LEGE Nr. 550 of 14 October 2002
Regarding the sale of the private commercial property of the state and of the services rendered, administered by the county councils or the local councils, as well as those belonging to the patrimony of the autonomous regies of local interest
ISSUER: THE PARLIAMENT
PUBLISHED IN: OFFICIAL MONITORING NO. 803 of 5 November 2002
The Romanian Parliament adopts this law.
Chapter. 1 - General Provisions
Art. 1. (1) The present law establishes the legal framework for the sale of commercial premises and of services, private property of the state, administered by the county councils or local councils, as well as those belonging to the patrimony of autonomous regies of interest locally, hereinafter referred to as commercial or service provision.
(2) The sale of commercial spaces or services is realized through direct negotiation or, as the case may be, by public auction with a cry, under the present law.
ARTICLE 2. (1) The provisions of the present law are also applicable to commercial premises or to the provision of services located in the buildings regulated by Law no. 10/2001 regarding the legal regime of immobile properties abusively taken over from March 6, 1945 to December 22, 1989, with subsequent modifications and completions, in the following cases:
a) when the former owner has received compensations according to the international agreements concluded by Romania, under the conditions stipulated in art. 5 of Law no. 10/2001;
b) when the person entitled has lost the right to request repairs in kind or equivalent, in the conditions stipulated in art. 21 par. (5) of the Law no. 10/2001;
c) when the entitled person has opted for repairs in equivalent, according to the law;
d) when the immovable property is not returned to the persons entitled and remains in the administration of the current owners, according to art. 43 par. (1) of the Law no. 10/2001.
(2) The provisions of the present law are also applicable to commercial premises or to the provision of services located in the buildings located in the protection area of a historical monument. The sale of these spaces can be done only with the approval of the Ministry of Culture and Religious Affairs.
Art. 3. (1) The provisions of the present law are not applicable to the commercial premises or the provision of services regulated by Law no. 85/1992 regarding the sale of dwellings and spaces with another purpose built from the state funds and from the funds of the state economic or budgetary units, republished, with subsequent modifications.
(2) Until the adoption of the special law on the legal status of immovable property belonging to religious denominations or communities of national minorities, taken over by the state or by other legal persons, it is forbidden to alienate commercial premises or to provide services located in the buildings in question or to change the destination them.
Article 4. For the purposes of this Law, the following terms are defined as follows:
a) the seller - the county council, the local council of the commune, the city, the municipality, the sector of the Bucharest municipality or the autonomous director of local interest that has administration, respectively patrimony, commercial spaces or services. The seller signs a sale or purchase contract in the name of the state or in his own name, as the case may be, under the terms of this law;
b) buyer - any natural or legal person, Romanian or foreign, who has the status of a trader or service provider, according to the law. The buyer can not be a Romanian legal person under public law or a commercial company in which the Romanian state or an administrative-territorial unit is a majority shareholder;
c) commercial space - the space for acts and deeds of commerce, as defined in art. 3 of the Commercial Code;
d) space for provision of services - the space intended to provide services to natural or legal persons.
Chapter. 2 - Common rules on the sale of commercial premises or the provision of services
Art. 5. - (1) Within 30 days from the date of entry into force of this law, the county councils and local councils shall approve, by decision of two-thirds of the number of councilors, the list of commercial premises or services, private property of the state, which is in their administration, as well as those belonging to the patrimony of the autonomous regies of local interest under their authority, which are to be sold according to the provisions of the present law.
(2) In the case of commercial spaces or services provided in the patrimony of autonomous regies of local interest, the decision stipulated in par. (1) shall be adopted on the basis of the proposal of the Board of Directors of the respective autonomous office.
(3) The prefects shall ensure that the decision provided in par. (1) encompass all commercial spaces or services provided under this law. For this purpose, the decisions of the local councils and of the county councils will be communicated to the prefects within maximum 3 days after the adoption and will be displayed at the headquarters of the mayoralty, respectively the county council. The Prefect shall request the completion or modification of the list, if necessary, and if the prefect's request is refused, the prefect shall be able to address the administrative contentious instance. Referral and judgment are made in the emergency procedure. The court's decision is final and irrevocable.
(4) In the case of Bucharest, the list of premises subject to sale shall be approved by the General Council of the Municipality of Bucharest, by sectors. The provisions of par. (3) shall apply accordingly.
Art. 6. (1) Within 15 days from the date of entry into force of this law, in each commune, city, municipality, sector of Bucharest or county, where there are spaces falling under this law, shall be constituted a commission for the sale of commercial premises or services, hereinafter referred to as the commission. The Commission shall be constituted by the mayor, respectively the president of the county council, and shall be composed of 5 members and 2 to 3 alternates, as follows:
a) 3 representatives of the local council or, as the case may be, of the county council in whose administration there is the commercial space or the provision of services or under whose authority the autonomous control of the space is located; the appointment of the representatives of the council shall be by open vote with the vote of two-thirds of the number of councilors;
b) a representative of the autonomous administration, respectively of the autonomous administration nominated by the mayor or the president of the county council; the appointment of the representative shall be made by the administrative council of the autonomous administration;
c) a representative of the general directorate of the public public finances or the municipality of Bucharest, appointed by the general manager.
(2) For the guidance and supervision of the commissions organized by the mayors of the sectors, by order of the mayor, a commission of the municipality of Bucharest shall be constituted, as provided in para. (1).
(3) If the persons who are to be members of the commission are not nominated within the term set by the mayor, they shall determine ex officio the composition of the commission.
4. The members of the Committee shall appoint a President. The secretariat of the commission is provided by the secretary of the administrative-territorial unit, respectively of the Bucharest municipality sector.
(5) The members of the commission can not be shareholders, associates, administrators or censors to the legal person, respectively they can not be a spouse, relatives or affiliates up to the 4th degree including the natural person who requested the purchase of the commercial space or services services. In case of incompatibility, within 5 days, the commission shall be filled in with other members from among the alternates.
(6) For the activity filed within the commission, its members are entitled to indemnity, the amount and conditions of which are determined by a decision of the local or county council, with the approval of the general directorate of the county public finances or of the municipality of Bucharest, and shall be paid from funds from the sale of commercial premises.
(7) The violation of the legal provisions regarding the establishment of the commissions can be appealed within 5 days from their constitution, by the interested persons, to the administrative court of the court. The court resolves the request in the council chamber within 48 hours of referral. The decision is final and irrevocable.
Art. 7. (1) The Commission has the following attributions:
a) keeps records of the premises covered by the present law;
b) establishes the minimum selling price based on an evaluation report;
c) selects the Valuer of the premises subject to sale by public auction;
d) in the case of sale by direct negotiation, negotiate the sale price with the applicant;
e) organize the public auction with a cry, if any;
f) approves the sale of commercial premises or services with payment in installments.
(2) The decisions of the Commission shall be taken by a majority of the votes of its members.
Art. 8. (1) In order to sell the commercial space or the provision of services, the commission establishes a minimum selling price based on an assessment report prepared by authorized natural or legal persons, according to the law. The evaluator will be selected by the committee through a public auction organized within 10 days of the commission being set up.
(2) The minimum selling price, established according to par. (1), it will be taken into consideration that the negotiation basis, in case of direct sale sale, will be included in the offer for sale by public auction with crying.
(3) The evaluation report and the determination of the selling price may be disputed by the interested persons, within 5 days from the filing of the report, to the court administrative division of the court. Judgment is done urgently, citing the contestant, the commission and the evaluator. The Commission shall be represented by its chairman. Attorney's participation is mandatory. The decision is final and irrevocable.
Art. 9. (1) Upon completion of the sale procedure for each commercial space or service provision, according to the present law, the commission shall conclude a report containing the data regarding the conduct of the sale procedure and the price obtained for the sold space.
(2) The minutes shall be deposited at the seller's premises, by the secretary of the administrative-territorial unit.
(3) The refusal to conclude the minutes or its unlawful and ungrounded conclusion may be appealed to the administrative court of the tribunal, by the interested party, under the conditions of art. 8 par. (3), which shall apply accordingly.
ART. 10 (1) The sale-purchase contract for the commercial space or the provision of services shall be concluded within 15 days from the date of finalization of the sale procedure, according to the present law and shall be signed by the seller by the chairman of the county council or the vice-president appointed for this purpose, by the mayor or, as the case may be, by the chairman of the board of directors of the autonomous administration.
(2) The seller's refusal to conclude the sale-purchase contract may be sued under the conditions of art. 8 paragraph (3).
Art. 11. (1) The selling price of commercial spaces or services may be paid in installments by merchant buyers or by service providers, authorized under Decree-Law no. 54/1990 regarding the organization and unfolding of economic activities on the basis of the free initiative, with subsequent modifications - natural persons and family associations -, or by the commercial companies constituted under the Law no. 31/1990 on commercial companies, republished, with subsequent amendments, which fall under the category of small and medium enterprises, according to the law.
(2) In other cases, the conclusion of the sale-purchase contract and the full payment of the price shall be made within maximum 30 days after the conclusion of the negotiations and the agreed price.
(3) Where a buyer, a natural or legal person, is in a position to purchase, under the present law, two or more commercial premises or services in the same commune, town or city or in units different administrative-territorial units, the commission may approve the sale in installments only for one of the spaces at the buyer's choice.
(4) For this purpose, the buyer shall sign a declaration on his / her own responsibility, showing that he has not benefited from the installment payment for the purchase of another commercial space or services.
(5) The provisions of paragraph (3) and (4) apply accordingly in the municipality of Bucharest.
(6) The provisions of paragraph (3), (4) and (5) shall not apply to production facilities and to the provision of services.
ART. 12 (1) The sale of commercial premises or services with payment in installments shall be made to the buyers stipulated in art. 11 par. (1) under the following conditions:
a) an advance of 25% of the selling price;
b) monthly installments spread over a period of up to 3 years, without granting grace periods;
c) Perceiving an annual interest rate of 10%.
(2) The Commission shall require the buyer to provide guarantees for the payment of installments, such as:
a) letter of guarantee issued by a Romanian commercial bank or by a foreign commercial bank with which a Romanian bank has correspondent relations;
b) building a mortgage on the space that is the subject of the sale;
c) the personal guarantee of a fidejusor, a natural or legal person of nationality or of Romanian nationality, under the conditions of the Commercial Code, consisting of a unilateral and unconditional obligation to pay the installment, if it has not been paid in full or in part , by the debtor.
(3) The seller shall communicate to the buyer, 15 days before the maturity of each installment, the amount of the amount owed by interest.
(4) If the buyer does not pay at the maturity two successive installments, respectively in case of non-observance of the provisions of art. 11 par. (3), as the case may be, the sale-purchase contract is deemed to be solved by law, without the need for delay and without any other formality.
Art. 13. (1) The land belonging to the commercial space or the provision of services shall be sold with it, if its legal situation is clarified and if the legal conditions are fulfilled. The sale price of the related land is determined based on the value of the land, determined on the basis of the following criteria:
a) the location of the land in the locality;
b) the category of the locality and the area within the locality, established according to the provisions of Law no. 69/1993 on the establishment of the tax for the use of land owned by the State for purposes other than agriculture or forestry, with subsequent amendments.
(2) The land whose legal situation is clarified after the date of the sale of the commercial space or of the rendering of services, except those that are public property of the state or the administrative-territorial unit, shall be sold to the buyer of the space upon his request by direct negotiation , taking into account the value of the land movement, established according to par. (1).
(3) The public property belonging to the space to be sold shall be assigned directly to the buyer through a concession contract. By way of derogation from the provisions of Law no. 219/1998 regarding the concession regime, the concession is made through direct negotiation between the concessionaire and the concessionaire, without the preparation of an opportunity study or specification and without any form of advertising.
(4) The right to property on land may be acquired only by Romanian natural and legal persons. The buyer of a commercial space or services, a foreign natural or legal person, has the right to concede the relevant land under the conditions stipulated in paragraph (3).
Art. 14. The costs incurred in organizing and carrying out procedures for the sale of the commercial space or the provision of services, including advertising and drawing up the valuation report, shall be borne by the seller from his / her own budget and, in the event of the sale-purchase contract, deduct from the proceeds earned.
ART. 15 The sums obtained from the sale of commercial spaces or services in the conditions of this law shall be paid to the state budget in the 15% quota, the difference being paid to the respective local budgets, in a special account, and shall be used for the realization of projects of public interest, approved by the county councils or the local sales councils.
Chapter. 3 Sale of commercial premises or services through direct negotiation
Art. 16. Sale of commercial, service and production premises to the traders, respectively the service providers of natural or legal persons, who use them on the basis of a lease, concession, management, joint venture or leasing agreement, concluded in accordance with the law and valid at the date of entry into force of this law, shall be made at their request by the direct negotiation method. The natural or legal persons who have been outstanding for rent for at least 6 consecutive months from the conclusion of the contract with the seller, the persons who have not complied with the provisions of the contract with the seller (unlicensed sub-rentals, division for the purpose of unaccorded associations), such as and natural or legal persons who have unpaid obligations to the state at the time of the sale of the space.
Art. 17. (1) Within 30 days from the date of entry into force of this law, the persons referred to in art. 16 will submit a written purchase request to the seller's premises.
(2) After the expiration of the term stipulated in paragraph (1) the commercial premises for which the request for purchase has not been submitted shall be sold by public auction with a cry, under the present law.
ART. 18 (1) The Commission shall notify the applicant of its decision to admit or reject the application, within 30 days from the date of receipt of the application.
(2) If the applicant complies with the conditions stipulated in art. 4 lit. b) and art. 16, the direct sale of space is negotiated.
Art. 19. (1) The selling price of the commercial space or the provision of services shall be established by direct negotiation between the buyer and the commission, starting from the minimum selling price of the space determined according to art. 8.
(2) In order to establish the minimum selling price of the premises, the evaluation report shall highlight the value of the investments made by the applicant.
(3) Deduction of the value of investments made, regardless of their nature, shall be made only if they cumulatively fulfill the following conditions:
a) have been performed with the consent of the owner or holder of the right to administer the space;
b) were executed on the basis of a building permit, in accordance with the law.
(4) The value of investments deducted under para. (3) may not exceed half of the value established in the assessment report.
(5) The provisions of art. 8, 9 and 10 on legal appeals shall apply accordingly.
Chapter. 4 - Sale of commercial premises or provision of services by public auction with shouting
Art. 20. The sale of commercial spaces or services, with the exception of those sold through direct negotiation under the present law, shall be carried out by means of a public auction with a call, with the best price obtained.
Art. 21. (1) The Commission shall make public the announcement of the sale of the spaces provided in the list approved according to art. 5, within 15 days of approval of the list.
(2) The sale announcement shall include:
a) the name and location of the seller, as well as the individualization of the space to be sold;
b) the place, date and time of the auction start;
c) the name, surname and telephone number of the person designated to provide additional relationship;
d) the documents necessary for participation in the auction;
e) the guarantee for participation in the auction, established according to the law; the tender guarantee can not be less than the amount of expenses incurred in organizing and carrying out the procedures for the sale of the commercial space or the provision of services, including advertising and drawing up the evaluation report;
f) the participation fee at the auction.
(3) The following documents are considered as necessary for participation in the auction:
a) for companies:
1. a copy of the registration certificate issued by the trade registry office, on the articles of incorporation, including all relevant additional documents and the fiscal registration certificate;
2. a letter of financial standing, issued by a Romanian commercial bank;
3. proof of payment of tax obligations, by presenting a certificate of fiscal attestation, issued by the competent fiscal body;
4. a declaration on the sole responsibility of the legal representative of the commercial company, which shows that it is not in judicial reorganization or bankruptcy;
b) for traders or service providers, natural persons or family associations: a copy of the identity document and the operating authorization issued by the competent authority or on the legal act of incorporation, as the case may be, as well as on the tax attestation certificate issued by the competent tax authority.
(4) The sale announcement shall be published in one or more local and national wide-circulation newspapers and shall be displayed at the seller's premises, with a maximum of 30 days but not less than 15 days before the auction date.
Art. 22. (1) The auction takes place on the date set in the sales announcement and is valid if at least 3 bidders have been presented.
(2) The auction shall be conducted according to the competitive or Dutch auction rule, respectively, at an ascending or falling price, depending on the ratio between the demand and the bid, with the bidding rate set at 5% of the starting price.
(3) If the minimum selling price is not offered, the auction will be resumed after the publication of a new sale announcement, within 5 days from the first auction but not less than 7 days before the date of the new one of the second auctions.
(4) The second auction is valid if at least two bidders have been presented.
(5) If at the second auction there is not an offer of at least 50% of the minimum selling price, the auction commission may ask the participants to make purchase offers with the payment of the price in installments.
Chapter. 5 - Transitional and final provisions
ART. 23 The procedures for the sale of commercial premises or services, which are in progress at the date of entry into force of this law, shall continue, with the recognition of the validity of the acts and the stages consumed up to this date, according to the previous legal provisions .
ART. 24 (1) In the case of commercial spaces or services rendered in state property under the conditions of art. 2 par. (1) of the Law no. 10/2001, the selling procedures are legally suspended until the date of the completion of the restitution procedures provided by Law no. 10/2001, with subsequent modifications and completions, except for the right to submit a request under the conditions stipulated in art. 17 par. (1).
(2) The sale / purchase contracts concluded in violation of the provisions of para. (1) are null.
Art. 25. The presidents of the county councils and the mayors shall communicate to the Ministry of Public Administration, through the prefect's office, the stage of the sale of the commercial premises or of the services provided, the private property of the state under their administration, as well as of the ones in the patrimony autonomous regies of local interest.
ART. 26 The violation of the provisions of this law shall, as the case may be, entail disciplinary, administrative, civil or criminal liability.
ART. 27 Other disputes than those provided under art. 8, 9 and 10, regarding the procedures for the sale of commercial premises or services, private property of the state, under the administration of the county councils, of the local councils or of the autonomous administrations under their authority, are within the competence of the courts administrative litigation, not requiring the prior procedure.
Art. 28. Commercial spaces or services purchased under the present law may not be alienated through acts between vineyards and may be used only for production, trade and service activities for 3 years from the date acquisition.
Art. 29. On the date of entry into force of this law, any contrary provisions shall be abrogated.
This law was adopted by the Senate in the meeting of September 5, 2002, in compliance with the provisions of art. 145 and 74 para. (1) of the Romanian Constitution.
p. THE PRESIDENT OF THE SENATE,
DORU IOAN TARACILA
This law was adopted by the Chamber of Deputies in the meeting of September 23, 2002, observing the provisions of art. 145 and 74 para. (1) of the Romanian Constitution.
p. THE PRESIDENT OF THE CHAMBER OF DEPUTIES,
OVIDIU CAMELIU PETRESCU
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