Aspecte referitoare la valorificarea, în cadrul executării silite, a creanţelor izvorâte din finanţări acordate în cadrul programului IMM INVEST ROMÂNIA
Aspects relating to the recovery, in the context of enforcement, of claims arising from financing granted under the IMM INVEST ROMÂNIA programme

Summary/Abstract: State guarantees issued under guarantee schemes are (and should naturally be regarded as) stand-alone guarantees. However, the characteristics of this type of personal guarantee do not change anything in terms of the position of the guarantor from the moment it pays the guaranteed creditor, in the sense that, also by virtue of legal subrogation, the guarantor becomes, within the limit of the amounts paid, a creditor of the debtor who obtained the financing from a banking institution under a government programme – such as the IMM INVEST ROMÂNIA programme – whereby the State guarantees, under certain conditions, the credit risk. If the legal subrogation is the basis for the State’s assumption of the status of co-creditor against the debtor following the payment of the execution value of the guarantee, this means that all the procedural steps taken by the financing credit institution to recover the claim (in enforcement or, where appropriate, insolvency) up to the time of payment of the State guarantee will also benefit the guarantor who has become co-creditor, in the sense that it will be legitimised in this capacity in all legal proceedings initiated by the financing bank, the sole creditor at the time these steps were taken. The change in the nature of the claim resulting from the fact that, after payment of the public guarantee, the State, although having become a co-creditor by subrogation, will be the holder of a budgetary claim, and not of part of the claim (which was originally entirely a bank claim), can be explained in the light of the fundamentals of public financial law, and therefore, should not invalidate the conclusion that the State will enjoy a genuine partial transfer of the active procedural status of creditor in enforcement/insolvency, just as in any other situation where the person who is obliged on behalf of another pays because he has an interest in extinguishing the debt (even if, in the case of an autonomous guarantee, it is his own debt!), which means that the State will not have to make an application to intervene in the enforcement proceedings initiated by the financing bank, as it is not a third-party creditor of the debtor against whom legal debt recovery proceedings are being conducted.

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