Pursuant to the Romanian Company Law (“RCL”), the transfer of shares in a limited liability company (“LLC”) towards a person not holding the quality of shareholder in the respective LLC has to be approved by the shareholders representing at least 75% of the share capital.
Following the amendments brought to RCL on 23 June 2010, the above mentioned transfer of shares is subject to a 30-day opposition period within which any prejudiced third party may file an opposition against the transfer and seek damages.
Thus, the registration of the transfer with the Trade Registry is to be performed in 2 stages.
In the first stage, the resolution of shareholders general assembly approving the transfer is submitted and published with the Romanian Official Gazette.
In the second stage, which may not occur earlier than either the expiry of the 30-day opposition period, in case no opposition has been filed, or the rejection by the competent court of law of the opposition filed by a third party, the transfer is registered with the Trade Registry and becomes opposable towards third parties.
Pursuant to these new provisions, the transfer of shares operates either upon the expiry date of the 30-day opposition period, in case no opposition has been filed, or upon the date when the decision of the court of law dismissing the opposition is communicated.
The Romanian Trade Registry has extended the application of the new provisions to transfers of participations in general partnerships and limited partnerships as well. Nevertheless, the new provisions are not applicable in case of joint-stock companies.
The above described provisions hinder the parties’ freedom in structuring share deals in limited liability companies, general partnerships and limited partnerships. Furthermore, they are contrary to the spirit of the amendments brought to RCL on 4 October 2010 by means of which the blocking effect of an opposition filed by a creditor in case of merger and spin-off was removed in order to encourage and stimulate the business and reorganization possibilities of a company (for further details on this matter please refer to our Newsletter Issue 1 on Corporate & Commercial Law in EMEIA).
From a practice perspective, different interpretations may be given to the existing legal text and several alternatives could be advanced in order for the parties to complete a share transfer in the conditions and within the time limit they are pursuing.