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TZA. COVID-19 Legal Insights. Requisitions and national emergency. Anything to fear?

Cornel Popa
Cornel Popa

One set of measures to be implemented under the national emergency status declared by the President of Romania is the requisitioning of assets. This document is intended to give a summary of the applicable legal regime in this area. Noteworthy, not only that the state can issue a requisition order for virtually any assets, but it can also enjoin community service work for any individual.

1. Applicable legislation

Requisitions are generally governed by Law 132/1997 and by the Methodological Norms approved by Government Decision 219/2005. The presidential Decree issued on 16 March, which declared a national emergency, gives the authorities the power to order the requisition of certain assets.

2. Requisition is not confiscation

Requisition is an exceptional measure consisting of a temporary transfer of use over certain assets, as ordered by the authorities. Requisition is dictated solely by the needs of the authority to obtain resources which are in its judgment necessary or appropriate in order to satisfy the public purpose defined in the law. It should be distinguished from the confiscation of assets, which is generally a sanction for illegal conduct, and which is a final measure whereby the ownership is transferred to the state.

Consumable or perishable goods may be submitted to final requisitioning, subject to the payment of compensation.

3. Who can be affected

Any person can be ordered to hand over an asset it owns or holds in its possession.

The refusal to hand over the requisitioned assets, the evasion from fulfilling such obligations or the failure to declare at census the assets which may be requisitioned may constitute a criminal offence, albeit there is no clear criminal law provision in this respect.

The failure to communicate, during the emergency status period, upon the request and within the deadlines enjoined by the public authority all recorded data on the assets which may be subject to requisition, and of relevant changes, shall also constitute a criminal offence, punishable by imprisonment from one month to one year or a fine.

4. Any assets can be affected

According to the general legislation, virtually any asset can be subject to requisition. Please see Annex No. 1 herein below for the list of assets which may NOT be submitted to requisition.

The assets must be handed over in a fit-for-purpose condition for their use according to the declared purpose of the requisition. The requisitioned assets need to be handed over accompanied by all equipment for their operation. Buildings which are requisitioned shall be handed over with all existing utilities at the time of the requisition order.

The Nomenclature of assets which may be requisitioned has been approved by the Order of the Central Commission for Requisitions No. 81/2011.

The Decree appears to restrict somehow the list of the assets and goods which could be submitted to requisitions. Its provisions are however drafted in general terms, which means that expansive interpretations by the authorities are possible.

5. Should we expect requisitions of private hospitals?

Based on current legislation, the most likely answer is negative. The Decree does not specifically include private hospitals among the assets to be requisitioned, albeit that was theoretically possible. There is however a general provision in Article 52 (1) of Annex 1, according to which the authorities review and make proposals for the use of certain “material resources” in order to “give support to the affected population”.

6. Who can order the requisition

According to the Decree, the requisition order may be issued by central public authorities and the Ministry of Internal Affairs, by way of military ordinance.

Particular requisition orders may be also issued by the local prefect.

7. What the requisition order must stipulate

The requisition order needs to include the following information:
a)  Name of issuing authority and of beneficiary;
b)  The legal basis for requisition;
c)  Identification data for the requisitioned assets of the owner or holder of the assets;
d)  Deadline for handover of the assets.

8. Handover of assets

The hand over minute shall stipulate, among other information, the status and the value of the assets at the time of the requisition.

All assets which can be used only with qualified personnel, as well as vehicles and construction equipment, shall be taken over with the necessary staff.

9. Compensation for the requisitioned assets

Owners of the assets subject to requisition have the right to compensation. During the requisition period, they shall be exempt from taxes for the assets and the obligations which derive from relevant contracts shall be suspended. For example, if a requisitioned building is subject to a rental agreement, that contract shall be suspended until the asset is returned to the owner.

The current prices to be used for determining the applicable compensation for consumable goods are set by Decision No. 2/2019 of the Central Requisitions Commission. The principles governing compensation are presented in Annex No. 2 herein below.

10. Records for the assets which may be submitted to requisition

According to Article 10 (1) of Law 132/1997, all economic agents need to keep a record of all assets which may be requisitioned, in accordance with the norms provided by the law for the recording their assets.

11. Orders enjoining community service

Individuals able to work may be called to perform community service, including foreigners that are not exempted by virtue of international agreements to which Romania is a party. The list of the category of persons who may not be requested to perform community service is attached as Annex No. 3 herein below.

The order calling for community service may be issued individually or collectively and may be communicated at the relevant workplace or at the home address. As a rule, the concerned individuals shall work in the localities where they are domiciled and in their professional field or in the field where they possess special skills.

The failure to observe the community service obligations may constitute a criminal offence, sanctioned by imprisonment from 3 months to 2 years or a fine.

12. Legal challenges

There is no challenge procedure against the requisition order itself. In theory, the general regulation regarding administrative disputes (Law 554/2004) will be applicable.

There is however a specific procedure to challenge the prices payable for the requisitioned assets. Those challenges must be brought first before administrative authorities and, if the resolution of the matter is still unsatisfactory for the applicant, before the courts.

13. How we can help you

We feel that it is our duty to make any efforts possible in order to keep the economy going and ensure the welfare of our clients and our team. Consequently, we have established certain measures which enable us to serve our clients without any disruption. Many members of our staff are already experienced users of remote work facilities and we have rolled out a program which made remote work a rule at all levels. Wherever possible, meetings will be held online in order to reduce the exposure to possible infections.

Annex No. 1

List of assets which may not be submitted to requisition

Note: this list is prepared based in Article 30 of Law 132/1997 as it exists today and may be subject to change by new legislation.
a)  the objects of personal use and of domestic household;
b)  the personal goods strictly necessary for the exercise of the profession or occupation, by which the respective person assures his existence;
c)  vehicles with animal or mechanical traction belonging to invalids, war widows and minor orphans;
d)  the parts of the buildings strictly necessary for the occupants;
e)  buildings of penitentiaries and special work and re-education schools;
f)  the goods of the homes and homes of children, the disabled and the elderly;
g)  goods from cultural-national or international heritage;
h)  the goods belonging to the churches, monasteries or prayer houses of the religious or religious associations, recognized by the state, necessary for the exercise of the worship, as well as the houses of the monks;
i)  the quantities of cereals, foods, vegetables and fruits necessary for the consumption of the owner and his family, the seeds needed for sowing, as well as breeding animals and herds;
j)  the assets in the national material reserves and in the mobilization reserve, constituted according to the legal provisions;
k)  the assets of foreign diplomatic missions and consular offices;
l)  goods belonging to foreign legal and natural persons, domiciled or with residence or with headquarters in the territory of Romania, which, by international agreements, are exempted from the requisitions;
m) the sanitary-pharmaceutical materials necessary for the treatment of chronic patients, who prove this situation.

Annex No. 2

Requisitioned assets compensation procedure

Working translation of Article 24 of Law 132/1997, which provides the principles to be applied in respect of payment of compensation:

(1) Compensation for the non-consumable goods requisitioned shall be granted as follows:
a) by rent, whose calculation method is established by Government decision;
b) by granting the difference of corresponding value, for the goods that are returned with major degradation;
c) by granting a similar good or by paying the value of the good, established according to the technical state and the degree of wear at the moment of requisition, if, for objective reasons, it can no longer be returned.

(2) Compensation for consumable goods shall be granted by paying the market price at the time of taking over, in accordance with the measures stipulated in exceptional circumstances by the Government, according to the law.

(3) Evaluation of the damages of the goods provided in par. (1) lit. b) and c) it is made by a committee of experts of which the beneficiaries, the prefect and the legal owner or owner, as the case may be, of the requisitioned goods are obligatory.

(4) The amount of damages at the level of the administrative-territorial units shall be compulsorily endorsed by the joint commission of requisitions.

(5) The methodology, the organizational framework and the criteria for assessing compensation, by categories of goods, are established by Government decision.

Annex No. 3

List of persons who may not be called for community service

Note: this list is prepared based in Article 31 of Law 132/1997 as it exists today and may be subject to change by new legislation.
a)  persons totally lacking in work capacity;
b)  persons partially lacking in work capacity, if this makes them unfit for the activity for which they were called;
c) pregnant women, starting from the 5th month of pregnancy;
d)  persons who care for children, parents, brothers or sisters, totally or partially deprived of work capacity, when their presence is absolutely necessary;
e)  persons who care for children under the age of 8;
f)  persons mobilized at the workplace;
g)  persons who are part of the diplomatic missions or consular offices accredited in Romania, as well as other foreign persons exempted by virtue of international agreements to which Romania is a party.

The situations provided at items a), b), c) and d) are to be certified by the competent health authorities.

Av. Cornel Popa
Partner ȚUCA ZBÂRCEA & ASOCIAȚII

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