Will Ordinance 120 of October 4, 2021 be the basis for Romanian’s B2B E-Invoicing mandate?

Unofficial translation

EMERGENCY ORDINANCE no. 120 of October 4, 2021 regarding the administration, operation and implementation of the national system regarding the electronic invoice RO e-Invoice and the electronic invoice in Romania, as well as for the completion of the Government Ordinance no. 78/2000 on the homologation, issuance of the vehicle identity card and certification of the authenticity of road vehicles in order to introduce them to the market, make them available on the market, register or register in Romania, as well as market surveillance for them

Published in  the OFFICIAL MONITOR no. 960 of October 7, 2021

Considering the need to establish clear and sufficient rules regarding electronic invoicing, with a determining role in national legislative stability and efficiency, including by removing some legislative inadequacies that do not allow the application of the provisions of Directive 2014/55/EU of the European Parliament and of the Council of April 16, 2014 regarding electronic invoicing in the field of public procurement, transposed into national legislation by Law no. 199/2020 on electronic invoicing in the field of public procurement,taking into account the fact that the lack of legislative regulation of the mechanism by which Romania ensures that the authorities and contracting entities receive and process electronic invoices compliant with the European standard on electronic invoicing limits the right of economic operators in the public procurement process,since the adoption of this normative act corresponds to the public policy in the field of e-government and the objectives assumed by the Report on the macroeconomic situation for the year 2021 and its projection for the years 2022-2024, elaborated by the Ministry of Finance based on art . 35 para. (2) from Law no. 500/2002 on public finances, with subsequent amendments and additions,considering the fact that the regulations ensure the establishment of an effective mechanism for managing budgetary resources allocated to public institutions and authorities and contribute to strengthening administrative capacity and increasing the degree of collection of taxes and fees by redefining processes and using technology,because the promotion of this normative act is also determined by the need to concentrate the matter to which it refers, namely the single regulation of electronic invoicing, taking into account a level of predictability towards the business environment and the commensuration of future benefits,whereas the internal and international framework strongly marked by the pandemic crisis imposes a vision adapted to current realities and needs, determining the facilitation of access to public services through an extensive digitization of interactions with the public administration, respectively a transition from the current form to an electronic form that will allow the reduction of tasks administrative and environmental impact,taking into account the need to align with the wishes of the European Union regarding the strategy in the field of e-government and the adoption by the Government of Romania of the public policy in the field of e-government,considering the existing action plans at the level of the European Union with direct application in Romania that address topics such as e-procurement and e-invoicing, with a role in relaunching the European and national economy by making the most of digital technologies and the need to anticipate the factors that can disrupt the sustainable development of the economy,because the provisions of Law no. 199/2020 cannot be applied in the absence of operational regulations and rules that ensure the process of transmission, receipt and processing of electronic invoices by the authorities and contracting entities, in accordance with the European standards provided for in public procurement,considering the fact that there are major vulnerabilities in carrying out the provisions of this law, which could be equivalent, by way of consequence, to non-compliance with the provisions of the directive, it being possible to initiate infringement procedures and pecuniary condemnation of the state,considering the European context regarding the strategy in the field of digitization and fiscal policies, as well as the prospect of using electronic invoicing on all economic activity as a strategic element for economic transactions, an aspect also reiterated by the European Commission,because it is necessary to create a general framework for the regulation and operationalization of the electronic invoice in Romania, including for the achievement of the strategic objectives provided for in the Report on the macroeconomic situation for the year 2021 and its projection for the years 2022-2024, developed by the Ministry of Finance based on art . 35 paragraph (2) of Law no. 500/2002 , with subsequent amendments and additions, and the National Strategy against organized crime 2021-2024, approved by Government Decision no. 930/2021 ,taking into account the fact that the regulation of the national system regarding the electronic invoice in Romania represents a strategic objective in the equation of the moment, generated by the changes in the economic paradigm in the international pandemic situation and the need to achieve some levers to anticipate and regulate the economic mechanisms and the fiscal-budgetary policies,considering the fact that the anticipation of future vulnerabilities and the ability to adapt to the present require a legal framework that allows Romania to align with the action plans of the European Union, offering a firm and dynamic response to economic and social challenges,because it is necessary to regulate the structure of the electronic invoice in strict accordance with the European electronic invoicing standard and create the framework for the realization of the basic technical specifications of the electronic invoice in Romania, which will make it possible to apply the provisions of Directive 2014/55/EU of the European Parliament and of the Council of 16 April 2014 regarding electronic invoicing in the field of public procurement,taking into account the fact that, in the absence of these regulations, the technical requirements regarding electronic invoices would constitute barriers to the access of economic operators to public procurement contracts and obstacles to trade, being likely to prevent the exercise of fundamental freedoms, therefore having a direct effect on the functioning of the internal market,whereas the previously described measures aim at the public interest of ensuring the operation of a public service essential for the business environment, these constituting emergency and extraordinary situations, the regulation of which cannot be postponed, in the context of the unpredictable evolution of the pandemic in the next period and the extension of the state of emergency alert,since the fight against fraud in the trade of intra-community used cars represents one of the priority lines of action at the level of the National Fiscal Administration Agency, the case study demonstrated that the damage caused to the general budget of the state is significant and, in many cases, the VAT remains unrecoverable.Pursuant to art. 115 para. (4) from the Constitution of Romania, republished ,The Government of Romania adopts this emergency ordinance.

 

Chapter I Administration, operation and implementation of the national system regarding the electronic invoice RO e-Invoice and electronic invoice in Romania

 

Section 1 General Provisions

Article 1

The provisions of this chapter regulate the national system regarding the electronic invoice RO e-Invoice, as well as the electronic invoice at the national level.

 

Article 2

(1) For the purposes of this chapter, the terms and expressions below have the following meanings:

• a) electronic invoice – the invoice issued, transmitted and received in a structured electronic format of XML type, which allows its electronic and automatic processing;
• b) economic operator – any entity that carries out an economic activity consisting in the execution of works, the delivery of goods/products and/or the provision of services;
• c) issuer of the electronic invoice – the economic operator that issues the electronic invoice to the addressee and transmits it in the national electronic invoice system RO e-Factura;
• d) recipient of the electronic invoice – the economic operator, the contracting authority, the contracting entity and any other entity that receives the electronic invoice accompanied by the electronic signature of the Ministry of Finance in the national system regarding the electronic invoice RO e-Invoice;
• e) main elements of an electronic invoice – a set of essential components of information that an electronic invoice must contain to enable cross-border interoperability, including the information necessary to ensure legal compliance;
• f) semantic data model – a set of logically structured and interconnected terms, as well as their meanings, which specify the main elements of an electronic invoice in accordance with the European standard on electronic invoice;
• g) syntax – the machine-readable language or dialect used to represent the data elements included in an electronic invoice, in accordance with the European standard on the electronic invoice;
• h) syntactic links – guidelines on how a semantic data model for an electronic invoice could be represented in the different syntaxes;
• i) international standard regarding the electronic invoice – an international standard as defined in art. 2 para. (1) lit. a) from Regulation (EU) no. 1.025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardization, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/CE, 94/25/CE, 95 /16/CE, 97/23/CE, 98/34/CE, 2004/22/CE, 2007/23/CE, 2009/23/CE and 2009/105/CE of the European Parliament and of the Council and repealing Decision 87/95/EEC of the Council and Decision no. 1.673/2006/CE of the European Parliament and of the Council;
• j) European standard regarding the electronic invoice – special European standard for the semantic data model regarding the essential elements of an electronic invoice, as defined in art. 2 para. (1) lit. b) from Regulation (EU) no. 1,025/2012;
• k) the national specifications for the use of the electronic invoice – RO_CIUS – technical specifications for the use of the basic elements of the electronic invoice as provided for in the European standard SR EN 16931-1, applicable at the national level;
• l) subcontractor/subcontractor – the economic operator defined in art. 3 paragraph (1) lit. yy) from Law no. 98/2016 on public procurement, with subsequent amendments and additions, art. 3 paragraph (1) lit. zz) from Law no. 99/2016 on sector purchases, with subsequent amendments and additions, respectively art. 5 para. (1) lit. gg) from Law no. 100/2016 on work concessions and service concessions, with subsequent amendments and additions, who expressed the option to be paid directly under the terms of art. 218 of Law no. 98/2016 , with subsequent amendments and additions, respectively of art. 232 of Law no. 99/2016, with subsequent amendments and additions, and ofArt. 97 of Law no. 100/2016 , with subsequent amendments and additions;
• m) the relationship between an economic operator and contracting authorities, respectively contracting entities – B2G – the transaction between an economic operator that has the capacity of contractor or subcontractor/subcontractor pursuant to Law no. 98/2016 , with subsequent amendments and additions, Law no. 99/2016 , with subsequent amendments and additions, Law no. 100/2016 , with subsequent amendments and additions, and of Government Emergency Ordinance no. 114/2011 regarding the awarding of certain public procurement contracts in the fields of defense and security, approved with amendments and additions by Law no. 195/2012, as amended and supplemented, and contracting authorities or contracting entities that receive and process electronic invoices;
• n) the commercial relationship between two economic operators – B2B – the transaction having as its object the execution of works, the delivery of goods/products and/or the provision of services between two economic operators;
• o) the issuer of an electronic invoice in the B2G relationship – the economic operator in a relationship defined in letter m) who issues, based on a legal commitment, the electronic invoice and transmits it in the national electronic invoice system RO eFactura;
• p) the recipient of an electronic invoice issued in the B2G relationship – the contracting authority, the contracting entity or the centralized procurement unit with attributions in this regard according to the law, which receives the electronic invoice accompanied by the electronic signature of the Ministry of Finance in the national system regarding the electronic invoice RO e-Invoice .(2) The definitions from para. (1) is supplemented with those existing in Law no. 98/2016 , with subsequent amendments and additions, Law no. 99/2016 , with subsequent amendments and additions, Law no. 100/2016 , with subsequent amendments and additions, Government Emergency Ordinance no. 114/2011 , approved with amendments and additions by Law no. 195/2012 , with subsequent amendments and additions.

Section 2 National system regarding electronic invoice RO e-Invoice and electronic invoice in Romania

Article 3

(1) The Ministry of Finance, through the National Center for Financial Information, creates, develops and administers the national electronic invoice system RO e-Factura.

(2) The national system regarding the electronic invoice RO e-Invoice represents the set of principles, rules and computer applications aimed at receiving the electronic invoice from the issuer in compliance with the structure of the electronic invoice provided for in art . 4 para. (1) , storing invoices by electronic means and sending them to the recipient.

(3) The national electronic invoice system RO e-Invoice becomes operational within a maximum of 30 days from the date of entry into force of this emergency ordinance.

(4) The procedure for the use and operation of the national system regarding the electronic invoice RO e-Invoice shall be approved by order of the Minister of Finance within 15 days from the date of publication of this emergency ordinance in the Official Gazette of Romania, Part I.

Article 4

(1) The structure of the electronic invoice respects:

• a) the technical and usage specifications of the basic elements of the electronic invoice as provided for in the European standard SR EN 16931-1, which are applicable at the national level;
• b) the technical and usage specifications of the basic elements of the electronic invoice – RO_CIUS – and the specific operational rules applicable at national level;
• c) the semantic content as described in the SR EN 16931-1 standard, the syntaxes identified in CEN/TS 16931-2, in accordance with art. 2 para. (1) lit. j) , and the appropriate correlation defined in the applicable subpart of CEN/TS 16931-3.

(2) The main elements of the electronic invoice are:

• a) process and invoice identifiers;
• b) invoice date;
• c) information regarding the identification of the economic operator who delivered the goods/products, rendered the services or executed the works;
• d) information on the recipient of the electronic invoice;
• e) information on the beneficiary of the payment;
• f) information on the fiscal representative of the issuer;
• g) identification of the type of goods/products delivered, services provided or works performed;
• h) the reference to the public/sectoral procurement contract, concession of works and services, as well as, as the case may be, to the public procurement contract in the fields of defense and security;
• i) details regarding the execution of works, the delivery of goods/products or the provision of services;
• j) payment instructions;
• k) information on credits or debits;
• l) information on the positions on the invoice;
• m) VAT breakdown;
• n) the total invoice.

(3) The electronic invoice is submitted by the issuer in the national electronic invoice system RO e-Factura.

(4) In the situation where the electronic invoice sent complies with the structure provided for in para. (1) , the electronic signature of the Ministry of Finance is applied and communicated immediately to the recipient. The application of the electronic signature of the Ministry of Finance certifies its receipt in the national RO e-Invoice electronic invoice system.

(5) In the situation where the electronic invoice sent does not comply with the structure provided for in para. (1) , the issuer receives a message with the identified errors. After correcting the identified errors, the electronic invoice is transmitted within the same national system regarding the electronic invoice RO e-Factura.

(6) The original copy of the electronic invoice is considered the XML type file accompanied by the electronic signature of the Ministry of Finance.

(7) The date of communication of the electronic invoice to the addressee is considered the date on which the electronic invoice is available to him for downloading from the national system regarding the electronic invoice RO e-Factura. The addressee is notified of the electronic invoices received in the national RO e-Invoice electronic invoice system according to the procedure provided for in art. 3 paragraph (4) . The date of communication is accessible in the system and to the issuer of the electronic invoice.

(8) The electronic invoice communicated to the recipient cannot be returned in the national RO eFactura electronic invoice system.

(9) In the event of an electronic invoice to which the recipient has objections, he notifies the issuer of the electronic invoice, including in the national system regarding the electronic invoice RO e-Factura, by writing a message to this effect.

(10) The correction of the electronic invoice communicated to the recipient in the RO e-Invoice system is carried out according to art. 330 of Law no. 227/2015 on the Fiscal Code , with subsequent amendments and additions. The corrected electronic invoice is sent within the same national system regarding the electronic invoice RO e-Factura.

(11) By order of the Minister of Finance, the technical and usage specifications of the basic elements of the electronic invoice – RO_CIUS – and the specific operational rules applicable at national level are regulated within 15 days from the date of publication of this emergency ordinance in the Official Gazette of of Romania, Part I.

Section 3 Electronic invoicing in the field of public procurement

Article 5

Electronic invoicing in the field of public procurement is applied in the case of the existence of a B2G relationship, defined according to art. 2 para. (1) lit. m) , in the situation where the economic operators opt for the use of the national system regarding the RO e-Factura electronic invoice.

Article 6

The provisions of this chapter do not apply to electronic invoices issued as a result of the execution of contracts classified according to the law or if the award and execution of the public procurement contract required the imposition, according to the legal provisions, of special security measures to protect essential security interests of the state.

Article 7

(1) In the situation where the economic operator opted for the use of the national system regarding the electronic invoice RO e-Invoice in accordance with the provisions of art. 5 , he has the obligation to issue only electronic invoices and to use this system to transmit them to all recipients defined in art. 2 para. (1) lit. p) , with the exception of electronic invoices provided for in art. 6 .

(2) In the situation where the economic operator submits the electronic invoice in the national RO eFactura electronic invoice system, the recipient of the electronic invoice issued in the B2G relationship has the following obligations:

1. a) to receive and download the electronic invoice through the national electronic invoice system RO eFactura;
2. b) to process the electronic invoice;
3. c) verify the legality, compliance and regularity of the electronic invoice, in accordance with the legal provisions in force.

Article 8

(1) The processing of the electronic invoice can be done exclusively in electronic format using the IT applications available at the level of the recipients of the electronic invoices issued in the B2G relationship. The processing of the electronic invoice also includes the completion of the budget execution phases.

(2) In the situation where the invoice cannot be processed in electronic format, a document obtained by converting the information from the electronic invoice that allows reading and listing can be used. The application through which the conversion is carried out must ensure the integrity of the content of the electronic invoice.

(3) Recipients of electronic invoices issued in the B2G relationship who do not have a conversion application can use the IT application made available by the Ministry of Finance, through the National Center for Financial Information, at the time of the operationalization of the national RO e-Invoice electronic invoice system.

(4) The electronic invoice or the document provided for in para. (2) is used during the phases of the budgetary execution of the expenses provided for by Law no. 500/2002 , with subsequent amendments and additions, and Law no. 273/2006 on local public finances, with subsequent amendments and additions, as well as for the accounting registration of operations at the level of contracting authorities, contracting entities or centralized procurement units with attributions in this regard according to the law, acquiring the quality of a supporting document.

Article 9

(1) The procedure for receiving and downloading the electronic invoice by the recipients of the electronic invoices issued in the B2G relationship in the national system regarding the electronic invoice RO eFactura is approved by the order of the Minister of Finance provided for in art. 3 paragraph (4) .

(2) The method of processing and managing the electronic invoice is established by the own procedures of the contracting authorities and contracting entities.

Section 4 Electronic invoicing in the B2B relationship

Article 10

(1) In the B2B commercial relationship, the issuer of the electronic invoice may opt for its transmission to the recipient using the national electronic invoice system RO e-Invoice in compliance with the provisions of art. 4 para. (1) .

(2) In the situation where the issuer of the electronic invoice opts for its transmission in the national system regarding the electronic invoice RO e-Invoice, it is obliged to be registered in the Register of operators who have opted for the use of the national system regarding the electronic invoice RO e-Invoice, named hereafter the RO e-Invoice Register.

(3) The economic operator who opted for the use of the national RO e-Invoice electronic invoice system is registered in the RO e-Invoice Register starting on the 1st of the month following the exercise of the option. From the moment of registration in the RO e-Invoice Register, the issuer also acquires the status of recipient.

(4) In order to use the national RO e-Invoice electronic invoice system, the issuer and recipient must be registered in the RO e-Invoice Register.

(5) The procedure regarding the organization and registration within the RO e-Invoice Register is established by order of the president of the National Fiscal Administration Agency within 15 days from the date of publication of this emergency ordinance in the Official Gazette of Romania, Part I. The RO Register The e-Invoice is public and is displayed on the website of the National Fiscal Administration Agency.

Article 11

If the issuer and recipient of the electronic invoice are registered in the RO e-Invoice Register provided for in art. 10 , the use of the electronic invoice is considered accepted on the date of communication in the national electronic invoice system RO e-Factura.

Article 12

For invoices issued by economic operators registered in the RO e-Invoice Register to recipients who are not registered in the RO e-Invoice Register, the provisions of art. 319 of Law no. 227/2015 , with subsequent amendments and additions.

Section 5 Final Provisions

Article 13

Non-resident economic operators can opt for the use of the national electronic invoice system RO e-Invoice in the B2B commercial relationship or in the B2G relationship, according to the procedure established by order of the president of the National Tax Administration Agency issued within 15 days from the date of publication of this ordinance of emergency in the Official Monitor of Romania, Part I.

Article 14

(1) The provisions of this chapter do not affect the legislation on the protection of personal data.

(2) Personal data obtained for the purpose of processing electronic invoices can be used exclusively for this purpose or for purposes compatible with it, in compliance with the legislation on the protection of personal data.

(3) The methods of publication, in order to ensure transparency and accountability, of personal data that have been collected within the national electronic invoice system RO e-Factura must be consistent with the purpose of publication and protection of the private sphere.

Article 15

(1) The Ministry of Finance and the National Agency for Fiscal Administration ensure the management of data and information existing in the national system regarding the electronic invoice RO e-Factura, with the preservation of fiscal secrecy.

(2) The data and information from the electronic invoice are used exclusively by the Ministry of Finance and the subordinate structures, according to the competences, for the fulfillment of specific duties and in compliance with the provisions of para. (1) .

Article 16

The national electronic invoicing system RO eFactura ensures interoperability with the invoicing systems of economic operators.

Article 17

Without prejudice to the provisions of art. 1-16 , for electronic invoices sent in the national RO e-Invoice electronic invoice system, the provisions of art. 319 of Law no. 227/2015 , with subsequent amendments and additions, and of the Methodological Norms for the application of Law no. 227/2015 regarding the Fiscal Code , approved by Government Decision no. 1/2016 , with subsequent amendments and additions.

Article 18

The Ministry of Finance provides the necessary resources and takes all measures for the operation of the national system regarding the RO e-Factura electronic invoice.

Chapter II Completion and repeal of some normative acts

Article 19

Government Ordinance no. 78/2000 regarding the homologation, issuance of the vehicle identity card and certification of the authenticity of road vehicles in order to introduce them to the market, make them available on the market, register or register in Romania, as well as market surveillance for them, published in the Official Gazette of Romania, Part I, no. 412 of August 30, 2000, approved with amendments and additions by Law no. 230/2003 , with subsequent amendments and additions, is completed as follows:

1. In article 1, after paragraph (9),a new paragraph, paragraph (9^1), is inserted, with the following content:(9^1) For road vehicles originating from EU member countries, RAR transmits to the National Fiscal Administration Agency, in electronic format, the documents presented by the person who made the intra-community purchase, including the documents of origin, prior to the issuance of the vehicle’s identity card. The procedure for applying this paragraph is established by a protocol concluded between the two institutions.
2. In article 1^1, after point 16,a new point is inserted, point 17, with the following content:17. the person who made the intra-community purchase – the natural or legal person who purchased the road vehicle from an EU member country and who is mentioned on the documents related to the vehicle, respectively on the documents of origin.
3. In Article 11 paragraph (1), after letter h),a new letter, letter i), is inserted, with the following content:i) if the road vehicle comes from EU member countries, the request is made directly or by proxy, by the person who made the intra-Community purchase of the vehicle.
4. In article 11, after paragraph (1),a new paragraph, paragraph (1^1), is inserted, with the following content:(1^1) The issuance of the identity card of road vehicles can be suspended for a maximum period of 5 days at the reasoned request of the National Fiscal Administration Agency. The procedure for issuing the vehicle ID card will be automatically resumed after the expiration of this term.

Article 20

On the date of entry into force of this emergency ordinance, Law no. 199/2020 regarding electronic invoicing in the field of public procurement, published in the Official Gazette of Romania, Part I, no. 825 of September 9, 2020, is repealed.The provisions of ch. I fully transpose Directive 2014/55/EU of the European Parliament and of the Council of April 16, 2014 on electronic invoicing in the field of public procurement, published in the Official Journal of the European Union, series L, no. 133 of May 6, 2014 and regulates the mechanism that ensures the receipt and processing of electronic invoices compliant with the European standard on electronic invoicing by contracting authorities and contracting entities.

PRIME MINISTER
FLORIN-VASILE CÚTU
Countersigned by:
Minister of Finance,
Dan Vîlceanu
Minister of Foreign Affairs,
Bogdan Lucian Aurescu
p. Minister of Research, Innovation and Digitization, interim,
Iulian-Vasile Popescu,
Secretary of State
Minister of Development, Public Works and Administration,
Cseke Attila Zoltán
p. Minister of Economy, Entrepreneurship and Tourism, Acting,
Daniela Nicolescu,
Secretary of State
Minister of National Defense,
Nicolae-Ionel Ciucă
Minister of Internal Affairs,
Lucian Nicolae BodeBucharest, October 4, 2021.No. 120.—-