Certificates for emergency situation – How to obtain them and why are they necessary?
Certificates for emergency situation – How to obtain them and why are they necessary?
Forța majoră și COVID-19. Tipic sau atipic. Soluții și propuneri practice
The Decree no. 195/16.03.2020 of the Romanian President for instating the state of emergency throughout the entire Romania territory (“the Decree”), following the pandemics caused by the new corona virus provides that the Ministry of Economy, Energy and Business Environment (“MEEBE”) will release, upon request, certificates for emergency situation (“CES”) in favour of the economic operators whose activity is affected in the context of COVID-19, based on supporting documents.
Along with the instatement of supporting measures for the economic activity through EGO no. 29/2020 regarding certain economical, fiscal and financial measures (“EGO no. 29/2020”) ad well as EGO no 30/2020 for modifying and completing certain normative acts, as well as for establishing measures regarding social protection in the context of the epidemiologic circumstances determined by the spread of the corona virus SARS-CoV-2 (“EGO no. 30/2020”) there resulted which will be the practical utility of CES: access to a series of benefits/measures granted by the state to economic operators is conditioned by obtaining a CES.
With respect to the proceeding of obtaining a CES, after a project of government decision to regulate this proceeding has circulated in the public space, the MEEBE’s Order no. 791/2020 regarding the granting of certificates for emergency situation to economic operators whose activity is affected in the context of the SARS-CoV-2 pandemics (“Order no. 791/2020”) was published in the Official Gazette no. 248 of 25.02.2020.
There are significant differences between the project of the government decision and the form or the Order no. 791/2020 which is now in force. Thus, considering that the normative act which was adopted and produces legal effects in the Order no. 791/2020, we will present the proceeding for obtaining the CES and its characteristics as they are regulated by the Order no. 791/2020.
What is a CES?
CSE is a certificate granted by the MEEBE upon the request of economic operators whose activity is affected in the context of the SARS-CoV-2 pandemics, with the purpose of being used in relation with public institutions for obtaining facilities/supporting measures or in relation with trade partners, in the conditions of the law.
The MEEBE is due to issue two categories of CES, respectively:
(i) Type 1 (blue) CES – for applicants, whose activity was interrupted totally or partially, following the decisions issued by the competent public authorities, in accordance with the law, during the state of emergency;
(ii) Type 2 (yellow) CES – for applicants, whose turnover has decreased during March 2020 with at least 25% with respect to the average turnover during January-February 2020.
However, an economic operator will be able to obtain only one type of CES.
Who may obtain a CES?
One of the main questions that every economic operator must know the answer to is who is entitled to obtain a CES so that it may benefit from the support measures conditioned by obtaining it?
In accordance with the Order no. 791/2020, CES may be obtained by any economic operator whose activity is affected in the context of the SARS- CoV-2 pandemics – irrespective of its field of activity – if it fulfils at least one of the alternative conditions:
(a) The activity of the economic operator was interrupted totally or partially, following the decisions issued by the competent public authorities according with the law during the state of emergency.
This will be the case of the economic operators whose activity was limited or suspended by the military ordinance adopted, such as:
– restaurants, hotels, cafes or other public places which perform activities of serving and consuming alimentary products and alcoholic or non-alcoholic beverages, whose activity was restricted through the Military ordinance no. 1/2020;
– economic operators who perform cultural, scientific, artistic, religious, sports, entertainment or gambling activities, spa and personal care treatments, within enclosed spaces, whose activity was suspended through the Military ordinance no. 1/2020;
– economic operators who organise and carry our events attended by more people, in open spaces, whose activity was restricted and, in some cases, prohibited by Military ordinance no. 1/2020;
– economic operators who perform certain types of transportation (for example, medication transportation abroad, air transportation on certain routes) whose activity was restricted and, in some cases, prohibited by Military ordinance no. 1/2020;
– dental practices, whose activity was suspended by Military ordinance no. 2/2020;
– economic operators who perform en detail commerce of products and services within commercial centres where more economic operators perform their activity, except the vendors of alimentary, veterinary or pharmaceutical products and the operator who provide cleaning services, whose activity was suspended by Military ordinance no. 2/2020;
(b) In march, the turnover of an economic operator decreased by minimum 25% with respect to the average turnover from January-February 2020, irrespective of the fact that this circumstance is due to a restriction of activity ordered by the competent authorities.
This would be the case of any economic operator that, although it was not affected by the restrictive measures of activity imposed by the military ordinances, has a decreased turnover of at least 25% with respect to the period of January-February 2020.
This solution adopted by the executive is debatable with respect to its effectiveness, considering that, at this moment, it appears that a series of economic operators would be unable to access the measures conditioned by CES, even though their activity is significantly affected by the pandemics.
For instance, the Order no. 791/2020 seems to exclude, at this moment:
(i) economic operators whose turnover did not decrease in march – for instance, because they have collected amounts of money due on the grounds of contractual performances from the previous months, but the term for the payment of the price was established in march – but will significantly decrease in april – for instance, considering the lack of orders from march.
(ii) economic operators whose turnovers did not decrease as provided by the law, but whose expenses have significantly grown because of the pandemics – for instance, because of higher prices requested by their suppliers, because of increases in the expenses for ensuring the cleaning and disinfection of the place of work, because of increased personnel expense.
However, we must consider that the circumstances and including the measures undertaken by the authorities are constantly evolving and the hypothesis that the measures could be supplemented or extended cannot be excluded.
What is the proceeding for obtaining a CES?
In order to facilitate obtaining CES by the economic operators, the Order no. 791/2020 has provided a relatively simple proceeding, which will take place exclusively on line.
The request for releasing a CES is submitted by the applicant, exclusively electronically, on the platform http://prevenire.gov.ro/, and the release of the certificates will be performed automatically and electronically, after the system validates the request. The adaptation and functioning of the online platform must be ensured within 5 days from the date the Order no.791/2020 was published.
The CES are valid even without being signed or stamped and they can be verified on the platform http://prevenire.gov.ro/, by their series and number.
In order to obtain a CES, the applicant must upload on the platform:
(i) identification dates, including documents regarding the authorisation of its activity in case it is not registered with the trade registry;
(ii) affidavit rendered by the legal representative, for attesting that all information and documents that are supporting the request for obtaining the CES are real and comply with the legislation in force with respect to the type of requested certificate, by referring either to the total or partial interruption of activity or to the decrease in turnovers in the indicated quantum.
The affidavit must be electronically signed, and in case the legal representative does not hold an electronic signature, he may sign the declaration in manuscript. However, all documents (including the affidavit) uploaded on the platform must be electronically signed by a person designated in this respect.
Altogether, the Order no. 791/2020 provides that the MEEBE releases CES only during the state of emergency in Romania.
The legal representatives of the economic operators must consider that, even though the proceeding to obtain a CES seems quite simple, the accuracy of the dates stated within the affidavit (especially the dates regarding the turnover) is of utmost importance, given that faultily filling out the declaration could draw criminal liability for perpetrating the crime of making false statements.
In this respect, Order no. 791/2020 provides that, within the actions of inspection and control that are to be performed by the empowered bodies, they will verify inclusively the documents that justified issuing the affidavit. In case reasonable suspicions regarding obtaining the CES with the violation of the legal provisions or by certifying false legal or factual circumstances by the applicant arise, the competent bodies will be referred in order to take all necessary measures.
Moreover, even though the faulty filling out of the affidavit would not represent a crime, the possibility that the economic operator will be under the obligation to repay the amounts of money that he benefited from or to pay damages to its contractual partners cannot be excluded.
Why is CES necessary?
At this moment, CES is required for accessing several support measures provided by the ordinances issued by the Governement, respectively:
(a) Contracts concluded by SMEs for utility services and renting spaces for establishing the headquarters
Based on CES, the SMEs that have totally or partially interrupted their activity during the state of emergency based on the decisions issued by the competent public authorities, according to the law, have the possibility to benefit from postponing the payments for utilities – electricity, natural gas, running water, phone and internet services as well as for rent with respect to the space that serves as the main headquarters or secondary headquarters, as provided by art. X par. (1) from EGO no. 29/2020.
Thus, the SMEs that want to benefit from this measure must obtain a type 1 CES (blue).
The same measure is instated also in favour of (i) the forms of practicing the public notary profession, the lawyer profession, and the public bailiff profession, (ii) the family physician practice and dental practice where at the most 20 people perform their activity, (iii) the national sports federations and sports clubs which hold a sports identity certificate if their activity is directly affected by the measures of the public authorities. Specific conditions under which these entities will be able to access the measure are to be determined by Government decision.
(b) Exemption from paying liquidated damages for delay owed to public authorities by SMEs
During the state of emergency, SMEs which obtain a type 1 CES (blue) will not owe liquidated damages for delay in the performance of obligations provided within the contracts concluded with public authorities, as provided by art. X par. 4 of EGO no. 29/2020.
(c) Evidence of force majeure
Art. X par. 3 of EGO no. 29/2020 provides that when CES ascertain that the activity of an economic operator was affected, it represents a ground to presume the existence of a force majeure case. However, the presumption may be overturned by any type of evidence. Considering the deficient character of the provision of EGO no. 29/2020, it is yet to be seen what legal effects this text will have over the contractual relations and, eventually, in which manner the courts of law invested with litigation regarding the failure to perform contractual obligation will interpret it.
(d) Supporting the indemnity for technical unemployment by the state
Under certain conditions, the state will support the indemnity paid by the employer to the employees for the period when the individual employment contract is suspended, at the initiative of the employer, on the grounds of art. 52 par. (1) letter c) of the Law no. 53/2003 – Labour Code.
Considering that the mechanism of this support measure was also analyses within a different material, we will focus on the cases when obtaining the CES is necessary to receive the amounts of money representing the indemnity from the state.
Essentially, the state will support the indemnities paid by the employer – regardless of the fact that the employer is a SME – in one of the two cases:
(i) the employers interrupt their activity totally or partially based on the decisions issued by the public authorities competent according with the law, during the state of emergency and hold a type 1 CES (blue).
(ii) the employers reduce their activity following the effects of the COVID-19 epidemics and do not have the financial capacity for paying all their employees. In this case, the employers must present an affidavit from which it results that the employer registers turnovers that have decreased with at least 25% from the average of January-February 2020 as well as that the employer does not have the financial capacity for paying all their employees.
We must once again stress the risks associated with the affidavit, especially when this affidavit should comprise a phrase that has an ambiguous meaning, respectively the existence or non existence of the financial capacity for paying all the employees.
In this case, EGO no. 30/2020 does not comprise the obligation to obtain a CES, but we observe that the described situation is partially overlapping with the cases when a type 2 CES (yellow) should be issued.
Apparently, in this case, obtaining a CES by the employer would not be required, considering that EGO no. 30/2020 does not expressly provide this condition, that the situation described by EGO no. 30/2020 provides an additional condition, respectively that the employer does not have the financial capacity for paying all their employees – hypothesis that is not covered by the affidavit filled out for obtaining the type 2 CES (yellow) – as well as the fact that a ministerial order cannot derogate or add to a normative act of superior level.
However, it is not excluded that this mismatch between the legal provisions will create contrary interpretations of the provisions and eventual difficulties for employers.
Even though instating measures that would support the economic environment is to be saluted, we observe that adopting the actual package of normative acts is, on one hand, insufficient at this moment and, on the other hand, from the actual normative acts there may arise contrary interpretation which could lead to more difficulties for the entrepreneurs.
Thus, despite the relatively simple character of the proceeding that must be carried out for obtaining a CES, we are advising the economic operators to thoroughly analyse id the provisions of the Order no. 791/2020 are applicable in their respect before signing and submitting any affidavit and consider all potential risks.
Altogether, the economic operators must ensure a rapid and continuous flux with respect to obtaining CES and other documents that may be requested for accessing the support measures instated by the authorities, considering both the short terms and (sometimes) mismatched applicable, as well as the risk that certain key employers may be unable to fulfil their work tasks.