Who can invoke a force majeure clause?
- Individuals or companies that are unable to fulfil their contractual obligations on account of the coronavirus pandemic, during the force majeure event.
- In case of small and medium-sized companies forced to interrupt their activity, entirely or partially, due to the constraints set by the State authorities during the state of emergency, the existence of force majeure is presumed, as long as the impact on the commercial activity is certified by a State of Emergency Certificate issued by the Ministry of Economy, Energy and the Business Environment.
What is a State of Emergency Certificate?
A State of Emergency Certificate is a document issued upon request by the Ministry of Economy, Energy and the Business Environment, which certifies the partial or total interruption of a company’s activity (type 1 – blue certificate) or a decrease by at least 25% of the income or revenue in March 2020 compared to the monthly average registered in January and February 2020, on account of the measures taken by the public authorities for the entire period of the state of emergency (type 2 – yellow certificate).
Who can request a State of Emergency Certificate?
State Emergency Certificates are issued only upon the request of small and medium-sized companies that were forced to interrupt their activity, totally or partially, due to the constraints set by the government for the entire period of the state of emergency, but also by those economic operators that have registered in March 2020 a revenue or income decrease of at least 25% as compared to the average revenue or income for the period January – February 2020.
What are the advantages of requesting a State of Emergency Certificate?
Regardless of the type of certificate obtained, blue or yellow, companies will benefit from the postponement of payment for utility services such as: electricity, natural gas, water,
telecommunication services and Internet, as well as the postponement of rent payments for their headquarters and secondary locations.
Moreover, they can be used by companies that have requested the issuance of such a State of Emergency Certificate to invoke a force majeure clause and thus suspend the fulfilment of their contractual obligations.
What is the procedure for obtaining a State of Emergency Certificate?
State of Emergency Certificates are obtained based on an affidavit of the applicant’s legal representative stating that the company is directly affected by the measures imposed by the authorities because of the COVID-19 pandemic, by submitting an online request at http://prevenire.gov.ro. There is no charge for the issuance of a State of Emergency Certificate.
Are employers required to request a State of Emergency Certificate for technical unemployment purposes?
No. Employers who want to benefit from the technical unemployment aid from the State must submit a request via e-mail, together with an affidavit of the company’s legal representative and a list of all employees who will receive an allowance, to the employment agencies.
How can other economic operators affected by the virus COVID-19 pandemic invoke a force majeure clause?
Economic operators unable to fulfil their contractual obligations due to the pandemic, not included in the category of small and medium-sized enterprises that can obtain a State of Emergency Certificate and benefit from the aids granted by the State, will have to resort to the ordinary procedure carried out before the Chamber of Commerce and Industry in order to obtain a certification of a force majeure event.
What is a certification of a force majeure event and who can use them?
This is actually a document certifying that the coronavirus COVID-19 pandemic represents for the applicant an unforeseeable, absolutely invincible and unavoidable event, beyond its control, preventing the applicant from fulfilling a certain contractual obligation.
In case a force majeure clause is invoked based on this certification, one of the effects of obtaining such a document is that the party in question may be released from liability for not fulfilling a certain contractual obligation, with the consent of the counterparty.
Author: Luiza Budusan