The pretext of these legislative amendments is the implementation of the European Directive no.\u00a02015\/849 \/ EU of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.<\/p>\n
The Government wants to oblige associations and foundations to report periodically to the Ministry of Justice\u00a0[2]<\/sup><\/a> (annually and whenever new situations occur) numerous data and information, including the names and identification data of each person with whom the association or foundation gets in touch or to whom provides support in any way in the course of their work. Nevertheless, the European Directive does not expressly request this and leaves a margin of discretion to each state.<\/p>\n In case of non-compliance with the obligation to report this data or other information, the draft law proposes sanctions ranging from a significant fine (up to 5,000 lei)\u00a0<\/a>[3]<\/sup><\/a>\u00a0to the dissolution of the association\/foundation\u00a0<\/a>[4 ]<\/sup><\/a>\u00a0.<\/p>\n Given the unclear, confused and disproportionate categories of data and information to be reported by NGOs listed in the draft law, it is obvious that the Government is seeking to introduce burdensome legal obligations which, objectively, will not be able to be met by NGOs.\u00a0And the final sanction for failure to meet this reporting obligation is manifestly disproportionate, namely, the \u00ab\u00a0supreme\u00a0\u00bb sanction of dissolution.<\/p>\n APADOR-CH points out that the Parliament is currently debating a draft bill proposed by the ruling party, providing for the dissolution of NGOs in case of non-compliance with the burdensome request of reporting any financing grant (regardless of its value).\u00a0Also, the Ministry of Public Finance is preparing, upon recommendation from the Court of Auditors, a draft law which will allow NGOs to be scattered with targeted fiscal control pretexting monitoring the use of the 2% tax rate that can be redirected to NGOs.<\/p>\n The government is already adopting a \u00ab\u00a0modus operandis\u00a0\u00bb toward NGOs, which has two components:<\/p>\n So instead of focusing on their work and their mission purpose, associations and foundations will dedicate their time and energy to drafting reports and sending them to the different public entities. The latter will not be able to process that much information (there are sufficient precedents of such institutional incapacity, for example, the catastrophic monitoring by ANAF (the national fiscal administration agency) of of payment of health contributions).\u00a0But if an NGO is too loud or critic of the governing authorities, it could be put under scrutiny for some forgotten report out of dozens of reports requested or for missing a date on the requested information, leading to its dissolution.<\/p>\n APADOR-CH reminds that for associations and foundations; the dissolution is a sanction comparable to the death penalty for the individual.\u00a0However, if the \u201cdeath penalty\u201d can still apply to (legal) entities in the EU, at least the conditions for its application must be sufficiently clear and restrictive, and should be limited to truly exceptional cases to prevent abuse.<\/p>\n APADOR-CH appeals to the Government to temper its increasingly brutal attempt to retaliate against the criticism coming from civil society by introducing legal regulations that prevent normal functioning of associations and foundations.<\/p>\n <\/a>[1]<\/sup><\/a>\u00a0At:http:\/\/www.onpcsb.ro\/pdf\/PROIECT%20LEGE%2031%20%20IANUARIE%20CU%20OBS%20MJ%20FINAL.pdf<\/a><\/p>\n <\/a>[2]<\/sup><\/a>Point 18 of the draft law introduces the obligation to communicate to the Ministry of Justice the identification data of \u00ab\u00a0real beneficiaries\u00a0\u00bb.\u00a0And, in the case of associations and foundations, art.\u00a04 al.\u00a02 lit.\u00a0c of the draft Law on the Prevention and Control of Money Laundering and Terrorist Financing, the notion of \u00ab\u00a0real beneficiary\u00a0\u00bb also includes \u00ab\u00a0natural persons \u2026 in whose main interest the association or foundation was established or is operating\u00a0\u00bb.\u00a0Because the notion of \u00ab\u00a0main interest\u00a0\u00bb used in the bill is not defined anywhere, it can refer to anything, including the interest of individuals in being supported by an association\/foundation.\u00a0For example, an association for consumer protection or patient protection was set up in the interests of consumers or patients.\u00a0The consequence of this bill is that the name and other identification data of consumers or patients coming into contact with such associations should be reported to the Ministry of Justice.\u00a0According to the draft law, each person will have to be identified and reported to the Ministry of Justice by the association\/foundation.\u00a0If this obligation is not respected, the association\/foundation will be dissolved (abolished).<\/p>\n <\/a>[3]<\/sup><\/a>\u00a0Point 18 of the draft law<\/p>\n\n
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