On 27 September 2016, the Constitutional Court of Moldova delivered its judgment on the exception of unconstitutionality of certain provisions of the Law No. 135-XVI of 14 June 2007 on limited liability companies.

Circumstances of the case

The case originated in the exception of unconstitutionality of certain provisions of Articles 17 and 49.1.a of the Law on limited liability companies, raised by the lawyer Victor Panţîru, in the case no.3-771/16 pending before the Central District Court of Chişinău.

Under Article 17 of the Law on limited liability companies, the founding act may be modified only by the decision of the general assembly of shareholders. Likewise, Article 49.1.a states that the general assembly of shareholders has the exclusive competence to amend and supplement the founding act, and also to adopt it in a new version.

The author claimed that the arrogation – exclusively for the general assembly of shareholders – of the right to amend the founding acts, does not allow for the State Registration Chamber, when lacking such a decision, to register the successor as an associate within the limits of the inherited capital share. The author argued that the challenged provisions affect, consequently, the right to property of the inherited capital share, guaranteed by Article 46.6 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges

Conclusions of the Court 

Hearing the reasoning of the parties and examining the casefiles, the Court held that under Article 127 of the Constitution, the State shall protect the property and shall guarantee to everyone the right to possess property in any such form as requested by the incumbent. Since the right to inheritance is a natural consequence of the right to property, Article 46.6 of the Constitution expressly provides that the right to inherit private property is guaranteed.

The Court held that, under the Civil Code, the succession rights are transmitted ope legis to the successors as of the date of the opening of succession, by virtue of the legal effects of its acceptance. The quality of legal or testamentary successor is attested by the certificate of inheritance.

In this case, the Court observed that the successor of a part of the capital share of a limited liability company may become an associate, by registering this capacity at the State Registration Chamber, only following the afferent amendments of the founding acts by the general assembly.

In this regard, the author claimed that the provisions of Articles 17 and 49.1.a of the Law, according to which the founding act may be amended only by the decision of the general assembly of shareholders, generates the consequence of affecting the property right of the associates’ successors of the limited liability company.

The Court held that the general assembly of shareholders is the body of deliberation and decision taking of the company, which takes decisions on critical issues of the company. Given the way it is established and the competences it is granted, the Court underscored that only the general assembly of the company is entitled to modify or supplement the founding act, inclusively to adopt it in a new version/a new version of it.

Taking into account the abovementioned, the Court noted the absence of a causal link between the challenged provisions and Article 46.6 of the Constitution. Or, the challenged provisions only state who is entitled to operate modifications in the founding act of a limited liability company, and certainly not the way of registering the associate quality in the State Register of legal entities.

At the same time, in the context of the examined case, the Court noted, however, that the property right of the successor of the capital shares may be affected in terms of Article 30 of the Law, according to which the capital shares are legally considered the property of the acquirer as of the date of registration in the State Register of legal entities of the amendments made to the founding acts on the alienation/acquisition of the capital shares.

The Court noted that under Article 42.1 of the Law, the quality of company associate is acquired either by participating in its founding, or through acquisition, subsequent to its founding, of capital shares.

In this regard, the Court underscored that the acquisition of social shares, subsequent to the founding of the company, is made through the transfer of the capital shares between the living ones and upon death (mortis causa).

The Court found that, although under Article 25.1 of the law, an associate may alienate freely his capital shares to his relatives, without the need for observing the pre-emption right of other associates, in order to become the rightful owner of these shares, Article 30.1 imposes an obligation to carry out the respective amendments to the founding act.

These amendments are requested to be made also in the situation when capital shares are obtained as a result of succession.

In this regard, the Court held that while Article 42 of the Law that establishes the obtaining of the capacity of an associate, inclusively by acquisition of capital shares, subsequent to the founding of the limited liability company, the registration of the acquired or inherited capital shares in the State Register of legal entities may not be conditioned by the amendments made to the founding act of the company.

Consequently, the Court held that the phrase „made to the founding acts on the alienation/acquisition of the capital shares" in Articles 30.1 and 30.2 of the Law on limited liability companies directly infringes the property right of persons that acquired capital shares and affects Article 46.6 of the Constitution.

At the same time, the Court will issue an Address to the Parliament, in view of regulating the situations where associates refuse to accept another associate who has acquired capital shares.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court:

1) partially admitted the exception of unconstitutionality;

2) declared unconstitutional the phrase „made to the founding acts" from Articles 30.1 and 30.2 of the Law no.135-XVI of 14 June 2007 on limited liability companies.

3) declared constitutional the words „only" from Article 17 and „exclusive" from Article 49.1.a of the Law no.135-XVI of 14 June 2007 on limited liability companies.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of Moldova.