Law no. 3/2012 (as subsequently amended) provided for the first time the normative definition of over-indebtedness and regulated instruments for its resolution. Over-indebtedness is defined as an “enduring imbalance between the obligations undertaken and the assets readily liquidated to meet them, resulting in a significant difficulty in meeting one’s obligations, or a definite inability to meet them regularly.”

The law addresses:

• An entrepreneur (single or associated), provided that they are not subject to bankruptcy (non-small business enterprises, “below the threshold” with respect to the parameters of Article 1 of the Bankruptcy Law and, regardless of size, business entrepreneurs who have been out of business for more than a year, agricultural entrepreneurs, the nonprofit entities, innovative start-ups);
• A freelancer or self-employed person;
• A person belonging to the much broader and more general category of the consumer, i.e., a natural person debtor who has incurred obligations exclusively for purposes unrelated to any business or professional activity.

Over-indebtedness resolution systems, according to l 3/2012, are:

• The debtor’s agreement procedure (dedicated to entrepreneurs – non-bankruptcy – and freelancers);
• The Consumer Plan procedure (is characterized by the absence of a procedure to acquire the consent of creditors);
• Alternatively, or in some cases as a result of these two procedures, the estate liquidation procedure.

All three procedures revolve around the Over-indebtedness Resolution Body. As of Jan. 28, 2015, Decree 202/2014 regulating these bodies came into force. The procedure at the Body has a cost that is stated in the regulations of the individual bodies and may vary from Body to Body. The debtor, after assessing, possibly with the support and advice of a professional expert on the issues of over-indebtedness, that the crisis resolution procedure is suitable for his or her case and useful, may apply to one of the bodies listed in the national register at the Ministry of Justice. Depending on the quality of the debtor, the Organization will alternately take care of the proposed agreement or the Consumer Plan. The difference between the two procedures (debtor’s agreement and Consumer Plan) lies in the need, only in the former case, to acquire the consent of as many creditors representing at least 60 percent of the claims. There remains the option for the debtor to use its own advisors to package the proposed agreement or Plan, then filing the petition with the Court and requesting that a professional be appointed to evaluate the agreement or Plan and certify its feasibility.

The steps of the Consumer Plan are the drafting of a plan by the Crisis Resolution Board, filing in the court of the place of residence of the over-indebted person the judicial assessment of the feasibility of the plan, the conduct of the consumer with regard to the reasonable prospect of fulfilling the obligations at the time of their assumption, the lack of fault in the determination of over-indebtedness.
The advantages of the Plan are that even preferential claims may be substantially downsized if there is no reasonable chance of obtaining a better result from the liquidation of the estate; submission of the Plan freezes the running of interest on unsecured debts; at the outcome, it will be possible to obtain a freeze on enforcement proceedings and exoneration in the case of regular fulfillment of the Plan for unsatisfied debts.

In the years immediately following the enactment of Law 3/2012, the indicated settlement procedures struggled to get off the ground, partly due to the absence of regulations governing the establishment and operation of the Crisis Resolution Bodies, the real lynchpin of the procedures. Those carried out in the domestic courts, were through the appointment by the judge of a professional to conduct an evaluation of the debtor’s proposed Plan or agreement and attest to its feasibility.