Law Firm Adela Diaconescu - DEBT COLLECTION
Investing in Romania
Real Estate Acquisitions
Debt Collection
Accounting Rules
Taxation
Payroll Issues
DEBT
COLLECTION
HOW TO PREVENT HAVING RECEIVABLES
Before
concluding a commercial contract with a Romanian partner, a foreign
entity should check its financial situation. There are several Government
and Non-Government bodies that can provide information in this respect.
Trade
Registry
The
Trade Registry can provide paid information regarding:
- The
shareholders and Administrators of a company;
- The social capital of a company;
- The companies where a person or company is shareholder or Administrator.
Finance
Ministry
The
Finance Ministry (www.mfinante.ro) can provide information on-line
(if you know the fiscal code) regarding any company registered in
Romania:
- General
fiscal data;
- The Balance Sheet for several previous years;
- The overdue taxes to be paid to the State Budget;
- The VAT and other tax declarations to the Finance Ministry.
Payment
Incidents Department
The
Payment Incidents Department of the Romanian National Bank can provide
paid information regarding the companies that have not paid the
cheques and promissory notes they issued in the past.
Tribunal/Court
Information
regarding the commercial litigations of the potential commercial
partners can be found only from the Tribunal/Court where the litigation
was judged. If the city where the trial took place is not known,
it will be difficult to identify the possible litigations in which
the potential partner was involved.
Stock
Exchange
If
the potential commercial partner is listed on the Stock Exchange,
its compulsory financial reports (report of Administrators, Balance
Sheet, P&L, etc) can be found on the following addresses: http://www.rasd.ro/index_en.html
and http://www.bvb.ro.
Romanian
Law regarding Contractual Discipline
According
to the Romanian Law no. 469/2002 regarding some measures to reinforce
the contractual discipline, a commercial contract must contain at
least the following clauses:
Detailed
description of the parties (name, head office, social capital, bank
account number,
Obligations of the parties;
Quality and delivery conditions of the goods and/or services;
Payment term and guarantee of the price and payment instruments;
Clauses regarding the consolidation of the price against inflation
and ROL devaluation;
Penalties that should be paid by the debtor if it does not pay the
price within 30 calendar days after the contractual agreed date,
for each delay day. The penalties cannot exceed the contractual
price, but only if the contract stipulates as such.
Settlement procedure of the disputes arising from fulfilling the
contract.
After
having a favourable definitive Tribunal decision, the creditor will
have the right to recover its receivables from the debtor’s
patrimony in the following order:
a) Cash, including bank account money;
b) Financial assets of any kind;
c) Finished products, raw materials, fixed assets;
d) Receivables.
The
commercial creditor has priority in recovering its debt, excepting
creditors that have real estate and movable guarantees on the same
debtor. If, in order to apply the payments summon procedure (see
below) the Tribunal needs bank account information regarding natural
persons or companies, the banks are obliged to disclose them.
LEGAL PROCEDURE OF RECUPERATING A COMMERCIAL RECEIVABLE
In
order to recuperate the money owed on the basis of a commercial
report, Romanian Law stipulates the following ways:
1.Usual
procedure, according to common law
Romanian
Law (Civil Code) stipulates that a creditor should chose this procedure
if the debt it has against the debtor is not evident and the judge
would be required to appreciate if its claim is entitled or not.
If the judge will declare the claim valid, he/she will convict the
debtor to pay an amount in cash or in kind in order to recover the
debt.
The
Government Emergency Ordinance no. 58/2003 that modifies the Civil
Code stipulates the fact that the judging of these claims can be
done by two entities:
The Court, that has the competence to judge the claims for debts
that can be evaluated in money amounting less than 1 billion ROL
(around 25,000 EUR);
The Tribunal, that has the competence to judge claims that cannot
be evaluated in money and claims in money and that can be evaluated
in money exceeding 1 billion ROL (around 25,000 EUR).
2.
Special procedure, “payment summon”
In
order to recuperate a commercial debt, a foreign investor can also
initiate a special legal procedure called “payment summon”.
The Romanian Law (Government Ordinance no. 5/2001 regarding the
payment summon procedure) allows a creditor to start the payment
summon procedure in order to recuperate its debts only if they resulted
from a written commercial contract legally concluded and if they
are certain, doubtless, liquid and overdue.
Consequently,
in this special procedure the judge is not asked to observe the
breaching of the contract or the guilt of one of the parties, because
this would be a usual judging procedure, to be followed according
to the point 1 above-mentioned. He/she is asked to check only if
the debt meets the legal requirements (written contract, certain,
doubtless, liquids and overdue) and if he/she observes the fact
they are not met, he/she would irrevocably reject the payment summon
request. In this case, the creditor will have the right to start
the usual procedure to recuperate its debt.
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