In this issue:

• Law no. 28/2020 amending and supplementing the Law no. 321/2009 on food products trading

Law no. 28/2020 (Law 28/2020) amending and supplementing the Law no. 321/2009 on food products trading (Law 321/2009) has been published in the Official Gazette of Romania, Part I, no. 274 on the 1st of April 2020 and will enter into force within 45 days as of its publication.

Law 28/2020 provides for a significant number of amendments, substantially changing the legislative framework regarding the invoicing and reinvoicing of taxes and services, the obligations of the retailers, as well as the applicable sanctioning regime.

Invoicing and reinvoicing of taxes and services

The total ban imposed on retailers to invoice services and taxes to their suppliers is lifted.

Thus, the services are divided into two categories: (i) services that are not related to the commercial act (namely, services regarding the extension of the retailer's distribution network, the layout of the retail spaces or the operations and the events organized to promote the retailer's activity and image), which cannot be invoiced to the suppliers, and (ii) services that are related to the commercial act (including promotion, marketing and advertising services of the products purchased from the supplier), which can be invoiced to the suppliers, provided that they were contractually agreed, under clear and unambiguous terms, prior to the actual performance of the services.

Payment terms

Law 28/2020 also changes the payment terms established for the  retailers in relation to their food suppliers, as follows:

• The established rule is that the payment term will be determined by the parties by negotiating the contractual terms, in compliance with the applicable legal provisions, the previous term of maximum 30 calendar days since the acceptance of the products being removed;
• For fresh food products, the deadline set by the parties cannot exceed 14 working days since their acceptance, Law 28/2020 extending the previous term of 7 calendar days.

Special obligations of retailers

According to the amendments made by Law 28/2020, retailers are no longer obliged to provide distinct display spaces for Romanian products.

Thus, the retailers may grant, based on the parties’ agreement, distinct display and signaling spaces on the shelves for each food product, depending on the country of origin.

At the same time, the retailers’ obligation to purchase certain products from the short food chain (namely, meat, eggs, vegetables, fruits, honey, dairy and bakery products) in proportion of at least 51% of the volume of shelf merchandise, corresponding to each category of food product, is removed.

Furthermore, Law 28/2020 provides that, for these categories of products, direct partnerships can be concluded to ensure the access of the consumer to fresh products. The methodology for direct partnerships will be approved by order of the minister of agriculture and rural development.

Law 28/2020 also removes the obligation of retailers to organize events for the promotion and sale of Romanian food products.

Following the amendment, retailers may organize food promotion events, in compliance with the in force sanitary-veterinary legislation, regardless of the origin of the products.

Amendments to the applicable sanctions

Law 28/2020 brings important changes to the applicable sanctioning regime, as follows:

• the measure of suspending the operating permit for a period of 6 months, for repeated offenses concerning the first category of minor offences (i.e., invoicing and reinvoicing of taxes and services, selling at a loss) is removed;
• for the other categories of minor offences, the limits of the sanctions are increased up to RON 250,000.

Amendments to existing contracts

The on-going contracts should be amended to be in line with the new provisions within 6 months from the date the Law 28/2020 enters into force, namely by 16 November 2020.

The methodological norms for the application of Law 321/2009 will be adopted within 30 days from the entry into force of Law 28/2020.

Prepared by:
Rareș Crîșmaru – Associate, Radu și Asociații SPRL

For additional information, please contact:
Nicoleta Gheorghe – Managing Associate, Radu și Asociații SPRL
Radu Diaconu, Associate Partner, Radu și Asociații SPRL