The word “entrepreneur” is used more and more frequently, but at present there is still no regulation in our current legislation that gives a definition for the notion or regulates the activities of entrepreneurs. This is precisely one of the things that the Bill for an Act amending and supplementing the Commerce Act, approved with Decision No 755 of 11 October 2022 of the Council of Ministers is planning to change.
In the Bill the creation of a new chapter in the Commerce Act is proposed – Chapter fifty two „а“ “Bankruptcy of the entrepreneur”, that will not only regulate the bankruptcy proceedings for these individuals, but will also begin with introducing for the first time a legal definition of the notion. “An entrepreneur within the meaning of this Act is any individual carrying on a business, trade or profession, in so far as his enterprise by its object and scope does not require the conduct of affairs in a commercial basis” (Article 760a of the Commerce Act). In the definition all possible activities carried out by an individual – entrepreneur at their own expense, risk and responsibility for the purpose of gaining income or profit are included. It is also proposed to create a legal definition for the enterprise of the entrepreneur (Article 760б of the Commerce Act), that could help distinguish it from the trader’s enterprise.
The legal definitions introduced by the Bill could help clearly draw the distinction between a trader within the meaning of the Commerce Act and an entrepreneur, despite the obvious similarities in the way they carry out their activities. The similarity is particularly great in the activities of the entrepreneur and the sole trader, who organizes his activity without his personal property being separated from that of his enterprise.
A trader within the meaning of Article 1 of the Commerce Act is a person (an individual or a legal entity), that carries on any of the transactions listed in the provision on a professional basis – purchasing goods or other things for the purpose of reselling them in their original, processed or finished form; sale of one’s own manufactured goods; commercial agency and brokerage etc. The distinction between an entrepreneur and an individual – trader is made in relation to Article 1, Para. 3 of the Commerce Act (“Any person who has established an enterprise which, in accordance with its objects and volume, requires that its affairs be conducted on a commercial basis even if its activity is not indicated in Paragraph (1), shall also be considered a merchant.”) and the aforementioned legal definition of an entrepreneur from the Bill – thus the difference being how they conduct their affairs.
The regulation of the entrepreneur’s activities, as far as it is similar in its base to that of traders, should be done by subsidiary application of the existing provisions of the Commerce Act and by creating special ones where necessary because of the specificities of the entrepreneur’s activity – that’s how the bankruptcy proceedings are to be regulated. Such special provisions are envisioned in the Bill, that is already submitted at first session before the National Assembly, is to be revisited on subsequent readings.