Covid-19 business criminal law and other issues in Romania

Yes. Businesses that are expressly required to close during the pandemic face potential criminal liability if they fail to comply with the restrictions imposed by the Romanian authorities. Other businesses that are not required to close during this period may also face criminal liability if they fail to comply with the existing health and safety laws, in addition to the recommendations issued as a result of the COVID-19 pandemic. 

Since 18 March 2020, the Ministry of Internal Affairs has issued several Military Ordinances whereby, among other measures, it is mandated that certain categories of business are obliged to either close in full (such as cinemas, malls, casinos and other land-based gambling facilities) or partially, or else cease certain operations (in particular selling food or drink for on-premises consumption) during the state of emergency 1 . Essential service providers, such as food retailers and pharmacies remain open during the state of emergency. The failure to comply with the provisions of the Military Ordinances may lead to administrative or criminal liability. 

On the administrative side, the penalty is a fine between approx. EUR 2,000 and EUR 15,000. Other ancillary administrative measures may apply, such as the power to freeze the assets used or resulting from the activity that breached the Military Ordinances (e.g. the revenues of land-based gambling operators that operate during the state of emergency) or prohibiting access to facilities by placing a special seal upon them. However, on 6 May 2020, the Romanian Constitutional Court determined that these administrative fines and ancillary measures are unconstitutional, meaning that they can be challenged and annulled in court. 

On the criminal side, the businesses that are required to close during the pandemic may face prosecution for the crime of preventing the fight against diseases, if they fail to observe this measure and if COVID-19 is being spread as a result. 

Businesses that are not required to close during the pandemic should observe their general health and safety obligations towards their employees, as well as the specific recommendations issued by the competent authorities during the pandemic. The failure to observe such obligations and recommendations may lead to prosecution for the crimes of failure to take labour health and safety measures or non-compliance with labour health and safety measures. It should be noted that, as in other jurisdictions, under Romanian law exposure to risk of harm is sufficient to trigger criminal liability for these crimes, as actual harm is not a pre-requisite for prosecution.

If one or more persons are infected with COVID-19 as a result of the failure to observe the health and safety obligations and recommendations (i.e. actual harm is produced), in addition to the aforementioned crimes, the business may also be held criminally liable for the crime of preventing the fight against diseases.

Yes. Under Romanian law, both corporate criminal liability and personal criminal liability may be investigated in parallel, which means that senior management and other company representatives may face criminal liability together with the company they control. We will present the spectrum of persons that may be held criminally liable for each of the crimes presented above.

Failure to take labour health and safety measures – all senior management, company executives or employees with power of decision making or holding duties in terms of drafting and/or approving internal procedures or other relevant security and protection measures, who fail to take the legal measures for ensuring a safe and healthy work environment within the company. 

In practice, usually the appointed health and safety responsible person within the company is being held criminally liable for failure to take labour health and safety measures alone or together with the company. However, should the senior management overlook or fail to implement the recommendations of the appointed health and safety responsible person, their criminal liability may be triggered instead. 

Non-compliance with labour health and safety measures – any persons within the company that might breach the health and safety measures/procedures/protocols. 

By reference to the previous article, this offence applies to a broader spectrum of company employees, including senior management, company executives, but also any other employees who breach the company’s internal procedures and protocols whereby certain obligations and measures are imposed under their control. 

Preventing the fight against diseases – senior management personnel who fail to observe the recommendations of the Ministry of Labour and Social Protection or other recommendations and/or obligations imposed by Presidential decrees or Military Ordinances. Please note that sanctions may only be imposed if COVID-19 is spread as a result.

Potential penalties for the company 

Failure to take labour health and safety measures – criminal fine between approx. EUR 2,500 and EUR 250,000, irrespective whether perpetrated with intent or negligently. 

Non-compliance with labour health and safety measures – criminal fine between approximately EUR 2,500 and EUR 250,000 irrespective of whether perpetrated intentionally or negligently. 

Preventing the fight against diseases – criminal fine between approx. EUR 2,500 and EUR 250,000 irrespective of whether perpetrated intentionally or negligently. In case of one or more persons suffer a bodily harm, the penalty is a criminal fine between EUR approx. 3,700 and EUR 310,000. In the case of one or more fatalities, the penalty is a criminal fine between approx. EUR 5,000 and EUR 430,000.

Ancillary penalties (effective after conviction) may also apply, including:

• Dissolution of the legal entity;
• Suspension of the legal entity’s activity for between three months and three years;
• Prohibition of the legal entity’s participation in public procurement procedures for between one and three years;
• Shutting down the legal entity’s offices for between three months and three years;
• Placing the legal entity under judicial supervision; and
• Publication of the sanctioning decision.

Potential penalties for its employees, executives and senior management

Failure to take labour health and safety measures – imprisonment from 6 months to 3 years or a criminal fine (between approx. EUR 370 and EUR 31,000), if perpetrated with intent. Imprisonment from 3 months to one year or a criminal fine (between approx. EUR 250 and EUR 25,000), if perpetrated negligently.    

Non-compliance with labour health and safety measures – imprisonment from 6 months to 3 years or a criminal fine (between EUR approx. 370 and EUR 31,000) if perpetrated with intent. Imprisonment from 3 months to one year or a criminal fine (between approx. EUR 250 and EUR 25,000), if perpetrated negligently.     

Preventing the fight against diseases – imprisonment from one to 5 years, if perpetrated with intent, or imprisonment from 6 months to 3 years or a criminal fine (between approx. EUR 370 and EUR 31,000), if perpetrated negligently. In case of one or more persons suffering a bodily harm, the penalty is imprisonment from 2 to 7 years and ban to exercise certain rights (if perpetrated with intent) or one to 5 years and a ban to exercise certain rights (if perpetrated negligently). In the case of one or more persons dying, the penalty is imprisonment from 5 to 12 years and a ban to exercise certain rights (if perpetrated with intent) or imprisonment from 2 to 7 years and a ban to exercise certain rights (if perpetrated negligently). The ban to exercise certain rights is an ancillary penalty which may be applied together with the primary penalty (e.g. imprisonment or fines). The court may order these bans for a period of one to five years and such prohibitions become effective after the individual serves the primary sentence. The court has discretion to choose from 15 specific rights provided by the Romanian Criminal Code. The most relevant ones to the COVID-19 outbreak are: the right to hold a specific position, to exercise a specific profession or to perform the activity used to perpetrate the crime; the right to leave Romanian territory; the right as a foreign citizen to stay in Romania and the right to vote and to stand as a candidate at elections. For certain crimes, including preventing the fight against diseases in aggravated form which is particularly relevant to the COVID-19 pandemic, a prohibition on exercising certain rights becomes a mandatory sentence for the court to impose.

According to the press, at least two criminal cases have been instigated against the management of public hospitals or doctors within these hospitals for the crimes of abuse of office and preventing the fight against diseases as they failed to take the appropriate measures to stop the spread of COVID-19. In one case, it is alleged that the management failed to provide masks, protection gloves and other protection equipment (PPE) to the doctors treating patients infected with COVID-19. 

According to an article published by a highly regarded journalist, a private network of dialysis centres has been fined approx. EUR 6,200 by the competent Public Health Department as it failed to comply with the recommendations received from the latter to prevent the spread of COVID-19 in one of its centres. The journalist further alleges that at least 80 patients were infected with COVID-19 in different private dialysis centres across the country. Although not expressly mentioned in the article, the prosecution offices may have started an investigation ex officio in respect of these cases for the perpetration of the crime of preventing the fight against diseases, as appropriate measures were not taken.   

Also, according to a press release issued by the Ministry of Health, as of 3 May 2020, the prosecution offices have instigated 519 criminal cases for perpetrating the crime of preventing the fight against diseases. These cases target individuals who failed to comply with the quarantine or home isolation measures, which lead to the spread of the virus within Romania. 

On 10 March 2020, the Ministry of Labour and Social Protection issued a press release detailing the measures to be implemented to prevent the spread of COVID-19. The Ministry expressly recommends the following additional measures to businesses that continue to operate during the pandemic:

• perform an analysis at the level of each employer in order to prioritize the essential or relevant services as opposed to the non-essential ones;
• order additional measures to ensure employees’ health and safety (e.g. provide masks and gloves);
• determine the nature and risk level for any activity likely to pose a risk of exposure to COVID-19, establish measures to limit such exposure and immediately inform the competent Public Health Department, as the case may be;
• make use of email and telephone conferences to reduce physical contact and business traveling, unless they are of paramount importance; 
• monitor the situations of employees who show specific symptoms associated to COVID-19, take the appropriate measures such as informing the competent Public Health Department to perform the epidemiological enquiry, as well as the other employees about the risks they are exposed to.

As it is impossible to identify every sub-type of claim that could be brought or asserted in every circumstance, just as in other jurisdictions, key categories and risks of claims from employees and customers or business partners arising from breaches of the above restrictions and regulatory requirements have been identified 

Claims by staff relating to unsafe working conditions

Employees could file claims against their employer if the latter (i) fails to provide them with PPE (e.g. mask, protection gloves), (ii) fails to inform and instruct them on how to prevent and limit the spread of COVID-19, (iii) organises unnecessary meetings with physical attendance or (iv) does not provide them with hygienic and sanitary goods (e.g. disinfectant, soap, paper towels). Employees may also argue that they have suffered mental health issues and stress as a result of having to attend work and expose themselves to the virus. 

Considering that certain restrictive lockdown measures taken during the state of emergency are beginning to ease, companies should be aware of the obligations and recommendations that they continue to bear in the following period. To this end, business travel should be limited to urgent matters and in-person staff meeting should be kept to a minimum. 

One key aspect to consider in the following period is to create internal procedures together with the occupational health teams in order to ensure compliance with all recommendations issued by the competent authorities. The procedures should be communicated to employees in writing in order to mitigate the risk of claims in respect of an unsafe working environment.

Claims by members of the public

Such claims must be founded on breach of a duty owed by the business, whether established by statute, contract or otherwise. As this particular category of case mainly concerns companies who provided in-person services (e.g. transport, healthcare, tourism), such claims are the result of failure to ensure the appropriate working conditions.

Collective redress

Although not a very familiar concept in Romania, due to the fact that one event may cause damage to several individuals, it is possible for a company to face collective proceedings or a class action.