On 26.07.2022, Law no. 265/2022 regarding the Trade Register and the amendment and completion of other normative acts affecting registration in the trade register („Law 265/2022”) was published to The Official Gazette of Romania, having as its main object the registration procedure in the Trade Register.
Law 265/2022 will enter into force on 26.11.2022 and will also bring changes to other normative acts with an impact on registration in the commercial register, including the Companies’ Law no. 31/1990 („Law 31/1990”).
Some of the relevant amendments to Law 31/1990 concern:
i. Appointment of management, administration and supervision bodies
The appointment of an administrator, director, or a member of the directorate or the supervisory board of a company will be valid from a legal point of view only if this person expressly accepts it, this being a condition for the validity of the respective person’s mandate.
In this sense, new provisions are introduced regarding the assumption of fulfilling the conditions provided by Article 6 of Law 31/1990, respectively:
– the founders assume their responsibility by signing the articles of association.
– administrators, board members, directors, board members, censors, assume responsibility by expressly accepting their mandate; and
– the financial auditor by concluding the service agreement.
For each agreement, a clause will be included to reflect this statement.
In fact, by this statement, the above persons declare that they are not in a case of incapacity or that there is no complementary punishment ordered by a final court decision condemning the offences listed in Article 6 para. 2 of Law 31/1990.
ii. Content of the articles of association
a) Limited Liability Companies, companies in collective name or limited partnerships:
– The articles of association will include the subscribed share capital (the current form of Law 31/1990 provides that the act includes the share capital and not the subscribed share capital);
– The articles of incorporation will contain two new elements, namely:
1. the method of adopting the decisions of the general meeting of shareholders, by the vote of all the shareholders, if, due to the parity of the participation in the share capital, an absolute majority cannot be established, and
2. where required by law, the identification data of the real beneficiaries and the ways in which control over the company is exercised.
– Two mandatory elements of the articles of association will be amended as follows:
1. The articles of association must also contain the duration of the administrators’ mandate, in addition to the statements regarding the associates that represent and manage the company or non-associated administrators, their identification data, the powers conferred on them and whether they are to exercise them together or separately;
2. In addition to the dissolution and liquidation of the company, detailed rules should be laid down to ensure the extinguishment of the liability or to regularise it in agreement with the creditors, in the event of dissolution without liquidation, where the members agree on the distribution and liquidation of the company’s assets.
b) Joint-stock companies or joint-stock limited companies
The articles of incorporation shall also include:
– the type of company, whether closed or opened, and any restrictions on the transfer of shares, and
– where applicable, the details identifying the real beneficiaries and the ways in which control over the company is exercised.
iii. Share capital
a) Limited Liability Companies
In the case of limited liability companies, it was introduced the obligation to pay at least 30% of the amount of the subscribed share capital within 3 months from the date of registration, but in any case before starting operations on behalf of the company. The difference in the subscribed share capital shall be paid up, as follows:
1. for cash contribution, within 12 months from the date of registration;
2. for intake in kind, within 2 years from the date of registration.
Law 265/2022 also introduced the obligation of the company, in the event of the death of an associate and in the absence of a contrary agreement, to pay the due share to the heirs, after the last approved balance sheet, within 3 months from the notification of the death of the associate, if the remaining associates do not prefer to continue the company with the heirs who consent to it.
That obligation existed previously only in the case of companies in collective name and in limited partnership, provided that the heirs opted to remain in society in that capacity.
b) Companies in collective name and in limited partnership
For companies in collective name and in limited partnership, the obligation to pay in full the subscribed share capital on the date of constitution remains.
iv. Increase of the company’s share capital
As regards the increase of the share capital of all the companies regulated by Law 31/1990, the decision of the general meeting by which this decision was taken will take effect only to the extent that it is carried out within 18 months from the date of adoption (in its previous form, Law 31/1990 provided a period of no more than one year from the date of adoption).
v. Removal of the obligation to submit the signature specimen
With the repeal of Article 45 and the implicit amendment of Article 143 index 2 and Article 153 index 3 of Law 31/1990, the representatives of the company will no longer be obliged to submit to the Trade Register specimens of signature. These provisions come in the context of the transition of the procedure before the Trade Register towards digitalization through Law no. 265/2022.
Thus, from the date of entry into force of Law 265/2022, for registration in the Trade Register by electronic means, the qualified electronic signature will be used as a means of electronic identification.
vi. The dissolution of the company
In the event of dissolution of the company, it will operate a transfer from the judicial sphere towards the internalisation of the operation, but only partially. Thus, in addition to the cases provided for by article 237 of Law 31/1990, maintained in the jurisdiction of the tribunal, a new procedure is regulated by which the dissolution can be initiated and subsequently ordered by the Trade Register, in cases where:
a. the conditions relating to the registered office are no longer met, as a result of the expiry of the term of the act certifying the right to use the space for the registered office or of the transfer of the right to use or property over the space intended for registered office;
b. the company’s activity has ceased, or the activity has not been resumed after the period of temporary inactivity, announced to the tax authorities and registered in the Trade Register, a period that may not exceed 3 years from the date of registration in the Trade Register;
c. in the case of fixed-term companies, on the expiry of the period referred to in the instrument of incorporation, if the procedure laid down in Article 227 (2) (a) and (b) of this Regulation is not exceeded, (2) is not fulfilled.
Within this procedure, the National Trade Register Office, through the registrar, finds that the conditions for the dissolution of the company are met in the restrictive cases provided above, at the request of any interested person or ex officio, by conclusion. However, this procedure is quasi-administrative, since the complaint against the registrar’s conclusion, filed by the company whose dissolution was found, by ANAF or by any other interested person, remains within the competence of the courts.
vii. Control regarding the legality of records
With the repeal of Article 37, the review of the legality of the acts and facts that are registered in the Trade Register will no longer be carried out by the delegated judge, but by a registrar of the Trade Register, thus operating the transfer of jurisdiction from the sphere of judicial power to the administrative one. This change obviously involves an extension of the duties of the Trade Register’s officials, both from the perspective of post-factum control of legality and of the endorsement of certain acts/ operations [Article 19(1), Article 26(1), Article 38(1), Article 40(1), etc.].