Force Majeure Notice And Emergency Certificate

  1. FORCE MAJEURE NOTICE

The force majeure has a definition at the level of organic law, more precisely in the content of art. 1351 para. (2) of the Civil Code and is represented by any external, unpredictable, absolutely invincible and unavoidable event, such as extreme weather events, riots, war, terrorist attacks or invasion, government or regulatory actions, famines, epidemics and / or imposition of an embargo.

The force majeure notice, as it can be seen from the name, is the document certifying the existence of a force majeure case by reference to a specific contract subject to analysis by the Romanian Chamber of Commerce and Industry / county chamber of commerce, in order to be used by the applicant as an excuse for a contract non-performance in relation to the contractual partner (s).

According to Law no. 335/2007 of the Romanian Chambers of Commerce (“Chambers of Commerce Law”), among the attributions of the Romanian Chamber of Commerce and Industry / county chambers of commerce is the one regarding the approval of the existence of force majeure cases and their influence on the performance of traders’ obligations. 

It should be mentioned that neither the Romanian Chamber of Commerce and Industry nor the county chambers of commerce have the competence to certify an existing situation as a case of force majeure at national or international level, but strictly at the level of a specific case.

The persons interested in obtaining such an notice are, as it appears from the Chambers of Commerce Law, traders, respectively professionals, in the sense given by art. 3 para. (2) and (3) Civil Code.

The procedure for issuing the force majeure notice is a non-contentious, onerous one and involves the submission of the following documentation:

  • the request which must include the factual and detailed presentation of the event, of its consequences in relation to the contractual partner, as well as the legal arguments regarding the fact that the invoked event represents force majeure under the conditions of art. 1351 Civil Code;
  • copy of the contract affected by the force majeure event, including the force majeure clause;
  • certifications from the competent bodies, authorities and institutions, on a case-by-case basis (other than the Romanian Chamber of Commerce and Industry), regarding the existence and effects of the invoked event, its location, the moment of beginning and cessation of the event;
  • notifications addressed to the contractual partner in connection with the occurrence of the alleged event and its effects over the contractual operations accompanied by the proof of communication;
  • documents showing the causal link between the force majeure event invoked and the impossibility of fulfilling the obligations of the invoking party;
  • other documents useful in supporting the request;
  • power of attorney and I.D. copy of the delegated person, if applicable;
  • proof of tax payment in the amount of 500 euros plus VAT payable in lei at the B.N.R. exchange rate from the day the invoice is issued.

The deadline for resolving the request is 15 days, during which time the notified commerce chamber analyzes the documents provided and issues a response.

The force majeure notice has the legal nature of a ascertaining act that certifies a factual situation and does not have a binding force, because force majeure operates by law, but it can be seen as a means of proof, in a possible litigation.

  1. EMERGENCY CERTIFICATE

The emergency certificate is issued by the Ministry of Economy, Energy and Business Environment to economic operators whose activity is affected in the context of the COVID-19 pandemic, to be used in relations with public institutions, to obtain facilities or support measures, and in trade relations.

According to art. 2 of the Order of the Ministry of Economy, Energy and Business Environment no. 791/2020, the emergency certificate can be issued in two forms:

  • TYPE 1 (BLUE) – issued to applicants who request it on the basis of their self statement, resulting in the total or partial interruption of the activity, as a result of the effects of decisions issued by competent public authorities, according to law, during the state of emergency decreed;
  • TYPE 2 (YELLOW) – issued to applicants who request it on the basis of their self statement, resulting in a decrease of the income or revenue of at least 25% in March, April or May 2020, compared to the average of the months January and February 2020.

The application for the issuance of the state of emergency certificate is submitted by the applicant, exclusively electronically, through the platform http://prevenire.gov.ro/, and the issuance of the certificates will be done automatically, electronically, after the request validation.

The procedure for issuing the emergency certificate is a non-contentious one, free of charge and involves the submission of the following information / documents:

  • application with identification data;
  • the self statement of the legal representative, certifying that all the information and documents underlying the application are in line with reality and comply with the legislation in force depending to the type of the requested certificate; if the legal representative does not have an electronic signature, he may sign in handwriting, and all documents uploaded to the platform (including the self statement) will be electronically signed by the proxy designated in the self statement.

The emergency certificate attests the negative effect felt in the activity carried out by economic operators in the context of the COVID-19 pandemic, having utility in relations with third parties or public administration institutions, especially from the perspective of fiscal facilities.

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