Newsletter July 2018

DISTRIBUTION OF DIVIDENDS IN THE CASE OF CORPORATIONS (LAW NO. 163/2018)

• From July 15, 2018, the distribution of profits between the stockholders or the  shareholders of a company can also be made quarterly, i.e. during the course of the financial year. Until now, it was prohibited by law to distribute profits during the year.  Profits could only be  distributed after approval of the annual financial statements by the shareholders’ meeting and official submission of the annual financial statements.
• The quarterly distribution of profits is limited to the net profit recorded in the quarter, plus any profits carried forward and reserves available for distribution, less losses carried forward and reserves allocated in accordance with legal provisions. The distribution must be based on preliminary financial statements approved by the shareholders’ meeting.
• The above definition of the basis for distribution, which expressly includes the reserves available for distribution, constitutes a legal basis for releasing reserves formed and distributing them directly as dividends. Previously, reserves could only be distributed to the shareholders by increasing the share capital by the respective amounts, followed by a reduction of the share capital, i.e. by a lengthy and cumbersome procedure.
• After the end of the financial year and approval of the annual financial statements, the amounts distributed during the year must be offset. Excessively distributed and paid dividends must be repaid within 60 days of approval of the annual financial statements. After this period, penalty interest is due, calculated in accordance with Art. 3, Government Decree No. 13/2011 regarding legal and criminal interest in  relation to financial liabilities. By way of derogation, the shareholders’ meeting may set a higher interest rate.
• Companies that opt for quarterly dividend payments are required to prepare interim financial statements. These are subject to audit if the annual financial statements of the respective company are subject to audit in accordance with the applicable statutory provisions or if the company has opted for auditing the annual financial statements.

PAYMENT OF TAX LIABILITIES TO A SINGLE ACCOUNT (OPANAF NO. 1612/2018)

• According to art. 163 par. (2) of Law no. 207/2015 with regard to the tax implementing ordinance for tax claims administered by the central and local tax authorities, the tax liabilities must be settled using a single state account.
• On July 1, 2018, the tax liabilities to be transferred to the new account 55.03 by the taxpayers were determined by law. These are 46 types of taxes and contributions, which can be read in detail on the website of the tax authorities.

REGULATION OF TELEWORK (LAW NO 81/2018)

• The concepts of telework and teleworkers are now introduced by law and provision is made for employees to be able to work regularly and voluntarily, at least on one day a month, using information and communication technology, in a place other than the workplace provided by the employer.
• Teleworking is based on the consent of the parties and must be provided for separately when concluding the employment contract for new employees or by an appendix to the individual employment contract in the case of employment contracts already concluded. In the case of telework, in addition to the elements provided for in Article 17(3) of Law No. 53/2003, new edition with subsequent amendments and additions, the individual employment contract must also include the following:
  (a) an explicit indication that the worker is engaged in telework;
  (b) the period and/or days on which the teleworker carries out his activity at a workplace provided by the employer;
  (c) the workplace(s) at which telework is carried out;
  (d) a statement of the working hours during which the employer is entitled to examine the activity of the teleworker and the specific manner in which the examination is to be carried out;
  (e) the method of recording the hours worked by the teleworker;
  f) the responsibility agreed by the parties in relation to the place of execution of telework, including responsibilities in the field of occupational health and safety at work;
  g) the employer’s obligation to transport the working documents used by the teleworker to and from the place where the telework is carried out, as the case may be;
  h) the employer’s obligation to inform the teleworker with regard to the provisions of the legal regulations, the applicable collective employment agreement and/or the internal regulations, with regard to the protection of personal data as well as the obligation of the teleworker to comply with these regulations;
  (i) the measures taken by the employer to ensure that the teleworker is not isolated from the other workers and which give the worker the opportunity to meet his colleagues regularly;
  (j) the conditions under which the employer assumes the expenses relating to telework;
  Refusal by the employee to agree to telework does not entitle the employer to unilaterally amend the employment contract and cannot constitute a ground for disciplinary action against the employee.
• In case of non-compliance with these regulations, the employer is liable to penalties of 5,000 lei or 10,000 lei for each employee who has not expressly stated in the individual employment contract that he is engaged in telework.