1. Background
The Companies Law does not contain any additional provisions in order to clarify in what manner this term should be calculated. This is particularly important to clarify, seen that non-observance of the ten days term represents a violation of the legal provisions regarding the convening of general assemblies and can be sanctioned with the nullity of the shareholders resolution issued in the relevant assembly.
In other words, the legal provisions regulating this matter raises the question of whether the ten days term starts from the date of delivering the convening by registered letter or from the date on which a shareholder receives that letter.
2. Ruling of the High Court
First of all, the High Court revealed that different courts of law invited to provide opinions in connection to the analysed matter, provided conflicting interpretations, which translates into a rather high risk of non-unitary practice.
To reach this conclusion, the questioned courts of law and the High Court argued that the intention of the legislator is to allow the shareholders to be informed in advance about the agenda of the general assembly in order to prepare their standings and ultimately their votes. A different interpretation would bring generate disruptions to the will of the company, which might lead to the nullity of the resolution of the general assembly of shareholders.
The contrary interpretation (i.e. that the term would be calculated from the moment of delivery of the convening notice) could be detrimental for example to foreign shareholders, where it is likely for the registered letter containing the convening notice to not reach them within the ten days term. In some circumstances, the convening notices may even reach such shareholders even after the date set for the general assembly. In such cases, the will of the company would not be actually met, as such shareholders with not be in the position to exercise their votes.
The High Court also pointed that the convening of the general assembly is an unilateral deed and in accordance with the Romanian Civil Code, the same must be communicated to the addressee, in order to generate legal effects.
3. Conclusions
In practice, the shareholders will benefit from at least a ten days term before a general assembly in order to prepare their position in relation to the items on the agenda and to vote accordingly, so that the will of the company reflects the will of its shareholders.
Specifically, the convening notices should be sent in advance with a reasonable amount of time, in order to be received with at least 10 days prior to the general assembly by all the convened shareholders.
Daniel Alexie - Senior Associate & Diana Borcean - Associate