The New Reality of Article 39: Why Every SRL Owner Should Care
As of October 22, 2023, the rules of the game have changed. Amendments to Law No. 135/2007 (as per Law No. 229 of July 31, 2023) have transformed the profit distribution process from a "mere formality" into a zone of high legal risk. For owners and administrators of Limited Liability Companies (SRLs), this is now a matter of personal liability.
Dividends are No Longer an "Intention," But a Debt
The primary legal nuance lies in the transformation of the status of the General Meeting's decision. Once the protocol is signed, the decision to distribute profit creates a monetary obligation for the company toward its participants.
From that moment, dividends are no longer just a corporate plan; they are a binding debt. This triggers a shift in the legal regime:
- The Civil Code provisions on monetary obligations take precedence over general corporate norms.
- Any delay in payment automatically grants the right to calculate accrued interest.
- Unjustified distribution creates a high risk of the decision being challenged in court.
- Financial instability combined with dividend payouts raises immediate questions regarding the administrator's conduct.
The Net Assets Criterion: The Ultimate Stop Signal
The law explicitly prohibits profit distribution if financial balance is not maintained. Distribution is only permissible if, after the payout, the value of the company's net assets does not fall below its share capital.
If this rule is breached, the payout is no longer viewed as a standard business decision, but as a legal violation. Furthermore, the law now prohibits guaranteeing dividends; unconditional promises of future payouts are legally void as they depend on actual financial results and asset limits.
The Problem with "Old" Charters and Personal Risks
Most company charters (Articles of Association) drafted around 2015 are now legally vulnerable. They often lack critical mechanisms required by the new regulations, such as:
- Net asset verification: No internal procedure for assessment prior to the decision.
- Payment deadlines: Lack of clear timeframes and mechanisms for suspending a decision if conditions change.
- Interim dividends: No established regulations for mid-year distributions.
- Internal control: No safeguards to protect the administrator from executing illegal distribution decisions made by the General Meeting.
In the event of a dispute, the court will look beyond the meeting protocol to examine the actual financial state of the company and the diligence of the administrator’s actions.
Conclusions for Owners and Managers
Dividends are a legal obligation with serious consequences, not just a way to "withdraw profit." If you are an owner or a manager of an SRL, it is vital to review how profit distribution is regulated in your company's governing documents.
Often, legal risk does not begin with an audit or a tax inspection—it begins with a General Meeting protocol that fails to account for the strict requirements of the updated Article 39.