• Putem să distribuim bani din companie dacă nu avem profit?

    O întrebare din ce în ce mai des întâlnită în practică vizează posibilitatea de a distribui alte sume decât cele reprezentând profit (în sensul clasic perceput) şi rezerve facultative.

    Părerile din piaţă cu privire la posibilităţile de distribuire către asociaţi de sume din companie sunt (parţial) împărţite şi pot fi redate schematic astfel:

    Read more
  • TheCounsel devine partener exclusiv in asistenta juridica al Asociatiei MagiCAMP.

    TheCounsel devine partener exclusiv in asistenta juridica al Asociatiei MagiCAMP. Ne alaturam MagiCAMP in sustinerea valorilor promovate, acordand asistenta juridica pro-bono necesara derularii activitatilor asociatiei. Suntem onorati sa facem parte din comunitatea MagiCAMP si sa daruim din timpul nostru pentru a ajuta copiii diagnosticati cu cancer si familiile lor.

  • Ce drepturi și obligații avem în timpul unei percheziții domiciliare sau a sediului social și ce avem de făcut?

    Uneori, statului îi este permis să intervină, prin organele abilitate, în anumite limite, cu mijloace care pot duce la restricționarea drepturilor fundamentale. Asemenea mijloace sunt și perchezițiile simple (de exemplu, perchezițiile corporale din aeroporturi), inspecțiile derulate în proceduri administrative (dreptul concurenței, protecția datelor cu caracter personal) sau percheziții desfășurate într-un proces penal (percheziții corporale, ale vehiculelor, informatice sau domiciliare).

    Read more
  • New Romanian Criminal Law provisions. Or not?

    The amendments to the Romanian Criminal Code, the Criminal Procedure Code and the Law on Judicial Organization have been, over the last year, subject to numerous and long controversies both among the authorities involved in the legislative process as well as in the public opinion.

    Briefly, in April 2018, the draft bills amending the Criminal Code and the Criminal Procedure Code were submitted for public debate, both projects following a sinuous path.

    The draft bill on the amendment of the Criminal Procedure Code, submitted by 182 deputies and senators, received, after plenary debates, an endorsement by the Special Common Committee of the Deputies Chamber and Senate for the systematization, unification and ensuring legal stability in the legal system, and was adopted by the Chamber of Deputies in June 2018 with some amendments to the original form.

    Likewise, after public debate and a favorable endorsement the Government, the draft bill on the amendment of the Criminal Code, submitted by 179 deputies and senators in July 2018, was adopted by the Senate and by the Chamber of Deputies in a speedy procedure during the same month.

    Although institutions with an important role in the area of criminal law including the General Prosecutor's Office, the National Anticorruption Directorate, the Superior Council of Magistracy and the President of Romania, as well as civil society organizations, have expressed concerns and disapproved the changes, both reached the promulgation phase, being sent to the Romanian President.

    The controversy over the two laws has been so fierce at national and EU level that the Monitoring Committee of the Parliamentary Assembly of the Council of Europe has requested, on June 28, 2018, the Venice Commission's opinion on these amendments.

    The Commission's report of 20 October 2018 severely criticized the haste with which the amendments were adopted and the negative impact they may have on the quality of the legislative process, noting the existence of uncertainties about the rationale underlying some of the amendments and their contradiction with Romania`s international obligations, especially related to the fight against corruption.

    The Venice Commission therefore recommended Romanian authorities to thoroughly review the amending laws as a whole so as to ensure that the reform will not have a negative impact on the functioning of the criminal justice system.

    In addition to the assessment made by the European institution, national entities have notified the Constitutional Court of Romania with exceptions of unconstitutionality both regarding the amendments to the Criminal Code as well as the ones brought to the Criminal Procedure Code.

    In June and July 2018, exceptions of unconstitutionality of the amendments in the two bills were raised by the High Court of Cassation and Justice, the President of Romania and a number of 110 deputies.

    The Romanian Constitutional Court admitted some of the unconstitutionality exceptions, with respect to the Criminal Procedure Code, notably in respect of:

    • - the provisions limiting the opposability of the judgment regarding the civil action only to the parties of the criminal proceedings in which the judgment was delivered;
    • - the provisions requiring the public prosecutor to inform the person who has been subject to technical surveillance (e.g. interceptions of his/her telephone) about this activity within 10 days after the measure has ended;
    • - the provisions requiring the prosecutor to either to proceed with the investigation of a person, if legal conditions are met, or close the case within one year from the commencement of a criminal investigation.

    As to the Criminal Code, the Romanian Constitutional Court found unconstitutional the amendments related to:

    • - the abuse of office and reducing the applicability of this offence by criminalizing only the abusive act committed by the offender in order to acquire an undue benefit for himself or his close family members;
    • - the newly introduced obligation to submit a prior complaint and the possibility of the parties to reconcile for embezzlement offenses;
    • - the exclusion of certain subjects of the category of civil servants (such as public notaries and bank officials).

    At the same time, the Romanian Constitutional Court found that:

    • - the amendment to the Criminal Procedure Code which provides that the witness may be assisted by a lawyer in front of the judicial bodies and may consult with him, confidentially, throughout the hearing
    • - the amendment to the Criminal Code which regulates the possibility of halving the penalty limits in case of offenses such as embezzlement or abuse of office committed by individuals, other than clerks (e.g. directors of private companies), if the damage is fully covered until the end of the criminal trial are in accordance with the Constitution.

    Following publication of the Constitutional Court`s Decisions in the Official Gazette, the Romanian Parliament must amend the draft bills regarding the Criminal Code and the Criminal Procedure Code in line with these decisions.

  • Why is it important for Romania to ratify Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms

    On August 1st, 2018, Protocol no. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms came into force. Romania is one of the State Parties who signed the Protocol no. 16, but did not yet ratify it, though in 2016 the Romanian Government released for public debate a draft bill to ratify the Protocol.

    The Protocol provides the possibility for Romanian Constitutional Court, High Court of Cassation and Justice and courts of appeal to file requests to the European Court of Human Rights (ECHR) to grant advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.

    Read more
  • Regulatory sandboxes or what an administration can do to keep up with innovation

    Innovation implies challenging the status quo. Such status quo, at least in densly regulated sectors like banking and finance, is often propped by standards and regulations intended to safeguard consumers' interests as well as the wellbeing (and stability) of the market.

    However, hefty regulation often implies a barrier to entry for new undertakings, especially those working with edge technologies and innovatory concepts.

    Regulatory sandboxes propose a temporary relaxation of such regulatory requirements, allowing innovating entrepreneurs a chance to develop products in strongly regulated sectors. As of late, fintech has become a common term.

    Read more
  • Chambers ranks Stefan Botezatu for the second consecutive year

    For the second consecutive year, Ștefan Botezatu was ranked, by Chambers, as being one of the best practitioners in Romania (Band 1) in Energy & Natural Resources. Clients’ opinion: "He has strong expertise in energy regulatory matters and we see him as a strategic asset for our team. He is an excellent closer and forward thinker."

    Read more
  • Proiect de lege privind selectarea procurorilor europeni

    La data de 5 martie 2018, Ministerul Justiției a lansat spre dezbatere publică un Proiect al Legii privind unele măsuri pentru aplicarea de către România a Regulamentului privind Parchetul European (EPPO).Potrivit Regulamentului[2], EPPO are competența materială de a investiga, de a urmări penal și de a trimite în judecată persoanele care săvârșesc infracțiuni ce aduc atingere sau sunt susceptibile de a aduce atingere intereselor financiare ale Uniunii Europene...

    Read more
  • Happy to have been a speaker to the Romanian Arbitration conference

    Happy to have been a speaker to the Romanian Arbitration conference – our Managing Partner has delivered a speech on the new Romanian arbitration Rules – a comparative look with the ICC Rules.

    Read more
  • Privilege against Self-Incrimination in Criminal Proceedings vs. The Conduct in Administrative Proceedings.

    Our colleague Andrei Croitoru, Senior Associate at Botezatu si Asociatii will give a speech about “ Privilege against Self-Incrimination in Criminal Proceedings vs. The Conduct in Administrative Proceedings.”

    Read more