A Law Project adopted by the Parliament and promulgated by the President of Romania brings significant changes regarding the registration with the Trade Register.
The main normative acts amended and supplemented by the aforementioned Law Project are Law no. 26/1990 on the Trade Register, the Company Law no. 31/1990, Law No. 359/2004 on simplifying registration formalities in the trade register of individuals, family associations and legal entities, their tax registration and the authorization of legal entities and Government Emergency Ordinance no. 116/2009 regarding the establishment of measures regarding the registration with the Trade Register.
The main role of the Law Project is to transpose the provisions of Directive 2012/17/EU of the European Parliament and of the Council of 13 June 2012 amending Council Directive 89/666/EEC and Directives 2005/56/EC and 2009/101/EC of the European Parliament and of the Council as regards the interconnection of central, commercial and companies registers into the national legislation.
We hereby present the most important changes regarding the normative acts mentioned above.
First, it should be noted that Law no. 26/1990 has been amended so as to make direct reference to the system of interconnection of the Trade Registers of the Member States of the European Union.
Therefore, art. 21 of Law no. 26/1990, introduced by the recently promulgated Law Project provides that:
“(1) The Central Trade Register, kept by the National Trade Register Office and the trade registers kept by the local Trade Registers are part of the interconnection of the Trade Registers of the Member States of the European Union, hereinafter called the Business Registers Interconnection System“.
The Business Registers Interconnection System consists of registers in European Union member states and the European Central Platform.
Under the new rules, “the Central Trade Register, kept by the National Trade Register Office shall be the interconnection of business registers access point“.
The main role of the Business Registers Interconnection System is to provide the public with documents and information relating to the professional entities registered with the Trade Register.
Also, the Trade Registers can exchange documents and information with Trade Registers from the Member States of the European Union in the event of cross-border merger operations and branches set up by companies based in EU Member States.
Another novelty refers to the European Unique Identifier.
Thus, “for the purpose of identification, including in communications between trade registers in the Member States through the Business Registers Interconnection System, natural and legal persons registered with the trade register will also have an European Unique Identifier which includes the identification element of Romania, the national register identification number and the sole identification number of the natural or legal person, as well as other identification elements, if necessary to avoid identification errors “. The structure of the Unique Identifier will be approved by the Ministry of Justice.
The Law Project also brings new obligations for Romanian Companies, namely those which open branches abroad. Thus, said Companies will be obliged to mention their branches with the Romanian Trade Register Office, following the registration of the branches abroad.
In addition, legal entities with headquarters abroad who wish to open branches in Romania will have to request their registration with the Trade Register at the headquarters of each branch.
Regarding amendments to Law no. 31/1990, we mention that in the future, “legally established mortgages on equity interests may be executed in accordance with the law. Directors / Board Members are obliged to provide financial statements and any other documents or information needed for assessing the equity interests or shares, and to facilitate their uptake to the mortgagee or enforcement body, upon request“.
Moreover, the publishing through the trade register regarding the garnishment and seizure of equity interests and shares shall be made at the request of the enforcement body, without being subject to the provisions of GEO no. 116/2009 regarding the establishment of measures regarding the registration with the trade register.
Another novelty regards the fact that the mortgages on shares shall be allowed only if approved by shareholders representing at least three quarters of the share capital of the company, but only in terms of their establishment.
Perhaps the most important amendment to Law no. 31/1990 refers to cases where a company dissolution is requested.
Thus art. 237 para. (1) of Law no. 31/1990 provides as follows:
“At the request of any interested person, as well as at the request of the National Trade Register Office, the Court of Law may decide the dissolution of the Company in the following cases:
- a) The company no longer has statutory bodies or they cannot meet;
- b) Shareholders / associates have disappeared or have no known domicile or known residence;
- c) The Company does no longer meet the requirements regarding the registered office, including following the expiry of the document that certifies the right to use the space used as a registered office or the ownership right regarding the space used as a registered office;
- d) The company ceased its activity or has not resumed its activity following a period of temporary inactivity, notified to the fiscal bodies and registered with the Trade Register; the temporary inactivity period cannot exceed 3 years from the date of its registration in the trade register;
- e) The company has not completed its registered capital in accordance with the law;
- f) The company has not submitted its annual financial statements and, where appropriate, annual consolidated financial statements as well as its accounting reports to the territorial units of the Ministry of Finance, within the period provided by law, if the delay period exceeds 60 days;
- g) The company has not submitted the statement that no activity has been performed starting from moment of the registration of the company to the territorial units of the Ministry of Finance, within the period provided by the law, if the delay period exceeds 60 days “.
The list of companies against which the National Trade Register Office is going to file requests of dissolution will be displayed on the website of this institution or on its online service portal, at least 15 days before the filling of the request and will inform the Ministry of Finance – National Agency for Tax Administration.
The dissolution decision shall be communicated to both the Company and the Trade Register Office in order for the institution to register the mention of dissolution in the Trade Register as well as to the Ministry of Finance – National Agency for Tax Administration – County Finance Administration / District Finance Administration and will be published in the Official Gazette of Romania, on the NTRO website or on its online service portal.
The dissolution decision may only be appealed, and the Appellant will also have the obligation of filling a copy of the appeal to the Trade Register Office in order for it to be mentioned in the trade register.
Following a definitive solution regarding the dissolution issued by a court of law, the affected company shall enter liquidation and the liquidator will be appointed by the National Trade Register Office, and shall be paid from the estate of the dissolved company or, if the absence of any funds of the Company, a fixed fee of 1,000 RON shall be paid to the liquidator from the liquidation fund. The final statement of expenditure incurred by the liquidator in connection with the liquidation of the company shall be made by the National Union of Insolvency Practitioners of Romania, at the request of the liquidator, in the event that the dissolute company has no goods.
When the liquidator is appointed by the NTCO, at the request of any interested person, said person is exempt from any tax, fee, commission, judicial stamp duty and the like.
Meanwhile, if within three months from the date of the definitive court decision regarding the dissolution, in the absence of any request for the appointment of liquidators, the National Trade Register Office or any interested person may request the Court of Law the deregistration of the company from the trade register.
Again, the website of NTCO will display the list of companies against which the National Trade Register Office is going to file deregistration requests, at least 15 days before the filling of the request.
Deregistration decisions may be appealed only through Appeals.
Another novelty refers to public access to dissolution and deregistration decisions as well as to resolutions appointing the liquidator, which will be published on the website of the NTCO or on its online services portal and can be accessed free of charge.
In terms of spin-offs and cross-border mergers, “the Trade Register Office where the acquiring company or the newly established company is registered shall notify, through the Business Registers Interconnection System, at the Company’s expense, the cross-border merger to the corresponding authorities of the Member States in which the companies participating in the merger are registered for the purpose of deregistering them “.
Changes will also be made in the liquidation procedure concerning companies, which will must be completed in one year from the date of registration in the trade register of the mention of dissolution. For good reasons, at the request of the liquidator, the Trade Register Office may extend this period for another year, but not more than twice. The liquidation period, even supplemented, cannot overpass 24 months.
The term of appointment of liquidators who will also be increased, as they will be appointed within 60 days of registration in the trade register of the mention of dissolution. The appointment term is currently 30 days.
In addition, if the Trade Register Office was not notified of any request for deregistration within three months from the expiration of the deadline for completion of the liquidation of a company, extended if necessary, the National Trade Register Office or any interested person may request the Court of Law to deregister the company.
The amendments to Law no. 359/2004 are designed to further simplify the registration procedure of Companies.
Thus, art. 6 para. (21) of Law no. 359/2004 provides as follows:
“(21) Application for registration and documents issued in electronic format, having included, attached to or logically associated extended electronic signatures can be sent electronically through the online services portal of the National Trade Register Office as well as through the single electronic contact point system, in accordance with the provisions of Government Emergency Ordinance no. 49/2009 regarding the free establishment of service providers and freedom to provide services in Romania “.
Another important novelty refers to the certificate of registration for companies, which besides the registration number with the Trade Register and fiscal identification code will also include the European Unique Identifier and other data that shall be established by order of the Ministry of Justice.
The most important change to GEO no. 116/2009 regarding the establishment of measures regarding the registration in the Trade Register relates the powers of appointment of the liquidator granted to the Director of the Trade Register Office.
Following the amendments made, we hereby recommend representatives of all companies to verify the validity of the leases / bailments regarding their company headquarters and submit their financial statements in legal terms, as well as to avoid any situation that could lead to a request for the dissolution of the Company.