The nature of the sponsors differs from project to project, but typical sponsors in Romania include local companies and international companies that are active and have well-developed know-how in the industries targeted by projects (eg, real estate/construction, energy, natural resources). Public entities (central or local administrative bodies) and/or financial sponsors may also participate in project financing.
As a general note, providing financing to companies on a professional basis, by granting loans or providing other types of financing, is a regulated activity in Romania and can be carried out by credit institutions and non-banking financial institutions that are licensed by the National Bank of Romania (NBR), as well as EU-licensed credit institutions under the “EU banking passport regime” – for additional details, please see 4.1 Restrictions on Foreign Lenders Granting Loans. In this context, most of the lenders involved in project financings are Romanian or EU-licensed credit institutions.
Generally, the lenders involved in project financing in Romania are commercial banks (typically syndicates that include EU and domestic banks) and international financial institutions such as the International Finance Corporation, European Investment Bank or the European Bank for Reconstruction Development, as well as credit export agencies. Many projects are co-financed by such multilateral development institutions, which pursue well-defined strategic investment priorities in Romania.
Public-private partnership (PPP) projects have a dedicated legal regime contemplated by the Government Emergency Ordinance No 39/2018 on public-private partnerships (PPP GEO) – for additional details, please see 1.2 Public-Private Partnership Transactions. In accordance with the PPP GEO, privately managed pension funds and sovereign development funds, as well as investment companies and open-ended investment funds, may also participate in the financing of PPP contracts.
In general terms, PPP transactions may be structured under Romanian law under either the PPP GEO or Law No 100/2016 on works and services concessions (the Concessions Law). However, the PPP GEO is specific to PPPs and reflects the efforts of the Romanian government to initiate significant public projects and boost private investments in such projects.
Under the PPP GEO, PPP projects are to be carried out by means of a project company that is either owned entirely by the private partner (contractual PPP) or owned by both the private partner and the public partner (institutional PPP).
The PPP GEO is only applicable if the feasibility study – which has to be carried out by the public partner and approved by the government or local authorities (as applicable) prior to initiating the public procurement for the award of the PPP – reflects that more than half of the revenues of the project company would be sourced from payments received from the public partner, as compared to projects under the Concessions Law where most of the revenues of the private partner would be generated from payments from third parties.
In terms of the bankability of a PPP project, the PPP GEO allows the private partner to grant a security interest over the rights and receivables under the PPP agreement and over the shares in the project company. Financiers may also benefit from guarantees or other obligations granted/assumed by the public partner. In addition, failure by the private partner to comply with its obligations towards the financiers under the financing arrangements may trigger replacement of the private partner under the PPP agreement (if this is specifically set out under the PPP agreement); such replacement may be initiated by the public partner at the request of the financiers.
The existing legal framework related to the PPP GEO sets out several strategic objectives to be developed via PPPs, covering railway and metro extensions, hydroelectric power projects and the construction of modern hospitals.
However, there has not yet been any successful PPP under this new legal regime. This is mainly due to changes in the secondary legislation triggered by diverging political interests, which led to the transfer of all PPP projects from an authority (the National Commission for Strategy and Prognosis) to multiple ministries, which are likely lacking sufficient resources to deal with such complex matters.
Despite the major setbacks outlined above and some legal imperfections of the PPP GEO, the current legal framework may prove sufficient to allow successful PPPs to be developed in Romania.
No large-scale PPP transaction has yet been implemented in Romania but circumstances may change in the future, given that sectors eligible for PPP structures are of high priority in the investment strategies of the current government, and also in the context of the National Recovery and Resilience Plan which is currently under implementation.
In typical project financing structures, the financing is made directly to the project company incorporated for the sole purpose of a particular project. The project company can be incorporated as either a limited liability company or a joint stock company, but in practice sponsors often choose the limited liability form, because it allows for larger flexibility in terms of corporate governance compared to joint stock companies.
The typical funding techniques for project financing are debt financing, and debt and equity financing. Most projects are financed through loans as a more flexible debt financing alternative compared to bonds. Depending on the size and risks of the projects being undertaken, the loan financing may range from bilateral (less usual) and club loans to large, syndicated financings. Project financing usually consists in making different types of facilities available (eg, term loans, working capital, letter of guarantees, VAT financings), and the terms of facilities may vary depending on the phase of the project (development and/or operation). Security is generally taken over all the shares in the project company together with all the assets of the project company (eg, financed assets, real estate, bank accounts, IP rights and receivables).
Project financing documentation follows the usual general regime, restrictions and limitations relating to financing and security interests in Romania.
The typical issues that need to be addressed when structuring a project finance deal relate to the technical feasibility of the project as well as its economic viability, with the role of technical experts and consultants being crucial. From a legal perspective, due diligence should consider the schedule and implementation plan of the project and the impact of any special legislation governing the relevant industry that generally raises specific issues due to highly regulated environments, especially in industries such as oil and gas or mining.
Investments in the transport and energy infrastructure are prioritised in the National Investment and Economic Relaunch Plan launched by the Romanian government in July 2020.
Furthermore, the Recovery and Resilience Facility of the temporary recovery plan at the EU level, NextGenerationEU, created the prerequisites towards the EU disbursing EUR14.2 billion in grants and EUR14.9 billion in loans to Romania to support the implementation of high-priority investments and reform measures outlined in Romania's recovery and resilience plan. The key reforms and projected investments refer to transportation infrastructure modernisation, clean energy production or the digitalisation of several public sectors (public administration, health and education).
As such, competitive procedures for the implementation of projects in sectors where Romania still faces transition gaps, such as transportation, energy and healthcare, have begun, including in the form of PPP Projects (considering that the EU grants may not cover the entire financing needs).
In addition, considering the relatively recent discoveries of important natural gas deposits in the Black Sea (approximately 200 billion cubic metres), especially in the exclusive economic zone (part of the continental shelf), investment opportunities are expected to arise in the oil and gas industry, including offshore, alongside the need to finance such projects. Last but not least, considering the existing crisis in the energy market in Romania and at a European level, significant movements are already in process regarding the creation of new energy production capacities, especially in the renewable energy sector, with the financing of solar or wind projects, located onshore or offshore, being a current hot topic in Romania.
The typical Romanian law security package includes the following arrangements:
Additional arrangements may be put in place, depending on the transaction and the financed assets. For example:
Use of Security Agent Structures
Where the collateral is aimed at securing obligations under syndicated facilities or club loans, the security interest is usually granted in favour of a security agent. The structures that are most commonly used in the Romanian market for the appointment of the security agent, as well as the applicable limitations, are briefly set out at 5.3 Agent and Trust Concepts.
Formal Requirements Applicable to Security Arrangements
In terms of documentation, movable mortgage agreements that cover the shares in or the movable (tangible and intangible) assets of the Romanian project company may be executed as a private deed.
Immovable mortgage agreements that cover the immovable assets of the Romanian entity need to be executed as notarial deeds before the notary public for validity purposes.
Perfection Requirements and Other Formalities
Immovable mortgage agreements that cover the immovable assets of the Romanian entity are subject to registration with the relevant Land Book for perfection purposes.
Movable mortgage agreements that cover the shares or the movable (tangible and intangible) assets of the Romanian project company need to be registered with the National Register for Publicity in Movable Property. Depending on the type of assets covered by the mortgage agreement, additional formalities apply, as follows:
Under Romanian law, it is possible to conclude a movable mortgage agreement over the universality of all present and future assets of a company (similar to a floating charge).
Such movable mortgage agreement can generally cover all movable assets (tangible or intangible) of the mortgagor. However, the description of the mortgaged property should include the content and nature of the assets therein. A generic description of the mortgaged property, such as all “movable property” or “all present and future movable property” of the mortgagor, is not satisfactory for creating the mortgage.
In practice, to grant additional comfort to the lenders in an enforcement scenario, these types of arrangements also include a list of all assets or the material assets of the mortgaged universality, which is updated periodically throughout the security period.
The execution of mortgage agreements as notarial deeds before the notary public is subject to notarial fees, which vary depending on the maximum secured amount and number of mortgage agreements that cover the same amount – eg, approximately EUR250 + 0.07% of the amount that exceeds the threshold of approximately EUR100,000 for the first mortgage agreement, and approximately EUR200 for each additional mortgage agreement.
The costs in relation to the registration of the immovable mortgage agreements with the Land Book consist of 0.1% of the secured amount and approximately EUR25 for each immovable asset.
The registrations with the National Register for Publicity in Movable Property cost approximately EUR30 and are usually carried out on the same date the registration form is submitted to the relevant operator. Specific registrations with other public registries trigger additional costs.
Description of Assets
Generally, under Romanian law, the assets that are subject to security interest do not necessarily need to be identified individually in the mortgage agreement in order for a valid security interest to be granted over them. However, the description of the mortgaged assets needs to be sufficiently precise to allow the identification thereof. With respect to mortgages over a universality of movable assets, a generic description of the mortgaged property – such as all “movable property” or “all present and future movable property” of the mortgagor – is not satisfactory for creating the mortgage.
For mortgages over a universality of movable assets, the description may be made by:
Please see also 2.2 Charges or Interest over All Present and Future Assets of a Company. In this case, the description of the mortgaged property should include the content and nature of the assets therein (including a universality of assets).
However, for a valid creation of a movable mortgage over bank accounts, the mortgage agreement needs to individually identify the relevant bank accounts with the relevant IBAN numbers.
For mortgages over immovable assets, a sufficiently precise description of the mortgaged asset would require the indication of the identification elements mentioned in the relevant Land Book of the respective asset.
Other Romanian Law-Specific Requirements
For the purposes of creating a valid security interest, the mortgage agreements should reasonably determine the secured amount. While the relevant legal provisions do not provide further criteria or guidance in this respect, setting out a maximum secured amount in the mortgage agreement is reasonably considered a valid method of determining the secured amount in practice.
To the same end, the mortgage agreements need to set out the cause of the secured obligations (cauza obligației garantate), which, in practice, is achieved by corroborating the individualisation of the (finance) documents under which the secured obligations arise with the description of the purpose of the financing.
A Romanian law-governed mortgage agreement may validly secure only obligations that are determined or at least determinable, and the preferred ranking of the mortgage created thereunder may be established only in relation to determined or, at least, determinable obligations.
Restrictions in connection with the granting of security interest and guarantees in the context of financing transactions typically relate to corporate benefit requirements, the financial assistance prohibition, the limitations that may arise out of (other) applications of the capital maintenance rules under Romanian law and general company law limitations.
In the context of project finance, financing is accessed directly by the project company to develop a certain project, and the lenders’ recourse is mostly limited to the project's assets and cash flows – cross/upstream security interests and guarantees by the project company are less likely to be in place. As such, the secured obligations are rather tied to the project company, and the adequate corporate benefit of the project company derives directly from the secured financing transaction. The risk of challenges based on the lack of corporate benefit or lack of legal cause (cauza) and the cancellation of the relevant guarantee/security operation should be rather remote (potentially applicable in limited recourse financing structures).
In any case, the existence of adequate and sufficient corporate benefit by reference to the exposure under the guarantee/security provided is still to be determined, as a matter of fact, by the management of the project company, particularly by reference to third-party secured obligations (such as corporate guarantees, warranties and covenants assumed by the sponsor in the financing documentation). Such assessment may also be relevant and would need to be carried out on a standalone basis for shareholders/sponsors (or other third parties) that are incorporated in Romania and grant guarantees or security interest in the context of the project finance, to the extent applicable.
While financial assistance is prohibited under Romanian law, which does not contemplate any “whitewash” procedure, this is less likely to be relevant in the context of project financings.
Capital maintenance rules and general company law limitations may be applicable (for Romanian project companies or shareholders/sponsors or other third-party security interest grantors/guarantors incorporated in Romania), and include the following:
Existing security interests may by checked/searched by consulting the following public registries:
Inspection of internal shareholders’ registries is also relevant, to check for potential security interests covering the shares issued by Romanian companies.
Checking the special registries on rights over aircraft or ships is also required.
Security interests under immovable mortgage agreements that cover the immovable assets of a Romanian obligor are released by means of a release notice issued as a notarial deed and an application form to be submitted to the relevant Land Book office by the relevant notary public.
On the other hand, security interests under movable mortgage agreements that cover the shares or other movable (tangible and intangible) assets of the Romanian entity are released by means of a release notice issued as a private written deed. This is to be followed by a release application form to be submitted to the National Register for Publicity in Movable Property and, depending on the type of assets covered, deregistration from the shareholders’ registry, cancellation of control to the account bank, or deregistration from other relevant public registers.
As a general note, enforcement may be carried out for receivables that are certain, liquid, due and payable (certa, lichida si exigibila), and only based on writs of execution (titlu executoriu). Enforcement is carried out in accordance with the Romanian Civil Code and the Romanian Code of Civil Procedure, and procedures may vary depending on the agreement that is subject to enforcement (ie, loan agreement, guarantee or security interest, as well as the assets subject to security interest).
The enforcement of loans is carried out subject to the terms of the underlying facility agreement regulating the conditions to accelerate the loans (entirely or partially). No out-of-court enforcement proceedings are available, and the enforcement is carried out through an enforcement officer, with authorisation and supervision by the relevant courts.
While Romanian law-governed loan agreements entered into with Romanian credit institutions and non-banking financial institutions are writs of execution by effect of the law and no prior judicial proceedings are required to validate the acceleration of the loan, this does not apply to cross-border financing, where the foreign law-governed loan agreement is to be enforced directly against a Romanian borrower. In the latter scenario, before initiating the enforcement, secured lenders would need to obtain a writ of execution in relation to the outstanding claims, by obtaining either a court judgment in the relevant jurisdiction (subject to the recognition of such foreign judgment in line with the principles set out in 3.3 Judgments of Foreign Courts) or a European enforcement order based on the provisions of EU Regulation No 805/2004 creating a European Enforcement Order for uncontested claims.
There are no particular enforcement procedures for guarantee agreements. The notes in relation to the enforcement of loan agreements are equally applicable to guarantee agreements, including those regarding obtaining a writ of execution in relation to foreign law-governed guarantee agreements.
Romanian law-governed mortgage agreements are writs of execution by the effect of the law. Therefore, subject to the secured claims being certain, liquid, due and payable (certe, lichide si exigibile), the enforcement could be initiated based only on the mortgage agreement, without it being necessary to obtain a writ of execution in respect of the principal documents originating the main claims (this is particularly relevant in the case of secured obligations arising under foreign law-governed documents). However, the acceleration of the loan should be well documented before initiating the enforcement procedure.
The enforcement of immovable mortgages is a judicial procedure governed by the Romanian Code of Civil Procedure. There are no out-of-court procedures available, and the enforcement may be carried out only through an enforcement officer, with authorisation and supervision by the competent courts.
Generally, the enforcement of immovable mortgages can be achieved through:
The enforcement of movable mortgages may be carried out through:
Depending on the class of assets subject to the movable mortgage agreements, the usual enforcement methods include the following:
In terms of restrictions, due to certain conceptual Romanian law limitations and views among practitioners, it is generally recommended that, in the case of multiple secured parties, even if a security agent is appointed, every request and/or application submitted to the enforcement officer or the court should be signed by all secured parties and not only by the security agent. The same applies for the power of attorney for the law firms mandated to represent the secured parties before the enforcement officer and court.
Even if the mortgage agreements can be enforced independently, an assessment of the conditions for and validation of the acceleration of the loan is ultimately carried out by the court during the enforcement procedure – ie, upon challenges of the enforcement under the Romanian Civil Code of Procedure or authorisation of the sale of movable assets under the Romanian Civil Code.
The choice of foreign law to govern a contract (eg, English law is usually chosen to govern the facility agreement in cross-border transactions) would be recognised as a valid and binding choice of law by the Romania courts, subject to the provisions of the Rome I Regulation.
The submission to the jurisdiction of a foreign court by a Romanian company would be a valid consent to the jurisdiction of that court, subject to the terms of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the Romanian Civil Code of Procedure, or other international treaties to which Romania is a party.
Post-Brexit, the submission to the jurisdiction of an English court by a Romanian company is subject to the Hague Convention of 30 June 2005 on choice of court agreements (the Hague Convention).
Romanian courts would recognise and enforce a judgment given by an EU/non-EU court against a Romanian company in accordance with and subject to the terms of the Brussels I Regulation and the Romanian Civil Code of Procedure.
Judgments by non-EU courts against a Romanian company would be recognised and enforced by Romanian courts without any retrial and re-examination of the merits of the underlying claim, in principle, in accordance with and subject to the terms of the Romanian Civil Code of Procedure, in the following circumstances:
The judgments of English courts against a Romanian company would be recognised and enforced by Romanian courts in accordance with the rules set out under the Hague Convention (to the extent the relevant matters fall under its scope of application).
In the case of foreign arbitral awards, in principle, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) applies.
In cross-border secured finance transactions with foreign lenders, the finance documents are usually in the English language. In order to be filed with the Romanian enforcement officer and/or courts, any finance document would need to be translated by a sworn Romanian translator (and must include such translator’s statement that the translation is true and correct, and the translator must be provided with an original of relevant document), and such translator’s signature must be legalised by a notary public. Hence, in order to avoid potential delays during enforcement, it is generally recommended that the secured lenders prepare such notarised translations of the finance documents in the Romanian language, particularly the security documents and the loan agreement, prior to initiating enforcement proceedings.
Also, it should be noted that Romanian courts are generally not familiar with complex matters and concepts related to English law-governed loan agreements. Therefore, the unpredictability of the enforcement procedure increases if Romanian courts would be in a position to assess such English law-governed documents and make a judgment based on the Rome I Regulation (ie, during challenges of the enforcement under the Romanian Civil Code of Procedure or authorisation of the sale of movable assets under the Romanian Civil Code).
Apart from restrictions in terms of having the appropriate licence to carry out professional lending activity on the Romanian territory, including on a cross-border basis (see 1.1 Sponsors and Lenders), there are no general restrictions applicable to foreign lenders.
The NBR has visibility on any loan agreements concluded for a duration exceeding one year by Romanian residents with non-resident lenders, as Romanian residents are required to notify such loan agreements to the central bank for statistical purposes (under NBR Regulation No 4/2021 on the reporting of data and statistical information to the National Bank of Romania, as further amended).
The obligation must be fulfilled within 30 days of the conclusion of the agreement, while the obligation to notify the NBR of certain changes to the initial notification (eg, the change of registered office, the termination of the agreement, or modification of the creditor, the debtor or the value of the credit throughout the notified transaction since the original notification) must be met by the Romanian borrowers within 15 days of the amendment.
Romanian legislation does not limit the granting of security rights or guarantees to foreign lenders in terms of professional credit activity. However, to comply with the corporate law rules, attention should be paid to restrictions on the granting of security or guarantees, as underlined in 2.5 Restrictions on the Grant of Security or Guarantees.
The legal regime of foreign direct investment (FDI) in Romania was significantly changed by the entry into force of Government Emergency Ordinance No 46/2022 for the implementation of Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union (GEO), on 18 April 2022.
The new legal regime incorporates several relevant elements of novelty, including the following.
As of 26 September 2022, CEISD has been established within the Competition Council but it is still not operational due to the absence of the functioning norms that were supposed to be adopted within 60 days of the entry into force of the GEO (the norms were published in transparency but have not yet been adopted). Pending the adoption of the norms, the Competition Council has informally communicated that FDI review is still done by the National Supreme Defence Council.
In addition, special foreign investment control provisions were enacted in the Petroleum Law 238/2004 via the legislative amendments produced in 2021. Following these amendments, certain limitations were placed on the transfer of control rights in the oil agreement title holder or if changes in the shareholding structure of the shareholder having control rights over the title holder company occur. If one of those operations occurs, such changes (eg, shareholding structure) must be notified for approval to the National Mineral Resources Agency (the NMRA), which is the main regulator of the natural resources industry in Romania.
For national security reasons, by virtue of a government decision, the state may request the amendment or even the unilateral termination of the concession agreement. The transfer of control to the title holder without previously obtaining the government decision approval may result in the annulment of such transfer. In addition, for national security reasons, the NAMR may refuse not only the execution of the concession but also the execution of oil operations for the exploration, development and exploitation of an oil field by legal entities effectively controlled by countries outside the European Union or by nationals of such third countries of the European Union.
Generally, there are no restrictions on payments abroad or the repatriation of capital by foreign investors under Romanian law. However, general rules regarding the reporting of certain financial transactions and also money laundering and international sanctions legislation shall be complied with by foreign investors as well as local investors.
The NBR is authorised to impose, at its sole discretion, specific restrictions concerning foreign currency exchange transactions pursuant to NBR Currency Regulation No 4/2005, where significant short-term capital fluctuations may cause significant pressure on the currency markets and bring about serious disturbances in the implementation of the NBR’s monetary and currency exchange policies.
There are no legal restrictions for project companies that hold offshore foreign currency accounts under Romanian law, although project finance agreements may contain limitations on the opening of accounts other than project accounts.
Neither financing nor project agreements need to be registered or filed with any government authority in order to be valid. In addition, project agreements may be authenticated by a notary public to grant the agreement an enforceable title nature.
As set out under 2.1 Assets Available as Collateral to Lenders, security documents should be executed in a specific form (depending on the nature of the assets subject to mortgage) and may need to be registered with the relevant publicity registries for publicity.
Just for statistical purposes, Romanian-resident borrowers should notify the NBR in relation to mid and long-term cross-border loans (more than one year maturity) (see 4.1 Restrictions on Foreign Lenders Granting Loans). Lack of registration does not affect the effectiveness and enforceability of the facility agreement in any way, but a company that does not meet its notification obligations is subject to administrative sanctions of written warnings or pecuniary fines ranging between EUR100 and EUR1,000.
Depending on the type of natural resources (mineral resources, oil, and gas), there is specific legislation regulating the ownership, use and exploitation thereof. For example, the core mining and petroleum legal framework in Romania is Mining Law No 85/2003 and Petroleum Law No 238/2004 and their implementing norms, respectively, whereas offshore oil and gas is regulated by Law No 256/2018 on certain measures necessary for the execution of oil operations by holders of oil agreements relating to offshore oil fields, recently amended in July 2022.
Similar to other jurisdictions, natural resources in Romania are subject to the public ownership of the Romanian State and their exploitation can only be carried out within the framework of a concession agreement granted by the NMRA. Title holders are subject to quarterly royalties (ranging from 3.5% to 13.5% for oil and from 3.5% to 13% for gas) and various sectoral taxes. Exceptionally, according to a recent amendment to the Energy Law 123/2012, the annual royalty for electric power transportation is 0.4% of the gross revenues obtained from power transportation and transit activities, which is paid by the transportation and system operator as concessionaire.
Oil and gas title holders may transfer their rights in connection with the concession agreement, subject to prior approval by means of a government decision upon the proposal of the NMRA.
According to the Petroleum Law, Romanian legislation provides for equal treatment for local and foreign private investors applying for concession rights with respect to mineral resources. However, if a concession is granted according to the Petroleum Law, foreign investors must establish and maintain a local branch or subsidiary throughout the concession agreement; similar obligations apply for oil and gas concessions.
Although the concept of fiducia, which is similar to the English law trust, has been regulated under Romanian law since 2011, it is not often used in practice in financing transactions due to its excessively formal and onerous regime.
Trust relationships created under a foreign legal regime would be recognised by Romanian courts, subject to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (the Rome I Regulation), or to the Civil Code provisions in the case of non-EU laws.
However, trust-based structures have not been tested by Romanian courts and there is no indication of what the position of such courts would be when presented with such concept, including whether such arrangements would be deemed compatible with the Romanian international public policy.
In the above context, the following structures are most commonly used in the Romanian market:
Perfected mortgages take priority over mortgages that are not perfected (please see 2.1 Assets Available as Collateral to Lenders). In the case of perfected competing mortgages, as a matter of principle, the ranking is generally determined by reference to the time at which the registration or perfection formalities were carried out. In the case of security interests over bank accounts, the lender controlling the bank account enjoys a "super-priority" right over a lender who has no control over mortgage bank accounts.
In addition to the structural priority of liabilities (secured/unsecured), Romanian law allows for contractual subordination, which is usually established under a subordination or intercreditor agreement. Contractual subordination is effective between the parties to the subordination arrangement and may not be enforceable against third parties (including in an insolvency scenario).
According to the PPP GEO, a project company is a company established and operating in accordance with the provisions of Romanian Company Law No 31/1990 (with no restriction being imposed on the form of the company). However, a project company is typically constituted as a limited liability company (societate cu răspundere limitată) because, unlike joint stock companies, this format allows for sole shareholding and offers more flexibility in terms of corporate governance. In addition, recent changes to the Company Law 31/1990 removed the restrictions applicable to a transfer of shares to third parties, which can now occur faster, and repealed shareholding chaining restrictions previously applicable to sole shareholder limited liability companies.
The following company reorganisation procedures are provided under Law No 85/2014 on insolvency (the Insolvency Law):
An improvement in the applicable Romanian legal framework regulating the pre-insolvency options available for the rescue of a company facing financial difficulties has been enacted via Law No 216/2022, in the context of implementing the European developments on restructuring and insolvency adopted through EU Directive 2019/1023.
While also amending a number of other provisions regulating insolvency and bankruptcy proceedings, the recent amendment of the Insolvency Law significantly amended and improved the regulation of the preventative restructuring procedures applicable to companies in difficulty (namely due to a temporary impairment of business that gives rise to a real and serious threat to the debtor's future ability to pay its debts as they fall due), but not in insolvency. Such companies may benefit, subject to certain limitations, from a restructuring agreement or a composition plan negotiated with creditors whose claims are affected by the company’s situation, with the aim to recover and pay all or part of its debts.
Insolvency proceedings are collective proceedings in which all recognised creditors of the insolvent debtor participate in order to obtain funds for the payment of the debtor's debts, under the conditions established by the category of the debtor, through a judicial reorganisation based on a reorganisation plan, or through bankruptcy. Further details on the insolvency procedure in Romania can be found in the following sections.
The restructuring agreement is initiated at the request of the debtor and entails the appointment by the debtor of an insolvency practitioner as a restructuring administrator. Among other matters, the restructuring administrator verifies whether the debtor is a company in difficulty, drafts or assists the debtor with the drafting and negotiating of the restructuring agreement and the monitoring of its implementation, and takes steps to amicably settle any dispute between the debtor and creditors.
The composition procedure may be initiated at the request of the debtor and consists in establishing a restructuring plan proposed by the debtor and the appointed composition administrator subject to the approval of the affected creditors voting by categories of claims and approval by the court.
As a general rule, under Romanian law the commencement of insolvency proceedings suspends all judicial and extrajudicial procedures or enforcement measures initiated by creditors against the insolvent debtor, and the assets and claims they own against the insolvent debtor can be pursued only within the insolvency procedure (except for criminal law procedures). However, the opening of such a procedure does not suspend any enforcement actions against third-party guarantors or security providers.
From a theoretical perspective, it is possible for secured lenders to request the syndic judge to allow the sale of the assets covered by the security granted to them by the insolvent debtor, if certain restrictive conditions intended to guarantee the necessary resources for the continuation of the activity of the insolvent debtor are complied with. However, in practice, this is rarely approved by syndic judges.
Lenders secured with cash collateral or mortgages over bank accounts are entitled to request the judicial administrator or the bankruptcy trustee (in the case of bankruptcy) to release for their benefit the amounts held in such accounts mortgaged in their favour.
In addition, after the commencement of insolvency proceedings, interest, surcharges or penalties of any kind or expense – generally referred to as incidental expenses – may not be added to claims arising before the commencement date of the proceedings, except where the asset subject to security interest is sold at a value greater than that of the claim included in the claim table, in which case ancillary rights will continue to accrue up to the value of the claim.
According to Romanian law, funds obtained from the sale of the insolvent debtor’s assets covered by security interest shall be distributed to creditors in the following order:
For the amounts not covered by the sale of the assets subject to their security interest, the lenders will be unsecured. Payments related to unsecured claims are made in the following priority order:
The main risk faced by lenders when the borrower, security provider or guarantor becomes insolvent is the opening of bankruptcy proceedings against the insolvent debtor, as in such case the lender, acting as a creditor, shall follow the order of priority ranking outlined in 6.3 Priority of Creditors and has no certainty that they will be repaid.
Moreover, regarding volatile assets (such as stocks, inventories or receivables) for which the value of the security interest generally depreciates, there is a significant risk that the amount of the proceeds obtained out of such mortgaged assets may not be as high as expected, especially in the case of long reorganisations that ultimately fail. From a practical perspective, it should also be noted that the insolvency proceeding can jeopardise the day-to-day functioning of the company (debtor; guarantor or other) and, as such, affect the value of the company and recoveries of the lender, also increasing the risk of theft.
According to the claw-back provisions under the Insolvency Law, the judicial administrator has the capacity to challenge the guarantee/security interest granted by an insolvent debtor, inter alia, in the following circumstances:
As a rule, under Romanian law bankruptcy proceedings apply to all natural and legal persons qualified as professionals under the Civil Code. In the case of the liberal professions, the procedures are related to their business and not to their professional situation.
There are specific insolvency provisions for credit institutions, investment firms and other financial institutions or other similar entities, such as investment firms, undertakings for collective investment in transferable securities, alternative investment funds, insurers and reinsurers, central counterparties, and central securities depositories.
Therefore, all persons who are not qualified as professionals under the Civil Code are outside the scope of insolvency/bankruptcy proceedings.
There are no restrictions, controls, fees and/or taxes on insurance policies over project assets provided or guaranteed by insurance companies.
There are no restrictions under Romanian law on the payment of insurance policies on the project's assets to foreign creditors.
Under Romanian law, payments of principal are not subject to withholding tax, while interest and commission fees are subject to 16% withholding tax, subject to any exemptions or reductions under the double-taxation treaties in place.
From a practical perspective, tax gross-up clauses are generally put in place in cross-border financing transactions with a borrower incorporated in Romania.
Other charges that may apply to lenders who grant loans to entities incorporated in Romania are as follows:
In corporate finance transactions, there are no regulatory limitations applicable on interest charged to borrowers – the parties are free to contractually determine the applicable interest.
However, limitations are applicable regarding compound interest. As a rule, the interest can be calculated only on the amount borrowed; in exceptional cases, the interest can be capitalised and, therefore, generate other interest only through a special agreement concluded with this purpose, after the due date, and only for the interest owed for a minimum period of one year.
According to the Civil Code, in specific circumstances the court has the right to reduce the default interest (eg, when the default interest is manifestly excessive by reference to the damage that could have been foreseen by the parties upon the conclusion of the agreement), but such provisions have not yet been tested in courts, as far as is known.
Consumer lending is subject to specific limitations regarding the calculation of the interest rate, disclosure and limitations applicable to interest rate penalties, under the legislation implementing the Consumer Credit Directive 2008/48, as amended, but such legislation is not relevant for project finance transactions.
In principle, private parties are free to choose the law applicable to their contractual arrangements. However, some of the project finance documents must be subject to Romanian law, such as all the mortgage agreements, the PPP agreements and the concession agreements.
As a matter of principle, the parties are free to choose the governing law of the financing agreements, pursuant to Regulation (EC) No 593/2008 of the European Parliament and of the Council, of 17 June 2008, on the law applicable to contractual obligations (Rome I) and the Civil Code. In practice, the agreements concluded between Romanian entities are typically governed by Romanian law, while in cross-border transactions the facilities agreements are governed mainly by foreign law (with the common choice being English law).
Under Romanian law, possession, ownership and other real rights in property, including security interests, are governed by the law of the place where the property is located. Therefore, security documents over assets located on Romanian territory (eg, receivables under Romanian law-governed contracts/insurance policies or bank accounts opened with Romanian banks) are governed by Romanian law.