Decizia RIL nr. 24/2017: mandatul (administratorului) fără de sfârşit
Decision regarding the referral in the interests of the law no. 24/2017: the endless mandate (of the director)

Summary/Abstract: Decision no. 24/2017, ruled in the settlement of a second appeal in the interest of the law, by the High Court of Cassation and Justice, by which it was acknowledged, in favour of a director whose mandate ended due to the expiry of the term, an extension of the powers of representation beyond this term, benefited from a rather reserved acceptability on the part of the doctrine. This article is not intended to be added to those critical articles, as it is prone to a pragmatic perspective: how shall the Decision be actually enforced? The difficulties which its acceptability in the legal and judicial practice is expected to cope with – the 2-year period between the adoption date of the Decision and the date when this text is published partly mitigates their purpose of predictability – may be regarded as an additional indicator of the questionable nature of the solution adopted by the supreme court, as a solution which prevents henceforth, a finding related to the cessation of the powers of representation sufficiently based on the identification, in the excerpt from the trade register, of the mandate start date and of the mandate end date, as long as those no distinct mention of the cessation of that director’s office is associated to those two dates published in the register. In this pragmatic approach, dedicated to the concrete consequences likely to be generated by the Decision, the practitioners’ position shall be first taken into account, as it is a position decisively influenced by the legal profession exercised. Beyond those particulars likely to be taken into consideration from one profession to another, it is useful to delimitate, as a matter of priority, as the Decision would only consider the substantive representation, related to the conclusion of legal deeds/agreements, an assumption in which notaries public would be most concerned, unless they are the only ones, or, otherwise, the representation of procedural nature would also be affected; in this latest case, which we are trying not to... homologate, the courts, the director of the Trade Register Office, the land book registrars and the bailiffs should also consider a director being the holder of an expired andate as a director whose mandate would not have come to term yet. As regards lawyers and legal advisors, in so far as they would be consulted by the individuals willing to establish companies or to get involved, along the way, in any already established companies, they would be required to advise them in considering the consequences of the same Decision, just from the point of view of warning them that the fact of holding any powers of representation under a limited term mandate does not have as a mandatory limit the date on which the mandate granted to the initial appointed director would be ceased. For these individuals, especially in the event where they initiated or, as applicable, ventured into a company-related experience, there are chances that the Decision be disastrous to them, and, in the event where the solution of the High Court has already found them involved in such an adventure, the risk increases the potential.

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