareholders that are personally liable (comanditați) and shareholders that have a limited liability depending on the amount of the share capital (comanditari). As with a limited partnership, there are limited partnerships by shares (societate în comandită pe acțiuni), the main difference being that in the case of the latter, the share capital is in theform of stocks.
Other corporate vehicles, such as joint ventures without legal personality (asociere în participație), are also available.
In Romania, the incorporation process of legal entities is relatively simple, and consists of preparing a file and submitting the application to the local Trade Registry from the company’s headquarters.
The first thing to do in order to set up a company in Romania is to choose the type of company and verify and book a name for it. The second step is to choose the object of activity according to the NACE codes. It is mandatory to choose a main object of activity and optional to choose several secondary objects of activity.
Following this, the incorporation file must be prepared, taking into account the list of documents provided on the National Trade Registry website, which include the articles of association, documentation for company headquarters, specimens of signatures, and a declaration by the company founders and directors.
Checking the availability of a name and reserving it, and the incorporation process, can be done either at the Trade Registry office or online. Once the incorporation file is submitted, the incorporation process usually takes another three to five days.
The fees charged by the Trade Registry are not high. As a rule, for the incorporation of a limited liability company, the cost starts at RON130.
There are some ongoing reporting and disclosure obligations for Romanian private companies. For example, any amendment to the articles of association or the management bodies of the company must be registered with the competent Trade Registry.
Moreover, companies have to submit an ultimate beneficial owner statement annually. Last but not least, at the end of each financial year, companies must file approved financial statements and, if one is available, the report of an independent auditor.
The rules concerning the management of companies differ depending on the type of corporate vehicle chosen.
Limited Liability Companies
In the case of limited liability companies, there are not many specific rules with regard to the management of the company – it can be managed by one or more directors, who may or may not be shareholders, and who must be appointed for a limited period of time.
Unless otherwise provided in the articles of association, the power to represent the company is granted to each director. However, this is used in practice to introduce double signature requirements for certain operations into the articles of association.
Joint Stock Companies
In the case of joint stock companies, there are two types of management structures, namely: the one-tier structure or the administrator-based system, and the two-tier structure or the dual system.
The one-tier system consists of a single director or a board of directors with an odd number of members, which can be composed of both executive and non-executive directors. The board of directors may delegate management powers to one or several managers, appointing one of them as a general manager (who can then be the chairman of the board of directors). As a rule, both individuals and legal entities may be appointed as directors of a joint stock company, but they have to be appointed for a limited period of time not exceeding four years, and not exceeding two years in the specific case of the first directors appointed by the articles of association.
There are also some restrictions provided by law for directors of joint stock companies. For example, an individual can be a director of no more than five other joint stock companies headquartered in Romania, except when such individual holds 25% of the shares of the company or acts as a member of the board of directors of the joint stock company owning 25% of the shares.
The two-tier system consists of two different management bodies, namely, the management board and a separate supervisory board.
The management board is the executive body, composed solely of individuals who carry out the management of the company on a day-to-day basis and represent the company in relation to third parties. The management board is appointed and supervised by the supervisory board.
In light of the above, the supervisory board’s main function is to supervise the company’s activities, including those of the management board. The supervisory board is appointed by the shareholders, and it therefore represents the company in relation to the members of the management board. As a rule, except if otherwise provided in the articles of association, the supervisory board has no managing powers. Unlike the management board, in the case of the supervisory board, both individuals and legal entities may be appointed as members.
In the case of both limited liability and joint stock companies, directors and officers bear the following types of liability:
In respect of shareholders, the provisions applicable to limited liability and joint stock companies are similar.
In Romania, the employment relationship is mainly governed by:
A legal source can only provide for a more favourable standard than the legal sources above in the hierarchy of laws.
During the COVID-19 pandemic, some temporary measures have been introduced in Romania in order to support businesses, including covering the wages of the self-employed and workers in danger of being laid off, partially subsidising the wages of those returning to work, and deferral of utility payments for small and medium-sized enterprises.
An employment contract can only be validly concluded in writing, in the Romanian language, no later than the day before the employee starts work.
Prior to the beginning of employment, the employer must ensure that the employment contract is duly registered in the employees’ general evidence record, which is submitted to the Labour Inspectorate.
An employment contract must comprise the material elements provided by the law and the job description.
The material terms of the employment contract can only be amended by means of concluding an addendum to the employment contract, and not unilaterally by the employer. The employer is solely entitled to the unilateral change of the place of work by means of delegation or assignment of employees, provided that certain requirements are met. As a rule, the employment contract must be concluded for an unlimited duration. By way of exception, for project-based work, the individual employment contract may also be concluded for a limited duration, under the terms expressly provided by the law.
Irrespective of the duration of the employment contract, the contract can be concluded on a full-time or part-time basis.
Also, in order to test the employee’s skills, a trial period may be agreed when entering an employment contract.
The standard working day for full-time employment is eight working hours per day, five days a week (40 hours per week), and there are no minimum working hours (for employees up to 18 years old, the duration is six working hours/day). The maximum working time during a week cannot surpass the threshold of 48 hours per week, including overtime (an exemption is set out by the law, provided that the average working hours do not surpass 48 hours per week over a reference period of four, six or 12 months).
The standard working hours may be modified based on the work time schedule adopted in connection with certain sectors of activity, units or professions. Nevertheless, the employer must ensure minimum periods of uninterrupted rest of 12 hours per day and a 48-hour break once a week.
The employer is obliged to keep a record of the working hours of each employee.
For overtime working hours and time worked during public holidays, employees are entitled to free paid hours, otherwise the employees are entitled to supplementary pay of a minimum of 75% of base salary for overtime work and a minimum of 100% of base salary for time worked during public holidays.
Depending on the type of activity conducted by the employer, the particular requirements with regard to working time in the case of night shifts, or special working conditions, must also be observed.
Under Romanian legislation, the termination of an employment contract must observe legal provisions. As such, an employment contract may be terminated as follows:
Termination by Mutual Consent
The employer and the employee are free to agree upon the terms of termination. Severance payment is not a mandatory condition under the law.
In the case of unilateral termination, certain conditions must be met and usually a notice period is required, as well as the reasoning behind the termination decision (by the employer). The only exemption is provided in the case of dismissal or resignation during the trial period or at the end thereof, which is conditional solely upon a termination notice by either party, without notice or any reasoning.
Termination by the Employee
An employee may terminate an employment contract, provided that a notice period is observed, as follows:
If the employer breaches these obligations, the employee can terminate the contract without notice.
Termination by the Employer
The termination of an individual labour agreement at the employer’s initiative (dismissal) must be based upon one of the following limited situations:
In the last three situations mentioned above, the employer must grant the employee a prior notice of termination of at least 20 working days.
Some categories of employees are protected from termination, as the law prohibits the dismissal of an employee in situations such as illness leave, rest leave, pregnancy, maternity, and child raising or nursing leave, etc.
In the case of a disciplinary dismissal, the employer must perform a preliminary investigation to establish the misconduct of an employee. The proceedings are expressly provided by the law and special requirements may be comprised within the by-laws. Failure to observe the special provisions in this respect can trigger the annulment of the termination decision by a court of law.
In addition, it should be noted that under Romanian law, dismissal for misconduct is regarded as a last resort in terms of sanctions. The sanctions provided by the law range from written warning, demotion, reduction of base salary by 5–10% for one to three months and, finally, termination of the employment relationship. Therefore, a serious violation of the law, by-laws or employment agreement must take place before an employee can be dismissed for misconduct (the seriousness of the misconduct is a subjective criterion, but the employer can establish within the by-laws the misconduct that triggers the dismissal).
In the case of dismissal for professional inadequacy, the employer must first establish the grounds of the evaluation procedure.
A dismissal for reasons not related to the person of the employee is the termination of the individual employment contract due to the restructuring of the employee’s position, for one or several reasons, which are not connected to the employee’s person. The restructuring of the workplace must be effective and have a real and serious cause, otherwise it may be regarded as a wrongful termination by the courts of law.
In Romania, collective redundancy is the dismissal, within a timeframe of 30 calendar days, on economic grounds, of:
When the employer envisages the need for a collective redundancy, the employer must initiate, within a reasonable time and with a view to reaching an agreement, consultations with the trade union or with the representatives of the employees.
The law fully regulates the consultation and the negotiations with the trade union or the employees’ representative and during such procedure the Territorial Labour Inspectorate and the local public employment office are also notified and made aware of the envisaged restructuring and/or collective dismissal.
Following the collective dismissal, should the activities that were interrupted leading to the collective redundancy be resumed within 45 calendar days from the dismissal date, the employer must send to the dismissed employees a written communication informing them of the resumption of activities and reinstate them in the same workplace as before, without any examination, contest or trial period. The re-employment is conditional on the agreement of the former employees, which must be granted within five calendar days from the receipt of the notification. Failure to respond or to agree to the employer's proposal entitles the employer to engage new personnel for the vacant positions.
Should a court declare a termination related to any of the above-mentioned cases null and void, the employee is entitled to damages for abusive termination amounting to the full payment of all financial rights the employee would have obtained if they were not wrongfully dismissed. The court will also rule the reinstatement of the employee, should such a claim be made.
A trade union may be established by at least 15 employees within the same unit. For a trade union to acquire legal personality, it must be registered within the special record of trade unions kept by the competent district court.
Two or more trade unions within the same sector of activity can assemble as a union federation, and two or more union federations can assemble as a union confederation.
The main rights of trade union organisations are:
In order to achieve their goal, trade union organisations have the following tools at their disposal: negotiation; dispute resolution by conciliation; mediation; arbitration; petition; protest; march; rally; demonstration; or strike.
In Romania, if there are no representative unions within a company with more than 20 employees, the employees may elect and empower several representatives, by at least half of the total number of employees’ votes.
The duration of the mandate of the representatives is set during the appointment process, and it is limited to a maximum of two years. The employees grant their representatives powers to defend their interests during collective negotiations.
The main powers of employee representatives are similar to those referred to above in connection with the trade unions, except for the powers granted exclusively to the latter.
Whether in cash and/or in kind, salary income must be based on an individual employment agreement, a job relationship, secondment agreement, or a special statute provided by law, and it is taxed at a flat tax rate of 10%. The fiscal code also provides for revenues that are considered salary-assimilated income. For Romanian salary income tax purposes, mandatory employee social contributions apply and are deductible.
Taxes must be computed and withheld by resident employers, resident income payers or individuals, in the latter case if salary income is paid by third parties that are non-resident.
Corporate income tax amounts to 16% in Romania and is applied to the difference between the total revenues and expenses booked in accordance with the accounting regulations, adjusted for fiscal purposes by deducting non-taxable revenue and adding non-deductible expenses. There are specific rules in relation to the corporate income tax base computation for taxpayers that apply International Financial Reporting Standards (IFRS), such as financial institutions and listed companies.
The tax rate on dividends is 5%.
The main tax credits/incentives available in Romania are:
Pursuant to Law No 296 of 18 December 2020, which generally applies from 1 January 2021, Romania introduced measures for a consolidated tax group regime and several other tax-related changes. The newly enacted law details the conditions required for companies opting for fiscal consolidation, and the obligations that fiscal group members must comply with. The threshold of shareholding or voting rights is set at 75% (once opted in, the fiscal group must be maintained for a minimum of five years).
Thin capitalisation rules applicable to deductibility of borrowing costs incurred by profits tax-payers were amended with effect from 1 January 2018, following the transposition into the Romanian Fiscal Code of the provisions of EU Directive 2016/1164, laying down the rules against tax avoidance practices.
Romania has had transfer pricing documentation requirements since 2008. Transactions with both non-resident related parties and domestic related parties should be documented. Requirements differ based on categories of taxpayers (large, medium-sized or small), on materiality thresholds (annual value of inter-company transactions), and also on the types of transactions (financial transactions, supply of services, purchases).
Since 2005, Romania has had a law that defines the various forms of tax evasion and the applicable sanctions (Law 241/2005). A recent law amendment from 2021 specifies that voluntary payment of the prejudice will enable the guilty party to be sanctioned only with a fine and not imprisonment.
Mergers and acquisitions are subject to notification in Romania if the following thresholds are cumulatively met:
The market shares or an overlap in markets is not relevant when assessing the notification obligation.
The net turnover is relevant for verifying the fulfilment of the notification thresholds in Romania (revenues derived from the sale of products and the provision of services), after deduction of taxes (VAT or other taxes directly related to the turnover), as well as of the exports or intra-community deliveries or the intra-group transaction revenues.
All types of transactions are covered by merger control in Romania, the sole criterion being that a change of control occurs (including joint ventures between independent undertakings, if they fulfil the standalone and long-lasting functions).
The change of control criterion may be achieved from rights, contracts or any other elements that individually or collectively enable a certain undertaking to have a determining influence through ownership or rights of usage over the entirety, or just parts of an undertaking’s assets.
There is no specific deadline for submitting the notification, as the undertakings concerned are required to abide by the standstill obligation until competition clearance. Non-observance of this standstill obligation is sanctioned with a fine of up to 10% of the turnover achieved by the undertaking by default in the year prior to the sanctioning decision.
The notifying party (the acquirer of control) submits a specific form to the authority. In practice, a period of two to three months from the submission of the notification form is usually necessary to obtain a clearance decision from the Competition Authority, but this depends on the notification submitted. This timeframe can be shortened or lengthened considering the impact of the economic concentration on the relevant market. Economic concentrations which could give rise to or strengthen a dominant position, or otherwise concern oligopolistic markets, may trigger competition investigations or commitment proceedings, in which case, the estimated timeframe ranges from six months to over a year.
In Romania, anti-competitive agreements are prohibited by the Competition Law. Anti-competitive agreements and/or concerted practices may include horizontal (between competitors) and vertical (between undertakings active on different relevant markets) restrictions of competition and involve:
Such anti-competitive agreements are sanctioned by the Competition Authority with a fine of up to 10% of the total turnover achieved in the year prior to the sanctioning decision.
The Romanian Competition Authority is required to apply European rules where an agreement or concerted practice may also affect trade between member states (besides the anti-competitive effects altering the Romanian market).
The Romanian Competition Authority has implemented an effective leniency programme. Under the programme, undertakings that disclose their participation in an anti-competitive agreement or concerted practice may benefit from full immunity (full exemption from fines). This leniency programme has proved to be effective in Romania, given that more and more companies apply for leniency, considering the financial benefits they can gain.
The Romanian Competition Authority recently focused on investigating and sanctioning cartel practices related to public and/or private tender procedures (ie, partitioning of plots, price fixing between bidders, rotating offers, etc), with the contracting authority itself being regarded as a facilitator of anti-competitive agreements between tender participants in some cases. In addition, the Romanian Competition Authority is now focusing on the digital economy by conducting and analysing, through sectorial surveys, the role of algorithmic price tools and their effect on potential anti-competitive collusion behaviour in several concerned industries.
Romanian Competition Law
Under the Romanian Competition Law, it is forbidden for one or more undertaking (in the form of collective dominance) to abuse their dominant position in the Romanian market or a substantial part of it. These abusive practices may consist of:
Specifically, the Romanian Competition Law presumes, until proven otherwise, that one or more undertakings hold a dominant position, where the market share achieved in the analysed period exceeds 40%.
Where an abuse of dominant position occurs, the Competition Authority may sanction the undertaking concerned with a fine of up to 10% of their total worldwide turnover achieved in the year prior to the sanctioning decision. The abuse may be sanctioned regardless of the territory in which the abusive conduct takes place, if the effects of the anti-competitive behaviour occur in the territory of Romania.
Draft Emergency Ordinance
In addition to the above-mentioned abuse of dominant practices, there is a draft emergency ordinance aiming at amending and supplementing the current law on combating unfair competition which regulates the economic dependency practice. The draft provides the possibility of sanctioning companies with a superior negotiating position to their trading partners (but without necessarily being in a dominant position, respectively, without having a market share of more than 40%), if the following conditions are met:
The draft emergency ordinance proposes to sanction such economic dependency exploitative practices with a fine ranging from 0.01% to 1% of the infringing party's total turnover in the financial year prior to the sanction, but no more than approximately EUR22,000.
A patent is an industrial property title relating to an invention, which is a product or a process, in all technological fields, that:
The patent protects the technical and functional aspects of the products and processes of the invention.
In Romania, the entitled authority where applications are submitted and where patents are registered is the State Office for Inventions and Trademarks ("OSIM" for its abbreviation in Romanian). Patent duration is 20 years as from the date of filing the application. For European patents, the duration under paragraph (1) runs from the date on which the regular national filing of the patent application became effective, pursuant to the European Patent Convention.
The patent confers on its owner an exclusive right of exploitation throughout its entire duration.
Trade marks may consist of any sign, such as: words, personal names included, or designs, letters, numerals, colours, figurative elements, the shape of goods or of the packaging thereof or sounds, provided that such signs are capable of:
In Romania, the right to a trade mark is acquired and protected by registration with OSIM. The right to the trade mark belongs to the applicant that was first to file the trade mark application registration.
Registration of a trade mark takes effect on the date of the regular filing of the trade mark and subsists for a period of ten years. Upon request by the owner, the registration of a trade mark may be renewed at the end of each ten-year period, on payment of the prescribed fee.
Rights in industrial designs are acquired and protected in the territory of Romania by registration with OSIM.
The definition of design consists of the appearance of a product or of a part thereof, in two or three dimensions, resulting from the combination of the main features, particularly lines, outlines, colours, shape, texture and/or the materials of the product itself and/or its ornamentation.
The subject of the application may be registered to the extent to which it constitutes a design, namely (i) it is new, and (ii) it has individual character.
Interested parties may oppose the registration of the design with OSIM, in writing, within two months from the publication.
The terms of protection of a certificate of registration of a design is ten years, counting from the date of constituting the regular deposit and it may be renewed for three successive five-year periods.
Romanian copyright law protects a literary, artistic or scientific work and any similar work of intellectual creation shall be recognised and guaranteed.
Unless proved otherwise, the person under whose name the work was first disclosed to the public shall be presumed to be the author thereof.
The subject matter of copyright are original works of intellectual creation in the literary, artistic or scientific field, regardless of their manner of creation, specific form or mode of expression, and independent of their merit and purpose, such as:
Copyright gives the author two types of rights:
The copyright in a literary, artistic or scientific work comes into being at the time of the work's creation, regardless of the specific form or manner of expression thereof.
The economic rights last for the author's lifetime, and after the author's death are transferred by inheritance, according to civil legislation, for a period of 70 years, regardless of the date on which the work was legally disclosed to the public. If there are no heirs, the exercise of these rights devolves upon the collective administration organisation mandated by the author during their lifetime or, failing a mandate, to the collective administration organisation with the largest membership in the area of creation concerned.
The person who, after the copyright protection has expired, legally discloses a previously unpublished work to the public shall enjoy protection equivalent to that of the author's economic rights. The duration of the protection of those rights will be 25 years, starting at the time of the first legal disclosure to the public.
Databases are protected by Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, while software is protected by Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs.
According to these pieces of legislation, member states must provide for the right of the maker of a database, which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents, to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.
Moreover, the European Court of Justice has expressly stated that the protection conferred by sui generis right is reserved for databases which meet a specific criterion, that is to say, in respect of which the maker shows that there has been, qualitatively and/or quantitatively, a substantial investment in the obtaining, verification or presentation of the database contents. As such, the protection conferred by those provisions is reserved, under Article 7(1) of Directive 96/9, for databases which meet a specific criterion, that is to say, in respect of which the maker shows that there has been, qualitatively and/or quantitatively, a substantial investment in the obtaining, verification or presentation of the database contents.
The main regulations applicable in Romania to personal data protection (hereinafter referred to collectively as "Data Protection Legislation") are:
In Romania, neither the applicable legislation, nor the decisions and guidelines of the National Supervisory Authority for Personal Data Processing modify the territorial application rules established in the GDPR. Thus, the Romanian data protection authority has competence over the following:
The authority responsible for enforcing data protection rules in Romania is the National Supervisory Authority for Personal Data Processing (www.dataprotection.ro). The National Supervisory Authority for Personal Data Processing is vested with the following:
Regarding Competition and Unfair Competition
Implementation in Romania of platform-to-business regulation
Government Emergency Ordinance No 23/2021 regarding the implementation in Romania of Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (“GEO 23/2021”) was published in Romanian Official Gazette No 339 of 2 April 2021. The provisions of the GEO 23/2021 came into force starting on 12 April 2021. Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (the “P2B Regulation”) came into force in July 2020 and aims to regulate the relationship between online platforms and professional users by prohibiting certain practices deemed unfair and by improving transparency for professional users.
The main aspects of the law implementing the P2B Regulation in Romania are as follows.
The Romanian Competition Council will issue a regulation containing at least the grievance procedure and the rules regarding the individualisation of the sanctions. Moreover, the supervisory authority will operate a registry of the unlawful acts which have been subject to injunction orders pursuant to GEO 23/2021.
New unfair competition rules
On 3 June 2020, on the Romanian Competition Council’s website, a draft government emergency ordinance amending and supplementing Law No 11/1991 on unfair competition was published for public consultation. This draft law has not yet been adopted.
As in other jurisdictions, the amendments to the unfair competition law aim to introduce a new unfair practice, namely, abuse of superior bargaining position, thus creating more room for enforcement, even in the absence of a dominant position in the market. Currently, only the abuse of dominant market position is enforced in Romania, meaning that as a rule, only enterprises having a market share above 40% must be cautious in their business interactions. The draft law focuses on the protection of companies that find themselves in an unbalanced business relationship.
Under the draft law, a superior bargaining position is defined as the position of an undertaking that is not dominant according to Romanian competition law, but is determined by market features, favouring the appearance of significant imbalances that are generated by various factors such as the specific structure of the production or distribution chains, vulnerability to external factors, perishability or seasonality, and the specific relationship between this undertaking and other undertakings active in different markets.
Apart from prohibiting the abuse of a superior bargaining position, the draft law also brings some changes to the list of behaviour deemed as unfair competition practices.
As for the sanctioning regime, under the new regulation, committing an act of unfair competition affecting public interest is to be sanctioned with a fine of between 0.01% and 1% of the total turnover in the year before the sanction is applied, but no less than RON5,500 (approximately EUR1,100) and no more than RON100,000 (approximately EUR20,000) for breaches committed by undertakings. In the case of breaches committed by individuals, the fine amount is between RON5,500 (approximately EUR1,100) and RON11,000 (approximately EUR2,200).
Unfair Trading Practices Directive (UTP Directive) in Romania
Currently, Romania is in the process of transposing the European Directive on unfair trading practices in business–to–business relationships in the agricultural and food supply chain with a draft of the national legislation being before the decision-making chamber of the Romanian parliament. Even though the final adoption of the internal legislation is likely to take at least a few more weeks, if the draft law comes into force without further amendments, Romania will undergo a reform of the legislative framework for food retail.
The black/grey lists under Romanian law
Like the provisions of the UTP Directive, the draft law establishes:
However, the Romanian draft legislation includes a more extensive list of prohibited practices, containing many practices which are not included in the UTP Directive, and the Romanian Competition Council is at liberty to identify and sanction even more practices which are not listed as such in the draft piece of legislation.
Among the practices prohibited under all circumstances, the retailer is also forbidden:
At the same time, with the adoption of this form of the draft legislation, the previous provisions regulating the commercialisation of food products will be repealed.
Sanctions imposed under Romanian law
The draft law attempts to make a more “local” transposition of the text of the UTP Directive. While the draft law also declares its purpose is the same as the UTP Directive (namely, to protect agricultural producers), it gives the Competition Council the power to investigate and sanction not only retailers but also suppliers where contracts contain clauses which are deemed as unfair trading practices or if they are involved in such practices. This might mean that simply accepting a clause which is proposed by a retailer might expose suppliers active in Romania to potential risks and fines.
Romania had one of the most dynamic economic recoveries in the EU in the first half of this year, according to several provisional datasets provided by Eurostat, the International Monetary Fund and the National Institute of Statistics. Romania’s economic growth is expected to exceed 5% in 2021, while significant developments have recently been recorded in the competition, employment and tax areas.
Romanian Competition Council activity
The Romanian Competition Council (RCC) maintains a very active role in Romania and Romanian competition law is now in its 25th year of application.
In 2020, fines applied by the RCC were the third highest they have ever been, with a total amount of approximately EUR80 million being enforced as fines from companies in sectors such as agricultural machinery, the pharmaceutical industry, financial services, the wood trade and online trade. The RCC focus was on cartels, with 85% of the fines being applied in cartel cases. Abuse of dominance also continues to be on the RCC radar, with Romania having a legally rebuttable presumption of dominance in the case of market share above 40%. More than 40% of the fines applied have resulted from admissions of breach made by companies.
Recent legislative amendments
In terms of legislative changes in 2020, one that is noteworthy – especially for non-resident companies which perform activities in Romania without having a physical presence in Romania, and for large exporters – is the amendment of the sanctioning rules. Fines applied by the RCC for breaches of competition law rules continue to have as a basis the total worldwide turnover of the sanctioned company, and not just the worldwide turnover on the affected markets. Reductions of between 25% and 90% may be applied by the RCC, depending on the arithmetic average of the annual ratios held by the revenues obtained in Romania during the period of the breach from the trading of products/services connected, directly or indirectly, to the breach in the total worldwide turnover of the company. The company must submit economic and financial reports certified by an authorised financial auditor showing the respective ratios.
Competition compliance programmes
Effective implementation of competition law compliance programmes is a mitigating circumstance when the RCC finds a breach, giving rise to a significant reduction of the applied fine. To support companies, the RCC has issued dedicated guidelines on competition law compliance programmes for companies as well as for associations of undertakings, in order to detail its minimum expectations of how such programmes should be deemed as effectively implemented. In addition, the RCC regularly adopts guidelines in certain key areas of competition law. For instance, it recently adopted guidelines on public procurement participation or vertical restraints.
The platform continues to be active with at least one new investigation being launched by the RCC each year based on information submitted anonymously through the online platform.
Trends in antitrust
While 2020 brought the focus of the RCC on finalising pending investigations –mainly cases involving cartels and abuse of dominance – and conducting sector inquiries or studies on markets that were impacted by the COVID-19 pandemic, 2021 has so far seen:
Trends in merger control
In terms of merger control, Romania has in place a mandatory merger filing system in case the quantitative thresholds, which are based on turnovers, are met. In 2020 the number of transactions notified to the RCC for clearance remained steady, 54 merger clearance decisions being issued by the Romanian Competition Council. In three of those cases – in financial services, telecommunications and pharmacies – commitments were undertaken in order to ensure that competition would not be affected subsequent to the implementation of the transaction. Up until July 2021, based on its public communications, around 20 mergers had been cleared by the RCC.
Foreign direct investments regime
Since 2010, Romania has had a foreign direct investments (FDIs) screening mechanism in place. The mechanism is regulated under Romanian competition law for the screening of investments which may present a threat to national security. Economic concentrations pertaining to certain specific sectors that may impact national security are subject to the review of the Supreme National Defence Council in order to assess their compliance from a national safety perspective. In view of EU Regulation 2019/452 for the screening of FDIs, a significant change of regime is expected. The draft FDI Ordinance published for public consultation in 2020, but not yet adopted, puts forward a new approval mechanism as well as additional obligations, conditions and sanctions for foreign investors looking to invest in Romania. Currently, only investments triggering an "acquisition of control" are covered.
The new FDI regime is expected to apply also to investments that provide "access" to information, systems or technologies that may have an impact on national security and public order. While FDI filings will be submitted to the RCC, the actual screening of the investment will be performed by a dedicated FDI screening commission. The new FDI regime will prohibit the implementation of a notifiable investment prior to its approval. Failure to comply with this standstill restriction may be sanctioned with fines ranging from 1% to 5% of the total turnover in the financial year before the transaction.
The Romanian Competition Council also supervises the application in Romania of EU Regulation 2019/1150 on platform-to-business relations. It is also expected to have competencies as regards Directive 2019/633 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain, after its transposition into Romanian law.
Employment trends in the "new normal" era
The unprecedented challenges posed by the COVID-19 outbreak definitely did not leave the Romanian employment environment untainted. While originally causing some temporary furloughs – therefore prompting legislative measures and state support for some income protection, as well as more comprehensive organisational restructurings – the COVID-19 pandemic currently sees the Romanian employment landscape optimistically developing, while also cautiously preparing to address future challenges, such as a potential new surge caused by a new variant.
While the often complex journey of navigating through this out-of-the-ordinary health crisis is presumably far from being over, this context has also facilitated perspective into several aspects mentioned below.
Accelerated drive for remote/hybrid work
While Romanian legislation on teleworking had been enforced since 2018, the COVID-19 outbreak – which led Romania into an initial two-month state of urgency, followed by a still ongoing state of alert – boosted its applicability in practice, across virtually all sectors. In fact, the still applicable statutory obligation is that remote work is prioritised, if allowed by activity specifics. The trend of growing employer flexibility on this is enhanced by the most recent legislative developments – eg, the law no longer requires one minimum teleworking day per month, which, in practice (a) may lead to allowing more telework days in one given month with as few as none in others (obviously, when COVID-19-related restrictions no longer prioritise remote work), and (b) likely translates – in terms of what the future holds – into a hybrid type of workplace, juggling between office work and remote work. This set-up continues to prompt employers to deal carefully with their telework documentation.
Return-to-office rotation or gradual schemes
The anticipated new era of a hybrid workplace is already triggering vivid debates on prudent return-to-office schemes. On the one hand, the general employer obligation of ensuring employees’ health and safety is being increasingly relied upon and enhances co-operation with occupational physicians, as well as with health and safety providers to design an appropriate and legally compliant framework at the workplace, as well as to guide the employer on various operational changes (eg, a statutory obligation to enforce split working schedules, depending on headcount). On the other hand, anti-COVID-19 vaccination is also becoming a hot topic. While vaccination is voluntary, free and optional (making any potential employer attempts to support/incentivise it questionable), there are, however, two factors to consider: (a) secondary legislation referring to the percentage of vaccinated employees out of the total headcount as one of the elements to consider for return-to-office work, and (b) proposals under debate for relaxation measures, conditional on full vaccination status – such as exceptionally waiving the obligation to wear a protective mask in indoor workplaces in certain conditions. A holistic approach – combining relevant employment, data privacy and regulatory/health and safety concerns – is therefore trending to help employers navigate their way safely to office returns.
More careful employee monitoring
While trust is the foundation of any employment relationship, we see signs that the pandemic might have eroded some employees’ sense of belonging and connection to their organisations, even leading in some cases to them covertly holding multiple jobs remotely. It of course goes both ways, employers sometimes being inclined to enhance their supervision for various reasons, including IT security in this data-driven environment, protection of reputation against conflict of interests, etc. We are faced with increasing requests for a balanced approach on employee monitoring, which is required for an array of reasons, including regulatory ones, such as working time record-keeping, overtime scrutiny (which are a main focus in virtually any labour authority dawn raid), as well as well-being ones, such as ensuring the employees’ right to disconnect (in line with EU trends). While employee monitoring has always been a sensitive topic, the fine line between private and public/work life seems to have become more blurred and we expect this will prompt employers to carefully consider their actions when seeking regulatory compliance and, at the same time, employee engagement to achieve the strongly-anticipated new normal.
Electronic signatures in the employment context
Recent legislative changes finally expressly confirm that electronic signatures may safely be used when signing employment documents, and set the framework for using them (including the types of signatures permitted, the collective consultation requirements, the individual employee information obligations, etc). While employers had previously shown interest in this, their interest peaked in the COVID-19 context, when the typical wet-signing process posed challenges and required imaginative solutions (such as signing in counterparts). With this enhanced flexibility available, employers are now exploring practical ways to introduce this feature in their organisations and bring their employees on board. Looking forward, we anticipate the direction employers will take is towards achieving an integrated and fully electronic employment document retention system, with a built-in archiving feature as well.
To conclude, the Romanian employment landscape is developing to pave the way for far-reaching highly tech-driven innovation, and this is already prompting legislative developments, in an attempt to seamlessly move to a new normal. The main trajectories for the upcoming era are likely to stay centred around:
Together, these aim to support employer growth and open more comprehensive discussions on upcoming environmental, social and governance developments.
2020 impact on the taxation system
The year 2020 was unique and its impact on the taxation system, both at local and international level, cannot be ignored. The digitalisation and globalisation of the economy was accelerated during the pandemic and it is more important than ever that the tax authorities acknowledge the changes that the tax system needs so as to keep up with business trends.
It has become obvious that all countries have an increased focus to claim taxation rights over profits made by businesses and this has generated wide debate over the rules and frameworks that should be put in place to offer taxation rights to those markets from which significant financial benefits are derived.
Closer look at transactions
Romania, as a country where multinational groups look for a highly skilled workforce and low-cost production sites, could increase its scrutiny over the activities of such entities to identify if value-generating flows are properly recognised.
Romanian tax authorities historically focused on identifying transactions that do not have economic substance and they have additional provisions in the tax legislation to use in identifying potential artificial transactions. Specifically, the provisions of the ATAD II Directive (including CFC rules) were transposed at local level. These have been added to the general anti-avoidance rules that were provided by Romanian legislation, extending the legal framework that the tax authorities can leverage when performing tax audits.
Both the Romanian authorities and taxpayers have been influenced by the changes in the international tax landscape and by global initiatives to counter tax evasion and strengthen administrative co-operation between tax authorities. Such initiatives are largely seen at EU level, through the implementation of several directives aimed at facilitating the automatic exchange of information between member states, and tackling harmful tax practices.
The DAC6 provisions became effective in Romania in 2021. The reporting obligations arising under such provisions add a layer of complexity to any cross-border transaction. While the general framework of such reporting obligations is the same for all EU member states, the directive allows customisation of the rules so that local specifics are captured. It is still too early to assess how the Romanian tax authorities will use the information collected under DAC6 provisions or how they will address the potential non-compliance of taxpayers. Thus, in order to mitigate potential adverse consequences, taxpayers should assess how to integrate DAC6 assessment into their regular activity.
The Romanian authorities have prioritised the digitalisation of the tax system and implemented provisions of EU directives, thus paving the way to a more centralised approach in the analysis and assessment of taxpayers’ compliance and proper tax behaviour.
Attracting and retaining investors
A stronger and more predictive tax legislation could be the key to attracting and retaining foreign investors. In addition, tax incentives and other measures designed for specific areas of activity could be used as tools to incentivise future economic development.
One very good example is the IT sector, which benefits from a specific tax exemption for salary income derived in connection with software creation activities. Even though the salary income tax rate is relatively low (ie, 10%), this incentive helped Romania achieve significant development in the IT industry.
This tax incentive, combined with a good internet infrastructure and the availability of a skilled workforce, have transformed Romania into a very attractive location for groups that are setting up R&D hubs. The reduced level of corporate taxation – 16% tax on profits derived by Romanian entities – and the existence of a micro-enterprise tax regime (an incentive for start-ups) have also played an important role in making Romania an attractive business location.
While it is difficult to anticipate the exact measures that the Romanian tax authorities will take in the upcoming period, two things are certain: global taxation trends will be observed at local level and tax transparency measures will play a major role within compliance obligations.