Updated last 26.03.2021
The Commercial Act (CA) defines the enterprise as pool of rights, obligations and factual relations (art. 15 of the CA). The transferrable enterprise, includes all assets and liabilities, which are used and formed in relation to the performance of the entire business of the company or a separable part thereof. The enterprise includes both material assets, used to carry out the respective business – e.g., production buildings, facilities and land plots, and intangible assets – e.g., rights to registered trademarks, patents, etc. In the case of a transfer of an enterprise, the new owner assumes all the rights and obligations under the contracts related to the transferred enterprise.
The enterprise may be transferred by means of a transaction in written form, with notarized signatures and contents, where both notarizations have to take place at the same time. Most often, the enterprise is transferred by means of a sale agreement.
How is the enterprise transferred?
When the entire enterprise of a company is transferred, the following will be necessary:
- The consent of all shareholders, given in writing with notarized signatures – when the transferor company is a general partnership (SD) or limited partnership (KD);
- A decision of the general assembly of the shareholders approved by a majority of the owners of at least 3/4 of the company’s capital – when the transferor is a limited liability company (OOD);
- A decision of the general assembly of the shareholders approved by a majority of 3/4 of the voting shares present at the meeting – when the transferor company is a joint-stock company (AD);
- A decision of shareholders with unlimited liability, made unanimously in writing with notarized signatures and a decision of the general assembly of the shareholders, approved by the majority of 3/4 of the voting shares present at the meeting – when the transferor company is a limited partnership with share capital (KDA).
Signing a contract with the buyer for the transfer of the business enterprise with notarized signatures and contents
The contract usually specifies the contents (assets, liabilities, the rights and obligations) of the transferred enterprise. It is important to note that the contract is highly complex and it is key for the entire procedure for the transfer of an enterprise, and that is why it is advisable that such contract is prepared and coordinated with persons having relevant expertise.
Payment of salaries and social-security contributions
An enterprise that has employed workers or employees, may be transferred, after its current owner pays all due salaries, compensations, compulsory social security contributions payable to the workers and employees, including to those workers and employees, the employment contracts with whom have been terminated within three years before the transfer of the enterprise.
|Important to know|
The enterprise may be transferred without the payment of such liabilities, only if the parties to the contract agree that the transferee of the enterprise will make all due payments.
Notification of creditors and debtors
It is possible that the transfer of the enterprise affects the interests of persons, who have liabilities towards the enterprise (debtors) and persons, towards whom the enterprise has liabilities (creditors). Therefore, both debtors and creditors must be notified of the transaction by the person, transferring the enterprise (its existing owner). Such notification may be performed for example, by a registered letter with return receipt of delivery or by means of a notarial notice.
Notification of the National Revenue Agency and registration of the transfer with the Commercial Register
In order to become effective, the contract for the transfer of an enterprise, must be registered with the Commercial Register simultaneously on the files of both parties to the contract.
The application is submitted to the Registry Agency by the bodies, representing the companies or their authorized representatives. The application may be submitted online, with a qualified electronic signature (QES). Before filing the application for registration of the transfer, the candidate notifies the territorial directorate of the National Revenue Agency (NRA) at its registered office, accordingly. The Territorial Directorate of the National Revenue Agency issues, within 60 days, a certificate of notification receipt (art. 77 of the Tax and Social Security Procedure Code).
The application for registration filed with the Registry Agency, must be accompanied by the following documents:
- The agreement for the transfer of the enterprise;
- The decision as per para. 1 above;
- A declaration of the absence of outstanding salaries, compensations, compulsory social security contributions to the workers and employees, including workers and employees, the employment contracts with whom have been discontinued within the previous three years before the transfer of the enterprise. The declaration template is available at the website of the Registry Agency (Declaration as per art. 16, para. 2 related to art. 15, para. 4 of the CA);
- A declaration regarding the authenticity of the circumstances to be registered;
- A document for paid state fee (the amount of the payable fee may be checked in the Tariff of State fees, collected by the Registry Agency;
- A certificate of notification receipt, issued by the Territorial Directorate of the NRA;
- A declaration, confirming that the application and the attached documents have been provided by the applicant (only when the application is submitted by an authorized person who is not an attorney-at-law).
|Important to know|
When real estate property is transferred by the enterprise transfer agreement, the agreement must be also registered with the Property Register.
For the purposes of protection of the creditors, the trader acquiring the enterprise must manage separately the business enterprise he has acquired for a period of 6 months from the date of registration of the transfer with the Commercial Register. The management is considered separate when the trader, acquiring the enterprise, treats it as a separate set of assets and reports it separately in its accounting records. Within the specified period, any creditor of any of the parties to the transaction, whose claim is not secured and has arisen before the date of registration of the transfer, may require performance or security. Members of the managing body of the transferee are jointly liable to creditors with regard to the separate management.
|For more information |
For more information on the transfer of an enterprise and the related regulatory framework, please refer to the websites of the: