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Romania: Who (Else) Can Claim the Nullity of a Share Transfer?

Romania: Who (Else) Can Claim the Nullity of a Share Transfer?

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Can one or more of a company's shareholders claim that a transfer of shares to third parties by other shareholders is null, even if the claimants were not interested in acquiring those shares? And when faced with such a claim, would Romanian courts rule in favour of the claimant? A recent court ruling has answered both questions with a resounding "yes", opening new horizons in M&A-related matters in Romania.

Background

In the court case, a minority shareholder of a joint-stock company claimed that a share transfer that took place within the company was illegal. The claimant requested the absolute annulment of the share sale-purchase agreement. It argued that this transfer had not been approved by the company's board of directors, in accordance with the articles of association in force at the time of the transfer.

The first-instance court ruled against the claim, asserting that the minority shareholder was not an interested party in relation to the transaction. On appeal, the court's decision was annulled in part as regards the decision to admit this lack of interest. The parties to the dispute challenged the appeal ruling and the case was referred to the Romanian High Court of Cassation and Justice ("High Court").

Court ruling

In its decision, the High Court ruled that a shareholder has an interest in challenging in court the legality of the acquisition of the shares by third parties within the company, even if the claimant did not intend to acquire them.

According to the court, that shareholder's role as an interested party in relation to the transaction arose out of its direct interest in ensuring the proper functioning of the company and the proper conduct of its business. Hence, the court argued that the shareholder's interest is all the more obvious, since it alleged in the case that the articles of association had been infringed and that an unlawful cause existed.

In addition, the court ruled that the shareholder's interest is determined, since the ultimate practical benefit is to ensure the legality of share transfers. Consequently, the legality of the shareholder's capacity in the company was at stake, as the legal action initiated was not purely preventative but sought to remedy specific situations which the minority shareholder claimed were unlawful.

The court ruling clarifies that, given the public nature of the absolute nullity sanction, an action may be brought by any person provided it can justify an interest. Thus, such a claim can be raised by anyone who can argue a cause-effect connection regarding a transfer of shares which, at the time of its conclusion, is alleged to have violated mandatory provisions of the law or to have been concluded fraudulently.

For that reason, it is of no legal significance that the contested transfer of shares does not affect the rights of the minority shareholder arising from its status as such, since what the minority shareholder was in fact claiming was a failure to comply with the conditions laid down in the articles of association for the acquisition of shares by persons who are not shareholders in the company.

Implications of the court ruling

This court ruling is important for future M&A transactions in Romania. It lays down the conditions under which a share transfer agreement that embodies the will of the parties can be challenged in court by any interested party to the extent that the latter justifies an interest, even if that person has no direct connection with the transaction itself.

By Mihaela Popescu, Senior Attorney at Law, and Alexandra Smahon, Attorney at Law, Schoenherr

Romanian Knowledge Partner

Țuca Zbârcea & Asociații is a full-service independent law firm, employing cross-disciplinary teams of lawyers, insolvency practitioners, tax consultants, IP counsellors, economists and staff members. It also operates a secondary law office in Cluj-Napoca (Romania), and has a ‘best-friend’ agreement with a leading law firm in the Republic of Moldova. In addition, thanks to the firm’s dedicated Foreign Desks, the team provides the full range of services to international investors seeking to gain a foothold or expand their existing operations in Romania. Since 2019, the firm and its tax arm are collaborating with Andersen Global in Romania.

Țuca Zbârcea & Asociaţii is providing legal services in every aspect of business, covering all major areas of practice: corporate and M&A; litigation and international arbitration; corporate tax; public procurement; TMT; employment; insurance; banking and finance; capital markets; competition; healthcare and pharmaceutical; energy and natural resources; environmental; intellectual property; real estate; regulatory legal services.

Țuca Zbârcea & Asociaţii is a First-Tier law firm in all international legal directories and a multiple award-winning law firm both locally and internationally. It received the CEE Deal of the Year Award (DOTY Awards 2021) and the Law Firm of the Year Award: Romania (IFLR Europe Awards 2021). 

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