By entering into force on February 1

st
, 2014, the new Romanian Criminal Code amended a number of
laws, including the Company Law. These changes mainly concern the Offenses and Crimes title of the Law
31/1990 (Company Law).
The tendency of the new regulations is to decrease the limits of punishment, along with the fine
provision alternately with imprisonment for most crimes, and expanding people who may act as the
active subject in the offenses under the Company Law.
On the one hand, some facts were decriminalized, on the other hand have emerged new offenses.
Therefore, do not constitute a crime (under the provisions of the Company Law) the act of exercising a
trade in favor of and on behalf of companies incorporated in a foreign country where the conditions
provided by their local laws for the operation of those companies in Romania are not met (art. 280 of the
Companies Act was repealed); also, the article 280
2
, aimed to punish the registration of a company under
a false memorandum, was also repealed.
As a novelty, the act of carrying out the decisions of the General Assembly on the changing shape of
society, merger, dissolution, reorganization, or reduction of capital without informing judicial body or by
breaching the prohibition laid down by it, if the criminal proceedings against the company started, is
punishable by imprisonment from one month to one year or a fine (according to art. 274 (c) of the
Company Law).
It was also expanded the number of persons who may act as the active subject of the offenses stipulated
in the Company Law. Therefore, besides the founder, director, executive director, and the legal
representative, will respond to criminal charges also members of the supervisory board or directorate.
In the Enforcement Law of the New Criminal Code (187/2012) are amended the offenses that affect the
capability of a person to be a founder or member of the leadership and control of a company. Thus,
according to the new regulations, the following crimes have the aforementioned consequences: offenses
against property by disregarding trust, corruption offenses, embezzlement, forgery of documents
offenses, tax evasion offenses under Law no. 656/2002 on preventing and sanctioning money laundering,
and to establish measures to prevent and combat terrorism financing, republished, or for offenses under
the Act no. 31/1990 . In this way, the social danger that a person with a criminal record have in hand the
reins of a company is reduced.
Regarding the legal regime of penalties, it is lowered by the new changes of the Company Law. By way of
example, the facts described by article 271 (presenting untrue or no data on the constitution of the
company, on the economic conditions of its data, hiding, or refuse to make available such data as per the
law) or article 272 (performing the sale or purchase of shares, using the company's assets or credit, or
borrowing, in any form, from the company that manages, a company controlled by the director, or by a
company that controls the administered company, producing, in bad faith, prejudice to the company)
shall be punished with imprisonment today from 6 months to 3 years or a fine , unlike imprisonment
from 1-5 years and from 1 to 3 years.
The sanctioning treatment, aimed to target the legal persons, suffered changes as well, but not
necessarily with a positive effect. The penalty limits for companies tripled in the New Criminal Code.
Thus, the easiest punishment that a company can receive is LEI 6,000 and the worst is LEI 3 million. The
conclusion is that the previous Criminal Code provisions were more mild with the corporate criminals
and this can lead to extremely difficult situations for companies in financial terms. Basically, the endpoint
to prevent and punish social threat will be met, but will go against the commercial purpose itself (to
generate an indirect profit for the State, as the companies might be lead on the verge of bankruptcy).
Under the influence area of the New Criminal Code, in addition to the amendments made to the
Company Law, there is the Capital Market. The new rules do apply to offenses with the intention of
presenting to shareholders the financial statements inaccurate or false information on the economic
conditions of a society. Under the old regulations, the offense was not stated consistently. However, the
protection of these social values is currently applicable only in the unitary system management of Joint
Stock Companies, and the Law 297/2004 does not include other provisions that apply when
administering in a dualist system.
These new criminal provisions are still in the stage of assimilation, and at first glance appear to be
correlated with social realities. The immediate effect seems not to be very auspicious - and not only for
businesses, but over time the effectiveness of these new regulations might (not) be proven.