INTERNATIONAL CONFERENCE - Facultatea de Drept

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Conference Proceedings - Galaţi, 24 th -25 th of April 2009 Year I, Vol. I - 2009 B. Special features a. Special features which underline the elements of the agreement of banking company (Gheorghe, 2006). - The object of activity: the banks have as main activity the collecting of funds form natural and legal persons and the granting of credits (but not only, to be seen the 20 operations provided by art. 18, OUG no. 99/2006); - The contribution of the shareholders: unlike those of the share holder company, for the banks’ incorporation it can not be contributed, but cash, which have to be integrally paid-up at the moment of subscription into un account opened to a credit institution; - Social capital: while the minimum quantum for the S.A. can not be smaller than 90.000 RON, meaning the equivalent in lei of 25.000 Euro (acc. Art. 10, paragraph 1 of Law 31/90, modified in 2006), the minimum quantum of a banking company is of 5 millions Euro 1 , being settled by BNR through special regulations; - Legal form: it can not be incorporated differently than Shareholder Company. The conditions for incorporation of a bank are the following There are necessary the previous approval of incorporation and the functioning authorization from the central bank. According to OUG no. 99/2006, in term of 4 months from the receipt of the request of incorporation, BNR will approve of reject the request and it will notify the petitioner its decision. In case of rejection, there are going to be specified the reasons. According to art. 35 of OUG no. 99/20006 the authorization granted is valid on unlimited period and it can not be transferred to other entity. After authorization, the institutions are registered by BNR into a special regime, BNR having the obligation to notify the European Commission any granted authorization, excepting the institutions issuers of electronic currency. The notification is necessary so the credit institutions can be included in the actualized list of the commission and published in the Official Monitor of the European Union. 1 According to Law 297/2004, concerning the capital market, published in Official Monitor no. 571, from June 29 th 2004, the minimum capital has to be of 5 millions euro. 33
Conference Proceedings - Galaţi, 24 th -25 th of April 2009 Year I, Vol. I - 2009 After incorporation as trade company and submission of the registration request at the trade register, the authorization will be given by BNR in term of 4 months from the date of registration of the authorization request, along with the document that certify, mainly, the qualification and the professional experience of the leaders, the shareholders and the constitutors, the initial capital, the organizational structure, the operations of the banks, the financial audit, the headquarter or headquarters. There is observable an innovation of law concerning the bank’s headquarter, in the meaning that “the banks, Romanian legal persons, will have registered headquarter, and, by case, a real headquarter (“the place where it is the main place of leading and management of the statutory activity”)”. But in its official documents, the bank has the obligation to mention its registered headquarters. The credit institution has to develop effectively and preponderantly on the Romanian territory the activity it is authorized for. The authorization request can be rejected only by reasons provisioned by law. The approval of the incorporation request does not constitute an authorization. In term of 2 months from the communication of the incorporation approval, there will be submitted to BNR the documents which attest the legal incorporation of the bank. These documents will be attached to the request of authorization. Unlike the old regulation, OUG no. 99/2006 provisions the impossibility of incorporation by public subscription of the credit institutions, Romanian legal persons. The incorporation of the bank will be done by respecting the conditions provisioned by law, regarding trade companies. As a result (Andronache and Bunescu, 2004), being a shareholder company, the bank will be incorporated by company’s agreement and status, in authentic form, signed by shareholders. The company’s agreement and the status can be concluded as a sole document, named Articles of Association. These will contain mentions regarding the identity of the shareholders, the form, the denomination, the headquarter, and, if it is the case, the logo of the bank, the object of activity, the registered capital, the number and nominal value of the shares, the identity of the administrators, the submitted warranty and their powers, the censors, the duration of the company, the method of distribution of the benefits and sustenance of loses, the form of dissolution and liquidation of the bank. As a conclusion for those mentioned above, there are three big phases to be realized in order to incorporate a bank: 1. Approval for the incorporation of the bank, given by BNR. This approval allows the passing to the next phase, respectively, 34
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INTERNATIONAL CONFERENCE - Facultatea de Drept

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