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Art. 1 - The current Emergency Ordinance sets up the legal framework for the sale of shares issued by companies and held by the State or an authority of the public local administration, as well as for the sale of assets held by companies where the State or an authority of the public local administration is a shareholder, based on the following principles:
Art. 4 - (1) The Ministry of Privatization is an authority of the respective public central administration responsible to draw up the policy of privatization, the control and co-ordination of the process of privatization.
(2) In this respect, the Ministry of Privatization fulfills the responsibilities mentioned hereinafter:
(4) Organization and operation of the Ministry of Privatization are established by governmental decision.
Art. 5 - (1) The State Ownership Fund is a public commercial institution, organized as a non-typical closed investment funds under the authority of the Ministry of Privatization and its main role is to sell shares held by the State or public local administrative authorities.
(2) The activity of the State Ownership Fund is based on a program of privatization endorsed by the Ministry and approved by the Cabinet.
Art. 6 - (1) The management of the State Ownership Fund is provided by a Board of Administration made up of 11 members, trained and experienced professionals in the commercial, financial, legal or technical field. One of them is a Secretary of State for the Ministry of Privatization and two are leaders of the principal trade unions.
(2) The President and the other members of the Board of Administration are appointed by the Prime-minister at the proposal of the Minister of Privatization. The duration of the mandate of the members of the Board of Administration is established by appointment decision. The Board of Administration is legally assembled and operates from the moment when nine members have been appointed by Prime-minister decision.
(3) The members of the Board of Administration can be revoked by the authority that appointed them.
(4) The responsibilities of the Board of Administration, the carrying out of the meetings of the Board, responsibilities of the General Executive Director as well as wage payment of the State Ownership Fund staff are established by governmental decision.
Art. 7 - The control of financial-accounting operations of the State Ownership Fund is provided by three auditors. The auditors are appointed and revoked by the Prime-minister at the proposal of the Minister of Finances.
Art. 8 - (1) The State Ownership Fund exercises, in the name of the State or the authorities of the public local administration, all the rights of the shareholder with the commercial companies mentioned in art. 2 in the current Emergency Ordinance.
(2) In this respect, the State Ownership Fund has responsibilities as mentioned hereinafter:
Art. 9 - (1) The revenues resulting and cashed by the State Ownership Fund from the sale of shares issued by the commercial companies, and from dividends are deposited in the State budget, after deduction of the amounts stipulated in the budget of revenues and expenditures approved by the Board of Administration of the State Ownership Fund.
(2) The expenditures cannot overpass 20% of the amounts obtained and cashed from sales, and include, without being limited, the following items:
(2) The Court of Accounts exercises exclusively the subsequent audit over the financial resources that are considered as income to the State budget or the local budgets, as well as resources from the budget of the State Ownership Fund.
(3) The members of the Board of Administration and the State Ownership Fund staff are not liable for the operations of the State Ownership Fund, except for the case when the operations are considered as offences, or serious civil offences.
(4) The members of the Board of Administration or the State Ownership Fund staff are individually liable, as the case may be:
(2) The report of the State Ownership Fund and including the income statement and expenditures budgetount are published in the Romania Official Gazette, part IV.
Art. 12 - The State Ownership Fund concludes its activity when
the Parliament ascertains the privatization process concluded, based on
information provided by the Cabinet.
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Art. 13 - (1) The shares managed by the State Ownership Fund are sold to Romanian and foreign individuals and legal entities through:
(3) The implementation of methods of privatization mentioned in par. (1) shall not exclude the possibility of converting debts into shares and rescheduling the debts in agreement with the creditors, or the sale of shares on the international capital market through investment banks. The implementation of methods of privatization mentioned in par. (1) letters a)-d) should not exclude the possibility to convert public debt into shares, in case the state issued convertible bonds. In this particular case, when convertible state bonds are issued, the following items will be mentioned in the prospectus: type of share, issuer, interest, paid transfer of shares by the State Ownership Fund, and other information, as the case may be.
Art. 14 - (1) The sale through any of the methods stipulated by art. 13, par. 1, letters a) – c) compel the State Ownership Fund to draw up an irrevocable offer, valid at least 30 days, but no more than 180 days after it was made public.
(2) The offers are submitted at the Headquarters of the State Ownership Fund, at its local branches, on the stock exchanges or other domestic or international organized markets, as the case may be.
(3) The sale shall be preceded in all cases by the drafting of a presentation file. While drafting the file certain elements shall be considered, such as trademarks acknowledged nationally or internationally, as the case may be. In the case of companies where the State or a public local authority holds no more than 10% of the total number of shares, the State Ownership Fund shall not draft the presentation file. In the case of companies listed on the stock exchange or other organized markets, the offer shall be drawn up based on the prospectus, in compliance with norms and regulations of the National Securities Commission.
Art. 15 - The State Ownership Fund is entitled to conclude a contract with Romanian and foreign legal entities or individuals, for professional assistance services in the field of privatization. The State Ownership Fund can also conclude contracts with broker/dealer companies for the sale of shares, through public offerings on the stock exchange or other organized national or international markets, as well as with investment banks for the transfer and sale of a portfolio of shares on the international capital market based on depository receipts or other financial tools used on the respective market.
Art. 16 - (1) To obtain the ownership right for shares issued by a company where the state or an authority of the public local administration is a shareholder, the staff, the members of the Board of Administration or the pensioners who worked for the company before they retired can establish associations in compliance with the provisions of the current section.
(2) The association is a non-profit legal entity of private law, including entities mentioned in the previous paragraph, with the purpose of obtaining shares issued by commercial companies.
(3) Within a company one or several associations can be established, including:
Art. 18 - The procedure of establishment and liquidation of a company, the structure of an association, rights and liabilities of the members are stipulated in Law 21/1924 and the relations between an association and the company within which the association is established, are regulated by the governmental decision.
Art. 19 - (1) An association acquires shares issued by one of the companies mentioned in art. 2 according to one of the following forms of payment:
(3) The shares can be sold at the market price based on demand and supply, according to one of the methods stipulated in art. 13, par. (1), letter b) and c) of the current Emergency Ordinance.
(4) The dividends resulting from shares purchased by an association, according to the current Emergency Ordinance are exempted from taxation during the execution of the contract. The revenues thus obtained are transferred to the association and used exclusively for payment of the installments, interests and reimbursement of credits of the association, necessary to purchase shares.
Art. 20 - (1) In case, subsequent to the conclusion of the sales-purchase contract between the State Ownership Fund and the association, some of the members of the association do not pay the respective advance or the following installments, they will make the shares available to the association, to be redistributed in the association. Redistribution of shares can be made only with the approval of the Shareholders General Meeting of the association.
(2) In case an association does not pay on due term two successive installments, the sales-purchase contract is cancelled by right and the unpaid shares can be sold by the State Ownership Fund to another association established within the same company, or to a Romanian or foreign legal entity or individual of private law, according to one of the possibilities mentioned in art. 13, par. 1, letters a)-c) in the current Emergency Ordinance.
(3) For the case mentioned in par. 2 of the current article, the facilities granted to the initial buyer are maintained only if the buyer is another association. If the shares are purchased by a Romanian or foreign legal entity or an individual of private law, the price shall be paid entirely.
Art. 21 - (1) Shares purchased in compliance with the provisions of this section are registered in the Registry of shareholders and shall be registered in the Register of Commerce under the category "shareholders", until full payment of the price, benefiting from voting right in the Shareholders General Meeting, according to the type of shares purchased: ordinary or preference shares.
(2) Shares purchased in compliance with the provisions of the current section are transferred to the members of the association only after entire payment of the price.
(3) For the shares sold only with payment by installments, according to the current Emergency Ordinance, a pledge is set up for the unpaid shares.
Art. 22 - (1) The shares acquired by a company can be used to guarantee the credits incurred.
(2) The dividends distributed by the company for the shares acquired by an association and encumbered of credits, shall be compulsorily used for paying the credits.
Art. 23 - The association is wound up in one of the following cases:
Art. 24 - (1) The companies where the State or an authority of a public local administration is a majority shareholder can sell shares of its assets to legal entities and individuals of private right, at the initiative of the Board of Administration of the company and with the agreement of the State Ownership Fund, or at the initiative of the State Ownership Fund (its representative is granted a mandate in this respect) or in the Shareholders General Meeting. Sale can take place only if there is no interference with the privatization of a company or an entire asset.
(2) The sale of assets as stipulated in par. (1) can be made through open outcry or sealed bid auctions, adjudication at the market price, based on demand and supply.
(3) The procedure stipulated in par. (1) and (2) is also applicable in the case of conclusion of a leasing contract and its object is making use of the assets owned by companies where the State or an authority of a public local administration is a majority shareholder, if it is not stipulated otherwise in the leasing contract.
Art. 25 - The State Ownership Fund is obliged to draft periodically, based on information provided by every company where the State or an authority of a public local administration is a majority shareholder, the list of assets offered for sale and made public in the print media.
Art. 26 - (1) The members of the Board of Administration and the Executive Managers of the selling companies cannot take part in the sale of assets owned by a company where the State is a majority shareholder.
(2) The amounts resulting from the sale of assets of the companies where the State or an authority of a public local administration is a majority shareholder shall be used by the companies, according to the following ranking, and only for :
Art. 27 - (1) The companies mentioned in the current section, with ongoing leasing, rental or partnership contracts could sell or conclude leasing contracts for fixed assets with an irrevocable sales clause, through direct negotiation with the lessees or partners, in case they invested in assets they already make use of. In this case, the value of investments based on the valuation report accepted by both parties, is deducted from the sales price.
(2) The sale takes place with the approval of the State Ownership Fund.
Art. 28 - The companies where the State or an authority of a public local administration, is a majority shareholder, with the approval of the State Ownership Fund, under the conditions set up by the Boards of Administration, could sell shares by installments from business entities – individuals, family partnerships authorized by the decree-law 54/1990 as adjusted, and they are included in the category of small and medium companies, according to the following requirements:
Art. 30 - The classification of small and medium companies is
based on criteria set up by the Council for Reform.
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Art. 31 - (1) The State Ownership Fund is compelled to include in the sales offer minimum accepted goals, in case the transfer of ownership rights commits the buyer to comply with the environmental protection requirements. The State Ownership Fund will include in the sales contract a clause referring to the buyer taking the responsibility to accomplish the minimum accepted environmental goals.
(2) Provisions of par. (1) are applicable in case the State Ownership Fund transfers, under the same contract, ownership rights to a package of shares representing more than half of the total voting rights in the Shareholders General Meeting.
(3) Minimum accepted environmental goals will also be included in the sales contracts having the assets as an object, if these assets are or were part of a set of assets of a commercial company that has an activity qualified, according to environmental legislation in force, as an activity with negative impact on the environment. The classification of these assets, depending on the activity having impact on the environment, is to be made by methodological norms issued in execution of the current Emergency Ordinance.
Art. 32 - The State Ownership Fund may agree with the investor
for the latter to set a guarantee of the sales price by opening a bank
account, aiming to fulfill the minimum accepted environmental goals, as
well as for the cases when, subsequent to purchase of a package of shares,
circumstances engaging patrimonial liability of the investor with respect
to environment protection, may occur.
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Art. 33 - (1) The following actions are considered as violations of the norms in the current Emergency Ordinance, unless they are not criminal offenses according to penal law:
(4) For the assertion of violations and enforcement of penalties mentioned in par. (1) letters a)-f) the Ministry of Privatization is liable, as well as the staff of the local authority for environmental protection, in case the environmental account hasn’t been drawn up, or the National Securities Commission, for the violation mentioned in par. (1) letter f), as the case may be.
(5) Fines mentioned in par. (2) are to be periodically adjusted by Government Decision.
(6)The provisions of Law 32/1968 are applicable to violations mentioned in the current article.
Art. 34 - (1) If joint stock commercial companies are established in strategic fields of the national economy, such as: production and distribution of energy, heat and nuclear power, mining and natural gasses, oil processing, post, telecommunications, railways, the Government can decide either to keep a Golden Share, or to sell the majority stock to portfolio investors.
(2) The Golden Share grants the following rights to the State:
Art. 35 - (1) The companies that own land under lease, that is undefined from a legal stand point, they undergo privatization without including the land value in the social capital. Until the land is legally defined, the companies have a right of concession of the land, through decisions of local and central authorities of public administration, as the case may be, in exchange for dues. After defining the legal matters, the land already used by the above companies, will be used in compliance with the right over the land area corresponding to the owned assets, or shall be rented or sold to them, depending on the category of classification: land of the public or private sector of the State.
(2) Companies that have been granted certificates assessing the ownership right of land will be privatized and the value of land will be included in the social capital. The shares referring to the extended value of the social capital belong to the State Ownership Fund and the other shareholders, as the case may be, according to the date when the land was registered in the Land Book and the moment when the shareholder was granted the title.
(3) The provisions mentioned in par.(1) and (2) are also applicable for the land within the company area and undefined from a legal stand point. In this particular case, the authorities of the public local administration shall issue ownership titles within three months after the enforcement of the current Emergency Ordinance.
(4) The provisions of par. (1) are not applicable in the case of land already mentioned in art. 9, art. 21, art. 34, art. 34 par. (2), art. 361 and art. 362, art. 40 par. (1), art. 411 and art. 42 in the Land Law 18/1991, with adjustments and additions included in Law 169/1997, published in the Romanian Official Gazette no. 299 on November 4, 1997, Part I.
Art. 36 - (1) The ongoing privatization procedures at the date when the current Emergency Ordinance was enforced, continue with acceptance of the validity of documents and steps taken so far, in compliance with previous legal provisions. The following procedures are considered as ongoing privatization procedures: sale of shares, if approved by the Board of Administration of the State Ownership Fund, and the sale of assets in case the auction ads have been published. The offers that are not valid anymore due to not undergoing the direct negotiation stage, are extended by 30 more days.
(2) The facilities concerning the free amounts at the disposal of the privatized companies, as stipulated by Law 55/1995 as adjusted, including the system of transfer to the state budget, Special Funds for Development at the disposal of the Government and the local budgets, according to Emergency Ordinance 15/1997 and Emergency Ordinance 59/1997, are applicable only in the case of contracts concluded until the date when the current Emergency Ordinance was enforced.
(3) The provisions of par. (2) are also applicable to the companies privatized through direct negotiation, without a Task Book, as well as in the case of companies privatized and sold off to foreign investors who had not been granted an Investor Certificate, or the reimbursement of free currency sums was mentioned.
(4) In the case of contracts that are being negotiated or circumstances when the stage of selection of the potential buyer is not complete, based on the method of privatization set up initially, the State Ownership Fund can agree with the investor upon concluding contracts without including the facilities referring to amount at the disposal of the privatized company. In this particular case, the prospective debts of the company to be privatized are deducted from the price of sold shares, without influencing the value of investments that the buyer commits himself to, and the possible disagreements on the debts will be spread out with the creditors agreement.
(5) The amounts in the current accounts and bank deposits opened and set up by the State Ownership Fund, along with interests resulting from the respective amounts, are in accordance with the legal framework set up, until the enforcement of the current Emergency Ordinance.
Art. 37 - (1) Privatization of banks follows the legal framework set up by Law 83/1997. The sale of shares issued by banks where the State is a shareholder is undergone according to one of the methods mentioned in the current Emergency Ordinance and Law 52/1994 concerning securities and stock exchanges. When selling, the State can choose to keep a Golden Share, under the provisions of the current Emergency Ordinance.
(2) The commissions appointed by governmental decision for the privatization of the Romanian Bank for Development, Bancpost, and Banca Agricola (Bank for Agriculture) shall carry on their activity based on Law 83/1997. The individuals appointed as members of the Commission on behalf of National Agency for Privatization shall represent, starting with the date of the enforcement of the current Emergency Ordinance, the Ministry of Privatization.
Art. 38 - (1) The Regies Autonomes, commercial or national companies resulting from re-organization of Regies Autonomes remain under the co-ordination of the competent ministries until the date scheduled in the annual program of privatization..
(2) The following Regies Autonomes are under the responsibility of the responsible ministries and undergo restructuring, as the case may be: "Romanian Official Gazette", "Multiproduct", "National Printing House", "National Mint House", "National Armory", "State Protocol", "Rami-Dacia", "Romsilva", Romanian Waters", National Administration of Roads" and "Romtehnica" undergo restructuring and are transformed, as the case may be, in national agencies established as regulating authorities or national companies, based on the administrative document issued at the proposal of the Ministries.
(3) The Regies Autonomes mentioned in par. (3) can be restructured by putting apart some additional activities that will be included in the object of activity of other companies.
Art. 39 - (1) The amounts resulting from the sale with payment by installments of shares issued by companies where the State is a shareholder, are due on the date when the State Ownership Fund is not operational anymore; the respective restructuring credit installments granted according to Law 58/1991 and Law 55/1995 and due after this date, as well as other financial revenues owed to the State Ownership Fund are transferred to the State and deposited to the State budget.
(2) Before the establishment of the State Ownership Fund and the five Private Ownership Funds 70 per cent of the amounts resulting from the sale (payment by installments) of shares of companies privatized through privatization pilot-programs initiated by the National Agency for Privatization, are owed to the state after the State Ownership Fund and the Private Ownership Funds or the companies resulting from transformation of the funds cease operations.
(3) Observing the execution of the contracts for the sale (payment by installments) of restructuring credits granted and on due term, as well as other financial revenues owed to the State Ownership Fund, after the date when operations cease, are the responsibility of the Finance Ministry through its branches.
Art. 40 - (1) On the date when the current Emergency Ordinance is enforced, the Romanian Agency for Development becomes the Department for Promoting Foreign Investments and it is included in the structure of the Ministry of Privatization, headed by a Secretary of State. On the same date, the National Agency for Privatization ceases operations. The staff of the National Agency for Privatization, except for the staff working at the General Division for Strategy and Control, General Division for Privatization and Concessions, the General Division for International Technical Assistance, the Division for Local Co-ordination, Economic Division and Department of Services are transferred under the responsibility of the Ministry of Privatization and considered as transferred to the Reform Council due to work decision. On the same date, the Agency for Restructuring ceases operations and its staff is transferred to the State Ownership Fund due to work decision.
Art. 41 - The provisions of the current Emergency Ordinance are also applicable to limited liability commercial companies where the State is a partner, except for art. 13 par. (1) letter a) and d).
Art. 42 - Public institutions, Regies Autonomes and companies where the State or an authority of the public local administration is a shareholder are not entitled to purchase shares or assets, otherwise they undergo penalties of annulment of the sales-purchase contract, except for the provisions in art. 3 letter f).
Art. 43 - Within at most 60 days after the current Emergency Ordinance is published in the Romanian Official Gazette, the status of commercial assets included in the State assets through laws and other norms of nationalization, will be set up.
Art. 44 - (1) On the date when the current Emergency Ordinance is enforced, Law 58/1991, Law 77/1994, Law 55/1995, with subsequent adjustments and additions, art. 2 par. (3), art. 5, art. 6 par. (1) and (8), as well as art. 12 par. (1) in the Emergency Ordinance 30/1997 approved and adjusted by Law 207/1997, as well as art. 4, art. 5, art. 7 par. (2) letter e), art. 11, art. 12, art. 14 par. (2) and art. 17 par. (2) in Law 83/1997, published in the Romanian Official Gazette no. 98 on May 32, 1997, Part I are abrogated.
(2) Within 15 days after the enforcement of the current Emergency Ordinance, the Cabinet approves the Methodological Norms for the implementation of the current Emergency Ordinance.
