THE DUALIST SYSTEM FOR THE ADMINISTRATION OF JOINT STOCK COMPANIES

THE DUALIST SYSTEM FOR THE ADMINISTRATION OF JOINT STOCK COMPANIES Lect. univ. dr. Iuliana-Maria CEBUC Asist. univ. drd. Andreea CRĂCIUN "Constantin Brâncoveanu" University - Piteşti Faculty of Management Marketing in Business Administration Rm. Vâlcea e-mail: iuliacebuc@yahoo.com. The integration in the EU, on the one hand, and the globalization of commerce, on the other, demand for significant legislative changes in the area of trading companies. By adopting Law no. 441/2006, two systems for the administration of joint stock companies have been introduced: the monist system and the dualist system, respectively. As an alternative to the classic system of administration, the dualist system offers the possibility of applying a different management formula, consisting of two management bodies with very clear statutory functions, namely the Board of Directors and the Supervisory Board. Key words: dualist system of administration, Board of Directors, Supervisory Board, consultative committees The adoption of Law no. 441/2006 1 triggered important changes in the traditional structure of Law no. 31/1990 on trading companies (hereinafter Company Law). The lawmaker strongly amended the classic system of administration of a trading company, by introducing two distinct mechanisms of administration for the joint stock companies. The creation of these two systems one traditional (the monist system) and the other (the dualist system) clearly exceptional must be set against the provisions of the community law in the field, in particular against the provisions of Regulation no. 2157/2001 2 on the Statute for a European company (SE). According to the current law, any company may choose between the classic system of administration and the dualist system, by stating its option into its charter at the time of incorporation or at a later time, given that this option does not have an irrevocable character. As an alternative to the classic system, the dualist system requires that the company be administrated by two management bodies: the Board of Directors and the Supervisory Council. The relations between the two bodies are rigorously provided for in the law. Should the company choose this system of administration, all invoices, offers, orders, tariffs and any other documents used during the trading activities, issued by the company, have to bear a notice that the company is being administered in a dualist system. Additionally, by choosing this system, the legal provisions on the activity of censors become inapplicable, as the company is now subject to external financial auditing. 1 Published in the O.J. no. 955/28 November 2006. 2 OJEC, series L294/10 November 2001. 999

The Board of Directors.According to the present legislation, in a dualist system the management of the stock company is an exclusive prerogative of the Board of Directors (hereinafter the BoD), 3 which shall carry out all the useful and necessary tasks aimed at executing corporate policy, except for those expressly entrusted by law to the exclusive competence of the Supervisory Board or of the General Assembly of Shareholders (hereinafter the GAS). The BoD carries out its tasks under the supervision of the Supervisory Board. The BoD is made up of one or several members, natural persons, whose number is always odd. If the BoD has only one appointed member, the latter is known as the Sole Director-General. In the case of stock companies whose financial records are, according to the mandatory provisions of the law, subject to auditing, the BoD is made up of at least three members. In full agreement with the provisions of Regulation no. 2157/2001, the Romanian Company Law states that the Supervisory Board appoints the members of the BoD and elects a Chairman from among them. The law additionally introduces a number of incompatibilities: according to Article 153² of the law, no member of the BoD can also be a member of the Supervisory Board; an individual who, according to the law, cannot be a founder is also prohibited from being a member of the BoD. The valid appointment of the members of the BoD is dependent on their express consent. In the absence of express authorization by the members of the Supervisory Board, the members of the BoD cannot be directors, administrators, members of the Supervisory Board or of the BoD, censors, internal auditors, or associates with unlimited liability of other competing companies or with the same business object, nor exercise the same trade or a competing one on their own account or on any other person s account. Any breach of this provision entails revocation and liability for damages. The articles of incorporation and bylaws of the company shall determine the term of office of the members of the BoD; in any case, it may not exceed four years. They are, however, re-eligible, unless the articles of incorporation state otherwise. In what concerns the relationship between the members of the BoD and the Supervisory Board, it is worth mentioning that the former may be removed from office at any time by the latter. Similarly, members of the BoD may be removed by the GAS, if stipulation is made in the articles of incorporation regarding this possibility. Although it is not obvious from the language of the law, these stipulations clearly refer to those situations of discharge for cause. In order to prevent abuses, the law gives the members of the BoD the right to recover compensatory damages in case that they were discharged without just cause. In the event of a vacancy, the Supervisory Board may nominate a new member to act as a member of the BoD for the period remaining until the end of the term. The BoD represents the stock company in its relations with both the third persons/companies and the authorities. 4 The principle established in the law is that, in the absence of a contrary stipulation in the articles of incorporation or bylaws, the members of the BoD represent the company only if they act jointly. In such situation they may 3 Art. 153² par.1of Law 31/1990. 4 Art.153³ of Law 31/1990. 1000

unanimously mandate one of the members to act on their behalf. As an exception from the joint representation rule, in order to facilitate the execution of corporate policies, the law allows for just one of the members to represent the company, but only on the basis of an express provision made in the articles of incorporation. The BoD is bound to file with the Trade Registry and publish in the Official Journal the names of the persons entitled to represent the company, mentioning the manner in which they act, while the latter are under an obligation to submit a sample signature. In its relations with the BoD, the company is represented by the Supervisory Board. Due to the fact that the BoD acts under the supervision of the Supervisory Board, the law imposes a reporting duty on it. Thus, at least once every three months, the BoD files a written report on the management of the company, its activities and its possible evolution. Likewise, the BoD has to communicate in due time to the Supervisory Board any possible information in relation to the events that are likely to influence significantly the activity of the company. In addition to the quarterly notification report, the Supervisory Board may request to the BoD any information it deems necessary for the exercise of its control duties and may proceed to appropriate investigations and inquiries. On a yearly basis, the BoD files with the Supervisory Board a report accompanied by the financial records and its detailed proposal on the distribution of profits resulting from the balance sheet for the accounting year that they intend to submit to the General Assembly. The members of the BoD are also responsible with control and management of the company, within the limits determined by the company s object of activity and with regard to the exclusive competencies reserved by law or by the articles of incorporation to other bodies of the company. The members of the BoD are responsible for failure to comply with their duties. An element that was introduced by the new legislation, as opposed to the previous texts, is the possibility for people other than the General Assembly to file an action for damages (Article 155 of Law 31/1990). Consequently, the action for damages against members of the BoD may be filed by the Supervisory Board, on its own initiative. If the decision is adopted by a majority of two thirds of the total number of members, the term of office of the respective members of the BoD is terminated de jure and the Supervisory Board will proceed to their replacement. Similarly, in the event that the General Assembly fails to initiate a legal action and refuses to follow the proposal of one or several shareholders to initiate such measure, the shareholders representing jointly or individually at least 5% of the social capital, have the right to file on their own name but on the behalf of the company, a legal action against the persons provided for in Article 155 paragraph 1, namely the founders, administrators, directors, members of the BoD and the Supervisory Board, censors and auditors. Court costs are incumbent on the shareholders filing the petition; however, in case of admissibility, they have a right to reimbursement of these costs by the company. The Supervisory Board. According to art. 156 6 par.1, the members of the Supervisory Board are appointed by the GAS from among the candidates designated by the existing members of the Board or by the shareholders, with the exception of the initial 1001

members who are designated in the articles of incorporation. For the appointment to be legally valid, the express consent of the designated person is necessary. In the event that a legal person is appointed as a member of the Supervisory Board, it has the obligation to designate a natural person as a representative mandated to carry out its duties. This representative is subject to the same conditions and obligations and has the same liability as a natural person, member of the Supervisory Board; however, this does not eliminate or reduce the joint liability of the legal person represented. The number of the members of the Supervisory Board is set in the articles of incorporation; pursuant to art. 156 6 par. 3, it cannot be lesser than three or greater than eleven. The Supervisory Board elects a Chairman from among its members. In the event of a vacancy, the Board may proceed to appointing a temporary member, until the General Assembly meeting. If the number of Supervisory Board members is under the legal threshold, the BoD is bound to convene a general assembly in order to fill in the vacancies. Should the BoD not comply with this duty, any interested party may ask the court to designate a person charged with convening the ordinary GAS, which shall then proceed to the appointment. As in the case of BoD members, the law establishes a series of incompatibilities in relation to the Supervisory Board members as well. Thus, no person may be, at the same time, a member of the Supervisory Board and of the BoD or an employee of the company. The articles of incorporation or a decision of the General Assembly of shareholders may set out specific conditions regarding the professionalism and independence of the Supervisory Board members. No person may be designated as a member to this Board if, pursuant to the law, they cannot be founders, or if they simultaneously hold more than five offices in supervisory boards of stock companies whose headquarters are on Romanian territory. This prohibition is not applicable in those cases where the person elected in the Supervisory Board is the owner of at least one quarter of the company s stock or is a member of the BoD or the Supervisory Board of a company that holds the necessary quarter. The person in breach of these provisions is under an obligation to resign from the positions that exceed the maximum number of offices within a month from the start of the situation causing the incompatibility. The term of office of the members of the Supervisory Board is established in the articles of incorporation; it cannot be greater than four years, with the exception of the initial members, whose term cannot exceed two years. They are re-eligible, unless the articles of incorporation state otherwise. Their compensation is also established in the articles of incorporation or bylaws, or by a decision of the GAS. The members of the Supervisory Board may be removed from office at any time by the GAS with a majority of at least two thirds of the number of votes of the shareholders present, according to art. 156 6 par. 4. Pursuant to the legal provisions, the Supervisory Board carries out a series of duties, as follows: Exercises permanent supervision over the management and administration by the BoD; Appoints and removes members of the BoD; 1002

Oversees the observance of the law, of the articles of incorporation and bylaws and of the decisions of the General Assembly during the activities of management and administration of the company; Files a report on its supervision activities to the GAS at least once a year; Convenes the General Assembly, in exceptional cases, if it serves the best interest of the company. According to the law, the Supervisory Board may not be transferred management duties. Nevertheless, the articles of incorporation may provide for the assent of the Board as a necessary condition for performing certain activities. If the Board were not to agree with any of the activities, the BoD would have a possibility to request the assent of the GAS. In this situation, the decision of the Assembly has to be adopted with a majority of three quarters of the number of votes of the shareholders present. This stipulation of the law is imperative in nature, and the articles of incorporation may not derogate from it and establish a different majority or provide for other conditions. As a novelty, the law offers the possibility for the Supervisory Board to set up consultative committees, made up of at least two members of the Board and aimed at carrying out investigations and elaborating recommendations for the Board in areas such as: auditing, compensation of the members of the BoD, of the Supervisory Board or the designation of candidates for various management positions. According to art. 153 10, in the case of stock companies whose yearly financial records are, pursuant to the mandatory provisions of the law, subject to auditing, the creation of an audit committee within the Supervisory Board is mandatory. Such committees are under an obligation to regularly submit to the Board reports on their activities. The law sets out a series of rules regarding the organization of these committees. Thus, the Chairman of the BoD may be appointed member of the designation committee created by the Supervisory Board; however, this does not entitle him to become a member of the Board. At least one member of each committee should be an independent member of the Supervisory Board. At least one member of the Audit Committee must hold relevant experience in accounting or audit. The term experience employed by the law does not necessarily imply that this person be an auditor or an accountant, since the task of the audit committee is not to perform the internal audit or to fill in the balance sheets, but to organize the activity of internal and financial auditing by filing reports, recommendations and proposals to the BoD, which will later constitute the basis of the latter s decisions. Relevant experience is to be analyzed by the Board at the moment of appointment. The members of the Board designated to set up these committees may receive additional compensation for their activities. The meetings of the Supervisory Board take place at least once every three months and are convened and presided by the Chairman. The Board may convene at any time at the motivated request of at least two members of the Supervisory Board or of the BoD. Minutes will be drafted and will then be signed by the president of the meeting and at least another member of the Board. Bibliography: 1. *** Law no. 441/2006 published in the O.J. no. 955/28 November 2006. 2. *** Law no.31/1990, republished 3. *** Regulation no. 2157/2001 on the Statute for a European company (SE) OJEC, series L294/10 November 2001. 1003