Foreign investors and new entrepreneurs are in for a treat starting from November 26th, 2022, when Law no. 265/2022 regarding the Romanian trade registry and for the amendment and completion of some normative acts incident on trade registry formalities shall enter into force (“Law no. 265/2022”). This law highly facilitates the establishment of companies in Romania and represents the transposition of Directive (EU) 2019/1151 of the European Parliament and of the Council of 20 June 2019 amending Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law (the “Directive”).
The Directive focuses on the importance of interconnecting trade registries from the member states and on increasing digitalization in all aspects related to the company registration process, in order to be more cost and time efficient, as well as accessible from abroad. One of the measures transposing such principles by Law no. 265/2022 implies that the Romanian trade registry shall keep a record with all the registration requests and supporting documents for each registered professional and shall be archived electronically, for ease of access and search, even if such documents are submitted only on paper. This measure shall be applied starting with August 1st, 2023.
Based on the guidelines of the Directive, the Romanian legislator felt the need to update the registration procedure and formalities, as well as to introduce new specialized legal officers, named registrators, to support and supervise the more fluid process created. Such registrators must fulfil a series of conditions, which, among others, include having a law major and at least 5 years of actual experience in a legal field.
One of the most welcomed novelties is the possibility to fully establish a company online, based solely on electronic means, from the beginning of the registration process up to the issuance of the electronic registration certificate, which shall be issued online, as well, bearing a qualified electronic signature. For the purpose of such registration, both the registration request and the articles of association shall be able to be signed electronically, with qualified electronic signature, by the legal representative or proxy or by the founders or its proxy, as the case may be.
Insofar as the persons who have the quality of founders or directors, Law no. 265/2022 provides higher standards, for the protection of their position and for facilitating the formalities prior to the company incorporation by eliminating some statements. For example, it is stipulated that by signing the articles of association, the founders undertake entire liability for the fulfilment of the conditions required by law to establish a company and such clause is expressly mentioned within said articles of association. Also, directors must expressly accept their appointment in order for such to be legally valid and binding. By accepting such mandate, the directors undertake full liability for holding and exercising said position within the company. This undertaking shall be formally included in their contract. Additionally, directors shall be exempt from providing a signature specimen.
Practitioners are familiar with the differences between trade registry offices’ approaches across Romania, but fortunately, Law no. 265/2022 establishes a specialized Committee for analysis and unitary practice, which shall include the newly appointed registrators and legal personnel. The Committee can request points of view from the Ministry of Justice or from other institutions, if required, in order to set out the way a certain situation shall be solved at the level of the country. The regulation for the organization and functioning of this Committee has not yet been adopted.
As far as the articles of association are concerned, Law no. 265/2022 provides the possibility of their electronic filling in based on standard online forms. Also, starting from November 26th, 2022, it shall be mandatory for the ultimate beneficiary owners and the ways they control the company to be mentioned in the articles of association of collective companies, limited partnership companies, limited liability companies and joint stock companies.
On November 26th, 2022, Laws no. 26/1990 regarding the trade registry, Law no. 359/2004 simplifying the registration formalities of individuals, family associations, legal entities, their fiscal registration as well as the authorization of functioning of legal entities and Emergency Government Ordinance no. 116/2009 for trade registry registrations shall be abrogated.
Roxana Mihaela Catea, Counsel with Stratulat Albulescu SPRL
