New conditions for transport companies

Government Ordinance no. 12 for amending and supplementing some normative acts in the field of road transport was published in the Official Gazette (Part I) no. 98 of January 31, 2022, with applicability of February 3, 2022.

Thus, through this document, the legislation in the field of road transport of goods and people is modified, so that the rules appeared at European level in 2020 can be applied in Romania as well.

The GOVERNMENT ORDINANCE no. 12/2022, in fact, ensures the framework for the application of the legislative amendments introduced by the EU Regulation no. 1055/2020 and the transposition of the EU Directive 1,057 / 2020.

Please note that the document will enter into force on February 3, except for the part of sanctions, which will enter into force ten days after its publication in the Official Gazette.

We emphasize the fact that, in the internal legislative plan, the new ordinance will modify two important normative acts, namely: GOVERNMENT ORDINANCE no. 27/2011 on road transport and Law no. 16/2017 regarding the secondment of employees within the provision of transnational services.

Changes regarding the road transport of goods / persons:

According to the current provisions, a road carrier (freight / person) is obliged to meet four main conditions in order to carry out specific activity:

have a real and stable seat in the territory of a Member State;
have a good reputation;
have adequate financial capacity;
have the necessary professional competence.

Moreover, GOVERNMENT ORDINANCE 12 sets out, among other things, the specific conditions for each of the main conditions.

Thus, in order to fulfill the condition of the headquarters, a transport company will have to:

to have a registered office located in Romania in which it keeps the originals of its main working documents, regardless of whether they are in electronic format or in any other format, especially its transport contracts, documents related to the vehicles available to the company, accounting documents and others;
to organize the activity of its vehicle fleet in such a way as to ensure that the vehicles available to the company and used in international transport return to one of the operational centers in Romania within eight weeks from its departure;
to be registered at the National Office of the Trade Register;
to be subject to the payment of the profit tax and, as the case may be, to have a registration code for VAT purposes;
to have one or more vehicles that are registered or put into circulation and authorized for use in Romania, regardless of whether the respective vehicles are wholly owned or owned under a contract of purchase in installments, rental or leasing;

to carry out effectively and permanently its administrative and commercial activities with the help of the corresponding equipment and installations at the headquarters and to manage its effective and permanent transport operations using the vehicles from the next point;
to have permanently and regularly available a number of vehicles that comply with the established conditions and of drivers whose usual parking place is at an operational center in Romania; in both cases this number is proportional to the volume of transport operations performed by the company.

In order to comply with the condition of reputation, the transport company or the transport manager must not have serious violations of various laws in areas such as labor, road traffic or commercial, among others.

In order to comply with the financial capacity requirement, the company must meet the following conditions:

to prove, on the basis of the annual accounts certified by an auditor or a duly accredited person, that he has at his disposal each year capital and reserves totaling at least 9,000 euros, for the first used vehicle, 5,000 euros for each additional motor vehicle or combination of vehicles used with a maximum authorized mass exceeding 3,5 tonnes and 900 euros for each additional motor vehicle or additional combination of vehicles used with a maximum authorized mass exceeding 2 tonnes , 5 tons, but does not exceed 3.5 tons;
to demonstrate, on the basis of the annual accounts certified by an auditor or a duly accredited person, that he has at his disposal each year capital and reserves totaling at least 1,800 euros for the first vehicle used and 900 euros for each additional vehicle used, in the case of undertakings engaged in the occupation of road haulage operator only by means of motor vehicles or combinations of vehicles the maximum authorized mass of which exceeds 2,5 tonnes but does not exceed 3,5 tonnes;
the company and / or its transport manager should not be in a state of bankruptcy, in a situation of insolvency without having a reorganization plan approved according to the legislation in force or liquidation.

According to GOVERNMENT ORDINANCE 12/2022, in order to comply with the requirement regarding professional competence, the company must meet the following conditions:

to designate a natural person in the position of transport manager;
the transport manager is the holder of the certificate of professional competence obtained in accordance with the provisions of Article 8 of Regulation (EC) no. 1,071 / 2009, based on the initial professional training, followed by an examination, under the conditions established by the competent authority through norms.

Control rules for road hauliers seconding drivers – changes:

As mentioned above, the GOVERNMENT ORDINANCE 12/2022 also transposes into national legislation the EU Directive 1057/2020, a normative act that changes the control rules for road hauliers who detach drivers.

Specifically, it establishes the express possibility for the authorities to verify whether an employee is seconded or not, when making a bilateral transport of goods or persons.

One of the important changes brought by the GOVERNMENT ORDINANCE 12/2022 is the definition of the concept of bilateral transport (of goods / persons) – the notion is important because for drivers who perform only bilateral operations, the declaration of secondment is not submitted.

Thus, the following definitions are introduced:

bilateral road passenger transport – bilateral road transport operation performed within an occasional or regular international road passenger transport service, as defined in Regulation (EC) no. 1,073 / 2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services and amending Regulation (EC) no. 561/2006, when a driver carries out any of the following operations: embark persons in the Member State of establishment and disembark them in another Member State or in a third country, embark persons in a Member State or in a third country third party and disembark them in the Member State of establishment or embark and disembark persons in the Member State of establishment for the purpose of carrying out local excursions in another Member State or in a third country, in accordance with Regulation (EC) No 45/2001. 1,073 / 2009;

Bilateral road haulage – the movement of goods, on the basis of a contract of carriage, from the Member State of establishment of the undertaking or road haulage operator as defined in Article 2 (3) of Regulation (EC) No 1234/2007. 1,071 / 2009, whose employee is the driver or from a third country to Romania or from Romania to the Member State of establishment or a third country.

The transport companies will not have the specific obligations regarding the secondment because, according to the GOVERNMENT ORDINANCE 12/2022, they are not considered employees seconded to the respective Romanian territory, from the Romanian territory, within the meaning of Law 16/2017, when:

performs bilateral road transport of goods;
carries out, in addition to carrying out a bilateral road transport operation, a loading and / or unloading activity in the Member States or in the third countries in which it transits, provided that it does not load goods and unload them in the same Member State;
carry out a maximum of two additional loading and / or unloading activities in the Member States or in third countries in transit, provided that they do not load or unload goods in the same Member State when the bilateral road transport operation started in the Member State establishment, during which no additional activity has been carried out, is followed by a bilateral road transport operation to the Member State of establishment;
performs bilateral road transport operations of persons;
in the case of bilateral road transport of persons embarking a person and / or disembarking persons in the Member States or in the third countries they cross, provided that it does not provide passenger transport services between two points in the State crossed member. The same provisions apply to the return journey;
transits the territory of a Member State, without loading or unloading goods or without loading or unloading persons;
performs the initial or final road segment of a combined transport operation, as defined in Article 2 (1) of Government Ordinance no. 88/1999 on the establishment of rules for the combined transport of goods, approved with amendments by Law no. 401/2002, in case the road segment, taken separately, represents a bilateral freight transport operation.

In addition, an express provision is included that limits the duration of the controls made by the authorities. Specifically, at least 3% of the total number of days worked during the year by drivers carrying transport must be checked annually and at least 15% of the total working days of drivers checked annually and at least 25 must be checked in traffic. % of their number to be checked at the headquarters of the road transport companies.

Legal basis:

Government Ordinance 12/2022 amending and supplementing some normative acts in the field of road transport.