Repayment of loans granted by shareholders may only be carried out if the company is solvent and does not become insolvent as a result of that repayment.
However, the repayment of loans to shareholders/associates is restricted (prohibited) primarily by the amendments to Law no. 31/1990 if the company does not have net assets (equity) greater than half of the share capital, or if the repayment would lead to insolvency. Fines for non-compliance with this provision are up to 200,000 lei.
If we are talking about an insolvent company, where it is necessary to protect third parties (non-affiliated creditors), shareholders or affiliated companies cannot recover their loans or claims before employees, the state (outstanding taxes, duties and accessories), banks, or various suppliers. The claims of shareholders or affiliates, considered “subordinated claims,” are not secured (they are unsecured claims) and are paid last, after all other debts have been fully settled. The rule aims to protect independent creditors (banks, suppliers, employees) against shareholders who could “drain” the company’s assets through the repayment of internal loans. The shareholder or affiliated company is therefore last in line (“at the end of the queue”) when it comes to recovering money in insolvency cases, being treated as an “investor” rather than an ordinary commercial creditor.
As an exception, if a shareholder has lent money to the company and has established a real security, namely a mortgage under market conditions, they may be considered a secured creditor, meaning their claim can be recovered with priority. However, the insolvency practitioner is required to strictly verify these transactions.
As another exception, there is the situation in which a shareholder finances the company for recovery purposes after the opening of insolvency proceedings. In that case, their claim may be treated as a current claim, in accordance with the reorganization plan.
Florentina Cosma