CONFLICTUL DE INTERESE „ASOCIAT/ACŢIONAR VS. SOCIETATE”. LEGEA NR. 31/1990: ART. 79 ŞI ART. 127
CONFLICT OF INTEREST "ASSOCIATE/SHAREHOLDER VS. COMPANY". LAW NO. 31/1990: ARTICLES 79 AND 127

Summary/Abstract: Law no. 31/1990 regulates through several rules of law (e.g. Art. 79, Art. 127 etc.) the “conflict of interests” notion as a situation in which, on the one hand, the interests of a profit-making company (trade companies) are weighted, and on the other hand, the interests of a shareholder. In this regard, the company law imposes upon any shareholder in a conflict of interest with the company, regarding a certain subject, a non-performance obligation, respectively the obligation not to participate in the meeting and the deliberations (not to vote) covering the subject in respect of which there is a conflict of interests. Although the corporate prohibitions are formulated in unequivocal terms, in practice multiple interpretations are born regarding the legal remedies that could be applicable in the event of their violation (e.g. liability for damages, nullity, etc.). In this paper, we will briefly present: (i) the corporate legal framework that regulates the conflict of interests in the matter of Law no. 31/1990, (ii) the position of the Constitutional Court of Romania regarding Art. 127 of Law no. 31/1990, (iii) the points of view of the national courts (a. only the legal remedy regarding the payment of damages is applied, b. the sanction of nullity is also applied, c. the sanction of nullity can also be applied, (iv) our point of view regarding applicable legal remedies (a. damages in favour of the company, b. criminal sanctions, c. nullity of the deed concluded in a state of conflict of interest and d. damages in favour of the other shareholders), (v) conclusions.

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