Emergency Ordinance (OUG) no.27 of 20 April 2023

Taking into account the need to identify appropriate administrative mechanisms and instruments in order to implement the measures established by Government Emergency Ordinance No 60/2019 on the regulation of some measures for the settlement of some fiscal and budgetary obligations, as well as some measures related to payment obligations related to loans from privatization revenues and loans contracted by the Romanian State from credit institutions and sub-loaned to economic operators, approved with amendments and additions by Law No 222/2019, with subsequent amendments and additions,

because it is necessary to adopt measures to link Romania’s commitments on decarbonisation of the energy sector, setting the deadline for the cessation of lignite and hard coal power generation, the timetable for the decommissioning of the total installed lignite and hard coal capacity and the timetable for the closure of lignite quarries and hard coal mines, set by Government Emergency Ordinance no. 108/2022 on the decarbonisation of the energy sector, approved with amendments and additions by Law No. 334/2022, as amended, with the measures established by Government Emergency Ordinance No. 60/2019, approved with amendments and additions by Law No. 222/2019, as amended,

because the transfer of functional energy and industrial assets to public or private state ownership through the payment procedure provided for by Government Emergency Ordinance No 60/2019, approved with amendments and additions by Law No 222/2019, as amended, facilitates the development of flexible and high-efficiency gas-fired generation capacities for electricity and heat cogeneration in order to achieve the decarbonisation target, according to Milestone No 133 of Romania’s National Recovery and Resilience Plan – C6 Energy component,

given the risk of bankruptcy of Complexul Energetic Hunedoara – S.A., which could lead to disruptions in the safe and adequate operation of the national electricity system, which requires the immediate adoption of preventive measures to enable the continued use of the energy capacity of the Paroseni thermal power plant,

taking into account that the valuation of the State’s cash contribution and the share premium in order to increase the share capital of “Complexul Energetic Oltenia” – S.A. under the terms of Article 4 of the Government Emergency Ordinance No 21/2022 on the establishment of the legal framework for granting State aid for the restructuring of “Complexul Energetic Oltenia” – S.A., approved with amendments by Law No 185/2022, as subsequently amended, will be carried out on the basis of the financial statements for 2022 and, consequently, the values will be determined only after approval of the financial statements by the Ordinary General Meeting of Shareholders, i.e. in May 2023 at the earliest,

because national companies, national companies and companies with full or majority state capital that are implementing a restructuring plan notified and authorised by decision of the European Commission and that have received state aid for restructuring in the form of grants to finance certain expenses will record operating income in their accounts as a result of the state aid granted,

taking into account that, if these companies remain obliged to distribute dividends in accordance with the provisions of Government Ordinance No 64/2001 on the distribution of profits to national companies, national companies and companies wholly or majority-owned by the State, as well as to autonomous companies, approved with amendments by Law No 769/2001, as subsequently amended and supplemented, there would be a risk that they would not be able to ensure the cash flows necessary to ensure the continuity of activity, and that the accounting profit remaining after deduction of corporate income tax should be allocated directly to other reserves and constitute their own source of financing,

whereas the negative consequences which may arise if the proposed measures are not adopted may affect the security of supply of the national electricity system and even the energy security of the country, which justifies the existence of an extraordinary situation which cannot be postponed,

in view of the fact that these elements concern the general public interest and constitute an emergency and extraordinary situation which cannot be postponed,

Pursuant to Article 115(4) of the Constitution of Romania, republished,

The Government of Romania adopts this Emergency Ordinance.

 

Article  I

Government Emergency Ordinance no.60/2019 on the regulation of some measures for the settlement of some fiscal and budgetary obligations, as well as some measures regarding payment obligations related to loans from privatisation revenues and loans contracted by the Romanian State from credit institutions and sub-loaned to economic operators, published in the Official Gazette of Romania, Part I, no.556 of 5 July 2019, approved with amendments and additions by Law no.222/2019, with subsequent amendments and additions, is supplemented as follows:

 

  1. In Article 2, two new paragraphs are inserted after paragraph (7), paragraphs (71) and (72), with the following content:

 

“(71) During the period between the date of signature of the handover-takeover act referred to in paragraph 7 and the authorisation by the European Commission of the support measures provided for in Government Emergency Ordinance No 108/2022 on the decarbonisation of the energy sector, approved with amendments and additions by Law No. 334/2022, as subsequently amended and supplemented, to ensure the operating costs of the assets subject to the payment for use, loans may be granted from the proceeds of the auctioning of greenhouse gas emission allowances allocated to Romania pursuant to Article 10(2) and (3) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Union and amending Council Directive 96/91/EC, as subsequently amended and supplemented, with a view to improving and extending the Community greenhouse gas emission allowance trading scheme allocated to the Ministry of Energy in accordance with Article 10(1)(d) of Government Emergency Ordinance No. 115/2011 on establishing the institutional framework and authorising the Government, through the Ministry of Finance, to auction greenhouse gas emission allowances allocated to Romania at European Union level, approved by Law No. 163/2012, as amended.

 

(72) The amount and conditions for granting the loans referred to in paragraph 1 shall be determined by Government Decision, on the proposal of the Ministry of Energy.”

 

  1. In Article 2, after paragraph (9) a new paragraph is inserted, paragraph (91), with the following content:

 

“(91) In the case of an economic operator that is in insolvency or bankruptcy proceedings, the transfer of the assets referred to in Article 1 shall be carried out under the terms of Law No 85/2014 on insolvency prevention and insolvency proceedings, as subsequently amended and supplemented, the debts and obligations arising up to the date of the transfer remaining with the economic operator.”

 

 

  1. After Article 2, a new Article 21 is inserted, with the following content:

“Article 21

 

(1) For the execution of the safety, closure and greening works of the mining operations provided for in Article 6 paragraph (1) of the Government Emergency Ordinance No. 108/2022, approved with amendments and additions by Law No. 334/2022, with subsequent amendments and additions, including the neutralization of the oil resulting from the safety works of the deposits, the management of the assets provided for in Article 2 shall be carried out by the competent Ministry through units operating under the authority of the competent Ministry.

(2) The conditions, deadlines and manner of performance of the tasks by the designated unit shall be established by order of the competent Minister.

(3) Within a maximum of 30 calendar days from the issuance of the administrative act referred to in paragraph (2), a hand-over protocol shall be concluded between the competent Ministry and the designated unit.”

 

  1. After Article 61, a new Article 62 is inserted, with the following content:

“Article 62

 

(1) By way of derogation from the provisions of Article 288 of the Government Emergency Ordinance no. 57/2019 on the Administrative Code, as subsequently amended and supplemented, the transfer of the assets referred to in Article 61 from the public domain of the State to the public domain of the administrative-territorial unit shall be carried out without their inclusion in the centralized inventory of assets in the public domain of the State.

(2) The provisions of Article 289 of Government Emergency Ordinance No. 57/2019, as amended, shall apply accordingly.”

 

Article  II

(1) By way of derogation from the provisions of Article 24 of the Mining Act No 85/2003, as subsequently amended and supplemented, the rights and obligations assumed under the concession licence in force for the mining operations referred to in Article 6(1) of Government Emergency Ordinance No 108/2022 on the decarbonisation of the energy sector, approved as amended and supplemented by Law No 334/2022, as subsequently amended and supplemented, may be partially transferred by the holder to another legal person only with the approval of the competent authority.

(2)The partial transfer of rights and obligations provided for in paragraph 1 shall be carried out solely for the purpose of neutralising the oil resulting from the work to secure coal deposits.

(3)For the purpose of the transfer referred to in paragraph (2), the transfer shall take into account the right to extract the reserve part resulting from the execution of the work to make the deposit safe and the obligation to execute the closure and greening works.

 

(4) The following criteria must be met for the transfer to be approved:

 

  1. a) the concession licence is in force;
  2. b) the person to whom the concession licence is to be transferred has no outstanding debts to the State budget, the State social security budget, the budget of the single national health insurance fund, the unemployment insurance budget, the budget for insurance against accidents at work and occupational diseases and the local budgets, according to the certificates/certificates issued by the public authorities/institutions administering these budgets;
  3. c) the legal entity to which the transfer is made has the technical capacity and the financial capacity to take over part of the rights and obligations laid down in the concession licence;
  4. d) the person to whom the transfer is to be made is specialised in the performance of mining activities and certified by the competent authority.

 

(5) The transfer shall be requested, in writing, by the legal person to which the transfer is made together with the titular legal person and shall be accompanied by the following documents:

 

  1. a) a certificate issued by the Trade Register Office regarding the legal entity to which the concession licence is to be transferred;
  2. b) a memorandum, drawn up by the holder, setting out the reasons for requesting approval of the transfer of the concession licence;
  3. c) the decisions of the governing bodies of the two legal entities approving the transfer of the concession licence;
  4. d) a copy, certified as true copies, of the articles of association and the registration certificate of the legal entity to which the concession licence is to be transferred;
  5. e) documents relating to the technical and financial capacity of the legal person to which the concession licence is to be transferred;
  6. f) approval of the transfer issued by the ministry coordinating or subordinating any of the legal persons.

 

(6)The competent authority shall examine the request for approval of the transfer and decide on the way of settlement within 60 calendar days. The transfer shall be approved by an order published in the Official Gazette of Romania, Part I.

(7) The entry into force of the partial transfer of rights and obligations gives rise to separate and independent legal relations between the competent authority, on the one hand, and the holder, on the other hand; the breach of obligations corresponding to the partial transfer, the modification, transfer or termination of the partially transferred licence shall have no effect on the rights and obligations not taken over by the new holder.

 

Article  III

In Article 10 of Government Emergency Ordinance no.115/2011 on establishing the institutional framework and authorizing the Government, through the Ministry of Finance, to auction greenhouse gas emission allowances allocated to Romania at European Union level, published in the Official Gazette of Romania, Part I, no.926 of 28 December 2011, approved by Law no.163/2012, with subsequent amendments and additions, after paragraph (13) a new paragraph is inserted, paragraph (14), with the following content:

 

Article  10

(1) The destination of the RON equivalent of the proceeds from the auctioning of greenhouse gas emission allowances allocated to Romania through the common platform, pursuant to Article 10(2) and (3) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Union and amending Council Directive 96/91/EC, as subsequently amended and supplemented, with a view to improving and extending the greenhouse gas emission allowance trading scheme of the Community, as subsequently amended and supplemented, is as follows:

………………………………………………

  1. d) 6% of the gross amount shall be credited to the Ministry of Energy, retained in the cash account opened in the name of the Ministry of Public Finance at the Central Operational Treasury and transferred by the account manager, within 5 working days of the request of the Ministry of Energy, to a separate account of state budget revenues, opened in its name at the Treasury and Public Accounting Activity of the Municipality of Bucharest, for the financing of greenhouse gas reduction projects established by the Ministry of Energy. The same rate of 6% shall also be applied to the existing balance, as of 31 December 2019, in the cash account opened in the name of the Ministry of Public Finance at the Central Operational Treasury and shall be transferred by the Ministry of Public Finance, within 5 working days from the request of the Ministry of Energy, to a separate state budget revenue account, opened in its name, at the Treasury and Public Accounting Activity of the Municipality of Bucharest, for the financing of greenhouse gas reduction projects established by the Ministry of Energy. [extrct of OUG 115/2011]

 

“(14) The amount referred to in paragraph 1(d) shall also be used to grant loans to entities with majority or full state capital under the authority of the Ministry of Energy to ensure the financing of operating expenses of energy functional assets subject to the payment procedure in accordance with the provisions of Government Emergency Ordinance no. 60/2019 on the regulation of some measures for the settlement of certain fiscal and budgetary obligations, as well as some measures related to payment obligations related to loans from privatization revenues and loans contracted by the Romanian State from credit institutions and sub-loaned to economic operators, approved with amendments and additions by Law no. 222/2019, with subsequent amendments and additions.”

 

Article  IV

Article 4 of Government Emergency Ordinance no.21/2022 on the establishment of the legal framework for granting state aid for the restructuring of “Complexul Energetic Oltenia” – S.A., published in the Official Gazette of Romania, Part I, no. 245 of 11 March 2022, approved with amendments by Law no. 185/2022, with subsequent amendments, paragraph (3) is amended to read as follows:

 

(3) The Ministry of Energy is authorized to request the inclusion of the amounts referred to in paragraph (1) in the state budget for the year 2023, with the payment of the cash contribution in accordance with the resolution of the extraordinary general meeting of shareholders of the company for the approval of the share capital increase to be made in the first quarter of 2023 through the budget of the Ministry of Energy.

[extract of OUG 21/2022]

 

“(3) The Ministry of Energy is authorized to request the inclusion of the amounts referred to in paragraph (1) in the state budget for the year 2023, with the payment of the cash contribution in accordance with the resolution of the extraordinary general meeting of shareholders of the company to approve the share capital increase to be made by the end of 2023 through the budget of the Ministry of Energy.”

 

Article  V

By way of derogation from the provisions of Article 1 paragraph (1) letter e) and f) of Government Ordinance no. 64/2001 on the distribution of profits of national companies, national companies and companies with full or majority state capital, as well as autonomous companies, approved with amendments by Law no. 769/2001, as subsequently amended and supplemented, to national companies, national companies and companies with full or majority state capital that are implementing a restructuring plan notified and approved by European Commission Decision and that have received state aid for restructuring in the form of grants to finance certain expenses, the accounting profit remaining after deduction of corporate income tax shall be allocated directly to other reserves and shall constitute an own source of financing during the period of its implementation, subject to the maintenance of payroll expenses at the planned level of the previous year.

 

PRIME MINISTER

NICOLAE-IONEL CIUCĂ

Signing:

Minister for Energy,

Virgil-Daniel Popescu

Minister for Development, Public Works and Administration,

Cseke Attila-Zoltan

Minister for the Environment, Water and Forests,

Tanczos Barna

Minister of Finance,

Adrian Câciu