Following the Presidential Decree No. 195/2020 establishing the national state of emergency in Romania (the Decree), the Government Emergency Ordinance No. 28 of 18 March 2020 regarding the modification of the Criminal Code (the GEO) provided amendments to the Criminal Code meant to prevent the spreading of the COVID 19 infection.
Let’s have a look at the criminal liability of the companies for the crimes regulated by the GEO and other administrative sanctions which may be applied in the current circumstances.
Criminal liability. What are the main changes to the Criminal Code? The most important change regulated by the GEO is the implementation of higher limits for punishment of (a) false statements and (b) the failure to observe the measures taken to prevent or to combat the spread of infectious diseases. Additional aggravating circumstances are regulated: (i) false statements with the purpose to hide the risk of infection, (ii) omission to disclose essential information regarding the possible contact with an infected person and (iii) breach of the obligations to prevent and combat the disease causing injuries to or death of one/ several persons.
Who can be liable for these crimes?
While most of the provisions are clearly designated to apply to natural persons, we are of the view that the failure to observe the measures destined to prevent or combat the infectious diseases can trigger the criminal liability of a legal person as well. Article 352 para (2) of the Criminal Code punishes the failure to observe the measures destinated to prevent or combat the infectious diseases, if this had as a consequence the spreading of the disease.
The obligation of the legal person to apply all necessary measures for the prevention and control of contagious diseases is generally provided in Article 39 of Law No. 95/2006 regarding the healthcare reform. This piece of legislation does not apply only during the emergency state, but whenever there is a suspicion that a contagious disease might be spread.
What are the applicable sanctions?
The main sanction for companies is the criminal fine, established by the court according to the following rules:
fine = amount of fine/ day × number of days
minimum/ maximum number of days – 120/ 240 (since the punishment provided by the Criminal Code is up to maximum 5 years of imprisonment)
minimum/ maximum amount of fine/ day – RON 100/ RON 5,000
The ancillary criminal sanctions for companies are:
- suspension of activity for a period from 3 months to 3 years;
- closing some of the work points for a period of 3 months to 3 years;
- prohibition to participate in public procurement procedures for a period of 1 to 3 years;
- placement under judicial supervision; or
- publication of the conviction decision.
Administrative offenses and sanctions
a. Failure to comply with the measures imposed by the Military Ordinance No. 2/2020 regarding measures to prevent the spread of COVID-19
- Legal provision: The following activities are temporarily suspended: dental medicine offices, retail activities of products and services in the shopping centres where several legal persons operate (with certain exceptions).
- Sanction: Fines ranging between RON 1,000 and RON 70,000. We cannot exclude other ancillary administrative sanctions, including confiscation of the revenues obtained during such unauthorised operation.
b. Failure to comply with the measures imposed by Law No. 319/2006 regarding the safety and health of employees
- Legal Provision: Employers have the obligation to ensure the safety and protection of their employees. They must also provide sanitary materials to their employees free of charge.
- Sanction: Fines ranging between RON 3,000 and RON 6,000. We cannot exclude other ancillary administrative sanctions, including suspension of activity.
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