Latest news in the corporate field – New rules on registrations with the Trade Register and amendments to the Companies Law
On July 26th, 2022, the corporate legislation has been amended following the entry into force of Law no. 265/2022 regarding Trade Register and amending and supplementing other legal enactments having impact on registrations with the Trade Register (“Law 265/2022”), including certain provisions of the Companies Law no. 31/1990 (“Companies Law”), which was published in the Official Gazette no. 750/26.07.2022.
The new provisions will enter into force starting with November 26th, 2022.
The main amendments made by Law 265/2022 pertain to the following aspects:
1. Amendments to the procedure of registration with the Trade Register and the professional status of the registrars
- The term “designated person” is replaced with the term “registrar with the trade register”, which is defined as the specialized person in charge of the prior legality control of the registrations with the Trade Register, who is responsible for analyzing and processing registration requests. The new enactment also establishes requirements to be met by the individuals appointed as registrars.
- In order to ensure a uniform practice of the National Trade Register Office and the local Trade Register offices, a commission for analysis and uniform practice will be established.
- A new electronic platform is introduced, i.e. the Electronic Bulletin of the Trade Register, which will act as a new publicity formality for certain corporate operations, acts and facts.
- The new law introduces the obligation to create electronic archives of the files containing the registration requests with the Trade Register, as well as the supporting documents. This requirement will be applicable starting with August 1st, 2023.
- The documents issued by the Trade Register (e.g. excerpts, certificates, copies of the documents) will bear the qualified electronic signature of the Trade Register.
- Various rules in respect of the electronic signature have been introduced in order to ease the registration procedure.
- Stricter rules have been implemented regarding the languages of the supporting documents submitted with the Trade Register, in order to ease the electronic archiving thereof – when a document is intended to be bilingual, the text in Romanian language should be first.
- Templates of the articles of association for each type of company shall be made available on the Trade Register’s website and online portal.
- The new law reduces the validity period of the proof of availability and reservation of the company name from three months to one month as of the issuance thereof.
- It will no longer be mandatory to obtain the approval of the Secretariat of the Romanian Government or of the prefect in case the envisaged company’s name contains words such as “national”, “Romanian”, “institute” or derivatives thereof, the Trade Register performing itself such verifications.
- The procedure for registrations has been simplified, various supporting documents being eliminated, the most important ones being the sworn statements by the founders, legal representatives (directors, managers, members of the corporate bodies) and auditors or financial auditors on the fulfilment of the requirements and conditions imposed by law and the signature specimen for legal representatives. Likewise, it will no longer be necessary to submit the proof of availability and reservation of the company’s name.
- New procedural rules have been established for both the registration requests before the registrars (including complaints against the decisions thereof), and the procedure before the courts of law.
- New provisions have been established in respect of (i) the registration of the sworn declaration with respect to the fulfilment of the requirements for functioning/conducting of the activity of the company and (ii) issuance of the sole registration code and the tax registration of the entities which have the obligation to register with the Trade Register.
2. Amendments to the Companies Law
- The term “judge delegated with the trade register office” is replaced with the term “registrar with the trade register”.
- The registrars are now empowered to perform the legality control over all registrations with the Trade Register and the new law seems to transfer the competence to decide on mergers (including cross-border mergers) and spin-offs from the courts of law to the registrars with the trade register.
- The fulfilment by the founder of the requirements and conditions imposed by law to hold and exercise the position of shareholder will be covered by express clauses inserted in the articles of association of the company.
- Likewise, the fulfilment by the directors, managers and other persons within the managing corporate bodies of the company, as well as by the auditors or financial auditors of the obligation to hold and exercise such roles, will be covered by express clauses inserted in the mandate acceptance deed or the services contract, as the case may be.
- A clear provision has been introduced stipulating that a director, manager or a member of the management bodies of the company must expressly accept such mandate so that their appointment is legally valid.
- The new law introduces new mandatory points that need to be included in the articles of association of companies, as follows:
(i) for limited liability companies, general partnerships and limited partnerships:
- the subscribed share capital;
- the manner in which the resolutions of the General Meeting of the Shareholders are to be approved by vote of all shareholders, when, due to the parity of the participation to the share capital, an absolute majority cannot be met;
- the term of the directors’ mandate;
- in case of dissolution and liquidation, the manner in which the debts shall be satisfied or settled with the creditors, when all shareholders agree upon the distribution and liquidation of the patrimony of the company;
- the identification data of the ultimate beneficial owner and the manner in which they exercise the control over the company.
(ii) for joint-stock companies:
- the type of company, either public or private.
- the identification data of the ultimate beneficial owner and the manner in which they exercise control over the company.
- Limited liability companies shall be bound to pay an amount equal to 30% of the value of the subscribed share capital no later than 3 months as of the incorporation date, but prior to commencing any operations on behalf of the company and the difference up to the full value of the subscribed share capital within (i) 12 months as of the incorporation date in case of cash contributions and (ii) maximum 2 years as of the incorporation date in case of contributions in kind.
- Art. 441 of Companies Law is amended by the new enactment which now provides that the acquisition by the company of an asset from a founder or shareholder in exchange for an amount representing at least 1/10 of the subscribed share capital is registered with the trade registered based on the transfer deed concluded pursuant to the law, its publication not being limited to the Official Gazette.
- The provision regarding passing decisions related to the amendment of the articles of association of limited liability companies with unanimity of the votes of the shareholders (unless the law or articles of association provide otherwise), provided by art. 192 para. (2) of Companies Law is repealed.
- The term of one year during which the decision of the general meeting of shareholders approving the increase of the share capital must be implemented is replaced with a term of 18 months.
- The rule applicable to general partnerships, based on which, in case of death of a shareholder and unless otherwise provided, the company must pay the share due to the heirs according to the latest approved balance sheet within three months as of the notice on the shareholder’s death, unless the remaining shareholders prefer to continue the partnership with those heirs who consent thereto, is extended to limited liability companies also.
- The dissolution of the company due to the fact that the registered office does not meet the requirements provided by law will no longer be triggered by the expiry of the term of the title of use or the transfer of the title of use or ownership over the premises which represent the registered office.
- New provisions have been introduced with respect to dissolution, i.e. the Trade Register shall ascertain the fulfilment of the conditions for the dissolution of the company, either at the request of any interested person or ex officio, in the following cases:
- the expiry of the term of the title of use or the transfer of the title of use or ownership, over the premises which represent the registered office of the company;
- the company’s activity ceased or was not resumed after a temporary period of inactivity, notified to the tax authority and registered with the trade register, provided that such period does not exceed 3 years from its registration;
- in the case of companies incorporated for a limited term, upon the expiry of the term established in the articles of association.
- If the company opted for the publication of the merger/spin-off plan on its own website, the 30-day opposition period shall be now calculated starting with the publication of the merger/spin-off plan in the Electronic Bulletin of the Trade Register.
- The publicity formalities for the absorbed companies may be carried out by the absorbing company in all cases.
- The liquidation of a company must be completed no later than one year after the date of registration of the dissolution in the Trade Register. This period may be extended three times by successive periods of one year.
- The new enactment establishes new provisions allowing the registrar to acknowledge, if no de-registration request is submitted within three months as of expiry of the maximum liquidation term (renewed, as the case may be), either upon the request of any interested party or ex officio, the expiration of such term and to decide upon the de-registration of the company from the Trade Register.
- For joint-stock companies, the failure to keep the shareholders’ register or the failure to provide the shareholders with information or certificates on the shareholding structure of the companies shall now constitute contravention and shall be punished by fines ranging between RON 5,000 – 15,000 (approx. EUR 1,000 – 3,000).