With the new Bill for an Act amending and supplementing the Commerce Act, approved with Decision No 755 of 11 October 2022 of the Council of Ministers, it is aimed to overall improve the effectiveness of the legislative framework and to synchronize it with European Union acts. Many changes are envisioned, one of which is precisely to introduce a time limit on the prohibition to exercise the positions of managerial agent (Article 21, Commerce Act), sole trader (Article 57, Commerce Act), managing director (Article 141, Commerce Act) and board member (Article 234, Commerce Act).
At present, the prohibition to exercise these positions is indefinite. Individuals, who have been declared insolvent, as well as these who have been acting as a manager, a member of managing or controlling body of the company declared insolvent during the last two years preceding the date of the court order declaring insolvency if there are any creditors with unsatisfied claims, forfeit their right to exercise the aforementioned positions.
In order to restore it, they have to go through a procedure governed by Chapter 51 of the Commerce Act. Successful passage through it leads to cancellation and revocation ex tunc the consequences which the law associates with the declaration of bankruptcy. For this purpose, the debtor must have paid his claims in full, then he shall submit a petition in writing for restoration of rights to the bankruptcy court, with attached evidence of payment of his claims. The petition is to be published in the Commercial Register on the file of the merchant declared bankrupt and each creditor can lodge a written objection to it within one month after the publication. The petition for restoration and the objection thereto are examined in public session. A court judgment granting the petition is unappealable and one rejecting the petition can be appealable within seven days. The effective court judgment is recorded in the Commercial Register. In case of rejection, a new petition for restoration of rights can be submitted not earlier than one year after the entry into effect of the judgment.
The procedure envisioned by the Commerce Act makes it extremely difficult for those declared insolvent to restore their rights and at the same time does not fully guarantee them the restoration. The Bill’s new time limit for the prohibition to exercise certain positions would therefore relieve them greatly, offering them an accelerated and more efficient settlement of the matter. It is envisaged that with the expiration of a period of five years from the date of declaring a person insolvent/ the dissolution of the company due to insolvency, the restrictions are lifted. That should be declared explicitly, indicating the specific circumstances (Bill for an Act amending and supplementing the Commerce Act).
Already approved by the Council of Ministers and submitted at first session before the National Assembly, the Bill is to be revisited on subsequent readings.