Machine Translation of "Law No. 111 Of 27 May 2016 Approving Government Emergency Ordinance No. 109/2011 Regarding Corporate Governance Of Publi..." (Romania)

Law No. 111 Of 27 May 2016 Approving Government Emergency Ordinance No. 109/2011 Regarding Corporate Governance Of Public Enterprises

Original Language Title: LEGE nr. 111 din 27 mai 2016 pentru aprobarea Ordonanţei de urgenţă a Guvernului nr. 109/2011 privind guvernanţa corporativă a întreprinderilor publice

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LEGE no. 111 111 of 27 May 2016 for approval Government Emergency Ordinance no. 109/2011 on the corporate governance of public undertakings

ISSUER

PARLIAMENT

Published in OFFICIAL MONITOR no. 415 415 of 1 June 2016

The Romanian Parliament adopts this law + Article I Approval Government Emergency Ordinance no. 109 109 of 30 November 2011 on the corporate governance of public enterprises, published in the Official Gazette of Romania, Part I, no. 883 of 14 December 2011, with the following amendments and additions: 1. Article 1 is amended and shall read as follows: "" Art. 1. -(1) This emergency ordinance applies to public enterprises, Romanian legal entities. (2) The provisions of this emergency ordinance shall also apply to: a) credit institutions, financial institutions and financial investment services companies and investment management companies provided by Government Emergency Ordinance no. 99/2006 on credit institutions and capital adequacy, approved with amendments and additions by Law no. 227/2007 , with subsequent amendments and completions; b) companies whose activity is regulated by Law no. 32/2000 on the activity and supervision of insurance and reinsurance intermediaries, with subsequent amendments and completions. (3) They are exempted from the application of the provisions of this emergency ordinance "Rasirom" Autonomous Regia and the National Company "Romtechnique"-S.A. " 2. Article 2 is amended and shall read as follows: "" Art. 2. -For the purposes of this emergency ordinance, the following terms and expressions have the following meanings: 1. Corporate governance of public undertakings-the set of rules governing the administration and control system within a public undertaking, the relations between the public authority and the bodies of the public undertaking, between the management or supervisory board, directors or directorate, shareholders and other interested persons; 2. public undertakings: a) autonomous kings established by the state or by an administrative-territorial unit; b) companies and national companies, companies in which the state or an administrative-territorial unit is a sole shareholder, majority or in control; c) companies to which one or more public undertakings referred to in lett. a) and b) hold a majority stake or a controlling interest; 3. public authority-the institution which: a) coordinate, subordinate or under the authority one or more public undertakings referred to in point (a). 2 lit. a); b) exercise, on behalf of the state or administrative-territorial unit, the status of shareholder in the public enterprises referred to in item 2 lit. b); c) coordinate the exercise by one or more public undertakings referred to in point 2 lit. a) and/or b) the quality of shareholder or associate in a controlled company; 4. control-the ratio between the state or the administrative-territorial unit shareholder or a public undertaking, on the one hand, and the company to which: a) directly or indirectly holds the majority of voting rights; b) may appoint or revoke the majority of the members of the administration and control bodies; c) may exercise, as a shareholder, a determining influence, by virtue of clauses such as to establish the management strategy of the public undertaking, contained in contracts concluded with the public undertaking or in the constitutive act of 5. director-person to whom the management of the company was delegated, in accordance with the provisions art. 143 of the Companies Law no. 31/1990 , republished, with subsequent amendments and completions; the financial/economic director is assimilated to the director; 6. letter of expectations-working document by which the public authority, in consultation with any shareholders representing, individually or together, 5% of the share capital of the public undertaking, sets the expected performance from the management and management bodies of the public undertaking, as well as the policy of the public authority on public undertakings which have specific obligations relating to the provision of public service, for a period of at least 4 years; 7. statement of intent-working document drawn up on the basis of the elements in the letter of expectations and public information related to the activity of the public enterprise, through which candidates for the position of administrator, as well as for the post of director, selected and shortlisted, shall present their vision or programme for the development of the public undertaking. The declaration of intent shall be submitted in writing by each of the candidates and shall be part of their final evaluation for classification and appointment; 8. administration plan-working tool of administrators and directors materialized in a document drawn up to determine the road of a public enterprise during their mandate, structured on two components: of administration, drawn up by the management or supervisory board, and management, drawn up by directors or members of the directorate. It is correlated with the letter of expectations and sets out the mission, objectives, actions, resources and financial and non-financial performance indicators for carrying out a specific activity during a future period that cannot exceed 4 years; 9. the list of managers of public enterprises-includes the totality of public enterprise administrators, selected by the procedure provided for by this emergency ordinance, which shall be drawn up by each public authority and shall be centralized by the Ministry of Public Finance; 10. shortlist-includes maximum 5 candidates for each member position on the board of directors, supervisory board, director, member of the directorate and is carried out by the commission organized at the level of the public authority guardianship, autonomous directing or, where appropriate, the nomination committee of the public undertaking or the independent expert. The short list also contains the score obtained by each candidate; 11. mandate contract-the mandate contract, as defined and regulated by the Civil Code, and in the case of companies provided for art. 2 2 section 2 lit. b) and c), by Law no. 31/1990 , republished, with subsequent amendments and completions, and by the Civil Code. The mandate contract, concluded on the date of appointment of the directors or directors, will be completed, by addendum, with clauses on the determination and payment of the variable component and with the approved financial and non-financial performance indicators, in the conditions of this emergency ordinance. " 3. Article 3 is amended and shall read as follows: "" Art. 3. -The public authority shall have the following powers: 1. to the autonomous regions: a) to draw up the letter of expectations and to publish it on its website in order to be made aware of the candidates for the post of administrator or director on the short list; b) appoint and revoke the members of the board of directors; c) to negotiate and approve financial and non-financial performance indicators for the Management Board; d) to conclude the mandate contracts with the administrators; e) to monitor and evaluate the performance of the board of directors, in order to ensure, on behalf of the state or the founding administrative-territorial unit, that the principles of economic efficiency and profitability in operation of the autonomous direction; f) to monitor and assess through its own corporate governance structures the financial and non-financial performance indicators included in the Annex to the mandate contract; g) to draw up and publish on its website the list of administrators in operation from the autonomous regions; h) other duties provided by law; 2. at the companies provided in art. 2 2 section 2 lit. b): a) appoint the representatives of the state or, as the case may be, of the administrative-territorial unit in the general meeting of the shareholders or associates and approve their mandate; b) to propose, on behalf of the State or of the shareholder administrative-territorial unit, candidates for the positions of members of the board of directors or, as the case may be, supervision, in compliance with the qualification conditions and professional experience and selection provided for by this emergency ordinance; c) to draw up the letter of expectations and to publish it on its own website in order to be made aware of the candidates for the post of administrator or director registered on the short list; d) to monitor and evaluate through its representatives in the general meeting of shareholders the performance of the board of directors, in order to ensure, on behalf of the state or of the shareholder administrative-territorial unit, that they are respected the principles of economic efficiency and profitability in the functioning of society; e) to ensure the transparency of the state's shareholding policy in companies to which it exercises the powers of public authority; f) mandate its representatives in the general meeting of shareholders to negotiate and approve financial and non-financial performance indicators for the board of directors; g) to monitor and assess through its own corporate governance structures the financial and non-financial performance indicators attached to the mandate contract; h) other duties provided by law; 3. at the companies provided in art. 2 2 section 2 lit. c): a) to ensure the exercise by the public undertaking, under conditions of economic and strategic efficiency, of the quality of shareholder; b) to ensure compliance by the controlled company with the principles of economic efficiency and profitability; c) to ensure through the representatives in the general meeting of the shareholders and through the corporate governance structures to reflect the requirements of the letter of expectations in the financial and non-financial performance indicators the mandate contract; d) to monitor and assess through its own corporate governance structures the financial and non-financial performance indicators attached to the mandate contract; e) other duties provided by law; 4. to monitor and assess through its own corporate governance structures the application of this emergency ordinance by public enterprises, as defined in art. 2 2 section 2, and to report to the Ministry of Public Finance on it and on the performance of its own duties in the application of this emergency ordinance; 5. to exercise in the companies established according Law no. 31/1990 , republished, with subsequent amendments and completions, which are not organized as joint stock companies, the powers provided for in item 2 2 and 3, as well as the approval of the constitutive act in which the number of administrators is regulated, the selection procedure and the establishment of committees among the administrators, where appropriate; 6. establish integrity criteria for the members of the board of directors/supervisory board, directors/directorate and ensure their registration in the mandate contracts; 7. to propose candidates for the positions of members on the boards of directors, based on a preliminary selection made by a commission made up of specialists in the recruitment of human resources, for the National Company "Romarm"-S.A. and subsidiaries its, as well as for autonomous regions, their companies and subsidiaries, which carry out activities of national interest specifically for national defence and security. " 4. After Article 3, two new articles are inserted, Articles 3 ^ 1 and 3 ^ 2, with the following contents: "" Art. 3 3 ^ 1. -(1) The Ministry of Public Finance also acts as a monitoring institution. As a monitoring institution, the Ministry of Public Finance, through specialized directorates or designated persons, oversees the implementation of the provisions of this emergency ordinance by the public guardianship authorities and by public enterprises. (2) The monitoring procedure and the specialized directions or persons designated for the exercise of this competence are established by order of the Minister of Public Finance. (3) For the exercise of the functions provided in par (1), the Ministry of Public Finance shall: a) monitor and evaluate the application by public authorities and public enterprises of the provisions of this emergency ordinance; b) develop rules, regulations, guidelines, forms, to facilitate the uniform application by public authorities and to monitor the implementation of legal provisions and international best practices in the field of governance corporate; c) monitor the financial and non-financial performance indicators of public enterprises in collaboration with the public authority; d) carries out a database on administrators at central and local public subordination enterprises, by centralizing the lists of administrators received from the public guardianship authorities, after publication on their own websites of them. (4) By methodological norms developed by the Ministry of Public Finance together with the relevant ministries carrying out duties of public authority for public enterprises, a unitary framework for establishing the criteria of selection, drawing up the short list of up to 5 candidates for each post, establishing their ranking, the procedure on final appointments, as well as any other measures necessary to implement the provisions of this emergency ordinance. (5) By methodological norms developed by the Ministry of Public Finance together with the relevant ministries carrying out duties of public authority for public enterprises, the methodology for determining the indicators of financial and non-financial performance and variable remuneration component. Art. 3 ^ 2. -(1) The list of managers of public undertakings shall be drawn up by the public authority. ((2) The registration in the list of administrators is made after the completion of the selection procedure according to this emergency ordinance. The procedures for the selection of administrators may be carried out by the public authority or whenever necessary, in compliance with the legal advertising conditions. " 5. In Article 4, after paragraph 1, a new paragraph (1 ^ 1) is inserted, with the following contents: " (1 ^ 1) The prohibition provided in par. (1) shall also apply to public undertakings referred to in art. 2 2 section 2 lit. a) and b) which hold a majority stake or a holding that ensures their control. " 6. Article 5 is amended and shall read as follows: "" Art. 5. -(1) The autonomous region is managed by a board of directors, consisting of 3-7 persons. (. The Management Board shall consist of: a) a representative from the Ministry of Public Finance, licensed in economic or legal sciences and with experience in the economic, accounting, auditing, financial or legal field of at least 5 years from the date of obtaining the diploma of studies higher; b) a representative of the public authority, with experience of at least 5 years in the field of activity of the autonomous direction and/or in the activity of administration of companies or autonomous kings; c) 1-5 persons with experience in the administration or management of autonomous kings or companies, including private sector companies. Such persons may not be civil servants or other staff within the public authority or other public institutions. (3) The members of the board of directors shall be appointed by the public authority. In the case of the representative of the Ministry of Public Finance, the appointment is made at the ((4) The majority of board members shall consist of non-executive and independent administrators in the sense of art. 138 ^ 2 of Law no. 31/1990 , republished, with subsequent amendments and completions. (5) The appointment of the members of the board of directors will be made on the basis of an evaluation or preliminary selection carried out by a commission organized at the level of the public authority, and in the case of the representative of the Ministry of Public Finance commission organised at this institution level. For the appointment of the representative of the public authority and of the other 1-5 administrators, the public authority may decide that in the selection process the commission is assisted or that the selection is carried out by an independent expert, the natural or legal person specialized in the recruitment of human resources, whose services are contracted, under the law. (6) In the case of autonomous regions with a number of more than 500 employees, the selection is necessarily carried out by an independent expert, natural or legal person specialized in the recruitment of human resources, whose services are contracted by public authority, under the law. (7) The selection criteria of the administrators are established, according to art. 3 ^ 1 para. (4), by the commissions or, as the case may be, by the independent expert provided in par. ((5) and in par. ((6), taking into account the specificity and complexity of the activity of the autonomous direction and the requirements of the letter of expectations. (8) The announcement of the selection of board members shall be published through the care of the public authority at least in two economic and/or financial newspapers with wide spread and, through the care of the chairman of the board of directors, the website of the public undertaking. It must include the conditions to be met by the candidates and the criteria for their evaluation. The selection is carried out in compliance with the principles of non-discrimination, equal treatment (9) In the case of selection made under the conditions of para. (6), the appointment of the administrators shall be carried out by the public authority on the proposal of the independent expert, by selecting the candidates from a short list, respectively on the basis of the nomination made by the Ministry of Public Finance for the representative of this institution ((10) The list of the members of the board of directors and the CV of each administrator shall be published, by the chairman of the board of directors, on the website of the autonomous direction for the entire term of office 7. Article 5 ^ 1 shall be repealed. 8. Article 6 is amended and shall read as follows: "" Art. 6. -There can be no administrators who, according to the law, are unable or who have been convicted of crimes against heritage by disregarding trust, corruption crimes, embezzlement, crimes of forgery in documents, evasion tax, offences provided by Law no. 656/2002 for the prevention and sanctioning of money laundering, as well as for the establishment of measures to prevent and combat the financing of terrorism, republished, as amended. " 9. Article 7 is amended and shall read as follows: "" Art. 7. -Board members may not be part of more than 3 boards of public undertakings. The public authority may establish a smaller number of boards from which a designated member of a public undertaking may be a party. " 10. Article 8 is amended and shall read as follows: "" Art. 8. -(1) The term of office of the members of the board of directors shall be determined by the act of establishment and shall not exceed The mandate of the members of the board of directors may be renewed as a result of an evaluation process, unless otherwise ordered by the act of establishment. The mandate of the administrators appointed as a result of the termination, in any form, of the mandate of the original administrators shall coincide with the remainder of the term of office of the administrator. (2) The remuneration of the members of the board of directors is established by the public authority through the mandate contract, in the structure and limits provided in par. ((3) and (4). (3) The remuneration of non-executive board members shall consist of a monthly fixed allowance and a variable component. The fixed allowance may not exceed twice the average for the last 12 months of the average gross monthly earnings for the activity carried out according to the main activity object recorded by the autonomous direction, at class level according to the classification of activities in the national economy, communicated by the National Institute of Statistics prior to appointment. The variable component is established on the basis of financial and non-financial performance indicators negotiated and approved by the public authority, different from those approved for executive administrators, determined in compliance with the methodology. provided in art. 3 ^ 1 para. ((5) and which also aim at the long-term sustainability of the autonomous direction and ensuring compliance with the principles of good governance. The amount of the variable component of non-executive members shall not exceed 12 monthly fixed allowances. (4) The remuneration of the executive members of the board of directors shall consist of a monthly fixed allowance which may not exceed 6 times the average over the last 12 months of the average gross monthly earnings for the activity carried out according to the main object of activity recorded by the autonomous direction, at the class level according to the classification of activities in the national economy, communicated by the National Institute of Statistics prior to the appointment, and from a variable component. The variable component will be based on financial and non-financial performance indicators, negotiated and approved by the public authority, different from those approved for non-executive administrators, determined in compliance with the methodology. provided in art. 3 ^ 1 para. ((5). (5) Monthly fixed allowance of the members of the board of directors established under the conditions of par. ((3) and (4) may be differentiated according to the number of meetings in which they participate, the tasks in the framework of advisory committees and other specific tasks established by the mandate contract. (6) The variable component of the remuneration of the members of the board of directors shall be reviewed annually, depending on the level of achievement of the objectives contained in the management plan and the degree of fulfilment of financial performance indicators and non-financial officers approved by the public authority, the annex to the mandate contract. (7) If the domicile of the members of the board of directors, at the date of designation, is in a locality other than that of the registered office of the autonomous direction, they may be reimbursed or settled the expenses of transport and accommodation for participation in the working sessions, by the autonomous direction. (8) The provisions of par. ((7) shall not apply where the members of the board of directors have or are residing in the locality where they have their registered office. " 11. In Article 9, paragraph 2 shall be amended and shall read as follows: " (2) The Management Board shall have the following basic duties: a) appoint and revoke the directors and determine their remuneration; b) analyze and approve the administration plan developed in collaboration with the directors, in accordance with the letter of expectations and declarations of intent; c) negotiate financial and non-financial performance indicators with the public authority; d) ensure the integrity and functionality of accounting and financial reporting systems, as well as financial planning; e) check the functioning of the internal or managerial control system; f) monitor and evaluate the performance of directors g) prepares the semi-annual report on the activity of the autonomous direction, which it presents to the public authority; h) monitors and manages potential conflicts of interest at the level of administration and management bodies; i) supervise the transparency and communication system; j) monitor the effectiveness of the corporate governance practices of the autonomous direction; k) report monthly to the public authority on how to carry out financial and non-financial performance indicators, the annex to the mandate contract, as well as other data and information of interest to the public authority, to its request. " 12. Article 10 is amended and shall read as follows: "" Art. 10. -The audit committee consists of 3 non-executive and independent administrators within the board of directors. Provisions art. 47 of Government Emergency Ordinance no. 90/2008 on the statutory audit of the annual financial statements and the consolidated annual financial statements and the public interest supervision of the accounting profession, approved with amendments by Law no. 278/2008 ,, as amended and supplemented, shall be duly applicable. '; 13. Article 12 is amended and shall read as follows: "" Art. 12. -(1) The public authority shall conclude with the administrators of the autonomous directing contracts of mandate having as its object the administration of the autonomous direction, which constitutes the annex to the administrative act of appointment. (2) The mandate contract includes, in the annex, the financial and non-financial performance indicators, determined according to the methodology provided in art. 3 ^ 1 para. ((5), negotiated with the members of the board of directors and approved by the public authority. In the mandate contract, quantifiable targets are required to reduce outstanding obligations, how to manage their claims and recover, improve financial results, make the investment plan and cash-flow insurance of the work carried out. (3) The members of the board of directors may be revoked according to the law, under the conditions set out in the contract If the revocation unjustly occurs, the administrator is entitled to pay damages, according to the provisions of the mandate contract. For the appointment of the new administrators, the provisions of art. 5-7. (4) By exception to the provisions of par. (3), in case of termination of the mandate of some of the members of the board, the selection of new members may be made from the other candidates registered on the short list (5) The form and terms of the mandate contract ending by the public authority with the members of the boards of directors of the autonomous regions shall be established by the public authority with the opinion of the Ministry of Public Finance. " 14. Article 13 shall be amended and shall read as follows: "" Art. 13. -(1) Within a maximum of 30 days from the date of its appointment, the Management Board shall draw up a proposal for the management component of the management plan in order to achieve financial and non-financial performance indicators. (2) The management component referred to in par. (1) shall be completed with the managerial component elaborated according to the provisions of 22 22 para. ((1). The management plan shall be subject to the analysis of the management board of the autonomous direction and shall be approved by its decision. (3) Within 5 days from the approval of the administration plan, according to art. 22 22 para. ((3), through the care of the chairman of the management board, the financial and non-financial performance indicators resulting from the management plan shall be transmitted to the public authority in order to negotiate and approve. ((4) The negotiation of financial and non-financial performance indicators based on the management plan and the letter of expectations shall be made within 30 days from the date of their communication to the public authority. If at the end of this term the negotiation is not completed, the term may be extended only once by a maximum of 30 days, at the request of any of the parties involved. (5) In the event of failure to negotiate in the two rounds, the members of the board of directors shall be revoked, without being entitled to the payment of damages. In this case, the outcome of the negotiation must be reasoned and published on the website of the public authority and the autonomous direction. (6) Financial and non-financial performance indicators approved by the public authority shall constitute elements to which the variable component of remuneration is determined for the managers and directors of the autonomous direction. " 15. Article 14 is amended and shall read as follows: "" Art. 14. -(1) Members of the Board shall exercise their mandate with the prudence and diligence of a good administrator. (2) The administrator does not violate the obligation provided in par. ((1), if at the time of taking a business decision he is reasonably entitled to consider that he is acting in the interests of the autonomous direction and on the basis of adequate information. (3) Business decision, for the purposes of this emergency ordinance, is any decision to take or not to take certain measures regarding the administration of the autonomous direction. (4) The members of the board of directors shall exercise their mandate with loyalty in the interests of the autonomous direction. (5) The members of the board of directors shall not disclose the confidential information and trade secrets of the autonomous direction, to which they have access in their capacity as administrators. This obligation also falls upon the termination of the administrator's mandate. (6) The content and duration of the obligations provided in par ((5) are stipulated in the mandate contract. " 16. in Article 15, after paragraph 3, a new paragraph (4) is inserted, with the following contents: " (4) In order to apply the provisions of para. ((1) and (2), the autonomous direction, through the care of the board of directors, establishes a policy on conflicts of interest and systems for its implementation. To that end, the Management Board shall adopt, within 90 days from the date of appointment, an ethics code, which shall be reviewed annually, where appropriate, by the internal auditor, in advance. The code of ethics shall be published, through the care of the chairman of the board of directors, on the website of the autonomous direction, within 48 hours of adoption, and in the case of review, on 31 May of the current year. " 17. In Article 16, paragraph 2 shall be amended and shall read as follows: "" (2) The administrators are responsible for the damage caused to the autonomous direction by the acts performed by the directors, when the damage would not have occurred if they had exercised the supervision imposed by the duties of their office. " 18. Article 17 is amended and shall read as follows: "" Art. 17. -(1) The assessment of the performance of autonomous regions by the public authority shall be made annually and shall also cover the fulfilment of the obligations of the administrators, according to the mandate contract and the objectives and performance indicators financial and non-financial, approved by the public authority. An extract of the evaluation report shall be published on the website of the public authority, until 31 May of the year following that for which the assessment is carried out. ((2) In order to carry out the assessment, the public authority may be assisted by an independent expert or by a committee of independent experts whose services are contracted under the law. " 19. Article 18 is amended and shall read as follows: "" Art. 18. -(1) By the act of establishment or, after the establishment, by decision of the public authority, it may be determined whether the executive management powers of the autonomous direction may be delegated by the board of directors to one or more directors. (2) The directors of the autonomous direction shall be appointed by the Management Board. (3) The directors may be appointed from outside the board of directors or between administrators, who thus become executive administrators, in compliance with the selection procedure provided in par. ((4)-(8). (4) Within a maximum of 30 days following the appointment by administrative act of the public authority, the board of directors shall designate the directors, on the basis of a prior evaluation or selection carried out by a commission organized at the level of the directing autonomous, consisting of specialists in the recruitment of human resources. (5) In the case of autonomous regions with a number of more than 500 employees, the selection of directors shall be compulsorily carried out by an independent expert, natural or legal person specialized in the recruitment of human resources, whose services are contracted by the autonomous direction, at the proposal of the board of directors, being initiated within a maximum of 30 days from the date of appointment of the administrators, under the law. The duration of the selection of directors by the independent expert shall not exceed 60 days. In this case, the term of appointment of directors is a maximum of 120 days after the appointment of the board of directors. (6) The Management Board or, as the case may be, the independent expert shall determine the selection criteria, in compliance with the uniform framework of the selection criteria provided for in 3 ^ 1 para. ((4). ((7) The announcement of the selection of directors shall be published, by the chairman of the board of directors, at least in two economic and/or financial newspapers spreading and on the website of the public undertaking. The announcement includes the conditions that must be met by the candidates and the criteria for their evaluation. The selection will be carried out in compliance with the principles of free competition, non-discrimination, transparency and assumption of responsibility and taking into account the specificity and complexity of the activity of the autonomous direction. (8) Publication of the notice on selection of directors in accordance with the provisions of para. ((4) shall be made at least 30 days before the deadline for submission of applications specified in the notice. (9) The list of directors, as well as their CVs shall be published, through the care of the chairman of the board of directors, on the website of the autonomous direction throughout their term of office. " 20. Article 21 is amended and shall read as follows: "" Art. 21. -(1) The autonomous direction, through the board of directors, concludes mandate contracts with the directors. ((2) The mandate contract is the agreement of will concluded between the autonomous direction, represented by the board of directors, and the managing director or directors of the autonomous direction, which includes in the annex and the financial performance indicators and non-financial, approved by the Management Board. (3) The directors may be revoked by the board of directors, according to the law, under the conditions set out in the mandate contract. If the revocation unjustly occurs, the director in question shall be entitled to the payment of damages, according to the mandate contract. For the appointment of the new directors, the provisions of art. 18. (. The remuneration of directors shall be determined by the Management Board and shall not exceed the level of remuneration established for the executive members of the Management Board. It is the only form of remuneration for directors who also meet the quality of administrators. (5) The remuneration shall consist of a fixed monthly allowance established under the terms of art. 8 8 para. ((4) and (5) and from a variable component established, on the basis of duly motivated recommendations, by the commission of human resources recruitment specialists provided for in art. 5 5 para. ((5) or, as the case may be, by independent experts in recruitment of human resources whose services have been contracted for the conduct of the selection procedure of directors for the respective autonomous direction or for another autonomous direction with similar activity. (6) The financial and non-financial performance indicators approved by the Management Board shall constitute elements to which the variable component of remuneration for the directors of the autonomous direction is determined. " 21. Article 22 is amended and shall read as follows: "" Art. 22. --(1) Within 60 days of appointment, the Directors shall draw up and submit to the Management Board a proposal for the management plan of the management plan during the term of office, with a view to achieving the performance indicators financial and non-financial. (2) Where appropriate, the Management Board may require the completion or revision of the management plan of the management plan if it does not provide for the measures to achieve the objectives contained in the letter of expectations and does not include forecasted results to ensure the assessment of financial and non-financial performance indicators as set out in the mandate contract. ((3) The approval of the management component and of the administration plan in full by the board of directors shall be carried out within a maximum of 20 days from the date of submission of the proposal provided in par. ((1). (4) After the approval of the management plan by the management board, the management component or, as the case may be, the approved financial and non-financial performance indicators are the annex to the mandate contract concluded with the directors. (5) The evaluation of the directors ' activity shall be made annually by the management board and shall be aimed both at the execution of the mandate contract and of the management plan of the management plan. " 22. in Article 23, after paragraph 2, a new paragraph (3) is inserted, with the following contents: " (3) The directors shall draw up a report on remuneration and other advantages granted to administrators and directors, which they shall submit to the public authority. The report shall contain at least the information provided for in 55 55 para. ((3). ' 23. Article 25 is amended and shall read as follows: "" Art. 25. -Organization and functioning of public enterprises-companies, provided in art. 2 2 section 2 lit. b) and c), are regulated by the present emergency ordinance and, where it does not have, the provisions Law no. 31/1990 , republished, with subsequent amendments and completions, and by the provisions Law no. 287/2009 on the Civil Code, republished, with subsequent amendments and completions. " 24. Article 27 is amended and shall read as follows: "" Art. 27. -(1) Public enterprises-companies, provided in art. 2 2 section 2 lit. b) and c), may be administered according to the unitary or dualistic system of administration, regulated by Law no. 31/1990 , republished, with subsequent amendments and completions. (2) The public authority or, as the case may be, the public undertaking which has control, through its representatives in the general meeting, as well as the shareholders representing, individually or together, 5% of the share capital may propose the amendment the system of administration from the unitary to the dualistic system or from the dualistic to the unitary system. ((3) The modification of the management system of the company may be proposed until the procedure for the selection of the administrative and management bodies of the public undertaking is triggered. " 25. Article 28 is amended and shall read as follows: "" Art. 28. -(1) In the case of companies managed according to the unitary system, the board of directors consists of 3-7 members, natural or legal persons, with experience in improving the performance of the autonomous companies or regions they have administered or driven. (. The Management Board shall consist of 5-9 members in the case of public undertakings fulfilling the following cumulative conditions: a) recorded a turnover in the last financial year superior to the equivalent in lei of 7,300,000 euros; b) have at least 50 employees. ((3) At least two of the members of the board of directors must have economic or legal studies and experience in the economic, legal, accounting, audit or financial field of at least 5 years. (4) In the case of boards of directors whose number of members falls within the provisions of par. ((1), may not be more than one member of the civil servants or other staff of the public authority or of other public authorities or institutions. (5) In the case of boards of directors whose number of members falls within the provisions of par. ((2), there may be no more than 2 members of civil servants or other staff within the public authority or from other public authorities or institutions. (6) The majority of board members shall consist of non-executive and independent administrators in the sense of art. 138 ^ 2 of Law no. 31/1990 , republished, with subsequent amendments and completions. (7) The mandate of the administrators is established by the articles of association, not exceeding 4 years. The mandate of the administrators who have duly completed their duties may be renewed as a result of an evaluation process, unless otherwise provided by the Articles of Association. The mandate of the administrators appointed as a result of the termination, in any form, of the mandate of the original administrators shall coincide with the remainder of the mandate of the administrator who has been replaced 26. Article 29 is amended and shall read as follows: "" Art. 29. -(1) The members of the board of directors shall be appointed by the general meeting of the shareholders, at the proposal of the board of directors or shareholders (2) The candidates proposed by the board of directors of the company are evaluated or selected in advance and recommended by the nominating committee within the board of directors. The nomination committee is made up of non-executive administrators, at least one of whom is independent. By decision of the board of directors it can be determined that in the evaluation process the nomination committee is assisted by an independent expert, natural or legal person specialized in the recruitment of human resources, whose services are contracted by the company under the law. (3) At the companies referred to in art. 2 2 section 2 lit. b) and c) if the guardianship public authority, on behalf of the shareholder-state or administrative-territorial unit, or the public undertaking holding a majority or controlling stake proposes candidates for the positions of members of the board of directors, these proposals are made on the basis of a prior selection by a commission made up of specialists in the recruitment of human resources. (4) The public authority may decide that in the selection process the commission is assisted or the selection is carried out by an independent expert, natural or legal person specialized in the recruitment of human resources, whose services are contracted by the public authority or public undertaking holding a majority or controlling interest according to the law. In this case, the public authority will bear the costs of the selection procedure. (5) It is mandatory to make the selection of candidates by an independent expert, natural or legal person specialized in the recruitment of human resources, in the case of public enterprises that meet the following cumulative conditions: a) recorded a turnover in the last financial year superior to the equivalent in lei of 7,300,000 euros; b) have at least 50 employees. (6) The selection criteria of the administrators are established, according to art. 3 ^ 1 para. ((4), by the members of the nomination committee, the commissions and/or the independent expert provided in par. ((4) and (5), as the case may be, taking into account the specificity and complexity of the company's activity and the requirements of the letter of expectations. (7) The notice of selection of board members shall be published, through the care of the public authority or, as the case may be, of the chairman of the board of directors or supervisors, at least in two economic and/or financial newspapers with wide spread and on the website of the public enterprise. It must include the conditions to be met by the candidates and the criteria for their evaluation. The selection is carried out in compliance with the principles of non-discrimination, equal treatment and transparency and taking into account the specificity of the field of activity of the public enterprise, while ensuring a diversification of competences at the level of the board. (8) Publication of the notice on selection of board members or supervision in accordance with the provisions of par. ((7) shall be made at least 30 days before the deadline for submission of applications specified in the notice. (9) The appointment of the administrators shall be made by the general meeting of the shareholders in the short list, drawn up according to art. 2 2 section 10. (10) By exception to the provisions of par. (8), in the event of termination of the mandate of some of the members of the board, the selection of new members may be made from the shortlist made up in the selection process, if that includes persons who have not been appointed as board members of administration. (11) The form of the mandate contract to be concluded with the administrators and the fixed remuneration of the administrators is approved at the general meeting of the shareholders who has on the agenda the appointment of the members of the board of directors. The addendum to the mandate contract concluded by the company with the administrators comprises the variable remuneration, objectives and financial and non-financial performance indicators set by the general meeting of shareholders as well as those of letter of expectations. Also, quantifiable objectives regarding the reduction of outstanding obligations, the management of receivables and their recovery, the realization of the investment plan and the cash-flow insurance of the activity carried out are required. ((12) The list of members of the board of directors or, as the case may be, of the supervisory board and their CVs shall be published, by the chairman of the board of directors or supervisors, on the website of the public the entire duration of their mandate. (13) The Board of Directors shall adopt, within 90 days from the date of appointment, an ethics code, which shall be published, through the care of the chairman of the board of directors or supervision, on the company's own website and shall be reviewed annually, if applicable, with the opinion of the internal auditor, being republished on 31 May of the current year. (14) If the candidates proposed by the board of directors are administrators in office, the application for the renewal of the mandate is addressed to the general meeting of shareholders under the conditions of art. 28 28 para. ((7), with the obligation of the candidate to submit an activity report for the period of his mandate. " 27. Article 30 is amended and shall read as follows: "" Art. 30. -(1) Within a maximum of 30 days from the date of its appointment, the board of directors or supervisors shall draw up a proposal for the management component of the management plan, with a view to achieving financial performance indicators and nonfinancial. (2) The management component referred to in par. (1) shall be completed with the managerial component elaborated according to the provisions of 36 36 para. ((1). The management plan shall be subject to the analysis and approval of the company's management or supervisory board (3) Within 5 days from the approval of the administration plan, through the care of the chairman of the board of directors or supervisors, the general meeting of the shareholders shall be convened, in order to negotiate and approve the performance indicators financial and non-financial results from the management plan. ((4) The negotiation of financial and non-financial performance indicators based on the management plan and the letter of expectations shall be made within 45 days from the date of their communication to the public authority. If at the end of this term the negotiation is not completed, the term may be extended only once by a maximum of 30 days, at the request of any of the parties involved. (5) In the event of failure to negotiate in the two rounds, the members of the board of directors or supervisors shall be revoked, without being entitled to the payment of damages. In this case the result of the negotiation must be motivated and published on the company's own website. (6) The financial and non-financial performance indicators negotiated and approved by the general meeting of shareholders constitute elements to which the variable component of remuneration for the directors and directors of the company is determined. (7) The evaluation of the activity of the administrators shall be made annually by the general meeting of the shareholders, as the case may be, with the support of experts in such assessments, and shall concern both the execution of the mandate contract and the management plan. (8) The administrators may be revoked by the general meeting of the shareholders according to the law, under the conditions set out in the mandate contract. If the revocation unjustly occurs, the administrator in question is entitled to the payment of damages, according to the mandate contract. For the appointment of the new administrators, the provisions of art. 29. (9) If, for imputable reasons, the administrators do not meet the performance indicators established by the mandate contracts, the general meeting of the shareholders shall revoke them from office and decide, within the period provided for in art. 64 ^ 4 para. (1), triggering the selection procedure for the appointment of new administrators, in accordance with the provisions of art. 29. The revoked administrators may no longer run for 5 years from the date of final stay of the decision for other boards provided by this law. " 28. Article 32 is amended and shall read as follows: "" Art. 32. --(1) At the request of the shareholders representing, individually or together, at least 5% of the subscribed and paid-up share capital, the board of directors or the directorate shall convene a general meeting of the shareholders having on the agenda the choice of If the application is made by a shareholder holding more than 10% of the share capital of the public undertaking, the application of the method Cumulative voting is compulsory. (2) By the method of cumulative voting, each shareholder has the right to assign his cumulative votes-obtained from the multiplication of votes held by any shareholder, according to the participation in the share capital, with the number of members to form the board of directors or, as the case may be, the supervisory board-one or more persons proposed to be elected to the board of directors or the supervisory board. ((3) Any shareholder may make, in writing, proposals addressed to the board of directors or directorate, for the application of the method of cumulative voting, within 15 days from the date of publication in the Official Gazette of Romania, Part IV, the convener of the general meeting of shareholders who has on the agenda the election of the members of the board or of the supervisory board (4) In the exercise of the cumulative vote, the shareholders may give all the cumulative votes to a single candidate or to several candidates. Next to each candidate the shareholders mention the number of votes granted. (5) In case of application of the cumulative voting method, the members of the board or supervisory board in office at the general meeting date will be entered on the list of candidates for the election of board members or of the supervisory board with the candidates proposed by the shareholders. (6) All candidates entered in the list of applications shall be subject to the vote of the shareholders at the general meeting of the shareholders. (7) Members of the board or supervisory board in office at the date of the general meeting, which are not reconfirmed by cumulative vote as members of the board or supervisory board, shall be deemed remove from office by decision of the General Assembly. In the case of revocation of the administrators by applying the method of cumulative voting, this revocation will not be considered revocation without the just cause and the company will not be liable for payment of damages. (8) The term of office of the members of the board of directors or of the supervisory board in office at the date of the general meeting of the shareholders in which the cumulative vote was applied will continue in case of their reconfirmation by the method Cumulative voting. (9) The persons who obtained the most cumulative votes at the general meeting of the shareholders shall form the board of directors or the supervisory board. (10) If two or more persons proposed to be elected as members of the board of directors or of the supervisory board obtain the same number of cumulative votes, it shall be declared elected as a member of the board of directors or of the supervisory board the person who was voted by a larger number of shareholders. ((11) Criteria for election of board members or supervisory board where two or more persons proposed obtain the same number of cumulative votes, expressed by the same number of shareholders, shall be determined by the general meeting of the shareholders and specified in the minutes thereof. (12) In the case of companies whose securities are traded on a regulated market, the provisions of the capital market legislation shall apply. " 29. Article 33 is amended and shall read as follows: "" Art. 33. -A natural person may simultaneously exercise no more than 3 terms of administrator and/or member of the supervisory board in public companies or enterprises whose headquarters are located on the territory of Romania. This provision shall apply to the same measure to the individual administrator or member of the supervisory board, as well as to the natural person representative of a legal person administrator or member of the supervisory board. " 30. Article 34 (5) shall be amended and shall read as follows: "" (5) Public undertakings shall establish by the Articles of Association or internal regulations the functioning and the procedure for the adoption of decisions in the framework of the Advisory Committees. " 31. Article 35 is amended and shall read as follows: "" Art. 35. -(1) In the case of companies managed according to the unitary system, the board of directors delegates the management of the company to one or more directors, appointing one of them general manager. (2) The directors may be appointed from outside the board of directors or between administrators, who thus become executive administrators, in compliance with the selection procedure provided in par. ((4)-(7). (3) The chairman of the board of directors of the company cannot be appointed as general manager. (4) Directors, whether selected from or outside the board of directors, are appointed by the board of directors, on the recommendation of the nomination committee following a selection procedure for their position. that, carried out after the appointment of the members of the board of directors in accordance with 29. The Board of Directors may decide to be assisted or that the selection be carried out by an independent expert, natural or legal person specialized in the recruitment of human resources, whose services are contracted under the law. (5) The Board of Directors or, as the case may be, the independent expert, together with the members of the nomination and remuneration committee, sets out the selection criteria, which include, at least, but not limited to, a relevant experience in management consulting or in the management of public enterprises or private sector companies. The selection criteria will be developed and the selection will be carried out in compliance with the principles of free competition, non-discrimination, transparency and assumption of responsibility and taking into account the specificity of the field of activity of the company. ((6) The announcement of the selection of directors shall be published, by the chairman of the board of directors, in at least two economic and/or financial newspapers spreading and on the website of the public undertaking. The announcement includes the conditions that must be met by the candidates and the criteria for their evaluation. The selection is carried out in compliance with the principles of non-discrimination, equal treatment (7) Publication of the notice on selection of directors in accordance with the provisions of para. ((6) shall be made at least 30 days before the deadline for submission of applications specified in the notice. (8) The appointment of directors shall be made by the Management Board by selecting the candidates from the shortlist. (9) The financial director of the public enterprise, regardless of whether it is delegated to him by the board of directors or not, will be selected in accordance with the provisions of par. ((4)-(7). (10) The list of directors and their CVs shall be published, by the chairman of the Management Board, on the website of the public undertaking, for the duration of their term of office. (11) For companies managed according to the dualist system, the provisions of paragraph ((4)-(9) shall apply accordingly to the selection of the members of the directorate by the supervisory board. " 32. Article 36 is amended and shall read as follows: "" Art. 36. -(1) Within 60 days of the appointment, the directors or members of the directorate shall draw up and submit to the board of directors or supervisors a proposal for the management component of the management plan during the term of office, in to achieve financial and non-financial performance indicators. (2) The Management Board or the Supervisory Board may request the completion or revision of the management plan of the management plan if it does not provide for measures to achieve the objectives contained in the letter of expectations and not includes the forecast results to ensure the evaluation of financial and non-financial performance indicators. ((3) The approval of the management component and of the administration plan in full by the board of directors shall be carried out within a maximum of 20 days from the date of fulfilment of the deadline provided in par. ((1). (4) After the approval of the management plan by the management board or the supervisory board, the management component or, as the case may be, the approved financial and non-financial performance indicators are the annex to the contract of mandate concluded with directors or members of the directorate (5) The evaluation of the activity of the directors or directorate, as the case may be, shall be made annually by the board of directors or supervisors and shall be aimed both at the execution of the mandate contract and of the management plan The evaluation report shall be published on the website of the public authority, on 31 May of the year following that for which the assessment is carried out. Data that according to the law have confidential or secret character are exempted from publication. (6) The directors may be revoked by the board of directors, under the conditions established by the mandate contract. If the revocation unjustly occurs, the director in question shall be entitled to the payment of damages, according to the mandate contract. For the appointment of the new directors, the provisions of art. 35. ((7) If, for imputable reasons, the directors do not meet the performance indicators established by the mandate contracts, the board of directors shall revoke them from office and decide, within the period provided for in art. 64 ^ 4 para. (2), triggering the selection procedure for the appointment of new directors, in accordance with the provisions of art. 35. The revoked directors may no longer run for 5 years from the date of final stay of the decision for similar functions. " 33. Article 37 is amended and shall read as follows: "" Art. 37. -(1) The remuneration of the members of the board of directors or, as the case may be, of the members of the supervisory board is established by the general meeting of the shareholders in the structure and limits ((2) and (4). (2) The remuneration of non-executive members of the board or supervisory board shall consist of a monthly fixed allowance and a variable component. The fixed allowance may not exceed twice the average for the last 12 months of the average gross monthly earnings for the activity carried out according to the main activity object recorded by the company, at class level according to the classification activities in the national economy, communicated by the National Institute of Statistics prior to the appointment. The variable component is established on the basis of financial and non-financial performance indicators negotiated and approved by the general meeting of shareholders, different from those approved for executive administrators, determined in compliance with the the methodology referred to in art. 3 ^ 1 para. ((5) and which also pursue the long-term sustainability of society and ensure compliance with the principles of good governance. The amount of the variable component of non-executive members shall not exceed 12 monthly fixed allowances. (3) The remuneration of the executive members of the board or supervisory board shall consist of a fixed monthly allowance which may not exceed 6 times the average over the last 12 months of the average gross monthly earnings for the activity carried out according to the main activity object recorded by the company, at class level according to the classification of activities in the national economy, communicated by the National Institute of Statistics prior to the appointment, and from a variable component. The variable component will be based on financial and non-financial performance indicators, negotiated and approved by the general meeting of shareholders, different from those approved for non-executive administrators, determined in compliance with the methodology. provided in art. 3 ^ 1 para. ((5). (4) The variable component of the remuneration of the members of the board or supervisory board shall be reviewed annually, depending on the level of achievement of the objectives contained in the management plan and the degree of fulfilment of the financial and non-financial performance indicators approved by the general meeting of shareholders, the annex to the mandate contract. (5) The general meeting of the shareholders shall be ensured, when determining the monthly fixed allowance of each member of the board of directors or, as the case may be, of each member of the supervisory board, determined according to par. ((2) and (4), that it is justified in relation to the specific duties, the tasks in the framework of advisory committees, the number of meetings, the objectives and the performance criteria set out in the mandate contract. " 34. In Article 38, paragraphs 2 and 3 shall be amended and shall read as follows: " (2) The remuneration shall consist of a fixed monthly allowance established within the limits provided for in art. 37 37 para. ((3) and from a variable component consisting of a share of participation in the net profit of the company, the granting of shares, stock-options or an equivalent scheme, a pension scheme or another form of remuneration on the basis of performance indicators. (3) The approved financial and non-financial performance indicators shall constitute elements to which the variable component of remuneration for the directors of the company is determined. " 35. Article 39 is amended and shall read as follows: "" Art. 39. -(1) The remuneration and benefits offered according to the law or the mandate contract to the administrators and directors within the unitary system, respectively to the members of the supervisory board and to the members of the directorate, in the case of the be recorded in the annual financial statements and in the annual report of the nomination and remuneration committee, board or supervisory board and shall include the remuneration and other benefits granted by the company; and by its subsidiaries. (2) The payment of professional liability insurance may be ensured by the public undertaking, it is not part of the remuneration and will be mentioned in the mandate contract. Other benefits will be mentioned in the mandate contract, such as covering some expenses with representation, transport, per diem, but without those stated being limiting. (3) The policy and criteria for remuneration of directors and directors, in the case of the unitary system and of the members of the supervisory board and of the members of the directorate, in the case of the dualistic system and the level of remuneration the other advantages offered to each administrator and director shall be made public on the website of the public undertaking, through the care of the chairman of the board or the supervisory board. '; 36. Article 40 is amended and shall read as follows: "" Art. 40. -The company must have its own website, through which it allows the access of the shareholders and the public, as the case may be, to the documents and information whose advertising is provided for by the law. " 37. In Article 41, paragraph 2 shall be amended and shall read as follows: " (2) Shareholders ' access to the information provided in par. ((1) may be limited to the public only by requirements necessary to identify the shareholders, the confidentiality of the information, if applicable, and the security of electronic communication, only in so far as these limitations are proportional to the realization these objectives. " 38. In Article 45, paragraphs 1 and 5 shall be amended and shall read as follows: "" Art. 45. --(1) By way of derogation from the provisions art. 125 125 para. ((3) of Law no. 31/1990 , republished, with subsequent amendments and completions, it is not necessary to submit the prosecutor's office before the meeting of the general meeting of shareholders. .................................................................... (5) Shareholders may vote by correspondence or by electronic means prior to the general meeting. Postal voting forms shall be submitted by the shareholders at least 48 hours before the general meeting. " 39. In Article 47, after paragraph 1, a new paragraph (1 ^ 1) is inserted, with the following contents: "" (1 ^ 1) The statutory auditors shall be appointed before the end of the financial year by the general meeting of the shareholders, and in the case of autonomous regions by the board of directors, for a period of at least 3 years. " 40. In Article 51, paragraph 1 shall be amended and shall read as follows: "" Art. 51. -(1) The public undertaking, through the care of the chairman of the board or the supervisory board, must publish on its website, for the access of shareholders or associates and the public, the following documents and information: a) the decisions of the general meetings of the shareholders, within 48 hours from the date of the meeting; b) annual financial statements, within 48 hours of approval; c) half-yearly accounting reports, within 45 days after the end of the semester; d) the annual audit report; e) the list of directors and directors, the CVs of the members of the board and directors or, as the case may be, members of the supervisory board and members of the directorate and the level of their remuneration; f) the reports of the Board of Directors or, where applicable, of the Supervisory Board; g) the annual report on the remuneration and other advantages granted to administrators and directors, respectively to the members of the supervisory board and to the members of the directorate during the financial year; h) Code of Ethics, within 48 hours of adoption, respectively on the 31st of May of each year, in case of its revision. " 41. Article 52 is amended and shall read as follows: "" Art. 52. -(1) The Board of Directors or, as the case may be, the Supervisory Board shall convene the General Meeting of Shareholders for the approval of any transaction if it has, individually or in a series of concluded transactions, a value of more than 10% of the value of the net assets of the public undertaking or more than 10% of the public undertaking's turnover according to the last audited financial statements, the administrators or directors or, where applicable, the members of the supervisory board or the directorate, with the employees, with the shareholders who have control over to society or to a company controlled by them. (2) The obligation to convene returns to the board of directors or the supervisory board and in the case of transactions concluded with the spouse, relatives or afinii up to the fourth degree including the persons referred to in par. ((1). (3) The Management Board or, as the case may be, the supervisory board shall inform the shareholders, at the first general meeting of the shareholders following the conclusion of the legal act, on any transaction concluded by the public undertaking with a) persons referred to in par. ((1) and (2), if the transaction value is below the level set at par. ((1); b) another public enterprise or with the public authority, if the transaction has a value, individually or in a series of transactions, at least the equivalent in lei of 100,000 euros. (4) In the case of autonomous regions, the board of directors shall immediately inform the public authority of any transaction referred to in par. ((1)-(3). (5) The Director-General or, as the case may be, the directorate shall submit to the approval of the Board or the Supervisory Board any transaction in the category of (1) if it has, individually or in a series of transactions, a value of at least the equivalent in lei of 50,000 euros. In order to decide on the transaction, the board of directors may order independent expertise to verify that the transaction is correct in relation to offers of the same type on the market. (6) In the half-yearly and annual reports of the board of directors or, as the case may be, the directorate shall be mentioned, in a special chapter, the legal acts concluded under the terms of ((1) and (3), specifying the following elements: the parties that have concluded the legal act, the date of conclusion and the nature of the act, the description of its object, the total value of the legal act, the mutual claims, the guarantees constituted, the the arrangements for payment as well as other essential and significant elements in relation to these legal acts. The reports shall also include any other information necessary to determine the effects of the respective legal acts on the financial situation of the company. " 42. Article 53 is amended and shall read as follows: "" Art. 53. -(1) The legal act concluded in fraud of the interests of the public undertaking by a member of the board of directors or of the supervisory board, by a director or, as the case may be, by a member of the directorate with: a) the spouse, the ascendants or his or her descendants, the relatives in line or with his or her affins up to the fourth degree; b) administrators or directors or, as the case may be, with members of the supervisory board or directorate, with employees, with shareholders who have control over the company or with a controlled company; c) the spouse of the persons referred to b), with the ascenders or their progeny, with relatives in line or with the blueberries up to and including their fourth degree. ((2) The cancellation action may be brought by any shareholder or person designated by the general meeting of shareholders within 6 months from the date on which he or she has known the conclusion of the transaction, but not more than 6 months from the date of approval of to the general meeting of the transaction, according to 52 52 para. ((1) and (2). ' 43. In Article 55, the introductory part of paragraph 3 shall be amended and shall read as follows: " (3) The report referred to in par. ((2) is presented to the general meeting of shareholders approving the annual financial statements. The report is made available to shareholders according to art. 39 39 para. ((1) and shall include at least information on: " 44. Article 56 is amended and shall read as follows: "" Art. 56. -The Management Board or, as the case may be, the Supervisory Board shall draw up an annual report on the work of the public undertaking, no later than 31 May of the year following that on which it relates. The report shall be published on the website of the public undertaking. ' 45. Article 57 is amended and shall read as follows: "" Art. 57. -(1) The Management Board or the Director-General, if the executive management is exercised by the Directors, or, as the case may be, the directorate is required to transmit to the Ministry of Public Finance and, as the case may be, to the public authority or to shareholders who hold more than 5% of the share capital, quarterly and whenever requested, substantiations, analyses, situations, reports and any other information relating to the activity of the public undertaking, in the format and at the deadlines established by order or circular of the beneficiaries. (2) Corporate governance structures within the public guardianship authority report performance indicators monitored at public enterprises by the Ministry of Public Finance, quarterly, by the end of the following month previous quarter. (3) The performance indicators monitored at public enterprises shall be established by the public authority through the mandate contract of the administrators. (4) Corporate governance structures at the level of the public undertaking shall report the monitoring indicators in the mandate contract, quarterly, by the 20th of the month following the previous quarter. " 46. Article 58 is amended and shall read as follows: "" Art. 58. -(1) The public authority shall draw up every year a report on public undertakings under the law, in coordination, under authority or in the portfolio. The report shall be published on the website of the public authority until the end of June of the current year. (2) The report provided in par. ((1) shall include at least information on: a) the shareholder policy of the public authority; b) strategic changes in the functioning of public enterprises: mergers, divisions, transformations, changes in the capital structure, etc.; c) the evolution of financial and non-financial performance of public enterprises subordinated, in coordination, under authority or in the portfolio of public authority: reduction of outstanding payments, profit, etc.; d) economic and social policies implemented by public undertakings under the authority, in coordination, under authority or in the portfolio of the public authority and the costs or advantages thereof; e) data on the opinions of external auditors and the concerns of their removal and prevention; f) other elements established by decision or order of the public authority. (3) The information on the shareholding policy of the public authority shall cover at least: a) the objectives of the shareholding policy expressed by the letter of expectations and stipulated in the mandate contract; b) economic-financial and non-financial indicators, reported to publicly assumed targets by letter of expectations, or revenue and expenditure budgets of public enterprises; c) the evolution of the state's participation in public enterprises (privatization, acquisition of new shares); d) value of dividends distributed to the State-shareholder; e) the selection of administrators and directors, the execution of their mandate. (4) In August of the year following that on which the reporting is made, the Ministry of Public Finance shall develop and submit to the Government an annual report on public enterprises. This report is published on the website of the Ministry of Public Finance. " 47. Article 59 is amended and shall read as follows: "" Art. 59. -Failure to fulfill the obligations provided by this emergency ordinance shall entail, under the law, disciplinary, civil, contravention or criminal liability, as the case may be, of persons with attributions in the application of this emergency ordinance. " 48. After Article 59, a new article is inserted, Article 59 ^ 1, with the following contents: "" Art. 59 59 ^ 1. -(1) Failure by the public authority to comply with the obligations provided in art. 3 3 para. ((1) lit. a) and para. ((2) lit. c), art. 5 5 para. ((8), art. 29 29 para. ((7), art. 57 57 para. ((2) and art. 58 58 para. (1) the second sentence constitutes contravention and is sanctioned with warning or fine from 3,000 to 5,000 lei. (2) Failure by the chairman of the board of directors or supervision of the obligations provided in art. 5 5 para. ((8), art. 18 18 para. ((7), art. 29 29 para. ((7), art. 35 35 para. ((6) and art. 39 39 para. (3) constitutes contravention and is sanctioned with warning or fine from 2,000 to 4,000 lei. (3) Failure by the chairman of the board of directors or supervision of the obligations provided in art. 51 51 para. (1) is sanctioned with warning or fine from 1,000 to 3,000 lei. (4) If the act of finding the contravention is provided for measures to remedy the situation, establishing a deadline for this purpose, failure to fulfill the measures ordered, within the established deadline, with guilt, constitutes contravention and is sanctioned with the fine of which the minimum limit and, respectively, of which the maximum limit is double the limits of the fine provided by law for the contravention in relation to which entitlement measures were ordered. (5) The finding of contravention and the application of the contravention sanction shall be carried out by the authorized persons of the Ministry of Public Finance. " 49. Article 60 is amended and shall read as follows: "" Art. 60. -(1) After the entry into force of this emergency ordinance, the appointment of administrators or, as the case may be, members of the supervisory board of public undertakings for positions rendered vacant for any cause of termination of office the administrator will be made according to the procedure provided for in 5, respectively in art. 29. (2) By derogation from the provisions of art. 28 28 para. ((1), art. 29 29 and art. 34, in the case of companies established under Law no. 31/1990 , republished, with subsequent amendments and completions, which are not organized as joint stock companies, the number of administrators and the procedure for their selection, as well as the establishment of committees of administrators are established by the public authority through the constitutive act of those companies. '; 50. Article 61 (7) shall be amended and shall read as follows: "" (7) No later than 10 days from the date of conclusion of the assistance contract with the independent expert provided in par. ((6), the board of directors or, as the case may be, the nomination committee shall submit for publication an announcement on the selection of board members or, as the case may be, the supervisory board. The notice shall be published in Romanian and in English in at least two economic and/or financial newspapers with wide spread. The notice shall include the conditions to be met by the candidates and the criteria for their selection. " 51. Article 64 is amended and shall read as follows: "" Art. 64. -(1) The composition of the board of directors or, as the case may be, of the supervisory board and the directorate shall be subject to the applicable legislation at the date of establishment of the administrative or supervisory board, normative acts that remain applicable until the date of appointment of new administrators or directors or new members of the supervisory board and directorate according to the provisions of art. 5 5, art. 18 or, as appropriate, art. 29 29, art. 35 35 times art. 61. ((2) Any of the shareholders, including the shareholder-state, through the public authority, may ask the board of directors or, as the case may be, the directorate to convene the general meeting of the shareholders, in order to submit to its approval the proposal to request the board of directors or, as the case may be, the supervisory board to accept the provisions of the ongoing management plan by the new administrators or to develop an administration plan for the remaining term of office, on the basis of the letter of expectations presented by the public authority, by its representatives in the general meeting of shareholders. The Board of Directors or, as the case may be, the Supervisory Board shall submit the management plan for approval to the general meeting of the shareholders, within 90 days from the date on which the request was approved. In order to achieve the objectives established by the management plan, the company shall conclude with the administrators, for the remaining term of office, mandate contracts or, as the case may be, additional acts to the mandate contract. (3) The level of remuneration of the members of the boards of directors, supervisory boards and directors who have not been appointed under the conditions of this emergency ordinance shall be established by assimilation with those provided for in art. 8, 37 and 38, in compliance with the budgetary provisions approved at the level of the public enterprise. (4) The number of mandates exercised concurrently by a natural person shall remain subject to the legislation in force at the time of the conclusion of the term 52. After Article 64, four new articles are inserted, articles 64 ^ 1-64 ^ 4, with the following contents: "" Art. 64 64 ^ 1. --(1) In the event of the vacancy of one or more of the posts of administrator of the autonomous direction, the public authority may proceed to the appointment of provisional administrators, pending the completion of the selection procedure of the administrators, according to this emergency ordinance. (2) If the holiday provided in par. (1) determine the decrease in the number of administrators below the legal minimum, the public authority shall appoint provisional administrators to complete the legal minimum number of board members, pending the completion of the selection, according to this emergency ordinance. (3) In case of a holiday of one or more of a company's position of administrator, shareholders, including the shareholder-state, through the public authority, may convene the general meeting of the shareholders for the appointment of one or more provisional administrators, pending the completion of the selection procedure of the administrators, according to this emergency ordinance. Shareholders, including the shareholder-state, through the public authority, will be able to present proposals for candidates in the general meeting of shareholders. (4) If the holiday provided in par. (3) determines the decrease in the number of administrators below the legal minimum, the shareholders, including the shareholder-state, through the public authority, alone or together, will immediately convene the general meeting of the shareholders to complete the number by members of the board of directors with provisional administrators, until the completion of the selection procedure of the administrators, according to this emergency ordinance. For this purpose the shareholders, including the shareholder-state, through the public authority, will be able to present proposals for candidates in the general meeting of the shareholders. (5) In the situations provided in par. (2)-(4), the term of office is 4 months, with the possibility of extension, for thorough reasons, up to a maximum of 6 months. ((6) If the selection procedure is suspended or annulled by the court, the term of the provisional administrator shall continue until the appointment of the new administrator. (7) The remuneration of the provisional administrators shall be equal to the remuneration of the administrators referred to in art. 64 64 para. ((3). Art. 64 ^ 2. --(1) If the public undertaking's management powers have been delegated to the directors, and the post/posts of director remains/remain vacant/vacant, the board of directors may designate a provisional director until the completion of the selection procedure, according to the provisions of this emergency ordinance. The term of office is 4 months, with the possibility of extending it, for thorough reasons, up to a maximum of 6 months. (2) The remuneration of the provisional directors shall be equal to the remuneration of the directors referred to in art. 64 64 para. ((3). Art. 64 ^ 3. -(1) The number of representatives of the state or administrative-territorial unit in the general meeting of shareholders in public enterprises is a maximum of two persons. (2) Civil servants, contract staff and persons appointed or elected to public dignity positions may be appointed to represent the State or administrative-territorial unit to a maximum of two public undertakings, as a member of the general meeting of shareholders, in compliance with the legal provisions regarding the incompatibilities and conflict of interests regulated by Law no. 161/2003 on certain measures to ensure transparency in the exercise of public dignity, public functions and in the business environment, prevention and sanctioning of corruption, with subsequent amendments and completions. (. Public authorities which have in coordination, under authority, in subordination or in the portfolio public undertakings shall take measures to ensure their functioning under the conditions of this Article. Art. 64 ^ 4. -(1) In case of holiday of one or more posts of administrators, the selection procedure shall be triggered, by the care of the public authority, within 45 days of the holiday. ((2) In case of holiday of one or more of the directors ' posts, the selection procedure shall be triggered, by the chairman of the board of directors or supervision, within 30 days of the vacancy. ((. The selection procedure for the members of the board of directors or supervisors and directors shall be completed no later than 150 days after its release. (4) Non-compliance by the head of the public authority with the deadline for triggering the selection provided in par. (1) by public enterprises under subordination, coordination or in the portfolio constitute contravention and are sanctioned with a fine of 5,000 to 10,000 lei. (5) Failure by the chairman of the board or the supervisory board of the deadline for triggering the selection provided in par. (2) constitutes contravention and is sanctioned with a fine of 2,000 to 5,000 lei. (6) Failure by the person responsible for the term provided in par. (3) constitutes contravention and is sanctioned with a fine of 2,000 lei. " + Article II The mandate contracts of the members of the board of directors and directors, respectively of the members of the supervisory board and the directorate shall remain subject to the legislation in force at the time of their conclusion, unless the According to this law. + Article III Public guardianship authorities shall establish their own corporate governance structures which ensure the exercise of the powers and powers provided for in Government Emergency Ordinance no. 109/2011 on the corporate governance of public undertakings, with subsequent amendments and completions, to public undertakings. The staff employed in these structures has the status of civil servant. + Article IV Methodological rules provided for in art. 3 ^ 1 para. (4) and (5) of Government Emergency Ordinance no. 109/2011 on the corporate governance of public enterprises, with subsequent amendments and completions, is approved by Government decision within 4 months from the entry into force of this Law. + Article V ((1) For public undertakings to which the selection procedure of the members of the board of directors or the supervisory board has not been triggered, Government Emergency Ordinance no. 109/2011 on the corporate governance of public enterprises, with subsequent amendments and completions, the selection procedure is triggered, through the care of the public authority, within 50 days of the entry into force of the rules methodological referred to in art. IV. (2) Non-compliance by the head of the public authority with the deadline for triggering the selection provided in par. (1) by public enterprises under subordination, coordination or in the portfolio constitute contravention and are sanctioned with a fine of 5,000 to 10,000 lei. + Article VI Provisions art. 7 of Government Emergency Ordinance no. 109/2011 on the corporate governance of public undertakings, as amended and supplemented, as amended by this Law, shall apply only to contracts of mandate concluded after the date of entry into force of this Agreement. laws. + Article VII (1) Within 30 days from the entry into force of this Law, persons referred to in art. 64 ^ 3 para. (2) of Government Emergency Ordinance no. 109/2011 on the corporate governance of public enterprises, with subsequent amendments and completions, appointed representatives of the state or administrative-territorial unit in several general meetings of shareholders in several enterprises the public will exercise their option. ((2) Where the persons referred to in art. 64 ^ 3 para. (2) of Government Emergency Ordinance no. 109/2011 on the corporate governance of public enterprises, with subsequent amendments and completions, does not exercise the right of option within the period provided in par. (1), they shall lose their status as representative of the state or administrative-territorial unit of all general meetings of the shareholders of public enterprises. + Article VIII The date of entry into force of this Law shall be repealed art. 14 of Government Ordinance no. 15/1993 on certain measures for the restructuring of the activity of autonomous regions, published in the Official Gazette of Romania, Part I, no. 202 202 of 23 August 1993, as amended. + Article IX Government Emergency Ordinance no. 109/2011 on the corporate governance of public enterprises, published in the Official Gazette of Romania, Part I, no. 883 of December 14, 2011, with subsequent amendments and completions, including with the amendments and completions brought by this law, will be republished in the Official Gazette of Romania, giving the texts a new numbering. This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished.
p. CHAMBER OF DEPUTIES PRESIDENT,
FLORIN IORDACHE
SENATE PRESIDENT
CĂLIN-CONSTANTIN-ANTON POPESCU-TARICEANU Bucharest, 27 May 2016. No. 111. -------

Law No. 111 Of 27 May 2016 Approving Government Emergency Ordinance No. 109/2011 Regarding Corporate Governance Of Public Enterprises

Original Language Title: LEGE nr. 111 din 27 mai 2016 pentru aprobarea Ordonanţei de urgenţă a Guvernului nr. 109/2011 privind guvernanţa corporativă a întreprinderilor publice

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