Divestment is a reorganization operation whereby the assets of a company are transferred, in whole or in part, to one or more beneficiary companies. The main rules for the division of Romanian companies are in Law no. 31/1990. Law no. 265/2022 updated the procedures for advertising and registration with the Trade Register, and creditors and associates have rights that must be respected before and after the operation.
Total division and the separation of part of the patrimony
In the total division, the company transfers the entire patrimony to existing or newly established beneficiary companies and ceases to exist without liquidation. Associates or shareholders receive shares in the beneficiary companies under the approved project conditions.
The law also regulates the separation of a part of the patrimony, which is transferred to an existing or newly established company, in exchange for the allocation of shares or shares to the associations of the company transferring the assets or to the company itself. In this case, the company that separates the patrimony continues to exist. Therefore, the term „partial division” must be used with caution: the law describes this mechanism as a separation, in Article 250^1.
The split project
The administrators prepare the project, which identifies the participating companies and establishes the conditions of the operation. For the division, the document must also describe and allocate the assets and liabilities exactly to each beneficiary company, as well as the criteria for allocating the shares. The project must also indicate the relevant accounting data and other information provided by law. An ambiguous allocation can lead to litigation, including with creditors.
The project is submitted to the trade registry office where each participating company is registered. General meetings approve the operation in compliance with the rules applicable to each form of company and the possible exceptions provided by law. In cases where new companies are established, the corresponding constitutive documents are also approved.
Advertising and access to documents
The general rule stipulates the publication of the draft in the Official Gazette, Part IV, at least 30 days before the general assembly that is to decide on the division. The company may opt for continued and free publication on its own website, at least one month before the assembly, in compliance with legal requirements; in this variant, the draft is also published in the Electronic Bulletin of the Trade Register. Associations and shareholders must be able to consult the relevant documents under the law.
The rights of creditors
A creditor with a certain, liquid, pre-publication and still outstanding claim may file an objection if the division jeopardizes the satisfaction of the claim. The deadline is 30 days from the publication of the draft: in the Official Gazette or, if the web page was used, in the Electronic Bulletin of the Commercial Register. The objection is filed with the Commercial Register and submitted to the competent court.
The opposition does not automatically suspend the enforcement of the division. The court analyzes whether there is a risk to the creditor and whether adequate guarantees are required; the law provides for situations in which the opposition may be rejected. Therefore, the creditor must explain concretely why the operation endangers the recovery of the debt.
Transfer of assets and liabilities
From the date of the creation of the effects, the assets and liabilities are transferred according to the project. If an asset has not been allocated and the project does not allow the determination of the beneficiary, the law provides for its proportional allocation among the beneficiary companies. If a liability cannot be attributed through the interpretation of the project, the beneficiary companies are jointly liable for that liability. Under certain conditions, if a creditor does not recover his claim from the company to whom the obligation was allocated, the other companies may also be liable, within the limits established by law.
The moment at which the division produces effects depends, among other things, on the establishment of new companies or the transfer to existing companies. Check the rules in Article 249 and the registrations made in the Commercial Register; the date of the effects must not be assumed solely from the date of the decision of the shareholders.
The responsibility of administrators and the difference from cross-border operations
Administrators may be held liable civilly against associates or shareholders for irregularities committed in the preparation and implementation of the division; the law separately regulates the liability of experts. Criminal liability does not automatically result from a corporate irregularity and requires the meeting of the elements of a separate offense.
For cross-border operations, involving companies subject to the laws of different states, special rules apply, including Articles 251^59–251^80 of Law No. 31/1990, introduced by Law no. 222/2023. These provisions should not be confused with the usual procedure of internal division.
The reference texts are Law no. 31/1990, articles 238–251 and Law no. 265/2022 on the trade register. The specific procedure depends on the form of the companies, the structure of the assets and the type of the division.
