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Issuance of the Emergency Status Certificate

31 March 2020

Presidential decree no. 195 dated 16 March 2020 for declaring the emergency status (the “Decree”) provided that the Ministry of Economy, Energy and Business Environment will issue, upon request, emergency status certificates (the “ESC“) to companies whose activity is affected by the emergency status.
The procedure for the issuance of the ESC has been detailed through Order no. 791/25 March 2020 issued by the Ministry of Economy, Energy and Business Environment (“Order 791/2020”).

Who can apply?

ESCs may be issued to freelancers and companies whose activity has been totally or partially interrupted as a consequence of decisions issued by competent authorities during the emergency state or whose income has been otherwise affected by the COVID-19 pandemic.

The professionals active in the following fields, directly affected by measures imposed by the competent authorities are among those eligible for the issuance of ESC:

(i)  activities of serving food and beverages for consumption, as conducted by restaurants, cafeterias and other public places, whether indoor or outdoor;
(ii)  cultural, scientific, artistic, religious, sports & entertainment, gambling, spa treatments and personal care activities, carried out in indoor premises;
(iii)  dentistry; and
(iv)  retail activities involving products and services in commercial centres where multiple economic operators activate, except for sale of food (i.e. other than activities referred to under item i above), sale of veterinary or pharmaceutical products, dry cleaning services, sale of electronic products and appliances by retailers ensuring delivery to the home or headquarters of the customer, sale of medical optics products and related services.

How can the certificate be used?

Qualifying small and medium-sized enterprises (SMEs) may use the ESC in order to:
(i) benefit from the postponement of their payment obligations in regard to utilities and rent due under lease agreements for headquarters and secondary offices for the duration of the status of emergency, as per the provisions of Emergency Government Ordinance no. 29/2020 (“GEO 29/2020”); or
(ii) determine contracting parties to renegotiate agreements prior to such contracting parties invoking the occurrence of a force majeure event; or
(iii) benefit from a force majeure rebuttable presumption under certain conditions.
Qualifying freelancers and companies, whose income has been affected by the COVID-19 pandemic may access the support measures under Government Emergency Ordinance no. 37/2020 (“GEO 37/2020”) introducing a payment suspension for credit instalments, upon debtor’s request, for a period of up to 9 months.
Additional support measures may become accessible to holders of ESCs based on future decisions of competent authorities.

What type of ESCs?

Ministry of Economy, Energy and Business Environment issues two types of ESCs:
(i) the blue ESC, available to companies that have interrupted in whole or in part their activity as a result of decisions taken by public authorities, and
(ii) the yellow ESC, available to companies that registered loss of revenues in March 2020 of at least 25%, by reference to the average income registered in January and February 2020.
The blue ESC would presumably be used in order to access support measures under GEO 29/2020 and GEO 37/2020 detailed above, while the yellow ESC is to be used for access to the benefits granted by GEO 37/2020.

How many ESCs?

A qualifying entity is allowed to apply for only one type of ESC.

One ESC can be used to access multiple support measures, provided these are applicable to the ESC holder.

How to obtain an ESC?

An ESC is issued electronically, free of charge, by uploading on the dedicated platform:
(i) the identification details of the applicant and
(ii) an affidavit as to the entitlement of the applicant to obtain the ESC.
No explicit deadline is established for the issuance of an ESC after the relevant data has been uploaded on the dedicated platform.

There are no preliminary verifications made by the authorities in relation to the affidavits. Subsequent verifications may be performed and relevant sanctions may be imposed in case of false declarations.

The dedicated platform http://prevenire.gov.ro/ is due to become operational at the beginning of April 2020.

It appears that Ministry of Economy, Energy and Business Environment shall issue ESCs only during the status of emergency and there appears to be no validity term or period within which these ESCs may be lawfully used in order to benefit of the support measures listed above.

The measures enacted during the Covid-19 outbreak are a developing situation. Thus, additional regulations impacting the ESCs may be further enacted.