Law no. 265/2022 regarding the Trade register and for amending and supplementing other normative acts with incidence on the registration within the Trade register, was published in the Official Gazette on July 26, 2022 and will enter into force within 4 months from publication.
Of the many modifications, we will keep our attention in this newsflash on the updates brought by this normative act on the process of merger by absorption.
One of the important changes brought by Law nr. 265/2022, refers to the competence to verify the legality of the merger in terms of the procedure followed by the companies participating in the merger. Thus, starting with November 26, 2022, the date of entry into force of the normative act, the competence will belong to the Trade register registrar where the Romanian legal entities participating in the merger are registered, this aspect being to generate multiple reformations and correlations on the relevant articles of the Companies Law no. 31/1990. However, the jurisdiction of the court is preserved in case of opposing the merger or for declaring the merger nullity, under the conditions mentioned below.
Another novelty refers to the fact that the joint merger project, endorsed by the Trade register registrar, will be published within the Electronic Bulletin of Trade register, as an alternative to the Official Gazette of Romania, at least 30 days before the dates of the meetings in which the shareholders are to decide on the merger.
As for the opposition to the merger, can be done within 30 days from the date of publication of the merger project within the Official Gazette of Romania, Part IV, or in the Electronic Bulletin of the Trade register, if the company has opted for publishing on its own web page. The opposition is submitted to the Trade Register Office, which, within 3 days from the date of submission, will mention it in the register and will forward it to the competent court.
Following the amendments regarding the registrar’s competence, the amending act of the articles of incorporation of the acquiring company will be registered in the Trade register in whose territorial jurisdiction the company has its headquarters and will be published in the Official Gazette of Romania, Part IV, at the company’s expense, without the validation of the delegated judge.
In addition to verifying the legality of the merger in terms of the procedure followed by the companies participating in the merger, the Trade register registrar will verify, if necessary, the characteristics of the mechanisms of employee’s involvement in the activity of the absorbing company.
The provisions regarding the date on which the merger will produce its effects by correlating the examination carried out by the registrar in the Trade register are also modified, the date of the merger being that of the registration within the Trade Register of the amending act of the articles of incorporation, unless, by the agreement of the parties, it is stipulated that the operation will take effect on another date. However, this date cannot be subsequent to (i) the end of the current financial year of the acquiring company or to the beneficiary companies (ii) prior to the end of the last completed financial year of the company or companies that transfer their patrimony, (iii) to the control of the Trade register registrar.
With regard to the nullity of the merger, although the current form of the law provides that the nullity of the merger cannot occur after the date on which it produced effects, the new provisions mention that once the merger has been finalized, it may be declared only if it has not been subject to a legality review or if the decision of one of the general meetings that voted for the merger or division project is null or voidable, correlating the provision with the attributions of the Trade register registrar in this matter.
Referring to the updates made to the process of verifying the legality and registration of a merger, we consider that they are clearly for the benefit of the companies involved. Loosening the process by transferring it from the judge to the Trade register registrar, can only have a positive impact materialized in relieving the courts and accelerating the process within the merger procedures by shifting the process management to the competent Trade register office.