Despre efectivitatea reformei guvernanţei corporative a întreprinderilor publice prin O.U.G. nr. 109/2011 Bine ai venit amăgire! Mai stai, mai dureaz
On the efficiency of the recent romanian state-owned enterprises corporate governance reform: welcome, illusion! hang on, you may stay for a while!

Summary/Abstract: The Government Emergency Ordinance no. 109/2011 concerning the corporate governance of state-owned enterprises is commonly regarded as a genuine reform, a turning point in regulating these entities, whose work has sunk, throughout the past two decades, into a normative system which is brief, incomplete and inadequate to the features of the state-owed enterprises.. The corporate governance mechanisms which the legislator has considered are mostly grounded on the orientations of the OECD Guidelines on corporate governance of state-owned enterprises (2005) and on the transplantation of the governance mechanisms from the common corporate law provided by the Companies Act no. 31/1990, as amended. In this paper, we argue that, giving the way they have been conceived, the mechanisms used to reform the corporate governance of state-owned enterprises in the end of 2011 are far from being able to assure the improvement of economic performance and to stimulate the privatization of these enterprises. Several issues derived from the state acting as a shareholder are preserved, under the circumstances where some of the international corporate governance recommendations (OECD, 2005) have not been implemented within the reform. The ordinance erroneously focuses on prerequisites imported from the shareholders structure of the common corporate law companies and overlooks treating the real governance issues which characterize the intervention of the state as owner of companies, failing to provide means for a clear separation of the three functions the state plays as a shareholder in the context: ownership, regulation, and industrial policy maker. The reform at the end of year 2011 does not provide a ground for promoting, as per OECD recommendations, a foreseeable and coherent state shareholding policy, given the absence of a centralized authority competent to exercising the state ownership function. Certain governance mechanisms related to the type of state-owned enterprises are unsatisfying, such as ignoring stakeholders approach and a weak accountability to the public. These matters may be accompanied by governance characteristics connected to the case of some key public enterprises privatization, which condition the efficiency of the reform on other political resolutions and legal measures, like the ones regarding the choice of the manner and the time of privatization. Ultimately, the uncertainties regarding the enforcing of the insolvency procedure distort the governance mechanisms and objectives considered by GEO No.109/2011, under the circumstances in which many of the state-owned enterprises undergo financial difficulties.

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