Thought Articles

Reproduced with permission from Law Business Research. This article was first published in The Restructuring Review, (published in April 2009 – editor Richard Clark). Disputes in Romania are settled in court in the vast majority of cases, under procedures regulated mainly by the Civil Procedure Code (‘CPC’). The CPC is undergoing extensive revision, with the draft of a new Civil Procedure Code being approved by the government in March 2009 after public debate. The commentary below takes into consideration the procedures as currently in force. A brief outline of the main amendments proposed by the draft of the new Civil Procedure Code will be included in the last section.

Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through – Dominance 2009, (published in February 2009 – contributing editors Thomas Janssens and Thomas Wessely). The abusive behaviour of dominant firms is prohibited by article 6 of the Romanian Competition Law No. 21/1996 (RCL) and, since 1 January 2007, by article 82 of the EC Treaty. Article 6 expressly forbids the abusive use of a dominant position held by one or more undertakings on the Romanian market or on a substantial part of it, by resorting to anti-competitive practices that have as their object or may have as their effect the distortion of economic activities or the prejudice of consumers.

This chapter was first published in the PLC Cross-border Competition Volume 2: Leniency Handbook 2009 and is reproduced with the permission of the publisher, Practical Law Company. The Competition Council, Romania’s anti-trust regulatory authority, introduced a leniency policy in 2004. The Competition Council published its Guidelines on Leniency (Leniency Guidelines) on 13 May 2004. These were inspired by the European Commission’s 2002 Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C45/03) (Leniency Notice).

The restitution of real property abusively taken over by the Romanian state before 1989 is an issue that even now, almost 20 years after the fall of Communism, still ignites social, political and legal debate. The dispute continues because, despite no less than four landmark laws on the matter, each massively amended over the years, no legislative solution has yet been able to justly, rapidly and definitively settle the conflict between former owners and the current holders of such property. Please note that we use the phrase ‘former owners’ to refer to the owners of real property at the time of the takeover, since it is customarily used to mark the difference from ‘current owners’, even though the lawfulness of the latter’s ownership is, more often than not, debatable.

In Romania, both the State and the administrative and territorial units (cities and counties) own properties consisting of real estate that, according to certain legal principles, belongs either to the public or the private domain. Public property includes all real estate that under the law or by its nature is of public use or interest. The state’s public property therefore includes areas such as roads, beaches and parks. Save for public property, any real estate can be subject to private property rights. As a general rule, any legal or natural entity may be the holder of private property rights.

Until recently, Romania knew only one system of management – the unitary system, where the management is formed by only the sole director/board of directors – applicable, with certain differences, to both joint stock companies (JSCs) and limited liability companies (LLCs). Following the World Bank’s 2004 Report on the Observance of Standards and Codes, which indicated deficiencies in the existing company legislation, changes brought to Romanian corporate law from 2006 sought to adapt it to the Organisation for Economic Co-operation and Development’s corporate governance principles, as well as to EU principles. One of the novelties introduced by the reforms is that JSCs can now choose between the existing unitary system and the newly introduced dual system of administration, where the management is formed of the supervisory board and the directorate.