MPR Partners | View firm profile
Pursuant to a decision of the Romanian Constitutional Court published on August 1, 2018, board decisions regarding share capital increases can now be subject to an action for annulment.
Law no. 31/1990 on companies
(the „Companies Law”) provides three
powers that the Extraordinary General Assembly of Shareholders of Romanian
joint-stock companies can delegate to the company’s Board of Directors or
Management Board (depending on whether the company’s management is organized as
a single-tier management system or as a two-tier management system), as
(i) changing the company’s registered office;
(ii) changing the company’s business object;
(iii) increasing the company’s share capital.
Until recently, only the
board decisions regarding the aspects mentioned at (i) and (ii) above could be
challenged by any of the company’s shareholders by an action for annulment filed
Pursuant to a decision of
the Romanian Constitutional Court published on August 1, 2018, board decisions
regarding share capital increases can now be subject to an action for annulment
II. The decision of the Constitutional Court
By said decision, the Constitutional
Court has declared article 114 paragraph (3) of the Companies Law as
unconstitutional as regards its indirect prohibition of challenging a board
decision increasing the share capital of a Romanian joint-stock company.
The possibility for a
Romanian joint-stock company’s board to increase the company’s share capital is
subject to a special authorization included in the company’s articles of
association. Such authorization grants the board the power to increase the
share capital during a pre-established period, no longer than 5 years from the date
when such authorization is included in the articles of association. Moreover,
such authorization must state the maximum amount of the increased share
While such decisions are
thus subject to restrictions established by the company’s shareholders (as
opposed to decisions changing the company’s registered office or business
object, which are not), the Constitutional Court considered that the lack of a
possibility to challenge in court the board decisions increasing the share
capital can affect the free access to justice of the company’s shareholders.
The Constitutional Court stated
in its decision that the increase of a company’s share capital is no less
important than the change of its headquarters or business object and thus
should not be subject to a different regime.
While the free access to
justice can be limited and conditioned by law, the Constitutional Court flagged
out that article 114 paragraph (3) of the Companies Law did not establish
limits and conditions, but actually prohibited the shareholders from exercising
a fundamental right against decisions that can adversely affect their rights.
While delegating the possibility
of increasing the company’s share capital to the board can reduce the level of
formality necessary to undertake such actions, at the same time it can generate
tensions between the management deciding such increase and the shareholders
that must bear the increase by subscribing new capital.
Thus, while such mechanisms
will continue to be successfully used in companies where there is a certain
level of harmony between shareholders and management, it is important to take
note of the fact that such decisions can now be challenged in court. Thus,
shareholders and management should ensure the necessary level of communication
before decisions on share capital increases are passed by the board.
This article contains
general information and should not be considered legal advice.