04BUCHAREST3560 / 2004-12-30 15:22:00
Embassy Bucharest
                UNCLAS SECTION 01 OF 13 BUCHAREST 003560 
E.O. 12958: N/A 
REF: STATE 250356 
A. Openness to Foreign Investment 
Encouraging Investment 
Romania actively seeks foreign direct investment.  A new 
center-right government that assumed power in late 
December 2004 has emphasized its desire to make Romania 
a more attractive investment destination and to improve 
aspects of the business climate.  To date, despite 
Romania's marketplace of 21.7 million consumers, a well- 
educated workforce, and abundant natural resources, 
investment remains below potential.  Favored areas for 
American investment include IT and telecommunications, 
biotechnology, manufacturing, and consumer products. 
Romania is moving to lower tax rates and strengthen tax 
administration, enhance transparency, and create legal 
means to resolve contract disputes expeditiously.  Until 
recently, legislative unpredictability continued to 
undermine investor confidence.  Prospective U.S. 
investors should consult legal counsel to receive up-to- 
date legal information. 
Successful U.S. companies tend to establish a local 
presence to familiarize themselves with the business 
climate.  Using this expertise, firms develop longer- 
term strategies and commitments necessary for building 
lasting partnerships with the Government of Romania 
(GOR), local government authorities, labor unions, and 
local partners.  These partnerships can ameliorate 
potential resistance to foreign investment that remains 
in some quarters, including nationalistic officials, 
workers fearful of losing their jobs, some managers of 
state-owned enterprises who are not accustomed to market 
economy business practices, and some local companies 
resisting competition through corrupt connections and 
Investments that involve the public authorities (GOR 
ministries, local public authorities) are generally more 
complicated than greenfield investments or joint ventures 
with private Romanian companies.  Large deals involving the 
GOR - particularly public-private-partnerships- have been 
stymied by vested political and economic interests and 
bogged down by inaction within and lack of coordination 
among governmental ministries.  Privatizations by lesser- 
known buyers have been at times obstructed by the 
privatization agency's failure to honor its commitments or 
take other actions consistent with the best interests of the 
privatized enterprise. 
EU Accession 
Romania has worked to create a legal framework 
consistent with a market economy and investment 
promotion, and is moving ahead with EU-compatible 
legislation in its quest to join the European Union. 
Implementation lags, however.  With an increasing number 
of EU-driven pieces of legislation, it is at times hard 
for Romania to balance its EU accession goals with its 
WTO undertakings.  To date, Romania has added into its 
national legislation over 2000 primary and secondary 
pieces of legislation from the EU acquis. 
Romania provisionally closed pre-accession negotiations 
with the EU in December 2004.  Pending continued 
progress in complying with membership criteria, Romania 
is to become a EU member on January 1, 2007.  However, 
the EU added a safeguard clause into Romania's Accession 
Treaty, which enables the EU to postpone Romania's 
accession by one year, to January l, 2008, if there is 
clear evidence that Romania is manifestly unprepared to 
meet the requirements of EU membership. 
The U.S. Department of Commerce recognized Romania as a 
market economy for anti-dumping investigation purposes 
in March 2003.  Romania also received functioning market 
economy status from the EU in October 2004, thus meeting 
a necessary condition for EU membership.  However, 
Romania's ability to withstand competitive pressures 
after EU accession remains a concern. 
Legal Framework 
Romania's legal framework for foreign investment is 
contained in a substantial body of law, largely passed 
in the late 1990s and subject to frequent revision 
since.  Local counsel should be engaged to navigate 
through the various laws, decrees, and regulations. 
Romanian legislation and regulation provides national 
treatment for foreign investors, guarantees them free 
access to domestic markets, and allows foreign investors 
to participate in privatizations.  There is no limit on 
foreign participation in commercial enterprises. 
Foreign investors are entitled to establish wholly 
foreign-owned enterprises in Romania (although joint 
ventures are more typical) and to convert and repatriate 
100 percent of after-tax profits.  Foreign firms are 
allowed to participate in the management and 
administration of the investment, as well as to assign 
their contractual obligations and their rights to other 
Romanian or foreign investors. 
Foreign investors may engage in business activities in 
Romania via any of the following methods: 
- Setting up new commercial companies, subsidiaries or 
branches, either wholly owned or in partnership with 
Romanian natural or legal persons; 
- Participating in the increase of capital of an 
existing company or the acquisition of shares, bonds, or 
other securities of such companies; 
- Acquiring concessions, leases or agreements to manage 
economic activities, public services, or the production 
of subsidiaries belonging to commercial companies or 
state-owned public corporations; 
- Acquiring ownership rights over non-residential real 
estate improvements, including land, via establishment 
of a Romanian company; 
- Acquiring industrial or other intellectual property 
- Concluding exploration and production-sharing 
agreements related to the development of natural 
Foreign investor participation can take the form of 
foreign capital, equipment, means of transport, spare 
parts and other goods, services, intellectual property 
rights, technical know-how and management expertise, or 
proceeds and profits from other businesses carried out 
in Romania.  Foreign investment must comply with 
environmental protection, national security, defense 
interest, public order, and public health regulations. 
Romania has made significant progress in privatizing 
industrial companies.  To date, less than 5% of the 
industrial assets are still state-owned.  Privatization 
in the energy sector also has progressed, with the 
privatization of national oil company Petrom, two energy 
distribution companies, and two natural gas distribution 
companies.  Romania has granted some companies involved 
in energy privatizations with safeguards against paying 
for environmental remediation resulting from past 
Under current law, the government ministry or agency 
that has authority over a state-owned company (the State 
Asset Resolution Authority (AVAS), the Ministry of 
Economy and Commerce, Ministry of Transportation, 
Ministry of Communications and IT, or in some cases, 
local government) also has the authority to privatize 
it.  The law on privatization requires the setting up of 
pre-privatization management team to facilitate 
restructuring of the company and eventual privatization. 
The law permits the responsible authority to hire an 
agent to handle the entire privatization process. 
Buyers of state-owned companies must negotiate 
requirements and restrictions concerning the company's 
purpose, scope of activities, turnover, and social 
protections in the form of limited layoffs or funding 
for retraining programs.  Privatizing agencies continue 
the practice of rolling into privatization agreements 
provisions of previously negotiated collective labor 
agreements, which are labor-protective and restrict 
layoffs.  Prospective investors are strongly advised to 
make a thorough due diligence review before any 
Property and Contractual Rights 
Property and contractual rights are recognized, but 
enforcement through the judicial process can be 
extremely difficult, costly, and lengthy.  Foreign 
companies engaged in trade or investment in Romania 
often express concern regarding the lack of commercial 
experience of Romanian courts.  Judges generally have 
little experience in the functioning of a market 
economy, international business methods, intellectual 
property rights, or the application of new Romanian 
commercial law. 
B.  Conversion and Transfer Policies 
Romanian legislation does not restrict the conversion or 
transfer of funds associated with direct investment. 
All profits made by foreign investors in Romania may be 
converted into hard currency and transferred abroad at 
the market exchange rate after payment of taxes. 
However, some conversion and transfer procedures can be 
time-consuming due to Romanian bureaucracy. 
The Leu is freely convertible on current-account 
transactions, in accordance with the IMF's Article VII. 
Proceeds from the sale of shares, bonds, or other 
securities, as well as from the conclusion of an 
investment, can also be repatriated.  There is no 
limitation on the inflow or outflow of funds for 
remittances of profits, debt service, capital gains, 
returns on intellectual property or imported inputs. 
In February 1998, the Romanian government implemented new 
regulations that liberalized foreign exchange markets. 
However, procedural delays in processing capital outflows 
remain, mainly from the lack of a domestic inter-bank 
electronic system, which is under development and scheduled 
to become operational in 2005. 
Capital inflows are relatively free from restraint. 
Only the opening of the ROL deposits by non-residents 
still requires approval by the Central Bank, in order to 
prevent inflows of "hot money" from abroad, but this 
restriction is expected to be removed in April 2005 as 
capital account liberalization advances.  According to 
Romania's agreements with the European Union and 
international financial organizations, Romania will 
gradually implement such liberalization prior to 
Romania's accession to the EU (i.e. enable  ROL- 
denominated deposit accounts to be opened by foreigners 
with resident financial institutions, and  current and 
deposit accounts by residents abroad). 
C.  Expropriation and Compensation 
The law on direct investment includes a guarantee 
against nationalization and expropriation or other 
equivalent actions.  The law allows investors to select 
the court or arbitration body of their choice to settle 
potential litigation.  Since 1989, there have been two 
American expropriation claims, one arising from a 
controversial privatization and the other the 
nationalization of an investor's assets.  Several cases 
involving property nationalized during the communist era 
remain unresolved. 
Investors should be aware, when purchasing land or a 
former state-owned company, that in those cases where a 
former owner wins title to a privatized asset, it may be 
restituted in kind and the investor compensated by the 
public institution that privatized it.  If restitution 
is not possible in kind, the public institution must 
compensate the former owners.  In either case, the 
current or former owners run the risk of less than fair 
market value compensation.  Prospective investors must 
conduct a careful due diligence review encompassing 
potential restitution claims. 
D.  Dispute Settlement 
Romania recognizes the importance of arbitration in the 
settlement of commercial disputes.  Many agreements 
involving international companies and Romanian 
counterparts provide for the resolution of disputes 
through third-party arbitration.  Romania is a signatory 
to the New York Convention of 1958 regarding the 
recognition and execution of foreign arbitration awards. 
Romania is also a party to the European convention on 
international commercial arbitration concluded in Geneva 
in 1961 and a member of the International Center for the 
Settlement of Investment Disputes (ICSID). 
Romanian law and practice recognize applications to 
other internationally known arbitration institutions, 
such as the ICC Paris Court of Arbitration or the Vienna 
United Nations Commission on International Trade Law 
(UNCITRAL).  Romania also has an International Commerce 
Arbitration Court administered by the Chamber of 
Commerce and Industry of Romania (the "Arbitration 
Court").  Arbitration awards are enforceable through 
Romanian courts under circumstances similar to those in 
Western countries. 
Romania's bankruptcy law contains provisions for 
liquidation and reorganization that are generally 
consistent with western legal standards.  These laws 
usually emphasize enterprise restructuring and job 
preservation.  Legal and economic education and the 
training of judges and lawyers lags behind law-making, 
which often results in inconsistent outcomes. Moreover, 
social concerns often prevail over economic reasoning, 
resulting in the survival of overstaffed loss-making 
companies which should otherwise be dissolved. 
To mitigate the time and financial costs of 
bankruptcies, Romanian legislation provides for 
administrative liquidation as an alternative to 
bankruptcy.  However, investors have complained that the 
liquidators lack the competence and incentive to 
expedite liquidation proceedings.  For state-owned loss- 
making companies, state subsidies, accumulation of 
arrears, debt rescheduling and debt-for-equity swaps are 
the preferred alternatives to putting such companies 
through insolvency or bankruptcy procedures.  Both state- 
owned and private companies tend to opt for judicial 
reorganization to avoid bankruptcy. 
E.  Performance Requirements/Incentives 
Since 1991, Romania's legislation has seesawed between 
granting, amending and suspending investment incentives. 
The availability of incentives is dependent on the economic 
situation, with the government at times suspending 
incentives in order to tighten fiscal policy.  To meet the 
requirements of the EU body of law termed the "acquis 
communitaire" (short form: the "acquis"), Romania is 
revisiting its fiscal incentives to bring them in line with 
the EU state aid regulations.  Investors are encouraged to 
verify the current status of investment incentives. As a 
general rule, new fiscal regulations do not grandfather past 
As Romania prepares for EU accession, customs and tax 
incentives are being phased out for investors in free 
trade and economically disadvantaged zones.  In line 
with the revised state-aid law, Romanian has capped the 
state aid available for major investments based on the 
investment size and location.  The state aid available 
through incentives for companies in free trade zones and 
disadvantaged zones has been capped at 50% of the 
investment, and likewise state aid for small and medium- 
sized enterprises (SMEs) to 65% of the investment. 
Prospective investors are advised to investigate 
thoroughly the current status of fiscal incentives and 
consider possible future changes resulting from EU 
accession negotiations when drafting business and 
investment plans. 
To reduce initial startup costs, a system of industrial 
parks and technological parks is being created.  Tax 
incentives are available under the law solely for the 
industrial park operator, while companies that establish 
themselves in the park benefit from access to utility 
hookups and infrastructure, and eventual local tax 
rebates within state aid caps. 
Tax System 
Romania has revised its tax system to bring it closer to 
EU models and more in line with the recommendations of 
the World Bank and IMF. 
In December 2004, a new government amended the Fiscal 
Code by emergency ordinance, abolishing tax brackets and 
establishing a 16% flat tax on personal incomes. 
Corporate taxation will likewise be reduced from 25% to 
16%.  Both of the measures are to come into force 
beginning January 1, 2005.  Offsetting these cuts is an 
increase in the micro-enterprise tax from 1.5% to 3%, 
and a rise of the tax on dividends obtained by 
individuals from 10% to 15%, in line with the corporate 
dividend tax of 15%. 
Tariff Preferences 
Like many other Central and Eastern European countries, 
Romania provides tariff preferences for EU goods under 
its association agreement with the EU.  In 2003, Romania 
came under generalized system of preferences (GSP) 
scrutiny because of preferential tariff treatment 
(reverse preferences) it offers the EU, but no formal 
review was taken because Romania reduced its tariffs on 
Bourbon - the main U.S. industry petitioner.  However, 
Romania took no further action to reduce tariff 
preferences for other U.S. products, and may actually 
raise some of the tariffs previously reduced.  In June 
2004, a pharmaceutical company petitioned USTR for 
review of Romania's GSP status. 
--------------------------------------------- ----- 
F.  Right to Private Ownership; Establishing Firms 
--------------------------------------------- ----- 
The Romanian constitution, adopted in December 1991, and 
revised in 2003, guarantees the right to ownership of 
private property.  Mineral, air rights, and similar 
rights are excluded from private ownership.  At the 
present time, property can only be purchased by 
foreigners through their participation in a Romanian 
company.  As of January 1, 2007, EU citizens will be 
able to buy land without restrictions. 
Foreign investors involved with commercial companies 
having any foreign capital may acquire land or property 
necessary for fulfilling or developing the company's 
corporate goals.  If the company is dissolved or 
liquidated, the land must be sold within one year of the 
company's closure and may be sold only to a buyer(s) 
with the legal right to purchase such assets.  Foreign 
investors cannot purchase agricultural land at this 
time.  Under Law 268/2001, investors can purchase shares 
in agricultural companies that can lease land in the 
public domain from the State Land Agency. 
G.  Protection of Private Property Rights 
Law No. 190/1999 on mortgage loans for real estate 
investments allows a debtor's receivables to be used as 
a guarantee, and specifically addresses the protection 
of both borrowers and creditors, in an effort to 
minimize risk to the lender.  Domestic private and 
foreign capital banks and investment funds freely 
compete on the mortgage market with the state-supported 
Banca Comerciala Romana (BCR) and with the state-budget 
National Housing Agency (ANL).  Using its limited state 
budget resources, ANL targets young applicants and 
charges interest of 7% per annum in EURO for applicants 
under 35, and 9% for applicants over that age.  Banks 
charge an average 9.87% per annum for USD loans and 
9.185% for Euro loans, practice more flexible terms, and 
have greater resources available for mortgages. 
Usually, interest charged tracks LIBOR at six months for 
loans granted in USD and EURIBOR at six months for loans 
granted in Euro, with the addition of Romanian country 
Intellectual Property Rights 
Romania is a signatory to international conventions 
concerning intellectual property rights (IPR), including 
TRIPS, and has enacted legislation protecting patents, 
trademarks, and copyrights.  Romania signed the Internet 
Convention to protect on-line authorship.  While the IPR 
legal framework is generally good, enforcement is 
woefully weak.  Romania has passed border IPR control 
enforcement provisions as required under the WTO, yet 
customs authorities and border police controls remain 
equally lax.  As result of persistent problems in the 
enforcement of intellectual property rights, the U.S. 
Trade Representative (USTR) kept Romania on its Special 
301 Watch List for 2004.  High piracy levels continued 
across all sectors, optical disc piracy grew, and poor 
border enforcement led to a surge in imports of pirated 
material.  The situation is further exacerbated by the 
lack of resources dedicated to enforcement.  Prosecution 
of IPR violators is rare, and when cases are 
adjudicated, penalties meted out are light.  No one has 
gone to jail for IPR piracy. 
Romania is a party to the Paris Convention for the 
protection of industrial property and subscribes to all 
of its amendments.  Foreign investors are therefore 
entitled to the same treatment as Romanian citizens. 
Patents are valid for 20 years.  A patent application 
can be contested for six months.  A modern Patent Law 
(No. 64/91) broadens and clarifies the basis on which a 
patent is granted.  By GOR Decision 499 of May 2003, 
technical enforcement rules on the Patent Law came into 
force.  Several other laws (No. 129/92, on the 
protection of industrial drawings and designs; No. 
16/95, on the protection of integrated circuit designs, 
etc.) have helped bring Romanian patent legislation up 
to international standards.  Legislation providing for 
transitory ("pipeline") patent protection was enacted in 
early 1998.  The Romanian Parliament passed legislation 
to protect confidential drug test data submitted to 
regulatory authorities for marketing approval.  Law 123 
of April 2004 clearly articulates data exclusivity 
In 1998 Romania passed a new law on trademarks which is 
generally consistent with international standards. 
Areas that require improvement are administrative 
procedures and sanctions.  Romania is a signatory to the 
Madrid Agreement relating to the international 
registration of trademarks.  Trademark registrations are 
valid for 10 years from the date of application, and 
renewable for similar periods. 
Romania is a member of the Bern Convention on 
Copyrights.  Its 1996 law on protection of copyrights 
and neighboring rights is among the most modern in this 
field.  The Romanian parliament ratified the latest 
versions of the Bern and Rome conventions.  The Romanian 
Office for Copyright protection (ORDA) was established 
in 1997, and ostensibly oversees copyright enforcement. 
However, copyright law enforcement is a low priority for 
Romanian prosecutors, judges, police officers, and 
customs officers.  Some in government, including those 
responsible for enforcement, view copyright piracy as a 
"victimless crime."  This attitude, coupled with lack of 
resources, has resulted in weak enforcement of copyright 
law and the failure to prosecute and punish violators. 
Copyright infringement in software, music, and video is 
pervasive throughout Romania.  Although on a decline 
over the past few years, piracy rates are still high. 
Latest estimated piracy rates by sector are: 73% of 
business software; 95% of entertainment software; 56% of 
music; and 55% of video. 
Semiconductor Chip Layout Design 
Law No. 16/1995 protects semiconductor chip layout 
design.  In order to benefit from this law, the designs 
must be registered per GOR decision no. 535/1996 with 
the Romanian Trademark Office. 
H.  Transparency of the Regulatory System 
Cumbersome and non-transparent bureaucratic procedures 
are a major problem in Romania.  Foreign investors point 
to the excessive time it takes to secure necessary 
zoning permits, property titles, licenses, and utility 
hook-ups.  Furthermore, regulations change frequently, 
often without advance notice.  These changes, which can 
significantly add to the costs of doing business, make 
it difficult for investors to develop effective business 
Recognizing the need for more effective communication 
with foreign investors and Romanian private businesses, 
in April 2002 the GOR instituted a preliminary 
consultation procedure before drafting business-related 
legislation.  As a result, some ministries, such as the 
Ministry of IT and Communications, do consult with 
businesses, but not all.  The labor code adopted in 2003 
is a glaring example of the GOR's failure to consult 
with or listen to the business community.  The 
controversial code gives extensive new rights to labor 
unions and employees and is a significant impediment to 
new foreign direct investment.  Following general 
elections in November and December 2004, the GOR pledged 
to amend some aspects of the code, but whether it will 
be able to do so in the face of labor unions' objections 
remains to be seen. 
Many foreign investors feel they are unfairly targeted 
by Romanian tax authorities for audits and reviews and 
that Romanian authorities view them as "cash cows" that 
can be milked to fill government coffers.  Unlike most 
Romanian companies, foreign investors generally have 
good financial records, making investigation easier. 
Foreign investors also tend to be more conscious of the 
need to remain in compliance with local laws and 
regulations.  Despite the establishment of a new 
Minister Delegate for Control in June 2003 to coordinate 
the audits of the various ministries and government 
agencies, redundant or too-frequent audits and reviews 
continue to be a hindrance. 
The presence of large state-owned and government-subsidized 
enterprises in the economy is a major impediment to the 
efficient mobilization and allocation of investment capital. 
An EU-inspired law on state aid aimed to limit state aid of 
any form (direct state subsidies, debt rescheduling schemes, 
debt for equity swaps for utility arrears, or discount 
prices).  However, implementation of the law has been slow 
and preferential debt rescheduling (and on occasions 
forgiveness) by the GOR has continued. 
--------------------------------------------- --------- 
I.  Efficient Capital Markets and Portfolio Investment 
--------------------------------------------- --------- 
Capital Markets 
Romania seeks to develop efficient capital markets. 
Ordinance No. 18/93 and Government Decision No. 552/92 
established a National Securities Commission (CNVM) 
charged with regulating the securities market in order 
to protect investors.  The process provides for the 
registration and licensing of brokers and financial 
intermediaries, filing and approval of prospectuses, and 
approval of market mechanisms. 
Romania officially re-opened the Bucharest Stock 
Exchange (BSE) on June 22, 1995. On November 20, 1995, 
the stock exchange made its first transactions after a 
hiatus of 50 years.  The BSE operates a two-tier system 
that, at present, lists a total of 60 companies, with 
17 companies in the first tier.  The official index, 
BET, is based on a basket of the 10 most active stocks 
listed on the first tier.  The BSE has a home page at 
In September 1996, RASDAQ, an over-the-counter stock 
market, was inaugurated.  It is supported by several 
independent registries and is a depository for Romanian 
securities.  4,040 companies are listed on the RASDAQ, 
although less than 200 companies are actively traded on 
an average day.  RASDAQ has a home page at 
The BSE and RASDAQ are set to merge in 2005.  The new 
Capital Markets Law 297/2004 allows the Bucharest Stock 
Exchange to incorporate as a stock company, which 
permits its merger with the OTC-market, RASDAQ.  Once 
the National Securities Commission (CNVM) approves the 
merger and the technical plan, the consolidation process 
should require 5-6 months to complete. 
Despite the presence of two stock exchanges, Romanian 
capital markets have developed more slowly than might be 
expected.  This is due in part to legislative 
instability, non-transparent privatization, lack of 
performance and liquidity of most listed companies and 
poor corporate governance.  In 2002, the GOR issued 
several ordinances designed to increase liquidity and 
transparency and encourage portfolio investment.  The 
GOR also granted additional power to the National 
Securities Commission (CNVM).  Securities Collective 
Placement Organizations are now allowed to invest 
locally and internationally in foreign currency- 
denominated instruments. 
Tight competition has brought trading fees down, but 
listed volumes make it difficult to place large purchase 
orders.  This, in conjunction with non-transparent 
disclosures and the lack of annual audit reports, tends 
to discourage large institutional investors.  Country 
funds, hedge funds, and venture capital funds continue 
to participate actively in the capital markets. 
The Romanian government has responded to complaints by U.S. 
investment funds regarding the abuse of minority shareholder 
rights by including some protections in a 2002 GOR ordinance 
on securities, financial investments and regulated markets. 
The new reforms allow shareholders owning more than 10% of a 
stock to request a general shareholders meeting.  Dividend 
payments must now remain in effect six months after the 
announcement.  An ext
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