EXPEDITIOUS ORDINANCE

on the stimulation of direct investments* no 92 of 1997

 

CHAPTER I

General provisions

 

            Art. 1. - The present expeditious ordinance shall establish the general legal rules with regard to the guarantees anct facilities the investors and direct investments in Romania shall benefit by.

            Art. 2. - In the sense of the present expeditious ordinance, the terms and phrases below shall have the following meanings:

            a) direct investment - participation in the setting up or extension of an enterprise in any of the legal forms provided under the law, the acquisition of shares or capital shares of a trading company, except billcase investments, as well as the establishment or extension in Romania of a branch by a foreign trading company, by:

            - financial contribution, in national currency or in convertible currency;

            - contribution in kind of corporeal and incorporeal property, movables and/or immovables;

            - participation in the increase of the assets of an entreprise by any legal mode of financing;

            h) billcase investment - acquisition of transferable securities (stocks and shares) in the regulated and organized capital markets for the purpose of obtaining capital gains from dividends and from the interests due to them - resulted from the activity of third parties involved directly in the administration of the issuer - and from the favourahle price difference at selling;

            c) investor - natural or juristic person, resident or nonresident, with domicile or permanent seat in Romania or abroad, who invests in Romania in any of the ways provided under letters a) and b);

            d) resident/non-resident - persons thus qualified according to the regulations wilh regard to the currency system.

* The Expeditious Ordinance of the Government of Romania No. 92/1997 on the stimulation on direct investments was published in the „Monitorul Oficial” (Official Gazette of Romania), Part. I, No. 386 of 30 December 1997.

 

            Art. 3. - Rules governing billcase investments, the advantages they benefit by inclusive, shall be established by a special law.

 

CHAPTER II

Guarantees and common facilities

 

            Art. 4. - (1) The making of an investment in Romania as well as the possession, use, or disposition over a property are guaranteed and cannot be subjected to a discriminatory measure. Likewise, there cannot be subjected to a discriminatory measure the administration, maintenance, turning to good account, extension, or liquidation of an investment.

            (2) Investors shall benefit in Romania mainly by:

            - the possibility to carry out investment in any domain and in any legal forms provided by the law:

-         just and equitable equality of treatment for Romanian or foreign investors, resident or non-resident in Romania;

            - guarantees against nationalization, expropriation or

other measures with an equivalent effect:

            - fiscal and customs facilities;

            - assistance with regard to running through the administrative formalities;

            - the right to convert into the currency of the investment the sums of money in Romanian currency (lei) which are due to them from the investment, as well as the transfer of the currency to the country of origin, according to the regulations regarding the foreign currency system;

            - the right of investors to choose the courts of justice or of arbitration competent to solve possible litigations;

            - the possibility to carry over losses recorded in the course of a financial year on account of the taxable profit of the following financial years;

            - the possibility to use an accelerated amoMization;

            - the possibility to deduce the advertising and publicity expenditures from the taxable profit;

            - the possibility to hire foreign citizens, according to the legal provisions in force.

            (3) At the same time, investors shall benefit by the rights granted to investors by the laws in force, with a view to the unfolding in good conditions of the actiW ty of enterprises.

            (4)The legal system provided under paragraphs (1) to (3) shall not apply to investors operating and to investments functioning in free zones or zones regulated by special lacvs.

            Art. 5. - The domains in which investments can be made only on the basis of a licence or authorization, as well as the general conditions under which licences or authorizations may be granted shall be stipulated by law.

            Art. 6. - Any investor, resident or non-resident juristic person, may acquire any real rights on movables and immovables.

            Art. 7. - Investors may carry out any currency exchange on Romania's territory, under the conditions stipulated by the regulations of the National Bank of Romania, published in the "Monitorul Oficial" (Official Gazette of Romania), Part I.

            Art. 8. - (1) Investments may not be nationalized, expropriated, or subjected to measures with an equivalent effect, except cases in which such a measure meets the following conditions:

            a) it is necessary for a cause of public utility;

            b) it is non-discriminatory;

            c) it is carried out in accordance with the express stipulations of the law;

            d) il is made with payment of previously, adequately and effectively established damages.

            (2) The damages provided under para. (1) letter d) shall be equivalent to the just market value of the expropriated investment, at the moment immediately previous to the expropriation or before the imminent expropriation became known in a way that would affect the value of the investment.

            (3) At the request of the investor, the just market value of the investment may be expressed in freely convertible currency, on the basis of the rate of exchange of the respective currency on the currency market, at the date of the evaluation.

            (4) The affected investor shall have the right to a prompt examination of his case, of the evaluation of his investment, and of the payment of damages according to the Romanian law; the examination shall be carried out by a judicial authority or by another competent and independent authority, as

the case may be, in agreement with the international treaties in the matter, Romania is a party to.

 

CHAPTER III

Guarantees and facilities for investors nnn-resident in Romania

 

            Art. 9. - (1) Non-resident investors shall have the samc rights and obligations as Romanian investors, in agreement with the provisions in the present chapter.

            (2) In case a bilateral agreement of reciprocal promotion and protection of investments, ratified according to the law, or another law would entitle the investor - non-resident natural or juristic person - to a more favourable treatment than that provided under the present expeditious ordinance, the investor in question shall benefit by that treatment.

            Art. 10. - Investors non-resident in Romania shall have the right to transfer abroad, without any kind of restrictions, after payment of the legal rates and taxes, the following incomes, in freely convertihle currency;

            a) dividens or profit obtained from a trading company, in case they are shareholders or associates, or the profit from a branch of it;

            b) the income obtained in case of an association in participation as well as the incomes obtained from the sale of shares or of capital shares;

            c) the amounts of money ohtained from the liquidation of a company according to the Law No. 31/1990 on trading companies, with the subsequent modifications and completions, or from the liquidation of a trading company according to the procedure of bankruptcy, regulated by the Law No. 64/1995 on the procedure of judicial reorganization and of bankruptcy, with the subsequent modifications;

            d) the amounts of money obtained as damages, as a result of an expropriation or application of another measure with an equivalent effect;

            e) other incomes, according to the form of achievement of the investment.

            Art. 11. - Litigations between non-resident investors and the Romanian state, with regard to the rights aud obligations resulting from the provisions under chapter II, under the present chapter and under chapter V shall be solved at the investor's choice, according to the procedure instituted by:

            a) the Law No. 29/1990 on the administrative litigations and the Law No. 105/1992 on the regulation of private international law relations;

            b) the Convention on the regulation of disputes with regard to investments between states and persons of other states, concluded in Washington on 18 March 1965, and ratified by Romania by the Decree of the Council of State No. 62/1975, published in the "Buletinul Oficial" (Official Gazette), Part I, No. 50 of 7 June 1975, when the foreign investor is a citizen of a state-party to the Convention and the dispute is related to an investment in the sense of art. 25 para. (1) of the Convention; in such situations, a Romanian company in which the foreign investors hold - according to the Romanian law - a control position, this shall be considered, according to art. 25 para. (2) letter b) under the Convention, as having the nationality of the foreign investors;

            c) the Arbitration Regulation UNCITRAL/CNUDCI; in case the arbitrators shall not be designated under the terms of art. 0 or 7 under these regulations, they shall be designated by the secretary-general of the International Centre for the Settlement of Disputes Relating to Investments.

 

CHAPTER IV

Fiscal and customs facililies

 

            Art. 12. - (1) Any investment made according to the present expeditious ordinance shall benefit by the fiscal and customs facilities provided under the present chapter.

            (2) The application of the measures provided under this chapter and the control of the observance of the legal terms of the granting of these facilities shall be carried out by the fiscal bodies and by the customs bodies.

            Art. 13. - Investors shall benefit by the following facilities:

            a) the import of movables of corporeal or/and non-corporeal property, which constitute a contribution in kind to the registered capital of a trading company or represents the contribution to an association in participation or to a family association, necessary for the achievement of the object of activity, shall be excepted from the payment of customs duties and from the payment of the value added tax;

            b) the import of technological equipment - machinery and tools - forming amortizable assets, according to the Law No. 15/1994 on the writing off of the capital fixed in corporeal and non-corporeal assets, with subseqvent modifications, achieved by investors making direct investments, shall be excepted from the payment of customs duties; the list with the commercial denomination and codes from Romania's Import Customs Tariff corresponding to the goods which come under the above-mentioned provisions shall be adopted by decision of the Government at the proposal of the Ministry of Industry and Trade and of the Ministry of Finance;

            c) the possibility to choose, on the occasion of the achievement of new investments, between one of the two forms of fiscal incentives, whitout however cumulating them:

            - deduction from the taxable profit of the expenses with regard to amortization, even when the tax-payer has opted for the use of the accelerated depreciation system. The taxpayer's choice to use the accelerated depreciation system shall have to be comunicated to the territorial fiscal bodies where he is under an obligation to hand in the return of income, a preliminary approdal given by these bodies being no longer necessary;

            - deduction, from the taxable profit due to the financial year, of a 20 per cent quota from the cost price of the technological equipment - machinery aud tools - forming amortizable assets acquired in the course of the respective financial year; in case the taxable profit is not sufficient to allow full deduction of the amount of money due to the 20 per cent quota mentioned, the difference shall be deducted from the profil due to the following financial years up to the deductible amount, within five years at the most;

            d) full deduction from the taxable profit of the advertising and publicity expenditures;

            e) recovery of the yearly loss declared by the tax-payers, by the income tax return, from the taxable profits obtained in the following five consecutive years. The recovery of losses shall be made at each payment term of the income tax, according to the legal procivions in force.

 

CHAPTER V

Transitory and final provisions

 

            Art. 14. - The import of the goods provided under art. 13 letter a) shall not he subjected to the special control of the National Agency for the Control of Strategic Exports and of the Prohibition of Chemical Weapons, according to the Government Ordinance No. 31/1994 on the system of imports and exports of strategic products, approved by the Law No. 93/1994, except the case in which the import is achieved whith business partners from countries which do not apply similar regulations with regard to the system of imports and exports of strategic products.

            Art. 15. - Facilities in course of unfolding, established according to the Law No. 35/1991 on the system of foreign investments, with subsequent completions and modifications, according to the Law No. 71/1994 on the granting of additional facilities as compared with the Law No. 35/1991, republished, for attracting foreign investors in industry, and according to the Expeditious Government Ordinance No. 31/1997 on the system of foreign investments in Romania shall he maintained up to the expiry of the terms for which they were granted.

            Art. 16. - The facilities granted by the Present expeditious ordinance shall not be modified over a period of five years.

            Art. 17. - Within 30 days after the coming into force of the

present expeditions ordinance, the Reform Council and the Ministry of Finance shall elaborate and subject for approval to the Government methodological norms for its application.

            Art. 18. - Al the date of coming into force of the present expeditious ordinance there shall he abrogated articles 1 to 10 and articles 16 to 33 under the Expeditious Government Ordinance No. 31/1991 on the system of foreign investments in Romania, published in the "Monitorul Oficial" (Official Gazette of Romania), Part I, No. 125 of 19 June 1997, art. 2 para. (4) under the Government Ordinance No. 70/1904 on the income tax, republished in the "Monitorul Oficial" (Official Gazette of Romania), Part I. No. 40 of 12 March 19J7, with subsequent completions and modifications, as well as any other dispositions to the contrary.

 

Published in the "Monitorul Oficial" (Official Gazette of Romania), Part I, No. 386 of December 30, 1997