Mirela Preda, Managing Associate NNDKP

by Mirela Preda, Managing Associate, Corporate/M&A practice 

On 27^thMarch 2020, the Ministry of Internal Affairs has posted for public consultation a draft emergency government ordinance envisaged to amend the Emergency Government Ordinance no. 1/1999 relating to the emergency state (“EGO 1/1999”). EGO 1/1999 is the basis on which the presidential decree approving the emergency state was issued on 16^thMarch 2020. 

The first thing that came to mind when reading the announcement for the public consultation was why is this required? All the measures adopted so far by the Government or public ministries through military ordinances and orders were not subject to any public consultation procedures or public debates. This manner of proceeding felt natural considering the state of play and also grounded if one looks at the provisions of Law no. 52/2003 regarding transparency in the public administration. To be more precise, article 7 of Law no. 52/2003 provides that in case an urgent solution needs to be regulated through a legislative act in view of preventing serious damages to the public interest, then the respective act will be adopted using the emergency procedure provided by the applicable regulations. Hence, according to this article it seems that, in urgent situations, the public consultation process is not required. Of course, this being an exception to the rule, its applicability should be carefully scrutinized on a case by case basis considering also the fact that courts of law have declared illegal normative acts which breached the provisions of Law no. 52/2003 regarding transparency in the public administration.

It would seem that the Ministry of Internal Affairs came to the conclusion that public consultations are not required given that the above mentioned piece of legislation was approved by the Government on 31^stof March long before the expiry of the 10 days consultation process initiated on 27^thMarch. 

In terms of the main changes brought by the mentioned piece of legislation, we would note at least three:

1. Introducing the possibility to apply supplementary sanctions 

The emergency government ordinance increases the level of the fines payable by the persons breaching the rules set forth in the military ordinances and orders and it also introduces the possibility to apply the following supplementary sanctions, depending on the nature and gravity of the committed act:

1. seizing the goods destined, used or resulting from the minor offence (here for example we can imagine this sanction being applicable for the case of goods transported with the breach of the terms of military ordinance no. 4/2020); 

2. prohibition of the access by applying seals (here for example it may be potentially applied in a case when the activity in a specific location which should be suspended is nevertheless carried out);

3. temporary suspension of the activity;

4. demolition of works;

5. rebuilding some endowments.

Two additional elements worth mentioning in connection with the new regime applicable for these offences: (i) article VII from the EGO no. 29/2020 are not applicable hence the suspension of the forced procedures which can be initiated in connection with these administrative offences does not apply and (ii) the new rules enter into force in 3 days from the publication in the Official Gazette of the piece of legislation by way of derogation from the provisions of the Government Ordinance no. 2/2001 regarding minor offences which required that the legal provisions regulating the regime of minor offences enter into force in 30 days from the publication in the Official Gazette or at least 10 days in urgent situations.

2. Direct award of the seized goods

The assets which are seized in the context of applying a supplementary sanction and which are necessary in the context of the emergency state are directly attributed by way of exemption from the rules contained in the Government Ordinance no. 14/2007 regulating the manner and the conditions for monetizing the goods which become private property of the state. The entities who will receive the respective goods will be determined via an order of the ministry of internal affairs and of the national defense.

3. Exemption from the applicability of Law no. 52/2003 on transparency 

One last change which is worth mentioning is that the emergency government ordinance recently adopted exempts from the applicability of the provisions of Law no. 52/2003 regarding transparency in the public administration the normative acts which establish norms applicable in the emergency state or which are a consequence of the emergency state being in place. The wording of the exemption seems quite broad and vague to some extent and it makes one wonder why this exemption is required considering the existing provisions of Law no. 52/2003 regarding transparency in the public administration mentioned above.

It remains to be seen if the changes brought by this enactment meet their objective declared by the Ministry of Internal Affairs namely that to create a stronger regime of sanctions applicable for persons/entities not complying with the measures imposed by the military ordinances.