Romanian M&A · Pre-acquisition negotiation

The first signed document in a Romanian company acquisition can shape the price, timetable and negotiating leverage long before the share purchase agreement is ready. A term sheet should tell both sides what they are exploring, what remains open and which limited commitments take effect immediately.

What does a term sheet do in a Romanian company acquisition?

A term sheet records the principal negotiating parameters before the definitive acquisition documents are prepared. Its legal effect depends on the actual wording and parties’ conduct, rather than its title alone.

It may be called a letter of intent, memorandum of understanding, heads of terms or indicative offer. The useful question is not which label appears at the top. Ask whether it is a framework for continuing discussions, a set of immediately enforceable process obligations, or a commitment to enter into a future transaction on sufficiently settled terms. Romanian Civil Code rules on negotiations, confidentiality and promises to contract make that distinction important.

This article concentrates on a private acquisition of shares or social parts in a Romanian company, particularly an SRL (limited liability company). For an SRL the interests are părți sociale and the owners are asociați; an SA has shares (acțiuni) and shareholders (acționari). “Share purchase agreement” or SPA is a common international deal label; the definitive instrument for an SRL must reflect the actual transfer of social parts. An acquisition of specified assets, a minority investment, a joint venture or a regulated-company takeover can require a different document set and approval analysis. Our guide to the Romanian share purchase agreement covers warranties, conditions, closing and post-signing risk allocation in the later contract. The term sheet should set the negotiating direction without trying to replace that work.

The best early draft also names the real decision-makers. A founder might be negotiating, while another shareholder must approve the sale. A parent might propose to buy, while a different group company will sign the SPA. Identifying the parties avoids vague promises that cannot be carried into final documents without reopening the commercial deal.

Which term-sheet provisions can bind the parties?

A clearly drafted term sheet can leave the proposed sale non-binding while making specified process clauses binding. Each binding clause should be identified expressly, with its parties, start date, duration and consequences.

Article 1183 of the Romanian Civil Code recognises freedom to begin, continue and end negotiations, subject to good faith. Starting or continuing talks without a genuine intention to conclude a contract is an example of conduct contrary to good faith. Ending talks, or simply failing to complete the acquisition, does not itself create liability: a claim requires conduct contrary to good faith and proof of the resulting loss under the applicable rules. Article 1184 addresses confidential information communicated during negotiations. A separate non-disclosure agreement can make scope, permitted recipients, use, return or destruction of materials and remedies more practical. It should also address information shared with lenders, advisers and potential co-investors.

A general heading that says “non-binding” may sit awkwardly beside mandatory language such as “the parties shall sell and purchase” or “the seller irrevocably agrees”. Article 1279 governs a promise to contract where the required elements of the promised contract are sufficiently identified. A detailed term sheet does not automatically become a promise: its wording, the parties’ intention, the applicable law and their conduct determine which, if any, commitments were undertaken. A duty to negotiate in good faith differs from a promise to conclude the transaction, and both differ from the definitive sale contract. Confidentiality or exclusivity may bind even while the proposed acquisition does not. Counsel should inspect any deposit, break fee or commitment to sign as a possible obligation in its own right.

Draft the boundary directly: identify the paragraphs that bind immediately and state that the contemplated acquisition remains subject to final documentation and any listed approvals. A good-faith negotiation clause should not be used to imply that either party must accept unresolved price, warranty or liability terms. Equally, a non-binding sale proposal does not authorise misleading conduct or misuse of confidential material.

How should the proposed deal be described?

Specify the target entity, seller’s interest, acquisition percentage, legal route and any debt or assets treated separately. The same headline percentage can produce very different economic and control outcomes.

For an SRL, social parts are governed by Company Law no. 31/1990. Under Article 202(2), unless the articles of association provide otherwise, a transfer of social parts to a person outside the company requires approval by associates (asociați) representing at least three quarters of the share capital. Article 203 requires entry in the Trade Register and the company’s register of associates; the transfer produces effects against third parties only from its entry in the Trade Register. The timing and effects between buyer and seller depend on the transaction documents and the steps actually completed, while third-party opposability follows the statutory registration rule. Older guides may still describe an opposition and publication procedure removed by Law no. 223/2020; check the current filing route. Read the actual articles before treating a founder’s agreement as sufficient. Other associates may have contractual pre-emption, consent or drag rights that also need checking.

Clarify whether the term sheet describes a purchase of all the shares, a majority stake, a staged acquisition or a capital increase. In a subscription, the money may go into the company; in a purchase of existing interests, the purchase price generally goes to the seller. Combining the two changes dilution, governance and the sources of funds available to grow the business. Any shareholder loan, founder current account, intercompany balance or guarantee should be listed separately rather than assumed to pass with the shares.

For an asset deal, specify which assets, contracts, employees, permits, liabilities and intellectual property are intended to move. Different assignment, consent, employment and tax questions can arise. If the transaction transfers an undertaking, business unit or part of one within the scope of Law no. 67/2006, employment rights and obligations may transfer by operation of law and information and consultation duties may arise; the result depends on what actually moves, not only the deal label. The investment-screening rules can also reach certain acquisitions of tangible or intangible assets in specified sensitive sectors, so an asset structure does not automatically avoid that review. Reclassifying a deal later can make a negotiated price or exclusivity period unworkable. The initial description should be accurate enough to guide due diligence, but can expressly preserve alternative structures pending tax and legal review.

How much of the price mechanism belongs in the term sheet?

Record the basis of the headline value and the main adjustments. A number without a definition of debt, cash, working capital and transaction perimeter does not tell either side what will be paid.

Distinguish enterprise value from equity value. Ask whether the business is sold on a cash-free, debt-free basis, whether a normalised working-capital level is assumed and how financial debt, tax debt, leases, shareholder loans, unpaid dividends and transaction expenses will be treated. If the target has multiple entities, name exactly which interests the price covers and whether real estate, IP or non-core assets stay inside the perimeter.

A locked-box approach normally uses a historic accounts date and protection against value leaving the business before completion. Completion accounts instead adjust the consideration using agreed closing-date metrics. At term-sheet stage, decide which route is intended, what information supports it and what remains to be defined in the SPA. The accounts date, accounting policies, debt and working-capital definitions and dispute mechanism require detailed drafting later.

Where part of the price is an earn-out, specify the performance period, metric and who controls decisions that affect it. A founder seller may expect an additional payment after staying with the target; the buyer may want operational freedom. A vague “up to EUR X based on future results” can move a major disagreement to after closing. Likewise, a deposit, escrow or holdback needs an identified holder, release condition, use and return mechanism. Do not transfer money solely because a short indicative document contains a headline price.

What does the commercial response map show?

Each line in the term sheet should connect to a document, a decision and an owner. Select a row to see the question management should resolve before signature.

How should exclusivity and confidentiality work?

Exclusivity should be limited in time and scope, tied to an actionable diligence timetable. Confidentiality should control information use and permitted recipients, even if the acquisition never signs.

A seller gives something valuable when it removes the business from the market. Define whether the promise prevents soliciting new offers, continuing existing talks, furnishing information to other bidders or concluding a competing deal. Identify the companies, shareholders and advisers covered, and carve out disclosures required by law or already owed to third parties. A buyer should have enough time for meaningful diligence, financing and approvals, while the seller needs a clear end date and objective progress points.

One workable structure is a short initial period that expires automatically unless the buyer supplies a defined diligence request, completes a management meeting or delivers a draft SPA by agreed dates. These are commercial examples, not default legal deadlines. Extensions should require an affirmative written decision rather than pass unnoticed. A “break fee” is not automatically a penalty clause. Its legal character depends on the trigger, purpose, drafting, relationship to loss and applicable law. Where Romanian law applies and the provision is a penalty clause, Articles 1538 and 1541 of the Civil Code may matter: a court can reduce it under the statutory conditions if the penalty is manifestly excessive compared with the loss the parties could foresee when the contract was made.

For the data room, limit access to identified team members and advisers. Decide whether the buyer may contact employees, customers, banks or suppliers, and whether the parties are competitors. Sensitive pricing and strategy data may require a restricted review team. When employee or customer personal data are involved, the EU General Data Protection Regulation requires the parties to identify their actual roles, purposes and lawful basis, limit access to necessary information and meet applicable transparency and security duties. Use anonymised or aggregated data where it will answer the diligence question; give particular care to payroll, evaluations and health information. Access from outside the EEA may also require a separate international-transfer analysis. An NDA or confidential data room does not replace these obligations.

Which conditions and approvals should be screened before signing?

The term sheet should identify plausible deal-stoppers and allocate who investigates them. A definitive condition can be drafted later, but a promised completion date is unreliable if the parties ignore corporate, tax, competition or investment approvals now.

Start with corporate title, associate or shareholder rights, pledges, financing restrictions, change-of-control clauses and licences. A seller may control a majority economically but still need a corporate resolution or third-party consent. For merger control, check whether the deal is a concentration and whether the relevant turnover and jurisdictional thresholds under Competition Law no. 21/1996 or, where applicable, the EU Merger Regulation are met. Purchase price alone does not establish whether notification is required; a non-notifiable arrangement may still need a separate competition-law review of its clauses or conduct.

Romanian investment screening under Emergency Ordinance no. 46/2022, as amended by Emergency Ordinance no. 17/2026, can cover foreign direct, EU and certain new investments where the statutory definitions and sector conditions are met. Article 3 sets a general value threshold exceeding EUR 5 million, calculated using the prescribed exchange-rate date. An investment at or below that amount may still be examined under the specific security, public-order or EU-interest conditions. Under Article 3(2²), certain interdependent operations within one year are treated as one investment and a filing duty arises when their combined value reaches EUR 5 million. The 2026 amendments also cover defined acquisitions of tangible or intangible assets in sensitive sectors. Screen the actual investor, target activity or assets, rights acquired, value, connected transactions and the applicable published procedural rules. The Competition Council’s 2025 investment-screening instructions address valuation, notification and control; their application must be checked against the amended 2026 framework and any subsequent rules. Those instructions envisage a filing after the material deal terms are settled but before implementation, supported by a document evidencing the intended investment. A signed term sheet does not substitute for an authorisation; where clearance is required, do not implement the investment before authorisation. Unauthorised implementation can attract statutory sanctions.

An SRL social-part transfer also needs a registration and tax workstream. The ONRC’s current transfer checklist includes the registration application, corporate resolution, updated articles, identification documents, proof of notifying the central tax authority, a tax attestation certificate and other documents according to the case. Under Article V of Law no. 239/2025, as amended, the seller, buyer or company must notify that authority of the transfer instrument and updated articles within 15 days of the transfer. If the company has the tax debts or budgetary claims specified there, security and proof of the tax authority’s agreement to that security may be needed for registration. ONRC currently says that, until the joint implementing order enters into force, the applicant supplies the tax attestation certificate. This fiscal opposability process is separate from the third-party registration effect under Article 203(2) of Company Law. Check the live ONRC list and tax procedure before filing. Existing shareholder-change guidance covers the procedural stage; a separate SPA guide explains definitive closing conditions. In the term sheet, assign responsibility for the tax notice, certificate, any security and registry filing, and set a realistic sequence and long-stop mechanism.

What should the buyer investigate during the exclusivity period?

Diligence should test assumptions that could change price, structure, closing conditions or the decision to proceed. A long list of documents is useful only when findings feed back into the deal.

Start with a prioritised request list: corporate records and shareholder title; recent accounts and debt; material customer and supplier contracts; security and guarantees; tax filings and disputes; permits; employment and key-person arrangements; property and leases; intellectual property; technology and data processing. Sector-specific issues can take priority. For a licensed operator, regulatory continuity may matter more than a minor contract warranty. For a software target, source-code ownership and contractor assignments may be central.

Do not make all diligence an undefined subjective escape route. A buyer can reserve a satisfactory-review condition, but the parties should understand whether the indicative value assumes no material undisclosed debt, no loss of a major contract and a defined financial baseline. Where there is a known issue, record whether it must be fixed, priced, insured, specifically indemnified or expressly accepted. The SPA can carry the final mechanism once evidence is available.

Data-room access should have a clear beginning and end. Preserve document versions and a Q&A log, distinguish information supplied by the target from informal remarks, and give both teams a controlled channel for new disclosures. This reduces disputes about what was shown and when. For a cross-border buyer, agree translation priorities early so the limited review time is spent on material Romanian documents rather than a last-minute full archive.

How do governing law, costs and the timetable fit together?

Choose the law and dispute mechanism for binding term-sheet clauses, allocate exploratory costs and distinguish target dates from enforceable obligations. The term sheet and definitive SPA can have different governing-law choices, but their interaction must be clear.

Cross-border parties often reuse an overseas template. This can create uncertainty if the binding provisions name one law, the later SPA is expected to use another and Romanian corporate steps cannot be displaced by either choice. Specify which court or agreed dispute forum addresses exclusivity or confidentiality disputes, and check the formal validity of the clause. A proposal to arbitrate should be assessed alongside interim protection for sensitive information.

Ordinarily each side pays its own advisers unless the parties agree otherwise. If one party asks for reimbursement, a deposit or a break payment, identify the trigger, calculation, cap, exclusions and relationship with proven loss. Avoid an undefined undertaking to cover “all transaction costs” merely because negotiations fail. Legal diligence, financial diligence, translation and any regulatory filing should be costed early, even if precise fees are not yet known.

A practical timetable uses milestones for data-room opening, diligence questions, first SPA draft, approvals analysis and target signing, with a separate expectation for closing. It names the party responsible for each step. “Completion within 30 days” may be commercially attractive but unworkable where investment screening, merger clearance, consents or seller remediation are required. A long-stop date belongs in the final contractual framework once the conditions are understood.

What are the most common negotiation errors?

What should management send for a first legal review?

A short, organised starter file is enough to identify the first red flags. Use the checklist to track what the team has assembled; it does not transmit information or give an automated legal opinion.

Select each document group as it becomes available. The count updates locally.

• ✓Latest term sheet or offer, including tracked changes and side letters.
• ✓Party, acquisition-vehicle and target identity, legal form and proposed percentage.
• ✓Target articles of association, shareholder list and known transfer restrictions.
• ✓Recent accounts and a short debt, cash and shareholder-loan summary.
• ✓Signed NDA, data-room status and proposed exclusivity deadline.
• ✓Known licences, major contracts, financing consents and regulatory concerns.
• ✓Commercial deadline, financing status and internal approval decision-maker.
• ✓Specific questions on price, structure, conditions and desired negotiation outcome.

What can Atrium’s focused term-sheet review deliver?

A useful first review turns the draft into a decision list: clauses that bind now, issues that require evidence and terms that should stay open until the SPA. The deliverables and fee should be defined for the proposed matter.

Depending on the mandate, Atrium can review the identity and authority of the signatories, mark up the binding and non-binding division, sharpen price assumptions and exclusivity, identify the diligence priorities and flag Romanian corporate or regulatory dependencies. Management can then decide which commercial concessions are acceptable before the document goes back to the other side. This early work can be followed by a separately scoped due diligence exercise and SPA negotiation if the parties proceed.

For a company making repeated acquisitions or running multiple Romanian contracts, ongoing legal support may help maintain a consistent approach to NDAs, board approvals, local filings and recurring commercial documents. A monthly arrangement should state what work is covered and what separate transaction or dispute work needs a distinct mandate. The immediate decision for a single deal remains whether the proposed term sheet should be signed in its current form.

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Romanian corporate law · Practical guide for shareholders

Changing an SRL administrator in Romania involves more than signing a shareholder decision. A company must identify who has authority to decide, record the appointment and departure correctly, prepare the Trade Register file, and hand over the practical controls that keep the business running.

What does changing an SRL administrator in Romania mean?

In Romanian company law, the office relevant here is the administrator of an SRL. International shareholders sometimes use “company director” as an English shorthand, but “director” may describe a different corporate or employment role in Romanian law, especially in an SA. The SRL administrator’s legal powers, term and method of representation are set by statute and the company’s constitutive act (act constitutiv). A general manager, an employee whose job title contains “director,” and an SRL administrator are not necessarily the same person. Identify the office that is changing before preparing the documents.

Article 194(1)(b) of Law no. 31/1990 gives the shareholders’ meeting the power to appoint and revoke SRL administrators. Article 197(1) governs SRL administration: one or more administrators may serve, and they may be shareholders or persons from outside the ownership group. In a single-shareholder SRL, the sole shareholder exercises the powers of the general meeting and records decisions in writing under Article 196¹.

A change of administrator does not by itself transfer shares or necessarily change the beneficial owner. Examine who ultimately owns or controls the company and whether the registered beneficial-owner information has changed. The change also does not automatically terminate a separate employment agreement, settle an outgoing administrator’s mandate-related claims, or transfer personal access to a bank account. Those questions deserve a separate document review. For the wider risk landscape, see our guide to Romanian company director liability.

Which administrator-change route fits the company?

Start with the event that creates the vacancy or change of powers. The same ONRC category can cover several materially different governance situations.

Who can appoint or remove the administrator?

For an SRL with several shareholders, Article 192(1) of Law no. 31/1990 sets the ordinary rule of an absolute majority of both shareholders and share capital, unless the constitutive act provides otherwise. In practical terms, more than 50% of all shareholders must vote for the decision, and those shareholders must together hold more than 50% of the share capital. For example, in an SRL with five shareholders, three voting in favour still need to hold over half the share capital between them. Do not use an old template demanding unanimous consent for every amendment: Article 192(2), which previously addressed amendments, was repealed in 2022. Equally, do not assume a bare majority works where the company’s own act provides a different threshold or the meeting was called incorrectly.

Review the notice clause and the proposed agenda before circulating a decision. Article 195(3) refers first to the form in the constitutive act; without a special provision, it provides for registered-letter notice at least ten days before the meeting, stating the agenda. The court’s interpretation of when that period starts may matter where an attendee contests service. The current Article 195¹ of Law no. 31/1990 permits remote participation where the constitutive act provides for it, the shareholders decide by the Article 192 majority, or all shareholders agree in writing. The means used must allow identification, effective participation, continuous transmission of deliberations and verification of votes; the adopted resolutions are signed by hand or electronically in accordance with the law. A foreign parent company’s wish to sign remotely is therefore a document and procedure question, not a reason to skip formalities.

Where one administrator is removed and another appointed, draft the decision around both acts. Make the precise change to any named administrators in the constitutive act, state the new term and method of representation, and confirm who may implement the filing. A decision that says merely “appoint our new administrator” can leave registrable facts uncertain. If shareholders disagree over the process, consider whether the meeting, vote and grounds for any challenge need legal review before a filing is attempted.

Which documents go into the ONRC filing?

The ONRC guidance on changes to management bodies lists the registration application, the competent corporate body’s decision, identity documents for incoming members, and an updated constitutive act for an SRL where applicable. Its additional items are explicitly conditional. Use the current checklist and the facts of your case, including the identity and tax status of a foreign appointee.

Select a row to see the practical filing check.

The ONRC page says applicable fiscal-record information is obtained by the office from ANAF ex officio. Depending on the case, ONRC also lists a foreign individual’s declaration where the individual is not registered for Romanian tax purposes, a signature specimen, a declaration that the new administrator meets legal conditions, evidence for a legal-entity office holder, required sector authorisations and an attorney’s authority. A beneficial-owner declaration is listed if applicable. Replacing an administrator does not necessarily change beneficial ownership, but the company must assess the actual ownership and control structure, any change to registered beneficial-owner data and the ONRC requirements for a beneficial-owner declaration applicable when it files. A person’s management role should not be treated as a universal answer to who ultimately controls the company.

What should the shareholder resolution actually say?

Clear drafting reduces both registration questions and disputes about who may act for the company. Identify the Romanian company by its full legal name, registration number and registered office. Identify the decision-maker, how the meeting was convened or the sole shareholder’s authority, the date, attendees and vote. Then state the outgoing administrator’s name and reason or legal mechanism for cessation without implying that a dispute is resolved merely by using a label.

Set out the incoming person’s full identifying details, the appointment, its effective date and duration, and whether the administrator represents the company alone or together with another named office holder. If a specific approval is needed for certain transactions, distinguish internal authorisation from the registered external representation rule. Decide whether discharge of management activity is on the agenda; appointment and discharge are related but distinct shareholder decisions under Article 194.

Where the constitutive act names the administrator or states the representation method, attach an updated full text reflecting the amendment, consistent with Article 204(4) of Law no. 31/1990 and the ONRC checklist. Ask counsel to check whether the particular appointment requires an act amendment; not every change presents an identical filing set. Keep signing authority, dates and spelling the same throughout the decision, constitutive act, identity copy and application.

How soon must the change be filed, and how is it submitted?

ONRC’s current guidance states the general rule that an application for a legal entity’s registration is filed within 15 days from conclusion of the constitutive or amending act, unless the law provides otherwise. Determine what instrument actually changes this company and whether a special provision applies. Put the decision date, signature date, proposed start of office and filing date on a single timetable. Do not treat fifteen days as a promise that a bank or counterparty will update its records within the same period.

ONRC lists physical submission, postal or courier submission and electronic transmission among the available routes. It states that electronic submissions require a qualified electronic signature in the relevant format; paper and electronic requirements should not be conflated. The same guidance notes that filings can be made at any Trade Register office under Article 85 of Law no. 265/2022. A representative filing on a company’s behalf needs the appropriate authority document. For a broader overview of digital company filings, see our guide to online company registration and electronic signatures.

The guidance describes a one-working-day decision period for the registrar calculated from registration of the application, with power to request further documentary evidence. That is a procedural decision standard, not a guarantee that the entire corporate change, publication, banking update and business handover will be complete the next day. Check the actual case status and retrieve the updated registration evidence before presenting a new signatory to counterparties.

How do foreign shareholders or foreign administrators sign?

International groups commonly have a Romanian SRL owned by a foreign company and want its parent-level officers to approve an administrator change without travelling. The corporate decision still has to be made by the correct Romanian company’s decision-maker, represented by someone authorised to act for the foreign shareholder. Review the foreign parent’s current registry evidence, internal powers and any power of attorney before settling the Romanian resolution. A job title alone does not always prove authority to sign.

Document language, certification, translation and any apostille or legalisation question depend on where the document originates and how it will be used. ONRC states that documents submitted for registration must be typed in Romanian and legible; foreign source documents may require additional formalities under the relevant rules. Do not assume every foreign document requires an apostille or that an electronic signature substitutes for all underlying evidence of authority. Clarify the exact package before circulating originals internationally.

If the proposed administrator is a foreign individual, compare the ONRC conditions for identity, fiscal status, declarations and specimen of signature with the individual’s actual situation. Appointment as administrator is a company-law question; the person’s immigration, work, residency and tax position may create additional questions that are outside the registry filing itself. Build time for those checks if the administrator will manage operations from Romania.

Does a resignation or contested removal require a different approach?

A voluntary resignation and a shareholder revocation may lead to the same need to update registered management, but the underlying evidence and possible private claims differ. Preserve the resignation communication, proof of receipt, mandate or service agreement and relevant shareholder decision. Check whether the company will still have a person who can represent it during transition. If the former administrator is also a shareholder or employee, treat those capacities separately.

If shareholders are divided, meeting procedure, voting rights, access to records and the accuracy of the existing register become central. Article 196 of Law no. 31/1990 addresses challenge of an SRL general-meeting decision, applying rules from joint-stock companies and a specific knowledge-based starting point for the fifteen-day period stated there. A dispute over the decision calls for case-specific litigation analysis; a Trade Register filing should not be portrayed as settling all private-law disputes.

Revoking an administrator does not automatically extinguish liability for conduct during an earlier mandate, just as a disagreement over performance does not itself invalidate every corporate decision. Conversely, the outgoing administrator may have contractual claims even where the shareholder resolution is valid. Keep evidence of the handover, account access and communications in a controlled file, particularly when control of financial information or customer contracts is disputed.

What should the company put in its handover file?

A registry update is one part of continuity. The incoming administrator may need to approve payroll, tax submissions, supplier payments, litigation instructions or an imminent lease. Create an indexed file and assign a named person to confirm each handover. The following checklist is interactive for planning only; selecting an item does not save or upload company information.

Click each card as you assemble the file.

• ✓Current constitutive act, registration extract and shareholder register.
• ✓Notice, attendance and voting evidence or signed sole-shareholder decision.
• ✓Acceptance, identity copy and case-specific ONRC statements or signature specimen.
• ✓Filed application, receipt, registrar decision and updated registration evidence.
• ✓Bank mandate and payment approval matrix, with old access reviewed.
• ✓Contracts requiring a signatory update or change-of-control style notice.
• ✓Accounting, tax, payroll, IT and e-signature access ownership.
• ✓Written outgoing handover of live disputes, deadlines and key assets.

The checklist does not imply that all eight documents must be submitted to ONRC. Bank forms, contract notices and IT credentials belong to an operational workstream. The registry workstream has its own legally required papers. Separating the two prevents a common problem: the new administrator appears in the public record but still cannot release a payment, or the former administrator retains access after their authority has changed.

How should the handover be sequenced with the bank and counterparties?

Before the shareholder decision, identify urgent transactions and who can sign them. Then align the effective date in the decision with any necessary acceptance, the outgoing administrator’s access changes and the planned ONRC submission. After the registrar has decided and the public record is updated, obtain the extract the bank needs and follow its own mandate process. Banks and contract partners may require additional identity or corporate documents under their own procedures.

Review loan agreements, leases, licences, supplier frameworks and insurance policies for named signatories, notification duties or key-person conditions. An administrator change is not automatically a change of share ownership, but a contractual notice clause may still respond to a management or control event as defined in that contract. Record notices and acknowledgments. In regulated sectors, check whether an authority’s approval or notification must precede the registration or a person beginning their functions; the ONRC checklist itself flags prior sector authorisations where the law requires them.

Give the incoming administrator a concise briefing on pending payment runs, deadlines, tax correspondence, pending claims and employment decisions. Where a departure is contentious, a neutral inventory of company assets and records protects the integrity of the transition. Avoid copying personal material unrelated to company duties; the point is a complete business record that another authorised person can actually use.

Two illustrative administrator-change situations

A foreign parent replaces its Romanian subsidiary’s sole administrator. The parent wants the new appointee to begin signing contracts next week. Counsel first checks its authority to sign the sole-shareholder decision, the Romanian constitutive act and the proposed representation date. The filing pack includes the decision, the incoming person’s identification and any additional ONRC documents triggered by the facts. The bank’s mandate timetable is checked separately so a legal appointment is not mistaken for immediate payment access.

Two shareholders disagree after an administrator resigns. The company has a time-sensitive supplier payment and conflicting views on who can call the meeting. The team preserves the resignation, the current articles, notices, voting evidence and bank-authority records. It then decides what valid corporate action can fill the vacancy, whether a challenge risk arises and how the Trade Register and temporary operational controls should be managed. These scenarios are illustrations, not claims about actual clients or guaranteed outcomes.

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Commercial contracts · Foreign suppliers

A foreign supplier is ready to appoint a Romanian distributor. The commercial team has agreed a territory and a margin, but the draft contract still leaves open who owns the customer relationship, which online sales are permitted and what happens to inventory if the appointment ends.

This guide is for a supplier negotiating a business-to-business distribution arrangement for goods sold into Romania. It is a negotiation guide rather than a standard form. Regulated products, sector-specific networks and a contract involving a non-EU jurisdiction may require additional analysis. Where a purchase order, agency appointment or franchise arrangement is being labelled “distribution”, first identify what the parties will actually do.

Is this a distributor, an agent or a reseller under individual purchase orders?

The label is not enough. Ask who buys the goods, who invoices the Romanian customer, who bears stock and credit risk, and whether the local business may bind the foreign supplier.

A distributor generally purchases goods and resells them in its own name and for its own account. The commercial risk, margin and customer contract can sit with the distributor, although the supplier may still have product-related obligations. An intermediary who has continuing authority to negotiate or conclude sales on another party’s behalf may instead be a commercial agent. That distinction matters at exit: Directive 86/653/EEC and the Romanian Civil Code regulate the agency agreement in Articles 2072–2095, including the conditions for a post-termination indemnity under Article 2091. An Article 2091 termination indemnity is conditional, including on new customers or substantially increased business with existing customers, continuing substantial benefits for the principal and an equitable assessment. The indemnity is subject to a statutory maximum based on the average annual remuneration received by the agent during the relevant reference period; the amount payable is determined by the statutory conditions and the circumstances of the case, and is not automatically equal to one year’s remuneration. Those rules do not automatically give an independent distributor an equivalent statutory payment. If the parties only exchange separate purchase orders without an enduring market-development commitment, a supply framework may be the better description. The differences affect remuneration, customer data, liability and potentially the legal consequences of termination.

Do not assume that calling a contract “independent distribution” settles the classification. Review the actual authority granted to the local party, ownership of inventory, ability to negotiate price with customers, marketing commitments and risk of non-payment. The European Commission’s Guidelines on Vertical Restraints also distinguish genuine agency from independent distribution for competition analysis by looking at the agent’s relevant financial and commercial risks. A hybrid arrangement deserves close review before the parties adopt clauses copied from either model.

What should the exclusivity clause actually cover?

Define the products, territory, customer groups, channels, reserved accounts and supplier’s direct-sales rights separately. “Exclusive in Romania” leaves too many commercial questions unanswered.

A foreign supplier may wish to retain existing multinational accounts, direct e-commerce, government tenders or sales to a particular industry. The distributor may expect protection for its investment in local staff, stock and marketing. Put those expectations into a schedule that names the protected customer category and the channels where the distributor is expected to invest. Clarify whether the supplier may appoint another distributor, whether an affiliate may sell directly and whether exclusivity is conditional on performance.

Sales restrictions require more than careful wording. Under Regulation (EU) 2022/720 on vertical agreements, the vertical block exemption (VBER) offers a conditional safe harbour. Among its conditions, the supplier and the buyer must each stay at or below 30% on the relevant market identified for that party, and the agreement must avoid the hardcore restrictions in Article 4. Crossing 30% does not itself make an agreement unlawful. Article 8(d) preserves the exemption for two consecutive calendar years after the year in which a party first exceeds 30%, where its share was initially no more than 30%; thereafter an individual assessment may be needed. An Article 4 hardcore restriction generally removes the benefit of the block exemption for the entire agreement, rather than just that clause. Loss of the exemption is not itself proof of an Article 101 TFEU infringement: the agreement and any possible individual exemption require a separate competition-law assessment. Article 4 contains distinct exceptions for exclusive, selective and other distribution systems. Under the Regulation, an exclusive territory or customer group may be allocated to the supplier itself or to no more than five buyers; a permitted active-sales restriction may in certain circumstances extend to the buyer’s direct customers. That does not create a general right to prohibit passive sales responding to unsolicited demand.

Link exclusivity to a realistic implementation plan. State when the distributor must launch, which products it must carry, what information it must report and what follows if an agreed target is missed. A shortfall might trigger a negotiated cure or conversion to non-exclusivity, if the contract so provides. Avoid a clause that promises permanent market protection while leaving the minimum effort, supplier stock availability and target measurement undefined.

Can the supplier control resale prices and online sales?

The distributor’s resale pricing and its ability to use the internet need a separate EU competition review. A target margin or brand policy does not justify fixing the distributor’s minimum resale price.

Article 4(a) of Regulation 2022/720 treats restrictions on the buyer’s ability to determine its sale price as a hardcore restriction for the block exemption. A supplier may set a maximum or recommend a resale price only if the arrangement does not operate as a fixed or minimum resale price through pressure or incentives. That means the clause, emails, discount approvals, monitoring and threatened consequences all matter. A “recommended” price list backed by penalties can create a different legal picture from a genuinely non-binding recommendation.

Online sales also need a clear channel map. Will the distributor run its own Romanian website, sell through marketplaces, advertise on search engines, or fulfil an order from a customer in another EU Member State? Article 4(e) addresses restrictions that prevent the effective use of the internet for selling the contract goods or services. A proportionate marketplace condition is not necessarily equivalent to an effective ban on internet selling; restrictions on the distributor’s own website, online advertising channels and cross-border passive sales must be examined separately. The effects and distribution model determine the analysis. State brand, service and presentation standards without copying an absolute online-sales ban.

If the supplier sells directly to Romanian customers as well as through the distributor, it should also examine its own distribution activities and any sensitive information exchanged with a downstream competitor. Under Article 2(5) VBER, the dual-distribution exemption does not cover an exchange of information unless it is directly related to implementing the vertical agreement and necessary to improve production or distribution of the contract goods or services. A competition assessment cannot be reduced to checking the distributor’s signature on a standard territorial appendix. Romanian Competition Law no. 21/1996 and the role of the Romanian Competition Council (Consiliul Concurenței) also matter; where trade between Member States may be affected, EU and national competition rules can be applied in parallel.

How long can a non-compete obligation last?

An exclusive appointment is not automatically the same as a non-compete obligation. Check whether the distributor is barred from competing products or required to source more than 80% of its relevant purchases from the supplier.

Under Article 5 of the VBER, a non-compete obligation of indefinite duration or more than five years is generally excluded from the block exemption. This is an exclusion of that obligation, not the same rule as an Article 4 hardcore restriction that removes the exemption for the entire agreement. The Commission’s Vertical Guidelines explain that a tacit renewal beyond five years can still benefit where the buyer can effectively renegotiate or terminate on reasonable notice and at reasonable cost, allowing it to switch supplier. There is also a limited exception for supplier-owned or qualifying supplier-leased premises. Do not state an automatic five-year ban without examining the arrangement.

A post-contract non-compete receives the block exemption only under narrower cumulative conditions, including a one-year limit, a restriction to the premises and land from which the buyer operated, and necessity to protect the supplier’s transferred know-how. Continuing confidentiality protection for non-public know-how is a separate question. Review these obligations with the exit plan rather than adding an unrestricted ban to the template.

Which commercial terms deserve the most negotiation time?

Price and territory are prominent, but the difficult disputes often come from the mechanics of ordering and performance. The table below turns a draft into a decision list. It is a negotiation tool, not a statement that every item is mandatory in every distribution relationship.

In particular, identify which document controls if a framework, quotation, purchase-order acknowledgement and distributor terms conflict. A list of “standard terms” attached after negotiations can reverse the agreed allocation of risk. Version the annexes and make the order of precedence deliberate. Where Romanian law governs, Article 1202(3) of the Civil Code gives individually negotiated clauses priority over standard clauses. Article 1203 may require express written acceptance of certain unusual standard clauses, depending on the circumstances. Applicable-law, arbitration and jurisdiction clauses must also satisfy the specific formal and substantive requirements of the applicable international, EU and national rules.

For payment terms, consider Law no. 72/2013 where it applies. Article 5(1) uses 60 calendar days as the general B2B maximum, subject to an expressly agreed longer term that is not abusive under the detailed provisions of the Law. Articles 3 and 4 address when late-payment interest accrues and the applicable statutory interest where no rate was agreed. Discuss credit limits, advance payment, a bank guarantee or a carefully documented retention-of-title arrangement when the distributor carries substantial stock. A retention-of-title clause needs a separate review of identification, applicable property and security rules, third-party effect and insolvency exposure. Check the chosen law and cross-border enforceability before relying on a form clause.

Who handles product compliance, complaints and recalls?

Allocate operational tasks in the agreement, but first establish each party’s legal role in the supply chain. A contract cannot remove duties imposed directly by applicable product law.

For consumer products within its scope, Regulation (EU) 2023/988 on general product safety, applicable from 13 December 2024, imposes obligations on manufacturers, importers and distributors. A Romanian business established in the EU that places a product from a third country on the EU market may be an importer even if the commercial agreement calls it a distributor; simply reselling goods already placed on that market does not automatically give it that role. Whether the Romanian business is an importer depends on the applicable definition and the actual supply-chain arrangements, including who places the product on the Union market and who is identified in the relevant import and compliance documentation. A business that markets a product under its own name or trademark, or substantially modifies it, may assume manufacturer obligations. Article 16 requires an economic operator established in the EU to be responsible for specified tasks for products covered by the Regulation. Products intended exclusively for professional or industrial use require their own regulatory assessment, but goods reasonably foreseeable for consumer use can fall within the GPSR even if also sold to professionals. Sector-specific legislation may also apply. The contract should identify the entity responsible for relevant product documentation, language of instructions, traceability, handling a safety alert, notifying the other side and contacting authorities when legally required.

The distributor needs a reliable path to escalate complaints and stop affected stock from moving while facts are checked. The supplier needs batch, shipment and customer information sufficient to trace affected products, subject to the applicable law and the information actually held by the parties. Agree who controls consumer-facing statements and who pays for transport, inspection, replacement or a recall when responsibility is established. Financial indemnities and insurance should be tested against the actual legal roles and the available cover, not inserted as a blanket promise that one party will absorb every event.

For non-safety complaints, specify the first response owner, the evidence record and the approval path for customer communications. If the Romanian seller is approached by ANPC or a competent sector-specific market-surveillance authority, the contract should support prompt access to product and transaction records and identify who coordinates any legally required notification or corrective measure. If an actual contravention report is issued, our guide to challenging an ANPC fine addresses that separate sanction stage.

How should the contract handle the brand and customer information?

A distributor needs permission to present the products, but that does not require ownership of the supplier’s trademark or unrestricted use of brand assets. Specify permitted marks, approved materials, translations, domain names, social accounts, quality controls and who may register or renew a local domain. Prohibit registration of the supplier’s trademark in the distributor’s own name without express consent, and agree how control of local domains and accounts is transferred at exit. Describe what happens to signs, listings and marketing assets on termination. A local distributor should not be left with an unclear right to keep using a supplier’s mark after the appointment ends.

Customer data deserves its own practical map. If each business decides independently why and how it processes personal data, an automatic “processor” label is unreliable. If one party processes information on the other’s documented instructions, a data-processing agreement may be required under Article 28 of the GDPR. If the parties jointly determine purposes and means, Article 26 may require a joint-controller arrangement instead. Transfers of personal data to a country outside the EEA require a separate Chapter V analysis where applicable. Determine which company collects the customer’s details, who sends marketing, who keeps complaint and warranty records, whether information crosses borders and what may be transferred at exit. The site’s data-processing agreement guide covers the role distinction in more detail.

A customer list is also a commercial asset. Define access to leads generated by the supplier and those developed by the distributor, and the rights to use them after termination. This needs to fit competition, confidentiality, data-protection and actual customer-contract arrangements. A contractual claim to “own all Romanian customers” is too crude to answer any of those questions.

What must be agreed about duration and exit?

State the term, renewal process, notice route, breach remedies and the fate of accepted orders and inventory. The supplier’s right to appoint someone else after exit is only useful if the transition can be carried out in practice.

A fixed term may support launch investment, but management should see the renewal and break points on a calendar. An indefinite-term arrangement requires a different notice analysis. Under Article 1277 of the Romanian Civil Code, either party may unilaterally end an indefinite-term contract with reasonable notice. Reasonableness depends on the relationship, its duration, investment, replacement arrangements and the practical transition; there is no universal 30-day rule. Article 1277 treats a contrary clause, or a payment required merely in exchange for exercising that withdrawal right, as unwritten. This does not erase accrued invoices, accepted orders or liability for a separate breach. Article 1276 regulates the exercise of a contractual or statutory right of unilateral withdrawal (denunțare unilaterală) where such a right exists; it does not give either party a general right to abandon a fixed-term contract.

The contract should also say what constitutes a serious breach, whether a cure opportunity applies, where notices must be sent and when they are effective. Under Romanian law, breach-based termination (reziliere) and its notice mechanics should be distinguished from unilateral withdrawal; Articles 1550–1553 of the Civil Code address available routes and express termination clauses (pacte comisorii). An Article 1553 clause should identify the obligations whose non-performance triggers termination and should state whether termination operates automatically or requires notice, subject to the Civil Code and the wording of the clause. Rights must be exercised in good faith under Articles 15 and 1170. A negotiated penalty or damages clause needs its own assessment rather than being treated as a fee for exercising Article 1277. The supplier should plan for accepted orders, returns, spare parts, warranties, prepaid promotions, demonstration stock, tooling, customer communications and the removal of its branding. The distributor may need an orderly stock solution rather than an abrupt write-off; the supplier may need protection against damaged or obsolete inventory being returned at full price.

An independent distributor has no automatic Romanian statutory goodwill indemnity equivalent to the agency indemnity in Article 2091. A genuine agency relationship may engage that rule only if its conditions are met, subject to its statutory cap; an “independent distributor” label will not resolve a different factual arrangement. The parties may negotiate stock buy-back, transition payments or other exit arrangements expressly; a separate claim based on breach or abusive exercise of rights depends on its own facts and legal basis. The classification and governing law require a document-specific assessment. Our separate supplier contract exit guide explains early termination routes after a relationship is already underway.

Which law and court will govern a cross-border dispute?

Choose governing law and the dispute forum deliberately. Under Rome I Regulation, Article 3, the parties can generally choose the law applicable to contractual obligations. If they make no effective choice, Article 4(1)(f) provides a specific connecting rule for a distribution contract: the law of the country of the distributor’s habitual residence. For a company, Article 19 generally locates habitual residence at its central administration, with a branch-related rule in specified cases; classification and Article 4(3) may displace the default if the contract is manifestly more closely connected with another country. Rome I also preserves the role of overriding mandatory provisions in Article 9 and, in the intra-EU circumstances covered by Article 3(4), EU rules that cannot be derogated from. A Romanian distributor may therefore bring Romanian law into the analysis even when the supplier’s template assumes its home law will apply by default.

The chosen law does not by itself decide which court hears a dispute. An EU cross-border jurisdiction clause should be assessed under Regulation (EU) 1215/2012, including Article 25 where applicable. A jurisdiction agreement must meet Article 25’s consent and form requirements, which include writing or an equivalent electronic communication providing a durable record. Article 25 does not require a general factual connection between the selected Member State court and the parties. Exclusive jurisdiction rules and other applicable limits still require checking. Without an effective choice, Article 7(1)(b) may be relevant to the place of performance; the Court of Justice’s Corman-Collins judgment (C-9/12) treated a distribution arrangement involving characteristic distribution obligations as a supply of services for the predecessor rule. That classification depends on characteristic obligations in the actual agreement; the place of performance must be established on its facts. Arbitration has a different framework. Consider where the distributor’s assets and records are, where performance occurs, language and evidence costs, and how a judgment or award would be enforced. The choice of foreign law cannot simply switch off overriding mandatory rules or EU competition provisions that apply to conduct in the market.

When does monthly legal support make sense?

A single distribution appointment may be handled as a defined drafting or review matter. Ongoing counsel is more useful where the supplier repeatedly appoints dealers, changes pricing and marketing programmes, adds product lines, reviews exclusivity targets or manages several customer and compliance escalations in Romania. The recurring work might include contract amendments, order-term consistency, brand-use approvals and a response process for product complaints. It should have a named business owner and an agreed scope, not an assumption that every dispute and authority proceeding is included.

Atrium’s monthly legal support for companies can be discussed once the expected volume and type of work are clear. The first step remains the concrete contract in front of management. It can reveal whether the business needs one negotiated agreement, a reusable set of distributor terms or continuing assistance across several relationships.

What should management send for a first review?

Start with a short description of the products, the intended Romanian territory and the proposed local partner. Attach or identify the current agreement and annexes, price and rebate schedule, distribution plan, product-compliance documents available for review and any existing customer or online-channel commitments. Note the proposed signing date and the issues that are still disputed. If some files are confidential or too large for the initial enquiry, describe them first and agree a suitable transfer route.

A lawyer’s first review can then identify whether the appointment is really distribution, map mandatory and negotiable issues, mark clauses that conflict with the commercial model and identify a small number of decisions for the supplier. The work product may be a clause mark-up, a negotiation matrix and an implementation note on notices, sales-channel controls and product responsibilities. This is a scope to agree, not a promise about the distributor’s acceptance or the outcome of negotiations.

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