The
electronic archive for secured transactions was established in the context set
by the measures aimed at the speeding-up of the economic reform in Romania. It
is a unique information system designed to record legal operations and kept by
legal and natural entities of private law, functioning at high quality
standards. The activity was launched in December 2000, and it known a
significant development both in the number of entities authorised to operate
the archive and the number of registrations. The registration within the
archive has not the effect of constituting rights, but only the effect of
publicity of legal relations and of setting a priority order, thus the system
ensuring the reliability of the legal relations according to the registrations
processed.
Through the
existence of the archive, the Romanian business environment becomes more
accessible with regard to the awarding of credits, as they are secured with
assets that are registered with the electronic archive for secured
transactions, being, by means of specific regulations, an additional safety
measure on the reliability of legal or natural entities.
The legal grounds
– Law no.99/1999 – on measures aimed at the speeding-up of the economic reform
– Title VI – The legal regime of moveable collateral, regulates the
establishment of moveable collateral, publication, rank and execution of
collateral, and the organization of the electronic archive for secured transactions,
promoting a series of essential changes in this field, simplifying the
procedures and significantly reducing the costs and the duration of the
operations for the accomplishment of the security interests. The enhancement of
the collateral system has created favourable conditions for the awarding of
credits, the archive providing the modality to identify the debtors and the
pledged assets, and in case of non-performance, easier and quicker procedures
for their execution.
Basically, it
promotes the access to credits within the business environment, movable
property being the guarantee for the payment of the obligations, the electronic
archive working mainly as follows:
- as a warning system: the archive provides search criteria
giving exact and up-to-date information with regard to the registrations of
movable securities;
-
ensures the rank of collateral, the archive making available to creditors a
method by which they will register their securities over the debtor’s assets, a
method that determines the rank in case of plurality of creditors interested in
obtaining the respective asset. The rules setting the rank in which the
creditors satisfy their interests are stated in article 28 of Law 99/1999:
„real securities and other real pledges over the assets subject to this title
rank first,
being satisfied before a third party’ rights, including the state, if such real
securities and pledges were made public by one of the methods specified within
this chapter.” This text must be construed in the sense that the creditor
registering its security over an asset prior to the registration of another
creditor will rank first at
the date of the execution of the security. Moreover, in case of contest between
a creditor having its security registered into the archive and a creditor not
having operated such registration, the former will be considered the winner.
In
addition to the aforementioned, the new regulations on moveable securities have
introduced a series of advantages that we will analyze in detail in the following
pages.
The agreement of pledge, privilege,
claims or cessions of debts registered within the archive have the value of an executory title, thus the judicial proceedings for the
enforcement of the title are not required any longer, with the consequence of
the reduction of costs (taxes, fees) as well as of the terms for the
accomplishment of the right. Therefore, the procedures have been simplified and
the costs have been reduced.
Another aspect is the increase in the
number of legal deeds and assets to which these regulations are applicable. The
Romanian lawgiver had decided to encompass, in addition to the classical
moveable securities, a series of legal deeds, as provided for in article 2 of
the framework regulations: all the cessions of debts, conditioned sales, sales
in instalments, definitive court decisions, state’s privilege (arising from
taxes, fines, confiscations).
With
regard to the assets subject to the aforementioned legal regulations, article 6
of the Law 99/1999 regulates the following
categories: moveable, corporeal and non-corporeal assets (including accessories
to an immoveable asset), stocks of fungible assets, balances receivable for the
deposit accounts, shares and social shares of companies and limited
partnerships, claims, agricultural crop, insurance policies, bills of exchange,
promissory notes, checks, interests over moveable securities, provided that
these assets are determined (individually or generally) or determinable in the
future.
As a
conclusion to the aforementioned, we may state that the electronic archive for
secured transaction is a large database, a system for the monitoring of
individual credits and of any moveable security, aimed at ensuring the
fulfilment of a civil/commercial obligation arisen from a contract concluded
between Romanian or foreign natural or legal entities.
We
notice that, although credits awarded by the banks represent the majority, the
electronic archive is a wide database, encompassing definitive court decisions
and state’s or territorial administrative units’ privilege to claims arising
from taxes, fines and other sums representing public incomes due to their
budget.
Among
the advantages of the current regulations there are the measures for the
special protection of the creditor. Seeing that the electronic archive is
designed as a structured system for the recording of assets and persons, and,
in the same time, as a publicity system, the creditor has the possibility to
perform searches within the archive, before granting the loan, in order to
determine the solvency of the debtor and to check whether the respective asset
was subject to previous pledges, thus getting information about the previous
registrations within the archive.
The
new regulations provide an equitable system among all legal subjects, the state
not holding the capacity of a privileged party, according to article 98 of Law
99/1999, further amended and completed.
With a
view to answer to the above requirements, the Ministry of Justice, as
Supervising Authority, has the role to authorize the operators and check their
activity during the registration process, as well as to supervise the
compliance with the procedural rules, and to harmonise these regulations with
the communitarian laws applicable in this field.
The
registration into the electronic archive for secured transactions, according to
the current regulations, is not compulsory for the parties, this opportunity
being at the parties’ sole discretion. .
In this respect, we consider that
it is desirable that such registration became compulsory, allowing us to obtain
a complete record of all the debtors and assets subject to pledge contracts, as
it is for mortgages which are compulsory registered within the Land Book
