ORDER No. 689/2017 of May 31, 2017

to approve the procedure for granting the Specialized Technical Opinion on the business plan of foreign investors, in order to obtain a long-stay visa in Romania for carrying out commercial activities

Text in force as of 31 July 2017

Text updated through the LEX EXPERT legislative information product based on the amending normative acts, published in the Official Gazette of Romania, Part I, until 31 July 2017.

Basic act

#B: Order of the Minister for Business, Commerce and Entrepreneurship no. 689/2017

Amending acts

#M1: Order of the Minister for Business, Commerce and Entrepreneurship no. 870/2017

Changes and additions made by the modifying act are written in italic font. Before each change or addition is indicated the normative act that made the modification or completion in the form #M1.

#B

Considering:

- the provisions of Government Emergency Ordinance no. 1/2017 for the establishment of measures in the field of central public administration and for the modification and completion of some normative acts, approved with amendments and completions by Law no. 129/2017;

- the provisions of art. 3 par. (2) Section C point 23 of the Government Decision no. 23/2017 on the organization and functioning of the Ministry of Business, Commerce and Entrepreneurship;

  • the provisions of art. 43 and 55 of Government Emergency Ordinance no.
    194/2002 regarding the foreigners regime in Romania, republished, with the subsequent modifications and completions,

under art. 9 par. (6) of the Government Decision no. 23/2017,

the Minister for Business, Trade and Entrepreneurship issues the following order:

ART. 1

It is approved the procedure for granting the specialized technical opinion on the business plan of foreign investors in order to obtain the long-stay visa in Romania for carrying out commercial activities, provided in the appendix which is an integral part of this order.

ART. 2

The Commission established within the Ministry of Business, Commerce and Entrepreneurship will carry out the provisions of this Order.

ART. 3

On the date of entry into force, any provisions contrary to the provisions of this Order shall cease to apply.

ART. 4

This Order shall be published in the Official Gazette of Romania, Part I.

APPENDIX

PROCEDURE

granting specialized technical approval on the business plan of foreign investors in order to obtain a long-stay visa in Romania for carrying out commercial activities

ART. 1

Preamble

  1. The Ministry of the Environment, Commerce and Entrepreneurship (M.M.A.C.A.) is the central public authority competent to issue, on the basis of Art. 3 par. (2) Section C point 23 of the Government Decision no. 23/2017 regarding the organization and functioning of the Ministry of Business, Commerce and Entrepreneurship, the specialized technical opinion on the business plan of foreign investors, in order to obtain a long-stay visa in Romania for carrying out commercial activities, according to art. 43 of Government Emergency Ordinance no. 194/2002 on the foreigners regime in Romania, republished, with the subsequent modifications and completions, as well as the document attesting the implementation of the investment, according to art. 55 of the same normative act.

  2. At the level of M.M.A.C.A., by order of the Minister, such committees shall be established:

- an analysis and evaluation committee consisting of 3 persons, of which 1 person is appointed chairman, and 2 alternates;

- appeal resolution committee, consisting of 2 members and 1 alternate member who did not participate in the evaluation process.

They will also be designated:

- a person in charge of taking up the application for the issue of the technical opinion / certificate and the accompanying documents, a person who is not a member of the appeal resolution committee and does not participate in the analysis and evaluation process;

- a person who will provide the secretariat of the committees.

ART. 2

Granting conditions

  1. In order to obtain the specialized technical opinion, the interested foreign citizen must fulfill the following conditions:

  1. to be the associate / shareholder of the company to be eligible for the investment;

  2. to hold and exercise management powers in the company to be eligible for the investment;

  3. to have the necessary funds to carry out the activity of at least EUR 100,000 for the foreigners associated with a limited liability company and at least EUR 150,000 for the foreign shareholders of a joint stock company;

  4. to invest at least EUR 100,000 in capital or technology in the company in which it is a partner and create at least 10 new full-time jobs within 12 months of the date of obtaining the residence permit if it holds the status of associate of a limited liability company or invest at least EUR 150,000 in capital or technology in the joint stock company in which it is a shareholder and create at least 15 new full-time jobs within 12 months of the date obtaining the residence permit if it holds the shareholder of a joint stock company;

  5. that the investment project is necessary, pertinent and useful for the development of the authorized activity to be carried out, demonstrate the technical-economic efficiency, profitability, sustainability and viability for at least 3 consecutive years to the one in which the investment was completed;

  6. the company to be eligible for the investment does not have debts to the consolidated general budget and to the local budgets, both for the social / professional headquarters, branches, subsidiaries, and for all lucrative facilities;

  7. the company to be eligible for the investment is not in a state of dissolution, judicial reorganization, liquidation, forced execution, operational closure, insolvency, bankruptcy or temporary suspension of the activity;

in the case of companies with 2 or more associates or shareholders requesting the issuance of the specialized technical opinion, it shall proceed according to the requirements of art. 43 par. (3) of Government Emergency Ordinance no. 194/2002, republished, as subsequently amended and supplemented.

#M1

  1. In order to obtain the specialized technical opinion for obtaining a long-stay visa in Romania for carrying out commercial activities, the foreign citizen must submit: a request for issuance of the specialized technical opinion (Form 1 stipulated in the appendix no. 1, which forms an integral part of these proceedings) in two copies signed by the company's administrator (or a proxy / power of attorney, as the case may be), accompanied by the following documents: #B

  1. a copy of the applicant's passport;

#M1

  1. the business plan (form 2, provided in Annex 2 which is an integral part of the present procedure) in original, signed on each page, to which there will be attached documents to certify the value of the cost elements presented in the plan.

#B

The business plan will need to demonstrate the need for investment, as well as the timing of creating and engaging new full-time jobs. Also, in the business plan, each expense must be justified in order to demonstrate the necessity of its realization in carrying out the activities for which approval of the investment is requested;

  1. original account statement issued by a Romanian bank in the name of the natural person who is a foreign citizen requesting the opinion and confirming the availability of the amounts necessary for the investment in the amount provided by art. 43 of Government Emergency Ordinance no. 194/2002, republished, as subsequently amended and supplemented;

#M1

  1. copy of the last company's articles of association;

#B

  1. the copy of the latest balance sheet recorded at the National Agency for Fiscal Administration (ANAF) and the last monthly trial balance of the, if any;

  2. Notary Proxy / Power of Attorney for filing the documentation and issuing the opinion, if the depositor is a person other than the associate / shareholder / administrator of the company. If the power of attorney is issued by foreign authorities, it will be apostilled / legalized in accordance with the legal provisions in force;

  3. the copy of the identity document of the depositor;

  4. supporting documents for proving the quality of associate / shareholder in companies with a history of operation (where applicable) including a detailed statement of the company issued by the National Trade Register Office (O.N.R.C.) and valid on the date of filing;

  5. documentary evidence of payment;

#M1

  1. certificates of fiscal attestation, in original or copy, issued in accordance with the legal provisions regarding the fulfillment of the obligations to pay the taxes, duties and debts to the consolidated general budget or, as the case may be, to the local budgets -both for the social / professional headquarters, branches, subsidiaries, and for all lucrative facilities.

#B

  1. The purchased assets must meet the following conditions:

  1. may be fixed assets or inventory items, in accordance with the legislation in force, and shall be included in the fixed assets of the company. It is not allowed to purchase the assets that have been object of subventions / non-reimbursable financing or the leasing system;

  2. must be new (except for buildings);

  3. the assets consisting of spaces for carrying out the activity will be recorded in the land book for which will be proved with the land book extract.

ART. 3

Attestation of Business Plan Implementation

With a view to the issuance of the document proving the completion of the business plan (Form 4, provided in Annex 4 which is an integral part of the present proceedings), with a view to extending the right of residence in Romania, according to art. 55 of Government Emergency Ordinance no. 194/2002, republished, with the subsequent amendments and completions, the foreign citizens will submit to the headquarters of the M.M.A.C.A. an application for the issue of the attestation (form 1), together with the following documents:

  1. a copy of the applicant's passport;

#M1

  1. the specialized technical opinion on the business plan of the foreign investors previously approved (transposed in the form 2), signed on each page;

  2. the copy of the last company’s articles of incorporation;

#B

  1. certificate of company details issued by O.N.R.C and valid on the date of filing;

  2. Notarial proxy /power of attorney for filing the documentation and issuing the attestation, if the depositor is a person other than the associate / shareholder / administrator of the company. If the power of attorney is issued by foreign authorities, it will be apostilled / legalized in accordance with the legal provisions in force;

  3. Copy of the identity document of the depositor;

#M1

  1. documents justifying the investment in accordance with the approved business plan (original or certified copies "according to the original"), as the case may be:

#B

- the last annual financial statement (balance sheet) registered at A.N.A.F., as well as the related balance trial;

  • fixed asset sheet;

- beneficiary’s own statement that the purchased / acquired asset (s) is / are new and put into service at the site of the project implementation;

- documentary evidence of the ownership / use of the premises purchased through the project, entered in the land book (purchase contract, land book extract, tabulated pre-sale-purchase agreement), and for the spaces made of prefabricated elements, proof of ownership in the property / use of land registered with the notary / town hall / fiscal body, town planning certificate, building permit (if applicable), land registry extract will be submitted;

- asset valuation report certified by an expert authorized by the National Association of Authorized Valuators in Romania.);

- supporting documents on the ownership of means of transport: identity card, registration certificates, compulsory insurance;

#M1

  • supporting documents regarding the acquisition and payment of assets:

  1. procurement contract;

  2. payment order and statement of account signed by the issuing bank, showing the payment, according to the contract.

#B

For the newly created jobs within the project, the proof of their creation will be with the registered full-time employment contract concluded for an indefinite period.

Subsequently, throughout the monitoring period, proof will be provided that they are maintained, with the documents provided by the legislation in force (REGES extract from REVISAL and Employee Report from REVISAL) for at least 10 jobs in the case of the associate in limited liability companies and minimum 15 jobs in the case of shareholder in joint-stock companies.

ART. 4

Submitting the file #M1

All documents submitted must be valid on the date of submission of the application for issue of the specialized technical certificate / opinion. The file will have as a first page a copy of the documents listed in art. 2, respectively art. 3 of this proceeding. The order of the documents in the file will follow the sequence in the articles mentioned, and the content will be based on this sequence. Each file of the dossier will be numbered and signed by the applicant / empowered. On each copy, next to the signature, it will be marked "according to the original". The filing will be made on the basis of the notarial power of attorney / proxy for the submission of the documentation and the release of the opinion /certificate, if the depositor is a person other than the applicant. If the power of attorney is issued by foreign authorities, it will be apostilled / legalized in accordance with the legal provisions in force. After the settlement of the request, irrespective of the issued solution, the file will remain in the M.M.A.C.A archive.

#B

  1. Applicants will submit the application for the issuance of the technical certificate / opinion together with all the necessary documentation at the premises of M.M.A.C.A on Mondays, Tuesdays and Wednesdays, between 10.00 - 14.00. The handing over of the complete file, made in accordance with the provisions of the present procedure, will be made to the designated person to receive the documents. If the person responsible for taking over the documents is unavailable, his / her duties will be taken over by the Secretary. The issue of the original certificate / opinion will be issued every Thursday from 10.00 to 14.00 on the basis of the identity document.

ART. 5

Monitoring the implementation of the investment

  1. In order to issue the document proving the fulfillment of the obligations assumed by the business plan, the representatives of M.M.A.C.A. will proceed to site-level verification of the investment. These verifications will cover the stage of realization of the investment, the reality, the legality and regularity of the economic and financial operations. During the checks carried out at the place where the enterprise has made the investment and at the registered office, the designated inspection team must have access to the original accounting documents reflecting the investment and respecting the business plan for which the technical expertise was previously obtained. If, following the verifications made by the representatives of M.M.A.C.A. or upon notification to the competent control bodies of the state, it is found that the beneficiaries made incomplete and / or non-conforming declarations in order to obtain the opinion or changed the destination of the investment or it is noticed that the conditions set out in the business plan, the letter of revocation of the technical opinion / certificate (form 5, provided in Annex 5, which forms an integral part of the present proceedings) will be sent within 15 days of the completion of the committee report.

  2. The letter of revocation of the special technical opinion / certificate shall be communicated ex officio and to the competent authorities in the management of the legal stay of the foreign citizens in Romania.

  3. The field inspection is carried out by M.M.A.C.A. at least once a year, for 3 years starting from the year following the issue of the technical opinion / certificate.

ART. 6

Solving the request for endorsement / certification

(1) Analysis of the file, administrative checks and eligibility as well as those relating to: the veracity and consistency of the information included in the business plan, the correlation of the financial statements with the business plan, the explicit and detailed completion of all the fields of the business plan, the concordance of the investment related NACE code and the activities proposed in the business plan and the supporting documents shall be made by the commission within 15 working days from the date when the dossier is complete. If the committee finds the necessity of completing or clarifying the final solution to the submitted application, it will be communicated to the applicant who will have a 10-day working day to submit it to the M.M.A.C.A registered office. The filing will be done through the procedure of submitting / taking over the documents described in art. 4 of this Procedure. Failure to complete the clarifications required in time leads to rejection of the application.

  1. In order to verify the veracity of the information and documents, the commission may request confirmation of the documents by the issuing institutions and may perform on-the-spot checks. Verification of the quality of associate / shareholder with management attributions is also made by querying the O.N.R.C. database.

  2. The result of the analysis within the committee shall be communicated to the applicant within the legal term of 30 days. The committee report will have one of the following solutions:

  1. administrative acceptance and technical and economic efficiency of the business plan and issue of the technical opinion / certificate (Form 3, set out in Annex 3, which forms an integral part of the present procedure, or Form 4 , as the case);

  2. rejection of the project / revocation of the opinion, if following the verifications the non-fulfillment of the criteria mentioned in par. (1).

The Committee established within the M.M.A.C.A. will notify the applicant, within 15 working days of the completion of the committee report, of the solution adopted and the release of the original document will be made every Thursday from 13.30 to 15.30.

  1. The appeal against the decision of rejection of the project / revocation issued by the Analysis Committee shall be made in writing and shall be submitted within 15 days from the date of receipt of the decision to reject the project, and the applicant shall receive the reply of the appeal commission within 15 days of receipt of the appeal. The appeal may be sent by post, with acknowledgment of receipt, at the premises of M.M.A.C.A.

The appeal shall mandatorily comprise:

  1. identification data of the applicant;

  2. the object of the appeal;

  3. the factual and legal grounds on which the complaint is based;

  4. the evidence on which it is based;

#M1

  1. the signature of the legal representative.

#B

  1. If the rejection decision is to be maintained by the appeal committee, the applicant has the right to lodge a complaint with the competent administrative court, in accordance with the provisions of the Law on administrative contentious no. 554/2004, as amended and supplemented.

ART. 7

Confidentiality

The supporting documents submitted by the applicants are confidential, the members of the committees established within the M.M.A.C.A. having the obligation not to disclose the information mentioned therein to third persons, unless the information is provided to the competent bodies of the state in the exercise of their attributions, in compliance with the provisions of Law no. 677/2001 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as subsequently amended and supplemented, and Regulation (EU) 2016/679.

Agenția pentru Întreprinderi Mici și Mijlocii,

Atragere de Investiții și Promovare a Exportului - PLOIEȘTI

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Guvernul României

Uniunea Europeana

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