https://www.revistabiz.ro/gabriel-albu-mediul-de-business-risc-de-contagiune-penala-in-pandemie

In this economic and public health complicated times, we may not be aware of a number of criminal law risks that we may face as individuals, entrepreneurs and as a business environment in general, as a result of the decisions we make.

The Romanian state is already facing and will face a very serious budgetary crisis and in such a context, as well as in other similar contexts, it was proved that it has the bad habit of trying to solve such problems in a harsh way – a personal opinion – including even abusing the weapon of criminal law.

Therefore, I will expose a series of criminal law risks that entrepreneurs may encounter during this period, amid the fact that there is an obvious need to make decisions in real time, to keep afloat the activities we all undertake. In this context, we can feel a certain pressure in making decisions, as long as those decisions have the primary goal to reduce costs and maximize revenue.

Let’s start with technical unemployment. As a result of decreased work activity technical unemployment for some or all employees may be one of the measures taken by employers to reduce costs. Be careful, however, this issue involves assuming a significant decrease in overall activity and what it could mean because we do not yet have a representation on how the authorities will interpret this. We can expect these issues to be verified when the state is severely confronted with the impending budget crisis. Technical unemployment must be real. Many companies may be tempted to activate technical unemployment but maintain the employee(s) partially active. In this case, the legal option would be part-time employment, not technical unemployment.

A second example that we can think about very easily is that of the certificates given by the employer to enable travel for professional interest. Please note, however, that the issuance of these documents involves the employer assuming two aspects on his own responsibility, namely that the activity in question is essential and that it cannot be carried out on a telework/remote basis. We can all treat with ease these two issues, but beware that they can be taken into account and at any time can happen, say, “an accident”, and the state can conclude that one of these conditions it is not fulfilled, in which case we are talking about the crime of false statements.

Furthermore, the use of the facilities provided by GEO 42/2020, the program to help SME’s (Small and Medium Enterprises), involves the presentation of supporting documents and the declaration on one’s own responsibility of circumstances related to the evolution of one’s own activity. I think it is clear to all of us that the actual interpretation of these circumstances which are the subject of the statements is not a clear matter at all. In this sense, it leaves the option of divergent interpretations between private businesses and the state authority called to analyze the respective statements. Again, the risk can be that of the crime of false statements, fraud, illegal obtaining of funds or, if we are talking about programs financed from European funds, even fraud with European funds.

Another situation that is recommended to reflect upon is obtaining emergency certificates. It is a problem similar to the one stated earlier – one risks crimes such as false statements, fraud, illegal obtaining of funds. Why do I say fraud? Because the certificates can be used by their beneficiaries, including in private relations, to invoke major force or unpredictability, to request suspensions or reductions of costs, rents etc. To the extent that the statements underlying the obtaining of the certificate can be considered as not being true, even the contractual partners will be able to file a criminal complaint against the certified beneficiary.

Another issue to take into consideration is invoking a contingency or force majeure situation against contractual partners. Pay attention, we can all face a decrease in activity and we are tempted to do so, but the false representation of these circumstances or even the exaggerated representation can fall under the criminal law, more precisely the crime of fraud.

It would be useful for everyone in the business environment to reflect on all these matters. Not in the sense of not making use of the tools provided by law, both civil law (theory of contingency, respectively force majeure), and the tools provided by military ordinances and other regulations adopted in the context of this pandemic, to keep afloat – but to pay attention to details. In these hard times, everyone is tempted to resort to any tools to maintain their activity functional but at some point these issues may be analyzed by the authorities, but also by the contractual partners.

Gabriel Albu is Managing Partner and founder of Albu-Legal, a boutique law firm specializing in business criminal law / white collar crime. Over time, lawyer Gabriel Albu has been involved in a large number of high-level criminal law cases in Romania, managing complex cases at the highest level of representation, which have mainly involved allegations of tax evasion and fraud against interests of European Union financial institutions, allegations of corruption, financial fraud, service offenses, capital market fraud and public procurement fraud.

Gabriel Albu has a solid and diverse experience in the corporate field, assisting and representing a large number of companies – multinational and local – and individuals within the companies in complex criminal law proceedings, both under national jurisdiction and with international elements. The most recent success achieved by Gabriel Albu was the case publicly known generically as “Rompetrol II”, where the team coordinated by him managed to obtain the dismissal of the case.