Considerations Regarding the Cases of Nullity of Fusion. Nullity for Majority Abuse. Aspects of Comparative Law

• Author: Viorel Banulescu
• Profession: Bucharest University of Economic Studies, Romania
• Pages: 36-47

Considerations Regarding the Cases of Nullity of Fusion. Nullity for

Majority Abuse. Aspects of Comparative Law

Phd student Viorel BANULESCU

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Abstract

In this article we will present the nullity causes that occur in the merger of com-

mercial companies. In the first part we will enumerate some definitions of the concept of

nullity of the merger (section 1), then we will analyze two nullity causes, to disting uish

the nullity of the merger from the nullity of the company (section 2). In section 3 we will

analyze the concept of majority abuse as a variety of abuse of the law b y proposing, de

lege ferenda, the incorporation of this situation among the causes of the nullity of the

merger (section conclusions).

Keywords: merger nullity, company nullity, abuse of law, abuse of majority.

JEL Classification: K20, K22

1. Introductory considerations

The nullity concept of fusion of companies was consecrated

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by disposi-

tions of article 22 from Directive 2011/35/E.U. of the European Parliament and

Council from 5th of April 2011 regarding the fusion of joint-stock companies. The

aspects concerning the conditions and effects of declaring nullity of fusion are

regulated by art 251 from the Law of companies 31/1990. Regarding the concept

of nullity of fusion, in the doctrine there have been presented more opinions about

its definition. Therefore, a first opinion

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states that the notion of nullity of fusion

is actually a development of the concept

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of nullity of the juridical act.

Another author

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finds the notion of nullity of fusion/dividing of societies,

without reaching the complexity and profoundness of the nullity of societies, as

representing a development of the notion of nullity of the juridical act, as it con-

cerns the nullity of the juridical operation, which is realized by the plurality of

juridical acts and doings that are in an interdependence relation. Independent

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Viorel Banulescu – Bucharest University of Economic Studies, Romania,

viorel_banulescu@yahoo.co.uk

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Mataragiu A. C., “Fuziunea instrument de restructurare a societățilorcomerciale, PhD. thesis,

Timisoara, 2012, p. 290.

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Schiau I., Prescure T., Legea societăților comerciale nr.31/1990. Analize și comentarii pe articole,

Second Edition Revised, Enlarged and updated, Hamangiu, Bucharest, 2007, p. 728.

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As in the society law has the tendency to rewrite for its own benefit juridical institutions borrowed

from civil law to delimitate the juridical the juridical reports that it wants to regulate imperatively.

See Gheorghe C., Nulități de drept comercial, C. H. Beck, Bucharest, 2010, page 53.

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Schiau I., Prescure T., op. cit., page 728.