Legal News by BBW LAW, September 2022

Mon | 12.09.2022

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New Trade Registry Law and Amendments to Corporate Law

On 26 July 2022, Law No. 265/2022 on the trade registry, amending and supplementing other legal instruments applicable to the registration with the trade registry (“Law No. 265/2022”), including Companies Law No. 31/1990 (“Companies Law”), was published in the Official Gazette No. 750/2022.

Law No. 265/2022 shall enter into force within 4 months as of its publication in the Official Gazette of Romania, i.e. on 26 November 2022 (save for few articles dealing with certain administrative matters, which shall enter into force within 3 days as of the publication date, and for article 8(2) dealing with the electronic archiving of the documents submitted to the Trade Registry, which shall enter into force on 1 August 2023).

Main changes to registrations with the Trade Registry:

• the implementation of the electronic Bulletin of the Trade Registry, organized as a central electronic platform via the online services portal of the Trade Registry National Office, where all the decisions and information of the Trade Registry shall be published;
• the procedures for registration with the Trade Registry are simplified by eliminating several documents and information that will be obtained directly by the Trade Registry from the competent authorities;
• the application for registration and the articles of incorporation may be signed in wet ink or with a qualified electronic signature;
• the sworn statements (the shareholder/director/manager confirming the compliance with the legal requirements) may be signed as private deeds;
• the reduction of registration deadlines to one working day as well as of the deadline for filing complaints against registrations to 10 days after the communication / registration in the electronic Bulletin / Official Gazette.

Main changes to Companies Law:

• new mandatory provisions to be inserted in the articles of incorporation of the limited liability companies;
• the subscribed share capital (instead of the share capital, as currently provided);
• the manner of passing resolutions by the general shareholders meeting, with the vote of all shareholders, if an absolute majority cannot be established due to the parity of shareholdings;
• the term of the directors’ mandates;
• where required by law, information regarding the ultimate beneficial owners and the manner in which control of the company is exercised;
• in the case of dissolution without liquidation, the methods used to extinguish or to settle the liabilities in agreement with the creditors, when the shareholders agree on the distribution and liquidation of the company’s assets;
• the share capital of the limited liability company has to be paid as follows: (i) an amount representing 30% of the subscribed share capital no later than 3 months from the incorporation date, but prior to commencing any operations on behalf of the company, and (ii) the balance (ii.1) for the cash contribution, within 12 months from the registration date and (ii.2) for contribution in kind, within no more than 2 years from the registration date;
• the current rule providing that the resolutions approving the amendment of the articles of incorporation of the SRL are passed with the vote of all shareholders, is abolished;
• new mandatory provisions in the articles of incorporation of the joint stock companies;
• the type of company (public or private), as the case may be;
• where required by law, information regarding the ultimate beneficial owners and the manner in which control of the company is exercised;
• any director, manager, member of the directorate or of the surveillance council, must expressly accept such mandate in order for their nomination to be legally valid;
• the resolution of the general shareholders meeting approving the share capital increase must be applied within a 18-month term from the date of the resolution (compared to one year today);
• new provisions regarding the dissolution of the company;
• the mergers/spin-offs shall be approved by the Trade Registry, being no longer subject to court proceedings;
• the joint stock companies: the company’s failure to keep a shareholders’ registry or to make available to the shareholders / any other applicant information on the company’s shareholding structure or to make available to the shareholders and bondholders the registry of meetings and resolutions of the general shareholders’ meetings and the bonds registry shall be qualified minor offences and punished by fines ranging from RON 5,000 up to RON 15,000. If the representative of the company fails to fulfil such obligations within 30 days from the application of the fine, the tribunal could order the dissolution of the company upon the request of the Ministry of Finances – the National Agency of Fiscal Administration.

Representative Offices of Foreign Companies

Government Ordinance No. 18/2022 on the authorization and operation in Romania of representative offices of foreign companies and economic organizations (“GO No. 18/2022”) was published in the Official Gazette No. 779/4 August 2022.

The operation permits of the representative offices issued before the date of entry into force of this GO no. 18/2022 (i.e. 7 August 2022) shall remain valid according to the regulations in force at the date of their authorization.

Until the implementation of the electronic platform (180 days from the entry into force of GO No. 18/2022) both the submission of applications and their processing shall be carried out in accordance with the procedure applied prior to the adoption of this GO No. 18/2022.

Main changes to the authorization of the representative offices are:

• they shall operate based on a permit issued by the Ministry of Entrepreneurship and Tourism, by means of an electronic platform;
• the permit shall be valid for a minimum period of 1 year, with the possibility of extension for the same period;
• the authorization tax is in amount of EUR 1,000/year, payable to the tax authority;
• the foreign companies / economic organizations holding representative offices in Romania shall be held jointly liable with the employees of the representative offices for any damages resulting from the unlawful deeds which are committed by such employees during the performance or in connection with the performance of their activity.

Disclaimer: The information provided herein is in no way exhaustive and does not, and is not intended to, constitute legal advice. Readers of this Article should contact their attorney to obtain advice with respect to any particular legal matter.

This article is provided by our Legal Partner BBW LAW l BORA BANU van de WAART.

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