Societatea Națională de Gaze Naturale Romgaz S.A. received a favorable decision in court, in the case file initiated against a tax decision establishing additional corporate income tax and VAT, amounting over RON 15 mil., imposed by the tax authority, due to the allegedly misapplied discounts to clients that do not qualify as interruptible customers.
Despite those arguments the Court of Appeal in Alba Iulia granted the request for annulment of the tax decisions. The dispute resolution team of Mocanu si Asociatii obtained a positive solution for Societatea Națională de Gaze Naturale Romgaz S.A., by convincing the Court to set aside the tax decision issued by the tax authorities, on the following grounds: by granting discounts in favour of its clients, the company acted in accordance with the provision of the agreements concluded with those clients, as well as in accordance with the provisions of the Action Plan for emergencies, approved on 2nd December 2009, for gas year 2009-2010 (section B), approved by the Governmental Decision no. 1523/2009, published in the Official Gazette, on 22nd December 2009.
Mocanu si Asociatii successfully advised GES FORCE S.R.L. (a security services company in Romania) in the litigations initiated by Loteria Romana S.A. for claims deriving from a contract having as object the provision of security services. Loteria Romana S.A. sued GES FORCE S.R.L. claiming excessive and unjustified penalties for the non-performance of certain obligations deriving from the security services contract.
The litigation team of Mocanu si Asociatii involved in the project accomplished the dismissal in court of all claims against GES FORCE S.R.L. amounting to approximately EUR 1,4 mil.
Mocanu si Asociatii advised and represented the National Company for Roads Infrastructure Administration S.A. (CNAIR S.A.) in the international arbitration initiated by Salini Impregilo S.p.A. before the International Court of Arbitration of the International Chamber of Commerce (ICC). Salini Impregilo S.p.A. submitted the request for arbitration against CNAIR S.A. in September 2015 and the dispute was settled on the merits in favour of CNAIR S.A. in October 2019.
Salini Impregilo S.p.A. claimed roughly RON 260,000,000, which include, inter alia, the amount of approximately RON 135,300,000 in relation to the Additional Works which were required as a consequence of the lanslides which affected Lot 3 of Orastie – Sibiu Motorway and approximately RON 83,000,000 as costs associated with an extension of the Time for Completion until 27 January 2016 and/or as compensation for lossess, damages and expenses.
By means of the Final Arbitral Award, the Arbitral Tribunal decided that the DAB decisions which were enforced by Salini Impregilo S.p.A. following a Partial Award issued in March 2017 were not correct, dismissed on the merits the claims brought by Salini Impregilo S.p.A. against the CNAIR S.A., denied Salini Impregilo S.p.A.’s entitlement to the extension of the Time for and ordered Salini Impregilo S.p.A. to pay RON 90,718,740 to CNAIR S.A., as Delay Damages due to the former’s failure to observe the Time for Completion.
The Arbitral Tribunal’s decision was mainly based on the allocation of the risk for the Landslides which affected Lot 3 of Orastie-Sibiu Motorway, which the Arbitral Tribunal decided that must be borne by Salini Impregilo S.p.A. under the contractual provisions. The value of the arbitration case for which Mocanu si Asociatii advised CNAIR S.A. was of approximately RON 350,000,000 (Euro 73,000,000)
Mocanu si Asociatii advised and represented CNAIR S.A. in the international arbitration initiated by Proodeftiki S.A. on the docket of the International Court of Arbitration of the International Chamber of Commerce (ICC). Proodeftiki S.A. submitted the request for arbitration against CNAIR S.A. in February 2015, the dispute being settled in favour of CNAIR, in January 2017, by means of the arbitral award, whereby the arbitral tribunal dismissed the claims brought forward by Proodeftiki S.A. as entirely time barred. Mocanu si Asociatii also advised and represented CNAIR in the request to set aside the award made by Proodeftiki S.A. against the arbitral award issued in January 2017, this request being dismissed as ungrounded by the Bucharest Court of Appeal. The solution of the Court of Appeal was also confirmed by the High Court of Cassation and Justice which declared as inadmisible the second appeal submitted by Proodeftiki. The value of the arbitration case for which Mocanu si Asociatii advised CNAIR S.A. was of approximately EUR 4,6 mil.
Mocanu si Asociatii advised and represented the National Company for Roads Infrastructure Administration S.A. in the international arbitration initiated by Shapir Structures 1991 Ltd., on the docket of the International Court of Arbitration of the International Chamber of Commerce (ICC). Shapir Structures 1991 Ltd. submitted the request for arbitration against CNAIR S.A. in July 2015, the dispute being settled in August 2018 by means of the arbitral award, whereby the sole arbitrator dismissed 95% of the claims brought forward by Shapir Structures 1991 Ltd., granting to the latter only 5% of the value of claims requested and deriving from the FIDIC contract concluded for the rehabilitation of the National Road 18 Moisei – Iacobeni. The value of the arbitration case for which Mocanu si Asociatii advised CNAIR S.A. was of approximately EUR 15 mil.
General Turbo receives a favorable decision in court, in the case file initiated by General Turbo Tools. General Turbo S.A. (as majority shareholder in General Turbo Tools S.R.L.) was brought to court by General Turbo Tools S.R.L., the latter requesting the reduction of the share capital on the grounds of the restitution of the entire in kind contribution brought by General Turbo to the share capital of General Turbo Tools, the alleged restitution being, in fact, a granting of the right of use over the asset brought as contribution. The dispute resolution & corporate teams of Mocanu si Asociatii obtained a positive and definitive solution for General Turbo, the court dismissing the request made by General Turbo Tools on the grounds that the granting of the right of use does not represent a reduction of the share capital; as well, the court stated that court cannot replace the will of the shareholders regarding the reduction of the share capital, in this case the decision belonging to the general meeting of shareholders.
The Open Society Foundation, having as object the promotion of models for the development of a society based on freedom, responsibility and respect for diversity, has finalized the merger by absorption process with the Serendinno Foundation (the former Foundation for the Inclusion and Social Cohesion), being assisted throughout the entire process by Mocanu si Asociatii.
Mocanu si Asociatii’s team involved in the project advised the Open Society Foundation throughout the entire merger process and until the effective absorption by the Serendinno Foundation. The transaction handled by Mocanu si Asociatii was a complex one, entailing, among others, the transfer of rights and obligations undertaken by the Open Society Foundation to the Serendinno Foundation and deriving from POSDRU financing agreements.
Mocanu si Asociatii advised Santierul Naval 2 Mai, a state-owned company, in the acquisition of a 2% stake in Damen Shipyards Mangalia (the former Daewoo Mangalia Heavy Industries S.A., Romanian shipyard, specialized in ship building and ship repairing activities).
The highly complex transaction entailed the acquisition of a 2% stake of the total shares owned by Damen Holding BV (acquired, in its turn, from the former Korean partner, Daewoo Shipbuilding & marine Engineering), Santierul Naval 2 Mai thus becoming the majority shareholder in Damen Shipyards Mangalia. Mocanu si Asociatii was involved in the project and advised Santierul Naval 2 Mai (respectively, the Ministry of Economy, as majority shareholder of Santierul Naval 2 Mai) in the structuring of the transaction (the sale of shares and assignment of certain receivables held by Damen Holding BV against Damen Shipyards Mangalia), the negotiation of the share transfer and debt assignment agreement and the notification of the Romanian Competition Council on certain aspects of the transaction.
The most challenging aspects of the transaction, on which Mocanu si Asociatii advised Santierul Naval 2 Mai consisted in the identification and implementation of a legally practical solution to accommodate and facilitate the acquisition of the majority stake by the Romanian partner (Santierul Naval 2 Mai), while the management and operational control over the Mangalia shipyard remains with the Dutch partner (Damen Holding B.V.), as well as the obtaining of two favorable decisions from the Competition Council, both regarding the transfer of the 2 % of the shares held by Damen to Santierul Naval 2 Mai, and regarding the assignment of receivables held by the Dutch partner to the Romanian party, followed by the compensation of the respective debts with shares of Damen Shipyards Mangalia (debt to equity swap).
Mocanu si Asociatii advised General Turbo S.A., the main supplier of power generation equipment in Romania, in the sale of 49% of the shares held by General Turbo S.A. in Alstom General Turbo (producer of generators, engines and electric transformers) to the majority shareholder, GE Albany Global Holdings BV. The transaction was a complex one, entailing, among others, the transfer of the real estate ownership right, from GE Albany Global Holdings BV to General Turbo S.A., over the building brought as contribution to the share capital of Alstom General Turbo S.A. and the further lease of the building and corresponding equipment.
Mocanu si Asociatii’s team, comprised of specialized M&A, Corporate and Real Estate lawyers, rendered legal assistance to General Turbo S.A. throughout the entire transaction, during the negotiations carried out for the conclusion of the share sale agreement, until the closing of the transaction and performance of all post-closing formalities.
In 30.03.2016, the National Gambling Office granted the 2nd class (affiliate) licence to LiveSport Media, an internet media company, operating a network of more than 60 websites that target a number of local markets, mainly located in Europe. The news portals, live score services, statistical and other sports-related websites operated by LiveSport Media help visitors and sporting supporters find accurate information and entertainment and become loyal to the website. In addition, LiveSport Media provides advertising solutions to corporate partners, including online gambling and betting operators. Additional information on the company’s activity may be obtained by visiting its official website, www.livesportmedia.eu.
During the licensing procedure, LiveSport Media has been assisted by Mocanu si Asociatii S.P.R.L. which prepared the necessary documentation, provided guidance on the process even before the enactment of the norms for the enforcement of the Gambling Law (i.e., Government Emergency Ordinance no. 77/2009) and assisted the company before the National Gambling Office. Alongside, the clarifications provided by the National Gambling Office throughout the procedure, as well as its prompt reply to all requests facilitated a smooth decision on the application. This is the first affiliate licence issued by the National Gambling Office.
Mocanu si Asociatii S.P.R.L.is representing UniCredit Bank Austria with respect to the share purchase offers addressed by the latter to the minority shareholders of UniCredit Bank SA.
Starting with 21st of March 2016, the offers have been sent to all minority shareholders, at the last address registered with the shareholders registry of UniCredit Bank SA. The purchase offers are valid until August 12th 2016 inclusively.
The minority shareholders are kindly invited to contact Mocanu si Asociatii for any matters pertaining to the documents received. Our team will provide you with clarifications concerning the terms and conditions of the offer and, if necessary for your convenience, will guide you through the fill in process.
On 18 February 2016, EFTA Surveillance Authority Decision no. 38/15/COL of 4 February 2015 adopting a notice Guidelines on the applicability of Article 53 of the EEA Agreement to technology transfer agreements [2016/96] was published in the Official Journal of the European Union (the Guidelines).
The Guidelines set criteria and options that may be used on a case by case basis for assessing whether a technology transfer agreement may restrict actual or potential competition, either by its scope or by its effects. In this respect, the Guidelines address aspects pertaining to market definition, as well as distinction between competitors and non-competitors.
For the purpose of the Technology Transfer Block Exemption Regulation (TTBER, i.e., Commission Regulation (EU) No 316/2014 of 21 March 2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements), the Guidelines define and detail concepts such as technology transfer agreement, transfer, agreements between two undertakings, agreements for the production of contract products, and regulate the market share thresholds of the safe harbour, hardcore restrictions of competition (price restrictions, output restrictions, market and customer allocation between competitors, and agreements between non-competitors concerning price fixing and passive sales by the licensee), and the excluded restrictions.
In addition, the Guidelines deal with the application of Art. 53 of the Agreement on the European Economic Area (EEA Agreement) to various types of licensing constrains, such as exclusive licensing and sales restrictions, output restrictions, field of use restrictions, captive use restrictions, tying and bundling and non-compete obligations, as well as with technology transfers by means of settlement agreements, especially with the case where such settlement agreements include pay-for-restriction/pay-for-delay arrangements, cross-licensing or non-challenge clauses.
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One year after being drafted, the norms for the enforcement of the Romanian Government Emergency Ordinance no. 77/2009 on the organization and operation of games of chance (the Gambling Law) were finally enacted and published on 26 February 2016. The norms, approved through Government Decision no. 111/2016, define new terms (including pertaining to services ancillary to the gaming activities) and set forth the licensing and authorization conditions for the gaming and gaming related activities.
Though mentioned in the Gambling Law since February 2015, the term affiliate is defined for the first time through the newly issued norms as the person obtaining revenues based on an agreement entered into with a remote gaming operator, as a consequence of the gambling activities performed by the players directed by the former to the operator’s website/platform. A fresh definition is also available for the 2nd class licence, being described as the document to be released by the National Office for Gambling and conferring upon the holder the right to perform in Romania activities ancillary to traditional and remote gaming.
The norms set forth rules concerning the organisation and operation for each type of gaming activity. Detailed provisions concern remote gaming activities, including KYC requirements, the information to be mandatory displayed on the operator’s website and gaming platform and specific rules concerning the operators gaming platform and IT system.
According to the norms, remote gaming authorized in Romania must be operated via a personalized gaming platform to include all players accessing such platform from Romania, as well as all players that are Romanian citizens and do not have a fiscal residence in another state. While the first category of players may be easily identified based, inter-alia, on IP address, the identification of the second category of players might prove difficult for the gaming operators, considering that establishing the fiscal residence of the relevant players requires observance of the applicable fiscal criteria which vary with the jurisdiction.
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