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Law No. 182 Of 17 October 2016

Original Language Title: LEGE nr. 182 din 17 octombrie 2016

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LEGE no. 182 182 of 17 October 2016 for approval Government Emergency Ordinance no. 44/2008 on the pursuit of economic activities by authorised natural persons, individual undertakings and family undertakings
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 828 828 of 19 October 2016



The Romanian Parliament adopts this law + Article I Approval Government Emergency Ordinance no. 44 44 of 16 April 2008 on the conduct of economic activities by authorized individuals, individual enterprises and family enterprises, published in the Official Gazette of Romania, Part I, no. 328 of April 25, 2008, with subsequent amendments and completions, with the following amendments and completions: "" 1. In Article 1, paragraphs 1 and 3 shall be amended and shall read as follows: "" Art. 1. -(1) This emergency ordinance regulates access to economic activities in the national economy as provided for in the CAEN Code, the procedure for registration in the commercial register, the authorization of the operation and the legal regime of natural persons authorised to carry out economic activities, as well as of individual and family undertakings. ........................................................................... (3) This emergency ordinance does not apply to those economic activities for which, by law, certain restrictions of conduct or other prohibitions and those activities expressly prohibited by law for free initiative are established. " 2. In Article 1, after paragraph 3, a new paragraph (3 ^ 1) is inserted, with the following contents: "" (3 ^ 1) In the case of economic activities whose organization and authorization are regulated by special laws, if they do not provide otherwise, only the provisions of this emergency ordinance regarding registration at the register office are applicable trade as a prior obligation for authorization by the competent authorities established by the provisions of the special laws. " 3. in Article 2, points a), f), h), i) and j) shall be amended and shall read as follows: " a) economic activity-activity for profit, consisting in the production, administration or disposal of goods or services; ........................................................................... f) economic enterprise-the economic activity carried out in an organized, permanent and systematic way, combining financial resources, labor, raw materials, logistical means and information, at the risk of the entrepreneur, in cases and in the conditions provided by law; ........................................................................... h) family enterprise-economic enterprise, without legal personality, organized by members of a family; i) authorized natural person-economic enterprise, without legal personality, organized by a natural person who mainly uses his workforce; ........................................................................... j) heritage of damage-patrimonial mass within the patrimony of the entrepreneur, representing the totality of the affected rights and obligations, by written declaration or, as the case may be, by the establishment agreement or by an addendum to it, to the exercise of economic activity; ". 4. In Article 2, after letter j) a new letter, letter j ^ 1) is inserted, with the following contents: " j ^ 1) professional premises-the main office/location declared at the trade register, for the registration and authorisation of the officials of the authorized natural person, the individual or family undertaking, representing the identification element of the it in the legal relations in which it participates; '. 5. Article 3 (3) shall be repealed. 6. In Article 7, paragraphs 1 to 3 shall be amended and shall read as follows: "" Art. 7. -(1) Individuals referred to in art. 3 3 para. (1) have the obligation to request the office of the trade register of the court to register and authorize officials, in compliance with the provisions of this emergency ordinance, before the beginning of economic activity in the forms provided for in art. 4 lit. a) or b), as an authorized natural person, hereinafter referred to as the PFA, respectively as the holder of an individual undertaking. ((. The representative of the family undertaking shall require the registration in the commercial register and the authorization of the operation before the start of economic activity If it does not make the request within 15 days from the conclusion of the establishment agreement provided for in art. 29 29 para. (1), any member of the family enterprise, who has full capacity of exercise, may request registration in the commercial register and authorization of operation, in compliance with the provisions of par. ((4). (3) In all cases, the application for registration in the commercial register and the authorization of the operation must be made within 20 days from the conclusion of the establishment agreement provided for in art. 29 29 para. ((1). ' 7. in Article 8, points a)-c) of paragraph 1 and paragraphs 2 and 3 shall be amended and shall read as follows: "" a) have full exercise capacity, with the exception of members of the family undertaking who do not have the status of representative, who must be at least 16 years of age; b) have not committed acts sanctioned by tax, accounting, customs and those concerning financial and fiscal discipline; c) have a professional headquarters declared according to art. 9 9; ........................................................................... (2) The fulfilment of the conditions provided in par. ((1) lit. d) is made according to art. 5 5, art. 15 15 para. ((1) lit. b) and para. ((2), art. 17 17 and the following of Law no. 359/2004 on the simplification of formalities when registering in the commercial register of natural persons, family associations and legal persons, their tax registration and the authorization of the officials of legal persons, with subsequent amendments and completions, both for professional headquarters, for each working point, and for activities carried out outside the professional headquarters or working points. (3) If, according to special legal provisions, for certain economic activities it is necessary to meet conditions of professional training and/or attestation of professional training or experience, the persons referred to in art. 4 4 must provide proof of their fulfilment. " 8. In Article 9, paragraph 2 shall be amended and shall read as follows: " (2) For the establishment of the professional establishment/work points it is necessary that the titular natural person who is authorized as PFA, the holder of the individual undertaking or any member of the family enterprise, as the case may be, submit the attest to the right of use on the property with the destination of professional headquarters/working point. " 9. In Article 9, after paragraph 2, a new paragraph (2 ^ 1) is inserted, with the following contents: "" (2 ^ 1) If at the professional premises, a residential building, no economic activity is carried out, the titular natural person of the PFA, the holder of the individual enterprise or the member of the family enterprise who has the right of use on the property submits a declaration on its own responsibility, under private signature, certifying that at the professional headquarters it does not carry out economic activity, in this case the formalities provided by art. 42 42 of Law no. 230/2007 on the establishment, organization and functioning of the owners ' associations, with subsequent amendments and completions. " 10. Article 11 is amended and shall read as follows: "" Art. 11. -(1) The registration in the commercial register of the PFA, the individual enterprise and the family enterprise shall be based on the reasoned resolution of the director of the trade register office of the court or of one of the designated persons by decision of the Director General of the National Trade Register Office, with the proper application of the provisions art. 11 11 para. (2) and (3) of Government Emergency Ordinance no. 116/2009 for the establishment of measures concerning the activity of registration in the commercial register, approved with amendments and additions by Law no. 84/2010 ,, as amended. (2) If the conditions laid down in art. 8 and 9, the director of the trade register office of the courthouse or the designated person shall have the registration in the trade register and the authorization of the officials of the authorized natural person, the individual undertaking family. The same resolution will have the registration in the commercial register of the declaration-type on its own responsibility, given according to the provisions Law no. 359/2004 , with subsequent amendments and completions. Provisions art. 17 ^ 2 of Law no. 359/2004 , with subsequent amendments and completions, relating to the transmission of the type-declarations to the competent public authorities, shall apply accordingly. (3) If the documents submitted in support of the application are incomplete, the director of the trade register office of the court or the designated person shall order by reasoned resolution the granting of a maximum period of 15 days for their completion. The term will be communicated to the applicant on the spot, if present, as well as by display/post on the website of the National Trade Register Office, and the resolution is displayed at the office of the trade register office of the court and on the website of the National Trade Register Office. In all cases, the documents to be submitted by the deadline will be indicated. At the reasoned request of the applicant, the 15-day period may be extended only once by a maximum of 15 days. The 15-day period is calculated without taking into account the day when it began and the day on which it was fulfilled. (4) If the legal conditions are not met, the director of the trade register office of the court or the designated person shall order by reasoned resolution the rejection of the application for registration in the trade register and the authorization of the operation for the authorized natural person, the individual undertaking or the requesting family enterprise, and the registration of the declaration-type on their own responsibility Law no. 359/2004 , with subsequent amendments and completions. ((. The resolutions of the director of the trade register office of the court or of the designated person, with regard to registration and any other records in the commercial register, under this emergency ordinance, shall be executed immediately, on their basis making the records ordered by them, without any other formality. " 11. Article 12 is amended and shall read as follows: "" Art. 12. -(1) Against the resolution of the director of the trade register office of the court or of the designated person can be filed a complaint within 15 days of delivery or communication, as the case may be. The complaint is filed at the court in whose territorial area the applicant's professional headquarters is located and is judged under the conditions of common law. Provisions art. 7 7 of Law no. 26/1990 on the trade register, republished, with subsequent amendments and completions, shall apply accordingly. (2) The application of the resolutions of the director of the trade register office of the court or of the designated person, with regard to registration and any other records in the commercial register, according to this emergency ordinance, shall not be suspend in the course of judgment. ((3) Applications to the courts under this emergency ordinance shall be exempt from the stamp duty. " 12. In Article 13, paragraphs 1 and 2 shall be amended and shall read as follows: "" Art. 13. -(1) In the case provided for in art. 11 11 para. (2) or in the case of a final judgment which so orders, the office of the trade register of the court shall issue the registration certificate, containing the unique registration code, the ascertaining certificate issued on the basis of the affidavit, as well as other acts provided by law, as the case may be. (2) The term of issue of the registration certificate and, as the case may be, of the registration certificate is 3 working days, calculated from the date of registration of the application or, as the case may be, from the date of completion of the application with the documents requested. " 13. In Article 14, paragraphs 2 and 4 shall be amended and shall read as follows: " (2) The change of the professional headquarters and/or the main object of activity shall be registered at the trade register office, with the proper application of the provisions of this chapter. In case of change of professional headquarters in another county, the director of the trade register office or the designated person, at which the PFA is registered, the individual enterprise or the family enterprise, will approve, by the same resolution, the change of the professional headquarters in another county, the registration in the commercial register of the new headquarters and the deletion of the registration from the commercial register of the old headquarters, ordering the records in the commercial register ........................................................................ (4) In order to carry out an economic activity other than those registered in the commercial register and for which the authorization of the operation was obtained it is necessary to obtain the registration/authorization, under the conditions of this emergency ordinance. " 14. Article 15 is amended and shall read as follows: "" Art. 15. -The authorized individual, the holder of the individual enterprise and the representative of the family enterprise will keep the accounting in the simple game, according to the regulations on the organization and management of the accounting to individuals who have the status of a taxpayer, in accordance with the provisions Law no. 227/2015 on the Fiscal Code, with subsequent amendments and completions. " 15. Article 16 is amended and shall read as follows: "" Art. 16. -(1) The PFA may have in the object of activity no more than 5 classes of activities provided by the CAEN code. (2) For the purpose of exercising the activity/activities for which it was authorized, the PFA may establish contractual relations, under the law, with any natural and legal persons, with other PFA, individual enterprises or family enterprises, to carry out an economic activity, without changing the legal status acquired in accordance with this Section. '; 16. In Article 17, paragraphs 1 and 2 shall be amended and shall read as follows: "" Art. 17. -(1) The PFA may carry out the activities for which it is authorized, alone or together with no more than 3 persons, employed by it, as an employer, with an individual employment contract, concluded and registered under the law. (2) A titular person of the PFA may cumulate the quality of natural person authorized with that of employee of a third person operating both in the same field and in another field of economic activity than the one for which the PFA is authorized. " 17. Article 18 is amended and shall read as follows: "" Art. 18. -The natural person carrying out economic activities as PFA is insured in the public pension system and other social security rights and has the right to be insured in the health insurance and unemployment insurance system, under the conditions provided by law. " 18. In Article 19, paragraph 2 shall be amended and shall read as follows: " (2) The natural person authorized to carry out economic activities as PFA may require the change of the acquired legal status and authorization as the titular entrepreneur of an individual enterprise, in compliance with the provisions of the II and art. 21 21. " 19. Article 20 is amended and shall read as follows: "" Art. 20. -(1) The holder of the PFA shall be responsible for the obligations assumed in the operation of the economic enterprise with the assets of the If they are not sufficient to satisfy the claims, the debtor's other assets may also be pursued. Art. 31 31, 32 and art. 2.324 2.324 para. (3) of the Civil Code are applicable. (2) In the event of insolvency, the PFA will be subject to the simplified procedure provided by Law no. 85/2014 on insolvency and insolvency prevention procedures, with subsequent amendments and completions. ((3) Any interested person may prove the quality of professional in the insolvency proceedings or separately, by action in finding, if he justifies a legitimate interest. " 20. in Article 21 (1), points a) and b) shall be amended and shall read as follows: "" a) by the death of the PFA holder; b) by the will of the PFA holder; ". 21. Article 24 is amended and shall read as follows: "" Art. 24. -(1) The individual enterprise may be in the object of activity no more than 10 classes of activities provided by the CAEN code. (2) The individual undertaking may employ no more than 8 employees, third persons, with an individual employment contract concluded and registered under the law and may establish contractual relations, under the law, with any natural and legal persons, with other individual undertakings, with PFA or family undertakings, in order to carry out an economic activity, without changing the legal status acquired in accordance with this section. ' 22. Article 26 is amended and shall read as follows: "" Art. 26. -The individual holder of the individual enterprise shall be liable for the obligations assumed in the operation of the economic enterprise with the assets of the property of If they are not sufficient to satisfy the claims, the debtor's other assets may also be pursued. Art. 31 31, 32 and art. 2.324 2.324 para. ((3) of the Civil Code are applicable. " 23. Article 29 is amended and shall read as follows: "" Art. 29. -(1) The family enterprise is constituted by a settlement agreement, concluded by the family members in written form, as a condition of validity. The establishment agreement will stipulate, under penalty of nullity, the identification data of the family members and the designated representative among them, the conditions of participation, the percentage share of each member to benefits and losses, the relations between the members of the family undertaking, the withdrawal conditions and the date of preparation. ((2) The representative appointed by the establishment agreement will manage the interests of the family enterprise under a special power of attorney, in the form of a private signature. The special power of attorney shall be signed by all members of the undertaking who have full exercise capacity and legal representatives of those with restricted exercise capacity. ((3) In order to exercise the activity for which it was authorized, the family enterprise may establish contractual relations, under the law, with any natural and legal persons, with other family enterprises, with individual enterprises or with the PFA, in order to carry out an economic activity, without it changing its legal status acquired according to this section. " 24. In Article 30, paragraphs 2 and 3 shall be amended and shall read as follows: " (2) By the agreement establishing the family enterprise, each member of the family may stipulate the establishment, within the framework of its patrimony, of a patrimony of affection, for the exercise of the economic activity of the family enterprise. (3) In the case provided in par. (2), by the establishment agreement or by an addendum to it, the quotas for the participation of members in the constitution of the estate of impairment will be established. If the members of the undertaking agree unanimously, the participation rates may differ from those laid down for participation in the benefits or losses of the undertaking. " 25. Article 31 is amended and shall read as follows: "" Art. 31. -The members of the family enterprise shall be jointly and severally liable for the debts contracted by the representative in the operation of the undertaking with the estate and, in addition, with their entire patrimony, corresponding to the participation provided in art. 29 29 para. ((1). ' 26. In Article 32, paragraph 3 shall be amended and shall read as follows: "" (3) The acts by which goods are acquired for the activity of the family enterprise shall be concluded by the representative without the prior authorization of the members, if the value of the good with regard to which the act ends does not exceed 50% of the value which were affected by the exercise of the economic activity of the undertaking according to 30 30 para. ((2) and the amounts of money available to the family enterprise at the date of the act. The acquired goods are the co-ownership of the members in the benefits participation quotas, according to 29 29 para. ((1), being included in the estate of the impairment, if it was constituted. " 27. Article 34 shall be repealed. 28. After Article 35, a new article is inserted, Article 35 ^ 1, with the following contents: "" Art. 35 35 ^ 1. -(1) Students who want to set up a business of their own are exempt from paying fees for operations to register and authorise a PFA or an individual enterprise through the trade register offices of the courts, such as and from the payment of the tariffs for the assistance services provided by these offices. (2) In order to benefit from the provisions of para. ((1), the student who obtains the status of PFA holder or holder of the individual enterprise must cumulatively meet the following conditions: a) to attend the courses of an accredited higher education institution in Romania; b) be at least in the second year of study and be promoted, in full, at the time of the request, all the requirements of the curriculum provided by the senate of the institution; c) has not reached the age of 30. (3) The application for registration and authorization of the functioning of the PFA or of the individual enterprise will be accompanied by the proof document issued by the higher education institution, showing that the conditions provided in par. ((2) lit. a) and b). " 29. Article 38 is amended and shall read as follows: "" Art. 38. -Persons provided in art. 4 are income tax payers under the conditions provided by Law no. 227/2015 on the Fiscal Code, with subsequent amendments and completions. " 30. Article 42 shall be repealed. 31. In point 1 of Annex 1, point 1.2 is amended and shall read as follows: "" 1.2. Registered certifying the right of use on the professional premises/working point-any legal act that confers the right of use and/or attests to the special affect of the space, in photocopy certified handwritten by the holder on conformity with the original '. 32. In point 1 of Annex 1, a new sub-point, sub-point 1.2 ^ 1, shall be inserted after subsection 1.2: "" 1.2 ^ 1. Affidavit on the fulfilment of legal conditions for carrying out activities as an authorized natural person/individual enterprise/family enterprise ". 33. In the Annex, paragraph 1.5 of paragraph 1, subparagraphs 2.2 and 2.5 of paragraph 2 and subparagraphs 3.2 and 3.5 of paragraph 3 shall be amended and shall read as follows: "" 1.5. Photocopies certified handwritten from documents certifying professional experience, if required, according to special legal provisions ........................................................................ 2.2. Registered certifying the right of use on the professional premises/working point-any legal act that confers the right of use and/or attests to the special affect of the space, in photocopy certified handwritten by the holder on conformity with original ........................................................................ 2.5. Photocopies certified handwritten from documents certifying professional experience, if required, according to special legal provisions ........................................................................ 3.2. Inscribed certifying the right of use on the professional premises/working point-can be represented by any legal act that confers the right of use and/or attest to the special affect of the space, in the certified photocopy to the depositor, on compliance with the original ........................................................................ 3.5. Photocopies certified handwritten from the documents certifying the professional experience, if it is required, according to special legal provisions ". + Article II (1) Within 2 years from the entry into force of this law, authorized individuals and individual enterprises whose number of activities included in the object of activity is higher than that provided in art. 16 16 para. ((1), respectively art. 24 24 para. (1) of Government Emergency Ordinance no. 44/2008 on the conduct of economic activities by authorized individuals, individual enterprises and family enterprises, with subsequent amendments and completions, including those brought by this law, requests the office the trade register competent to amend, accordingly, the particulars of the trade register relating to the object of activity. (2) If not previously authorized for one or more of the activities included, under the conditions of par. (1), in the object of activity, the authorized natural person or the individual undertaking requests their authorization/them, according to the provisions Government Emergency Ordinance no. 44/2008 on the conduct of economic activities by authorized individuals, individual undertakings and family businesses, with subsequent amendments and completions, including those brought by this Law and the Law no. 359/2004 on the simplification of formalities when registering in the commercial register of natural persons, family associations and legal persons, their tax registration and the authorization of the officials of legal persons, with subsequent amendments and completions. (3) In carrying out the obligations provided in par. ((1) and (2), the authorized natural person or individual enterprise may opt to modify the organization form, under the law. (4) The modification of the particulars relating to the object of activity and the issuance of the new registration certificates shall be carried out, based on the application submitted (1), by the trade register office, free of charge. (5) 30 days before the end of the term provided in par. (1), the National Trade Register Office publishes on its website the lists of authorized individuals and individual enterprises that have not fulfilled their obligation to modify the object of activity. Each office of the trade register shall display at the premises or list of authorized individuals/individual enterprises in his/her constituency who have not fulfilled their obligation to modify the object of activity, under the conditions of this laws. (6) Within 60 days from the fulfillment of the term provided in par. (1), the office of the trade register radiates, ex officio, authorized individuals and individual enterprises that have not fulfilled the obligation provided in par. ((1). The transfer of rights and obligations from the estate of the property, if constituted, according to the law, is carried out in compliance with the rights of creditors on each patrimonial mass. + Article III This law shall enter into force 90 days after its publication in the Official Gazette of Romania, Part I. + Article IV Government Emergency Ordinance no. 44/2008 on the conduct of economic activities by authorized individuals, individual enterprises and family enterprises, with subsequent amendments and completions, as well as those brought by this law, shall be republished in The Official Gazette of Romania, Part I, 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.
CHAMBER OF DEPUTIES PRESIDENT
FLORIN IORDACHE
SENATE PRESIDENT
CĂLIN-CONSTANTIN-ANTON POPESCU-TARICEANU
Bucharest, October 17, 2016. No. 182. ---------