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In order to carry out a commercial activity natural and legal persons may associate and set up business organizations according to the present legal provisions. The business organizations having their headquarters in Romania are Romanian legal persons.
Art. 2. The business organizations shall be organized in one of the following forms:
a) partnership, whose obligations are guaranteed by the capital and by the unlimited and joint liability of the partners;
b) limited partnership, whose obligations are guaranteed by the capital and joint liability of the general partners; the limited partners are liable only up to the value of their interest;
c) limited partnership by shares, whose capital is divided by shares, and whose obligations are guaranteed by the capital and by the unlimited and joint liability of the general partners; the limited partners are liable only for the payment of their shares;
d) joint-stock company, whose obligations are guaranteed by the capital; the shareholders are liable only for the payment of their shares;
e) limited liability company, whose registered obligations are guaranteed by the registered assets; the shareholders are liable only for the payment of their contributions.
Partnerships and Limited Partnerships
Art. 3. The partnership and the limited partnership are constituted by a partnership contract, concluded in authentic form. The contract must include:
- first and last names or the trade name of the partners, their domicile or headquarters address and citizenship;
- the type of partnership, name and headquarters address;
- the scope of the partnership;
- the capital subscribed and deposited by partners, each partner’s contribution in cash or other assets, the value of the contribution and the method of valuation, and the due date for the payment in full of the subscribed capital;
- the partners in charge with the partnership’s administration and representation, and the limits of their powers;
- each partner’s share of profits and losses;
- location of the partnership’s branches and subsidiaries within the country and abroad;
- duration of the partnership;
- procedures for dissolution and liquidation of the partnership.
Art. 4. Within a period of 15 days from the date of authentication of the partnership contract, the administrators or any of the partners will register the partnership contract at the court with territorial competence over the area where the partnership headquarters will be located.
Upon registration the judge will review compliance with the provisions of Art.3, and then will order the recording of the partnership contract in the Register of Commerce and in the records of the Financial Administration in the area where the headquarters of the partnership are located, and the publication in the Official Gazette.
The partnership becomes a legal person as of the date of recording in the Register of Commerce.
The recording is performed upon submission of the evidence of the request for publication in the Official Gazette.
Art. 5. The partnership’s representatives designated by the partnership contract must deposit their signatures with the Register of Commerce within fifteen days of the recording date; the representatives elected during the normal course of business must deposit their signatures within fifteen days of their election.
Art. 6. If a partnership sets up a branch or a subsidiary outside the county where it has the headquarters, the administrators must apply for their recording in the Register of Commerce of the county where they will operate prior to their start of operations. The representatives of the branch or subsidiary will deposit their signatures in accordance with the provisions of Art.5.
Art. 7. If the publication formalities provided for by Art.4 are not completed, any of the partners is entitled to ask for their completion or the dissolution and liquidation in case that the partnership was not recorded.
The failure to complete the formalities provided for by Art.4 cannot be invoked by partners against third parties.
The partners and all individuals who operated on the partnership’s behalf, prior to the formation of such partnership, have a direct, unlimited, joint liability for the partnership’s operations in which they were involved.
Joint-Stock Companies and Limited Partnerships by Shares
Art. 8. The joint-stock company and the limited partnership by shares, shall be organized by contract and by-laws.
The contract shall be signed by all incorporators, partners or in case of public subscription by the founding members.
The capital cannot be lower than one million ROL and the number of shareholders or partners less than five.
Art. 9. The contract and by-laws of the joint stock company and of the limited partnership by shares shall be certified and must include:
- the first and last names or the trade name of the shareholders, their domicile or the headquarters address, the citizenship or nationality;
- the trade name and headquarters address of the joint-stock company or limited partnership by shares, of their branches and subsidiaries;
- legal form of doing business and scope;
- the amount of subscribed and deposited capital.
Initially the deposited capital cannot be lower than 30%, unless otherwise provided for by law;
- value of the assets brought in as contribution in kind, methods of valuation and number of shares issued in consideration for the heretofore mentioned assets;
- number and nominal value of shares, whether these are nominal or payable to bearer and their number for each class;
- number, first and last names and citizenship of the administrators, the guarantee that they have to deposit, their powers and special rights of administration and representation, granted to some of them; for the limited partnership by shares, the general partner’s first and last names or the trade name, domicile or headquarters and citizenship or nationality, indicating who is in charge with the administration and representation of the partnership ;
- conditions for validity of the general meeting proceedings and procedure of exercising the voting rights;
- number, first and last names and citizenship of the auditors;
- duration of the joint-stock company or limited partnership by shares;
- method of distribution of profits;
- limited partner’s stock in the limited partnership by shares;
- transactions undertaken by shareholders or partners on behalf of the joint- stock company or the limited partnership by shares to be organized, which will be assumed by the new entity and the amounts which will have to be paid on the account of these transactions.
Art. 10. If a joint-stock company or limited partnership by shares is funded by public subscription, its founders will draft a prospectus which will include information provided under Art.9, except the information regarding the administrators and auditors and will set the last day for subscription.
The prospectus signed by the founders, in authentic form, must be deposited before publication with the Register of Commerce of the county where the headquarters of the joint-stock company or limited partnership by shares will be located.
The competent court in the county where the Register of Commerce is located, upon finding that the provisions of paragraphs 1 and 2 are complied with, will authorize the publication of the prospectus.
Art. 11. Stock subscriptions will be written on one or more copies of the prospectus marked by the court of the county where the Register of Commerce is located.
The subscription shall indicate: the first and last names or the trade name, domicile or headquarters address of the subscriber, the spelled out number of the subscribed shares, the subscription date and an express statement that the subscriber has knowledge of and accepts the prospectus.
The prospectuses which do not include all legal requirements are void.The subscriber could not invoke such nullity if he/she attended the constitutive meeting or if he/she exercised the rights and obligations of a shareholder or partner.
Art.12. Within at most fifteen days since the last day of the subscription period, the founders shall convene the constitutive meeting by a notice published in the Official Gazette fifteen days prior to the date established for the meeting. The notice will include the place and the date of the meeting, which cannot take place later than two months since the last day of subscription, and also a detailed list of the problems which will be discussed.
Art.13. The joint-stock company or the limited partnership by shares may be constituted only if the entire capital was subscribed for and each subscriber paid in cash half of the subscribed stock value at the National Bank, the Savings Bank, or at one of their branches.
The shares paid for by other consideration than cash, have to be paid in full. Debts of third parties are not allowed as consideration.
Art. 14. If the public subscriptions exceed or are lower than the issue provided for in the prospectus, the founders have the obligation to submit the increase of the issue to the subscription level to the constitutive meeting’s approval.
Art. 15. The founders have the obligation to draw up a list of those who subscribed and have the right to participate in the constitutive meeting.
This list will be posted up at the meeting place, at least 5 days prior to the meeting.
Art.16. The meeting elects a president and two or more secretaries. The participation of the subscribers will be ascertained by attendance lists signed by subscribers and certified by the president and the secretary.
Prior to the start of discussions of the meeting’s agenda any subscriber has the right to raise issues concerning the list posted up by the founders. The meeting will decide upon these issues.
Art. 17. At the constitutive meeting any subscriber has the right to one vote, irrespectively of the number of shares he/she subscribed for. He/she may also be represented by a special mandate (proxy). No one can represent more than 5 subscribers.
The subscribers whose contribution is other than cash do not have voting rights in the proceedings concerning their contribution, even if they paid for other shares in cash or they appear as proxies for other subscribers.
The constitutive meeting is legally constituted if half plus one of the subscribers are present and it makes decisions by the vote of the simple majority of those present.
Art. 18. If there are contributions in kind, advantages reserved for the founders, transactions concluded by founders on the account of the joint-stock company or limited partnership by shares to be organized and these transactions will be assumed by the new entity, then the constitutive meeting will appoint one or more experts who will advise on the valuations.
If the majority provided for by law cannot be acquired, then the appointment of the experts will be made by the court upon the request of a subscriber.
Art. 19 The following cannot be appointed as experts:
- relatives and affiliates up to the fourth degree included, or the spouses of those who made contributions in kind, or of the founders;
- persons who receive wages or remuneration in any form for their work other than as an expert, from the founders or from those who made contributions in kind.
Art. 20. After the experts submit their report, the founders convene again the constitutive meeting according to the provisions of Art.12. If the value of the contributions in kind, established by experts, is one fifth lower than the one stated by founders in the prospectus, any subscriber may withdraw by giving notice to founders until the day established for the constitutive meeting.
The shares of the subscribers who decided to withdraw may be acquired by the founders or other persons by public subscription within 30 days.
Art. 21. The constitutive meeting has the following obligations:
- review the existence of payments;
- determination of the value of contributions other than cash; approval of participation in benefits of the founders and in transactions concluded on behalf of the company or partnership;
- discussion and approval of the joint-stock company or limited partnership by shares contract and by-laws with the assistance of the present members who also represent the absentee members and appointment of those who will attend the authentication of the documents and the formalities required for the formation of the company or partnership;
- appointment of administrators and auditors.
Art. 22. The operation of the joint-stock company and of the limited partnership by shares is subject to the authorization of the court in the county where the headquarters will be located.
In order to obtain the authorization, the contract and the by-laws shall be submitted within 15 days from their authentication together with the authorization application, and:
- proof of share payment;
- documentation concerning ownership of other assets than cash and in case real estate is also evidenced, a certificate ascertaining the encumbrances and liens;
- the documentation for the transactions concluded on behalf of the company or partnership and approval by the constitutive meeting.
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