September 10, 2021 rcplegal 0 Comments

Limited liability companies, unlike joint stock companies, carry out a lower activity in terms of the degree of complexity that does not involve the participation of a large number of associates to take decisions in general meetings, therefore, the law does not require the appointment to a censor than in case of exception.

The exception is provided by art. 199 para. (3) of Law 31/1990: If the number of associates exceeds 15, the appointment of censors is mandatory. The premised situation is quite simple, when the company reaches a number of 16 associates, the latter are obliged to take the decision to appoint a censor through a general meeting of associates and to establish its responsibilities within the company. Their role is to inform the management of the company correctly regarding the management of the company and to bring to light both the irregularities found in the administration of the company, as well as violations of the legal provisions and of the constitutive act.

The obligation to appoint a censor starts from the idea that in companies with up to 15 associates it is not necessary to appoint a control body, the control being usually performed by each associate. Some of the associates have the prerogative to manage the company by appointing them as administrators, and the other associates verify and supervise the latter’s activity through the decisions of the general assembly approving the acts and their management.

The law also imposes a restriction regarding the possession of the quality of censor within an LLC, the provisions of art. 161 para. (2) applying accordingly in this case as well:

They cannot be censors, and if they have been elected, they fall out of office:

a) relatives or relatives up to and including the fourth degree or the spouses of the administrators;
b) the persons who receive in any form, for other functions than that of censor, a salary or remuneration from the administrators or from the company or whose employers are in contractual relations or are in competition with it;
c) the persons who are prohibited from the position of member of the board of directors, respectively of the supervisory board and of the directorate, based on art. 731;
d) the persons who, during the exercise of the attributions conferred by this quality, have control attributions within the Ministry of Public Finance or other public institutions, except for the situations expressly provided by law.

Regarding the remuneration, the censors follow a special regime in the sense that the law establishes that they will receive a fixed remuneration determined by the constitutive act or by the general assembly that appointed them. However, the incomes obtained by the censors are assimilated to the salary incomes according to art. 76 para. (2) lit. i): The tax rules specific to income from salaries also apply to the following types of income, considered assimilated to salaries: i) amounts received by members of the audit committee or audit committee, as appropriate, and amounts received for participation in boards, commissions, committees and the like.

“For the way in which they fulfill their attributions, the censors are civilly and criminally liable. The civil liability of the censors towards the company is governed by the rules of the mandate, the provisions regarding the administrators from art. 73 of the Companies Law being, according to art. 166 para. (1) and (3) applicable to censors. Their responsibility is therefore a contractual one, the fault being assessed differently depending on how the mandate is remunerated or not, according to art. 2018 para. (1) Civil Code, or as the censor is professional or not, according to art. 1358 Civil Code.” (Law on Companies commented and annotated – Sebastian Bodu, p. 906).

Of course, his appointment must be registered at the Trade Register within a maximum of 15 days from his appointment, which involves amending the articles of association and sending all related documents to make the mention in the electronic register. The request is solved by the responsible person, and in case all the legal provisions are fulfilled, the modification of the electronic register of the company is ordered.

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