A Five-Year Fight against Unjustified Enforcement Proceedings Aimed at Taking Control of Moldova’s Port Operator
ICS Danube Logistics SRL (DL), the general investor and operator of the Giurgiulești International Free Port (GIFP), and its Dutch shareholder, Danube Logistics Holding BV (DLH), have entered the fifth year of defending against unlawful attempts to seize DL’s shares and thereby gain control over DL, by using the pretext of enforcing a judgment in a dispute that DL and DLH never took part in.
Moldovan law is clear – judgments are binding and enforceable only against the defendant who lost the case (called the “judgment debtor”) but not against any third party. However, some Moldovan bailiffs and even certain judges assert that assets legally owned by unimplicated third parties can also be seized and enforced. This unacceptable legal narrative, which has no basis in Moldovan law, relies purely on the fact that the judgment debtor was previously indicated as the ultimate beneficial owner (UBO) of that company1. More than 10 judges hearing this saga of cases have dismissed this idea as ungrounded in Moldovan legal system.
Twenty Court Cases and Counting The legal saga spans more than 20 Moldovan court cases, most dealing with the illegality of the enforcement actions that had been carried out by the bailiffs Roman Talmaci and George Botan
and are now being taken by a new bailiff, Dumitru Manole, all upon the application and insistence of ICS Bemol Retail SRL (Bemol).
Bemol, a Moldovan company, is a judgment creditor against two individuals who were formerly part of Bemol’s management. The judgment was obtained by Bemol after passing through several Moldovan courts in 2018 as damages for alleged mismanagement. The case is now pending at the European Court for Human Rights.
Starting September 2019, Bemol launched a series of enforcement actions to collect under the judgment. Instead of seizing the assets held by the individuals who are liable to pay, Bemol and its bailiffs started enforcement actions against the assets owned by the Dutch parent company of ICS Danube Logistics SRL (DL) – DLH’s shares in DL (“100% Share”). It thus became apparent that the real interest of Bemol is to take control of GIFP – Moldova’s strategic asset.
DL and other interested parties have appealed all attempts at such enforcement actions in Moldovan courts, and the Moldovan courts have made an irrevocable decision that Bemol cannot seize money representing the dividends of DL.
First Takeover Attempt – Declared Unlawful by a Chisinau Court In February 2021, Bemol and its appointed bailiff Roman Talmaci (who is also currently the President of the Moldovan Union of Bailiffs) made a first attempt to take over control over 100% of DL’s shares by using a “forced administration” procedure. Mr Talmaci appointed a special forced administrator, Irina Selevestru, to veto all voting rights vested in DLH – the legitimate shareholder of DL, to squeeze DL’s profits by way of a forced dividend pay-out and thus devaluing it. This was done secretly, without notifying the holders of a pledge over the 100% of shares that secures long-standing loans granted to DL. The holders of the pledge are two banks, the EBRD and MAIB.
1 This is a concerning narrative, because, for example in case of Moldovan banks the Trade Register indicates as UBO not the majority corporate shareholder, but the President of the commercial bank.
This was effectively a takeover attempt, and led the EBRD to enforce its pledge and enter into legal possession over the 100% of shares in 2021. This situation continues to this day. Bemol has made subsequent accusations in the media that the EBRD used untrustworthy documents and even that it had no pledge. This has been debunked by the Moldovan courts, which have upheld the EBRD’s enforcement over the DL shares. Recently, Bemol itself has dropped its
claims that EBRD has no pledge over the shares.
In addition, in May 2021 the EBRD changed the way it controlled DL, moving from a contractual arrangement under English law to the control via equity in the Danube Logistics group of companies2.
After three years of court hearings, the Chisinau District Court ruled in DLH’s and the EBRD’s favour. In July 2024, it held that the so-called forced administration of the 100% Share attempted by Bemol and bailiff Talmaci was unlawful. Bemol has appealed and the case is now pending before the Chisinau Court of Appeals.
A Second Takeover Attempt Has Now Been Launched at Bemol’s Request Even though the first attempted forced administration failed, in October 2024, Bemol attacked again, using exactly the same method but now using the services of a different bailiff, Dumitru Manole.
Otherwise, the second attempted forced administration mirrors the first, three years ago:
• It was initiated secretly, without notifying DLH and the EBRD;
• it tries to fully take over the powers of the Shareholder DLH and especially the voting and decision-making rights;
• it ignores that DLH cannot be held liable to pay under the 2018 judgment obtained by Moldovan courts, as DLH was not a party to the legal and enforcement proceedings;
• it ignores that DLH (and not the individuals who lost the 2018 judgment) has continuously been the legal owner of DL (with a “100% Share” in the company) from 2013 to now;
• It ignores the binding judgments of the Moldovan courts recognising the EBRD’s pledge over the 100% Share;
• It ignores that the EBRD currently holds legal possession over the 100% Share as pledgee and lender, including the right to vote and collect dividends from the shares;
• And it ignores the Chisinau District Court judgment, holding that the 100% Share cannot be seized as part of forced administration by Bemol.
The EBRD’s bailiff, Andrei Gosic, who is assisting the EBRD in its own proceedings to enforce its pledge, has handed down several notices and orders to the bailiff Dumitru Manole and the forced administrator Irina Selevestru to cease and desist the violation of EBRD’s legal possession to the 100% Share. The latter continue to defy such notices and orders contrary to the law.
DL, DLH and the EBRD have each challenged the latest attempted forced administration and are awaiting a resolution in the Moldovan courts.
Importantly, the latest Bemol attack also raises concerns about compliance with Law No. 174/2021 on the Mechanism for Examining Investments of Importance for State Security. Under
2 EBRD Press release from May 2021 this law, a government commission must pre-approve any change of control in a company that operates an investment “in the fields of importance for state security”, which include port
operators.
Conclusion
The latest enforcement proceedings initiated by Bemol and facilitated by some actors of the judiciary are part of a series of actions of a raider attack being pursued by Bemol with the aim at taking control of Giurgiulești International Free Port. This attempt to deprive the Dutch mother company DLH BV and the EBRD of their interests in Moldova raises serious concerns about protection of property of legitimate investors in the Moldovan economy and the risk of loss of their property under the pretext of enforcement of a judgment of a Moldovan court that is not binding on them and their assets.
