Efectele abrogării art. 192 alin. (2) din Legea nr. 31/1990 asupra elementului intuitu personae al societăţii cu răspundere limitată
The Effects of the Repeal of art. 192 paragraph (2) of Law no. 31/1990 on the Intuitu Personae Element of the Limited Liability Company

Summary/Abstract: General meetings adopt resolutions (a term used interchangeably with „decisions”) based on the quorum and majority requirements set forth by statutory provisions or the articles of association. In the case of limited liability companies (LLCs), the general rule is that of a double absolute majority – both of the members and of the share capital [Article 192(1) of the Companies Law].Prior to the enactment of Law No. 265/2022, amendments to the articles of association required the unanimous consent of all members [Article 192(2)], thereby granting each member – particularly the minority – a de facto veto right. The repeal of this provision by Law No. 265/2022 removed such protection, introducing instead a mandatory statutory unanimity clause (Article 7 point d¹), which has been widely criticized as both redundant and counterproductive, especially in cases of voting deadlock. This statutory unanimity requirement fails to resolve instances of parity among members and may, paradoxically, lead to corporate paralysis and even dissolution [Article 227(1)(e)]. The pre-emptive right constitutes a fundamental corporate entitlement, enabling existing members to subscribe preferentially to newly issued equity interests, thus safeguarding them from dilution. While this right is explicitly regulated for joint stock companies, it applies by analogy to LLCs as well, both for reasons of legal symmetry and to ensure the protection of minority interests. The elimination of the unanimity requirement for amending the articles of association has, however, weakened the practical enforceability of this right. From a historical perspective, under King Carol II’s Commercial Code, unanimity was required for amendments to the articles of association, which inherently protected minority members. The introduction of „equity interests” (părţi sociale) shifted the character of the LLC from one predominantly governed by intuitu personae considerations to one increasingly centered around intuitu pecuniae. Following the repeal of Article 192(2), capital increases no longer require unanimity, thereby diminishing minority safeguards and aligning the LLC more closely with the legal regime of joint-stock companies.

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