Editura Universitara Company law in Romania, 4th edition

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Publisher: Editura Universitara

Author: Daniel-Mihail Sandru

ISBN: 978-606-28-1209-6

DOI: https://doi.org/10.5682/9786062812096

Publisher year: 2021

Edition: 4th

Pages: 402

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This volume, Company Law in Romania, is a consolidated and updated version of previous editions, published since 2006, "Company Law" and "Companies in the European Union".

The paper is completed with company agreements. Clauses, pacts, agreements between the associations of commercial companies, 2nd Edition, University Publishing House, Bucharest, 2012 (of which we took excerpts in this volume) and with the Freedom to establish companies in the European Union. Collection of legislation and jurisprudence, 2nd edition, University Publishing House, 2014.

This paper does not analyze aspects of European company law. Paradoxically, although there have been important changes, both qualitatively and quantitatively, the Companies Law has not been republished. It is a disadvantage when working with its provisions. In addition, since the last republishing of the law, in 2004, more than 20 changes have taken place.

DANIEL-MIHAIL SANDRU is a scientific researcher gr. I, founded and coordinates the Center for European Law Studies (CSDE) of the Institute for Legal Research "Acad. Andrei Radulescu ”of the Romanian Academy. University professor at the Christian University "Dimitrie Cantemir" and the University of Bucharest. Arbitrator at the International Commercial Arbitration Court attached to the Romanian Chamber of Commerce and Industry and ad-hoc judge at the European Court of Human Rights. President of the Society of Legal Sciences and Honorary President of the Romanian Association of European Law and Affairs. Editor-in-Chief of the Romanian Journal of European Law (Wolters Kluwer).

PREFACE / 13

CHAPTER I. PRINCIPLES OF CORPORATE LAW / 15
Section 1. Brief history and regulation / 15
Section 2. Definition and delimitation of other legal institutions / 19
Section 3. Principles of company law / 26
Section 4. Trends in Romanian company law / 30

CHAPTER II. MAIN OBLIGATIONS OF COMPANIES / 32
Section 1. Registration in the Trade Register, registration of mentions in case of modification of certain elements / 32
Section 2. Keeping the accounting in accordance with the legal provisions / 33
Section 3. Exercising trade within the limits of lawful competition and protection against unfair competition / 34
Section 4. Compliance with environmental rules / 37

CHAPTER III. REGISTRATION OF COMPANIES / 38
Section 1. Stages of company formation / 38
§ 1. Drafting the constitutive act / 38
§ 2. Presentation of the file to ONRC / 38
§ 3. Registration in the trade register / 40
§ 4. Assignment of the unique registration code / 43
§ 5. Procedure for authorizing the operation / 43
§ 6. The role of the delegated judge / 43
§ 7. Submission of the signature specimen by the company's representatives and branch managers / 47
§ 8. Facilities granted to associate students / 48
Section 2. The effects of violating the legal requirements for incorporation. Action in regularizing the company / 48
Section 3. Publicity of the constitutive acts / 56
Section 4. Effects of company registration / 58
§ 1. Acquisition of legal personality / 58
§ 2. Society is a legal fiction / 62
§ 3. Nullity of the company / 63
A. Preliminary clarifications / 63
B. Causes of the nullity of the company / 64
C. The effects of declaring the company null and void / 65
D. The distinction between the declaration of the nullity of the company and the regularization action / 66


CHAPTER IV. TRADE ORGANIZATION IN ROMANIA / 67
Section 1. Administrative organization of trade through the Trade Register / 67
Section 2. Mentions registered in the Trade Register / 68
Section 3. Obligation to request the registration of mentions / 72


CHAPTER V. ESTABLISHMENT OF COMPANIES / 73
Section 1. The substantive and formal conditions of the constitutive act / 73
§ 1. The notion of constitutive act / 73
§ 2. The substantive conditions of the constitutive act. General rules / 74
§ 3. The substantive conditions of the constitutive act. Special rules. Contribution, affectio societatis, profit sharing and loss bearing / 74
§ 4. The formal conditions of the constitutive act / 92
§ 5. Enumeration of the elements of the constitutive act / 95
Section 2. Legal status of the associates / 97
§ 1. Notion / 97
§ 2. Incompatibilities / 104
§ 3. The rights and obligations of the associates / 105
Section 3. The patrimony, the share capital and the company's reserves / 108
Section 4. Name and emblem of the company / 112
§ 1. Name of the company / 112
§ 2. Emblem of society / 116
§ 3. Prohibitions and legal restrictions near some terms in the content of the companies / 117
§ 4. The legal regime of the company in case of assignment of goodwill / 120
§ 5. Domain name (IP) / 121
Section 5. Legal form of companies / 122
Section 6. Head office of the company / 124
§ 1. The notion and importance of the headquarters / 124
§ 2. Characteristics of the headquarters / 128
§ 3. Rules for establishing the seat / 130
§ 4. Proof of headquarters / 131
§ 5. The effects of the absence of the headquarters / 132
Section 7. Branches, branches, offices, representative offices / 132
§ 1. Branches / 132
§ 2. Branches / 133
A. Definition / 133
B. The capacity of the branch to conclude legal acts / 134
C. Registration and operation of the branch / 135
§ 3. Representatives of foreign economic companies and organizations / 135
§ 4. The notions of “unity” and “holding unit” / 136
Section 8. The object of activity of the company / 137
§ 1. Notions / 137
§ 2. Regulation / 139
§ 3. Elements that may form the object of activity of the company / 140
§ 4. Special issues / 144
§ 5. The sanction of violating the provisions regarding the object of the company / 146

CHAPTER VI. ORGANIZATION AND FUNCTIONING OF JOINT STOCK COMPANIES / 147
Section 1. Preliminary details. Legal regime of shares / 147
§ 1. Notions / 147
§ 2. The legal regime of the actions / 148
§ 3. Transfer of shares / 153
§ 4. Acquisition of own shares by the company / 156
Section 2. General meeting of associates / 159
§ 1. Types of general meetings / 159
§ 2. Constituent Assembly / 159
§ 3. Ordinary General Assembly / 160
§ 4. Extraordinary General Assembly / 161
§ 5. Delegation of certain powers of the extraordinary general meeting to the board of directors / 163
§ 6. Special Assemblies / 164
§ 7. Quorum required for valid decisions / 165
§ 8. Convening of the general assembly / 167
A. The initiative to convene the general assembly / 167
B. Content and communication of the convocation / 183
C. Representation of associates / 199
D. Exercise of the right to vote / 203
E. Majority abuse in the general meeting of shareholders / 205
F. The phrase “reference date” / 206
§ 9. Meeting of the general assembly / 206
Section 3. Decisions of the general assembly / 207
§ 1. Substantive and procedural conditions regarding the taking of the decisions of the general assembly / 207
§ 2. Obligation of the decisions of the general assembly / 209
§ 3. The action in annulment of the decision of the general assembly / 209
§ 4. Provisional measures approved by the court. Presidential Order / 219
Section 4. Common rules for the unitary system and the dualistic system of company administration / 222
§ 1. Preliminary considerations / 222
§ 2. The legal conditions to hold the quality of administrator or member of the supervisory board / 224
§ 3. Term of office of the administrator / 226
§ 4. The rights of the administrators / 227
§ 5. Deliberation procedure / 230
§ 6. Obligations of the administrators or of the supervisory board / 231
§ 7. Termination of the quality of administrator / 233
Section 5. Unitary administration system of the company / 234
§ 1. General considerations / 234
A. Number of administrators / 234
B. Appointment of administrators / 235
C. Vacancy for administrator positions / 235
D. Non-executive directors / 236
E. Independent directors / 236
§ 2. Board of Directors / 237
A. The chairman of the board of directors / 237
B. Advisory Committees / 237
C. Functioning of the board of directors / 238
D. Duties of the Board of Directors / 239
§ 3. Directors - officials of the company / 239
A. Introductory considerations / 239
B. Obligations of directors / 240
C. Representation of the company by directors / 240
D. Liability of the Director / 241
§ 4. The relationship between the company and third parties / 242
§ 5. Obligations of the administrators / 243
A. Liability of administrators / 243
B. Business decision / 245
C. Interests contrary to society / 247
D. Prohibited operations between administrators and the company / 248
§ 6. Exceptions from the application of the rules in the unitary system / 250
Section 6. Company administration in the dualist system / 251
§ 1. Principles / 251
§ 2. Directorate / 251
A. Powers of the Directorate / 251
B. Appointment of the members of the directorate / 252
C. Incompatibilities / 252
D. The management represents the company in relation to third parties and in justice / 253
E. Obligations of the management / 253
§ 3. Supervisory Board / 254
A. Appointment of the members of the supervisory board / 254
B. Job vacancy / 254
C. Incompatibilities / 255
D. Rights and obligations / 255
E. Advisory Committees / 256
F. Decision - making procedure / 256
Section 7. Company registers and annual financial statements / 257
Section 8. Control of the company's operations activity / 259
Section 9. Specific rules of the limited partnership on shares / 263

CHAPTER VII. ORGANIZATION AND FUNCTIONING OF PERSONNEL SOCIETIES / 264
A. LIMITED LIABILITY COMPANY / 264
Section 1. Features of the limited liability company / 264
§ 1. Preliminary clarifications / 264
§ 2. The legal regime of the social parts / 264
Section 2. General meeting of associates / 267
§ 1. The rights and obligations of the associates / 267
§ 2. The functioning of the general assembly at the S.R.L. / 268
Section 3. Administration of the limited liability company / 272
§ 1. Appointment of the administrator / 272
§ 2. Powers of administrators / 278
§ 3. Remuneration of administrators / 284
§ 4. The cumulation of the quality of administrator / 287
§ 5. Responsibility of the administrator / 294
§ 6. Termination of the mandate of administrator / 299
Section 4. Censors of limited liability companies / 301
Section 5. Rules specific to the limited liability company with sole partner / 302
B. THE COMPANY IN COLLECTIVE NAME AND THE COMPANY IN SIMPLE LIMITED LIABILITY COMPANY / 304
Section 1. Preliminary Specifications / 304
Section 2. Rights and obligations of associates / 305
§ 1. The rights of the associates / 305
§ 2. Obligations of the associates / 306
§ 3. Assignment of interested parties / 307
§ 4. Rules regarding the assembly of associates at SNC and SCS / 307
Section 3. CNS and SCS administration  / 308
§ 1. Rules regarding the administration of SNC / 308
§ 2. Rules regarding the administration of SCS / 309

CHAPTER VIII. AMENDMENT OF THE CONSTITUTIONAL ACT / 310
Section 1. Introduction / 310
§ 1. Preliminary clarifications / 310
§ 2. The effects of the amendment / 313
§ 3. Procedure in case of modification of the constitutive act / 313
Section 2. Changing the form of the company / 315
Section 3. Modification of the company's headquarters / 318
Section 4. Changing the duration of the company / 319
§ 1. Competence, quorum / 319
§ 2. The moment at which the decision to change the duration is taken / 319
§ 3. The right to oppose the modification of the duration of the company / 320
Section 5. Reduction or increase of the share capital / 323
§ 1. Reduction of share capital / 323
§ 2. Increase of the share capital / 326
§ 3. The right of preemption / 329
§ 4. Issue premium / 331
§ 5. Authorized capital / 333
Section 6. Exclusion and withdrawal of associates / 334
§ 1. Preliminary clarifications / 334
§ 2. Cases of exclusion of the associate / 335
§ 3. Exclusion in the case of SA and SCA / 341
§ 4. The rights and obligations of the excluded associate / 342
§ 5. The right to withdraw from society / 343
A. The company in collective name, in simple limited partnership or in the limited liability company / 343
B. Withdrawal of the shareholder from the joint stock companies / 345
§ 6. The rights of the retired associate / 57
Section 7. Merger and division of the company / 359
§ 1. The causes of the merger of the companies / 359
§ 2. The modalities of the merger / 359
§ 3. Modalities of division / 360
§ 4. Merger or division project / 360
§ 5. Opposition to merger or division / 361
§ 6. Obligations of the administrators / 362
§ 7. The effects of merger and division / 363
§ 8. Effects on holders of securities / 365
§ 9. Nullity of merger and division operations / 366
Section 8. Opposition of social creditors and other interested persons / 367
§ 1. Necessity and notion / 367

CHAPTER IX. DISSOLUTION AND LIQUIDATION OF THE COMPANY / 371
Section 1. General causes of dissolution / 371
§ 1. Preliminary clarifications / 371
§ 2. Analysis of general cases of dissolution of companies / 372
Section 2. Effects of dissolution / 377
§ 1. Opening of the liquidation procedure / 377
§ 2. The interdiction regarding the development of new operations applicable to the persons who ensure the management of the company / 378
§ 3. Prohibition of the amendment of the constitutive act / 379
Section 3. Legal personality of the company and deregistration from the Trade Register / 379
§ 1. The legal personality subsists for the purpose of liquidating the company / 379
§ 2. Deletion of the company / 380
Section 4. Liquidation of the company / 390
§ 1. Preliminary clarifications / 390
§ 2. The legal status of the liquidators / 391
§ 3. Liquidation of companies in collective name, in limited partnership or with limited liability / 393
§ 4. Liquidation of joint stock companies and limited partnerships / 394

Selective bibliography / 397





 

This volume, Company Law in Romania, is a consolidated and updated version of previous editions, published since 2006, "Company Law" and "Companies in the European Union".

The paper is completed with company agreements. Clauses, pacts, agreements between the associations of commercial companies, 2nd Edition, University Publishing House, Bucharest, 2012 (of which we took excerpts in this volume) and with the Freedom to establish companies in the European Union. Collection of legislation and jurisprudence, 2nd edition, University Publishing House, 2014.

This paper does not analyze aspects of European company law. Paradoxically, although there have been important changes, both qualitatively and quantitatively, the Companies Law has not been republished. It is a disadvantage when working with its provisions. In addition, since the last republishing of the law, in 2004, there have been over 20 changes.

Thanks in this way to C.H. Beck and the Legal Universe for access to the bibliography. I also thank Wolters Kluwer for accessing the program sintact.ro. In this manual are taken several articles from the 2000s, published in Private Business Law or in magazines published by Tribuna Economica.

We have kept the references to the database of the Ministry of Justice, Superlex, although it is no longer accessible. Today, apart from the mentioned databases and sintact.ro, rolii.ro has a very important role (with some shortcomings, such as the deficient anonymization process, the impossibility to find out if some decisions are final).

The changes between the appearance, at the beginning of 2017, of the 4th edition and the present edition may not be many, but important, especially for students, who need correct information. The first imperative is the need for an adequate position in relation to the legislative text, followed by the interpretation or even the exhaustive treatment. From this perspective, the current text of the volume is an update.

All materials cited on the Internet were last consulted on December 8, 2020.

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