Franchise Romania Business BLOG

The persons who, up to the date of November 30, 2005, lodged a return petition with the competent administrative authority (the Mayor’s Office) in the locality where the requested construction or land are located, are entitled to such return. It is noteworthy that the notifications must be accompanied, either on the date when they are lodged with the Mayor’s Office, or on a subsequent date, by justifying documents that prove the capacity of owner of the petitioner or of the petitioner’s family, as well as the petitioner’s capacity of heir or legal representative of the former owner.

According to the provisions of Law no. 10/2001, the persons entitled to the seized properties are as follows:
Individuals who were the owners of the real estate properties on the date of the abusive takeover of the same;
Individuals who were associates of the legal entities that held the real estate on the takeover date;
Legal entities that were owners of the real estate properties taken over, provided that they continued their activity as a legal entity until the date of coming into force of the law or if they resumed their activity after December 22, 1989;
The heirs of the entitled individuals.
The persons who received compensation according to the international agreements concluded by Romania with respect to the regulation of the pending financial matters shall not benefit from the return of the real estate properties or from remedies.

Real estate properties that were abusively taken over include: (i) nationalized real estate properties, (ii) real estate properties taken over pursuant to the seizure of the estate, (iii) real estate properties donated to the state or to other legal entities on the basis of special normative acts adopted during the period March 6, 1945 – December 22, 1989, (iv) real estate properties donated to the state, if the petition for annulment or the petition for the acknowledgment of nullity was admitted by way of a final and irrevocable court resolution, (v) the real estate properties taken over by the state for the failure to pay the taxes for reasons beyond the owner’s will, (vi) the real estate properties considered to have been abandoned, on the basis of an administrative decision or a court resolution, during the period March 6, 1945 – December 22, 1989, (vii) the real estate properties taken over by the state on the basis of laws or other normative acts unpublished, on the takeover date, in the Official Gazette or the Official Bulletin, (viii) the real estate properties taken over by the state on the basis of Law no.139/1940 on requisitions, and which were not returned or for which the owners did not receive equitable compensation, (ix) any other real estate properties taken over by the state under a valid title, (x) other real estate properties taken over without a valid title or in breach of the legal provisions in force, as well as those taken over without legal grounds under orders of the local bodies of the state authority or administration.

The procedure for the assignment of a concession contract is initiated by the publication of a participation ad in the Official Journal of the European Union, which must contain at least the information of the standard form adopted by the European Commission. Such publication of the participation ad is mandatory in all cases where the assessed value of the concession contract to be assigned exceeds the equivalent value in lei of Euro 5,000,000. Concession contracts are assigned under the same procedures as the public acquisition contracts.

According to Emergency Ordinance no. 34/2006, regarding the assignment of public acquisition contracts, public works concession contracts and service concession contracts (the “Ordinance”), the beneficiary must indicate, in the participation ad, the criterion for the assignment of the relevant public acquisition contract, which, once determined, may not be changed during the unfolding of the whole assignment procedure.

A criterion for the assignment of public acquisition contracts may be only:
a) either the most economically profitable bid;
b) or, exclusively, the lowest price.

Where a public acquisition contract is assigned by employing the competitive dialog procedure, the assignment criterion must be the most economically profitable bid only.

According to Emergency Ordinance no. 34/2006, regarding the assignment of public acquisition contracts, public works concession contracts and service concession contracts (the “Ordinance”), the following do not the right to be involved in the process of check/assessment of the candidacies/bids either:

a) persons holding participations, interest shares, shares in the subscribed capital of one of the bidders/candidates or subcontractors, or persons that are members of the board of directors/leading or supervisory body of one of the bidders/candidates or subcontractors;
b) spouse, relative or affine up to the fourth degree inclusive, with persons that are members of the board of directors/leading or supervisory body of one of the bidders/candidates;
c) persons found to have an interest that might affect their impartiality during the check/assessment of the candidacies/bids.

The Emergency Ordinance no. 34/2006 keeps the three main categories of procedures for the assignment of public acquisition contracts, namely:

1.Open tender – any interested economic operator is entitled to submit its bid;
2.Invited tender – any economic operator is entitled to participate, and only the selected candidates shall then be entitled to submit their bid; and
3.Negotiation – the procedure by which the beneficiary runs consultations with the selected candidates and negotiates the contractual clauses, including the price, with one or more of them. The novelty in comparison to the old regulation is that the negotiation may be: (a) a negotiation with prior publication of a participation ad; or (b) a negotiation without prior publication of a participation ad.

According to the Emergency Ordinance no. 34/2006, as as approved with amendments by Law no. 337/17.07.2006, public acquisition contracts are contracts involving valuable consideration, executed in writing between one or more beneficiaries, of the one party, and one or more economic operators, of the other party, whose purpose is execution of works, provision of goods or service supply.

Contracts of Works are public acquisition contracts whose purpose is: (i) either the execution of works related to one of the activities listed in Annex no. 1 of the Ordinance or the execution of a building; (ii) either both the design, and the execution of works related to one of the activities listed in Annex no. 1, or both the design and the execution of a building; (iii) either the completion by any means of a building that meets the requirements specified by the beneficiary.

Supply Contracts are public acquisition contracts other than contracts of work, whose purpose is the supply of one or more products, by purchase, including purchase by installments, rent or leasing, with or without option of purchase.

Service Supply Contracts are public acquisition contracts other than the contract of works or supply contracts, whose purpose is the provision of one or more services set forth in the Ordinance.

Under the treaty of accession to the European Union, Romania agreed that, on the accession date, all of the registered community trade marks and all petitions for the registration of a community trade mark shall extend their effect with respect to the territory of Romania, in order to have an unitary effect on the entire territory of the Union.

Practically since the accession date, all of the registered community trade marks and petitions for the registration of community trade marks shall produce on the Romanian territory the same effects as the trade marks registered in Romania and the registration petitions lodged with SOPTM nationally or internationally, according to the Madrid Agreement or the Protocol to said Agreement (“National Trade Marks”). Thus:

1.the owner of a community trade mark may oppose any unauthorized use of the respective trade mark in Romania.
2.community trade marks and petitions for the registration thereof may be opposed at the registration of a National Trade Mark which is identical or similar to the respective community trade mark.
Of course, if the State Office for Patents and Trade Marks (“SOPTM”) does not dismiss the respective registration petition, the owners of the community trade marks may file (i) either an opposition to the registration of the respective National Trade Mark in accordance with Romanian law, (ii) or a legal action for the annulment of the trade mark’s registration.

Consequently, community trade marks may be used on the Romanian territory even if they are identical with or similar to national trade marks previously registered in the name of other owners.

In Romania, the primary law regulating the issuance regime of mortgage bonds is Law 32/2006. Recently, regulations for the application of this law were issued by the National Securities Commission (CNVM) and the National Bank of Romania (BNR). The main participants in the operations with mortgage bonds are: (i) issuers of mortgage bonds, that is mortgage bank or banks, Romanian legal entities that granted or took over mortgage loans by assignment and issue mortgage bonds; (ii) mortgage bond holders; and (iii) agent: the legal entity or organization without legal personality that represent the interests of the holders of mortgage bonds belonging to the same issue.