December 2018 - Quick Consulting

Nordsee vs Eco Swiss cxase law effects and explanations

Module: Dreptul UE si Arbitrajul

Florin Vasilescu

Introduction Nordsee vs Eco Swiss case law

One may say that EU competition law enforcement through international commercial arbitration suffers from a kind of imbalanced control mechanism; if compared with normal private enforcement. This stems from the case law of the Court of Justice of the EU. In Nordsee, the Court stated that arbitrators cannot refer a question to it for preliminary ruling.

• It is immediately obviously that the image of the Nordsee and Eco Swiss judgement is quite distinct from ordinary judicial EU (competition) law enforcement; which is based on the respective roles of the national and Eu Courts and on the preliminary reference mechansim.

It is very easy to interpret or view that, in the Nordsee case, the Court was confronted with the difficulty of the exact definition of the scope Art. 267 TFEU; and in particular the question of how to intercept the notion of “court or a tribunhal Member State”

 Art. 267 TFEU: The Court of Justice of the European Union shall have jurisdiction to give a preliminary ruling on:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts adopted by Union institutions, bodies, offices or agencies;

Where such a matter is raised before a court of a Member State, that court may, if it considers that a decision in that regard is necessary in order to give judgment, request the Court to give a ruling on this issue.

If such a question is raised in a case pending before a national court whose decisions are not subject to any domestic remedy; that court is necessitate to bring an action before the Court.

Where such a matter is raised in a case pending before a national court concerning a person subject to a custodial measure; the Court shall act as quick as possible.

Force of arbitration

The problem arose from the force of the arbitrator to render an award haveing the same power of res judicata as judgments of State courts or tribunals under German law. The fundamental aim of the preliminary reference procedure, which is to ensure the uniform application of  EU law, was at stake and it may be affirmed that, by concluding that an arbitrator is not to be considered a “court or tribunal of a Member State”, the Court decided to run the risk of undermining that system.

By saying that it lacked jurisdiction to respond to an arbitrator, the Court of Justice opt to limit the functioning of the preliminary reference mechanism, permiting only the judge entrusted to review the validity of the arbitral award to refer a preliminary reference question. In some cases judicial review of an award might never occur, most evidently because the parties deem it unnecessary. Where judicial review does take place, the procedure may suffer from a number of limitations, depending on national procedural rules. In particular, such review will not cover the merits of the award.

Explications

One may wonder why the Court of Justice decided to run the risk of undermining the preliminary reference mechanism, which had already proved to be an invaluable and extremly precious tool to ensure the uniformity of the application of Community law. A series of interpretations can be developed, but for our purposes the important point is that the aim of the Court might well have been to secure what may be called the purity of the preliminary reference mechanism by leaving to the remit of proper national judges the power to employ it. With Nordsee, then, the Court chose it’s interlocutors. But litigation before arbitrators was gaining growing significance in transnational dispute resolution. Therefore, the solution provided in Nordsee had to be completed.

These ideas are inspired by Robert Cisotta’s article:

1.Regulating the prejudicial issue in the Treaty on the Functioning European Union (TFEU)

Under Art. 267 TFEU the national courts have the right, namely the obligation to ask the Court of Justice of the European Union to do so gives a preliminary ruling on matters of law.

Article 267 TFEU stipulates:

The Court of Justice of the European Union shall have jurisdiction to give judgment with regard to:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts adopted by the institutions, bodies, offices or agencies of the Union;

If such a matter is raised before a court in a Member State, this court may, if it considers that a decision in this issue is necessary in order to give a ruling, to ask the Court to do so pronounced on this issue.

If such a point is raised in a case pending before to a national court whose decisions are not subject to any right of appeal it is for that court to bring the matter before the Court.

If such a point is raised in a case pending before to a national court on a person subject to a private measure of freedom, the Court shall decide as soon as possible.

2. The (partly) binding character of the CJEU’s preliminary ruling

The preliminary ruling of the CJEU is binding on the referring court; but only in relation to the dispute in which the question was put preliminary.

Where the CJEU has been seised by a court whose decision it is subject to appeal; the CJEU ‘s preliminary ruling is also mandatory the court hearing the appeal in this dispute.

In fact, the CJEU’s decision is binding on everyone’s courts Member States; because the court intends to interpret the rule differently European Court of Justice; which the CJEU has already interpreted, has the obligation, prior to its decision, to apply to the Court of Justice of the European Union; motivating its divergent opinion and requesting a new ruling on the matter under discussion (“referral of divergence”).

3. The scope of art. 267 TFEU

Article 267 TFEU applies to:

– all courts of the Member States, and

– in all cases,

– including emergency procedures.

To the extent that art. 267 TFEU provides for the obligation to refer the CJEUby the preliminary question procedure; it will not be analyzed whether by the notification The CJEU would lead to a delay in the trial. For accelerating purposes proceedings before the CJEU, art. 267 par. 4 TFEU provides that this court should shall decide as soon as possible when the matter in question is invoked pending proceedings before a national court on a person subject to a deprivation of liberty measure. In other cases, the question procedure may be made as a Preliminary Emergency Procedure (PPU); at the request of the national court; (in accordance with the provisions of Article 104 of the Rules of Procedure of the Court); when the circumstances relied on by the court national justification for the special urgency in the ruling on the question raised by 3 preliminary title. In this case, the court will immediately determine the term for judgment.

4. Division of attributions between the CJEU and the national court

The CJEU has only the obligation to interpret Community law, not a its application in individual individual cases.

The CJEU develops an abstract premise, taking into account the peculiarities case. The Court will make no appraisal on the merits of the case and will not pronounce it judgment on the case. The latter falls within the exclusive jurisdiction of the courts national.

5. Meaning of the request for a preliminary ruling

Significant significance of compliance by the national court with the obligation to request the CJEU to give a preliminary ruling (in accordance with Article 267 TFEU); it follows from the purpose of the question referred for a preliminary ruling:

• Ensure uniform and harmonized application of Community law at EU level European = preserving the unitary character of Community law

To create and ensure a single area of ​​justice in the Union It is necessary for EU law to be understood and applied in a unitary manner in all Member States. The only means the EU has for this purpose is the procedure the prejudicial issue.

If the interpretation of  EU law would remain at the discretion of national courts; whether they should decide on validity and interpretation acts adopted by the institutions, bodies, offices or agencies of the Union would be reached legal uncertainty within the Union; as courts in the Member States would could give a different interpretation to the same issues.

• The link between European Union law and national law

As a rule, the proceeding of the question raised concerns compatibility between certain national rules and European law, and the answer to this question depends on how to interpret relevant European law. Into the 4 according to art. 267 TFEU, it is not for the CJEU to decide on legality the measures adopted under national law or its interpretation.

• Ensuring the rights conferred on the person by European Union law

Obligation of the court whose decision is no longer subject to appeal provided for by national law to seek a preliminary ruling under the conditions provided in art. 267 TFEU; also serves to avoid the situation in which it could be harmed rights conferred on the individual by European Union law.

6. Obligation to refer the CJEU

a) The court whose decision in the specific case is not subject to any means an internal law attack is required to address the CJEU; when they are meeting the conditions provided by art. 267 TFEU, that is to say; if it considers that a decision of the Court of Justice of the European Union is necessary to pronounce it decision on:

• the interpretation of the Treaties;
• the validity and interpretation of acts adopted by the institutions, bodies, offices or Union agencies.

b) The “divergence” of the CJEU

National courts are required to comply strictly with the preliminary ruling pronounced by the CJEU. Where the national court wishes to make a different decision a preliminary ruling by the CJEU; is required to refer the case to the CJEU by request preliminary, according to art. 267 TFEU, setting out the reasons for the court is intended to deviate from the preliminary ruling in question. This one the obligation to refer to “divergence” exists irrespective of whether the national court; is a court of last resort or its judgment can be appealed.

The same applies if the court wishes to suspend the execution of a national administrative act based on European Union law.

December 2018 - Quick Consulting

Change your Headquarters

Changing Your Company Headquarters in Romania: Legal Assistance and Step-by-Step Guidance

As a business owner in Romania, changing the registered office of your company is a common procedure that requires careful attention to legal requirements and documentation. Whether you are relocating your company’s headquarters within the same county or to a different county, our law firm provides expert legal services to ensure a smooth and efficient process.

Changing Headquarters Within the Same County

The process to change your registered office within the same county involves several straightforward steps:

1. Decision of the Sole Associate or General Meeting:
   The decision to move the company’s headquarters is made by the sole associate or the general assembly of shareholders. This decision must amend the constitutive act (the company’s founding document) by updating the address of the registered office.
2. Updating the Founding Act:
   The constitutive act must be revised to reflect the new registered address.
3. Submission to the Trade Registry:
   A file containing the following documents must be submitted to the Trade Registry:
   • Application
   • Model 3 form
   • Decision of the general assembly (original)
   • Updated constitutive act
   • Proof of use of the new space (e.g., rent contract, ownership act, or accommodation agreement)
   • Original registration certificate The cost for registration varies from 122 RON to 200 RON, depending on the size of the decision. The publication on the official monitor is charged based on the number of characters.
4. Important Notes:
   Make sure the application is completed with no mistakes, as even small errors (such as missing characters or incomplete addresses) will lead to the rejection of the file. Once submitted, documents can be collected in two days.

Changing Headquarters to a Different County

When changing your company headquarters to a different county, additional steps are required but can be done easily online.

1. Preliminary Operations:
   You need to request a company name availability check and/or reservation. This process can be done online and ensures your new address is eligible for registration.
2. Submission of Required Documents:
   The following documents are needed for registration:
   • Application for registration
   • Typical declaration (original), signed by the associates or administrators (Model 3)
   • Proof of availability check and company name reservation (original)
   • Where applicable, an agreement to use the designation as specified in Law no. 26/1990
   • Decision from the general meeting of shareholders or decision of the sole shareholder to change the registered office address (article 2 of the constitutive act must be amended to reflect the new address)
   • Document proving the right to use the new office space (rent contract, ownership certificate, etc.)
   • A request to ANAF for the certificate stating that no other documents for the use of the building have been registered
   • Statement regarding the conditions of the headquarters, in case the ANAF certificate indicates other registrations for the building
   • Certificate of Registration (original)
   • In certain cases, special opinions or notifications may be required, such as the modification of collective buildings under Law no. 196/2018, or other specific legal requirements.
3. Submission and Publication Fees:
   After submitting the application, a publication fee for the official monitor is required. The fee ranges between 122 RON and 200 RON, depending on the size of the decision, with additional charges based on the number of characters used for publication.

Why Choose Our Law Firm for Changing Your Company Headquarters?

Our experienced legal team will guide you through every step of the process, ensuring full compliance with Romanian regulations. We provide complete services for:

• Preparing and submitting documents
• Legal representation at the Trade Registry
• Ensuring compliance with local and national laws
• Handling any additional legal requirements, such as obtaining necessary certificates or permissions

We understand the complexity of legal procedures and the importance of accuracy in business operations. Trust us to handle your company’s headquarters change efficiently, with minimal hassle and expert support.

Contact Us Today

Need assistance with changing your company’s headquarters? Our team is here to help. Contact us today to learn more about how we can ensure a smooth transition for your business.

adquarters in the same county

Changing headquarters should follow very simple steps:

1.The only associate / association takes the decision to move the registered office. The undersigned, together with the identification data, decides: 1. to change the registered office from x to y. The art. 2, the constitutive act is amended (it is necessary to amend the article stating the address of the registered office)
2.The Founding Act must be updated.
3.At the trade registry, a file containing: application, model 3, decision, updated act, document proving the use of space (rent, comodate, etc.), the ownership act of the space, the original registration certificate. The decision shall be taken in two copies, one original and one copy for publication on the official monitor. The cost is between 122lei and 200lei depending on the size of the decision. Posting on the official monitor is charged on the number of characters.
4.There is an anap map. The application for registration together with the document proving the use of the space (rent, goods, etc.) and the act of ownership of the space.
5.After 2 days of filing, the documents may be lifted.

Careful! For any mistake, the file is rejected. (missing letters, incomplete address, etc.)

Change your headquarters to another county

Preliminary operations

It is very simple and can be done online. Request for availability check and / or business reservation.

Registration

1.Application for registration
2.Typical statement (original), signed by associates or administrators, model3.
3.Proof of availability check and reservation of the company (original);
4.Where applicable, the agreement to use the designation provided in Art. 39 of the Law no. 26/1990, republished, as amended and supplemented (original);
5.Decision of the general meeting of shareholders / shareholders or decision of the sole shareholder / CA / direction. The undersigned, together with the identification data, decides: 1. to change the registered office from x to y. The art. 2, the constitutive act is amended (it is necessary to amend the article stating the address of the registered office)
6.The document attesting the right of use in the headquarters space,
7.The request to ANAF to obtain the certificate issued by the competent financial administration stating that no other document for the alienation of the right to use the same building for a fee or free of charge has been registered for the building with its registered office
8.Statement according to the conditions of the headquarters if the certificate issued under paragraph 7 shows that other documents attesting the alienation of the right to use the same building with its registered office are already registered with the social financial administration
9.Certificate of Registration (original)
10.If appropriate:
the opinion on the modification of the purpose of collective buildings with housing regime, provided by Law no. 196/2018
other prior notifications provided by special laws
special authorization (in authentic form), lawyer or delegation for persons designated to carry out legal (original) formalities;
11.After submitting the file, you must pay the publication fee on the official monitor. The cost is between 122lei and 200lei depending on the size of the decision. Posting on the official monitor is charged on the number of characters.

Copies must be certified. Any mistake will be responsible for rejecting the file!

December 2018 - Quick Consulting

Registration LTD (SRL in Romania)

Company registration in Romania is done in the trade register by creating a file with all the necessary documents and forms. The conditions for setting up a company are governed by the Companies Act 31/1990.

Other relevant laws are:

Law No. 297/2004 on the capital market
Law no. 26/1990 Registry of Trade Register
Law no.346 / 2004 on the stimulation of the establishment and development of small and medium enterprises
O.G. no. 51/1997 regarding the leasing operations and the leasing companies
Civil Code – Law no.287 / 2009 (extract)

Steps to set up

Before setting up your company, you need to think about three variants for the name of the company; check the availability and book it at your online trade register. The name of the company will be followed by the initials “S.R.L.”

When you go to the trade register desk; in addition to the county court where your business will have its registered office, you must have the complete file.

The documents required for registration in the trade register, the authorization of the operation and the tax registration of the limited liability company; (also valid for the company in a collective name and in a simple partnership):

1.Request for registration – is a form that can be downloaded from the onrc site; or it can be taken from information from the Trade Register building
2.Annex 1 on tax registration
3.Typical Statement Declaration that can only be signed by Associates or Administrators; as the case:
4.Reservation of the company name
5.Agreement on the use of the name (where, for example, it is necessary to use the word “Romania”)
6.Statement on the sole responsibility of a single associate
7.The constitutive act that includes the company contract and the statute. Founders may not be incapable or have a fiscal record.

The constitutive act or only the statute for the limited liability company shall include:

a) identification data of associates; Simplified partnerships will also include limited partners;

b) form, name and registered office – which can be anywhere in the country without affecting the company’s activity;

c) the object of activity of the company, specifying the field and the main activity; any CAEN codes may be added at no additional cost; for activities requiring prior authorization or additional conditions are required; the file will be rejected for failure to comply with those conditions at the time of filing the file; so if you do not perform those activities better do not enter those CAEN codes. For example, in the case of an accounting firm, the administrator must be an accounting expert CECAR member.

d) the share capital, mentioning the contribution of each associate, in cash or in kind, the value of the contribution in kind and the way of evaluation. Limited liability companies shall specify the number and nominal value of the shares; as well as the number of shares attributed to each associate for his or her contribution;

e) associates representing and managing the non-affiliated company or managers; their identification data, the powers they have been granted and whether they are to exercise jointly or separately;

e1) in the case of limited liability companies, if they are appointed as censors or financial auditor; the identification data of the first censors, respectively the first financial auditor;

f) the share of each associate in benefits and losses;

g) secondary offices – branches, agencies, representations or other such units without legal personality; when it is established with the society, or the conditions for their subsequent establishment; if such an establishment is envisaged;

h) the duration of the company; it is best to put unlimited duration in time unless you have other interests.

i) the dissolution and liquidation of the company.

9.Accidence attesting the right to use the space (the contract for rent or rent) Attached the space act (purchase contract, concession, etc.).

Social headquarters

A formal social office can also be used at the law firm. A legal assistance contract is made for a maximum of one year; legally can not. But after one year you can move your headquarters to another law firm for another year. This formal headquarters is formal; in the sense that it is used only for receiving correspondence; no one offers and spits

A formal social office can also be used at the law firm. A legal assistance contract is made for a maximum of one year; legally can not. But after one year you can move your headquarters to another law firm for another year. This formal headquarters is formal; in the sense that it is used only for receiving correspondence; no one offers real space. Company documents do not necessarily have to be in the registered office in case of control. No law obliges societies to do so; nor is there an advantage if the company’s documents are found at the headquarters. Together with the legal assistance contract for hosting a registered office, the decision to appoint a lawyer is also needed.

10. Evidence of depositing the share capital at any bank in Romania. The constitutive document together with the proof of the name reservation is presented to any bank for the opening of a share capital account. After the account is opened, the money is deposited (minimum 200 lei) and the receipt is filed.

11. Identity cards or passports of associates and administrators.

12. For foreign citizens, two extra forms (foreign capital and tax vector)

Information

The file is filed in a file with the file itself. In the file the documents must be in the order accepted by the trade registry and numbered; from the beginning to the beginning. Copies of documents must be certified. Any mistake in the file will be rejected (missing letters, if you do not check something in the form, etc.). After filing the file you have to pay a fee of £ 122. The day after filing, the file is resolved. The third day can be released after 14:00 until 16:30.

After setting up the company, you are required to have an accountant holding your company account even if you do not have activity.

PFA registration

When setting up a PFA, you need to take into account some aspects. It is NOT mandatory to hire an accountant; you can have an entrybook output. You may not write more than 5 CAEN codes when declaring your activity. You must have a diploma in the exercise of the profession that you will exploit through the PFA created. You will need proof of experience in the field. PFA can not host its registered office at the law firm.

Application for registration
Annex 1 on tax registration
Typical declaration on the ground that he / she does not work at the headquarters; secondary or off-site offices, model 1; or attesting the fulfillment of the legal conditions of operation provided by the special legislation; in the sanitary, veterinary, environmental and occupational safety (model 2)
Identity card or passport to the PFA holder
Declaration on your own responsibility regarding the fulfillment of the legal conditions for carrying out the activities as an authorized person
The document certifying the right of use on the professional premises / workplace; – any legal act giving the right to use and / or attesting to the special affection of the space; in a photocopy certified by the Holder for compliance with the original;