Dificultatea financiară – condiție de accesare a procedurilor de prevenire a insolvenței. Aspecte practice
Financial problems – a requirement for access to insolvency prevention procedures. Practical aspects

Summary/Abstract: The confirmation of the reorganization plan approved by creditors involves an ample analysis of requirements imposed by art. 139 of Law no. 85/2014, regarding the ways in which creditors can accept the plan, as well as analysis of the actual possibilities to fulfil commitments assumed within the plan, based on the resources the company can obtain. As such, in the performance of their duty to check the legality and viability of the plan, the syndic judge is not limited to the inspection of the conditions that regard the legality of the plan, they are also required to check the opportunity of said plan. Previous cases have shown that, in order to decide on the legality of the plan, the syndic judge has the power to rule on various requests: challenges to the decision made by the creditor gathering, separately from the legality of the plan, challenges to said decision alongside the plan or challenges of the decision at a future moment, after the confirmation of the plan. While ruling on the challenges, the syndic judge can either dismiss as inadmissible the challenges issued against the reorganization plan while challenging the decision of the creditor gathering, or they can rule on the challenge, together with the confirmation request, or they skip ruling on the challenge against the creditor decision and rule on the confirmation request, with the understanding that the challenge is dismissed. If we add to the situation a hypothesis in which challenges against the creditor decision are decided and even issued after the confirmation of the reorganization plan, we can see that there is room for abuse of trial law by participants in the procedure. As such, we believe that the legal amendments brought through art. 1381 and art. 139 of Law no. 85/2014 are necessary.

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