We have begun our analysis of how to calculate the five-calendar day period specified in Art. 10 para. (7) of the Emergency Ordinance 120/2021 on the management, operation and implementation of the national e-invoicing system RO e-Factura[1] (“GEO 120/2021”) in the context of the Ministry of Finance’s LinkedIn post of August 2024, namely:
“How is the deadline for submitting invoices in the national RO e-Factura system calculated? As you know, the deadline for submitting invoices in the national e-invoicing system RO e-Factura is 5 calendar days from the invoice issuance date.
This period is calculated in calendar days as of the day following the invoice issuance date and expires on the 5th day, regardless of whether it is a working day or a non-working day.
For example: If an invoice is issued on 5 August, the period starts on the following day, i.e. 6 August, and ends on 10 August. An invoice submitted in the RO e-Factura system on 11 August is considered to have been sent late. 💡(...)”.[2]
The date of 10 August referred to above fell on a Saturday.
The direct effect is that, according to the opinion expressed in the post, the taxpayer would not be able to benefit from the extension until Monday of the deadline for submitting the invoice in the national e-invoicing system RO e-Factura and would have to submit the invoice on Saturday.
In other words, this post means that, in respect of the deadline of 5 calendar days as of the invoice issuance date (Art. 10 paragraph (7) of GEO 120/2021), the Ministry of Finance views the below provisions of Art. 181 [Calculation of time limits] paragraph (2) of the Civil Procedure Code as non-applicable:
“(...) (2) When the last day of a period falls on a non-working day, the period is extended until the first working day thereafter.”
We believe that such an interpretation of Art. 10 para. (7) of GEO 120/2021 is not in line with the legal provisions on the calculation of procedural deadlines, for the following reasons:
First, Art. 10 paragraph (7) of GEO 120/2021 lays down the obligation to issue the invoice within 5 calendar days but does not establish a method of calculating such period that derogates from the provisions of the ordinary law. Also, the Explanatory Memorandum to GEO 120/2021 does no refer to an autonomous meaning of the term "calendar days" for the purposes of the ordinance.
Furthermore, with respect to the calculation of deadlines for the completion of a procedural act, Art. 75 of the Fiscal Procedure Code [Calculation of time limits] refers to the provisions of the Civil Procedure Code[3].
The provisions of the Civil Procedure Code on the calculation of deadlines (i.e., Art. 180 et seq. of the Civil Procedure Code) do not establish a method of calculating deadlines that would involve calendar days.
They only refer to deadlines expressed in days and establish the rule that when the last day of a period falls on a non-working day the period is extended by operation of law until the following working day:
“Art. 181 Civil Procedure Code: Calculation of time limits (1) Unless otherwise provided by the law, time limits shall be calculated as follows: 1. If the time limit is counted in hours, it shall begin to run at the zero hour on the following day; 2. if the time limit is counted in days, neither the day on which it begins nor the day on which it ends shall be taken into account; 3. If the time limit is counted in weeks, months or years, it shall end on the corresponding day of the last week or month or year. If the last month does not have a day corresponding to the one on which the time limit began, it shall end on the last day of that month. (2) If the last day of a time limit falls on a non-working day, the period shall be extended until the following working day.”
Second, the only provision in the Fiscal Procedure Code on the calculation of deadlines expressed in “calendar days” is Art. 205 [Calculation of time limits], but it specifically applies to the chapter dedicated to Tax facilities in Title VII of the Fiscal Procedure Code [Collection of tax claims]:
“Art. 205: Calculation of time limits (1) The time limits provided in this chapter, except for the one provided in Art. 191 paragraphs (2) and (3), shall be calculated in calendar days as of the day immediately following such periods and shall expire at 12 pm on the last day of such periods. (2) If the time limits set forth in para. (1) end on a public holiday or a day on which business is suspended, they shall be extended until the end of the following working day.”
Third, the confusion regarding the delimitation of the concepts of days/calendar days in calculating procedural time limits has been acknowledged also in the practice of the courts of law. This is why the High Court of Cassation and Justice has been asked to rule upon an appeal in the interest of the law.
In its Decision of March 8, 2022[4], the Brasov Court of Appeal found as follows:
“The court, in line with the arguments of the appellant and of the respondent, and in disagreement with the findings of the first court, considers that the provisions of Art. 87 para. 5 of Law 448/2006 indicate the period of calendar days and the jurisdiction of the administrative court in accordance with the conditions set out in the Law 554/2004 on administrative contentious matters.
Said law, pursuant to Art. 24, is supplemented by the provisions of the Civil Procedure Code, and the method regulated by Art. 181 of the Civil Procedure Code for calculating time limits is applicable”. (our emphasis).
Fourth, there are known normative scenarios in which the lawmaker wished to derogate from the ordinary law provisions on the calculation of time limits (regulated by the Civil Procedure Code) and established special methods of calculating time limits expressed in calendar days (strictly applicable to a particular normative act).
The notion of days is defined in Art. 3 para. (1) item 56 of the Law 98/2016 on public procurement (“Law 98/2016) as “calendar days, unless expressly provided that they are working days.”
Furthermore, as per the provisions of Art. 3 para. (2) letter d) of Law 98/2016 “if the last day of a period expressed in days, months or years is a public holiday, Sunday or Saturday, the period ends when the last hour of the following working day has passed”.
Also, even the provisions of Art. 2 para. (2) of GEO 120/2021 include a reference to the definitions provided in the law on public procurement, including the provisions of Law 98/2016:
“The definitions in para. (1) are supplemented by the ones included in Law 98/2016, as amended and supplemented, Law no. 99/2016, as amended and supplemented, Law no. 100/2016, as amended and supplemented, Government Emergency Ordinance 114/2011, approved in an amended and supplemented form by Law 195/2012, as amended and supplemented.”
Therefore, assuming that the method established by GEO 120/2021 for calculating periods is the one regulated by Law 98/2016 (and not the one regulated by the Civil Procedure Code), even in this case the lawmaker has chosen to consider the time limit as expired only at the end of a working day.
Yet, with respect to the five-calendar day period specified in Art. 10 para. (7) of GEO 120/2021, the lawmaker has not opted for any derogation as to the way in which the period should be calculated and therefore has not chosen to eliminate the possibility regulated by Art. 181 para. (2) of the Civil Procedure Code (as well as by Art. 3 para. 2 item d) of Law 98/2016) of performing the procedural act by the end of the following working day, if the period ends on a non-working day (as the above-cited communications of the Ministry of Finance seem to show, erroneously in our opinion).
In conclusion, GEO 120/2021 refers to the notion of calendar days without regulating however an autonomous meaning of this notion for the purposes of the ordinance.
Thus, the ordinary legal provisions of the Civil Procedure Code (which supplement the legal provisions applicable to fiscal procedure matters) remain applicable, allowing the performance of the obligation to submit invoices in the national e-invoicing system RO e-Factura until the following working day, if the 5-day period comes to an end on a non-working day.
[1] Emergency Ordinance 120/2021 on the management, operation and implementation of the national electronic invoicing system RO e-Factura and the electronic invoice in Romania, supplementing Government Ordinance 78/2000 on the authorisation, the issue of vehicle identity cards and the certification of the authenticity of road vehicles to be placed on the market, offered on the market, registered or licensed in Romania, as well as on market surveillance.
[2] Source: https://ro.linkedin.com/posts/ministerul-finan%C8%9Belor_cum-se-calculeaz%C4%83-termenul-de-transmitere-activity-7229146225634156544-QWJi
The above interpretation is also available on the website of the Ministry of Finance: link
[3] Art.75: Calculation of deadlines. Any kind of deadlines related to the exercise of rights and performance of obligations provided by the Fiscal Code, by this code and any other applicable legislation, unless otherwise provided for in the tax legislation, shall be calculated in accordance with the provisions of the Civil Procedure Code, republished.
[4] Source www.rejust.ro, RJ Code: eed45deg7
By Marius Ezer, Partner, and Dragos Pigui, Senior Associate, NNDKP
