Law no. 239/2025 (“L239”), in force as of 18 December 2025, amends The Insolvency Code in over fifty provisions — the most substantial overhaul since the 2022 restructuring reform. It is part of the Government’s second fiscal adjustment package, adopted as a result of the Parliament attempt to resolve country’s serious budgetary deficit
Genesis: a budgetary problem dressed as insolvency
The impulse behind the reform was not a doctrinal dissatisfaction with the Code of 2014, but a structural fiscal problem. The National Medium-Term Budgetary-Structural Plan 2025–2031 identifies insolvency legislation as an instrument for reducing the VAT gap. The Ministry of Justice, together with the Ministry of Finance and the National Agency for Fiscal Administration (ANAF), described the aim in direct terms: a liability regime against administrators who deliberately conduct SMEs burdened with unpaid fiscal obligations into insolvency, only to resume the same activity through newly incorporated entities. This practice — also known as “strategic insolvency” — exploited the difficulty of proving de facto control under the restrictive rules of standing.
The five directions of intervention
i. Persons closely related to the debtor
The most innovative element is a new legal category: the persons closely related to the debtor. It covers affiliated entities under the Fiscal Code; the members of the bodies of administration, conduct or supervision; their spouses and relatives up to the third degree; persons with access to non-public information capable of controlling the debtor’s operations (including external advisers, accountants and auditors); and the real beneficiary under the anti-money laundering legislation.
Transactions with such persons are placed under enhanced examination. The sale of the business as a whole to a closely related person requires a competitive procedure, express disclosure of the connection, an independent valuation, and the authorisation of the syndic judge. No more than one closely related person may sit on the creditors’ committee, and that person may not be president. The administrator’s report on the causes of insolvency must henceforth analyse the acts concluded with such persons in the two years preceding the opening of the procedure. The category has been drafted by reference to the Proposal of the Directive on the Harmonisation of Insolvency Law, as Romania anticipates an obligation binding upon all Member States within two years and nine months from its publication.
ii. The extension and deepening of liability
Liability shall henceforth extend beyond the persons formally appointed in the bodies of administration, encompassing any natural or legal person exercising, in fact, control over the debtor’s financial or operational decisions — the codification of the de facto administrator. A presumption iuris tantum is also introduced: the failure to deposit, within the statutory term, the mandatory financial statements and fiscal declarations is presumed, until proof to the contrary, to constitute an irregular keeping of accounting records. A distinct ground of liability is also added: the transfer of assets, or of a significant part of the business, towards a closely related person — the legislative response to “strategic insolvency”.
The most disputed modification concerns standing. The action may now be introduced by the judicial administrator or by any interested creditor, without any threshold attached to the value of the claim; the former rule, requiring at least 30% of the claims, is consequently eliminated. Sanctions comprise a 10-year ban on being designated as administrator, and a 5-year ban on founding companies or acquiring control in a new company, with inscription in the Trade Registry.
iii. Procedural adjustments in the interest of the fiscal creditor
Three modifications consolidate the position of the State as creditor. First, the debtor’s filing term is extended from 30 to 45 days, but the debtor must now notify the competent fiscal body at least 15 days before filing. Second, the fiscal verification window may reach up to 120 days (60 days plus a single extension of up to 60 days, granted by the syndic judge for justified reasons). Third, the practitioner’s success fee is capped at 10% of amounts paid through the reorganisation plan, and 10% of amounts recovered through liquidation in the first 30 months (5% thereafter), and a ban is instituted where fiscal claims are extinguished through datio in solutum, set-off, VAT refund settlements, VAT adjustment requests, or any other modality of extinction of fiscal claims.
iv. The consolidation of the creditors’ committee
The committee may now comprise 3, 5 or 7 members, with no more than one closely related person allowed. Additionally, a new mandatory function is added: the judicial administrator shall evaluate, at intervals of at most 6 months, the real possibility of effective reorganisation, proposing the entry into bankruptcy where reorganisation no longer appears feasible. This addresses a chronic dysfunction of Romanian practice: the artificial perpetuation of nominal reorganisations of debtors devoid of any realistic prospect of rescue.
v. Acceleration and the tightening of preventive procedures
If assets are not sold within 12 months under the regulation approved by creditors, the sale shall be carried out by public auction under the Civil Procedure Code. The procedure may be closed even in the presence of uncertain current claims, provided that their value does not affect viability. The random assignment of the judicial administrator/liquidator shall be carried out through a National Union of Insolvency Practitioners (“UNPIR”)-developed platform, scheduled to become operational this year. In counterbalance, access to preventive procedures is made more demanding as the debtor shall positively demonstrate the absence of insolvency at the moment of the request, and the procedure may be closed ex officio where the restructuring plan is not timely submitted.
The good, the bad and the ugly.
Several modifications are welcomed. The codification of the de facto director’s liability fills a gap which Romanian insolvency had tolerated for too long; the 6-monthly viability assessment may shorten reorganisations with no prospect of success; the framework on closely related persons introduces enforceable safeguards against asset-stripping.
The reform introduces, however, potential issues. The elimination of the standing threshold is the most disputed change. The rationale is defensible — small creditors had been excluded from a remedy that could have served them directly — but unlimited standing carries a real risk of actions devoid of merit or pursued for strictly formal or abusive purposes. Romanian practitioners are familiar with the history of liability actions filed by fiscal authorities regardless of grounds, treated as a common claim rather than a genuine action based on certain merits.
Equally deserving of scrutiny is the cumulative reinforcement of the fiscal creditor’s position. The pre-filing notification to ANAF, the 120-day verification window, and the tightened rules on remuneration where fiscal claims are extinguished collectively create a structural asymmetry between the State and private creditors which sits uneasily with the equal treatment of creditors of the same rank. The function of the insolvency regime is to allocate the losses of business failure among all creditors and not to maximise fiscal revenues.
From a structural perspective, the reform misses its target. As UNPIR observed prior to its entry into force, collection problems do not originate in the insolvency procedures themselves, but in the management of fiscal claims by the competent authorities before the opening of the procedure. The useful point of intervention lies upstream, in making reorganisation a genuine option for debtors who still preserve operational value. L239 moves in the opposite direction: it tightens, rather than relaxes, access to preventive procedures. Romania continues, moreover, to lack a formalised “pre-pack” mechanism — an instrument the EU Harmonisation Directive, politically agreed on 20 November 2025, shall require all Member States to introduce within two years and nine months from its publication.
Outlook
The genuine test of the reform shall come in the courtrooms. The first liability actions under the new rule of universal standing will show whether the syndic judges treat it as an effective remedy or manage the risk of abuse through filters at the admissibility stage. For the practitioner, the immediate concern is more prosaic: handling, in parallel, files governed by the prior law and files subject to the new regime. It is, ultimately, in this everyday practice that one shall see whether L239 has corrected the deficiencies it was intended to address, or merely displaced them, thereby rendering the reform as just another short-sighted “legal only” approach to a systemic administrative problem.
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