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Law No. 506 Of 12 July 2002

Original Language Title:  LEGE nr. 506 din 12 iulie 2002

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LEGE no. 506 506 of 12 July 2002 for approval Government Ordinance no. 25/2002 on certain measures to pursue the execution of the obligations assumed by the contracts for the privatisation of companies
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 549 549 of 26 July 2002



The Romanian Parliament adopts this law + Article 1 Approval Government Ordinance no. 25 25 of 30 January 2002 on certain measures to pursue the execution of the obligations assumed by the contracts for the privatisation of companies, adopted pursuant to art. 1 1 section II.11 of Law no. 751/2001 on the empowerment of the Government to issue ordinances and published in the Official Gazette of Romania, Part I, no. 89 of 2 February 2002, with the following amendments and additions: 1. Article 1 shall read as follows: "" Art. 1. -The present ordinance regulates the way of tracking the execution of the obligations assumed by the buyers during the period of the sale-purchase contracts of shares owned by the state at the companies, companies and national companies. " 2. Article 2 shall read as follows: "" Art. 2. -This ordinance applies to contracts with the object of sale-purchase of shares owned by the state at companies, concluded by the State Property Fund or by the Authority for Privatization and Administration of Participations The state and ongoing, for the effects produced by them after its entry into force. " 3. Letters d), e), g), l) and n) of Article 3 shall read as follows: " d) the seller-State Property Fund or the Authority for Privatization and Administration of State Participation, as part of the contract, hereinafter referred to as A.P.A.P.S. or Authority; e) buyer-natural or legal person of private law, of citizenship, respectively of Romanian or foreign nationality, part of the contract of sale-purchase of shares concluded with the State Property Fund or with A.P.A.P.S.; ......................................................................... g) maturity-the term until which the buyer has committed to fulfil a contractual obligation; ......................................................................... l) the period of the contract-period until the fulfilment of any and all obligations of the contracting parties, according to the contractual clauses and provisions of this ordinance; contracts that until the occurrence of this ordinance gave A.P.A.P.S. the right to claim buyers to comply with the obligations arising from the contract; ........................................................................ n) affiliate-the legal entity to which the buyer is associate/shareholder, with the exception of the company whose shares are subject to the contract of sale-purchase; " 4. in Article 3, after letter n), the following shall be inserted: "" o) intermediate term-time period for the staggered realisation of a contractual obligation until maturity. '; 5. Article 4 shall read as follows: "" Art. 4. -(1) Societies privatized by the conclusion of sale-purchase contracts of shares shall be subject to post-privatization control during their period of time. They are subject to post-privatization control during the period of the contract and companies that after privatization merged, as the case may be, with another company or with the buyer, as well as those resulting by division, if these operations were held within the period of the contract. (2) The post-privatization control shall be exercised by the A.P.A.P.S. through the specialized departments and shall object to the manner in which the obligations assumed by the respective contracts are respected by the buyer and, as the case may be, the pursuit the evolution of the main economic and financial indicators of the companies to which shares of the state were sold through contracts during the period. " 6. Paragraph 1 of Article 8 shall read as follows: "" Art. 8. -(1) The legal representatives of the company are obliged to transmit to the Authority, within a maximum of 30 working days from the date of fulfillment of the intermediate term/maturity of each contractual obligation of the buyer, a report on the manner of its fulfilment. " 7. in Article 8, after paragraph 4, paragraph 5 is inserted as follows: " (5) Provisions of para. ((1)-(3) shall not apply to contracts concluded before the entry into force of this ordinance, if other reporting deadlines are provided for. " 8 paragraphs 1 and 3 of Article 9 shall read as follows: "" Art. 9. -(1) The legal representatives of the companies and the buyer are obliged to communicate to the Authority the situation in which, according to the legal provisions in force, the procedure of judicial reorganization or bankruptcy or, after Case, voluntary liquidation procedure. ....................................................................... (3) The communication referred to in the preceding paragraphs shall be submitted to the Authority no later than 10 working days following the date of receipt from the court of the judgment on the triggering of the procedure in question, respectively from the date of designation liquidators in the event of voluntary liquidation. " 9. Chapter IV shall have the following title: "" CHAPTER IV Powers of the Authority for Privatisation and Administration of State Participation in the field of post-privatization 10 10. The letter e) of Article 10 shall read as follows: "e) may conclude with the buyer, at his request, additional acts to the contract during the period of time, based on an economic and financial analysis as a result of which the need to review the respective clauses is found;" 11. Chapter V shall have the following title: "" CHAPTER V Measures to streamline the post-privatization control process " 12. Article 11 shall read as follows: "" Art. 11. -In order to ensure the necessary conditions for the pursuit of the way of carrying out the contractual obligations and the proper organization of the post-privatization control activity, starting with the date of entry into force of this ordinance, the conclusion of the contracts will be envisaged: a) the assumed investments, including those for the protection of the environment, will be made in cash, with the obligation that the amounts in question are registered in a bank current account opened in the name of the b) the amounts paid by the buyer in the account of the investment obligation, except those intended for environmental protection, may be used by the company, under the conditions provided by law, including for the payment of the company's debts to the state budget, state social insurance, the budget of the Fund for the payment of unemployment benefits, the budget of the Health Insurance Fund, the local budgets, etc., the maturities of which are prior to the date of conclusion of the sale-purchase contract; c) the investment is considered realized if, in accordance with the provisions of the contract, the buyer presents, within 30 working days from the date of fulfillment of the intermediate term/maturity, the financial-accounting documents stating the transfer of the respective amounts to the current bank account of the company until the due date stipulated in the contract, accompanied by a declaration on own responsibility given by the administrators and censors of the company or by a specialized audit firm, by the operation in question is confirmed; d) the administrators of the company have the obligation that, within a maximum of 90 working days from the date of maturity of the investment obligation, to initiate the procedure for increasing the share capital and to register it at the register office trade, on behalf of and on behalf of the buyer who transferred the amounts concerned to the current bank account, in accordance with the obligation assumed by the contract, according to the legal regulations in force; e) the other shareholders, other than the buyer, may benefit from the right of preference to subscription to participate in the increase of the share capital, and will express this option under the conditions and within the deadline provided by the legal regulations in force. " 13. Article 11 (1) shall be inserted after Article 11: "" Art. 11 11 ^ 1. -For contracts concluded before the entry into force of this ordinance and ongoing investments, including those for environmental protection, will be able to be carried out both in the form and terms of the agreed contractual and in cash, provided that the amounts in question are recorded in the company's current bank account. " 14. Article 12 shall read as follows: "" Art. 12. -In case of investments assumed for environmental protection the documents provided in art. 11 lit. c) will be accompanied, on a mandatory basis, by the confirmation issued by the competent environmental authority on the implementation of the measures provided for in the compliance programme, the Annex to the environmental opinion issued for the purpose of the privatization of the company concerned 15. Paragraph 1 of Article 13 shall read as follows: "" Art. 13. -(1) The performance by persons other than the purchaser of the investments assumed by the contract will be considered as performed under the additional condition of the presentation by the purchaser of the proof by which the third party has committed itself firmly and irrevocable to execute those obligations on behalf of and on behalf of the buyer, in compliance with art. 11 11. " 16. In Article 13, after paragraph 1, paragraphs 1 and 1 shall be inserted and (1 ^ 2) with the following contents: " (1 ^ 1) Are considered as realized and the obligations of investments made by the associates and/or affiliates of the buyer, in their own name. (1 ^ 2) Provisions of para. (1 ^ 1) shall also apply to members of PAS associations, even if they own shares/social parts of the privatized company in their own name. " 17. Paragraph 2 of Article 13 shall read as follows: " (2) They are assimilated to the investments made and the amounts related to the party due to buyers, natural or legal persons, as shareholders, from the net profit and which, following a decision of the general meeting of the shareholders, were distributed for the development fund/own sources of financing from which investments were made in the current or subsequent financial year. '; 18. The introductory part of paragraph 1 of Article 15 shall read as follows: "" Art. 15. -(1) A.P.A.P.S. may, at the request of the buyer/company and on the basis of the documentation presented by the buyer and/or the company, as the case may be, agree with this/this: " 19. In Article 15 (1), letters b) and f) shall read as follows: " b) the extension of the term of making investments beyond the intermediate and/or maturity periods provided for in the contract, if by this buyer does not lose his position of adjudicator according to the scoring grid for the selection of bidders, applied when concluding the contract; ..................................................................... f) abolition of the contract; " 20. in Article 15 (1), the letters f ^ 1 and f ^ 2 shall be inserted after letter f): " f ^ 1) instalment/rescheduling of payment of amounts due to the Authority as dividends, amounts received for restructuring; f ^ 2) stagger/rescheduling of payment of any other amounts due to the Authority; " 21 paragraphs 2, 3 and 5 of Article 15 shall read as follows: " (2) If from the documentation presented according to par. (1) it follows that there are conditions that the company and/or the buyer, as the case may be, pay the amounts owed to the Authority, it may conclude with the company, respectively with the buyer, at their request, conventions/additional acts for rescheduling the payment and the commitments respectively. (3) In the case of price rates, the provisions of par. ((2) shall be applied only on condition that the last instalment provided for in the contract is due, except in the circumstances specified in art. 22. .................................................................... (5) For the remaining rates to be paid by way of price, starting with the date of entry into force of this ordinance, in the addendum, the interest rate calculated as follows: for the contracts for the sale of shares with payment price in instalments, at the amount of each instalment an interest shall be applied to cover inflation, plus two percent, if the price is set and paid in national currency, and the interest of LIBOR plus a margin negotiated by the parties, if which the price is fixed and/or paid in foreign currency. " 22. in Article 15, after paragraph 5, paragraph 6 is inserted as follows: "" (6) As of the date of entry into force of the law approving the present ordinance, for the amounts due to the Authority representing dividends, rates related to the amounts allocated for the restructuring funds, as well as for other amounts due The authority, the convention/addendum will necessarily include provisions applying the level of reference interest communicated monthly by the National Bank of Romania. " 23. Article 16 shall read as follows: "" Art. 16. -(1) It is forbidden to exempt from payment of increases, penalties or interest, as the case may be, related to the amounts paid late/unpaid, both in terms of payment of the rates/price for the stake and in terms of non-realisation of investments, including environmental investments. (2) In cases economically justified exemptions from the payment of penalties provided in par. (1) may be granted by Government decision. (3) The penalties due by the buyer for the non-realization of investments shall be due to the commercial company whose shares are subject to the sales contract. The method of payment of the amounts in question, as well as their use by the company, will be determined by the methodological norms for the application of this ordinance. " 24. Article 16 (1) shall be inserted after Article 16: "" Art. 16 16 ^ 1. -(1) A.P.A.P.S. and buyers may agree to modify the term of unilateral denunciation of the contract by the Authority, in terms of the obligation to pay the price. (2) The extension of the term of unilateral termination of the contract by the Authority can be made with the obligation of the buyer to pay late penalties. The term of unilateral termination of the contract by the Authority cannot be extended by more than 90 working days. (3) For the remaining rates to be paid, related to the purchase price, in the addendum the level of interest provided in art. 15 15 para. ((5). ' 25. Article 17 shall read as follows: "" Art. 17. -The provisions of art. 16 16 para. ((1) and (2) shall also apply to penalties/damages due to the Authority by the company, related to dividends, to the rates of the amounts allocated for the restructuring funds, as well as to other amounts due to it. " 26 paragraphs 1 and 2 of Article 18 shall read as follows: "" Art. 18. -(1) The payment of penalties does not exempt the buyer from the fulfilment of the obligations assumed by the contract, except in cases where this obligation is not expressly provided for in the contracts for sale-purchase of shares. (2) The conclusion of the additional acts by the Authority, regarding the modification of the investment and/or payment commitments of the share price, is subject to the establishment in favor of A.P.A.P.S. of a real securities guarantee on a shares or the whole package of shares that are subject to the contract of sale-purchase of shares or financial guarantees. If the shares are found to be encumbered, the buyer shall be required to present financial guarantees. " 27. In Article 20 (1), the introductory part and letter b) shall read as follows: "" Art. 20. -(1) A.P.A.P.S. can accept, at the request of the buyer: .................................................................. b) performing a novation through the change of debtor, by changing the original debtor (the buyer) from the contract with another person who commits to the A.P.A.P.S. to execute the contractual obligations. " 28. in Article 20, after paragraph 1, the following paragraph 1 shall be inserted: " (1 ^ 1) The addendum concluded under the conditions of par. (1) has the effect and transmission of all contractual rights to the delegate/new debtor and will necessarily provide for its assumption of all contractual guarantees regarding the performance of contractual obligations. " 29. In Article 20 (2), points a) and d) shall read as follows: " a) the new debtor meets the conditions provided for the bidders by the legal regulations in force regarding the purchase of a stake held by A.P.A.P.S. in the companies with state capital; .................................................................... d) in the case of novation by change of debtor, for the installment payment contracts will be negotiated with the new debtor the payment of the amounts related to the contract price, including interest and possible penalties due to the payment of the price and unhonored by the original debtor; the payment of the outstanding amounts due to the Authority by way of price and penalties and/or interest will be made by the new debtor within a maximum of 20 working days from the signing of the addendum. " 30. In Article 20 (3), the introductory part and letter c) shall read as follows: " 3. In order to analyse and approve the novation/delegation, the following shall be submitted to the Authority .................................................................... c) if the buyer and/or the new debtor are commercial companies, it is necessary to approve the general meeting of the associates/shareholders regarding the performance of the novation/delegation; " 31. Paragraph 5 of Article 20 shall read as follows: " (5) In order to guarantee the obligations regarding the realization of investments and/or the payment of the price that the new debtor takes over, additional guarantees will be put in place (real security contract on a part or the whole package of shares, financial guarantees, etc.), if such guarantees have not been provided for in the contract. " 32. Paragraph 1 of Article 21 shall read as follows: "" Art. 21. --(1) In the event of the abolition of the contract by conventional or judicial way the Authority will retain from the purchaser all the amounts paid by him in the account of the contract, representing, as the case may be, advance, rates, interest, penalties paid with any title, until its abolition. " 33. In Article 21, after paragraph 1, paragraphs 1 and 1 shall be inserted and (1 ^ 2) with the following contents: " (1 ^ 1) In the event of the abolition of the contract by conventional or judicial means, for damages caused to the Authority, the buyer is obliged to pay the damages constituted of: a) the amounts representing interest and penalties due for the due and unpaid rates until the date of the dissolution of the contract, as well as the penalties due as a result of non-fulfilment of the other contractual obligations; b) the amounts representing the dividends received by the buyer during the period of validity of the contract; c) Government Decision no. 1.045/2001 on the recovery of successful fees paid to consultants by the Authority for Privatization and Administration of State Participations under the Private Sector Adjustment Program (PSAL). (1 ^ 2) Provisions of para. ((1) and (1 ^ 1) shall also apply to lawsuits pending the abolition of the contract, started before the entry into force of this ordinance. " 34 paragraphs 2 and 4 of Article 21 shall read as follows: " (2) For damages caused to the company by the purchaser, it may ask the court for damages. ...................................................................... (4) The expenses related to the economic and financial expertise provided in par. (3) will be advanced by the company or, as the case may be, by the Authority and will be recovered from the buyer. " 35. Article 22 shall read as follows: "" Art. 22. -(1) A.P.A.P.S. and the buyer may agree the continuation of the contract by waiving the implementation of a judicial/arbitral decision that has the effect of abolishing the contract or the application of the commissive pact, in the case of contracts that contain such clauses. (2) In this regard, the Authority and the Purchaser shall conclude a contract for the maintenance of the contract, the buyer obliging to pay all the amounts owed to the Authority within a maximum of 60 days after its signature. ((3) If the implementation of a judicial/arbitral decision which has the effect of abolishing the contract is waived, the convention to keep it in force shall be concluded under the condition of resolution of non-fulfilment of obligations assumed by convention. As a result of fulfilling the condition of the resolution, A.P.A.P.S. will enforce the court/arbitral decision that has the effect of abolishing the contract. (4) The Convention to keep in force the contract provided in par. (2) will necessarily include a clause according to which the contract will be abolished by full right, in case of non-fulfillment of the obligations assumed in it being applicable to the provisions of art. 21 21. " 36. Article 23 shall read as follows: "" Art. 23. -It is forbidden to abolish contracts in the case of companies in the procedure of judicial reorganization or bankruptcy, regulated by Law no. 64/1995 on the procedure of judicial reorganization and bankruptcy, republished, with subsequent amendments and completions, as well as in the case of those in the voluntary liquidation procedure regulated by Law no. 31/1990 on companies, republished, with subsequent amendments and completions. " 37. Chapter VI shall have the following title: "" CHAPTER VI Special provisions ' 38 paragraphs 1 and 3 of Article 25 shall read as follows: "" Art. 25. -(1) In order to organize and conduct in unitary conditions the postprivatization control, the provisions of art. 11-24 shall also apply to contracts in progress for the period remaining to run from the date of entry into force of this ordinance. ...................................................................... (3) The term provided in art. 11 lit. c) is 90 working days from the date of entry into force of this ordinance, for the situations referred to in par. ((2). ' 39. Paragraph 1 of Article 26 shall read as follows: "" Art. 26. --(1) If the investment commitment provided for in the ongoing contracts was not made at the intermediate terms, respectively on the objectives set out in the contract, but, cumulatively until the end of the last term the intermediary/maturity of the investment period provided for in the contract, before/before the date of entry into force of this ordinance, results in the value of the respective obligation, shall not be due to penalties/increases of delay. " 40. In Article 26, after paragraph 1, paragraphs 1 ^ 1 are inserted-(1 ^ 3) with the following contents: " (1 ^ 1) Provisions of para. ((1) shall also apply if the implementation of the investment obligations at the intermediate terms is guaranteed by collateral pledge/guarantee. ((1 ^ 2) If at the conclusion of the last intermediate term/maturity of the investment period provided for in the contract, prior to the date of entry into force of this ordinance, the failure or partial realization of the obligation shall be found total investment, for the entire period until the entry into force of this ordinance, the buyer owes to the Authority, as of that date, the contractual penalties calculated at the unrealized value. (1 ^ 3) Penalties calculated according to the provisions of para. (1 ^ 2) may be staggered to payment in accordance with the provisions of art. 18 18 para. ((3). ' 41. Paragraph 2 of Article 26 shall read as follows: " (2) Provisions of para. ((1) shall not apply to the amounts established by this title by final judicial/arbitral decisions, due to the Authority until the date of entry into force of this ordinance, and the amounts paid shall not be returned. " 42. After Article 26, Articles 26 ^ 1-26 ^ 3 are inserted with the following contents: "" Art. 26 26 ^ 1. -If the implementation of the investment commitment is found in the amount of the investment, and its realization has been guaranteed by the establishment of guarantees, the Authority will not proceed with their execution. Art. 26 ^ 2. -The limitation period for the right of the Authority to request penalties, namely to execute the pledge, in case of non-fulfilment of contractual investment obligations, begins to run from the date of conclusion of the investment period provided for in contract. Art. 26 ^ 3. -The amounts advanced as legal costs in the remaining non-object processes, as well as those that are extinguished by the reanalysis of the contractual clauses, as a result of the entry into force of this ordinance, will be borne by the buyers. " 43. In Article 27 (1), the introductory part and letters a), c) and d) shall read as follows: "" Art. 27. -(1) For contracts concluded before the date of entry into force of the present ordinance, during the period of time, the contractual obligations regarding the performance of investments shall be considered in the following situations: a) when the annex to the contract contains the specification of lt; lt; investment program gt; gt;, the investment commitment shall be deemed made following the cash contribution, whether the amounts have been used for making investments or for the financing of current needs of the company, provided that the amounts in question are highlighted in the current bank account. For obligations whose intermediate term/maturity is prior/prior to the date of entry into force of this ordinance, the cash contribution is considered as an investment made, based on the affidavit given by the administrators and censors of the company or a specialized audit firm, confirming the transfer of the amounts concerned to the company, as non-refundable, in order to extinguish the obligation assumed by the contract; ...................................................................... c) in contracts with the certificate of attestation of investments by certificate issued by the censors of the company or by a specialized audit firm and containing/not containing the express specification of lt; lt; accompanied by gt documents; gt; or containing the Lt clause; t; reasonable documents gt; gt;, the investment obligation shall be deemed to be carried out on the basis of the certificate of attestation issued by the censors or by a specialized audit firm, in which it is clearly specified that: -the amount invested corresponds to the investment value assumed by the contract; -the recording in accounting of investments made as a contribution in kind or in cash is carried out in accordance with the accounting legislation in force; -sources of financing of investments correspond to the provisions of the contract d) in contracts containing the attestation clause of the execution of the investment commitment through the increase of the share capital and the registration of this operation at the Trade Register Office: -the investment obligation is considered realized if the transfer of the amounts concerned to the bank's current account by the buyer and the registration of this operation in the company's accounting were made by the intermediate term/maturity provided for in contract, without the need to present proof of registration at the Trade Register Office of the increase of the share capital, but with the obligation to submit to A.P.A.P.S. the proof of the payment of the respective amounts in the current bank account of the company and their registration in its accounting; -in the case of capital increases by contribution in kind the buyer must submit to the Authority proof of registration in the company's accounting of the respective goods as tangible/intangible assets brought in his own name, until the deadline intermediate/maturity stipulated in the contract, as well as the affidavit of the legal representatives of the company, whereby they certify the existence in the company of the respective contribution, based on the commitment assumed by the buyer by contract; ' 44. Paragraph 2 of Article 27 shall read as follows: " (2) Provisions of para. ((1) shall also apply for the non-executed contractual obligations for which the maturity is prior to the date of entry into force of this ordinance, if the parties so agree by addendum to the contract. " 45. Article 30 shall read as follows: "" Art. 30. -(1) If the contracts stipulate the obligation to carry out cash investments expressed in foreign currency, the reference date for the conversion into lei of the value of the amounts in question is the date on which the payment was made in the company's current bank account. (2) The determination of the currency equivalent of the amount due to the buyer as a shareholder of the net profit and which was used for the realization of the investment obligation shall be made by taking into account the average exchange rate communicated by the Bank National of Romania for the year in which the profit part was used for investments according to the provisions of art. 13 13 para. ((2). ' 46. in Article 31, point a) of paragraph 1 and paragraph 1 (2) will have the following contents: "" a) specifying the volume of investment in accordance with the due dates specified in the contract; .................................................................... (2) By derogation from the provisions of art. 16 16 para. (1), for the period prior to the conclusion of the additional documents, for the situations provided in (1) the buyer does not owe late penalties. " 47. Paragraph 1 of Article 32 shall be repealed. 48. Paragraph 2 of Article 32 shall read as follows: " (2) It constitutes a contravention and is sanctioned with a fine from 200.000,000 lei to 500,000,000 lei the administrator, director, executive director or legal representative of the company using the amounts representing environmental investments in other purposes other than those provided for in contracts, resulting in the failure to achieve the objectives of the compliance programme. " 49. In Article 32 (5), points a) and b) shall read as follows: " a) do not comply with art. 8 8 para. ((1) or of art. 11 lit. d); b) does not carry out the operation of highlighting in accounting the amounts representing cash contribution in the current bank account until the maturity of the investment obligation, provided for in the contract. " 50 50. The letter b) of Article 33 shall read as follows: "b) the merger between the buyer and the company is prohibited after the entry into force of this ordinance, until the full realization of the obligations assumed by the contract under penalty of nullity of law." 51. Paragraph 2 of Article 34 shall read as follows: "" (2) The change of destination shall entail civil or criminal liability, as the case may be. " 52. Paragraph 2 of Article 35 shall read as follows: "" (2) The triggering and carrying out of the control actions shall be carried out, where appropriate, by cooperation and with other institutions with competence in the field of control. " 53 articles 36 and 38 shall be repealed. 54. Article 39 shall read as follows: "" Art. 39. -A.P.A.P.S. will elaborate and submit for approval to the Government, within 180 days from the date of entry into force of this ordinance, the methodological norms for its application. " + Article 2 Government Ordinance no. 25/2002 on certain measures to monitor the execution of the obligations assumed by the contracts for privatization of companies, with the amendments and completions brought by this law, will be republished in the Official Gazette of Romania, Part I, giving texts a new numbering. This law was adopted by the Chamber of Deputies at its meeting on June 13, 2002, in compliance with the provisions of 74 74 para. (2) of the Romanian Constitution. CHAMBER OF DEPUTIES PRESIDENT VALER DORNEANU This law was adopted by the Senate at the meeting of 27 June 2002, in compliance with the provisions of art. 74 74 para. (2) of the Romanian Constitution. p. SENATE PRESIDENT, DORU IOAN TARACILA ------------