TUDOR CIUREZU - A FIRST VICTORY AGAINST THE ASFThe Bucharest Court of Appeal voids the 60,000 lei fine approved by Nicu Marcu

Andrei Iacomi (Translated by Cosmin Ghidoveanu)
English Section / 1 iulie 2021

The Bucharest Court of Appeal voids the 60,000 lei fine approved by Nicu Marcu

Daniela Negoiţă, lawyer: "I have proved that the ASF disregarded the dispositions which regulated the administrators' obligation to abstain from voting when involved in a conflict of interest"

"The conflict of interest was obvious, as the dismissal of the four board members was being requested", the lawyer says

"The ASF will use every legal means to challenge the court of first instance", the ASF said

The Bucharest Court of Appeal has canceled the 60,000 lei fine which the Financial Oversight Authority (ASF) levied last summer against Tudor Ciurezu, who at the time was the chairman of SIF Oltenia, on claims that, together with three other members of the Board of Directors of the SIF, has prevented the requests of SIF Banat-Crişana (SIF1) and SIF Muntenia (SIF4), as well as of Certinvest, which were requesting the dismissal of the four, not to be included on the agenda of the General Shareholder Meeting for the validation of the financial statements of the Craiova-based SIF, held on April 28, 2020.

Back then, Tudor Ciurezu together with Anina Radu, Carmen Popa and Nicolae Stoian, have abstained from the deliberations of the Board concerning the shareholders' request to have new items included on the agenda of the shareholder meeting, which, aside from their dismissal, also requested that they be held liable. The abstention led to the rejection of the requests, due to the failure to meet the quorum required by the law and the internal regulations of the SIF.

The ruling, which is not final, is a blow for Nicu Marcu, the current chairman of the ASF, who, in October last year, just a few months since being appointed at he head of the ASF, had rejected the preliminary complaint filed by Tudor Ciurezu and had upheld the 60,000 lei fine.

In the ruling, the ASF alleged that Tudor Ciurezu had abusively used his position as board member, by resorting to actions which had infringed on the shareholders' rights to request and obtain the addition of the proposed items to the agenda of the Ordinary General Shareholder Meeting. The former CEO of SIF Oltenia has challenged the ruling of the ASF in court and, so far at least, the court ruling has favored him. Furthermore, the ASF is required to pay to the former chairman of SIF Oltenia legal expenses of 5,900 lei, as shown on the court portal.

Daniela Negoiţă, collaborator lawyer of Duţescu şi Asociaţii, who is in charge of the case, has explained that, essentially, the Financial Oversight Authority has alleged that, by abstaining, the four members of the Board of SIF Oltenia allegedly violated the provisions of law 24/2017, specifically article 46, paragraph 4, which stipulates that board members must refrain from committing fraudulent or abusive actions. Essentially, the ASF estimated that the conditions of being held liability for offense had been met.

The lawyer told us: "What I did through the lawsuit I brought, was to show the court that the offenses that Mr. Ciurezu and the other three SIF Oltenia board members, respectively, are being accused of, are not an offense, so that they cannot be categorized as abusive or fraudulent as per the article of the aforementioned law. I have also shown that the lawmaker has not specified the failure to add new items to the agenda of a general shareholder meeting as a specific offense under law 24/2017, meaning it cannot be qualified as fraudulent and abusive behavior".

In the opinion of those who have handled the case, the Financial Oversight Authority rushed to sanction the members of the Board of SIF Oltenia, without investigating the reasons for their abstention, nor whether the terms for the infringement penalty were met, Daniela Negoiţă further said.

"One of the reasons why we feel that they are relevant in this case and which we have upheld before the court is the absence of guilt, as a prerequisite condition for being charged with an offense. We have proved that the ASF has disregarded the provisions of the law and of the bylaws of SIF Oltenia, which stipulated the obligation of the board members to abstain from voting when finding themselves in a conflict of interest, Daniela Negoiţă said, and she went on to say that it is mostly a series of provisions of article 17, of regulation no.1 of the ASF of 2019.

According to those that the lawyer reported, in this case, the ASF claimed that no conflict of interest existed, and even if it had, the board members were still required to honor the shareholders' requests to make additions to the agenda of the general shareholder meeting.

"But the conflict of interest was obvious, as the dismissal of the four board members was being requested. Furthermore, the abstention of the four board members was expressly requested by one of the shareholders, namely Certinvest. In doing so, we have shown that there were reasons which could determine the Board members not to honor requests to make additions to a shareholder meeting's agenda, should they not meet the legal or bylaws' stipulations. The only entity competent to require the Board of Directors to make additions to the agenda of a shareholder meeting is the court, in our opinion, as per the provisions of law 31/1990 and of law 24/2017", Daniela Negoiţă said.

The lawyer has also pointed out that all the reasons invoked in court had also been submitted to the attention of the ASF through the preliminary complaint filed by the former CEO of SIF Oltenia, but which had been rejected by the ASF.

We remind that the ruling of the court of Bucharest can be challenged with a second appeal within 15 days from its publication, which is probably what will happen, based on the response that the ASF sent us.

"The Financial Oversight Authority does not comment on the court rulings. The ASF will use every legal avenue at its disposal to challenge the ruling of the court of first instance", the market watchdog's representatives told us.

The team led by Tudor Ciurezu was dismissed from SIF Oltenia last autumn, following the vote of a group of shareholders made up of SIF Banat-Crişana, SIF Muntenia and a group of investment funds, including those of Certinvest, financed to various degrees, sometimes as much as 100%, by the two SIFs. Some of the members of the management of SIF Oltenia, as well as other market players, have repeatedly asked the Financial Oversight Authority to acknowledge the acting in concert of SIF1&SIF4 together with the investment funds they were funding, but the ASF has constantly claimed that there was no evidence thereof, while not discussing the aspects reported by SIF Oltenia.

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