1. Fiscal Code

The amendments brought to the Fiscal Code through the Government Emergency Ordinance no. 109/2009 represent the implementation in the Romanian legislation of the European provisions in the fiscal field which will be applicable starting January 1^st, 2010. We shall present bellow some of the amendments brought.

Accordingly, the new provisions amended certain definitions (e.g. “Romanian legal entity”, “foreign legal entity”, “legal entity established in accordance with the European legislation”, :resident”). Moreover, there is provided the obligation to declare any services agreements concluded with non-residents that are carried out (even if only partially) on the Romanian territory.

It is also provided that in the situation in which income is obtained from more than 5 lease agreements at the end of a tax year, from the following year, the incomes have to be included by the taxpayer in the category of the incomes obtained from independent activities.

The provisions of the Fiscal Code regarding the incomes obtained by non-residents in Romania are supplemented by specific provisions referring to legal entities having their headquarters in Romania, established according to the European legislation.

Amendments are brought also in relation with the revenue tax. For example, there is a new category of taxpayers, namely the legal entity having its headquarters located in Romania, established in accordance with European legislation.

This law brings amendments regarding also the value-added tax. We shall present bellow the most important points regarding this aspect:

- The amendment of the meaning of certain terms in the Fiscal Code and the definition of new terms (e.g. established in Romania, fixed head office etc.);

- In the case of the delivery of goods or performance of services for which the beneficiary is obligated to pay VAT, the registration of the tax in the VAT statement pertaining to the tax period during which the tax becomes payable, no longer represents a mandatory requirement for the exercise of the deduction right;

- The persons who have not settled and have not been registered in Romania may request the reimbursement of the value-added tax, under the terms of, and in compliance with the legal procedure;

- A person have to register for VAT purposes (if a person who is not registered and who is to further perform services or to receive services for which the beneficiary who is established in the Community is obligated to pay the tax).

2. Public Procurement

These new amendments brought through the Government Emergency Ordinance no. 72/2009 regarding the public procurement field are due to a series of inconsistencies between the previous amendments and the Directive 2007/66/EC of the European Parliament and the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts.

Accordingly, we shall present some of the amendments:

- If clarifications are timely requested, the answer of the contracting authority to these requests must be sent no later than 6 days before the deadline for submitting the tenders. In the case in which the restricted tender procedure is accelerated, the answer of the contracting authority must be sent no later than 4 days before the deadline for submitting the tenders.

- If the tenderer demonstrates its technical and professional capacity by relying also on the support given by another person, then he has the obligation to prove this support by presenting a firm commitment from that person, concluded in notarized form, which confirms that it will provide to the tenderer the technical and professional resources. The new requirement is represented by the fact that it was established the requirement of the notarized form of the support undertaken by a third person.

- The publication in the Official Journal of the European Union is required for the concession agreement for public works in the cases in which the estimated value is higher than the equivalent in RON of EUR 5,000,000.

- Any person having or who has had a legitimate interest in connection with the tender procedure and who incurred, incurs or risks incurring a prejudice, regardless if the person was or was not involved with the tender procedure can file a claim before the National Council for Solving Complaints or before the competent court.

- The derogatory provisions that made reference to Law no. 554/2004 in the case of the disputes regarding the services/works contracts corresponding to the transportation infrastructure of national interest were removed and the exclusive competence of the Bucharest Appeal Court for solving such disputes was maintained.

Moreover, another important change regarding the public procurement refers to the fact that an offer which has a price unusually low for what is to be provided/rendered/executed so the fulfillment of the contract in the quantitative and qualitative parameters required by the specifications cannot be ensured is not acceptable. By unusually low price means a price without VAT whose value is less than 85% of the estimated contract value or less than 85% of the arithmetic of the other bids if in the tender procedure are at least 5 bids that are not in a position to be considered unacceptable.

3. Trade Register

Due to the obstruction existing at the Trade Register caused by the strike of the Romanian judges, which took place in autumn 2009, and also the limitation of the number of files per day to be heard during the hearings of the courts, certain hearings reached the beginning of the 2011 year.

The Government Emergency Ordinance no. 116/2009 for the establishment of certain measures regarding the activity of registration in the Trade Register aims to release the judicial activity by means of taking certain measures in order to solve the overloading of the courts of law and to simplify the procedures related to trade activities, especially in consideration of the fact that any delay in the settlement of the claims submitted to the Trade Register affects the rights of the companies and of the investors, with serious consequences for both the business environment and the trade circuit.

Accordingly, by means of derogation from the relevant norms in this field, the jurisdiction to solve the requests for registration in the trade register and, as the case may be, other requests that are under the jurisdiction of the delegated judge, for a period of maximum 6 months from the date the regulation in question entered into force belongs to the director of the trade register and/or the person or persons designated by the general director of the Trade Register National Office.

Among other things, as regards the merger and the division, the jurisdiction to verify the legality of the merger/division and to register them in the trade register belongs to the district court, commercial department, where the trader is located.

4. Insolvency

Law regarding the insolvency procedure suffered a series of amendments. Such amendments introduce various changes in the definitions of certain notions (e.g. “insolvency”), and a range of clarifications on the duties held by some of the participants to the insolvency procedure (e.g. the official receiver, the elected representative of the shareholders of the company undergoing insolvency). Also, the minimum amount requested in order for the creditor to be able to initiate the procedure was set at 30,000 lei and/or the value of 6 employees’ average wages.

The law provides also for the establishment of an insolvency department at the courts of appeal. The establishment of these departments was recently postponed for one year.

5. Public procurement contracts

The Order that approved the implementation of the FIDIC form of contract in the Romanian legislation as being mandatory for the public authorities when concluding work contracts was repealed. The order was in force for less then a year before it was repealed.

At this point there are no mandatory public contracts; however ANRMAP (National Authority for the Regulation and Monitoring of the Public Procurements) published 3 standard public procurement contracts (services, works and supply) in order for these three to represent a guide for the contracting authorities as well as for the contractors. This document is not binding.

6. Constitutional Court Decision no. 1037 of July 9, 2009

Constitutional Court Decision no. 1037 of July 9, 2009 sets out that the provisions under article 28 paragraph 2 of the Competition Law no. 21/1996 which lay down a term for bringing actions against administrative acts having legislative function before administrative courts are unconstitutional.

As grounds for the objection of unconstitutionality the author argues that, in essence, the requirement imposed by the provisions of the law that provides to challenge normative administrative acts issued by the Competition Council within 30 days after their publication in the Official Gazette before occurrence of an injury, is excessive and unjustified, limiting judicial control of the regulations issued by this institution and restricting the free access to justice.

It was also sustained the fact that the verification of the legality of any normative administrative act issued by public authorities may be requested at any time, in accordance with Law no. 554/2004. However, from the provisions of the challenged law, after a short period, 30 days after publication, a person cannot invoke the illegality of the Competition Council regulations.

The Constitutional Court concluded that by setting out a deadline for challenging the legality of the normative administrative acts issued by this authority (the Competition Council) infringes the provisions under article126 paragraph 6 of the Constitution, which guarantees the judicial control of public authorities' administrative acts by way of action brought before the administrative court, as well as the provisions under article 21 paragraph 1), which establishes the free access to justice.