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Amendments to the law on companies and the law on the trade register

In the Official Gazette with the number 667 of 20 July 2023 was published the Law no.222 of 14 July 2023 for the modification and completion of the Company Law no.31/1990, as well as of the Law no.265/2022 on the Trade Register and for the modification and completion of other normative acts affecting the registration in the Trade Register.

The Companies Law no.31/1990, republished in the Official Gazette of Romania, Part I, no.1066 of 17 November 2004, with subsequent amendments and additions, is amended and supplemented as follows:

By unanimous vote of the associates, it may also be decided how the assets remaining after payment of creditors shall be distributed among the associates, in which case the request for cancellation of the company shall be accompanied by the proof of fulfilment of the obligation to calculate, withhold and pay the income tax from the liquidation of the company, provided for in Article 97 paragraph (5) of Law no. 227/2015 on the Tax Code, with subsequent amendments and additions, respectively of the tax on income made by non-residents from the liquidation of a resident, provided for in article 223 paragraph (1) letter o) in conjunction with article 224 of the same law. In the absence of unanimous agreement on the division of assets, the liquidation procedure provided for by this law shall be followed.

Chapter III of Title VI is repealed.

Three new chapters are inserted after Article 25119, Chapter IV “Cross-border merger”, consisting of Articles 25120-25139, Chapter V “Cross-border transformation”, consisting of Articles 25140-25158, and Chapter VI “Cross-border division”, consisting of Articles 25159-25180, with the following content:

 

CHAPTER IV:             Cross-border mergers

SECTION 1:                Scope. Definition

Joint stock companies, limited partnerships, limited liability companies – Romanian legal entities – and European companies with registered office in Romania may merge, according to this law, with companies having their registered office or, where applicable, their central administration or principal place of business in other Member States of the European Union or states participating in the European Free Trade Association, hereinafter referred to as Member States, which are governed by their legislation and operate in one of the legal forms provided for in Annex II to Directive (EU) 2017/1. 132 of the European Parliament and of the Council of 14 June 2017 on certain aspects of company law, published in the Official Journal of the European Union, L series, No 169 of 30 June 2017.

 

Joint stock companies, limited partnerships with limited liability, limited liability companies – Romanian legal persons – and European companies with registered office in Romania may merge with companies having their registered office or, where applicable, their central administration or principal place of business in other Member States and which, without falling within the types of entities referred to in paragraph (1), have legal personality, have their own assets and liabilities which represent the sole source of guaranteeing the company’s obligations and are subject to disclosure formalities similar to those laid down in Directive (EU) 2017/1. 132, if the law of that Member State permits such mergers.

If the absorbing company is a limited partnership limited by shares, established and operating according to Romanian law, the shareholders of the absorbed company will always be limited partners of the absorbing limited partnership limited by shares, unless otherwise provided in the decision approving the merger project.

They are exempted from the provisions of this Chapter:

  1. a) companies regulated by Law no. 297/2004, as amended and supplemented, by Government Emergency Ordinance no. 32/2012 on undertakings for collective investment in securities and investment management companies, as well as for the amendment and completion of Law no. 297/2004 on the capital market, approved with amendments and additions by Law no. 10/2015, as amended and supplemented, by Law no. 74/2015 on alternative investment fund managers, as amended and supplemented, by Law no. 24/2017 on issuers of financial instruments and market operations, republished, as amended and supplemented, by Law no. 126/2018 on markets in financial instruments, as amended and supplemented, by Law no. 243/2019 on the regulation of alternative investment funds and for the amendment and supplementation of certain regulatory acts;
  2. b) companies subject to resolution tools, powers and mechanisms, recovery and resolution measures and crisis prevention measures provided for by Law no. 312/2015 on the recovery and resolution of credit institutions and investment firms, as well as for the amendment and completion of certain regulatory acts in the financial field, as amended and supplemented;
  3. c) companies that are in the process of liquidation and have started to distribute assets to shareholders;
  4. d) companies in insolvency or insolvency prevention proceedings, provided for by Law no. 85/2014 on insolvency prevention and insolvency proceedings, as amended and supplemented;
  5. e) merger operations subject to Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE), published in the Official Journal of the European Union, Series L, No 294 of 10 November 2001.

The Romanian law is the law applicable to the procedures and formalities of the cross-border merger with a view to obtaining the preliminary certificate by the companies participating in the merger, Romanian legal entities, respectively to the procedures and formalities carried out with a view to registering in the commercial register the newly incorporated company as a result of the cross-border merger or, as the case may be, with a view to registering the information on the amendment of the articles of association of the absorbing company, Romanian legal entities, in respect of the latter two cases, establishing also the date from which the cross-border merger takes effect.

The newly established company as a result of the cross-border merger may have one of the company forms provided for in Article 25120 paragraph (1).