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VIOREL MICULA:"We wouldn't have ended up setting a distraint on ROMATSA had the Romanian state complied with the law"

Ziarul BURSA #English Section /

"We wouldn't have ended up setting a distraint on ROMATSA had the Romanian state complied with the law"

A Belgian court recently awarded the Micula brothers, Viorel and Ioan the garnishment of the funds that Romatsa was supposed to cash from Eurocontrol.

The two businesspeople, who also hold Swedish citizenship, have filed a lawsuit against the Romanian state in 2005 with the ICSID, the Arbitration Court of the World Bank, the highest court for business litigations. They have alleged that the Romanian state did not honor its commitments concerning the mutual investment protection included in the bilateral agreement between Sweden and Romania, and ICSID ruled in their favor at the end of 2013.

Not only did the state not pay them the money it owed them (over 200 million Euros including interest and penalties), and at the end of last year Ioan and Viorel Micula successfully set a distraint on some of the accounts of the Ministry of Finance, as well as on some of the shares the state holds in Petrom.

Viorel Micula said that this distraint wouldn't have happened if the state had abided by the decision of the ICSID: "We have negotiated the payment of the compensation with the authorities until March because we did not want to go directly to the distraint. We wanted an amicable resolution of the situation. In March 2014, we had come to an understanding with the government, but the Ministry of Finance subsequently changed its mind and filed an action for annulment with the ICSID, while also requesting the suspension of the distraint. The ICSID allowed the suspension of the distraint provided the state deposited a collateral which guaranteed it would pay us the money if it lost that lawsuit as well. Except the Romanian government did not submit the guarantee within the 30 day delay set by the international court, meaning that the ICSID decided to resume the distraint".

The business man told us that the decision of the ICSID of December 2013 was acknowledged by the Romanian Supreme Court and that is how things got to the distraint set up last year on some of the accounts of the Ministry of Finance, as well as on part of the shares that the state holds in Petrom. Viorel Micula claims that in the beginning of this year the Romanian authorities passed a law which he describes as strange, by which enforcement agents are being prohibited from foreclosing on the state following the rulings of arbitral courts.

The businessman said: "The ruling of the ICSID was recognized in other countries, which are allowed to garnish the funds which the Romanian state collects through its institutions and companies. I heard on TV that the lawyers I have hired have succeeded in foreclosing on part of the funds of ROMATSA. I don't tell my lawyers what accounts to garnish. It is their job to find out those income sources that the Romanian state has available".

He expressed his regret for that situation created at ROMATSA, which is a strategic company of the state, and stressed that he has the utmost respect for the authorities and for all Romanians. Viorel Micula wanted to clarify: "All we want is what is rightfully ours. We do not want to cause problems to anybody. I never understood why the government didn't pay us the money even though we tried to negotiate with the authorities, we have accepted every term in the negotiation, but they never kept their word. Me and my brother are serious investors. We have worked hard, our money didn't fall into our lap from the sky, we've made that money honestly, we have created 7,000 jobs and we have gone through a lot of hardships. We've tried to come up with an amicable deal with the state to repay the amount owed, and in return we got some of our own accounts garnished. That is why we are in a difficult situation. We have filed lawsuits outside the country because we had no other option".

The provisional CEO of ROMATSA, Fănică Cârnu, said, quoted by Mediafax: "The ROMATSA accounts are not frozen. According to our estimates, the garnishment is for the money owed to ROMATSA by Eurocontrol for a period of approximately half a year. Not collecting that money will make the life of the institution harder and will hamper its ability to provide air traffic services over a rather significant period. Starting with September 9th, when this order to foreclose on Eurocontrol arrived, ROMATSA hasn't received any more money".

He said that for now, the public corporation operates in terms of safety, according to the standards.

As for the legal action to get the garnishment suspended, the CEO of the public corporation said that ROMATSA has already sent in Brussels a team of specialists which are negotiating a legal aid contract and representation in the Belgian courts to get the garnishment lifted.

Fănică Cârnu continued: "Currently, there is no issue with paying salaries, because we have taken every step to halt this distraint. We will find out the results of our actions only next week (ed. note: this week). ROMATSA is a public corporation, that is self-financed, Eurocontrol collects the fees charged on passenger tickets and what is owed to ROMATSA must, according to the conventions in effect, be wired into our accounts. So, the Romanian state is not involved in this financial circuit".

The Ministry of Finance issued a press release which states that it has sent Romania's point of view, to the Belgian enforcement agent and to the Court of Appeal in Brussels, as well as of the Romanian Embassy in the Kingdom of Belgium and has taken action to dispute the foreclosure actions.

"We want to stipulate that ROMATSA never had and does not have any capacity in the lawsuit between Micula and the Romanian state", the ministry says, which reminded that on October 1st, 2014, the European Commission issued the Decision of the European Commission no. 6848/2014 of opening the investigation procedure in relation to the execution of the arbitral decision in the Micula/Romania case. It mentions that the implementation of the arbitral ruling would amount to the granting of a new state aid, which is incompatible with the law of the European Union on the issue of state aids.

The press release also states: "On March 30, 2015, the European Commission issued the Decision no. 2015/1470A concerning the state aid SA.38517 (2014/C) (ex 2014/NN) implemented by Romania - the Arbitration Decision in the Micula/Romania case of December 11th, 2013, which was published in the Official Gazette of the European Union no. L232 of September 4th, 2015. After the arbitration ruling was rendered, Romania, through the Ministry of Public Finances, fully complied with the arbitration ruling, without that entailing that it waived backing its arguments in the action for annulment of the arbitration ruling rendered in the case no. ARB/05/20. According to art. 2 paragraph (1) of its contents, Romania isn't paying any incompatible state aid mentioned in article 1 and it is already clawing back any incompatible aids mentioned in article 1 that have already been paid to any of the entities which are part of the single company that benefits from the aid in question through the enactment of the partial implementation of the arbitral ruling of December 11th, 2013, as well as any other aid paid to any of the entities that make up the single company that benefits from the aid in question through a subsequent implementation of the arbitral ruling of December 11th, 2013 which has not been reported to the Commission or any aid paid after the date the present decision was rendered".

Through the Ministry of Finance, last year Romania filed an action for annulment of the arbitration ruling of December 11th, 2013. According to the practices of the ICSID (International Centre for Settlement of Investment Disputes), the decision on the action for annulment will be made at the most at the end of 2015 - starting in the beginning of next year.

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