How to found a company in Romania

Investors, Romanian or foreign, benefiting of an equal legal treatment, have the same possibilities for establishing business operations in Romania by incorporating separate legal entities. These entities operate in their own right and are distinct from the legal entities of their shareholders or partners. Companies have their own patrimony, assets, names, registered capital, management, registered offices and bank accounts.

Companies established in Romania are legal entities subject to Romanian laws. Company Law No.31/1990 (modified and completed by Emergency Government Ordinance No.32/1997, Law No.195/1997 and by Law No.99/1999 on certain measures for the acceleration of the economic reform) allows and defines five forms of companies: 

general partnerships "societate în nume colectiv" (SNC); 

limited partnerships "societate în comandita simpla " (SCS); 

limited liability companies "societate cu raspundere limitata" (SRL); 

joint stock companies "societate pe actiuni" (SA); 

limited joint stock companies "societate în comandita pe actiuni" (SCA). 

The most used types of companies are limited liability companies. Besides these there is also an important number of general partnerships and joint stock companies.

Between December 1990 and December 1998 there were registered 709,247 legally active companies.

There are also: 

651 regies autonomous (0.1% from the total number of the Romanian companies); 

89,131 natural persons and family associations (12.6%); 

4,160 cooperative associations (0.6%). 

All companies must be registered with the National Trade Register Office, organized by the Romanian Chamber of Commerce and Industry, and established under Law No.26/1990 (modified by Law No.12/1998). They become legal entities from the date of registration. The National Trade Register Office is a public institution mandated to maintain statistical information on business activities in Romania. 

The fiscal registration code is to be obtained according to Government Ordinance No.82/1998 regarding the fiscal registration of taxpayers, by way of filling an application by the relevant company in order to become a taxpayer.

The law allows in-kind contribution, but cash contribution is compulsory for any type of business organization.

General Partnerships

A general partnership can involve two or more partners. The partnership relationship is based upon a contract and any person who is capable of entering a binding contract may enter a partnership. Following this agreement, the parties must register their partnership with the National Trade Register Office.

In a general partnership, partners are jointly liable for the debts and obligations of the partnership and each partner can be personally liable for the overall debts and liabilities, which are not satisfied by the assets of the partnership.

The capital of the partnership is formed of the partners' contributions. These contributions can include cash, real estate, equipment, or other property. Contributions become assets of the partnership and comprise its registered capital. Romanian laws do not set maximum or minimum limits on capital, nor does it indicate how much must be in cash or other assets. These decisions are left with the partners. 

A general partnership must select a name for itself. Included in this name must be the name of one individual partner, the nature of the partnership, and disclosure of the general partnership status of the enterprise (Societate in nume colectiv - SNC). If a person who is not a partner permits his or her name to be used in the name of the partnership, that person then becomes liable for the debts and obligations of the partnership in the same fashion as general partners.

General partnership matters are determined under a written partnership agreement. Where the agreement is silent or unclear, decisions are made by partners on the basis of their relative capital contributions. If a partnership seeks to have a formal management, perhaps because of its large size, a vote of the partners representing a majority of the registered capital is required.

Limited Partnerships

A limited partnership consists of one or more general partners who manage the business of a partnership and one or more limited partners who contribute capital (money or other property) to a partnership but do not participate in its management. Generally, limited partners are not liable for the debts and obligations of the partnership beyond their contributions, to the registered capital. The liability of the general partner is the same as the liability of partners in a general partnership. For an investor, therefore, being a limited partner is similar to have an investment in a corporation.

Limited partners share the profits or other compensation by way of income in proportion to their partnership contributions. However, no such income or other distribution can be made if it would reduce the assets of the limited partnership to an amount insufficient to discharge its liabilities to persons who are not partners.

While the limited partners cannot manage the business, they may examine the state and progress of the partnership business and advise on its management. A limited partner may also act as a contractor for, or an employee of, the limited partnership.

Company Law No.31/1990 generally sets out the rights, powers, and obligations of limited partners. For example, a limited partner may be held liable as a general partner if the limited partnership legislation is not strictly complied with;   when a limited partner participates in the management of the partnership's business without having been mandated to that effect by company's representatives, by means of a special power-off attorney, registered with the trade register, or allows his or her name to be  used in the name of the limited partnership.

A limited partnership is a practical form of organization for a pooled investment where the investors would not normally participate in the control of the investment. Investors are limited partners while the general partner provides the professional management of the investment. In this way, investors share the profits but, as limited partners, their financial risk is limited to the capital they have contributed.

A limited partnership must use in its name the words "limited partnership" (Societate in comandita simpla, S.C.S).

Limited Liability Companies

A limited liability company is a company formed by a limited number of partners (no more than 50). It is based on the constitutive documents. The registered capital of a limited liability company cannot be less than 2,000,000 ROL (Romanian LEU). The registered share capital of a limited liability company is normally divided into social parts/shares with a registered value of not less than 100,000 ROL. Shares cannot be freely traded, making limited liability companies similar to what are known as private companies in other legal systems. Shares of these companies cannot be pledged as collateral for loans. 

The articles of incorporation of the limited liability company will include: 

the full name, place and date of birth, domicile and citizenship of individuals; 

the name, registered office and nationality of the shareholder, as legal person; 

the type, name, headquarters and, if any, the company logo; 

the object of the company, specifying the main domain of activity; 

the subscribed and paid in registered capital, the shareholders contribution in cash or in kind, the value of the contribution in kind and its valuation method as well as the date of the full payment of the subscribed share capital; the number and nominal value of shares as well as the number of shares subscribed to each associate for his/her contribution; 

the shareholders in charge with the representation and administration of the company or the non-shareholder administrators, individuals or legal persons, and their powers which are to be exercised jointly or separately; 

the share of profits and losses for each shareholder; 

the secondary offices (branches, agencies, representative offices or other such entities with no legal personality) whether or not are established at the same time with the company, or the conditions of their subsequent establishment if such establishment is taken into account; 

the duration of the company;

the methods of the dissolution and liquidation of the company. 

Decisions are made by majority vote in the General Meeting of the Shareholders (1 share = 1 vote). Decisions involving changes in the constitutive documents must be agreed by all shareholders if these documents do not state otherwise. One or more Directors/Managers are appointed in the constitutive documents or by the General Meeting and are put in charge of the management of the company.

Limited liability companies may also be formed by a sole associate. 

Currently, the majority of companies registered in Romania, whether domestic or foreign-owned, are limited liability companies. A limited liability company is known as a SRL (Societate cu Raspundere Limitata).

Joint Stock Companies

A joint stock company is a limited liability corporation with registered capital of a minimum of 25 million ROL and with at least five shareholders. Shares could be nominative shares or bearer shares and can be freely traded or pledged. A joint stock company may be set up privately or by public subscription. In the case of a company established on a private basis, the Memorandum of Association must indicate: 

the name and address of shareholders, as well as their nationality; 

legal form, name and, as the case may be, emblem; 

location of the proposed head office of the company alongside with the location of proposed branches and subsidiaries; 

the nature of the business or businesses in which the proposed company will be engaged; 

subscribed share capital and paid share capital. The share capital paid up by each shareholder upon constitution of the company can not be less than 30%. The remaining 70% should be paid in 12 months after the incorporation with the Trade Register; 

number, nominal value and type of shares; 

duration of the company; 

clauses on the management and control of the company; 

name, address and citizenship of company directors and any special powers or rights granted to them. 

When a joint stock company is established by public subscription, a notarized prospectus must be drawn-up and filed with the Trade Register in the district where the head office of the company will be located. The Register's office will certify compliance with Romanian legislation and will authorize issuance of the prospectus. A joint stock company formation by prospectus is only possible if the entire registered capital outlined in the prospectus has been subscribed and half of the prices of the shares subscribed for has been paid up into a bank account. If public subscriptions exceed the registered capital, as outlined in the prospectus, or are less than the amount sought in the prospectus, a meeting of the shareholders should be held to approve any revisions of the capital structure. 

Within 15 days at the very most of the closing of the subscription, a founding meeting must be held. This meeting, which must be advertised in the Official Gazette, receives evidence that capital has been subscribed, determines the value of any contributions in kind, approves the basis for profit-sharing among founders of the company and other shareholders and appoints directors and auditors.

Decisions are made by a majority vote in the General Meeting of the Shareholders (each share represents one vote). General Meetings can be ordinary meeting, called at least once a year or extraordinary, called when needed to make decisions involving changes in the Memorandum of Association. Meetings require a quorum of 3/4 of the shareholders and a simple majority vote of the quorum is required to approve changes in the Memorandum of Association. Unless the Memorandum of Association stipulates otherwise, shareholders can exercise their right to vote in proportion to the stake they hold. Shareholders may be represented under proxy agreement only by other shareholder, if by-laws do not provide otherwise.

The management of a joint-stock company is assumed by a Council of Administration (Board of Directors), although it is possible to have only one Administrator. At least half of the Administrators must be Romanian citizens unless the articles of incorporation and corporate by-laws provide otherwise. The Directors do not necessarily need to be shareholders. The Directors are appointed by the General Meeting of shareholders, which establishes their powers, for a maximum mandate of four years. They may be re-elected. Before starting their activity, the Directors must deposit a guarantee, representing at least the value of ten shares or double the amount of their monthly remuneration.

At least three auditors and three substitute auditors must be appointed by the General Meeting of the Shareholders. At least one of them must be a chartered or certified accountant. Most of the auditors and of the substitute auditors must be Romanian citizens. In case 20% of the company's share capital is held by the State, one of the auditors must be recommended by the Ministry of Finance.

Law No.99/1999, regarding certain measures for the economic reform acceleration, added new provision to the Company Law. Therefore, any shareholder is entitled to request information on the management of the company, maximum twice during a financial year. In addition, one or several shareholders representing at least 10% of company share capital may request the court to appoint experts which will be in charge with the analyses of certain operations in the management of the company. Such experts will draw up a report, which will be handed over to the auditors of the company.

A joint stock corporation is normally recognized by the use of the words limited incorporated or corporation in its name (Societate pe Actiuni, S.A).

Limited Joint Stock Companies

A limited joint stock company is a rare form of limited partnership. It has characteristics of both a joint stock company and a limited partnership. The same as in a limited partnership, there are general and limited partners. Similarly to a joint stock company, the registered capital of the limited joint stock company is represented by shares. Similarly to a partnership, the general partners may be liable for the debts and obligations of the company beyond amounts they have contributed. The limited partners, not active in the management of the company, have their liability limited to their share stake. A limited joint stock corporation is normally recognized by the use of the words SCA in its name (Societate in Comandita pe Actiuni).

Representative Offices

Foreign corporations are entitled to set up representative offices in Romania, in accordance with the provisions of Decree – Law No.122/1990. While representative office cannot carry out commercial activities on their behalf, they are entitled to promote and supervise the business of their parent companies. As a representative of a foreign entity, a representative office cannot earn revenues in local currency. For payments in local currency, the office must open a ROL bank account, which is to be funded only by its foreign currency account.

Establishing a representative office with the approval of the Ministry of Industry and Commerce, Department of Foreign Trade, is a straightforward matter. A fee of US$ 1,200 is paid for a one year-license. The license must be renewed every year against payment of the corresponding fee. If the registration occurs at a time other than the first quarter of the opening year, the annual fee is prorated accordingly. If a representative office represents more than one foreign company, a supplementary fee of 10% is to be paid for each of the represented companies.

Most representative offices are subject to minimum taxation since their only "income" is their funding by their parent company. As of January 1st, 1997, representative offices must maintain statutory accounts in compliance with legislation applicable to companies.

Applications for representative status should be accompanied by the following documents: 

documentation from a Chamber of Commerce or other official body of the country where the parent company has its headquarters, indicating the company's legal existence, activities, and registered capital; 

confirmation of the parent company' solvency from the bank handling its main financial operations; 

statutory or other documentation, indicating the nature of the company's activities, its organizational form and its operations; and 

a power of attorney for the individual or individuals appointed to act as trade representative(s); 

a decision of the parent company's General Meeting approving the setting up of the representative office; 

payment proof for the relevant tax. 

Branches and Subsidiaries of Foreign Companies

A foreign company can do business in Romania through a subsidiary or a branch. While a subsidiary has a legal personality and is considered a Romanian entity, the branch is just an extension of the parent company and therefore has no legal personality and no independence.

Law No. 105/1992 on the Regulation of the Private International Law Relationship adopts the accepted international practice by which a branch is governed by the national law of its parent company. 

Legally, the branch has no separate status from the foreign company itself. It is merely carrying on business in Romania. The foreign company will be liable to the employees and creditors of the branch for the actions of, and debts contracted by, its managers and agents on behalf of the branch. On the contrary, according to the Law No.31/1990, a Romanian subsidiary of a foreign company is a Romanian legal person and, consequently, it is subject to Romanian laws. It is liable, on its own behalf, for the actions assumed. Subsidiaries and branches can carry out only the activities to which the parent company is authorized.

In practice, subsidiaries are commissioned following the same steps as the registration of companies, i.e. notarizing the statutes, and registering the subsidiary with the National Trade Register Office.

The formation of a branch follows the same steps as that of a subsidiary, but they do not need to establish incorporation statutes. 

a notarized copy of the articles of incorporation of the parent company;

evidence of registration of the parent company in its country of origin;

documentation indicating the company's solvency; and 

the decision of the parent company's Board of Directors (or similar authorized body) to establish a foreign branch. This decision should indicate the type of activity of the branch, the individuals appointed by the parent company to act on its behalf and the confirmation of the parent company that the acts of its representatives are legally binding to it. 

Assuming the branch is accepted, it must then be registered with the local office of the National Trade Register Office. The formation of a subsidiary must comply with the minimum capital requirements under the Romanian Company Law.

Legal Framework

Law No.31/1990 concerning commercial companies.

Law No.26/1990 on the Register of Commerce modified by Law No.12/1998. 

Decree – Law No.122/1990 on the authorization and operation in Romania of the Representative Offices of foreign companies and corporations. 

Law No.99/1999 on certain measures for the acceleration of the economic reform. 

Law No.105/1992 on the Regulation of the Private International Law Relationship. 

Law No.133/1999 on incentives for the private investors to set up and development of SMEs.