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Unofficial translation

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amended and supplemented by:

- Law no.227/4.07.2007 on approving the Government Emergency Ordinance no.99/2006 on credit

institutions and capital adequacy

- Emergency Government Ordinance no.215/4.12.2008 regarding some measures supporting the

programs for development of building houses on the national level

- Government Emergency Ordinance no.25/18.03.2009 on amending and supplementing of the

Government Emergency Ordinance no. 99/2006 on credit institutions and capital adequacy

- Law no.270/7.07.2009 approving the Government Emergency Ordinance no.25/2009 amending and

supplementing Government Emergency Ordinance no.99/2006 on credit institutions and capital

adequacy

- Government Emergency Ordinance no.26/31.03.2010 amending and supplementing the

Government Emergency Ordinance no.99/2006 regarding credit institutions and capital adequacy

and other acts

- Law no.231/2010 approving the Government Emergency Ordinance no.26/2010 amending and

supplementing Government Emergency Ordinance no.99/2006 on credit institutions and capital

adequacy and of other acts

- Government Ordinance no.13/2011 on legal remuneratory and penalisatory interest for monetary

indebteness, as well as for the regulation of some financial-fiscal measures in the banking field

- Ordinance no.13/2011 on legal remuneratory and penalisatory interest for monetary indebteness,

as well as for the regulation of some financial-fiscal measures in the banking field

- Ordinance no.1/2012 for amendment and completion of normative acts on credit institutions

- Government Emergency Ordinance no.43/2012 on amending Art.24028 para.(1) of Government

Emergency Ordinance no. 99/2006 on credit institutions and capital adequacy

PART I

COMMON PROVISIONS FOR CREDIT INSTITUTIONS

TITLE I

GENERAL PROVISIONS

Chapter I

Scope and definitions

Section 1

Scope

Art. 1 – (1) This emergency ordinance lays down the conditions concerning the taking up

and pursuit of banking activity within Romania’s territory, the prudential supervision of credit

institutions and financial investment services companies, as well as supervision of payment systems

and financial instruments settlement systems.

_______________________________________________________________________________

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1 GEO no.99/2006 was published in the Official Gazette of Romania, Part.I, no.1027 on December 27, 2006 and has

been subsequently amended and supplemented 1 Law no.227/2007 was published in the Official Gazette of Romania, Part.I, no.480 on July 18, 2007

1 GEO no.215/2008 was published in the Official Gazette of Romania, Part.I, no.847 on December 16, 2008

1 GEO no.25/2009 was published in the Official Gazette of Romania, Part.I, no.179 on March 23, 2009

1 Law no.270/2009 was published in the Official Gazette of Romania, Part.I, no.483 on July 13, 2009

1 GEO no.26/2010 was published in the Official Gazette of Romania, Part.I, no.208 on April , 2010

1 Law no.231/2010 was published in the Official Gazette of Romania, Part.I, no.826 on December, 2010

(2) This emergency ordinance is applicable to credit institutions, Romanian legal persons,

including their branches operating abroad and to credit institutions from other Member States, or

from third countries, as concerns their activity pursued in Romania.

(3) This emergency ordinance shall apply, in compliance with the provisions of Chapter X of

Title III, Part I, to financial investment services companies and to management companies that have

included in their scope the management of individual investment portfolios.

(4) The provisions of Title VI, Part II, shall apply to payment systems, financial instruments

settlement systems, the participants in these systems, and to the administrators of the systems and of

the infrastructure services used within these systems.

(5) The provisions of this emergency ordinance shall not apply to the central banks of

Member States. Other institutions that are not subject to the provisions of Directive 2006/48/EC of

the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of

the business of credit institutions, as published in the Official Journal of the European Union L 177

of 30 June 2006, amended and supplemented, as laid down in Article 2 of that Directive, shall not

benefit from the treatment provided by this emergency ordinance for credit institutions from the

other Member States set up for the purposes of this emergency ordinance. Such institutions, with

the exception however of the central banks of the Member States, shall be treated as financial

institutions for the purposes of Chapter II of Title III, Part I.

Art. 2 – With a view to performing prudential supervision of credit institutions, the

provisions of this emergency ordinance are applicable to other categories of persons, as follows:

a) Chapter II of Title III, Part I shall apply to financial holding companies and mixed-

activity holding companies;

b) Articles 54 to 58 shall apply to financial institutions having their head offices in other

Member States, which fulfil the conditions provided by Article 54;

c) Articles 89 to 90 shall apply to financial institutions having their head offices in Romania,

which fulfil the conditions provided by Article 89;

d) Chapter IV of Title II, Part I, shall apply to financial auditors of the credit institution and,

in accordance with Article 197, to financial auditors of financial holding companies.

Art. 3 – Credit institutions, Romanian legal persons, may be set up and operate, subject to

the observance of general provisions applicable to credit institutions and specific requirements set

forth in Part II of this emergency ordinance, as one of the following categories:

a) banks;

b) credit cooperative organisations;

c) savings banks for housing;

d) mortgage banks;

e) repealed

Art. 4 – (1) The National Bank of Romania is the competent authority for the regulation,

licensing and prudential supervision of credit institutions.

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(2) In the performance of the tasks assigned to it by law, the National Bank of Romania

shall collect and process any relevant data and information, including those of a personal nature.

Art. 5 – (1) Any natural person, legal person or entity without legal personality which is not

an authorized credit institution, is prohibited from carrying on the business of taking deposits or

other repayable funds from the public, or the business of raising and/or managing amounts from the

contributions of the members of an association with a view to saving and lending in a collective

system to purchase goods and/or services by its members.

(2) The interdiction set forth in para.(1) shall not apply to the taking of deposits or other

funds repayable:

a) by a Member State or by a Member State's regional or local authorities;

b) by public international bodies of which one or more Member States are members;

c) in cases expressly covered by the Romanian or Community legislation, provided that

those activities are subject to appropriate regulations and controls intended to protect depositors and

investors.

(3) For the purposes of para. (1) and (2), an issue of bonds or other similar financial

instruments is considered taking of repayable funds from the public if at least one of the following

conditions is fulfilled:

a) it represents the sole or main activity of the issuer;

b) the activity of granting credits or one or more of the activities covered by Article 18, para.

(1), points c) to l) is carried on by the issuer on a professional basis.

(4) The provisions of para. (3) are not applicable when the issue is solely addressed to

qualified investors, as provided by the capital market legislation.

(5) The National Bank of Romania may determine whether or not an activity represents

taking of deposits or other repayable funds from the public, banking activity, or activity of receiving

and/or managing amounts of money arising from the contributions of members of an association

with a view to saving and lending in a collective system to purchase goods and/or services by is

members. The determination of the nature of the activity made by the National Bank of Romania

shall be binding on the concerned parties.

Art. 6 – (1) Any person, other than an authorised credit institution, is prohibited from using

the name “bank” or “cooperative credit organisation”, “credit cooperative”, “central body of credit

cooperatives”, “cooperative bank”, “mortgage loan bank/mortgage bank”, “savings bank for

housing”, or derivatives or translations of these names, in connection with an activity, a product or a

service, except for the case where this use is imposed or acknowledged by law or by an

international agreement, or when, from the context in which the respective name is used, it follows

undoubtedly the fact that no banking activity is being pursued.

(2) Without prejudice to para.1, the entities, Romanian legal persons, within the group the

credit institution is part of, may use in their name the initials, logo, emblem, name or other

identification elements used on the group level.

Section 2

Definitions

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Art. 7 – (1) For the purposes of this emergency ordinance, the following definitions shall

apply:

1. banking activity – taking of deposits or other repayable funds from the public and

granting of credits for its own account;

11. proposed acquirer – any natural or legal person or the group of such persons acting in

concert with respect to the proposed acquisition;

12. proposed acquisition – the decision taken by a proposed acquirer to acquire, whether

directly or indirectly, a qualifying holding in a credit institution, Romanian legal person, or to

increase it’s qualifying holding so that the proportion of the voting rights or of the capital held

would reach or exceed 20%, 30% or 50% or so that the credit institution would become its

subsidiary;

13. to acquire – in the sense of the provisions of point 1

2 , to acquire by any means a

qualifying holding in a credit institution;

2. competent authority – the national authority empowered by law or other regulation to

exert prudential supervision of credit institutions;

21. “consolidating supervisor” means the competent authority responsible for the exercise of

supervision on a consolidated basis of EU parent credit institutions and credit institutions controlled

by EU parent financial holding companies.’;

3. authorisation – an instrument issued in any form by the competent authority by which the

right to carry on the business specific to a credit institution is granted;

4. control – the relationship between a parent undertaking and a subsidiary, as provided by

point. 19, or a similar relationship between any natural or legal person and an undertaking;

5. subsidiary – an entity being a subsidiary undertaking as provided by point 19;

6. investment firm – any legal person whose activity consists in providing one or more

financial investment services to third parties and/or carrying on one or more investment activities

on a professional basis, including financial investment companies, as defined by Law No. 297/2004

on capital market, as subsequently amended and supplemented. “Investment services and activities

on a professional basis” means any of the services and activities listed below:

A. investment services and activities:

a) registration and transmission of orders in relation to one or more financial instruments;

b) execution of orders on clients’ behalf;

c) dealing on own account;

d) portfolio management;

f) underwriting financial instruments and/or placing financial instruments on a firm

basis;

g) placing financial instruments without a firm commitment basis;

h) operation of a multilateral trading facility;

B. ancillary services:

a) safekeeping and administration of financial instruments for the account of clients,

including custodianship and related services such as cash/collateral management;

b) granting credits or loans to an investor so as to allow him to carry out a transaction in

one or more financial instruments, where the firm granting the credit or loan is part of the

transaction;

c) advice to undertakings on capital structure, industrial strategy and related matters as

well as advice and services relative to mergers and acquisitions of undertakings;

d) foreign exchange services where these are connected to the provision of investment

services;

e) investment research and financial analysis or other forms of general recommendation

relative to transactions in financial instruments;

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f) services related to underwriting on a firm commitment basis;

g) investment services and activities as well as ancillary services of the type included under

points 1 and 2 of Annex 1 related to the underlying asset of the derivatives included under point 141

letters e), f), g) and j), where these are connected to the provision of investment or ancillary

services;

7. parent investment firm in a Member State – an investment firm authorised in a Member

State which has a credit institution, an investment firm or another financial institution as a

subsidiary or which holds a participation in such an undertaking, and which is not itself a subsidiary

of another credit institution or investment firm authorised in the same Member State, or of a

financial holding company set up in the same Member State;

8. parent investment firm in Romania – an investment firm set up according to Law No.

297/2004 which satisfies the requirements laid down in point 7;

9. EU parent investment firm – a parent investment firm in a Member State which is not a

subsidiary of another credit institution or investment firm authorised in any Member State, or of a

financial holding company set up in any Member State;

10. credit institution – means an undertaking the business of which is to receive deposits or

other repayable funds from the public and to grant credits for its own account;

11. parent credit institution in a Member State – a credit institution authorised in a Member

State which has a credit institution or a financial institution as a subsidiary or which holds a

participation in such an undertaking, and which is not itself a subsidiary of another credit institution

authorised in the same Member State, or of a financial holding company set up in the same Member

State;

12. parent credit institution in Romania – a credit institution authorised in Romania which

satisfies the requirements laid down in point 11;

13. EU parent credit institution – a parent credit institution in a Member State which is not a

subsidiary of another credit institution authorised in any Member State, or of a financial holding

company set up in any Member State;

14. financial institution – means an undertaking other than a credit institution, the principal

activity of which is to acquire holdings or to pursue on one or more of the activities listed in Article

18 para. (1) lett. b) to l) and n1);

141. financial instruments:

a) transferable securities;

b) money market instruments;

c) units in collective investment undertakings;

d) options, futures, swaps, forward rate agreements and any other derivative contracts

relative to securities, currencies, interest rates or profitability ratios, or other derivative instruments,

financial indices or financial measures that may be settled physically or in cash;

e) options, futures, swaps, forward rate agreements and any other derivative contracts

relative to commodities that must be settled in cash or may be settled in cash at the request of one of

the parties (other than by reason of a default or other termination event);

f) options, futures, swaps, and any other derivative contracts relative to commodities that

can be physically settled provided they are traded on a regulated market and/or a multilateral

trading facility;

g) options, futures, swaps, forward rate agreements and any other derivative contracts

relative to commodities, that can be physically settled not mentioned under letter f) and not

being intended for commercial purposes, which have the characteristics of other derivative financial

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instruments, having regard to whether, inter alia, they are cleared and settled through recognized

clearing houses or are subject to regular margin calls;

h) derivative instruments for the transfer of credit risk;

i) financial contracts for differences.

j) options, futures, swaps, forward rate agreements and any other derivative contracts

relative to weather variables, freight rates, emission allowances or inflation rates or other official

economic statistics that must be settled in cash or may be settled in cash at the request of one of the

parties (other than by reason of a default or other termination event), as well as any other derivative

contracts relative to assets, rights, obligations, indices and measures not mentioned in this

definition, which have the characteristics of other derivative financial instruments, having regard to

whether, inter alia, they are traded on a regulated market or a multilateral trading facility, are

cleared and settled through recognised clearing houses or are subject to regular margin calls.

15. close links – the situation in which two or more natural or legal persons are linked in any

of the following ways:

a) participation in the form of ownership, direct or by way of control, of 20% or more of the

voting rights or capital of an undertaking;

b) control;

c) the fact that both or all are permanently linked to one and the same third person by a

control relationship.

16. repealed

17. qualifying holding – a direct or indirect holding in an undertaking which represents 10%

or more of the capital or of the voting rights or which makes it possible to exercise a significant

influence over the management of that undertaking;

18. public – any individual, legal person or entity without legal personality, which does not

possess the appropriate professional knowledge and experience required for assessing the risk

relating to the non-repayment of the placements made. The following are not included in this

category: the government, central and local public administrations, government agencies, central

banks, credit institutions, financial institutions, other similar institutions and any person that are

treated as a qualified investor, according to the capital market legislation;

19. parent undertaking – an entity in any of the following situations:

a) it has a majority of the voting rights in another undertaking (a subsidiary undertaking);

b) it has the right to appoint or remove a majority of the members of the administrative,

management or supervisory body of another undertaking (a subsidiary undertaking) and is at the

same time a shareholder in or member of that undertaking;

c) it has the right to exercise a dominant influence over an undertaking (a subsidiary

undertaking) of which it is a shareholder or member, pursuant to a contract entered into with that

undertaking or to a provision in its memorandum or Articles of association, where the law

governing that subsidiary undertaking permits its being subject to such contracts or provisions.

d) it is a shareholder in or a member of an undertaking and the majority of the members of

the administrative, management or supervisory bodies of that subsidiary undertaking, who have

held office during the current financial year, during the preceding financial year and up to the time

when the consolidated annual accounts are drawn up, have been appointed solely as a result of the

exercise of its voting rights; this provision shall not apply where another undertaking has the rights

referred to under points a), b) or c) above with regard to that subsidiary undertaking;

e) it is a shareholder in or a member of an undertaking and controls alone, pursuant to an

agreement with other shareholders in or members of that undertaking (a subsidiary undertaking),

the majority of voting rights in that subsidiary undertaking;

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f) it has the right to exercise, or actually exercises, dominant influence or control over

another undertaking (the subsidiary undertaking);

g) that undertaking (a parent undertaking) and another undertaking (the subsidiary

undertaking) are managed on a unified basis by the parent undertaking;

20. management company – a management company as defined by Law No. 297/2004, as

subsequently amended and supplemented, and a management company in a third country, which

would require an authorisation in accordance with Law No. 297/2004 if its head-office were located

on Romania’s territory;

21. financial holding company – a financial institution, the subsidiary undertakings of which

are either exclusively or mainly credit institutions or financial institutions, and at least one of such

subsidiaries is a credit institution, and disregarding its quality as mixed financial holding company

within the meaning of the Emergency Ordinance No. 98/2006 on the supplementary supervision of

credit institutions, insurance undertakings and investment firms in a financial conglomerate;

22. EU parent financial holding company – a parent financial holding company in a

Member State which is not a subsidiary of a credit institution authorised in any Member State or a

subsidiary of another financial holding company set up in any Member State;

23. parent financial holding company in a Member State – a financial holding company set

up in a Member State which is not itself a subsidiary of a credit institution authorised in the same

Member State or of a financial holding company set up in the same Member State;

24. parent financial holding company in Romania – a financial holding company set up in

Romania, which meets the definition laid down in point 23;

25. mixed-activity holding company – a parent undertaking, other than a financial holding

company or a credit institution or a mixed financial holding company within the meaning of the

Emergency Ordinance No. 98/2006, the subsidiaries of which include at least one credit institution;

26. ancillary services undertaking – an undertaking the principal activity of which consists

in owning or managing property, managing data-processing services, or any other similar activity

which is ancillary to the principal activity of one or more credit institutions;

27. Member State – any EU Member State and any state belonging to the European

Economic Area;

28. home Member State – the Member State in which the credit institution has been

authorised;

29. host Member State – the Member State in which the credit institution has a branch or in

which it provides services directly;

30. third country – any country which is not a Member State;

31. branch – a place of business which forms a legally dependent part of a credit institution

or financial institution and which carries on directly all or some of the business of the credit

institution.

(2) For the purposes in the provisions of Chapter II of Title III, Part I, the terms hereinafter

shall have meaning, as follows:

a) subsidiary – an undertaking as provided at para. (1) point 19 points a) to e) and any

undertaking over which, in the opinion of the competent authorities, a parent undertaking

effectively exercises a dominant influence;

b) parent undertaking – a parent undertaking within the meaning of para. (1) point 19 points

a) to e) and any undertaking which, in the opinion of the competent authorities, effectively exercises

a dominant influence over another undertaking.

(3) For the purposes of the provisions under Title III, Part I, participation shall mean either

the rights in the capital of other undertakings, whether or not represented by certificates, which, by

creating a durable link with that undertaking, is intended to contribute to the company's activities or

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the ownership, directly or indirectly, of 20% or more of the voting rights or capital of an

undertaking;

(4) For the purposes of para. (1) point 5 and para. (2) point a), all subsidiaries of a parent

undertaking which is in his turn a subsidiary undertaking of another parent company shall be regarded

as subsidiaries of the latter.

Art. 8 – (1) In order to determine the situations in which an undertaking is a parent

undertaking according to provisions of Article 7, para. (1), point 19, points a), b) and d), the voting

rights and the rights of appointment or removal of any other subsidiary undertaking as well as those

of any person acting in his own name but on behalf of the parent undertaking or of a subsidiary

undertaking shall be added to those of the parent undertaking.

(2) Out of these, the following voting rights shall be excluded:

a) the rights held on behalf of a person who is neither the parent undertaking nor a

subsidiary thereof;

b) the rights held by way of security, provided that the rights in question are exercised in

accordance with the instructions received, or held in connection with the granting of loans as part of

normal business activities, provided that the voting rights are exercised in the interests of the person

providing the security.

(3) For the purposes of the situations in which an undertaking is a parent undertaking

according to provisions of Article 7, para. (1), point 19, points a) and d), the total of the

shareholders' or members' voting rights in the subsidiary undertaking shall be reduced by the voting

rights held by that undertaking itself, by a subsidiary undertaking of that undertaking or by a person

acting in his own name but on behalf of those undertakings.

Art. 9 – Repealed

Chapter II

Minimum requirements for taking up and pursuit of business

Section 1

Minimum requirements for the taking up of business

1.1 Obligation to obtain an authorisation and minimum requirements for authorisation

Art. 10 – (1) In order to carry on activity in Romania, every credit institution is required to

obtain an authorisation according to the provisions of this emergency ordinance.

(2) Without prejudice to the provisions of this section, the National Bank of Romania shall

lay down by regulations and shall notify to the European Comission and to the European Banking

Authority, established by Regulation n.1093/2010 of the European Parliament and of the Council,

the terms under which the authorisation may be granted, including the documentation which

accompanies the authorisation application.

Art. 11 – The National Bank of Romania shall not grant authorisation to a credit institution

if the credit institution concerned does not possess separate own funds or initial capital no less than

the level set up by regulations, which cannot be less than the equivalent in RON of EUR 5 million.

Art. 12 – (1) Upon establishment of a credit institution, Romanian legal entity, its initial

capital is represented by the share capital, except the cases where that credit institution results from

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a reorganisation by merger or splitting-up, or from a transformation process according to Section 2

of chapter VII – Transformation of another undertaking into a credit institution.

(2) The share capital of a credit institution, a Romanian legal entity, including in the case of

its increase, shall be paid up fully and in cash, at the time of subscription. No in-kind contributions

shall be allowed. Shares issued by a credit institution, a Romanian legal entity, shall be only

nominative ones. In their incorporation documents, credit institutions, Romanian legal entities, shall

not provide for any exception from the ‘one share, one vote’ principle.

(3) Upon establishment of a credit institution, the subscriptions to the share capital shall be

paid up in an account opened with a credit institution; the account shall be blocked until the credit

institution, a Romanian legal entity, is registered in the trade register.

Art. 13 – The persons that are charged with the administration and/or management of the

credit institution, in their capacity as Board members, managers, members of the supervision

council or of the directorate, shall fulfill the requirements set forth in Chapter I of Title II, Part I.

Art. 14 – (1) A credit institution’s registered office, a Romanian legal entity, and, as

appropriate, its head office shall be located on Romania’s territory. The head office represents the

place where the core management of the statutory business is situated, when this is not situated at

the registered office.

(2) The credit institution must effectively and chiefly perform the activity for which it has

been authorised on the Romanian territory.

Art. 15 – (1) In order to grant authorisation to a credit institution, a Romanian legal entity,

the National Bank of Romania has to be informed of the identities of the shareholders or members –

natural or legal persons – that are going to have, directly or indirectly, qualifying holdings in that

credit institution, and of the amounts of those holdings. The National Bank of Romania shall only

grant authorisation if, taking into account the need to ensure the sound and prudent management of

the credit institution, it is satisfied as to the suitability of those persons.

(11) In assessing the persons referred to in para.1, there shall be taken in consideration the

provisions of Art.25 para.2, Art.26 para.1 and para.4 and those of Art.262.

(2) Where close links exist between the credit institution, a Romanian legal entity, and other

natural or legal persons, the National Bank of Romania shall grant authorisation only if those links

do not prevent the effective exercise of its supervisory functions. In this respect, it should also be

considered the situations in which the laws, regulations or administrative measures of a third

country governing one or more natural or legal persons with which the credit institution has close

links, or difficulties involved in the application of those laws, regulations or administrative

measures preventing the effective exercise of its supervisory functions.

Art. 16 – In applying the provisions of Art.15 para.1, the way of determining the voting

rights shall be established by the National Bank of Romania by regulations, subject to the

provisions regarding the transparency of information with respect to the issuers whose securities

are admitted for transaction on a regulated market.

Art. 17 – Any application for authorisation of a credit institution has to be accompanied by a

programme of operations setting out at least the types of business envisaged and the structural

organisation of the credit institution. The programme of operation should demonstrate the credit

institution’s ability to achieve its intended objectives in a way consistent with the rules of a prudent

and sound banking practice, by means of adjusting its government arrangements, procedures,

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internal mechanisms and capital structure to the type, size and complexity of the envisaged

activities.

1.2. Activities permitted to credit institutions

Art. 18 – (1) Credit institutions may perform, to the limits of their authorisation, the

following activities:

a) acceptance of deposits and other repayable funds;

b) lending including, inter alia: consumer credit, mortgage credit, factoring with or without

recourse, financing of commercial transactions, including forfeiting;

c) financial leasing;

d) payment services, as defined in Art.8 of the Government Emergency Ordinance

no.113/2009 on payment services;

e) issuing and administering other means of payment such as travellers' cheques and

bankers' drafts insofar as this activity is not covered by lett.d);

f) issuing guarantees and commitments;

g) trading for own account or for account of customers, according to the law, in:

1. money market instruments, such as: cheques, bills, promissory notes, certificates of

deposit;

2. foreign currency;

3. financial futures and options;

4. instruments on foreign exchange and interest-rate;

5. transferable securities and other financial instruments;

h) participation in securities issues and other financial instruments by underwriting and

selling them or by selling them and providing ancillary services;

i) advice on capital structure, business strategy and other related issues, advice and other

services relating to mergers and purchase of undertakings as well as other advice services;

j) portfolio management and advice;

k) safekeeping and administration of financial instruments;

l) intermediation on the inter-bank market;

m) credit reference services related to provision of data and other credit references;

n) safe custody services;

n1) issuing of electronic money;

o) operations with precious metals, gems and objects thereof;

p) acquiring of participations in the capital of other entities;

r) any other activities or services in the financial field, abiding by the special laws regulating

those activities, where appropriate.

(2) The activities provided for in para. (1), letters g)–k) shall include all the financial

investment services laid down under Art. 7, para. (1), point 6, when referring to the financial

instruments laid down under Art. 7, para. (1), point 141.

(3) The provisions of para. (1) shall be interpreted and applied, so that the activities

provided for in that paragraph include any operations, transactions, products and services which fall

within the scope of these activities or may be considered similar to them, including ancillary

services.

(4) Activities which are subject to authorisation, specific consent or approval, according to

certain special laws, may be performed by the credit institution only after obtaining such

authorisation, specific consent or approval.

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Art. 19 – (1) Granting of mortgage credits financed through mortgage bond issues shall be

performed according to the specific laws.

(2) Collective saving and lending for housing may be performed according to the provisions

of Title III, Part II herein.

Art. 20 – (1) Credit institutions may also perform other activities, allowed under the

authorisation granted by the National Bank of Romania, as follows:

a) non-financial mandate or commission operations, especially for the account of other

entities within the group the credit institution is part of;

b) managing portfolio of movable and/or immovable assets, which are the property of the

credit institution, but are not used for the performance of its activities;

c) rendering services to own customers, which, although are not ancillary to its activity, are

related to banking operations.

(2) The activities provided for in para. (1) shall be consistent with the requirements of

banking activity, especially those referring to preserving the reputation of the credit institution and

to protecting depositor interests.

(3) The total amount of revenues from the activities mentioned under para. (1) cannot

exceed 10% of the credit institution’s revenues from the activities laid down in Article 18.

Art. 21 – Except the activities referred to in Art.20 para.(1) lett.b), credit institutions may

perform transactions in movable and immovable assets only if:

a) the transactions are necessary for adequately carrying on the activities the credit

institution was authorised for, and to the extent that the assets are required for this purpose;

b) the transactions involve movable and immovable assets destined to enhance employee

proficiency, organise recreational and leisure facilities or ensure dwellings for employees and their

families;

c) the transactions involve movable and immovable assets acquired as a result of

enforcement of claims, and in case of hiring/letting operations with such assets, if the provisions of

Article 20 para. (2) and (3) are observed.

Art. 22 – (1) Credit institutions shall not engage in any other activities except for those

allowed in accordance with this emergency ordinance.

(2) Credit institutions shall not engage in activities such as:

a) pledging of its own shares against the credit institution’s debts;

b) granting of credits secured with shares or other equity instruments or bonds issued by the

credit institution or other undertaking belonging to the credit institution’s group;

c) acceptance of deposits or other repayable funds, securities or other valuables, from the

public, when the credit institution is under cessation of payments.

Section 2

Minimum requirements for pursuit of the business

2.1 Capital and risk management requirements

Art. 23 – (1) A credit institution’s own funds may not fall below the amount of initial

capital required at the time of its authorisation.

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(2) If the own funds should be reduced below the minimum amount provided for in para.

(1), the National Bank of Romania may, where the circumstances justify it, allow a credit institution

a limited period of time in which to remedy this situation or cease its activities.

Art. 24 - (1) Every credit institution shall have robust governance arrangements, which

include a clear organisational structure with well-defined, transparent and consistent lines of

responsibility, effective processes to identify, manage, monitor and report the risks it is or might be

exposed to, adequate internal control mechanisms, including sound administration and accounting

procedures, and remuneration policies and practices that are consistent with and promote sound and

effective risk management.

(2) The governance arrangements, processes and mechanisms referred to in para.(1) shall be

comprehensive and proportionate, related to the nature, scale and complexity of the activities of the

credit institution. The principles, technical criteria and other requirements considered shall be

established by regulations issued in the application of this emergency ordinance. The internal

control mechanisms shall provide at least the organising of the risk management tasks, and

compliance with conformity and internal audit.

(3) The National Bank of Romania shall collect information on the number of individuals

per credit institution in pay brackets of at least EUR 1 million or equivalent including the business

area involved and the main elements of salary, bonus, long-term award and pension contribution

and shall forward that information to the Committee of European Banking Supervisors.

(4) The National Bank of Romania shall use aggregate quantitative information on

remuneration, broken down by business area, provided by credit institutions in compliance with the

transparency and disclosure requirements, to benchmark remuneration policies and practices and

shall provide the Committee of European Banking Supervisors with that information.

2.2. Shareholders

Art. 25. - (1) Any proposed acquirer shall prior notify, in writing, the National Bank of

Romania with respect to any proposed acquisition, indicating the targeted threshold for equity

holding and providing the relevant information referred to in Art.26 para.(4).

(11) Where, for objective reasons, the notification can not be made in advance, the

obligation of notification is required from the date of acquisition.

(2) In applying the provisions of para. (1), the conditions where more persons are

considered to act in concert as proposed acquirer shall be established by regulations issued by the

National Bank of Romania.

(3) The National Bank of Romania shall confirm in writing the proposed acquirer, promptly

and in any event within two working days the receipt of notification and, if the case may be, of all

subsequent receipt of any additional information required, referred to in para.5 and shall

acknowledge the proposed acquirer each time, the expiry date of the assessment period.

(4) The National Bank of Romania shall perform the assessment referred to in Art. 26 para.

(1) no later than 60 working days as from the date of written acknowledgement of receipt of the

notification and of all documents required by the National Bank of Romania on the basis of the list

of information referred to in Art. 26 para. (4). If notification is not accompanied by all documents

required according to the regulations in force, the assessment period shall start on the date when the

National Bank of Romania confirms the receiving of all respective documents.

(5) If necessary, the National Bank of Romania may request in writing, no later than the 50th

working day of the assessment period referred to in para.(4), any further information that is

necessary to complete the assessment, and shall specify the information needed.

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(6) The proposed acquirer shall send the additional information no later than 20 working

days as from the date of providing the request, in case of unfulfilling of this obligation being

incident the provisions of Art. 26 para. (2). During that time, the assessment period referred to in

para. (4) shall be interrupted. Any other request from the National Bank of Romania for completion

or clarification of the received information shall not interrupt the assessment period.

(7) The National Bank of Romania may extend the interruption period referred to in para.

(6), up to 30 working days, if the proposed acquirer is:

a) situated or regulated outside the Community;

b) a natural or legal person or another entity situated in another Member State, not subject

to prudential supervision applicable to credit institutions, undertakings for collective investment in

transferable securities, assurance undertakings, insurance undertakings, capital market or

intermediaries in insurances.

(8) If the National Bank of Romania, upon the completion of the assessment, decide to

oppose the proposed acquisition, shall inform the proposed acquirer in writing about its decision,

within two working days after adopting the decision, but not exceeding the assessment period,

indicating the reasons of the decision. On the request of the proposed acquirer, the reason of the

decision can be disclosed.

(9) If the National Bank of Romania does not oppose the proposed acquisition within the

assessment period in writing, it shall be deemed to be approved.

(10) In case of approving the proposed acquisition, the National Bank of Romania may fix a

maximum period for concluding the proposed acquisition and extend it, where appropriate.

Art. 26. - (1) In assessing the notification provided for in Art. 25 para. (1) and of the

additional information referred to in Art. 25 para. (5), in order to ensure the sound and prudent

management of the credit institution in which an acquisition is proposed and having regard to the

likely influence of the proposed acquirer on the credit institution, the National Bank of Romania

apprises the suitability of the proposed acquirer and the financial soundness of the proposed

acquisition against all of the following criteria:

a) the reputation of the proposed acquirer, respectively its integrity and professional

competence;

b) the reputation and experience of any person performing management and/or running

responsibilities of the credit institution, as a result of the proposed acquisition;

c) the financial soundness of the proposed acquirer, in particular in relation to the type of

business pursued and envisaged in the credit institution in which the acquisition is proposed;

d) whether the credit institution will be able to comply with the prudential requirements based

on this emergency ordinance and on the regulations issued, based on its provisions, and, in

particular on the applicable legislation, especially on the Government Emergency Ordinance

no.98/2006, approved with amendments and supplements by Law no.152/2007, and by Law

297/2004, as further amended and supplemented, including the regulations issued, based on

their provisions, as well as to comply with these requirements, in particular whether the group

of which it will become a part of, has a structure that makes it possible to exercise effective

supervision, to effectively exchange information among the competent authorities and to

determine the allocation of responsibilities among the competent authorities;

e) whether there are reasonable grounds to suspect that, in connection with the proposed

acquisition, there has been commited an offence or an attempt of offence on money

laundering or terrorist financing within the meaning of Art. 2 lett. a), respectively lett. a1)

of Law no. 656/2002 on the prevention and sanctioning of money laundering and on the

initiation of measures for the prevention and fighting against financing terrorist activities,

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as further amended and supplemented, or that the proposed acquisition could increase the

risk thereof.

(2) The National Bank of Romania may oppose the proposed acquisition only if there are

reasonable grounds for doing so on the basis of the criteria set out in para. 1 or if the

information provided by the proposed acquirer is incomplete.

(3) The National Bank of Romania shall neither impose any prior conditions in respect of

the level of holding that must be acquired nor examine the proposed acquisition in terms of the

economic needs of the market.

(4) The National Bank of Romania shall make publicly available a list specifying the

information that is necessary to carry out the assessment and that must be provided to it at the

time of notification referred to in Art.25 para.1. The information required shall be proportionate

and adapted to the nature of the proposed acquirer and the proposed acquisition and shall be

relevant for a prudential assessment.

(5) The criteria referred to in para.1, the list of information specified in para.4 in performing

the assessment and the documentation shall be detailed by the National Bank of Romania’s

regulations.

(6) Notwithstanding Art.25 para.(3)-(7), where two or more proposals to acquire or increase

qualifying holdings in the same credit institution have been notified to the National Bank of

Romania, the latter shall treat the proposed acquirers in a non-discriminatory manner.

Art. 261. - (1) When carrying out the assessment referred to in Art.26 para.1, the National Bank

of Romania shall work in full consultation with the other supervisory local competent authorities or

from other involved Member States, if the proposed acquirer is one of the following:

a) a credit institution, assurance undertaking, insurance undertaking, reinsurance

undertaking, investment firm or management company authorised in another Member State or in

another sector of the financial system;

b) the parent undertaking of an entity referred to on lett.a) authorised in another Member State

or in another sector of the financial system;

c) a natural or a legal person controlling an entity referred to on lett.a) authorised in another

Member State or in another sector of the financial system.

(2) Within the meaning of para.1, the National Bank of Romania shall supply the other

supervisory authorities involved, without undue delay, any information which is essential or

relevant for the assessment. As a competent authority of the credit institution in which the

acquisition is proposed, the National Bank of Romania shall take into account all the essential

information provided by the supervisory authorities and may request all relevant information for the

assessment. The decision of the National Bank of Romania regarding the acquisition proposed shall

indicate any views or reservations expressed by the competent authority responsible for the

proposed acquirer.

Art. 262. - (1) If the proposed acquirer is a regulated entity situated in a third country, the

National Bank of Romania shall cooperate with the involved supervisory authority, if the following

conditions are simultaneously fulfilled:

a) the supervisory framework of the third country can be considered as equivalent by the

National Bank of Romania;

b) in the third country there are no laws, regulations or administrative measures in order to

preclude the exchanging of information;

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c) the competent authority of the third country expressed it’s availability for concluding a

cooperation agreement with the National Bank of Romania in exchanging of information.

(2) The regulated entity is a regulated entity within the meaning of Art.2 para.(1) point 5 of

the Government Emergency Ordinance no.98/2006, approved with amendments and supplements

by Law no.152/2007, as well as any similar entity of a third country.

Art. 27 – Any natural or legal person who has made a decision to dispose, directly or

indirectly, a qualifying holding in a credit institution, Romanian legal person or to reduce his

qualifying holding so that the proportion of the voting rights or of the capital held would fall below

20%, 30% or 50% or so that the credit institution would cease to be his subsidiary, shall notify in

writing the National Bank of Romania on this decision, according to the regulations issued on this

matter.

Art. 28. – For the provisions of Art. 25 and Art.27, for the calculation of the voting rights,

the regulations issued by the National Bank of Romania according to Art.16 shall be applicable.

Art. 29 – (1) On becoming aware of any acquisition or disposal of their shares that exceeds

the thresholds referred to in Article 25 para. (1) and (2), respectively falls below the thresholds

referred to in Article 27, credit institutions, Romanian legal entities, shall inform the National Bank

of Romania.

(2) At least once a year, credit institutions, Romanian legal entities, shall inform the

National Bank of Romania of the names of the persons possessing qualifying holdings and the sizes

of such holdings, according to the information available to them.

Art. 30 – Repealed

Art. 31 – (1) The National Bank of Romania may not set by regulations more strictly

requirements than those referred to in this sub-section for notification and for the assessment of

direct or indirect acquisitions of qualifying holdings in a credit institution, Romanian legal person.

(2) The National Bank of Romania shall monitor compliance with the conditions referred to

in this Subsection on a continuous basis; to this end, it may require credit institutions any

information it deems necessary and it may take appropriate measures, according to this emergency

ordinance, if the requirements are not met.

Chapter III

Authorisation of credit institutions, Romanian legal persons

Section 1

Authorisation procedure and reasons for rejecting the application

Art. 32 – (1) Credit institutions, Romanian legal persons, may be set up and may operate

solely on the basis of the authorisation granted by the National Bank of Romania.

(2) Credit institutions, Romanian legal entities, shall be set up in the legal status provided

for each category, according to Part II of this emergency ordinance. They could not be set up by

public subscription.

(3) The National Bank of Romania shall grant the authorisation to a credit institution only if

it is satisfied that the credit institution, a Romanian legal entity, can ensure the pursuit of business in

safety and in compliance with the requirements for a sound and prudent management, which

ensures the protection of interests of depositors and other creditors and the good operation of the

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banking system and, accordingly, the provisions of this emergency ordinance and of the regulations

issued for its application are observed.

Art. 33 – (1) The National Bank of Romania shall make a decision regarding an application for

authorisation of a credit institution, either for granting the approval of establishment of the credit

institution or for rejecting the application, within four months from the receipt of the application

and of the documents foreseen in Art.10 para.2 thereof.

(2) Within 5 working days from the receipt of the application, the National Bank of Romania

shall notify the applicant, if the case may be, on the missed documents according para.1, for their

prompt submission.

(3) The National Bank of Romania may request in writing, up to the period referred to in para.1,

but not later than 3 months from the receiving of application of authorization, any additional

information or documents, if those submitted are not sufficient or relevant in performing the

assessment or if the documents are deficient.

(4) Within one month from the communication of the requirement according to para.3, the

applicant shall submit the required information and/or requested documents, in order to remedy the

deficiency. During this period, the term of 4 months referred to in para.1 shall be suspended. The

applicant may provide by own initiative any other information or documents considered to be

relevant, no later than 30 days before the expiry date on which the National Bank of Romania shall

decide on the application.

(5) If the National Bank of Romania decides granting of approval for the establishment, the

credit institution, in order to obtain the authorisation for the pursuit of business, shall submit to the

National Bank of Romania no later than two months after receiving the National Bank of

Romania’s notification on its decision, the documents certifying the legal establishment of the

credit institution, according to the legal provisions applicable and to the conditions provided by the

project.

(6) The National Bank of Romania shall make a decision regarding the granting of authorisation

for the pursuit of business of the credit institution within up to four months from the date of

receiving the documents foreseen in para.(5).

(7) The National Bank of Romania may request in writing any additional information and

documents for the assessment and/or, by case, remedy of other deficiency, within one month from

receiving the documents foreseen in para.5, and the applicant shall submit them within one month

from receiving the requirement for their submission. The applicant may submit by own initiative

any other information and documents considered to be relevant, no later than 30 days before the

expiry date of the period referred to in para.6.

(8) Information and documents submitted after the expiry of periods foreseen for their

submission shall not be taking into consideration in the assessment of the authorization requirement

and shall be returned to the applicant.

(9) In any of the stages of the authorization process referred to in para.1 and para.6, the National

Bank of Romania shall notify in writing it’s decision to the applicant, indicating the underlying

rational in the event of rejection of the application for authorization.

Art. 34 – In the process of analysing an application for authorisation, the National Bank of

Romania may require any additional information and documents, if those submitted are incomplete

or insufficient for the assessment of the compliance with the conditions provided for granting the

authorisation.

Art. 35 – (1) The authorisation granted shall be valid for an indefinite period of time and

cannot be transferred to another undertaking.

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(2) The authorised credit institutions shall be registered with the register held by the

National Bank of Romania according to the provisions of Article 417.

Art. 36 – The National Bank of Romania shall notify the European Banking Authority about

any authorisation granted, so that the name of the credit institution will be entered in the list of

credit institutions drawn up and updated by the European Banking Authority, which is published on

its website.

Art. 37 – (1) Before granting authorisation to a credit institution, a Romanian legal entity,

the National Bank of Romania shall consult the competent authorities of another Member State

involved, if:

a) the credit institution, a Romanian legal entity, is a subsidiary of a credit institution

authorised in the respective Member State;

b) the credit institution, a Romanian legal entity, is a subsidiary of the parent undertaking of

a credit institution authorised in the respective Member State;

c) the credit institution, a Romanian legal entity, is controlled by the same persons as those

controlling a credit institution authorised in the respective Member State.

(2) Before granting authorisation to a credit institution, a Romanian legal entity, the

National Bank of Romania shall consult the National Securities Commission or the Insurance

Supervisory Commission or the responsible authority of another Member State involved, in charge

with the supervision of insurance undertakings or investment firms, if:

a) the credit institution, a Romanian legal entity, is a subsidiary of an insurance undertaking,

financial investment services company or investment firm authorised in another Member State;

b) the credit institution, a Romanian legal entity, is a subsidiary of the parent undertaking of

an insurance undertaking, financial investment services company or investment firm authorised in

another Member State;

c) the credit institution, a Romanian legal entity, is controlled by the same person as the one

controlling an insurance undertaking, financial investment services company or investment firm

authorised in another Member State.

(3) The authorities referred to in paras. (1) and (2) shall be consulted especially when

assessing the suitability of the shareholders/members of the credit institution, Romanian legal

person, and the reputation and experience of the persons involved in the administration and/or

management of another entity belonging to the same group, who are to be assigned administration

and/or management tasks pertaining to the credit institution, Romanian legal person. For this

purpose, they shall exchange information relevant for the granting of the authorization, as well as

for assessing compliance with the conditions for the pursuit of business on a permanent basis.

(4) With a view on assessing the quality of the persons and entities involved or linked to the

submitted authorisation project, on the request of the National Bank of Romania, the National

Office for Prevention and Control of Money Laundering shall provide information on the risk of

money laundering or terrorist financing relating to the persons or entities concerned.

Art. 38 – (1) The National Bank of Romania shall reject an application for authorisation, if:

a) the submitted documentation is incomplete or is not drawn up in compliance with the

legal provisions in force and/or the information submitted is not relevant or is insufficient for the

assessment on fulfilling the conditions foreseen for granting the authorization;

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b) the credit institution does not possess separate own funds or its initial capital is below the

minimum level set by the National Bank of Romania;

c) the legal status is different from that provided for the category of credit institution

intended to be set up;

d) the assessment of the programme of operations shows that the credit institution cannot

ensure the achievement of the assumed goals in compliance with the requirements provided by this

emergency ordinance and the regulations issued for its application;

e) the National Bank of Romania is not satisfied with the suitability of the persons ensuring

the administration and/or management of the credit institution, because their reputation or

professional expertise is inadequate to the nature, scale and complexity of the credit institution’s

activity or is not in line with the need to ensure a prudent and sound management;

f) the condition of the credit institution’s shareholders/members fails to fulfil the

requirements provided by this emergency ordinance and the regulations issued for its application;

g) the close links between the credit institution and other natural or legal persons, or the

legal provision or administrative measures in a third country’s jurisdiction governing one or more

natural or legal persons with which the credit institution has close ties or difficulties in the

enforcement of these provisions or measures could impede the effective exercise of the supervisory

functions;

h) before obtaining the setting-up approval, the founders have made public disclosures

regarding the functioning of the credit institution;

i) other conditions provided by the law or by the regulations issued for its application are not

fulfilled.

(2) The economic needs of the market should not be taken into consideration, under any

circumstances, as criterion in assessment of an application for authorisation or as grounds for its

rejection.

Section 2

Authorisation withdrawal

Art. 39 – The National Bank of Romania may withdraw the authorisation granted to a credit

institution in the following circumstances:

a) the credit institution has not commenced the business for which it was authorised within

one year from the date the authorisation was granted or has ceased to conduct business for more

than six months;

b) the authorisation has been obtained on the basis of false information or through any other

unlawful means;

c) the credit institution no longer fulfils the conditions based on which the authorisation was

granted;

d) the credit institution no longer possesses sufficient own funds or there are elements that

lead to the conclusion that within a short interval of time the credit institution will no longer fulfil

its obligations towards depositors or other creditors and, in particular, can no longer provide

security for the funds/financial instruments entrusted to it;

e) as a penalty, in accordance with the provisions of Article 229 para. (1) point e).

Art. 40 – (1) Shareholders or members of the credit institution may expressly renounce the

authorisation and decide that the credit institution will be dissolved and liquidated.

(2) The voluntary liquidation at the request of shareholders or members shall be allowed

only when the credit institution is not in any of the situations of insolvency provided by the law for

commencement of bankruptcy proceedings.

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(3) The credit institution shall notify the National Bank of Romania of the decision taken by

the general shareholders’ meeting or by its members to dissolve and liquidate the credit institution,

accompanied by at least a liquidation plan to dispose of assets and pay off debts, ensuring the full

payment of the claims of depositors and other creditors.

(4) Based on the assessment of the liquidation plan, the National Bank of Romania shall

approve the dissolution and liquidation of the credit institution only if the conditions provided in

paragraph (2) and (3) are fulfilled, confirming in this sense that the authorization has ceased to be

valid.

Art. 41 – (1) The authorisation shall cease to be valid in the following circumstances:

a) the credit institution has ceased to exist as a result of a merger or scission of the credit

institution;

b) the credit institution has been transformed in a different category of credit institution;

c) a court order for commencement of bankruptcy proceedings on the credit institution has

been passed.

(2) The cessation of validity of the authorisation of a credit institution, both for the

situations referred to in para. (1) and in Article 40, shall be published by the National Bank of

Romania in Monitorul Oficial al României, Part IV, and in two national daily newspapers at least.

Art. 42 – (1) The decision of the National Bank of Romania to withdraw the authorisation

shall be notified to the credit institution, along with the underlying rationale, and shall be published

in Monitorul Oficial al României, Part IV, as well as in two national daily newspapers at least.

(2) The decision to withdraw the authorisation shall produce effects from the date of its

publication in Monitorul Oficial al României, Part IV, or from a future date, as specified in the

decision.

Art. 43 – The withdrawal of authorisation of a credit institution or, as appropriate, the

cessation of its validity shall be notified to the European Commission and to the European Banking

Authority and, according to Articles 88 and 259, to the competent authorities of the host Member

States.

Art. 44 – (1) Following the withdrawal of authorisations, and provided that the credit

institution is not in any of the insolvency situations set by the Government ordinance No.10/2004

on the bankruptcy of the credit institutions, approved with amendments and completions by the

emergency ordinance No.278/2004 or, following the cessation of validity of the authorisation,

according to Article 40, para. (1), the credit institution shall go into liquidation, the provisions of

Section 3 of Chapter VIII under Title III, Part I regarding liquidation being therefore applicable.

(2) From the date of entry into force of the decision of withdrawal of authorisation, or from

the date when the authorisation ceased to be valid in the cases referred to in Article 40 para. (1) and

Article 41 point c), respectively, the credit institution may not carry on other activities than those

strictly related to liquidation.

Chapter IV

Treatment of credit institutions and financial institutions from other Member States

Section 1

Credit institutions from other Member States

Art. 45 – (1) Credit institutions authorised and supervised by the competent authority of

another Member State may carry on in Romania the activities referred to in Article 18, para. (1),

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points a) to n), either by the establishment of a branch or by way of directly providing of services,

provided that such activities are covered by the authorisation granted by the competent authority of

the home Member State and the Romanian legislation issued in the interest of the general good is

observed.

(2) Any number of branches set up in Romania by a credit institution with headquarters in

another Member State shall be considered a single branch.

Art. 46 – (1) For establishment of a branch by a credit institution from another Member

State, neither the obtaining of an authorisation from the National Bank of Romania, nor the

endowment capital for the branch is required. The supervision of the branch shall be performed in

accordance with the provisions of Chapters III and V of Title III, Part I.

(2), The National Bank of Romania shall perform the registration of the branches referred to

in para. (1) in the register of credit institutions on the basis of the notification referred to in Article

48.

Art. 47 – repealed

Art. 48 – (1) A credit institution authorised and supervised in another Member State may

establish a branch in Romania based on the notification sent to the National Bank of Romania by

the competent authority of the home Member State. Before the commencement of the activity,

within two months of receiving the notification, the National Bank of Romania shall communicate

to the credit institution concerned, if the case may be, the list of Romanian legal acts issued in the

interest of general good, stipulating the particular conditions under which certain activities may be

carried on.

(2) The notification referred to in para. (1) shall be accompanied by the following data and

information:

a) a programme of operations setting out at least the types of businesses envisaged and the

organisational structure of the branch;

b) the address of the registered office of the branch from which documents regarding its

activity may be obtained;

c) the identity of the persons responsible for the management of the branch;

d) the amount of the own funds of the credit institution and the sum of capital requirements.

(3) Upon receipt of a communication from the National Bank of Romania regarding the list

of regulations provided for in para. (1), or in the event of the expiry of the period of two months

provided for in that paragraph without receipt of any communication from the latter, the branch

may commence its activities.

(4) Any intention to change the information provided for in para. (2), points a) to c), shall be

subject to a written notice given to the National Bank of Romania by the credit institution in

question at least one month before making the change; in this period, the National Bank of Romania

shall inform the credit institution, if necessary, of the new conditions under which it may perform

activity in Romania.

Art. 49 – A credit institution authorised and supervised in another Member State may

exercise the freedom to provide services upon the notification sent to the National Bank of Romania

by the competent authority of the home Member State; the notification shall include the activities

which the credit institution intends to carry on in Romania.

Art. 50 – For the purpose of exercising its specific activities, a credit institution from

another Member State may use within Romania’s territory the same name as it uses in the home

21

Member State. In the event of there being any danger of confusion, the National Bank of Romania

may, for the purposes of an adequate clarification, require that the name be accompanied by certain

explanatory particulars.

Art. 51 – (1) Branches established in Romania by credit institutions from other Member

States shall be subject to the following provisions:

a) the provisions of Chapter II of Title II, Part I regarding banking secrecy;

b) the provisions of Article 102 para. (2) regarding the opening of the current account with

the National Bank of Romania;

c) the provisions of Article 103 regarding the elements of identification of a credit

institution;

d) the regulations issued by the National Bank of Romania regarding supervision of liquidity

of credit institutions;

e) the regulations issued by the National Bank of Romania in the field of monetary policy

and statistics.

(2) The provisions of para. (1) point a) are also applicable to credit institutions from other

Member States that exercise the freedom to provide services in Romania.

Art. 52 – (1) Branches of credit institutions from other Member States shall publish in the

Romanian language the accounting documents of the credit institution they belong to – annual

financial statements, consolidated financial statements, the report prepared by the administration

and/or management bodies and, as appropriate, the consolidated report prepared by the

administration and/or management bodies, opinion of the persons responsible for auditing the

annual and consolidated financial statements – prepared and audited in accordance with the

legislation of the home Member State.

(2) Branches referred to in para. (1) shall not be required to publish financial statements

relating to their own activity. However, they may be required to publish certain data and

information relating to their own activity, according to specific regulations in the field.

Art. 53 – (1) Credit institutions from other Member States shall notify the National Bank of

Romania of the establishment of representative offices in Romania in accordance with its

regulations.

(2) Representative offices shall solely perform market research, representative and customer

contact operations, and shall not carry on any kind of activities governed by this emergency

ordinance.

Section 2

Financial institutions from other Member States

Art. 54 – (1) Financial institutions having their registered office in another Member State may

carry on in Romania the activities referred to in Article 18, para. 1, points b) to n), either by the

establishment of a branch or by way of provision of services, if these financial institutions are

subsidiaries of one or more credit institutions, if those activities are mentioned in their

memorandum and Articles of association and each of the following conditions are fulfilled:

a) the parent undertaking or undertakings of the financial institution are authorised as credit

institutions in the Member State by the law of which the subsidiary financial institution is governed;

b) the activities in question are actually carried on within the territory of the same

Member State;

22

c) the parent undertaking or undertakings of the financial institution hold(s) 90% or more of

the voting rights attaching to shares in the capital of the financial institution;

d) the parent undertaking or undertakings of the financial institution shall satisfy the

requirements of the competent authority of the home Member State regarding the prudent

management of the subsidiary financial institution and shall have declared, with the consent of that

competent authority, that they jointly guarantee the commitments entered into by the subsidiary;

e) the subsidiary financial institution is effectively included, especially for the activities to

be carried on in Romania, in the consolidated supervision of the parent undertaking, or, as the case

may be, of each of the parent undertakings, in particular for the purposes of the minimum own

funds requirements set out in Article 126, for the control of large exposures, and for purposes of the

limitation of holdings in accordance with the provisions of Article 143.

(2) The provisions of Article 45 para. (2), Article 48 and Article 49 are also applicable

accordingly for the establishment of a branch or for the provision of services in Romania by a

financial institution from another Member State. In this case, the notification sent to the National

Bank of Romania shall also include the certificate of compliance with the conditions referred to in

para. (1).

(3) Except for the provisions of Article 48 point d), in the case of the establishment of a

branch, the notification shall include information regarding the amount of own funds of the

subsidiary financial institution and the sum of consolidated own funds and consolidated capital

requirements of the credit institution which is its parent undertaking.

Art. 55 – The supervision of the subsidiary financial institution, including the branch

established on Romania’s territory, shall be exercised by the competent authority of the home

Member State, according to the provisions of Chapters III and V of Title III, Part I, and by applying

the provisions of Section 3 of this chapter accordingly.

Art. 56 – When the National Bank of Romania is notified by the competent authority of the

home Member State that a financial institution ceases to fulfil any of the conditions referred to in

Article 54 para. (1), the activities carried on in Romania by that financial institution shall no longer

benefit from the treatment provided for in this section and shall be subject to the Romanian

legislation regulating the performance of those activities, if the case may be.

Art. 57 – The provisions of this section shall accordingly apply to subsidiaries of the

financial institutions situated in a Member State, as referred to in Article 54.

Art. 58 – repealed

Section 3

Powers of the National Bank of Romania

Art. 59 – (1) Credit institutions from other Member States which have established a branch

on Romania’s territory shall, for statistical purposes, report periodically to the National Bank of

Romania data and information regarding their activities carried on in Romania, according to the

regulations issued by the National Bank of Romania.

(2) In performing its responsibilities regarding the supervision of liquidity and adoption of

the measures needed to implement monetary policy, as laid down in Article 209, the National Bank

of Romania may require that branches of credit institutions from other Member States provide the

same information as they require from national credit institutions, Romanian legal persons, for these

purposes.

23

Art. 60 – (1) Where the National Bank of Romania ascertains that a credit institution from

another Member State having a branch or providing services in Romania is not complying with the

legal provisions adopted in Romania involving competences of the National Bank of Romania, it

shall require the credit institution concerned to put an end to that irregular situation and shall also

set a cut-off date for this.

(2) If the credit institution concerned fails to take the necessary steps, the National Bank of

Romania shall inform the competent authority of the home Member State accordingly, in order for

the latter to impose the measures deemed appropriate.

(3) If the credit institution persists in breaching the Romanian legislation in force, contrary

to the measures taken by the home Member State and communicated to the National Bank of

Romania, or if such measures prove inadequate or are not applicable in Romania, the National Bank

of Romania may, after notifying the competent authority of the home Member State, take

appropriate measures to prevent or punish further breaches of legal provisions and, in so far as is

necessary, to prevent the offending credit institution from initiating further transactions within

Romania’s territory. The National Bank of Romania shall notify the credit institution concerned

about the measures to be taken.

Art. 61 – The provisions of Article 59 and 60 shall not affect the power of other Romanian

authorities to take appropriate measures to prevent or to punish irregularities committed within

Romania’s territory which are contrary to the legal rules in force adopted in the interest of the

general good and to other provisions regarding public interest. These measures shall include the

possibility of preventing the offending credit institution from initiating further transactions within

Romania’s territory.

Art. 62 – (1) Any measure taken according to Article 60 or Article 61 involving sanctions or

restrictions on the exercise of the freedom to provide services shall be properly justified and

communicated to the credit institution concerned.

(2) The measures taken by the National Bank of Romania according to para. (1) shall be

subject to a right of appeal according to provision of Chapter IX of Title III, Part I.

Art. 63 – (1) Before following the procedure provided for in Art. 60, the National Bank of

Romania shall, in emergency cases, take any precautionary measures necessary to protect the

interests of depositors, investors and other services beneficiaries. The European Commission, the

European Banking Authority and the competent authorities of the other Member States concerned

shall be notified of such measures at the earliest opportunity.

(2) The National Bank of Romania shall amend or abolish the measures taken according to

para. (1), following a decision in this respect of the European Commission, issued after consulting

the competent authorities of the Member States concerned.

Art. 64 – If the National Bank of Romania is informed by the competent authority of the

host Member State that the authorisation of a credit institution operating within Romania’s territory

has been withdrawn or is no longer valid for any other reasons, the National Bank of Romania shall

take the necessary measures to prevent the credit institution concerned from initiating further

transactions within Romania’s territory and to safeguard the interests of depositors and other

creditors.

Art. 65 – The National Bank of Romania shall inform the European Commission and the

European Banking Authority of the number and type of cases in which measures have been taken in

accordance with Article 60.

24

Art. 66 – The provisions of this Section shall not prevent credit institutions with head

offices in other Member States from advertising their services through all available means of

communication, subject to any Romanian legal provisions of general interest governing the form

and the content of such advertising.

Chapter V

Treatment of credit institutions from third countries

Art. 67 – (1) Credit institutions having their registered office in third countries may perform

activity in Romania only if all the following requirements are met:

a) the activity is carried on by establishing a branch, the provisions of Article 45 para. (2)

being applied accordingly;

b) the branch has been authorised by the National Bank of Romania;

c) the competent authority of the country of origin does not oppose to the establishment of a

branch in Romania;

d) the provisions of this emergency ordinance and the regulations issued for its application

are observed.

(2) Activities that may be performed by the branch in Romania shall be included in the

authorisation granted by the National Bank of Romania, in accordance with the provisions of

Section 1, Chapter II of this Title, and may not exceed the scope of activity for which the competent

authority of the third country of origin has authorised the credit institution concerned.

(3) The activity performed by the branch established in Romania shall be subject to

prudential supervision of the National Bank of Romania in accordance with the provisions of

Chapter IV of Title III, Part I.

Art. 68 – The branch established in Romania may use the same name as that of the credit

institution in the home third country. In the event of there being any danger of confusion, the

National Bank of Romania shall, for the purposes of an adequate clarification, require that the name

be accompanied by certain explanatory particulars.

Art. 69 – (1) Authorisation requirements and those regarding carrying on the business,

provided for in Chapters II and III of this Title, are applicable accordingly to branches of credit

institutions from third countries, taking into account the following provisions.

(2) The National Bank of Romania shall grant authorisation to the branch of a credit

institution from a third country only if it is satisfied that the credit institution is able to ensure the

safe performance of activity within Romania’s territory and by preserving the requirements of a

prudent and sound management, as well as by securing that there are adequate conditions for

supervision to be exercised.

(21) The provisions of Article 37 para.(4) are also applicable accordingly, also regarding the

request of information relating to the persons and entities involved or linked to the authorisation

project of the branch of the credit institution in the third country.

(3) The National Bank of Romania shall notify the European Commission, the European

Banking Authority and the European Banking Committee of any authorisation granted to a branch

of a credit institution having its head office in a third country.

Art. 70 – The initial capital of a branch shall be made up of the endowment capital

provided, in cash, by the credit institution from the third country. The minimum amount of the

endowment capital shall be established by regulations and may not be less than the equivalent in

RON of EUR 5 million.

25

Art. 71 – (1) A credit institution in a third country shall designate at least two persons

responsible for the management of the branch in Romania, who shall be empowered to

legally engage the credit institution in Romania. Those persons shall enjoy sufficiently good

reputation and expertise to discharge the assigned duties. The provisions under Chapter I of Title II,

Part I, referring to the persons ensuring the management of credit institutions shall be applied

accordingly.

(2) The management of the branch and the documents needed to exercise supervision have to be

situated within Romania’s territory, at the address of the registered office.

Art. 72 – (1) In assessing the quality of the credit institution in a third country, inclusively

that of the persons owning qualifying holdings in that credit institution, the criteria provided for in

Article 26 para. (1), which shall be applied accordingly, as well as at least the following shall be

taken into account:

a) the amount of own funds, capital requirements and liquidity of the credit institution;

b) the laws and regulations provision or administrative measures of the home country of the

credit institution or difficulties in the enforcement of these provisions or measures, in light of the

possible impediments in the exercise of prudential supervision of the branch by the National Bank

of Romania.

(2) If close links exist between the credit institution from a third country and other natural or

legal persons, the National Bank of Romania shall grant authorisation only if these links do not

prevent the effective exercise of its supervision functions.

Art. 73 – Any material changes of the shareholders of the credit institution from the third

country or persons having close links to it, including those arising from merger or splitting-up

involving the credit institutions from a third country, shall trigger a new assessment by the National

Bank of Romania that may lead to the withdrawal of the authorisation granted to the branch

established in Romania, if the conditions underlying its authorisation are no longer met.

Art. 74 – The authorization granted to a branch of a credit institution from a third country

may be withdrawn by the National Bank of Romania under the conditions provided for in Art. 39.

Art. 75 – (1) The validity of an authorisation granted to a branch of a credit institution from

a third country shall cease in the following cases:

a) if credit institution concerned or, where it is involved in a merger/splitting-up leading to

its non-existence, the resulting entity shall renounce the authorisation, deciding also the dissolution

and liquidation of the branch;

b) if following certain reorganisation processes undertaken by the credit institution or by the

group it belongs to, including merger and splitting-up, the activity of the branch established in

Romania shall be taken over by another credit institution or by a branch established in Romania of a

credit institution from another Member State or third country;

c) if authorisation granted to the credit institution has been withdrawn by the competent

authority of the home state or its validity ceases;

d) if a court order for commencement of bankruptcy proceedings of the credit institution or

other proceeding involving its liquidation has been passed.

(2) In cases provided for at points a) and b), the credit institution shall inform the National

Bank of Romania of its decision about the dissolution and liquidation of the branch established in

Romania and shall send it at least a plan to sell the assets and pay off the liabilities so as to ensure

full payment of the claims of depositors and other creditors.

26

(3) The decision of dissolution and liquidation shall have effects only after the disclosure by

the National Bank of Romania concerning the cessation of validity of the authorisation. This shall

be communicated to the credit institution.

(4) The provisions of Article 41 para. (2) shall apply accordingly.

Art. 76 – (1) Branches of credit institutions in third countries shall publish in the Romanian

language the accounting documents of the credit institution they belong to – annual financial

statements, consolidated financial statements, report of the Board members and/or managers, and,

as appropriate, the consolidated report of the Board members and/or managers, opinion of the

persons responsible for auditing the annual and consolidated financial statements – prepared and

audited in accordance with the legislation of the third country.

(2) Where the requirements of the third country relating to preparation of the financial

statements referred to in para. (1) are in conformity with, or equivalent to the accounting regulations

adopted to the European Union level, the branch established in Romania of the credit institution

from the third country shall not be required to publish annual financial statements related to its own

activity if, on the condition of reciprocity, credit institutions from Member States benefit from the

same treatment in the third country in question. However, these branches may be required to

publish some data and information related to their own activity, as provided by the accounting

regulations issued under the provisions of the Accounting Law no.82/1991, republished, as

subsequently amended and completed.

(3) For failure to fulfil the provisions referred to in para. (2), the branches of credit

institutions from third countries shall publish annual financial situations related to their own

activity.

Art. 77 – (1) The provisions of Title II, Part I, shall apply accordingly to branches of credit

institutions from third countries that have been authorised to carry on business in Romania, to the

extent and under the term provided by regulations issued for the application of this emergency

ordinance.

(2) By way of derogation from the provisions of para. (1), the National Bank of Romania

may waive the application of some prudential requirements to branches of credit institutions from

some of the third countries if, as a result of making an assessment, it ascertains that the third

country has in place a prudential regulation framework equivalent to the one established by this

emergency ordinance and by the regulations issued for its application, and that the competent

authority of that country exercises adequate supervision of the credit institution, including the

activity of its branch in Romania.

(3) The treatment provided for in para. (2) could be applied only on a mutual basis and may

not be more favourable than that accorded to branches of credit institutions from other Member

States that pursue business in Romania.

Art. 78 – (1) Credit institutions from third countries shall notify the National Bank of

Romania about the establishment of representative offices in Romania, in compliance with the

regulations issued by it.

(2) Representative offices shall solely perform market research, representative and customer

contact operations, and shall not carry on activities governed by this emergency ordinance.

Art. 79 – Where, through agreements concluded with third countries at the level of the

European Union, the treatment of credit institutions from these countries that carry on business in

Member States differs from the one provided for in this emergency ordinance, the provisions of

such agreements shall prevail.

27

Chapter VI

The pursuit of business outside the territory of Romania

Section 1

Establishment of branches and provision of services in other Member States

Art. 80 – (1) Credit institutions authorised and supervised by the National Bank of Romania

may carry on in other Member States the activities referred to in Article 18 para. (1), points a) to n),

either by the establishment of branches or by way of directly providing of services if the activities

concerned are covered by the authorisation granted by the National Bank of Romania; their

authorisation by the competent authority of the host Member State is not necessary.

(2) The provisions of Article 45 para. (2) shall apply accordingly.

Art. 81 – (1) The credit institution, a Romanian legal person, intending to establish a branch

in another Member State shall send a notification to the National Bank of Romania, along with the

following data and information:

a) the Member State within the territory of which the branch is to be established;

b) a programme of operations of the branch, which includes at least the types of business

that are to be carried on and the structural organisation of the branch;

c) the address of the office of the branch where the documents related to the performed

activity may be obtained;

d) the identity of the persons designated to ensure the management of the branch and

information regarding their reputation and professional expertise.

(2) Within 3 months of the receipt of the notification, the National Bank of Romania shall

communicate the information received to the competent authority of the host Member State and

shall inform the credit institution accordingly, with the exception of the case when, taking into

account the activities envisaged, it has reasons to ascertain that the administrative structure or the

financial situation of the credit institution is not adequate; in this case, it could oppose to the

establishment of the branch and shall consequently refuse to communicate the information to the

competent authority of the host Member State.

(3) Along with the information provided by the credit institution under para. (1), the

National Bank of Romania shall also communicate information regarding the amount of own funds

and the sum of capital requirements of the credit institution to the competent authority of the host

Member State.

(4) If the National Bank of Romania refuses to communicate the information to the

competent authority of the host Member State, it shall inform the credit institution accordingly and

shall convey the underlying rationale of its decision within the term laid down in para. (2).

(5) The decision concerning the refusal to communicate the information, as well as the lack

of an answer from the National Bank of Romania within 3 months of the receipt of the notification

from the credit institution shall be subject to the right of appeal according to provisions of Chapter

IX of Title III, Part I.

Art. 82 – (1) The branch may commence its activity from the date the credit institution, a

Romanian legal entity, is communicated by the competent authority of the host Member State,

where appropriate, the conditions in which, in the interest of general good, the activities may be

carried on in the host Member State or, where there is no such communication, on the expiry of a

period of two months from the receipt of the information communicated by the National Bank of

Romania to the respective competent authority.

28

(2) The credit institution, a Romanian legal entity, shall notify the National Bank of

Romania and the competent authority of the host Member State about any intention to modify the

information it provides pursuant to Article 81, para. (1), points b) to d), at least one month before

the date the modification is to be made; within this period of time, the National Bank of Romania

shall take a decision pursuant to Article 81, para. (2), being able to oppose to the carrying-on of

activity by the branch in the new circumstances.

Art. 83 – (1) The credit institution, a Romanian legal entity, intending to provide services

directly in another Member State for the first time shall notify this to the National Bank of

Romania. The notification shall specify the host Member State concerned and the activities referred

to in Article 18, para. (1), points a) to n), which the credit institution intends to carry on in this

Member State.

(2) The credit institution, a Romanian legal entity, may provide services directly in another

Member State once the notification referred to in para. (1) is made.

(3) Within one month from the receipt of the notification pursuant to para. (1), the National

Bank of Romania shall send the notification to the competent authority of the host Member State.

Art. 84 – The National Bank of Romania shall inform the European Commission and the

European Banking Authority with regard to the number and the nature of cases in which it has

opposed to the establishment by a credit institution, a Romanian legal entity, of a branch in another

Member State or to the carrying on of business by such a branch.

Art. 85 – (1) If the National Bank of Romania is informed by the competent authority of the

host Member State of the fact that, though forewarned, a credit institution, a Romanian legal person,

which has a branch or directly provides services within the territory of the Member State concerned

does not comply with the legal provisions adopted in that Member State, which involves the powers

of that authority, the National Bank of Romania shall within the shortest delay take the necessary

measures to ensure that the offending credit institution puts an end to that irregular situation. The

nature of these measures shall be communicated to the competent authority of the host Member State.

(2) If, despite the measures imposed by the National Bank of Romania or because such

measures prove to be inadequate or inapplicable in the host Member State, the offending credit

institution, a Romanian legal person, persists in violating the legal provisions referred to in para. (1),

it shall be subject to the measures or sanctions imposed by the competent authority of the respective

Member State, including, where appropriate, the restriction on initiating further transactions within

the territory of that Member State, with the prior notification of the National Bank of Romania.

(3) The decision issued by the competent authorities of the host Member State, through

which measures or sanctions are imposed on the offending credit institution, a Romanian legal

person, according to para. (2), shall be fully recognised and produce legal effects in Romania.

Art. 86 – The credit institution, Romanian legal person, pursuing business within the

territory of another Member State is subject to the legal provisions in force in the host Member

State, adopted in the interest of general good, and to the measures and sanctions imposed by the

authorities of the respective Member State, one such measure being the interdiction of the pursuit

by the offending credit institution of any future activities within the territory of the host Member

State.

Art. 87 – (1) Before following the procedure provided for in Article 85, the competent

authority of the host Member State may, in emergency cases, take precautionary measures needed

to protect the interests of depositors, investors and other persons to whom services are provided by

a credit institution, Romanian legal person, pursuing business within the territory of the respective

29

Member State, measures of which the National Bank of Romania shall be informed at the earliest

opportunity.

(2) At the request of the European Commission, the National Bank of Romania shall

communicate its opinion on the precautionary measures adopted pursuant to para. (1).

Art. 88 – The National Bank of Romania shall accordingly inform the competent authorities

of the host Member States regarding the withdrawal of the authorisation of a credit institution, a

Romanian legal person, pursuing business within the territory of other Member States, including

with regard to the consequences of authorisation withdrawal or concerning the cessation of the

validity of the authorisation, where appropriate.

Art. 89 – (1) The financial institutions, Romanian legal persons, may pursue the activities

referred to in Article 18 para. (1), points b) to n), in other Member States, through the establishment

of branches or the direct provision of services, if:

a) financial institutions are subsidiaries of one or more credit institutions, Romanian legal

persons;

b) activities concerned are included in the Articles of Association of the financial institution;

c) all conditions provided for in Article 54 para. 1, points a) to e), that are applicable

accordingly, are fulfilled.

(2) The provisions of Article 45 para. (2), and Article 81 to 83 shall apply accordingly to the

financial institutions in Romania referred to in para. (1).

(3) The National Bank of Romania shall verify the compliance with the conditions provided

for in para. (1), and shall certify the fulfilment of them along with the notification send according to

Article 81 and Article 83 respectively. Except for the provisions of Article 81 para. (3), the

notification shall comprise information regarding the amount of own funds of the subsidiary

financial institution and the sum of consolidated own funds and consolidated capital requirements

of the parent credit institution, Romanian legal entity.

(4) The supervision of the subsidiary financial institution shall be exercised by the National

Bank of Romania in compliance with the provisions of Articles 23 to 31, Articles 172 to 174,

Articles 214 to 223, and Article 225.

(5) If the financial institution does no longer fulfil one of the conditions referred to in para.

(1), the National Bank of Romania shall notify the competent authority of the host Member State

accordingly; the activities carried on in the host Member State by that financial institution shall fall

within the provisions of the legislation of that Member State, the provisions of this emergency

ordinance being no longer applicable.

(6) The provisions of this article shall also apply accordingly to the Romanian subsidiaries

of the financial institutions referred to in para. (1).

(7) repealed

Art. 90 – The provisions of Articles 84 to 88 shall also apply accordingly to the

establishment of branches or to the provision of services in another Member State by the financial

institutions with head offices in Romania referred to Article 89.

Section 2

The establishment of branches in third countries

Art. 91 – (1) Credit institutions, Romanian legal entities, shall be able to carry on the

activities covered by the authorisation granted by the National Bank of Romania within the territory

of a third country, only through the establishment of a branch. For the purposes of this emergency

30

ordinance, all places of business established within the territory of a third country shall be

considered as a single branch.

(2) The establishment of a branch in a third country is subject to the prior approval of the

National Bank of Romania, according to the regulations issued by it.

(3) The National Bank of Romania may reject the application for approval of the

establishment of the branch if, on the basis of information held and documentation submitted by the

credit institution, Romanian legal entity, it ascertains that:

a) the credit institution does not have an adequate financial standing or the administrative

capacity to carry on the envisaged activity through the branch;

b) the existing legislative framework of the third country and/or the manner in which it is

implemented impedes the exercise by the National Bank of Romania of its supervisory functions;

c) the credit institution posts an inappropriate development of the prudential indicators or

does not comply with other requirements set by this emergency ordinance or by the regulations

issued for its application.

(4) Any change in the elements considered in the approval of the establishment of the

branch is subject to the prior approval of the National Bank of Romania.

Chapter VII

Authorisation in special cases

Section 1

Merger and splitting-up

Art. 92 – The merger or splitting-up of credit institutions, Romanian legal entities, shall be

performed according to the legal provisions in the field, as well as to the regulations issued by the

National Bank of Romania.

Art. 93 – (1) The merger may be performed:

a) between two or more credit institutions;

b) between credit institutions and financial institutions;

c) between credit institutions and ancillary services undertakings.

(2) The merger and splitting-up are subject to the prior approval of the National Bank of

Romania according to the regulations issued by it.

(3) The merger or splitting-up may be registered with the Trade Register only after prior

approval has been obtained from the National Bank of Romania.

(4) In the prior approval process, the National Bank of Romania shall analyse the documents

submitted, as well as any other available information so as to ensure that the legal requirements of

this emergency ordinance are met.

Art. 94 – When assessing a merger or a splitting-up, at least the following shall be

considered:

a) the fulfilment of the conditions for authorising a credit institution;

b) capital adequacy of the resulting credit institution/institutions;

c) the transparency of the structure of the resulting credit institution/institutions, so as this

allows the exercise of an effective supervision;

d) the suitability of the persons responsible for the administration and/or management of the

resulting credit institution/institutions.

31

Art. 95 – (1) Newly-established credit institutions, Romanian legal entities, resulting from a

merger or a splitting-up, as well as credit institutions going on after such an operation, shall fulfil all

the requirements laid down in this emergency ordinance and in the regulations issued for its

application.

(2) The established credit institutions, Romanian legal entities, shall obtain the authorisation

from the National Bank of Romania.

Art. 96 – The provisions of this section shall apply accordingly to any operation involving a

credit institution, a Romanian legal entity, leading to a total or significant transfer of its assets,

regardless of the legal technique in which such an operation is made.

Section 2

Turning another undertaking into a credit institution - repealed

Art. 97 – repealed

Art. 98 – repealed

Art. 99 – repealed

Art. 100 – repealed

TITLE II

OPERATIONAL REQUIREMENTS

Chapter I

Organisation and management

Art. 101 – (1) In pursuing their activity, credit institutions shall abide by the regulations

and measures adopted by the National Bank of Romania for carrying on its tasks laid down in the

Law No. 312/2004 on the Statute of the National Bank of Romania.

(2) Credit institutions shall organise their entire business in accordance with the rules of

prudent and sound banking practice, with the provisions of the law and the regulations issued in the

application of this one.

Art. 102 – (1) Credit institutions shall be established and shall operate under the terms of

the legislation applicable to commercial companies and in compliance with the provisions of this

emergency ordinance.

(2) Before it starts operating, each credit institution shall open a current account with the

National Bank of Romania, according to the regulations issued by it.

Art. 103 – In all its official documents, a credit institution shall be identified by a minimum

amount of information, as provided by the applicable legislation, and by mentioning the number

and date of registration in the credit institutions register provided under Article 417.

Art. 104 – The governance arrangements of a credit institution, the processes to identify,

manage, monitor and report the risks, the internal control mechanisms as well as the remuneration

policies and practices shall be established by its Articles of Association and internal regulations,

32

according to the legislation in force applicable to commercial companies and in compliance with

the provisions of this emergency ordinance and the applicable regulations.

Art. 105 – The Articles of Association and internal regulations of the credit institution shall

be submitted to the National Bank of Romania, according to the regulations.

Art. 106 – Without prejudice to the principles, rules and practices agreed within the

European Union in the field of corporate governance in the credit institutions, as they result from

the regulations issued by the National Bank of Romania, the Board members and the managers or,

as appropriate, the supervision committee and the directorate of the credit institution shall discharge

the duties and tasks provided for in the legislation on commercial companies, and they are

responsible for the fulfillment of all requirements provided for in this emergency ordinance and the

regulations issued for its enforcement.

Art. 107. – (1) Where a credit institution opts for a unitary management system, in

compliance with the legislation on commercial companies, its management is delegated by the

Board of Directors to at least two managers.

(2) Where a credit institution opts for a dual management system, the directorate comprises

at least 3 members, in compliance with the legislation on commercial companies.

(3) The directors of the credit institution and by case, the members of directorate shall

perform exclusively the tasks they have been appointed to, excepting the directors of the credit

institution applying for the unitary management system, which may also be administrators and

excepting the case where the person is fulfilling other tasks within other entities situated in the same

prudential consolidation perimeter where the credit institution is located.

(4) Repealed

Art. 108. – (1) The members of the board of administration and the directors, or by case, the

members of supervisory board and of the directorate of a credit institution, as well as the persons

appointed to conduct the business regarding the management and control of risks, internal audit,

conformity, treasury, credit activity, as well as any other activities which can expose the credit

institution to significant risks shall be of good repute and have sufficient experience to match the

nature, size and complexity of the business of the credit institution and of the entrusted

responsibilities and shall conduct the activity according to a sound and prudent banking practice.

(2) The administration and/or management duties may be fulfilled by natural entities only.

(3) Each of the persons mentioned under para.1 shall be approved by the National Bank of

Romania prior to starting the fulfilment of their tasks, according to the regulations issued.

(4) The members of the Board of Directors or, as appropriate, of the supervision committee

shall have the adequate skills and expertise to allow him to make well-grounded decisions

concerning all the issues related to the activity of the credit institution on which they shall decide in

compliance with their duties.

(5) The persons appointed as administrators, directors, members of the supervisory board or

by case, of the directorate, shall perform effectively the administration and/or management

responsibilities they are entitled to.

Art. 109 – The National Bank of Romania is vested with the power to analyse to what

extent the minimum requirements of this emergency ordinance and of the regulations issued for its

application are observed, to assess all circumstances and information regarding the activity,

reputation, moral integrity and background of each person mentioned under Art. 108 and to decide

whether the respective person fulfils the requirements laid down both at the individual and joint

level.

33

Art. 110. – (1) Besides the conditions stipulated by the legislation in force regarding the

Board members or, as appropriate, the members of the supervision committee, a person may not be

elected to the Board of directors or, as appropriate, the supervision committee of a credit institution

and if elected, he shall lose his mandate, where:

a) he holds another position within the credit institution, except where, in the case of a

unitary system, he is also the manager of the credit institution;

b) in the past five years, the supervisory authority withdrew his authorization to perform the

administration and/or management duties relative to a credit institution, a financial institution or an

insurance/reinsurance undertaking or another financial institution or he was replaced from the

position held in such entities due to reasons attributable to him;

c) he is forbidden, based on a legal provision, a court order or a decision made by another

authority, to perform the administration and/or management duties relative to one of the

entities referred to under letter b) or carry out business in one of the field specific to the above-

mentioned entities.

(2) The provisions laid down in para. (1) shall be applied, accordingly, to the managers who

are not Board members, and, as appropriate, to the members of the directorate.

Chapter II

Banking secrecy and the relationship with customers

Art. 111 – (1) The credit institution shall preserve the confidentiality of all facts, data and

information on the activity deployed, as well as of any fact, data or information at its disposal,

regarding the person, property, activity, business, personal or business relationships of the

customers, or any information related to the customers’ accounts – balances, flows, operations –, to

services or contracts concluded with its customers.

(2) For the purposes of this chapter, the customer of a credit institution is any person with

whom the credit institution has negotiated a transaction – in carrying on the activities set forth

under Article 18 and Article 20 – even if the respective transaction had not been concluded yet,

including the persons who benefit or benefited in the past from the services of a credit institution.

Art. 112 – (1) Any person discharging administration and/or management duties or

participating in the activity of a credit institution shall preserve confidentiality about any

fact, data or information referred to in Art. 111, which he found out while discharging the duties

related to the credit institution.

(2) The persons referred to in para. (1) are not entitled, either during or after their term of

service, to use or disclose facts or data, which, in the event they became publicly known, would

damage the interest or prestige of the credit institution or of any of its customers.

(3) The provisions of para. (1) and (2) shall also apply to the persons who obtain

information of the nature referred to above, from reports or other documents of the credit

institution.

Art. 113 – (1) The obligation of preserving professional secrecy in the banking field may

not hinder the competent authority in performing its supervisory tasks at an individual, consolidated

or sub-consolidated level, as applicable.

(2) Information subject to banking secrecy may be disclosed to the extent that the purpose

for which it is requested or is provided is deemed justified, as follows:

a) at the request of the accountholders or their legal heirs, including their legal and/or

statutory representatives, or with their explicit permission;

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b) in case when the credit institution has a legitimate interest;

c) at the written request of other authorities or institutions or ex officio, if the authorities or

institutions which are entitled, in order for these authorities and institutions to fulfil their specific

tasks, to require and/or to receive such information and the information which could be provided by

the bank for this purpose are clearly identified;

d) at the written request of the accountholder’s spouse when the submission to the court of

an action for the partition of goods is proved, or at the request of the court;

e) at the request of the court, with a view to solving various issues related to the case;

f) at the request of the official receiver, with a view to performing the forced sale, for the

existence of the prosecuted debtors’ accounts.

(3) According to the provisions of para. (2) point c), the application submitted to the credit

institution must contain the legal grounds for the request of information, the identity of the

customer the confidential information refers to, the category of the requested data and the purpose

for which the information is requested.

(4) The employees of a credit institution shall not use, for their personal benefit or for the

benefit of any other person, directly or indirectly, the confidential information referred to in Article

111 that is held or received by them in any way.

Art. 114 – In the case of criminal proceedings or at the written request of the prosecutor or

of the court or, as the case may be, of the criminal investigation bodies with the approval of the

prosecutor, credit institutions shall provide information subject to banking secrecy.

Art. 115 – The following shall not be considered a violation of banking secrecy:

a) providing aggregate information, so that the identity and other information about each

customer’s activity cannot be identified;

b) providing data to the entities established as Credit Information Bureau, Payment Incidents

Bureau or Deposit Guarantee Fund, organised in accordance with the law;

c) providing data to the financial auditor of the bank;

d) providing information at the request of correspondent credit institutions, if this

information is related to the transactions carried out through the correspondent accounts;

e) providing data and information to entities belonging to the group that the credit institution

is part of, information required for the purpose of supervision on a consolidated basis and for

fighting against money laundering and financing of terrorism;

f) remittance to the credit institutions of the existent information in the recordings of the

Banking Risk Division of the National Bank of Romania.

Art. 116 – The persons entitled to request and/or to receive information subject to banking

secrecy pursuant to this chapter shall be bound to preserve confidentiality and may only use it for

the purpose for which it was requested or provided, according to the law.

Art. 117 – (1) Credit institutions shall conduct transactions with their customers only on

contractual bases, acting prudently and in accordance with the specific legislation governing

consumer protection.

(2) Contracts shall be drawn up so as to facilitate the understanding by customers of all

contractual terms and conditions, in particular the liabilities undertaken by them in virtue of the

concluded agreement. Credit institutions shall not require their customers to pay interests, penalties,

commissions or other banking fees and charges, if these are not laid down in the contract.

(3) repealed

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Art. 118 – Repealed

Art. 119 – Credit institutions shall not condition the granting of credits or the provision of

other products/services to customers by the sale or purchase of shares/financial instruments issued

by the credit institution itself or by another undertaking belonging to the group the credit institution

is part of, or by the acceptance by the customer of other products/services being provided by the

credit institution or by an undertaking belonging to its group, which are not related to the lending

operation or to the requested product/service.

Art. 120 – Loan agreements, including the collateral or personal guarantee agreements,

concluded by a credit institution shall be considered writ of execution.

Art. 121 – Each credit institution shall draw up and keep, either at its registered office or at

its branches, one copy of the contractual documents, the internal documentation on the transactions

performed, the daily records of entries for every customer indicating at least the nature of the

transactions carried out and the amount due to or receivable from the customer, as well as any

information regarding its business relations with customers and other entities that the National Bank

of Romania might lay down in its regulations.

Chapter III

Risk mitigation requirements

Section 1

Scope

Art. 122 – Credit institutions shall comply with the requirements laid down in Article 24

and Article 126, in Sections 6, 7 and 8 of this chapter and in Chapter V herein, on an individual

and/or consolidated or sub-consolidated basis, as applicable. The level of application of these

requirements, on an individual and/or consolidated or sub-consolidated basis, as applicable, shall be

established through regulations issued for the application of this emergency ordinance.

Section 2

Own funds and the minimum level of own funds against risks

Art. 123 – For the purpose of providing stability and soundness of the performed activity

and/or of fulfilling of the commitments assumed, each credit institution shall keep an adequate level

of its own funds, in compliance with Article 126.

Art. 124 – The elements included in the calculation of own funds, the conditions and limits

where they may be taken into account and the situations where these limits may be exceeded, the

elements deducted in the calculation of own funds and any other requirements for their

determination, shall be established through regulations issued in the application of this emergency

ordinance, on a individual as well as on a consolidated level.

Art. 125 – Any reference to the concept of own funds laid down in this emergency

ordinance, in the regulations or any other enforcement acts issued pursuant to this emergency

ordinance, shall be deemed made to the definition of own funds established through regulations

issued for this purpose.

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Art. 126 – (1) Without prejudice to the provisions of Article 23 and to the competences of

the National Bank of Romania laid down in Article 226, credit institutions shall – to the extent and

as per the terms and conditions set out through regulations issued for the application of this

emergency ordinance, – provide own funds that are at all times more than or equal to the sum of

capital requirements established for the mitigation of the following risks: credit risk, including the

counter-party credit risk, dilution risk, position risk, settlement/delivery risk, foreign exchange risk,

commodities risk and operational risk, as applicable.

(2) The regulations shall set the methodologies for calculating the capital requirements for

covering the risks mentioned under para. (1), the underlying criteria and the business segments

under the scope of the concerned methodologies.

Section 3

Credit risk

Art. 127 – Credit institutions shall apply either the Standardised Approach, or, if permitted

by the National Bank of Romania, the Internal Ratings Based Approach to calculate the capital

requirements for covering credit risk, with a view to determining the risk-weighted exposure

amounts.

Art. 128 – The methodology for determining the risk-weighted exposure amounts by using

the Standardised Approach shall be set through regulations issued for the application of this

emergency ordinance.

Art. 129 – (1) In the case of the Standardized Approach, credit quality – including

securitized exposures – may be determined by reference to the credit assessments of External Credit

Assessment Institutions or of Export Credit Agencies, deemed eligible by the National Bank of

Romania, based on specific criteria laid down in the regulations issued for the enforcement of this

Government Emergency Ordinance.

(2) An External Credit Assessment Institution which has been recognised as eligible for this

purpose by the competent authority from another Member State or by the National Securities

Commission may be recognised as eligible by the National Bank of Romania without carrying on

its own evaluation process.

(3) The National Bank of Romania shall make publicly available an explanation of the

recognition process and a list of eligible External Credit Assessment Institutions.

Art. 130 – (1) The methodology for determining the risk-weighted exposure amounts using

the Internal Ratings Based Approach as well as the minimum requirements for approving this

method shall be formulated through regulations issued for the application of this emergency

ordinance.

(2) Credit institutions may obtain permission for using the Internal Ratings Based Approach

only if the National Bank of Romania is satisfied that the implemented systems for the management

and rating of credit risk exposures comply with the standards and the minimum conformity

assessment requirements established through regulations issued for the application of this

emergency ordinance.

(3) If a credit institution ceases to comply with the requirements set out in obtaining

permission for using the Internal Ratings Based Approach, it shall either present to the National

Bank of Romania a plan for a timely return to compliance or demonstrate that the effect of non-

compliance is immaterial.

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Art. 131 – Where a credit institution, a Romanian legal person, is an EU parent credit

institution or a subsidiary of an EU parent credit institution or of an EU parent financial holding

company, and the group which it is part of uses the Internal Ratings Based Approach on a unified

basis, the National Bank of Romania may allow minimum requirements to be met by the parent

undertaking and its subsidiaries considered together.

Art. 132 – Where a credit institution, Romanian legal person, is an EU parent credit

institution or a subsidiary of an EU parent credit institution or of an EU parent financial holding

company and when the Internal Ratings Based Approach is intended to be used within the group,

the National Bank of Romania shall cooperate with the competent authorities of the different

entities within the group, in respect of granting the approval to use the approach concerned as

provided for in Articles 182 to 188.

Art. 133 – (1) The credit institution which obtained the approval to use the Internal Ratings

Based Approach shall implement the Internal Ratings Based Approach for all exposures.

(2) By way of derogation from the provisions of para. (1), the National Bank of Romania

may approve the sequential implementation of the Internal Ratings Based Approach, subject to the

terms and conditions established through regulations issued for the application of this emergency

ordinance. Those conditions shall be designed to ensure that this treatment is not used selectively by

the credit institution with the purpose of achieving reduced minimum capital requirements.

(3) Except for the provisions of para. (1), credit institutions which obtained the approval to

use the Internal Ratings Based Approach may use the Standardised Approach for certain classes of

exposures, with the National Bank of Romania’s approval under the conditions set forth in

regulations.

Art. 134 – Whether employing the Standardised Approach or the Internal Ratings Based

Approach, the specific treatment governing the following categories of exposures shall be set forth

in the regulations issued for the application of this emergency ordinance:

a) exposures subject to credit protection;

b) securitized exposures and securitization positions;

c) exposures from derivative transactions, repurchase transactions, long settlement

transactions, margin lending transactions, and securities/commodities lending or borrowing

transactions.

Section 4

Market risks

Art. 135 – The methods for determining capital requirements for covering the position risk,

settlement/delivery risk, foreign exchange risk and commodities risk shall be formulated through

regulations issued for the application of this emergency ordinance.

Art. 136 – (1) The National Bank of Romania may allow credit institutions to calculate their

capital requirements for position risk, foreign-exchange risk and/or commodities risk using their

own internal risk-management models instead of or in combination with the methods described in

the regulations issued for the application of this emergency ordinance; it also sets the framework

governing the use of such methods.

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(2) Each credit institution shall apply for and obtain the approval from the National Bank of

Romania for using its own internal models, in accordance with the terms and conditions laid down

in the regulations issued for the application of this emergency ordinance.

Section 5

Operational risk

Art. 137 – Credit institutions shall at all times hold own funds against the operational risk

they are exposed to.

Art. 138 – (1) In computing the capital requirements for covering operational risk, credit

institutions may use the Basic Indicator Approach, or, with the prior approval of the National Bank

of Romania, the Standardised Approach, the Alternative Standardised Approach or the Advanced

Measurement Approach.

(2) The methodology for computing the capital requirements for operational risk, by using

the approaches listed in para. (1), as well as the requirements that credit institutions have to fulfil in

order to use such approaches, as appropriate, are laid down in the regulations issued for the

application of this emergency ordinance.

Art. 139 – Credit institutions may use, with the prior approval of the National Bank of

Romania, a combination of the approaches referred to under Article 138 para. (1), in accordance

with the terms laid down in the regulations issued for the application of this emergency ordinance.

Art. 140 – The provisions of Article 131 and Article 132 shall apply accordingly in case of

using the Advanced Measurement Approach in determining capital requirements for operational

risk.

Section 6

Large exposures

Art. 141 – Credit institutions shall fulfil at all times the requirements concerning large

exposures set forth through the regulations issued for the application of this emergency ordinance.

Art. 142 – Each credit institution shall have sound administrative and accounting

procedures and adequate internal control mechanisms for the purposes of identifying and recording

all large exposures and subsequent changes to them, in accordance with this emergency ordinance

and with the applicable regulations, and for monitoring those exposures in the light of each credit

institution’s own exposure policies.

Section 7

Qualifying holdings of credit institutions

Art. 143 – (1) No credit institution, a Romanian legal entity, may have a qualifying holding

the amount of which exceeds 15% of its own funds in an undertaking, other than a credit institution,

a financial institution, an insurance or a re-insurance company or an undertaking carrying on

activities which are a direct extension of banking, such as leasing, factoring, investment fund

management, or provides services ancillary to banking such as data processing services or any other

similar activity.

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(2) The total amount of the qualifying holdings of a credit institution, a Romanian legal

entity, in the undertakings listed under para. (1) should not exceed 60% of its own funds.

(3) The limits laid down in para. (1) and (2) may be exceeded only in exceptional

circumstances, in which case the National Bank of Romania shall require the credit institution either

to increase its own funds or to take other equivalent measures.

(4) The provisions of paragraphs (1) – (3) shall be applied in compliance with the provisions

of Aricle 122.

Art. 144 – Credit institutions, Romanian legal entities, may not acquire qualifying holdings

in the undertakings listed under Article 143 para. (1) if as a result of this acquisition they would

exercise control over the concerned entity.

Art. 145 – Shares held temporarily during a financial reconstruction or rescue operation or

during the normal course of underwriting or shares held temporarily in the own name of an

institution, a Romanian legal entity, but on behalf of other persons shall not be counted as

qualifying holdings and shall not be taken into account for the purpose of calculating the limits laid

down in Article 143 para. (1) and (2). In addition, shares which are not financial fixed assets shall

not be included in the calculation.

Art. 146 – (1) The National Bank of Romania’s prior approval is required for any qualifying

holding that a credit institution, a Romanian legal entity, intends to hold in an undertaking from a

third country, which, as a result of the acquisition of the holding in question, it would be included in

the prudential consolidation scope of the credit institution, a Romanian legal entity, according to the

applicable regulations.

(2) Among the requirements laid down while approving the acquiring of qualifying

holdings referred to in para. (1), the following shall be considered:

a) the acquisition of qualifying holdings shall not expose the credit institution, a Romanian

legal entity, to undue risks or hinder effective supervision on a consolidated basis;

b) credit institutions shall have adequate financial and organisational resources to handle the

acquiring and administering of the respective holdings.

(3) If the entity from a third country referred to in para.1 is a regulated entity, the National

Bank of Romania may cooperate with the involved supervisory authority according to the

conditions foreseen in Art.262.

Art. 147 – (1) The qualifying holdings, other than those requiring the National Bank of

Romania’s approval according to Article 146, including holdings which in exceptional cases exceed

the limits laid down under Article 143 para. (3) shall be notified to the National Bank of Romania

within 5 days from the date of their acquisition by the credit institution, a Romanian legal entity.

(2) Where a credit institution, Romanian legal person or, by case, its parent undertaking or

the natural or legal person controlling the credit institution decides to acquire or to increase a

qualifying holding, directly or indirectly, in another credit institution, assurance undertaking,

insurance undertaking, reinsurance undertaking, investment firm or management company,

authorized in another member state or by case, in another sector of the financial system, the

National Bank of Romania shall ensure cooperation by mutual consulting about all the matters with

the other national supervisory authorities or from other involved member states, by their notice. In

this respect, the National Bank of Romania shall provide at request any relevant information and by

its initiative any essential information and shall communicate the other supervisory authorities

involved its opinion and any personal reservation regarding the decision of acquisition.

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Section 8

Internal assessment process of capital adequacy in relation to risks

Art. 148 – (1) Credit institutions shall have in place sound, effective and complete strategies

and processes to assess and maintain on an ongoing basis the amounts, types and distribution of

capital that they consider adequate to cover the nature and level of risks to which they are or might

be exposed. In this respect, credit institutions shall take into account, in addition to the risks listed

in Article 126, any other risks to the performed activity, as well as those risks due to external

factors.

(11) The provisions of paragraph (1) shall be applied in compliance with the provisions of

Article 122.

(2) The processes and strategies laid down in para. (1) must be subject to regular internal

review by the credit institution to ensure that they remain comprehensive and proportionate, related

to the nature, scale and complexity of the activities of the credit institution concerned.

Art. 149 – The credit institutions are responsible for the internal assessment process of the

capital adequacy to its own risk profile.

Section 9

Other prudential requirements

Art. 150 – (1) The National Bank of Romania may set through regulations other prudential

requirements as well as the level of their application to credit institutions. These requirements may

be aimed at, without being limited to, the following:

a) liquidity risk;

b) the operations of credit institutions with persons having special relations with the credit

institution concerned;

c) the outsourcing of the credit institution’s activities;

d) prudential value adjustments;

e) changes related to the credit institution affecting the conditions considered when it was

authorised.

(2) Pursuant to the provisions of para. (1) point e), the changes requiring prior approval of

the National Bank of Romania and the changes for which subsequent notification is sufficient shall

be established through regulations issued in virtue of this emergency ordinance. Registration in the

trade register of the mentions regarding the amendments shall be performed only upon approval.

(3) The provisions of Article 37 paragraph (4) shall be also applied for requiring of

information relating to persons or entities involved or linked to the amendments in the position of

the credit institution to the conditions underlied for its authorisation.

Art. 151 – Banks, Romanian legal persons, may establish branches in Romania and may

open representative offices in Romania or abroad according to the conditions stipulated by the

National Bank of Romania’s regulations. The provisions of Article 53 para. (2) apply accordingly.

Chapter IV

Financial statements and audit

Art. 152 – (1) Credit institutions shall permanently keep accounting records according to

the provisions of the Accounting Law No.82/1991, republished, and shall draw up annual financial

41

statements and, accordingly, consolidated annual financial statements providing a fair view of the

financial position, financial profitability, cash flows and other information related to the activity

performed. The accounting records and the financial statements of a credit institution shall also

reflect the operations and financial position of its branches and subsidiaries, on an individual basis

and on a consolidated basis, respectively.

(2) The annual and, as the case may be, the annual consolidated financial statements of

credit institutions shall be audited by financial auditors, in accordance with international standards

and practices.

(3) Repealed

Art. 153 – Credit institutions shall submit to the National Bank of Romania their financial

statements, as well as other data and information required by the National Bank of Romania, in its

capacity as supervisory authority, at the time limits and in the form set up by its regulations.

Art. 154 – The National Bank of Romania may set up by regulations the carrying on of

audit of credit institutions and the standards applicable thereto, for purposes other than those

referred to in Article 152 para. (2).

Art. 155 – (1) The financial auditors of credit institutions shall be approved by the National

Bank of Romania.

(2) The National Bank of Romania may reject the appointment of a financial auditor if it

considers that the auditor lacks the adequate expertise and/or independence for the fulfilment of its

specific tasks or if it is established that the auditor failed to observe the particular requirements of

ethical and professional conduct.

(3) Credit institutions shall periodically replace the financial auditor or shall require the

financial auditor to periodically replace the coordinator of the team performing the financial audit

according to the National Bank of Romania’s requirements.

Art. 156 – (1) While performing his duties, the financial auditor of a credit institution shall

inform the National Bank of Romania as soon as he finds out about any fact or decision concerning

the credit institution which is liable to:

a) constitute a material breach of the law and/or regulations or other documents issued for its

application, which lay down the conditions for authorisation or requirements related to the pursuit

of activity;

b) affect the functioning of the credit institution;

c) lead to the financial auditor’s refusal to express an opinion on the financial statements or

to the expression of reservations.

(2) At the National Bank of Romania’s request, the financial auditor of the credit institution

shall provide any details, specifications, explanations related to the audit performed.

(3) The obligations provided for in para. (1) and (2) rest with the credit institution’s

financial auditor also when carrying on specific tasks in an undertaking having close links resulting

from a control relationship with the credit institution.

(4) The fulfilment in good faith by the financial auditor of the obligation to inform the

National Bank of Romania, according to para. (1) to (3), shall not constitute a breach of the

obligation to keep professional secrecy, which rests with the financial auditor according to the law

or the contractual clauses, and shall not involve the financial auditor in liability of any kind.

(5) The National Bank of Romania has access to all the documents drawn up by the

financial auditors during the audit.

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Art. 157 – The National Bank of Romania may withdraw the approval granted to a financial

auditor when he does not carry out, in an appropriate manner, the duties provided by law or does

not observe the particular requirements of ethical and professional conduct.

Art. 158 – The National Bank of Romania may issue specific regulations concerning the

relation between the financial auditor and the competent authority.

Chapter V

Disclosure by credit institutions

Art. 159 – (1) For the purpose of providing market discipline and transparency, credit

institutions shall disclose data and information regarding the activity performed, to the extent that

and under the conditions laid down in the regulations issued for the application of this emergency

ordinance.

(2) Credit institutions shall adopt formal policies to comply with the transparency and

disclosure requirements laid down, and have policies for assessing the appropriateness of their

disclosures, including their verification and frequency. Credit institutions shall also have policies

for assessing whether their disclosures convey their risk profile comprehensively to market

participants; where those disclosures do not convey the risk profile comprehensively to market

participants, credit institutions shall publicly disclose the information necessary in addition to that

required in accordance with paragraph 1, but only information which is material and not proprietary

or confidential in accordance with the technical criteria set out in the regulations referred to in

paragraph (1) shall be disclosed.

Art. 160 – An entity classified as a SME or another corporate, applying for a loan, may ask

the credit institution to provide them an explanation in writing, regarding its rating decision.

Art. 161 – (1) Credit institutions shall publish, as soon as practicable, the data and

information referred to in Article 159 at least on an annual basis.

(2) In the light of the criteria laid down in the regulations issued for the application of this

emergency ordinance, credit institutions shall decide if more frequent publication than that provided

for in para. (1) is necessary.

Art. 162 – (1) Each credit institution shall establish the methods for the disclosure of

necessary data and information, the location where such data and information are available and the

means of verification regarding the compliance with the disclosure requirements. To the degree

feasible, all disclosures shall be provided in the same medium or location.

(2) Equivalent disclosures made by credit institutions to the market, under accounting,

listing or other requirements, may be deemed to constitute compliance with the disclosure

requirements according to this emergency ordinance. If data and information are not included in the

financial statements, credit institutions shall indicate where they can be found.

Art. 163 – (1) For the purpose of providing transparency and market discipline, the National

Bank of Romania may impose credit institutions specific provisions regarding:

a) the content of data and information to be disclosed;

b) the frequency of disclosures and the establishment of deadlines for publication;

c) the media and location for disclosures, other than the financial statements;

d) the use of specific means of verification for the disclosures not covered by financial audit.

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Art. 1631 – The provisions of Articles 159 – 163 shall be applied in compliance with the provisions

of Article 122.

TITLE III

SUPERVISION AND DISCLOSURE REQUIREMENTS FOR

THE NATIONAL BANK OF ROMANIA

Chapter I

Supervision of credit institutions, Romanian legal persons

Art. 164 – For the purpose of protecting the interests of depositors and ensuring a sound and

viable banking sector, the National Bank of Romania shall carry on the prudential supervision of

credit institutions, Romanian legal persons, and of their branches established in other Member

States or in third countries, by setting rules and prudential banking indicators, by monitoring their

observance and the compliance with other requirements laid down by law and by the applicable

regulations, on an individual basis, as well as on a consolidated or sub-consolidated basis, as

appropriate, in order to prevent and reduce specific banking risks.

Art. 165 – Credit institutions, Romanian legal entities, shall report to the National Bank of

Romania the data and information necessary for assessing the compliance with the provisions

foreseen in this emergency ordinance and in the regulations issued for its application, at the time

limits and in the form set up by the National Bank of Romania.

Art. 166 – (1) The National Bank of Romania shall review the arrangements, strategies,

processes and mechanisms implemented by each credit institution, a Romanian legal entity, to

comply with the provisions of this emergency ordinance and of the regulations issued for its

application and shall evaluate the risks to which the credit institution is or might be exposed.

(2) On the basis of the review and evaluation, the National Bank of Romania shall determine

to what extent the governance arrangements, strategies, processes and mechanisms implemented by

the credit institution, a Romanian legal entity, as well as its own funds ensure the prudent

management and the adequate coverage of its risks, in relation to the risk profile of the credit

institution.

(3) The National Bank of Romania, taking into account the proportionality principle, shall

establish the frequency and extent of the reviews and assessments having regard to the size,

systemic importance, nature, scale and complexity of the activities performed by each credit

institution, Romanian legal person. The reviews and assessments shall be updated at least on an

annual basis.

Art. 167 – The National Bank of Romania shall pursue the efficient communication with

each credit institution, aimed at ensuring a deep knowledge of the activity, organisation and internal

process of the credit institution, a Romanian legal entity, of assessing the capital adequacy on its

risk profile.

Art. 168 – (1) The National Bank of Romania may recommend to a credit institution,

Romanian legal entity, to take appropriate measures to improve the governance arrangements,

strategies, processes and mechanisms implemented, to ensure the adequate organisation of the

activity performed or to restore or to sustain its financial position, also for the cases of finding the

deterioration of the credit institutions financial and prudential indicators. The credit institution shall

44

notify the National Bank of Romania about the measures taken, at the time limits established by the

latter.

(2) Independently of the recommendation, the National Bank of Romania may take

supervision measures and/or impose sanctions according to this emergency ordinance.

Art. 169 – The monitoring of fulfilment by credit institutions, Romanian legal entities, of

prudential and other requirements provided for by this emergency ordinance and by the applicable

regulations, shall be carried on by the National Bank of Romania on the basis of reports provided

by credit institutions and on-site inspections at the head offices of credit institutions and of their

branches in Romania and abroad.

Art. 170 – (1) The on-site inspections are performed by the staff of the National Bank of

Romania, authorised for this purpose, or by financial auditors or experts, appointed by the National

Bank of Romania.

(2) The National Bank of Romania may establish, in certain situations, the purpose of the

financial audit and the standards which shall be taken into consideration, in the terms of keeping it

in the scope of competences of the financial auditor.

Art. 171 – (1) Credit institutions, Romanian legal entities, are compelled to allow the staff

of the National Bank of Romania and other persons authorised to carry on the inspection, to

examine their reports, accounts and operations and to provide all the documents and information

related to the activity performed, as they are requested.

(2) Credit institutions, Romanian legal entities, are compelled to transmit to the National

Bank of Romania any information required by the latter, in order to perform its responsibilities

established by law.

Art. 172 – (1) The prudential supervision of credit institutions, Romanian legal persons,

which carry on activities in other Member States, according to the terms referred to in Chapter VI

of Title I, Part I, particularly by establishment of a branch, shall be the responsibility of the National

Bank of Romania, in compliance with the provisions of this emergency ordinance.

(2) The provisions of para. (1) shall not prevent the competent authority of the host Member

State from exercising its responsibilities regarding the implementation of monetary policy, the

reporting requirements for statistical purposes and of those requirements resulting from the

provisions of para. (3).

(21). In the exercise of its general duties of prudential supervision, the National Bank of

Romania duly consider the potential impact of its decisions on the stability of the financial system

in all other Member States concerned and, in particular, in emergency situations, based on the

information available at the relevant time.

(3) The supervision of the liquidity of the branches established in other Member States by

the credit institutions, Romanian legal persons, shall be carried on by the competent authority of the

host Member State, in cooperation with the National Bank of Romania.

Art. 173 – (1) In order to ensure the prudential supervision of Romanian credit institutions

operating in other Member States, in particular through a branch, the National Bank of Romania

shall closely cooperate with the competent authorities of the host Member States.

(2) Within the framework of cooperation referred to in para. (1), the competent authorities

shall supply one another with all information concerning the management and ownership of such

credit institutions, Romanian legal entities, that is likely to facilitate their supervision and the

45

examination of the conditions for their authorisation, and all information likely to facilitate the

monitoring of the activity of such institutions on a on-going basis, in particular with regard to

liquidity, solvency, deposit guarantees, the limiting of large exposures, administrative and

accounting procedures and internal control mechanisms.

(3) The National Bank of Romania may refer situations where a request for collaboration, in

particular to exchange information, has been rejected or has not been acted upon within a

reasonable time, to the European Banking Authority, which may act in accordance with the powers

conferred on it under Article 19 of the Regulation of the European Parliament and of the Council

no.1093/2010.

Art. 1731 (1) On the request regarding the designation of a branch from another Member

State of a credit institution, Romanian legal person, as being significant, the National Bank of

Romania shall do everything within its power to reach a joint decision with the competent authority

of the host Member State and, by case, with the competent authority responsible with the

consolidated supervision, in considering the tasks of the latter, similar to those provided in Art.181

para.(1).

(2) The provisions of Art.2101 para.(2) shall be applied accordingly.

(3) If no joint decision is reached according to the provisions of para.(1), the decision taken

by the competent authorities of the host Member State shall be final and opposable to the National

Bank of Romania, which shall apply it accordingly.

(4) The designation of a branch as being significant shall not affect the rights and

responsibilities of the competent authorities involved.

Art.1732 – (1) The National Bank of Romania shall communicate to the competent

authorities of the host Member State within the territory of which a significant branch is established

by a credit institution, Romanian legal person, the information referred to in Article 186 para.(4)

lett.(c) and (d) and shall carry out the tasks referred to in Article 181 para.(1) lett.c) in cooperation

with the competent authorities of the host Member State.

(2) If the National Bank of Romania becomes aware of an emergency situation in a credit

institution as referred to in Article 183 para.(1), it shall alert as soon as practicable the authorities

referred to in Article 222 para.(6) and in Article 2221 para.(1).

Art.1733 – (1) In the case of a credit institution, Romanian legal person, with significant

branches in other Member States, if the provisions of Art.1851 – 185

5 are not applicable, the

National Bank of Romania shall establish and chair a college of supervisors to facilitate the

cooperation under Art.173 and 1732.

(2) The establishing and functioning of the college shall be based on written arrangements

determined, by the National Bank of Romania, after consultation with the competent authorities

concerned. The manner of functioning of the supervisory colleges shall consider also the guidelines

drawn up by the Committee of European Banking Supervisors.

(3) The National Bank of Romania shall decide the participation of the competent

authorities at a meeting or activity of the college.

(4) The decision of the National Bank of Romania shall consider the relevance of the

supervisory activity to be planned or coordinated by those authorities, in particular the potential

impact on the financial stability of the financial system in the Member States concerned referred to

in Article 172 para.(21), as well as the obligations of the National Bank of Romania referred to in

Article 1732.

(5) The National Bank of Romania shall keep all members of the college fully informed, in

advance, on the organization of such meetings, the main issues to be discussed and the activities to

46

be analyzed. The National Bank of Romania shall also keep all members of the college fully

informed, in a timely manner, of the actions taken in those meetings or the measures carried out.

Art.1734 – (1) In the exercise of its duties, the National Bank of Romania shall take into

account the convergence in respect of supervisory tools and practices in the application of the law,

regulations and requirements of the competent authorities, adopted to national and Community

level. For that purpose:

(a) the National Bank of Romania shall participate in the activities of the European Banking

Authority;

(b) the National Bank of Romania shall follow the guidelines, recommendations, standards and

other measures agreed by the European Banking Authority or shall state the reasons if they do not

do so;

(c) national mandates conferred on the National Bank of Romania as a competent authority on the

national level do not inhibit the performance of its duties as a member of the European Banking

Authority or of other duties in the prudential supervisory field of the credit institutions.

Art. 174 – (1) In order to supervise the business of branches established in other Member

States by credit institutions, Romanian legal persons, the National Bank of Romania may perform

on-site inspections, after having first informed the competent authorities of the host Member States,

or may ask competent authorities concerned to perform this task, and participate in the carrying on

of inspection, if necessary.

(2) The competent authority of the host Member State may carry on, in the performance of

its responsibilities, on-site inspections at the head offices of branches established within their

territory, by credit institutions, Romanian legal persons.

Art. 175 – For the supervision of branches established in third countries by credit

institutions, Romanian legal persons, the National Bank of Romania shall cooperate with the

competent authorities of the respective country, according to the provisions referred to in the

cooperation agreements concluded with these authorities.

Chapter II

Supervision on a consolidated basis

Section 1

The competent authority responsible for supervision on a consolidated basis

Art. 176 – (1) The supervision on a consolidated basis of a credit institution, a Romanian

legal person, shall be exercised by the National Bank of Romania in the following situations:

a) when the credit institution authorised by the National Bank of Romania is a parent credit

institution in Romania or an EU parent credit institution;

b) when the credit institution authorised by the National Bank of Romania has as a parent

undertaking, a parent financial holding company in Romania, or an EU parent financial holding

company, provided that, in the latter case, the parent undertaking has no other credit institutions in

the Member States as subsidiaries;

c) when the credit institution authorised by the National Bank of Romania has as parent

undertaking, established in Romania, a parent financial holding company in Romania or an EU

47

parent financial holding company and which is a parent undertaking for at least one more credit

institution authorised in another Member State;

d) when the credit institutions authorised in two or more Member States, including

Romania, have as parent undertakings more than one financial holding companies having their head

offices in different Member States and there is a subsidiary credit institution in each of these States,

and from among these subsidiaries, the credit institution, a Romanian legal person, has the largest

balance sheet total;

e) when the credit institution authorised by the National Bank of Romania has as parent

undertaking a financial holding company which is also a parent undertaking for at least another

credit institution authorised in any other Member State, and none of these credit institutions has

been authorised in the Member State in which the financial holding company was set up, and the

credit institution authorised in Romania has the largest balance sheet total; this credit institution

shall be considered, for the purposes of supervision on a consolidated basis, as credit institution

controlled by an EU parent financial holding company.

(2) In particular cases, the National Bank of Romania may, by common agreement with the

competent authorities of other Member States, not apply the criteria referred to in para. (1) points c)

to e), if their application would be inappropriate, taking into account the credit institutions

concerned and the relative importance of their activities in different countries, and appoint a

different competent authority to exercise supervision on a consolidated basis. In these cases, before

taking a decision, the competent authorities shall give the EU parent credit institution, or the EU

parent financial holding company, or the credit institution with the largest balance sheet total, as

appropriate, the opportunity to state its opinion on that decision. The competent authorities shall

notify the European Commission and the European Banking Authority of any agreement, falling

within the scope of this paragraph.

Art. 177 – Credit institutions, Romanian legal persons, subsidiaries in Romania, are

supervised on a sub-consolidated basis by the National Bank of Romania if they or their parent

undertakings, where these are financial holding companies, and the supervision on a consolidated

basis is performed by the National Bank of Romania, according to the provisions of Article 176

para. (1) points c), d) or e), have in a third country a subsidiary credit institution, financial

institution or investment management company, or hold a participation in such entities.

Art. 178 – The scope of the prudential consolidation, including the cases of exclusion from

the scope of consolidation, as well as the prudential consolidation methods shall be set forth

through regulations issued for the application of this emergency ordinance.

Art. 179 – (1) Financial holding companies shall be included in the supervision on a

consolidated basis.

(2) Without prejudice to the provisions of Article 196 para. (1), the provisions of para. (1)

shall not in any way imply that the National Bank of Romania is required to play a supervisory role

in relation to the financial holding company, on an individual basis.

Art. 180 – (1) When a subsidiary credit institution, a Romanian legal person, is not included

within the scope of supervision on a consolidated basis, exercised by a competent authority of

another Member State, the National Bank of Romania may require the parent undertaking to

provide information which may facilitate the supervision of that credit institution.

(2) When, the supervision on a consolidated basis of a credit institution, a Romanian legal

person, does not include a subsidiary credit institution of another Member State, the parent credit

institution in Romania or the parent financial holding company in Romania, as appropriate, shall

48

provide information which may facilitate the supervision of that subsidiary credit institution, at the

request of the competent authorities of that Member State.

(3) The National Bank of Romania, in its capacity as competent authority, responsible for

exercising supervision on a consolidated basis, may require the subsidiaries of a credit institution or

of a financial holding company, which are not included within the scope of supervision on a

consolidated basis, the information referred to in Article 194. In such a case, the procedures for

transmitting and verifying the information as are laid down in Article 194 and 195 shall apply.

(4) Subsidiaries, Romanian legal persons, of a credit institution or a financial holding

company, which are not included within the scope of supervision on a consolidated basis, shall

provide the information referred to in Article 194, at the request of the authority responsible for

exercising supervision on a consolidated basis, including when this authority is a competent

authority of another Member State.

Art. 181 – (1) The National Bank of Romania, in its capacity as authority responsible for

exercising supervision on a consolidated basis of EU parent credit institutions, Romanian legal

persons, and of credit institutions, Romanian legal persons, controlled by EU parent financial

holding companies, shall carry out the following tasks:

a) coordination of the collection and dissemination of relevant or essential information in

going concern and emergency situations;

b) planning and coordination of supervisory activities in going concern, as well as in

emergency situations, including in relation to the activities referred to in Articles 24, 148, 159-163,

166, 226, in cooperation with the competent authorities involved;

c) planning and coordination of supervisory activities in cooperation with the competent

authorities involved, and if necessary, with central banks, in preparation for and during emergency

situations, including adverse developments in credit institutions or in financial markets using, where

possible, existing defined channels of communication, for facilitating crisis management.

(11) Where the National Bank of Romania, as a consolidating supervisor fails to carry out

the tasks referred to in the first subparagraph or where the competent authorities do not cooperate

with the consolidating supervisor to the extent required in carrying out the tasks in the first

paragraph, the National Bank of Romania and any of the competent authorities concerned may refer

the matter to the European Banking Authority, in accordance with the provisions of Art.19 of the

Regulation of the European Parliament and of the Council no.1093/2010.

(2) The planning and coordination of supervisory activities referred to in para.(1) lett.c)

includes exceptional measures referred to in Article 188 para.(1) lett.b), the preparation of joint

assessments, the implementation of contingency plans and communication to the public.

Art. 182 – (1) In the case of applications for the permissions to use the internal models for

computing capital requirements, submitted by an EU parent credit institution and its subsidiaries, or

jointly by the subsidiaries of an EU parent financial holding company, where at least a credit

institution, a Romanian legal person, is part of the group, the National Bank of Romania and the

competent authorities shall cooperate in order to decide whether or not to grant the permission and,

as appropriate, to determine the terms and conditions, if any, to which such permission should be

subject.

(2) Any application as referred to in para. (1) shall be submitted only to the National Bank

of Romania, where the latter is the competent authority according to Article 181.

(3) The National Bank of Romania shall do everything within its power to reach a joint

decision on the application with the other competent authorities within six months. This joint

decision shall be set out in a document containing the fully reasoned decision, which shall be

49

provided to the applicant by the National Bank of Romania, where the latter is the competent

authority according to Article 181.

(4) The period of six months referred to in para. (3) shall begin on the date of receipt by the

National Bank of Romania of the application and the complete documentation in view of the

regulations issued in the application of this emergency ordinance, in its capacity as competent

authority, according to Article 181. The National Bank of Romania shall without delay forward that

application to the other competent authorities.

(5) In the absence of a joint decision between the competent authorities within six months,

the National Bank of Romania, in its capacity as competent authority, according to Article 181,

shall make its own decision on the application. The decision shall be set out in a document

containing the fully reasoned decision and shall take into account the views and reservations of the

other competent authorities expressed during the six-month period. The decision shall be final and

shall be provided to the applicant and the other competent authorities by the National Bank of

Romania.

(51) If, at the end of the six month period, any of the competent authorities concerned has

referred the matter to the European Banking Authority, according to the settlement of

disagreements referred to in Article 19 of the Regulation of the European Parliament and of the

Council no.1093/2010, the National Bank of Romania, as a consolidating supervisor shall defer its

decision and await any decision that the European Banking Authority may take in accordance with

Article 19(3) of that Regulation. The National Bank of Romania shall take a decision in conformity

with the decision of the European Banking Authority. The six month period shall be deemed the

conciliation period within the meaning of Article 19 of the Regulation of the European Parliament

and of the Council no.1093/2010. In accordance with the provisions of Art.9 paragraph (1) lett.b) of

Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010

amending Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC,

2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC and 2009/65/EC in respect of the powers of

the European Supervisory Authority (European Banking Authority), the European Supervisory

Authority (European Insurance and Occupational Pensions Authority) and the European

Supervisory Authority (European Securities and Markets Authority), the European Banking

Authority shall take its decision within 1month. The matter shall not be referred to the European

Banking Authority after theend of the six month period or after a joint decision has been reached by

the involved competent authorities.

(6) The decisions taken according to the provisions of para. (3), as well as those taken by

the competent authorities responsible for the supervision on a consolidated basis, where no joint

decision has been made, are final and opposable to the National Bank of Romania, which shall

apply them accordingly.

Art. 1821

- (1) The National Bank of Romania, as a consolidating supervisor shall do

everything within its power to reach a joint decision with the authorities responsible for the

supervision of subsidiaries of an EU parent credit institution or an EU parent financial holding

company in a Member State on the application of Articles 148 and 166, to determine the adequacy

of the consolidated level of own funds held by the group with respect to its financial situation and

risk profile and the required level of own funds for the application of Article 226 para.(3) to each

entity within the banking group and on a consolidated basis.

(2) The provisions of para.(1) are applicable also if the National Bank of Romania is the

authority responsible for the supervision on an individual basis of credit institutions, Romanian

legal persons, being subsidiaries of an EU parent credit institution or of an EU parent financial

holding company.

50

Art. 1822 - (1)

The joint decision referred to in Art. 182

1 para.(1)

shall be reached within

four months after submission by the National Bank of Romania, as a consolidating supervisor, to

the other relevant competent authorities, of a report containing the risk assessment of the group in

accordance with Articles 148 and 166. The joint decision shall also duly consider the risk

assessment of subsidiaries performed by relevant competent authorities in accordance with Articles

148 and 166.

(2) The joint decision referred to in Art. 1821

para.(1) shall be set out in a document

containing the fully reasoned decision which shall be provided to the EU parent credit institution by

the National Bank of Romania, as a consolidating supervisor.

(3) In the event of disagreement, the National Bank of Romania, as a consolidating

supervisor shall, at the request of any of the other competent authorities concerned, consult the

European Banking Authority. The National Bank of Romania, as a consolidating supervisor, may

consult the European Banking Authority on its own initiative.

Art. 1823 - (1)

In the absence of such a joint decision between the competent authorities

within four months, a decision on the application of Articles 148, 166 and Article 226 para.(3) shall

be taken on a consolidated basis by the National Bank of Romania, as a consolidating supervisor,

after duly considering the risk assessment of subsidiaries performed by relevant competent

authorities.

(2) If, at the end of the four month period, any of the competent authorities concerned has

referred the matter to the European Banking Authority, according to the settlement of

disagreements referred to in Article 19 of the Regulation of the European Parliament and of the

Commission no.1093/2010, the National Bank of Romania, as a consolidating supervisor shall defer

its decision and await any decision that the European Banking Authority may take in accordance

with Article 19(3) of that Regulation. The National Bank of Romania shall take a decision in

conformity with the decision of the European Banking Authority. The four month period shall be

deemed the conciliation period within the meaning of Article 19 of the Regulation of the European

Parliament and of the Council no.1093/2010. In accordance with the provisions of Art.9 paragraph

(1) lett.b) of Directive 2010/78/EU of the European Parliament and of the Council of 24 November

2010 amending Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC,

2004/39/EC, 2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC and 2009/65/EC in respect of the

powers of the European Supervisory Authority (European Banking Authority), the European

Supervisory Authority (European Insurance and Occupational Pensions Authority) and the

European Supervisory Authority (European Securities and Markets Authority), the European

Banking Authority shall take its decision within 1month. The matter shall not be referred to the

European Banking Authority after theend of the four month period or after a joint decision has been

reached by the involved competent authorities.

Art. 1824 -

(1)

The decision on the application of Articles 148, 166 and Article 226

para.(3) shall be taken on an individual or sub-consolidated basis by the National Bank of Romania

responsible for supervision on an individual basis of credit institutions, Romanian legal persons,

being subsidiaries of an EU parent credit institution or an EU parent financial holding company,

after duly considering the views and reservations expressed by the consolidating supervisor.

(2) The provisions of Art. 1823 paragraph (2) shall apply accordingly.

Art. 1825 - The decisions referred to in Articles 182

2 - 182

4 shall be set out in a document

containing the fully reasoned decisions and shall take into account the risk assessment, views and

51

reservations of the other competent authorities expressed during the four-month period referred to

in Article 1822 para.(1)

. The document shall be provided by the National Bank of Romania to all

competent authorities concerned and to the EU parent credit institution.

Art. 1826 - (1)

Where the European Banking Authority has been consulted, according to

the provisions of Art.1822 para.(3), the National Bank of Romania shall consider such advice, and

explain any significant deviation therefrom.

(2) The National Bank of Romania shall consider the advice of the European Banking

Authority and shall explain any significant deviation therefrom, inclusively when consultation is

performed by another competent authority, as a consolidated supervisor.

Art. 1827 - (1)

The joint decision referred to in Art.182

1 and the decisions taken according

to Art.1823 and 182

4 shall be recognized as determinative.

(2) Where the National Bank of Romania is not the consolidating supervisor, the joint

decision adopted on a similar basis with those referred to in Art.1821 and any decision taken on a

similar basis with those referred to in Art.1823 and 182

4 by a consolidated supervisor, respectively

by the authority responsible for the supervision on an individual basis of the credit institutions,

being subsidiaries of an EU parent credit institution or of an EU parent financial holding company

are determinative to the National Bank of Romania, which shall apply them accordingly.

Art. 1828 - (1)

The joint decision referred to in Art.182

1 and any decision taken according

to Art.1823 and Art.182

4 shall be updated on an annual basis or, in exceptional circumstances,

where a competent authority responsible for the supervision of subsidiaries of an EU parent credit

institution or, an EU parent financial holding company makes a written and fully reasoned request

to the National Bank of Romania as a consolidating supervisor, to update the decision on the

application of Art.226 para.(3).

(2) The National Bank of Romania, as a competent authority responsible for the supervision

on an individual basis of the credit institutions, Romanian legal persons, being subsidiaries of an

EU parent credit institution or of an EU parent financial holding company makes a written and fully

reasoned request to the consolidating supervisor to update the joint decisions on the application of

Art.1821, as well as for the decisions adopted similar to those foreseen in Article 182

3 and 182

4 on a

consolidated level by the consolidating supervisor and, respectively, on an individual or sub-

consolidated basis by another authority responsible for the supervision of subsidiaries of an EU

parent credit institution or of an EU parent financial holding company.

(3) The updates according to the provisions of para.(1) and (2) may be treated on a bilateral

basis between the National Bank of Romania and the competent authority responsible for the

supervision of subsidiaries of an EU parent credit institution or of an EU parent financial holding

company or between the National Bank of Romania and the consolidating supervisor, by case.

Art. 183 – (1) Where an emergency situation, including a situation of adverse developments

in financial markets which potentially jeopardises the market liquidity and the stability of the

financial system in any of the Member State where entities of a group have been authorised or

where significant branches are established, the National Bank of Romania, as a consolidating

supervisor shall alert as soon as is practicable, complying with the requirements on keeping the

professional secrecy, the European Banking Authority, the European Committee for systemic risk,

established by Regulation of the European Parliament and of the Council no.1092/2010 on

European Union macro-prudential oversight of the financial system and establishing an European

Systemic Risk Board, and the authorities referred to in Art.222 paragraph (6) and Art. 2221

paragraph (1) and shall communicate all information essential for the pursuance of their tasks.

52

(11) If the the National Bank of Romania, in exercising its tasks of a central bank, becomes

aware of a situation described in the first paragraph, it shall alert as soon as is practicable the

competent authorities exercising the consolidated supervision of the credit institutions and the

European Banking Authority.

(12) Where possible, in applying the provisions referred to in para.(1) and (1

1), there shall be

used existing defined channels of communication.

(2) Where the information already supplied to another competent authority is necessary to

the National Bank of Romania, in its capacity as competent authority, responsible for supervision

on a consolidated basis, it shall contact this authority whenever possible in order to prevent

duplication of reporting to the various authorities involved in supervision.

Section 2

Cooperation with other competent authorities

Art. 184 – (1) In order to establish and facilitate effective supervision, the National Bank of

Romania, in its capacity as authority responsible for supervision on a consolidated basis and/or on

an individual basis, and the competent authorities of other Member States shall conclude written

coordination and cooperation arrangements.

(2) Under these arrangements additional tasks may be entrusted to the National Bank of

Romania, in its capacity as authority responsible for supervision on a consolidated basis, and

procedures for the decision-making process and for cooperation with other competent authorities

may be specified.

Art. 185 – (1) The National Bank of Romania, in its capacity as competent authority

responsible for authorising a credit institution, Romanian legal entity, that is a subsidiary of a credit

institution of another Member State, may, by bilateral agreements, in accordance with the

provisions of Art.128 of Regulation of the European Parliament and of the Council no.1093/2010,

delegate its responsibility for supervision to the competent authority which authorised and

supervises the parent undertaking, so that it assumes responsibility for supervising the subsidiary in

accordance with this emergency ordinance.

(2) The National Bank of Romania shall notify the European Banking Authority of the

existence and content of such agreements.

Art. 1851 – (1) The National Bank of Romania, as a consolidating supervisor shall establish

colleges of supervisors to facilitate the exercise of the tasks referred to in Article 181 and Article

183 para.(1)-(12) and subject to the confidentiality requirements and compatibility with Community

law, ensure appropriate coordination and cooperation with relevant third-country competent

authorities where appropriate.

(2) The competent authorities from third countries may attend the colleges of supervisors if

the confidentiality requirements are equivalent with those of the Community by the involved

competent authorities.

(21) In order to contribute to promoting and monitoring the effective, efficient and consistent

functioning of colleges of supervisors, according to the provisions of Article 21 of Regulation of the

European Parliament and of the Council no.1093/2010, the European Banking Authority may

participate in colleges of supervisors and shall be considered as a competent authority for that

purpose.

53

(3) Colleges of supervisors shall provide to the National Bank of Romania, to the European

Banking Authority and to the other competent authorities concerned, a framework to carry out the

following tasks:

(a) exchanging information among the competent authorities concerned and, in accordance

with Article 21 of Regulation of the European Parliament and of the Council no.1093/2010, with

the European Banking Authority;

(b) agreeing on voluntary entrustment of tasks and voluntary delegation of responsibilities

where appropriate;

(c) determining supervisory examination programmes based on a risk assessment of the

group within the process carried on by the competent authorities, of the review of the governance

arrangements, strategies, processes and mechanisms implemented by the credit institutions and of

the risks assessment to which the credit institution is or might be exposed;

(d) increasing the efficiency of supervision by removing unnecessary duplication of

supervisory requirements, including in relation to the information requests referred to in Article 183

para.(2) and Article 187;

(e) consistently applying the prudential requirements on the Community level across all

entities within a banking group without prejudice to the options and discretions of the supervisory

authorities available in European Union legislation;

(f) applying Article 181 para.(1) lett.(c) taking into account the work of other forums that

may be established in this area.

(4) Within the colleges of supervisors, the National Bank of Romania shall cooperate

closely with the other participating competent authorities and with the European Banking Authority.

The confidentiality requirements shall not prevent the National Bank of Romania from exchanging

information with the other competent authorities within colleges of supervisors.

(5) The establishing and functioning of colleges of supervisors shall not affect the rights

and responsibilities of the National Bank of Romania in the prudential supervisory field, under this

emergency ordinance.

Art.1852 – (1) The establishing and functioning of the colleges of supervisors shall be based

on written arrangements referred to in Articles 184 and 185, determined after consultation with

competent authorities concerned by the National Bank of Romania, as a consolidating supervisor.

(2) The Committee of European Banking Supervisors shall elaborate guidelines for the

operational functioning of colleges.

Art.1853 – (1) The National Bank of Romania, as a consolidating supervisor shall chair the

meetings of the college and shall decide which competent authorities participate in a meeting or in

an activity of the college.

(2) The decision of the National Bank of Romania according to para.(1) shall take account

of the relevance of the supervisory activity to be planned or coordinated for those authorities, in

particular the potential impact on the stability of the financial system in the Member States

concerned referred to in Article 172 para.(21) and the obligations referred to in Article 173

2.

(3) The National Bank of Romania, as a consolidating supervisor shall keep all members of

the college fully informed, in advance, of the organization of such meetings, the main issues to be

discussed and the activities to be considered. The National Bank of Romania shall also keep all the

members of the college fully informed, in a timely manner, of the actions taken in those meetings or

the measures carried out.

Art.1854 - The National Bank of Romania, as a consolidating supervisor, shall inform the

European Banking Authority, subject to the confidentiality requirements, about the activities of the

54

colleges of supervisors, also in emergency situations, and shall communicate to this authority all

information that is of particular relevance for the purposes of supervisory convergence.

Art.1855 – (1) The National Bank of Romania responsible for the supervision of credit

institutions, Romanian legal persons, being subsidiaries of an EU parent credit institution or an EU

parent financial holding company, or where appropriate, branches established in Romania of credit

institutions from a host country are significant as referred to in Article 2101, may participate in

colleges of supervisors.

(2) The provisions of Art.1851 shall be applied accordingly.

Art. 186 – (1) The National Bank of Romania shall cooperate closely with the other

competent authorities. In this regard, for the exercise of the supervisory tasks on an individual

and/or consolidated basis of the authorities concerned, the competent authorities shall provide on

request all relevant information and on their own initiative all essential information.

(11) The National Bank of Romania shall cooperate closely with the European Banking

Authority, in accordance with Regulation of the European Parliament and of the Council

no.1093/2010. The National Bank of Romania shall provide to the European Banking Authority,

according to the provisions of Art.35 of that regulation, all information necessary to carry out its

duties under Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006

relating to the taking up and pursuit of the business of credit institutions and under the mentioned

regulation.

(2) The information referred to in para. (1) shall be regarded as essential if it could

materially influence the assessment of the financial soundness of a credit institution or of a financial

institution in another Member State.

(3) Where the National Bank of Romania is the competent authority responsible for the

consolidated supervision of an EU parent credit institution or of a credit institution controlled by an

EU parent financial holding company it shall provide all relevant information to the competent

authorities in other Member States, which supervise the subsidiaries of these parents. In

determining the extent of relevant information, the importance of these subsidiaries within the

financial system in those Member States shall be taken into account.

(4) The essential information referred to in para. (2) shall include, in particular, the

following items:

a) identification of the group structure, of all major credit institutions in a group, as well as

of the competent authorities of the credit institutions in the group;

b) procedures for the collection of information from the credit institutions in a group, and

the verification of that information;

c) adverse developments in credit institutions or in other entities of a group, which could

seriously affect the credit institutions in a group;

d) major sanctions and exceptional measures taken by the National Bank of Romania in

accordance with the provisions of this emergency ordinance, including the imposition of an

additional capital charge under Article 226 and the imposition of any limitation on the use of the

Advanced Measurement Approach for the calculation of the capital requirements in covering

operational risk.

(5) The National Bank of Romania may refer to the European Banking Authority situations

where:

(a) a competent authority has not communicated essential information,

55

(b) a request for cooperation, in particular to exchange relevant information, has been

rejected or has not been acted upon within a reasonable time.

Art. 187 – The National Bank of Romania, in its capacity as competent authority

responsible for the supervision on an individual basis of a credit institution, a Romanian legal

entity, controlled by an EU parent credit institution, shall, whenever possible, contact the competent

authority responsible for the exercise of supervision on a consolidated basis, if it needs information

regarding the implementation of approaches and methodologies set out in this emergency ordinance

and in the regulations issued for its application, which may already be available to that competent

authority.

Art. 188 – (1) The National Bank of Romania shall consult the other competent authorities

responsible for the supervision on an individual and/or on a consolidated basis prior to taking a

decision that is of importance for those competent authorities’ supervisory tasks. The consultation

refers to the following items:

a) changes in the shareholding, organizational, administration and management structure of

credit institutions in a group, which require the approval or authorization of the National Bank of

Romania;

b) major sanctions or exceptional measures to be taken by the National Bank of Romania,

including the imposition of an additional capital charge under Article 226 and the imposition of any

limitation on the use of the Advanced Measurement Approach for the calculation of the capital

requirements in covering operational risk.

(2) For the purposes of para. (1) point (b), the competent authority responsible for

supervision on a consolidated basis shall always be consulted.

(3) However, the National Bank of Romania may decide not to consult the other competent

authorities in emergency cases or where such consultation may jeopardise the effectiveness of

decisions. In this case, the National Bank of Romania shall, without delay, inform the other

competent authorities of its decisions.

Section 3

Cooperation between the National Bank of Romania and the National Securities Commission

and their tasks at the national level

Art. 189 – (1) In order to establish and facilitate effective supervision at the national level of

credit institutions and financial investment firms, the National Bank of Romania and the National

Securities Commission shall conclude written coordination and cooperation agreements.

(2) Under these arrangements additional tasks may be entrusted to the authority responsible

for supervision on a consolidated basis, and procedures for the decision-making process may be

specified.

(3) The National Bank of Romania and the National Securities Commission, in their

capacity as authorities responsible for authorising a credit institution or a financial investment

services company, which are subsidiaries of a credit institution, a Romanian legal person, or of a

financial investment services company, a Romanian legal person, may, by bilateral agreement,

delegate their responsibility for the individual supervision of that subsidiary. The delegation of

responsibility shall always be performed by the competent authority responsible for the

consolidated supervision.

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Art. 190 – For the exercise of their supervisory tasks on an individual and/or on a

consolidated basis, the National Bank of Romania and the National Securities Commission shall

provide on request all relevant information and on their own initiative all essential information. The

provisions of Article 186 apply accordingly.

Art. 191 – (1) The National Bank of Romania and the National Securities Commission shall

consult each other prior to taking a decision that is of importance in exercising their supervisory

tasks on an individual and/or on a consolidated basis. The consultation refers to the following items:

a) changes in the shareholding, organizational, administration and management structure of

credit institutions, and of financial investment companies respectively, which require the approval

or authorization of the National Bank of Romania and the National Securities Commission;

b) major sanctions and exceptional measures to be taken by the National Bank of Romania

or by the National Securities Commission, including the imposition of an additional capital charge

under Article 226 and the imposition of any limitation on the use of the Advanced Measurement

Approach for the calculation of the capital requirements in covering operational risk.

(2) However, the National Bank of Romania or the National Securities Commission may not

consult each other, as referred to in para. (1), in emergency cases or where such consultation may

jeopardise the effectiveness of decisions. In this case, the other competent authority shall, without

delay, be informed of the decisions taken.

Art. 192 – The National Bank of Romania, in its capacity as authority responsible for

exercising supervision on a consolidated basis of parent credit institutions in Romania and of credit

institutions, Romanian legal persons, controlled by parent financial holding companies in Romania,

or the National Securities Commission, in its capacity as authority responsible for exercising

supervision on a consolidated basis of parent investment firms in Romania, shall carry out the

following tasks:

a) coordination, at the national level, the collection and dissemination of relevant or

essential information in going concern and emergency situations;

b) planning and coordination at the national level of supervisory activities in going concern

as well as in emergency situations, including in relation to the activities referred to in Article 166, in

cooperation with the other competent authorities.

Art. 193 – (1) In the case of applications for the permission to use the internal models in

computing the capital requirements, submitted by a parent credit institution in Romania and its

subsidiaries, of which at least one is a financial investment services company, or by a parent

investment firm in Romania and its subsidiaries, of which at least one is a credit institution, a

Romanian legal person, or jointly by the subsidiaries, credit institutions and investment firms of an

EU parent financial holding company, where these entities are exclusively Romanian legal persons,

the National Bank of Romania and the National Securities Commission shall cooperate to decide

whether or not to grant the permission sought and to determine the terms and conditions, if any, to

which such permission should be subject.

(2) Any application as referred to in para. (1) shall be submitted solely to the National Bank

of Romania or, if the case, solely to the National Securities Commission in their capacity as

authorities responsible for supervision on a consolidated basis.

(3) The National Bank of Romania and the National Securities Commission shall do

everything within their power to reach a joint decision on the application within six months. This

joint decision shall be set out in a document containing the fully reasoned decision and shall be

provided to the applicant by the competent authority responsible for the supervision on a

consolidated basis.

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(4) The period of six months laid down in para. (3) shall begin on the date of receipt of the

application, including the complete documentation with a view of the regulations issued in the

application of this emergency ordinance. The competent authority responsible for the supervision

on a consolidated basis shall, without delay forward the received application, according to the

provisions of para. (2) and the complete documentation, to the competent authority responsible for

the supervision on an individual basis.

(5) In the absence of a joint decision regarding the application submitted according to the

provisions of para. (3), the competent authority responsible for supervision on a consolidated basis

shall make its own decision on the application. The decision shall be final and shall be set out in a

document containing the fully reasoned decision and shall take into account the views and

reservations of the other Romanian competent authority expressed during the six-month period. The

decision shall be provided to the applicant and to the competent authority concerned by the

authority responsible for the supervision on a consolidated basis.

(6) The decisions taken according to the provisions of para. (3) and the decisions taken by

the competent authority responsible for the supervision on a consolidated basis, where no joint

decision has been taken, shall be final and opposable to the other authority and shall be accordingly

applied by that authority.

Section 4

Supplying of information

Art. 194 – (1) Where the parent undertaking of one or more credit institutions, Romanian

legal persons, is a mixed-activity holding company, the National Bank of Romania shall require the

mixed-activity holding company and its subsidiaries, including when they are situated within the

territory of another Member State, either directly or via credit institutions subsidiaries, to supply

any information which would be relevant for the supervision of credit institutions, Romanian legal

persons that are subsidiaries of the mixed-activity holding company.

(2) A mixed-activity holding company, a Romanian legal person, and its subsidiaries,

Romanian legal persons, shall supply the information referred to in para. (1), at the request of both

the National Bank of Romania, in its capacity as authority responsible for the authorisation and

supervision of a credit institution, a Romanian legal person, that is a subsidiary of the mixed-

activity holding company, and the authority responsible for the authorisation and supervision of a

credit institution in another Member State that is a subsidiary of the mixed-activity holding

company.

Art. 195 – The National Bank of Romania may carry on inspections to verify the

information supplied by the mixed-activity holding companies and their subsidiaries, either directly

or via third parties empowered for this purpose. If the mixed-activity holding company or one of its

subsidiaries is an insurance undertaking, the procedure laid down in Article 202 may also be used.

If the mixed-activity holding company or one of its subsidiaries is situated in another Member

State, the verification of information shall be carried out in accordance with the procedure laid

down in Article 203.

Section 5

Financial holding companies

Art. 196 – (1) The administration/management of a financial holding company, Romanian

legal person, shall be ensured by at least two persons.

(11) The persons appointed to perform administration and/or management duties, in their

capacity as Board members, managers, members of the supervision committee or the directorate, as

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appropriate, should have a good reputation and sufficient expertise for discharging the assigned

duties.

(2) The financial holding companies referred to in para. (1) shall notify the National Bank of

Romania, in its capacity as authority responsible for the consolidated supervision, of the designation

of the persons provided for in para. (1), in compliance with the requirements established through

regulations issued for the application of this emergency ordinance.

(3) The National Bank of Romania shall monitor permanently the fulfilment of requirements

referred to in para. (1) and is able to take the necessary measures or sanctions, as provided for in

Article 204, if the requirements are not fulfilled.

Art. 197 – The provisions of Chapter IV of Title II, Part I shall apply accordingly, with

regard to annual financial statements drawn up on a consolidated basis, to the financial holding

companies, Romanian legal persons, that are parent undertakings of credit institutions supervised on

a consolidated basis by the National Bank of Romania, in its capacity as competent authority, or by

other competent authority of another Member State.

Section 6

Intra-group transactions with mixed-activity holding companies

Art. 198 – Without prejudice to prudential requirements for large exposures, if the parent

undertaking of one or more credit institutions, Romanian legal persons, is a mixed-activity holding

company, the National Bank of Romania shall exercise a general supervision of transactions

between those credit institutions, on the one hand, and the mixed-activity holding company and its

subsidiaries, on the other hand, according to the conditions established through regulations issued

for the application of this emergency ordinance.

Section 7

Measures for facilitating the supervision on a consolidated basis

Art. 199 – The undertakings included within the scope of supervision on a consolidated

basis, the mixed-activity holding companies and their subsidiaries, or the subsidiaries provided for

in Article 180 para. (3) shall exchange any information that could be relevant for the purpose of

supervision on an individual and/or on a consolidated basis.

Art. 200 – (1) The National Bank of Romania, in its capacity as competent authority

responsible for supervision on a consolidated basis, shall require the undertakings included within

the scope of supervision on a consolidated basis any information that could be relevant for the

purpose of supervision on a consolidated basis of credit institutions, Romanian legal persons.

(2) The undertakings, Romanian legal persons, included within the scope of supervision on a

consolidated basis of a credit institution shall supply, upon request, any information that could be

relevant for the purpose of supervision on a consolidated basis exercised by the National Bank of

Romania or by a competent authority of another Member State.

(3) Where a parent undertaking and any of its subsidiaries that are credit institutions are

situated in different Member States, and at least one of them is a Romanian legal person, the

National Bank of Romania shall, on a mutual basis, supply the competent authorities of other

Member States with all the relevant information that may allow or facilitate the exercise of

supervision on a consolidated basis.

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(4) Where the parent undertaking has its head office within the territory of another Member

State and the National Bank of Romania exercises supervision on a consolidated basis, the former

may ask the competent authority of the respective Member State to require the parent undertaking

any information that could be relevant for the purpose of supervision on a consolidated basis and

forward it to the National Bank of Romania.

(5) Where the parent undertaking has its head office in Romania and the National Bank of

Romania does not exercise supervision on a consolidated basis, the latter shall, at the request of the

competent authority responsible for supervision on a consolidated basis, require the parent

undertaking any information that could be relevant for the purpose of supervision on a consolidated

basis and forward it to the authority concerned.

(6) The collection and possession of information according to para. (1), (4) and (5) shall not

in any way imply that the National Bank of Romania is required to play a supervisory role on an

individual basis in relation to financial holding companies, financial institutions or ancillary

services undertakings.

Art. 201 – (1) The National Bank of Romania shall provide to the other competent

authorities of other member States the information referred to in Article 194.

(2) The collection and possession of information according to para. (1) shall not in any way

imply that the National Bank of Romania is required to play a supervisory role on an individual

basis in case of mixed-activity holding companies, their subsidiaries that are not credit institutions

or subsidiaries provided for in Article 180 para. (3).

Art. 202 – (1) Where a credit institution, a financial holding company or a mixed-activity

holding company controls one or more subsidiaries that are insurance companies or other

undertakings provided investment services which are subject to authorisation, the National Bank of

Romania shall cooperate with the National Securities Commission and the Insurance Supervisory

Commission, as well as with the authorities of other Member States entrusted with the public task

of supervising insurance undertakings or other undertakings providing investment services. Without

prejudice to the National Bank of Romania’s responsibilities, it shall provide the other authorities

with any information likely to simplify their task and to allow supervision of the activity and overall

financial situation of the undertakings they supervise.

(2) Information received by the National Bank of Romania, in the framework of supervision

on a consolidated basis, and any exchange of information in which it takes part, which is provided

for in this emergency ordinance, shall be subject to the obligation of professional secrecy defined in

Chapter V of Title III, Part I.

(3) The National Bank of Romania as a responsible authority for supervision on a

consolidated basis, shall establish a list of the financial holding companies that are parent

undertakings in Romania, which shall be communicated to the competent authorities of the other

Member States, to the European Banking Authority and to the European Commission.

Art. 203 – (1) Where, in applying this emergency ordinance and the regulations issued for

its application, the National Bank of Romania wishes, in specific cases, to verify the information

concerning a credit institution, a financial holding company, a financial institution, an ancillary

services undertaking, a mixed-activity holding company, a subsidiary of the kind referred to in

Article 194 or a subsidiary of the kind referred to in Article 180 para. (3), situated in another

Member State, it shall ask the competent authorities of that other Member State to have the

verification carried out.

(2) The verification provided for in para. (1) may be carried out either by the competent

authority of that Member Sate, or, with its approval, by the National Bank of Romania. The

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National Bank of Romania may carry out the verification either by itself or by allowing a financial

auditor or expert empowered to carry it out.

(3) When the National Bank of Romania does not carry out the verification by itself, it may

participate in the verification carried out by the competent authority of the Member State

concerned.

(4) Where the National Bank of Romania receives a request concerning the verification, in

specific cases, of the information regarding the entities referred to in para. (1), situated in Romania,

it shall, within the framework of its competence, carry out the verification either by itself or by

allowing the competent authority which made the request or a financial auditor or expert to carry it

out. The competent authority which made the request may participate in the verification carried out

by the National Bank of Romania, when it does not carry out the verification itself.

Art. 204 – (1) Where a financial holding company, a mixed-activity holding company or the

persons discharging administration and/or management duties relative to these entities do not

observe the provisions of Art. 166 and Art. 176-203, and those of the regulations issued or the

measures taken for the enforcement of this Government Emergency Ordinance, the National Bank

of Romania, in its capacity as authority responsible for supervision on a consolidated basis, shall

take, as concerns the respective undertaking, the following measures provided for under letters a)-

c), or shall impose the sanctions referred to under letters d)-h):

a) conclude an agreement with the Board members or, as appropriate, with the members of

the undertaking’s directorate, which shall include a plan of remedial measures;

b) require the financial auditor to provide information;

c) require the undertaking to replace the financial auditor;

d) issue a written warning;

e) suspend one or more persons discharging administration and/or management duties

relative to the undertaking;

f) decide the replacement by the financial holding company or the mixed-activity holding

company, as appropriate, of the person(s) discharging administration and/or management

duties relative to the undertaking;

g) impose a fine against the undertaking, ranging from 0.05 percent to 1 percent of the

minimum initial regulated capital of the undertaking that is a subsidiary of the financial holding

company or of the mixed-activity holding company, subject to supervision on a consolidated or

individual basis;

h) impose a fine on the persons discharging administration and/or management duties

relative to the undertaking, ranging from 1 to 6 net salaries, according to the amount realised in the

month prior to the establishment of the breach.

(2) The amount of fines should be connected to the gravity of the commitment. The collected

fines shall be recognised as revenue to the state budget.

(3) During the suspension of the managers, decided by the National Bank of Romania

according to para. (1) letter e), the financial holding company or the mixed activity holding

company shall nominate a person/a number of persons discharging administration and/or

management duties during an interim period, complying with the provisions of Art. 196.

Art. 205 – The National Bank of Romania shall co-operate with the other competent

authorities concerned in order to ensure that the measures or sanctions imposed, in compliance with

the provisions of this Government Emergency Ordinance, on financial holding companies, mixed

activity holding companies or the persons discharging administration and/or management duties,

produce the desired results, especially when a financial holding company or a mixed-activity

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holding company, with its head office within the Romanian territory, has the central administration

or the main establishment within the territory of another Member State.

Section 8

Parent undertakings in third countries

Art. 206 – (1) Where a credit institution, a Romanian legal person, having as parent

undertaking a credit institution or a financial holding company, the head office of which is in a third

country, is not subject to consolidated supervision performed by a competent authority of a Member

State, the National Bank of Romania shall verify whether the credit institution is subject to

consolidated supervision by a third-country competent authority, which is equivalent to that

governed by the principles laid down in this emergency ordinance.

(2) The verification shall be carried out at the request of the parent undertaking or of any of

the regulated entities authorised in a Member State or on its own initiative, by the National Bank of

Romania, if, according to Article 207, it would be the authority responsible for consolidated

supervision. The National Bank of Romania shall consult the other competent authorities involved.

(3) In order to carry out the verification according to the provisions of para. (1), the National

Bank of Romania shall take into account the general guidance for assessing the equivalent

supervision on a consolidated basis exercised by the competent authorities in third countries in

relation to credit institutions, the parent undertaking of which has its head office in a third country;

the guidance is drawn up by the European Banking Committee, on the request of the European

Commission. The National Bank of Romania shall consult the European Banking Authority before

taking a decision.

Art. 207 – (1) In the absence of such equivalent supervision, according to

Article 206, the provisions concerning supervision on a consolidated basis laid down in this

emergency ordinance and in the regulations issued for its application shall apply, by analogy, to the

credit institution referred to in Article 206 para. (1). As an alternative, the National Bank of

Romania may apply other appropriate supervisory techniques in order to achieve the objectives of

supervision on a consolidated basis of credit institutions.

(2) The National Bank of Romania, where it would be the competent authority responsible

for the supervision on a consolidated basis, shall decide on the implementation of the alternative

supervisory techniques referred to in para. (1), after consultation with the other competent

authorities involved.

(3) In the situation referred to in para. (2), the National Bank of Romania may require the

establishment of a financial holding company with its head office situated within the Romanian

territory or in another Member State, and where, after the establishment, the National Bank of

Romania remains the competent authority responsible for the supervision on a consolidated basis, it

shall apply the provisions on consolidated supervision to the consolidated position of that financial

holding company.

(4) The supervisory techniques shall be designed to achieve the objectives of consolidated

supervision, as defined in this emergency ordinance and in the regulations issued for its application

and shall be notified to the other competent authorities involved, to the European Banking

Authority and to the European Commission.

Chapter III

Supervision of credit institutions of other Member States operating in Romania

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Art. 208 – (1) Without prejudice to the responsibilities of the National Bank of Romania

established by this emergency ordinance, the prudential supervision of credit institutions of other

Member States, including that of the activities performed within Romanian territory, in accordance

with the provisions of Chapter IV of Title I, Part I, shall be the responsibility of the competent

authority of the home Member State.

(2) The provisions of para. (1) shall not prevent supervision on a consolidated basis pursuant

to this emergency ordinance.

Art. 209 – (1) The National Bank of Romania shall perform, in cooperation with the

competent authorities of the home Member States, the supervision of the liquidity of the branches in

Romania of credit institutions of other Member States.

(2) Without prejudice to the measures taken for the consolidation of the European Monetary

System, the National Bank of Romania shall retain full responsibility for taking the measures

necessary for the implementation of its monetary policy. Such measures may not provide for

discriminatory or restrictive treatment based on the fact that a credit institution is authorised in

another Member State.

Art. 210 – (1) The National Bank of Romania shall cooperate with competent authorities of

the home Member State and of other Member States in which the credit institution carries on

activity, in order to supervise the activities of credit institutions of another Member State, operating

in Romania, particularly through a branch.

(2) In the framework of cooperation referred to in para. (1), it would be ensured the

exchange of information in compliance with Article 173 para. (2), that applies accordingly.

(3) The provisions of Art. 173 paragraph (3) shall be applied accordingly.

Art.2101 – (1) The National Bank of Romania may make a request to the consolidating

supervisor where Article 181 para.(1) applies or to the competent authorities of the home Member

State, for a branch of a credit institution of another member State established in Romania to be

considered as significant.

(2) That request shall provide reasons for considering the branch to be significant with

particular regard to the following:

(a) whether the market share of the branch of a credit institution in terms of deposit exceeds

2 % in Romania;

(b) the likely impact of a suspension or closure of the operations of the credit institution on

market liquidity and the payment and clearing and settlement systems in Romania;

(c) the size and the importance of the branch in terms of number of clients within the context

of the banking or financial system of Romania.

Art.2102 – (1) The National Bank of Romania shall do everything within its power to reach

a joint decision with the competent authorities referred to in Art.2101 para.(1), on the designation of

a branch as being significant.

(2) If no joint decision is reached within two months of receipt of a request Art.2101

para.(1), the National Bank of Romania shall take its own decision within a further period of two

months on whether the branch is significant. In taking its decision, the National Bank of Romania

shall take into account any views and reservations of the consolidating supervisor or the competent

authorities of the home Member State.

(21) If, at the end of the initial two-month period referred to in paragraph (2), any of the

competent authorities concerned has referred the matter to the European Banking Authority, in

accordance with Article 19 of the Regulation of the European Parliament and of the Council

63

no.1093/2010, the National Bank of Romania shall defer their decision and await the decision that

the European Banking Authority may take in accordance with Article 19(3) of that Regulation. The

National Bank of Romania shall take the decision in conformity with that of the European Banking

Authority.

(22) The two-month period referred to in paragraph (2

1) shall be deemed to be the

“conciliation phase” within the meaning of Article 19 of Regulation of the European Parliament and

of the Counci no.1093/2010, the European Banking Authority shall take its decision within 1

month.

(23) The matter shall not be referred to the European Banking Authority after the end of the

initial two month period referred to in paragraph (2) or after a joint decision has been reached by

the competent authorities concerned.

(3) The decisions referred to in para.(1) and (2) shall be set out in a document containing

the fully reasoned decision and transmitted to the competent authorities concerned. The decisions

taken according to the provisions of para.(1) shall be recognized as determinative and opposable to

the National Bank of Romania, which shall apply them accordingly.

Art.2103 - The designation of a branch as being significant shall not affect the rights and

responsibilities of the National Bank of Romania foreseen in this emergency ordinance.

Art. 211 – (1) The competent authority of the home Member State of a credit institution

may perform on-site inspections at the head office of the branch in Romania of the credit institution

in order to verify the information received according to Article 210 para. (2). The on-site

inspections may be carried out directly or through the intermediary appointed for that purpose, after

the National Bank of Romania has been first informed.

(2) The competent authority of the home Member State may require the National Bank of

Romania to carry out on-site inspections at the head office of the branch in Romania of a credit

institution authorised in that Member State, in which case, the National Bank of Romania shall

carry out the inspection either directly or by a third party appointed for that purpose. The competent

authority which made the request for the inspection may participate in the verification when it does

not carry out the verification itself, according to the provisions of para. (1).

(3) The provisions of para. (1) and (2) shall not affect the right of the National Bank of

Romania to carry out, in the performing of its responsibilities under this emergency ordinance, on-

site inspections of branches established within the Romanian territory.

Chapter IV

The supervision of branches in Romania of credit institutions of third countries

Art. 212 – (1) In order to supervise the activity of the branches operating in Romania of the

third-country credit institutions, the National Bank of Romania shall cooperate with the competent

authorities of the country concerned. In this regard, the National Bank of Romania shall conclude

cooperation agreements with the competent authority of the third country of origin of the credit

institution. These agreements shall establish at least the conditions regarding the exchange of

information, with the observance of the provisions regarding the professional secrecy.

(2) The representatives of the competent authority of the third country of origin may

participate in the on-site inspections at the head office of the branch in Romania of the credit

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institution in the third country, according to cooperation agreements concluded between the

National Bank of Romania and the authority concerned.

Art. 213 – The provisions of Articles 164 to 171 shall apply accordingly for exercising of

supervision by the National Bank of Romania of branches in Romania of third-country credit

institutions.

Chapter V

Exchange of information and professional secrecy

Art. 214 – (1) The National Bank of Romania’s Board members and staff, as well as the

financial auditors or experts appointed by the National Bank of Romania in order to perform on-site

inspections at the head offices of credit institutions, according to the provisions of Article 170, shall

be bound by professional secrecy regarding any confidential information which they receive in the

course of their duties. The National Bank of Romania’s Board members and staff shall also be

bound by professional secrecy after ceasing the activity with the bank.

(2) The persons referred to in para. (1) shall not divulge confidential information to any

person or authority, except in summary or collective form, so that the credit institution cannot be

identified.

(3) Where a credit institution has been declared bankrupt or is being compulsorily wound

up, confidential information which does not concern third parties involved in attempts to rescue that

credit institution may be divulged in civil or commercial proceedings.

(4) Without prejudice to the criminal law, the provisions of para. (1) to (3) shall not prevent

the divulgement of confidential information in certain situations.

Art. 215 – (1) The National Bank of Romania may exchange information with the

competent authorities from other Member States, in accordance with this emergency ordinance and

with other regulations applicable to credit institutions and transmit information to the European

Banking Authority, in accordance with the provisions of Art.31 and of Art.35 of Regulation of the

European Parliament and of the Council no.1093/2010.

(2) The information received by the National Bank of Romania according to para. (1) shall

be subject to the conditions of professional secrecy as referred to in Article 214.

(3) The National Bank of Romania may supply information to the competent authorities

from other Member States, according to the provisions of para. (1), if the information received by

the concerned authorities is subject to professional secrecy, similarly to those provided in Article

214.

Art. 216 – The National Bank of Romania may use the information received under Article

214 and Article 215 only in the performance of its supervisory tasks and only for the following

purposes:

a) to check that the conditions governing the taking-up of the business of credit institutions

are met and to facilitate monitoring, on an individual and/or consolidated basis, of the conduct of

such business, especially with regard to the monitoring of liquidity, solvency, large exposures, and

administrative and accounting procedures and internal control mechanisms;

b) to impose penalties;

c) in the appeal against a decision of the National Bank of Romania;

d) in court proceedings initiated pursuant to Article 275 para. (2) or to the provisions laid

down in other law applicable to credit institutions.

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Art. 217 – (1) The National Bank of Romania may conclude cooperation agreements

providing for exchange of information with the competent authorities of third countries or with

other authorities or bodies of third countries referred to in Articles 218 to 220 only if the

information disclosed is subject to conditions of professional secrecy at least equivalent to those

referred to in Article 214. Such exchange of information shall be for the purpose of performing the

supervisory tasks of the authorities or bodies mentioned.

(2) Where the information received by the National Bank of Romania originates in another

Member State, it shall not be disclosed, according to para. (1), without the express agreement of the

competent authorities which have disclosed it, and where appropriate, solely for the purposes for

which those authorities gave their agreement.

Art. 218 – (1) The National Bank of Romania may exchange information with:

a) authorities entrusted with the public duty of supervising other financial organisations,

insurance companies and the authorities responsible for the supervision of financial markets in

Romania and other Member States;

b) Romanian and other Member States bodies involved in the liquidation and bankruptcy of

credit institutions and in other similar procedures;

c) financial auditors in Romania and other Member States of credit institutions and other

financial institutions.

(2) The authorities, bodies and financial auditors in Romania referred to in para. (1) may

exchange information with the competent authorities of other Member States.

(3) The exchange of information referred to in para. (1) and (2) takes place in performing

the supervisory functions by the National Bank of Romania, the competent authorities in other

Member States and by the financial auditors referred to in para. (1).

(4) The National Bank of Romania may disclose to bodies which administer deposit-

guarantee schemes in Romania and in other Member States information necessary to the exercise of

their functions.

(5) The information received by the authorities, bodies and financial auditors in Romania

according to para. (1) and (3) shall be subject to the conditions of professional secrecy specified in

Article 214.

(6) The National Bank of Romania may exchange information with the authorities, bodies

and financial auditors in other Member States, according to the provisions of para. (1) and (3), if the

information received by those authorities, bodies or financial auditors is subject to the conditions of

professional secrecy similar to those specified in Article 214.

(7) The Romanian authorities, bodies and financial auditors shall exchange information with

the competent authorities of other Member States, according to the provisions of para. (2) and (3), if

the information received by such competent authorities is subject to the conditions of professional

secrecy similar to those specified in Article 214.

Art. 219 – (1) The National Bank of Romania may exchange information with authorities in

Romania or in other Member States responsible for:

a) overseeing the bodies involved in the liquidation and bankruptcy of credit institutions or

in other similar procedures;

b) overseeing the financial auditors of credit institutions, investment firms, insurance

companies, and other financial institutions.

(2) The exchange of information provided for in para. (1) shall be carried out by fulfilling

the following conditions:

a) the information shall be for the purpose of performing the supervisory task referred to in

para. (1);

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b) the information received by the Romanian authorities shall be subject to the conditions of

professional secrecy specified in Article 214; information received by the authorities in other

Member States shall be subject to the conditions of professional secrecy similarly to those laid

down in Article 214;

c) where the information originates in another Member State, it may not be disclosed in

accordance with the provisions of para. (1) without the express agreement of the competent

authorities which have disclosed it and solely for the purposes for which those authorities gave their

agreement.

(3) The Romanian authorities referred to in para. (1) may exchange information with the

competent authorities from other Member States abiding by the conditions stipulated in para. (2).

Art. 220 – (1) With the aim of strengthening the stability, including integrity, of the

financial system, the National Bank of Romania may exchange information with the authorities and

bodies in Romania or in the other Member States responsible under the law for the detection and

investigation of breaches of company law.

(2) The exchange of information provided for in para. (1) shall be carried out by fulfilling

the following conditions:

a) the information is for the purpose of performing the task referred to in para. (1);

b) the information received by the Romanian authorities and bodies shall be subject to the

conditions of professional secrecy specified in Article 214; information received by authorities and

bodies in other Member States shall be subject to the conditions of professional secrecy laid down

in Article 214;

c) where the information originates in another Member State, it may not be disclosed in

accordance with the provisions of para. (1) without the express agreement of the competent

authorities which have disclosed it and, where appropriate, solely for the purposes for which those

authorities gave their agreement.

(3) The Romanian authorities or bodies referred to in para. (1) may exchange information

with competent authorities from other Member States abiding by the conditions stipulated in para.

(2), including the situation in which these authorities or bodies carry out detection and investigation

activities with the aid of persons appointed for that purpose and not employed in the public sector.

(4) The Romanian authorities or bodies referred to in para. (1) shall communicate to the

competent authorities which have disclosed the information the names and clearly-defined

responsibilities of the persons to whom it is to be sent.

Art. 221 – The Ministry of Public Finance shall communicate to the European Commission

and to the other Member States the names of the Romanian authorities which may receive

information pursuant to the provisions of Article 219 and Article 220.

Art. 222 – (1) In exercising its supervisory tasks in respect to credit institutions, the

National Bank of Romania may transmit information to the following authorities for the purposes of

achieving their tasks:

a) central banks of the European System of the Central Banks and other bodies with a

similar function in their capacity as monetary authorities, when this information is relevant for the

exercise of their respective statutory tasks, including the conduct of monetary policy and related

liquidity provision, oversight of payments, clearing and settlement systems, and the safeguarding of

stability of the financial system;

b) where appropriate, to other public authorities responsible for overseeing payment

systems;

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c) the European Systemic Risk Board, where that information is relevant for the exercise of

its statutory tasks under Regulation no.1092/2010 of the European Parliament and of the Council.

(2) The National Bank of Romania may receive information from the authorities referred to

in para. (1), where this information is necessary for the purposes of Article 216.

(3) In carrying out its tasks as a monetary authority and those related to oversight of

payment systems, the National Bank of Romania may transmit to the competent authorities of the

other Member States such information as they may request for the purposes of Article 216.

(4) The information received in accordance with the provisions of para. (2) shall be subject

to the conditions of professional secrecy specified in Article 214.

(5) The National Bank of Romania shall supply information in accordance with the

provisions of para. (1), if the information received by such competent authorities is subject to the

conditions of professional secrecy specified in Article 214.

(6) In an emergency situation as referred to in Article 183 para.(1), the National Bank of

Romania may communicate information to the central banks of the European System of the Central

Banks when this information is relevant for the exercise of their statutory tasks, including the

conduct of monetary policy and related liquidity provision, the oversight of payments, clearing and

settlement systems, and safeguarding the stability of the financial system and to the European

Systemic Risk Board under Regulation no.1092/2010 of the European Parliament and of the

Council, where such information is relevant for the exercise of its statutory tasks.

Art. 2221. - (1) Without any prejudice to the provisions of Art. 214 and Art.216, the

National Bank of Romania may provide certain information to the department of central

administration which is responsible for the legislation applicable in the field of supervision of credit

institutions, financial institutions, investment firms and insurance companies, as well as to

inspectors acting on behalf of these departments.

(2) The providing of information referred to in para.1 may be performed only for prudential

purposes.

(3) In an emergency situation as referred to in Article 183 para.(1), the National Bank of

Romania may disclose information which is relevant to the departments referred to in the first

paragraph of this Article in all Member States concerned.

Art. 2222. – For the situation referred to in Art. 222

1, the information received by the

National Bank of Romania according to Art.215 and Art.218 as well as those obtained as a result of

on-site inspections, which have been performed according to Art. 174 para.1, shall not be disclosed

without the express consent of the competent authorities which provided it, respectively of the

competent authorities from the member state where the on-site inspection was performed.

Art. 223 – (1) The National Bank of Romania may communicate the information referred to

in Articles 214 to 217 to a clearing house or other similar body recognised under national law for

the provision of clearing or settlement services for any market in Romania, when the National Bank

of Romania considers that it is necessary to communicate the information in order to ensure the

proper functioning of those bodies in relation to risk of default of the market participants.

(2) The information received in accordance with the provisions of para. (1) shall be subject

to the conditions of professional secrecy specified in Article 214.

(3) The information received in accordance with the provisions of Article 215 may not be

divulged by the National Bank of Romania in the circumstances referred to in para. (1) without the

express consent of the competent authorities which disclosed it.

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Chapter VI

Disclosure by the National Bank of Romania

Art. 224 – (1) The National Bank of Romania shall disclose the following information:

a) the texts of laws and regulations adopted in the field of prudential regulation of the credit

institutions and of the instructions and general guidance issued for the application thereof;

b) the manner of exercise of the options and discretions available in the Community

legislation in the field;

c) the general criteria and methodologies they use in the review and evaluation of the

governance arrangements, strategies, processes and mechanisms implemented by the credit

institutions to comply with this emergency ordinance and with the regulations issued for the

application thereof and in the assessment of the risks to which credit institutions are or might be

exposed;

d) the aggregate statistical data on key aspects of the implementation of the prudential

framework.

(2) The disclosures provided for in para. (1) shall be sufficient to enable a meaningful

comparison of the approaches adopted by the competent authorities of the different Member States.

The disclosures shall be published and shall be accessible on the National Bank of Romania’s

website, being updated on a regular basis.

Chapter VII

Supervisory measures and sanctions

Art. 225 – The National Bank of Romania may, against a credit institution, a Romanian

legal entity, or against the persons who effectively control the business of credit institutions, which

infringe laws, regulations or other administrative provisions issued for the application thereof

concerning the supervision or pursuit of their activities, adopt measures and/or impose sanctions

aimed specifically at ending the observed infringements or the causes of such infringements.

(2) The measures and sanctions referred to in the first paragraph, the financial and non-

financial measures, shall be effective and proportionate with the deeds and irregularities, taking in

consideration their gravity and consequences, as well as the personal and real circumstances of the

committed deed, having a dissuasive effect.

Art. 226 – (1) The National Bank of Romania shall require any credit institution, a

Romanian legal entity, that does not meet the requirements of this emergency ordinance, of the

regulations or other administrative provisions issued for the application thereof, or fails to comply

with a recommendation of the National Bank of Romania, to take the necessary actions at an early

stage to address the situation.

(2) The measures available to the National Bank of Romania shall include, without being

limited to, the following:

a) oblige credit institution to hold own funds in excess of the minimum level laid down in

Article 126;

b) requiring credit institution to reinforce the governance arrangements, processes,

mechanisms and strategies implemented to comply with Article 24 and 148;

c) requiring credit institution to apply a specific provisioning policy or treatment of assets in

terms of own funds requirements;

d) restricting or limiting the business, operations or network of credit institutions, including

by withdrawing the authorisation issued for establishment of branches abroad;

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e) requiring credit institution to reduce the risk inherent to its activities, products and

systems;

e1) requiring credit institutions to limit variable remuneration as a percentage of total net

revenues when it is inconsistent with the maintenance of a sound capital base;

e2) requiring credit institutions to use net profits to strengthen the capital base;

f) requiring credit institution to replace the persons appointed to run the branches of the

credit institution;

g) imposing measures of special supervision or special administration, as the case may be,

on the credit institution or to order stabilisation measures, in accordance with the provisions of this

emergency ordinance;

h) limiting the qualifying holdings of the credit institution in financial or non-financial

institutions, in which case the credit institution is bound to sell them;

i) ordering the credit institution to draw up and approve a recovery plan to improve the

condition of its activity, which must contain detailed measures and activities to be taken to provide

an adequate management of the risks on which the credit institution is exposed to and/or to remove

the irregularities in its activity, as well as the timeframe for their implementation;

(3) The measure referred to in para. (2) point a) shall be imposed by the National Bank of

Romania at least on the credit institution, a Romanian legal entity, which fails to meet the

requirements laid down in Articles 24, 142 and 148 and in the regulations issued for their

application or, if as a result of the review and evaluation carried out by the National Bank of

Romania pursuant to Article 166 para. (3), it considers that the level of own funds held by the credit

institution, a Romanian legal entity, fails to ensure a prudent administration and adequate risk

mitigation in respect of its risk profile. Such measure shall be imposed if the sole application of

other measures is unlikely to improve the governance arrangements, processes, mechanisms and

strategies implemented by the credit institution, a Romanian legal entity, sufficiently within an

appropriate timeframe.

(31) ‘For the purposes of determining the appropriate level of own funds on the basis of the

review and evaluation carried out in accordance with Article 166, the National Bank of Romania

shall assess whether any imposition of a specific own funds requirement in excess of the minimum

level is required to capture risks to which a credit institution is or might be exposed, taking into

account the following:

(a) the quantitative and qualitative aspects of the credit institutions’ internal assessment

process referred to in Article 148;

(b) the governance arrangements, processes and mechanisms of the credit institution

referred to in Article 24;

(c) the outcome of the review and evaluation carried out in accordance with Article 166.

(4) The recovery plan provided for in para.(2) lett. i) may include, without being limited to,

any of the measures referred to in para.(2) lett. a) – f) and h) or a combination of these measures

and can be implemented if the National Bank of Romania considers it to be appropriate for the

achievement of the set objective.

(5) The adoption of the measures referred to in para. (2) shall be subject to the provisions

concerning the exchange of information and professional secrecy, according to Chapter V hereof.

Art. 227 – The National Bank of Romania shall aim at preventing capital of a credit

institution, a Romanian legal entity, from falling below the minimum level required for covering

risks specific to its activity and shall require credit institution concerned to adopt urgent remedial

measures if such minimum level is not maintained or restored.

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Art. 228 – The National Bank of Romania may apply sanctions under this emergency

ordinance, when it finds that a credit institution, Romanian legal entity, and/or any of the persons

referred to in Art.108 para.1, or the persons appointed to head the branches of the credit institution

are found guilty of:

a) infringement of any of the provisions of this Government Emergency Ordinance, of the

regulations issued for its enforcement or the regulations issued by credit institutions, or the

regulations for immediate enforcement adopted within the EU in the fields governed by this

Government Emergency Ordinance;

b) infringement of the measures taken by the National Bank of Romania;

c) infringement of any of the conditions or restrictions stipulated in the authorization;

d) performance of fictitious operations, with a view to reporting an inaccurate financial

standing or exposure of the credit institution;

e) failure to report, delayed reporting or reporting inaccurate data to the National Bank of

Romania;

f) jeopardizing the trustworthy and/or viability of the credit institution by the unsuitable

administration of funds.

Art. 229 – (1) In the cases listed in Art. 228, the National Bank of Romania may apply the

following sanctions:

a) written warning;

b) fine applicable to the credit institution, ranging between 0.05% and 1% of its share

capital;

c) fine applicable to the persons referred to in Art.108 para.1 and to the persons appointed to

head the branches of credit institutions, ranging from 1 to 6 net salaries in the credit institution,

according to the real salary statement in the month before the fact was found;

d) withdrawal of the approval granted to the persons referred to in Art.108 para. (1);e)

withdrawal of the authorisation granted to the credit institution.

(2) The sanctions referred to in para. (1) may be applied simultaneously with the measures

laid down in Art. 226 para. (2) and Art. 230 or independently thereof.

(3) repealed

(4) The sanctions referred to in para.(1) points c) and d) shall be applied to the persons

found guilty of the breach, in the sense that such breach would not have occurred if the persons

concerned had properly performed their tasks and duties as laid down by the company law, the

regulations issued for the application of this emergency ordinance and internal regulations, or by

case, to the persons for which the National Bank of Romania uncovers bad performance of their

duties, contrary to the sound and prudent banking practice and/or for which the requirements of

good reputation and competence according to the nature, size and complexity of the business of the

credit institution and of the responsibilities in charge is no longer fulfilled.

Art. 230 - (1) Where the persons having qualifying holdings in a credit institution,

Romanian legal person, do not longer fulfill the requirements provided by law and the regulations

issued for its application regarding the quality of the credit institution’s shareholding, or if they

exercise an influence that jeopardizes the credit institution’s prudent management, the National

Bank of Romania shall take appropriate measures to cease that situation. For this purpose,

regardless of any other measures or sanctions against the credit institution or the persons having

administration and/or management duties, the National Bank of Romania may decide on the

suspension of the exercise of the voting rights attached to the shares held by the shareholders or

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members in question and/or on the initiation of special administration or on the implementation of

stabilisation measures, according to the provisions of Chapter VIII hereof.

(2) The shareholders against whom the measure laid down in para. (1) has been taken shall

no longer be allowed to acquire new shares of the credit institution, Romanian legal person.

(3) Shareholders whose voting rights were not suspended shall be allowed to gather in the

General Meeting of Shareholders and make any decision in accordance with its powers, the

majority of the voting rights provided by law or, as the case may be, by the incorporation document

being calculated in relation to the capital held by such shareholders.

(4) If the measure of suspension of voting rights provided in para.(1) is applied to all

shareholders, the National Bank of Romania may decide on the withdrawal of the credit

institution’s authorization, the provisions of Art.255 being applicable.

Art. 2301 - (1) In order to redress a situation when a significant deterioration of the

prudential and financial performance indicators of a credit institution, Romanian legal person, has

been occurred, or to prevent the occurrence of such a prospect significant deterioration, which is

likely to jeopardise the capacity of the credit institution to meet the prudential requirements in the

short term, the National Bank of Romania is empowered to take the following measures:

a) to demand the shareholders with qualifying holdings to financially sustain the credit

institution by increasing the share capital;

b) to demand the shareholders with qualifying holdings to financially sustain the credit

institution by providing loans eligible according to the National Bank of Romania’s regulations for

being included in the credit institution’s own funds and/or by converting such loans into shares;

c) to prohibit or limit profit distribution for purposes other then those mandatory by law, until

the National Bank of Romania ascertains that the financial condition of the credit institution is

restored.

(2) If the shareholders with qualifying holdings do not comply, in the time limit set by the

National Bank of Romania, with the measures taken according to para.(1) letter a) or b), the

provisions of Article 230 para.(1) and (3) will become applicable.

(3) Where the suspension of exercising the voting rights of the persons with qualifying

holdings was ordered, the National Bank of Romania will revoke the measure only if the following

conditions are met cumulatively:

a) the circumstances referred to in paragraph (1) ceased to exist;

b) by his behavior, the person concerned has not exercised an influence which is likely to

jeopardize the prudent administration of the credit institution, taking into account, in particular, the

responsiveness in terms of performance, within the specified deadlines, of the recommendations

made under Art.168, of the measures ordered pursuant to Art.226 or by case, under this article;

c) the National Bank of Romania did not ordered in the meanwhile the application of other

measures regarding the credit institution, in accordance with the provisions of Chapter VIII hereof.

Art. 231 –(1) The exercise of the voting rights of the persons who failed to make a

notification, pursuant to Article 25 para. (1), or of the persons who acquired a qualifying holding

despite the opposition of the National Bank of Romania, pursuant to Article 26 para. (2) shall be

suspended by law.

(2) For the General Meeting of Shareholders to gather the provision of Article 230 para.(3)

apply accordingly.

(3) The suspension of exercising the voting rights shall cease starting with the date of

approving the aquiring or increasing of a qualifying holding, under the conditions of this emergency

ordinance, by applying the appropriate procedures referred to in Article 25 paragraphs (3) – (9).

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Art. 2311 – (1) The provisions of Art.231 para.(1) and (3) shall also apply to a proposed

acquirer which, although complying with the obligation of notification, according to Art.25

para.(1), is acquiring the qualifying holding before its approval, according to the provisions of this

emergency ordinance, including an acquirer which complied with the notification obligation

according to the provisions of Art.25 paragraph (11).

(2) If as a result of the assessment, the National Bank of Romania does oppose the proposed

acquisition in writing, the provisions of Article 232 paragraphs (1) – (3) will become applicable.

Art. 232 – (1) The persons who acquired a qualifying holding despite the opposition of the

National Bank of Romania must sell, within 3 months of the date when the opposition was

communicate, their shares representing qualifying holdings acquired in such a way. After the expiry

of this time limit, unless the shares are sold, the National Bank of Romania shall require credit

institution, Romanian legal person, to cancel the shares involved, to issue and sell new shares

bearing the same number, and the amount of money collected from the sale shall be made available

to the initial acquirer, after the cost related to the sale was deducted.

(2) The Board of administration of the credit institution, or the Directorate, as the case may

be, is responsible for the implementation of measures necessary for the cancellation of shares in

accordance with the provisions of para. (1), and for the sale of the newly issued shares.

(3) If, for want of buyers, the sale did not take place or was only partially accomplished in

terms of the newly issued shares, the credit institution shall proceed to the reduction of its share

capital by subtracting the amount representing the difference between the registered share capital

and the share capital held by shareholders with voting rights.

(4) The provisions of para. (1) – (3) are also applicable in case of persons who failed to

notify the National Bank of Romania of the acquisition of a qualifying holding, pursuant to Article

25 para. (1), and do not comply, in the time limit set by the National Bank of Romania, with the

requirement to provide the necessary information and documentation for the assessment provided

by Article 26 para.(1). In this situation the National Bank of Romania could oppose to the

acquisition according to the provisions of Article 26 para.(2).

Art. 233 – (1) The finding of the deeds referred to in this chapter, representing

infringements of the banking discipline, is performed by the National Bank of Romania’s staff

empowered for this purpose, in assessing the reports submitted by the credit institution, a Romanian

legal entity, under the law or at the National Bank of Romania’s express request or during the

inspections carried out at the head offices of credit institutions.

(2) The documents establishing the measures and the penalties laid down in this chapter

shall be issued by the Governor, the First Deputy Governor or Deputy Governors of the National

Bank of Romania, except for the measures referred to in Article 226 para. (2) point g) and the

sanctions referred to in Article 229 para. (1) points d) and e), the imposition of which falls within

the scope of the National Bank of Romania Board.

Art. 234 – (1) The imposition of sanctions shall be lost by limitation within one year from

notification, but no later than 3 years from the date the deed was perpetrated.

(2) The collected fines shall be recognised as revenue to the state budget.

(3) The imposition of sanctions does not remove the material, civil or penal responsibility,

as the case may be.

Art. 235 – The National Bank of Romania may take appropriate measures against credit

institutions carrying on their activity on the Romanian territory, so as to prevent or punish

irregularities committed within the Romanian territory, according to Section 3, Chapter IV of Title

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I, Part I. This shall include the possibility of preventing offending credit institutions from initiating

further transactions within the Romanian territory.

Art. 236 – (1) The provisions of this chapter shall accordingly apply to branches in

Romania of credit institutions from third countries.

(2) Any infringement of the special legislation governing mortgage lending financed

through mortgage bond issues shall also fall under the scope of this chapter if the special legislation

provides no penalties for such infringement.

Chapter VIII

Special procedures

Section 1

Special supervision

Art.237 – (1) The National Bank of Romania may decide on the initiation of the special

supervision of a credit institution, Romanian legal person, for infringement of the law or of the

regulations issued for its application, detected following the on-site inspections and/or the

assessment of the reports submitted by the credit institution, as well as for finding a poor financial

standing, unless it decides on the initiation of the special administration.

(2) The special supervision shall be ensured by a commission appointed for this purpose,

consisting in no more than 7 experts of the National Bank of Romania, from wich one member shall

be appointed as chairman and another as vice-chairman of the commission.

Art. 238 – (1) The responsibilities of the special supervision commission shall be

established by the National Bank of Romania and refer mainly to the following:

a) supervision of the manner in which Board members and managers of the credit

institution, or the supervision council and the directorate, as appropriate, act to establish and

implement the necessary remedial measures to rectify the deficiencies or, as appropriate, the

recommendations formulated or measures taken by the National Bank of Romania, according to this

Government Emergency Ordinance;

b) suspension of applications of certain decisions made by the credit institution’s statutory

bodies or by persons having administrative and/or management responsibilities, which are contrary

to the prudential and sound banking practice, to the requirements of the law and regulations issued

for its application or lead to the deterioration of the credit institution’s financial standing;

c) formulation of requests for amending/completing of governance arrangements, strategies,

processes and mechanisms implemented by the credit institution;

d) limitation and/or suspension of some banking activities and operations for a certain

period of time;

e) any other measures deemed necessary to remedy the credit institution’s standing;

f) forwarding of recommendations to the National Bank of Romania with a view to taking

certain remedial measures or imposing the sanctions provided by law, where the Board members

and the managers of the credit institution, or the supervision council and the directorate, as

appropriate, fail to comply with the measures set by the commission.

(2) The Special Supervision Commission shall not substitute the credit institution’s

managers or directorate, as appropriate, in relation to the business management and the prerogative

to engage the credit institution. The responsibility for the legality, authenticity, accuracy and

opportunity of the performed operations and of the documents drawn up by the credit institution, is

exclusively incumbent on the credit institution’s managers or directorate, as appropriate, and/or on

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the persons who draw up and sign the documents concerned in accordance with their prerogatives

and duties.

(3) During the performance of special supervision, the General Meeting of Shareholders, the

Board members and the managers of the credit institution or the supervision council and the

directorate, as appropriate, shall not take measures contrary to those adopted by the Special

Supervision Commission.

(4) The members of the special supervision commission have access to all the documents

and records of the credit institution, and they are bound by banking secrecy.

Art. 239 – (1) The special supervision commission shall submit on a regular basis reports on

the credit institution’s standing to the National Bank of Romania.

(2) Depending on the conclusions arising from the reports, the National Bank of Romania

shall decide on the continuation or suspension of the special supervision, in the time frame which

may not exceed a period of 3 months from the date of its commencement.

(3) Where significant deficiencies in the credit institution’s activity are still found, the

National Bank of Romania may decide, on a case-by-case basis, the commencement of special

administration of the credit institution or the implementation of other measures provided by law,

including authorisation withdrawal.

Section 2

Special administration

Art. 240 - (1) The National Bank of Romania may decide on the initiation of the special

administration of a credit institution, Romanian legal person, in any of the following circumstances:

a) the special supervision measure was not efficient for a period of up to 3 months;

b) a significant deterioration of the prudential and financial performance indicators is

noticed or is predictable to occur which is likely to jeopardize the capacity of the credit institution

to meet the prudential requirements and the shareholders did not take and/or do not demonstrate that

they are able to take timely the necessary steps to remedy the situation;

c) there are found serious deficiencies in the administration and/or management of the credit

institution or severe and repeatedly infringements of the law and/or regulations issued for its

application, which are seriously threatening the interests of its depositors;

d) the credit institution regarding which one or more measures have been taken under

Article 226 para.(2) letter a) to f) and letter h) failed to fully implement such measures within the

determined timeframes, whereby this failure may jeopardize the bank’s liquidity and/or the

adequate level of the own funds;

e) the credit institution’s operations are threatening its stability or the level of its own funds,

or the credit institution is experiencing a liquidity crisis which jeopardises the interests of its

depositors or other creditors;

f) the credit institution has failed to submit the recovery plan referred to in Art.226 para. (2),

letter i) for improving the condition of the bank within the prescribed timeframe, or the National

Bank of Romania has found the submitted plan unacceptable, or the bank has failed to meet the

obligations set out in such a plan within the defined timeframe, or the problems related to liquidity

or the level of own funds of the credit institution cannot be resolved with a recovery plan;

g) initiation of the special administration is reasonably requested by the Board members, or,

as the case may be, the supervisory council, or the general meeting of shareholders;

h) the National Bank of Romania declared as unavailable the credit institution’s deposits, in

accordance with the provisions of the Government Ordinance no.39/1996 on the establishment and

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operation of the Bank Deposit Guarantee Fund in the banking system, republished, with further

amendments and supplements;

(2) Apart from the situations provided in paragraph (1), if the credit institution’s own funds

are less then 75% of the minimum level of capital requirements determined in accordance with the

regulations issued for the application of Article 126, the National Bank of Romania shall initiate the

special administration, except when it decides either the adoption of stabilisation measures,

according to the provisions set forth in Section 21 of Chapter VIII hereof or, by case, the withdrawal

of the authorisation by notification of the competent court in order to open the bankruptcy

proceeding.

(3) In case of initiation of the special administration according to paragraphs (1) and (2),

and taking into account the concrete circumstances that led to the adoption of this measure, the

National Bank of Romania shall also decide, as the case may be, on the following:

(a) to withdraw the approval granted to persons discharging administration and/or

management duties, according to the provisions of Art. 228 in corroboration with Art. 229;

(b) to withdraw the approval granted to the financial auditor of the credit institution,

according to Art.157;

(c) to suspend the voting rights of the shareholders with qualifying holdings in the credit

institution.

(4) In taking the decision provided in para.(3) letter c), the National Bank of Romania shall

assess the influence of the persons concerned on the credit institution, which may threatening the

prudential administration of the credit institution, in particular taking into account their

responsiveness to the recommendations made under Art. 168, the measures provided in Art.226 or,

as the case may be, to the requests made under Art.2301.

Art. 2401 – (1) The special administration measure shall cover also the activity of the

branches of the credit institution established abroad.

(2) Except for the situation provided in Art. 2402 para.(1), an announcement regarding the

initiation of the special administration shall be published in Monitorul Oficial al României, Part

Four and shall be notified to the other supervisory authorities in Romania.

Art. 2402 - (1) The special administration may be initiated also, if and during the

discharging of administration and/or management duties is no longer fulfilled at the level of the

credit institution.

(2) In case provided in para. (1), the main task of the special administrator is to take the

necessary measures for appointing the Board members and managers of the credit institution or, the

members of the supervision council and the directorate, as appropriate. During this administration,

the special administrator is allowed to take any other decisions which may be adopted by the credit

institution’s Board members and managers, or by the supervision council and directorate, in

accordance with the law.

Art. 2403 – (1) In case of initiation of the special administration for a credit institution,

Romanian legal person, with branches in other member states, the National Bank of Romania shall

notify, by any available means, the appropriate supervisory authorities from other member states

regarding the decision of initiation of the special administration and their effects, if possible, prior

or immediately after the adoption of the decision.

(2) For situations referred to in para.(1), the procedure of special administration shall be

governed by the Romanian law, except those provided by Art.266-Art.274, applied accordingly.

(3) The special administration shall be set up to all the branches of the credit institution,

Romanian legal person, opened in other Member States, starting with the date of National Bank of

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Romania’s decision or with a subsequent specified date in that decision. The measures taken during

the special administration shall produce effects according to the Romanian legislation, without any

other formality, in all the Member States with branches opened by the credit institution, inclusively

in those Member States where the applicable legislation does not provide such measures or where

their implementation depends on the fulfilling of certain requirements.

Art. 2404 - (1) Special administration shall be established for a period of 4 months from the

date the decision was taken by the National Bank of Romania, except for the case where the

decision sets a shorter period of time.

(2) The National Bank of Romania may extend the period of time referred to in para. (1), if

such an extension is necessary to finalize the restructuring measures of the credit institution.

Art. 2405 - (1) In view of exercising the special administrator’s duties, the National Bank of

Romania may appoint one or more individuals or a legal person, which may be the Bank Deposit

Guarantee Fund in the banking system.

(2) The National Bank of Romania’s decision regarding initiation of the special

administration includes the nomination of the persons designated as special administrator, their

objectives and specific tasks determined in accordance with the provisions of this emergency

ordinance, the special administrator’s remuneration, the permitted amounts of expenditures it may

incur in the performance of the authorized tasks, as well as other terms that the National Bank of

Romania considers significant.

(3) In appointing persons according to para.(2), the National Bank of Romania should

consider the following:

a) the individual in question or, if a legal entity is appointed, the individuals having

representative capacity of the legal entity, should not be in one of the incompatibility situations

referred to in Art.110, should not be debtor or creditor of the credit institution or a person related to

the credit institution;

b) the individuals referred to in letter a), as well as individuals assisting the special

administrator in discharging its duties shall have good reputation, corresponding competence and

sufficient professional work expertise and shall be independent, considering, in this context, the

criteria provided by Law no.31/1990 on trading companies, republished, with further amendments

and supplements, for the appointment of the independent administrator.

(4) If more than one individual are appointed to exercise the duties of the special

administrator, the National Bank of Romania’s decision shall define the division of powers among

these individuals and their chain of command.

(5) The National Bank of Romania may replace the persons appointed as special

administrator if they don’t act in conformity with applicable laws or regulations, or orders or

instructions given by the National Bank of Romania, or if they no longer meet the conditions

provided in para (3).

(6) All the expenses pertaining to the special administration, including those incurred by the

Bank Deposit Guarantee Fund in the banking system upon performing special administration, shall

be borne by the credit institution, subject to this measure. If one or more employees of the National

Bank of Romania are designated to perform the special administrator’s duties, their remuneration

for the special administration shall be paid by the National Bank of Romania.

Art. 2406 – (1) The special administrator shall act in accordance with the applicable law and

rules, as well as with the orders and instructions given by the National Bank of Romania at any time

in the course of the special administration, and shall be accountable only to the National Bank of

Romania for the performance of duties and the exercise of powers as special administrator. The

77

special administrator may hire other persons, such as auditors, attorneys, appraisers, other

independent authorized experts to assist in the performance of his duties, and delegate specified

administrative tasks in accordance with the instructions issued by the National Bank of Romania.

(2) Special administrator, and any other persons, that might be hired to assist in the

performance of the special administration, shall not be personally liable for damages that might

arise from actions taken or omissions in the performance of their duties in accordance with the law,

unless it has been proved that the particular action giving rise to damages has been performed in

bad faith or with gross negligence.

(3) Expenses in which the persons mentioned in para.(2) may have to incur to defend

themselves in court shall be covered by the National Bank of Romania for all cases where the duties

were performed in good faith and without negligence.

(4) The persons referred to in para.(2) shall keep the professional secrecy, according to the

provisions provided in Chapter V, Title III, Part I.

Art. 2407 – (1) The National Bank of Romania may set certain restrictions and/or conditions

on the activity and administration of the credit institution under special administration, and may

entirely or partially restrict the supplying of certain financial services. Any of such limitations,

conditions and restrictions shall be notified to the special administrator who is responsible for their

observance.

Art. 2408 – (1) During the special administration, the mandate of the Board members and

managers or that of the supervision council and the directorate, as appropriate, shall cease and the

special administrator shall take over all the administration and management tasks of the credit

institution.

(2) The functioning of the general meeting of shareholders shall be suspended during the

special administration unless it is convened by the special administrator if there is need for its

decision, according to Art.24012 para.(3). In such cases, the special administrator shall establish the

meeting’s agenda, with the prior consultation of the National Bank of Romania, and the convened

persons may not alter it, without prejudice to the rights of the shareholders accounting for at least

5% of the share capital to require the introduction of new items on the agenda, if the credit

institution is listed on a regulated market.

(3) The shareholders accounting for at least 50% of the voting rights shall be allowed to

submit to the special administrator viable proposals for the credit institution’s financial recovery

which can be taken into consideration in elaborating the action plan or in the formulation of

proposals for amending it, according to the provisions of Art. 24015 para.(1) and (3).

(4) Where the National Bank of Romania decided to suspend the voting rights of one or

more shareholders with qualifying holdings in the credit institution, according to Art.230 para. (1),

Art.2301 para.(2) or, where appropriate, Art.240 para.(3) letter c), for the general meeting of

shareholders shall be convened the shareholders whose voting rights were not suspended, the

majority foreseen by the law, or as appropriate, by the Article of association for taking decisions,

being reported, in this case, to the total share capital held by those shareholders.

Art. 2409 - (1) After taking over the credit institution’s administration, the special

administrator shall, without delay, inform of this measure the credit institution’s departments,

branches, the correspondent credit institutions, the trade register and, where appropriate, the Bank

Deposit Guarantee Fund in the banking system.

(2) The notification shall be in writing and shall also include the signature specimen of the

special administrator. The notification addressed to correspondent credit institutions shall also

include the mention that all further operations carried out through the credit institution’s account

shall be authorized only by the special administrator or by the persons expressly empowered by

78

him.

(3) In the course of the special administration, the special administrator shall have

unrestricted access to, and control over, the properties, offices, assets and the books of account and

other records of the bank subject to special administration. In case of physically hinder,

immediately upon request of the special administrator, law enforcement officials shall assist the

special administrator to gain access to any premises of the bank and to gain control over and to

secure such properties, assets, books and records.

Art.24010 – (1) For credit institutions with branches in other Member States, the special

administrator shall publish an extract of the decision of the National Bank of Romania on the

initiation of special administration in the Official Journal of the European Union, by its prompt

submission, by adequate means, to the Official Publications Office of the European Union, and in

two national daily newspapers on the territory of each host Member State. Where appropriate, the

provisions of Art.261 para.(3) shall be applied accordingly.

(2) – The extract of the decision shall mention, in the official language/languages of

that/those Member State/States, especially the object and the legal ground regarding the initiation of

special administration, the time limit of appeal and the authority where the decision may be

disputed, by indicating its address.

(3) The implementing of measures adopted during the special administration shall not be

conditioned upon the fulfilling of disclosure formalities referred to in para. (1) and (2).

(4) The special administrator shall carry on its tasks on the territory of the host Member

States, subject to the provisions of Art.262, applied accordingly.

Art. 24011 - (1) The tasks of the special administrator, determined by decision of the National Bank

of Romania, may include any restoration measures, in the interest of the credit institution’s

depositors, that are necessary to preserve the value of the credit institution’s assets, to remedy

deficiencies in its administration and to collect its claims as well as any measures necessary to

implement a restructuring of the credit institution’ activity, in accordance with this Emergency

Ordinance.

(2) As promptly as possible after its appointment, the special administrator shall establish

the possibility and relative costs and merits of the following alternatives:

a) the restoration of the credit institution to viability;

b) the restructuring of the credit institution by the implementation of measures provided for

in Article 24012 para.(1);

c) a direct petition to the courts of bankruptcy of the credit institution.

(3) The special administrator’s assessment according to para.(2) shall be substantiated in the

report provided for in Art. 24015 and documented.

(4) Following his/her appointment, the special administrator shall ensure the safekeeping of

the credit institution’s assets and documentation. Within up to one month from the moment of

his/her appointment, the special administrator is obliged to assess and to take the stock of the credit

institution’s assets and liabilities and prepare the financial statements that shall be submitted to the

National Bank of Romania, together with the report referred to in Article 24015.

(5) The restoration measures that could be taken by the special administrator may include

the following:

a) negotiation of the credit institution’s claims and/or setting their new maturity;

b) suspension of the deposit-taking and/or credit granting;

c) limitation or restructuring of the unprofitable activities, including the closing branches;

d) reduction of the expenses, including through rescaling the personnel;

79

e) improving the administration framework, strategies, processes and mechanisms

implemented by the credit institution;

f) revaluation of the necessary provisions or of the treatment of credit institution’s exposures

in relation to the risks assumed;

g) mitigation of risks related to credit institution’s operations, products and/or systems;

h) any other measures that the credit institution’s Board members and managers, or the

supervision council and the directorate, may adopt in compliance with the law;

i) halt fraudulent activities and abuses of any kind made by the related parties of the credit

institution;

j) take legal actions in order to cancel fraudulent agreements, previously concluded by the

credit institution, including the contracts where the credit institution’s obligations are

disproportionate as compared with the services performed by the other party of the contract;

k) notify the competent authorities if there are reasons to consider that infringements were

committed.

Art. 24012 - (1) The special administrator may be authorized by the National Bank of

Romania to implement measures for restructuring the credit institution’s activity which may

include:

a) increasing the share capital;

b) writing down the share capital to absorb losses;

c) asset sales operations;

d) deposits transfer operations;

e) acquisition of assets and assumption of liabilities, where another credit institution or

financial institution acquires assets of the credit institution under special administration

and assumes its liabilities, in exchange;

f) merger with other credit institutions;

g) total or partial split-up.

(2) In the meaning of para.(1), the special administrator shall act in accordance with the

instructions given by the National Bank of Romania which may specifically or generally indicate

the implementation manner.

(3) Special administrator shall convene the general meeting of shareholders to decide on the

implementation of the measures provided in para.(1) letters a), b), f) and g) and to limit or suspend

the shareholders’ preferential subscription right for new shares, in case of increasing the share

capital. The implementation of the restructuring measures provided in para.(1) letters, c), d) and e),

by derogation from the provisions of Art.15322 of the Law no.31/1990 on commercial companies,

republished, and subsequently amended and supplemented, as well as of the restoration measures

provided in Art.24011 para.(5) does not require an approval of the general meeting of shareholders.

(4) The deadline for holding the general meeting of shareholders, except for that convened

to decide on the merger or split-up is, for the first convene, of up to one week after the date of the

publication of the convening, according to the law, or up to one week after the date of the

notification by registered letter or electronic mail, with incorporated, attached or logically

associated the extended electronic signature. The formalities of convocation may not be met if all

the shareholders who may exercise their voting rights agree to hold a general meeting.

(5) The provisions of para.(4) shall not apply if the credit institution under the special

administration is quoted on a regulated market, in which case the convocation shall be made

according to the law specific to the capital market.

(6) If the general meeting of shareholders does not take the necessary decisions in cases

provided for in para. (3), in the absence of any viable recovery solutions, the National Bank of

80

Romania shall decide to withdraw the authorization of the credit institution, with proper application

of Art. 24016 para.(2) lett.b).

Art. 24013 - (1) For the implementation of the measures regarding increasing or writing down

the share capital, the following shall be taken into account:

a) where the increase of the share capital is necessary, for well-founded reasons, justified by

an investor’s serious intention to participate in the credit institution’s capital, the special

administrator may ask the general meeting of the shareholders to suspend the shareholders’

preferential subscription right for new shares, in whole or in part, with the prior approval of the

National Bank of Romania; in all other cases, the preferential right may be exercised within 14 days

from the publication of the decision of the general meeting, according to the law;

b) any increase in the share capital should be done only after it has been written down to

absorb all existing losses, or by adequate elements of own funds;

c) the increase in the share capital must guarantee at least a level of own funds enabling the

credit institution to meet the prudential requirements provided by law and applicable regulations;

d) the decision on the reduction in the share capital to absorb losses will be in effect from

the date of its publication according to the law, and the special administrator must take the

necessary measures for the publication within the emergency procedure. In this case, the decision

could not be subject to the opposition of the social creditors, according to Law no.31/1990,

republished. The provisions of Art. 24021 - 240

22 shall be applied accordingly.

Art. 24014 – (1) The operations of a credit institution under special administration, related to

assets sale, deposits transfer, assets sale with assumption of liabilities and merger/split-up may be

carried on to credit institutions or, as the case may be, to financial institutions which, in the opinion

of the National Bank of Romania, have a financial standing which is suitable from the perspective

of the size and risks related to the activities that will be taken over, have operational capacity and

are able to ensure properly the pursuing of banking services related to assets and, by case, to

transferred liabilities, and such operation does not put at risk the soundness and viability of their

activity or, if the case may be, their capacity to meet the prudential requirements, and in particular

the requirements on the minimum level of own funds.

(2) In order to facilitate the implementation of a restructuring measure consisting in

transactions involving guaranteed deposits transfer within the meaning of the Government Ordinance

no.39/1996 on establishment and functioning of the Bank Deposit Guarantee Fund, republished, as

further amended and supplemented, the resources administered by the Bank Deposit Guarantee Fund

may be used for financing the transaction, including by issuing of guarantees, in compliance with the

provisions of the above mentioned ordinance. The financing is proposed by the special administrator

and grounded within the report provided for in Article 24015 paragraph (1) or, by case, in the request

made according to Art. 24015 paragraph (4), based on the analysis regarding the estimated value of

compensations related to deposits existing in the internal records of the credit institution under special

administration, sent by the Bank Deposit Guarantee Fund to the special administrator. The financing is

requested to the Bank Deposit Guarantee Fund by the special administrator based on the National

Bank of Romania’s approval.

(3) On performing the operations referred to in paragraph (1), the following requirements

shall be met:

a) fair treatment and fair competition among institutions that fulfill the eligibility conditions

provided in paragraph (1) and that indicate their intention for taking over should be ensured; in this

respect, the special administrator shall make available to the interested institutions, in a non-

discriminatory manner, and only after these institutions signed a confidentiality agreement, of the pack

of relevant information from the perspective of the proposed restructuring measures, as well as

81

facilitating the carrying on of the valuation of assets and/or, by case, of liabilities that will be taken

over, if this valuation is performed prior to the date of signing the contract, that underlie the operation;

b) if there are bids from several institutions which fulfill the eligibility conditions referred to in

paragraph (1), the designation of the winning institution or, as appropriate, institutions, hereinafter

referred to as the beneficiary institution, is based on the most advantageous bid, as considered by the

National Bank of Romania, with respect to the objectives pursued;

c) in the case of a partial deposits transfer or a partial assets sale with assumption of liabilities

transaction, priority will be given to the transfer of guaranteed deposits, by complying with the

principle of minimum cost, respectively, that the amount for financing this transaction by the Bank

Deposit Guarantee Fund shall be lower than the amount of compensations to be paid for those deposits;

c1) the assets sale with assumption of liabilities to the beneficiary institution or, by case, the

return of assets from it to the credit institution from which the transfer was made, shall ensure that

the rights and obligations subject to a netting agreement, or related to a securitisation transaction are

either transferred or fully kept, and those related to guarantee contracts shall follow the transferred

assets;

c2) within an assets sale with assumption of liabilities, rights and obligations related to

elements which are not recorded as balance-sheet assets or liabilities, may be subject to the

transaction, if, in the opinion of the National Bank of Romania, this is necessary to achieve the

objectives pursued.

d) it may be performed the transfer of all guaranteed deposits as well as the partial transfer

of these, in the latter case, the transaction will be performed in such a way to minimize risk, if any,

so that the Bank Deposit Guarantee Fund, after financing the transfer, will also remain obliged for the

payment of the compensation related to the deposits of the same depositor to the credit institution

where the partial transfer was performed;

e) repealed

f) the amounts that could result from transactions provided for in paragraph (1), less costs

related to such transactions, are included in the credit institutions property, being in the situation of

Art.24018 paragraph (2) and are used to the payment of creditors, in accordance with the claims

priority ranks, in the event of liquidation/bankruptcy.

(4) For the implementation of restructuring measures referred to in Art. 24012 paragraph (1)

letters c), d) and e), the consent of depositors or other creditors or debtors of the credit institution

shall not be required. For their notification, the special administrator publishes a general statement

in the Monitorul Oficial al României, Part Four, and in one or more newspapers of general

circulation, and, where appropriate, ensures the publicity according to art. 24010 immediately after

the implementation of the measure.. All interested parties may obtain the necessary information on

the state of their claims or obligations from the credit institution under the special administration,

the special administrator being obliged to take the necessary measures in this respect.

(5) Where restructuring measures involve deposits transfer, within the term notified by the credit

institution which has taking over the deposits, the transferred depositors shall apply for keeping the

deposits to that credit institution, according to the agreed conditions or may withdraw their deposits,

without bearing any penalty form for early withdrawal, provided that there are no restrictions or

interdictions on those deposits.

(6) The institution which takes over liabilities of the credit institution under special

administration shall be liable only for the obligations related to the transferred liabilities according

to contractual terms and which are recorded in the financial statements prepared by the special

administrator.

(7) The beneficiary institution subrogates all the rights and obligations arising from contractual

relationships related to assets and liabilities taken over, as well as those arising from elements taken

over which are not recorded as balance-sheet assets and liabilities.

82

(8) The liabilities transferred can not be subject to returning.

(9) The implementation measure of assets sale with assumption of liabilities shall not be

considered as a reason for termination of contracts where the beneficiary institution was subrogated,

according to paragraph (7).

Art. 24015 - (1) Within maximum 2 months from his appointment, the special administrator

shall submit a written report to the National Bank of Romania, which shall document the following:

a) the measures taken since the special administration was implemented and their effects;

b) the evaluation of the possibility and relative merits and costs of a restoration,

restructuring or, as the case may be, bankruptcy of the credit institution, including an assessment of

the amounts likely to be realized in a liquidation of the bank;

c) the recommendations of the special administrator on the measures he considers

appropriate, based on the evaluations made, which may include an action plan for the approval of

the National Bank of Romania consisting of the implementation of any of the restructuring

measures provided for in Art.24012 para.(1), or a combination thereof, without excluding the

application or carrying on the application of restoration measures provided in Art. 24011 para.(2).

(2) The report mentioned in para.(1) shall be submitted together with documents regarding

the inventory and assessment of the credit institution’s assets and liabilities, the claims retrieval

statement, the cost of preserving the assets and the statement on debt repayment, as well as the

credit institution’s balance sheet prepared in accordance with Art. 24011 para.(4).

(3) The report mentioned in para.(1) shall include enough details to sustain the

administrator’s recommendations. The estimated amounts to be realized in case of liquidation shall

be determined by an authorized valuator, according to the law, at the expense of the credit

institution, as the average value resulting from the application of at least two of the valuation

methods recognized by the law in force at the valuation date.

(31) The authorised valuator referred to in paragraph (3) shall have appropriate experience in

the field of assessing the banking assets and shall be agreed by the National Bank of Romania

according to the regulations issued for this purpose by it; it is considered that these conditions are

fulfilled by the financial auditors approved by the National Bank of Romania in compliance with

the provisions of Article 155 para.(1).

(4) The special administrator may ask the National Bank of Romania’s approval to

implement the measures provided in art. 2461 para.(1) lett.c), d) and e) and in particular, to transfer

guaranteed deposits, before submitting the report provided in para.(1), in emergency situations and

given the opportunity for such measures to be achieved.

(5) For well-founded reasons, the National Bank of Romania may, on recommendation of

the special administrator, extend the time limit referred to in para. (1) for submitting the report by

one month at most.

Art. 24016 - (1) Within 15 days from receiving the special administrator’s report, the

National Bank of Romania shall decide upon the timeliness and period of time of maintaining the

special administration and upon the recommendation of the special administrator and by case, shall

approve, with or without amendments, or shall disapprove the proposed action plan.

(2) Where the National Bank of Romania considers that there are no favorable conditions

for the restoration of the credit institution’s financial standing so that it cannot be improved to the

extent that the credit institution would fulfill the prudential requirements established by law or by

the regulations issued for its enforcement, the National Bank of Romania may decide on the

following, as appropriate:

a) implementation of the restructuring measures, according to the approved action plan or, in

its absence, based on the evaluations provided in Art.24015 para.(1) lett.b) and setting of a time limit

83

in which the special administrator shall undertake steps for the restructuring of the credit institution;

b) the withdrawal of the credit institution’s authorization and informing the competent court

in order to open winding-up proceeding, or, as the case may be, the withdrawal of the authorization

followed by the dissolution and liquidation of the credit institution, in accordance with the

provisions of Section 3 of this Chapter.

(3) The National Bank of Romania may require for the amendment of a previously approved

action plan or may approve the amendment of the action plan made at the recommendation of the

special administrator, whenever it considers as necessary, prior to and until the time of its

fulfillment.

(4) While assessing the relative merits and costs of the different alternatives discussed in the

special administrator’s report, in accordance with Art.24015 para.(1) lett.b), and in deciding in

accordance with para.(1), the National Bank of Romania pursuing firstly the objective of

maintaining the financial stability and depositor’s protection shall take into consideration the less

costly alternative from this prospective.

(5) Where, by adoption of restructuring measures, the creditors of the credit institution are in

a less favorable situation than the one where the restructuring measures would have not been

implemented and the credit institution would have gone directly into liquidation, taking into

account the estimated amounts that would have been due to them following the distribution in case

of bankruptcy, based on the estimates made under Art. 24015 paragraph (2), the provisions of

Art.24021 will be applicable.

Art. 24017 - (1) Throughout the special administration, the special administrator shall submit

to the National Bank of Romania reports on the credit institution’s financial standing and on the

status of the measures implemented, at the dates set by the National Bank of Romania.

(2) The provisions of para.(1) do not prejudice the right of the special administrator to report

to the National Bank of Romania on any impediments that occur in implementing the approved

measures and to propose changes to such measures. The special administrator shall propose to the

National Bank of Romania to withdraw the authorization of the credit institution, if these

impediments are due to the opposition of the general meeting of shareholders to adopt the necessary

decisions or are due to objective considerations that prevent from the implementation of the

approved measures within a reasonable time, and no other viable solutions are foreseeing for

resolution of the credit institution.

Art. 24018 - (1) On the basis of the special administrator’s reports, the National Bank of

Romania may, at any time, decide to discontinue special administration in order to restart the credit

institution’s activity under its statutory bodies’ control, or to withdraw the credit institution’s

authorization, the provisions of Art.24016 para. (2) letter b) being applied accordingly.

(2) Where implementation of some restructuring measures consisting in transactions

involving transfer of deposits placed with the credit institution under special administration, the

National Bank of Romania shall withdraw the authorisation starting with the date on which the

contract that underlie the transaction regarding deposits transfer or assets sale with assumption of

liabilities starts to produce effects and, as the case may be, shall notify the competent court of the

initiation of the bankruptcy proceeding. The withdrawing of the authorisation does not prevent the

completion of restructuring measures approved by the National Bank of Romania.

Art. 24019 - (1) Where, on the basis of the special administrator’s reports, the National Bank of

Romania finds that during the period of special administration the credit institution’s financial

standing improved to the extent that the prudential requirements, established by this Government

Emergency Ordinance and the regulations issued for its enforcement are met, the National Bank of

Romania shall decide upon the discontinuation of special administration with resumption of the

credit institution’s activity under its statutory bodies’ control. In this respect the special

84

administrator shall take the necessary measures in order to designate the new persons that will carry

out the tasks of Board members and/or managers of the credit institution.

(2) A statement on ending the special administration shall be published in accordance with

the provisions of Art. 2401 para. (2) and, as the case may be in accordance with the provisions of

Art. 24010.

(3) Prior to the appointment and approval by the National Bank of Romania of the persons

referred to in para. (1), the special administrator shall ensure the administration and management of

the credit institution.

Art. 24020 – Where the National Bank of Romania decides to withdraw the credit

institution’s authorization and to inform the competent court in order to open bankruptcy

proceedings, according to Government Ordinance No.10/2004 on bankruptcy of credit institutions,

as approved with amendments and supplements by Law No.278/2004, until the appointment of a

syndic judge of the liquidator, the administration of the credit institution shall be ensured by the

special administrator.

Art. 24021

- (1) Any person who has been prejudiced by the measures provided for and

implemented during special administration in accordance with the provisions of this emergency

ordinance, may file a petition to the competent court asking to be compensate for the damage

caused, within 15 days from the date he/she knew or should have known the occurrence of the

prejudice.

(2) If the court considers the applicant's claims to be justified, it may grant the

compensations in the amount to be determined as a difference between the estimated amount that

could have been received in case of bankruptcy and the actual amounts received following the

distribution of amounts resulted from the liquidation of all the assets of the credit institution, made

in accordance with the succession of debt extinction provided by the Government Ordinance

No.10/2004, as approved, with amendments and supplements by Law No.278/2004. The estimated

amount shall be determined for the date when special administration was initiated.

(3) Compensations shall be bearing by a special fund established in this purpose and

administered by the Bank Deposit Guarantee Fund in the banking system.

Art. 24022

- (1) Any measure taken during special administration shall not be suspended or

invalidated, even in the bankruptcy proceedings of credit institutions. If the court rules that the

measures are unlawful, the party favoured with the ruling shall be entitled to initiate a legal action

for damages caused by the implementation of the unlawful measure, except in cases covered by

criminal law.

(2) During the litigation related to these measures, the court shall rule on the lawfulness of them, the

National Bank of Romania being the sole authority empowered to decide on the grounds of

opportunity, on assessments and qualitative analyses which have given reason for such measures.

Art. 241 – repealed

Art.242 – repealed

Art.243 – repealed

Art.244 - repealed

Art. 245 – repealed

85

Art. 246 – repealed

Art.247 - repealed

Art. 248 – repealed

Art.249 – repealed

Art.250 – repealed

Art.251 – repealed

Art.252 – repealed

Art.253 – repealed

Art.254 - repealed

“Section 21

Stabilisation measures

21.1. Common provisions

Art.24023 - (1) The National Bank of Romania may decide, under the provisions of this

section, the implementation of one of the following stabilisation measures, if a credit institution is

in any of the situations referred to in Art.240 and/or the measure of suspension of the voting rights

for the shareholding having control over that credit institution was disposed and, in any of these

circumstances, there is a threat to the financial stability:

a) the total or partial transfer of assets and liabilities of a credit institution to one or more

eligible institutions;

b) the involvement of the Bank Deposit Guarantee Fund as a delegated administrator and as

a shareholder, as the case may be, if previously was disposed the measure on suspension of the

voting rights for the shareholding having control over that credit institution;

c) the transfer of assets and liabilities from a credit institution to a bridge-bank, established

for this purpose.

(2) Before a decision is taken in accordance with paragraph (1), the National Bank of

Romania decides which of the stabilisation measures provided in that paragraph is appropriate to be

implemented.

(3) If a decision was taken according to paragraph (1), the mandate of the persons ensuring

the administration and/or management of the credit institution subject to the stabilisation measure

ceases at the date the National Bank of Romania’s decision is communicated to the credit

institution, its administrative and management duties being taken over by the delegated

administrator appointed by National Bank of Romania’s decision on adopting a stabilisation

measure. The provisions of Art.2405 paragraph (5), Art. 240

6 and Art. 240

9 paragraph (3) are

applied accordingly.

(4) The delegated administrator is entitled to take all necessary measures to ensure

implementation under good circumstances of the National Bank of Romania’s decision referred to

in paragraph (1).

86

(5) The functioning of the general assembly of shareholders of the credit institution on which

the stabilisation measure was taken is suspended during implementation of the stabilisation

measures referred to in paragraph (1) lett.a) and c).

(6) The National Bank of Romania shall notify immediately the Public Finance Ministry the

adoption of any decision under paragraph (1).

(7) In the case of implementing a stabilisation measure according to paragraph (1), the

provisions of Art.24021 and Art.240

22 are applied accordingly.

(8) The operations performed following the adoption of stabilisation measures will be carried

out in compliance with the relevant rules on competition in the field.

Art.24024 - (1) The financing of stabilisation measures referred to in Art.240

23 paragraph

(1) is provided by the Bank Deposit Guarantee Fund, from the resources managed by it, under the

applicable provision.

21.2 The transfer of assets and liabilities to eligible institutions

Art.24025 - (1) The National Bank of Romania may decide the implementation of the

stabilisation measure referred to in Art.24023 para.(1) lett.a) in compliance with the provisions of

Art.24014 para.(1), para.(4), para.(5) and para.(7) - (9), which shall apply accordingly, as well as

with the following requirements:

a) fair treatment and fair competition among institutions that fulfill the eligibility conditions

provided in Art.24014 para.(1) and that indicate their intention for taking over should be ensured; in

this respect, there shall be made available to the interested institutions, in a non-discriminatory manner,

and only after these institutions signed a confidentiality agreement, of the pack of relevant information,

as well as facilitating the carrying on of the valuation of assets and/or, by case, of liabilities that will be

taken over, if this valuation is performed prior to the transfer;

b) if there are bids from several institutions complying with the eligibility conditions referred

to in Art.24014 paragraph (1), the designation of the winning institution or, as appropriate, institutions,

hereinafter referred to as the beneficiary institution/institutions, is based on the most advantageous bid,

as considered by the National Bank of Romania, in terms of the objectives pursued;

c) the transfer of assets and liabilities to the beneficiary institution or, by case, the return of

assets from it to the credit institution from which the transfer was carried out, shall ensure that the

rights and obligations subject to a netting agreement, or related to a securitisation transaction are

either transferred or fully kept, and those related to guarantee contracts shall follow the transferred

assets;

d) within a transfer of assets and liabilities, may be subject to the transaction, inclusively

rights and obligations related to elements which are not recorded as balance-sheet assets or

liabilities, if, in the opinion of the National Bank of Romania, this is necessary to achieve the

objectives pursued.

e) the amounts that could result from the transfer of assets and liabilities transaction, less

costs related to such transactions, are included in the credit institutions property from which the

transfer is made and are used to the payment of creditors, in accordance with the claims priority

ranks, in the event of liquidation/bankruptcy.

(2) On performing the transfer of assets and liabilities priority is given to the guaranteed

deposits, in the sense of the Government Ordinance no.39/1996, republished, as further amended

and supplemented. It may be achieved both, the transfer of all deposits guaranteed, and the transfer

of a part of them, in case of partial transfer the transaction being carried out in such a way as to

minimize the risk, if any, so that the Bank Deposit Guarantee Fund, after funding the transfer, to

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remain bound for the payment of compensation on deposits of the same depositor to the credit

institution from which the partial transfer was carried out.

(3) The National Bank of Romania’s decision taken under paragraph (1) shall include at

least the following:

a) the assets and liabilities to be transferred, according to the accounting recordings of the

credit institution from which the transfer is carried out;

b) where appropriate, the level of funding to be provided by the Bank Deposit Guarantee

Fund;

c) the person appointed as a delegated administrator;

d) the beneficiary institution of the transfer of assets and liabilities.

Art.24026 - (1) In the case of the credit institution from which the transfer was carried out, the

provisions of Art. 24018 paragraph (2) are applied accordingly.

(2) Until the appointment of a liquidator, the administration and management of the credit

institution is further maintaining by the delegated administrator.

21.3 Bank Deposit Guarantee Fund’s involvement

Art. 24027 – (1) In case of adoption a stabilisation measure according to Art. 240

23 para. 1

lett. b), the BDGF’s involvement as shareholder is made by increasing that credit institution share

capital and subscribing by the Bank Deposit Guarantee Fund of the new shares issued.

(2) The decision of the National Bank of Romania adopted under paragraph (1) includes at

least the following:

a) the person/persons approved to exercise the duties of the delegated administrator on

behalf of the Bank Deposit Guarantee Fund;

b) the level of participation of the Bank Deposit Guarantee Fund to the share capital of the

credit institution, as appropriate.

Art. 24028 – (1) The delegated administrator convenes the general assembly of shareholders to

decide upon:

a) the writing down of share capital to absorb losses;

b) the share capital increasing and cancellation of the existing shareholders’ preferential

subscription rights, for the subscription by the Bank Deposit Guarantee Fund in the Banking

System of the new shares issued. The provisions of Art. 2408 para.(4), Art.240

12 para. (4)-(6) and

Art. 24013 lett. b) shall be applied accordingly.

(2) The sale of shares acquired by the Bank Deposit Guarantee Fund according to para.(1)

shall be achieved in a period up to 2 years since the date of acquisition, with the possibility of

extending this period, for grounded reasons, by the decision of the National Bank of Romania.

(3) Where a qualifying holding the level of which allows the control over the credit

institution is sold, the Bank Deposit Guarantee Fund is entitled to exercise the option to sell its

shares to the same proposed acquirer, on the same terms, price and sales conditions in which the

sale of the respective qualifying holding is carry out. The intention to sell shall be notified

according to Art.27 also to the Bank Deposit Guarantee Fund, which should express its put option

within 48 hours from notification, in which case, the qualifying holding may be sold only together

with the shares of the Bank Deposit Guarantee Fund, in terms, price and conditions agreed.

(4) The mandate of the BDGF as delegated administrator, granted by the National Bank of

Romania’s decision according to Art. 24023 para. 1 lett. b), ceases on its revocation by the National

Bank of Romania or when shares are being sold according to para.(2).

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21.4 The transfer of assets and liabilities to a bridge-bank

Art.24029 – (1) The bridge-bank is a credit institution which is established and functioning as a

bank, in the meaning of Art.3 lett.a), in the purpose of taking over the assets and liabilities of a

credit institution, in order to ensure the continuing of providing banking services related to the

assets and liabilities taken over, to be subsequently sold to a third eligible part. The bridge-bank is

established and functioning for a period of up to 2 years, with the possibility of extending this

period, by the decision of the National Bank of Romania, in situations where a threat to the

financial stability still persists and/or negotiations with the proposed acquirer of the bridge-bank

were not finalized.

(2) The bridge-bank shall ensure the maintenance of a low risk level in the pursuit of the

business, and the eventual extension of its business will be done prudently.

(3) The bridge-bank is authorised and operates in compliance with the legislation applicable to

the credit institutions and is subject to the prudential supervision of the National Bank of Romania.

(4) The National Bank of Romania may decide upon the establishing of the bridge-bank with

a share capital set below the level specified in Art.11, but which can not be less than the equivalent

in Lei of 1 million EUR. In application of the provisions of Art.36, the National Bank of Romania

shall notify, in this case, the authorisation of the bridge-bank also to the European Commission,

together with the motivation for the level set for the share capital.

(5) The share capital shall be paid up within 30 days from the date of the bridge bank’s

registration in the trade register.

Art.24030 - (1) By way of derogation from the provisions of Art.10 para.(3) of the Law

no.31/1990 on commercial companies, republished, as further amended and supplemented, the

bridge-bank is established as a joint stock company, the Bank Deposit Guarantee Fund being the

sole shareholder. The fulfillment by the Bank Deposit Guarantee Fund of the conditions referred to

in Art.26 para.(1) is presumed.

(2) The bridge-bank’s administration is organised under a dual board structure, the exercise of

the supervisory board responsibilities being ensured by the Bank Deposit Guarantee Fund, which is

represented at least by 3 individuals that meet the requirements of Art.108 paragraph(1).

(3) In the application of the provisions of paragraphs (1) and (2), the Bank Deposit Guarantee

Fund exercises the rights and assumes the obligations arising from its shareholder’s status and from

the supervisory board’s duties, as these result according to the law and regulations issued by the

National Bank of Romania.

(4) The name of the bridge-bank is formed by the name of the credit institution from which

the assets and liabilities have been transferred, followed by the initials „BP - S.A.”

(5) The registered office of the bridge-bank is set to the same address with that of the credit

institution from which the transfer is carried out.

(6) The provisions of Art.9 paragraph (2), Art.111 paragraph (2) lett.b1), Art. 153

9 paragraph

(1) lett.b) and of Art. 15313 paragraph (2) of Law no.31/1990, republished, as further amended and

supplemented, are not applicable to the bridge-bank.

Art.24031 – The financing is granted by the Bank Deposit Guarantee Fund both, for the

assets and liabilities transfer to the bridge-bank, and to ensure its own funds requirements, so as to

ensure the carrying out of activity of the bridge-bank, in compliance with all prudential

requirements.

Art.24032 – (1) The National Bank of Romania’s decision, adopted under Art.240

23 paragraph

(1), lett.c), contains at least the following:

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a) the assets and liabilities that will be transferred, calculated according to the accounting

records of the credit institution from which the transfer was carried out and the authorisation of

establishment and functioning of the bridge-bank;

b) the level of the initial share capital subscribed of the bridge-bank and the temporary level of

funding for the transfer of assets and liabilities;

c) the persons approved to exercise management responsibilities of the bridge-bank, in

compliance with the requirements of Chapter I of Title II of Part I;

d) the approval of the representatives of the Bank Deposit Guarantee Fund in the supervisory

board of the bridge-bank;

e) the object of activity of the bridge-bank;

f) the financial auditor approved for the bridge-bank;

g) the person appointed as a delegated administrator to the credit institution from which the

transfer of assets and liabilities is carried out.

(2) Following the decision referred to in paragraph (1), the National Bank of Romania issues

the authorisation of the functioning for the bridge-bank.

(3) The registration of the bridge-bank in the trade register shall be made urgently, based on

the authorisation issued by the National Bank of Romania and on the articles of association, within

24 hours from submitting the documents to the National Trade Register Office in whose

circumscription the bridge-bank’s headquarters are located.

(4) Within 30 days there will be submitted also the other necessary documents provided by the

law for the registration of a trading company.

(5) The non-compliance with the provisions of para.(4) is sanctioned according to the

provisions of Art.44 of the Law no.26/1990 on the trade register, republished, as further amended

and supplemented.

Art. 24033 – (1) The transfer of assets and liabilities to the bridge-bank shall be made to the

value at which they are recorded in the accounts of the credit institution from which the transfer is

carried out, at the time of transfer.

(2) If, from the assessment provided in Art.24034 paragraph (4) results that the fair value of

the assets transferred, taking into account also the possible returning performed according to

Art.24034 paragraph (5), is greater than the fair value of the liabilities transferred, the bridge-bank

owes that difference to the credit institution from which the transfer was carried out, debt which is

paid by the Bank Deposit Guarantee Fund, within up to four months from the date of transfer, and it

shall be recorded by the latter as a claim on the bridge-bank.

(3) If, from the assessment provided in Art.24034 paragraph (4) results that the fair value of the

liabilities transferred is greater than the fair value of the assets transferred, taking into account also

the possible returning performed according to Art.24034 paragraph (5), the credit institution from

which the transfer was made owes to the bridge-bank that difference, debt which is paid by the

Bank Deposit Guarantee Fund, within up to four months from the date of transfer, and it shall be

recorded by the latter as a claim on the credit institution from which the transfer was made.

Art.24034 – (1) The transfer of assets and liabilities, as well as the beginning of carrying out

the activity by the bridge-bank shall take place on the first banking day following the registration

date of the bridge-bank in the trade register.

(2) On performing the transfer of assets and liabilities to the bridge-bank priority is given to

the guaranteed deposits, in the sense of the Government Ordinance no.39/1996 on establishing and

functioning of the Bank Deposit Guarantee Fund in the banking system, republished, as further

amended and supplemented.

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(3) The liabilities of the credit institution, excepting the equity capital and the subordinated

loans, as well as its assets, except the tangible assets which are not qualified by the National Bank

of Romania as being necessary for carrying out the activity of the bridge-bank, may be subject to

transfer to the bridge-bank. The rights and obligations related to the items which are not evidenced

as balance sheet assets and liabilities, may be subject to the transfer if they are qualified by the

National Bank of Romania as necessary to achieve the objectives pursued.

(4) After the transfer, the bridge-bank appoints an authorized valuator, according to the law,

with experience in assessing the financial assets, agreed by the National Bank of Romania,

according to the regulations issued in this purpose by it, to assess the quality of assets taken over by

the bridge-bank and to calculate the fair value, on the transfer date, of the transferred assets and

liabilities, including, where appropriate, the related goodwill, as this value is defined in the

applicable accounting regulations.

(5) The assets or the portfolio of assets which do not comply qualitatively for ensuring the

carrying out the activity in the terms provided by Art.24029 paragraph (2) may be returned to the

credit institution from which they were transferred, within four months from the date of transfer,

together with the amounts related to those assets, collected until the date of return.

(6) The provisions of Art.24014 paragraph (8) and (9) shall apply accordingly.

(7) The transfer of assets and liabilities to the bridge-bank or, by case, the return of assets from

it to the credit institution from which the transfer was carried out, shall ensure that the rights and

obligations subject to a netting agreement, or related to a securitisation transaction are either

transferred or fully kept, and those related to guarantee contracts shall follow the transferred assets.

Art.24035 – (1) On the transfer date, the bridge-bank subrogates by law all the rights and

obligations arising from agreements concluded by the credit institution from which the transfer was

carried out, in connection with:

a) the participation in payment systems, settlement systems for financial instruments

transactions and payment schemes and payment arrangements;

b) access on the primary market of government securities as a primary dealer, by case;

c) access as an eligible participant to the open market operations performed by the National

Bank of Romania and to the standing facilities granted by it;

d) access as an intermediary in the interbank foreign exchange market;

e) access as a participant in setting the reference rates ROBID/ROBOR;

f) access as a participant in setting the reference rates for government securities.

(2) The bridge-bank shall notify the interested parties its subrogation in rights and obligations

under the provisions of para.(1).

(3) Under the provisions of paragraph (1), the bridge-bank takes over the existent amounts in

correspondent accounts and in accounts opened within payment systems for the credit institution

from which the transfer was made, as well as the holdings of its financial instruments, both in its

own name and on behalf of clients, recorded in the depository and settlement systems for the

financial instruments transactions.

Art.24036 – (1) The bridge-bank subrogates all the rights and obligations arising from

contractual relationships related to assets and liabilities transferred and notifies this, immediately, to

the depositors, other creditors and to the debtors taken over following the transfer.

(2) For the transfer of assets and liabilities to the bridge-bank is not necessary the consent of

depositors or of other creditors or debtors of the credit institution from which the transfer was

carried out.

(3) The provisions of Art.24014 paragraph(5) shall apply accordingly.

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Art.25437 – (1) By derogation from the provisions of Art.44 para.(2), the credit institution

from which the transfer was carried out is required to provide in the benefit of the bridge-bank,

based on a contract and on agreed fees, the services related to activities and operations it performed

prior to the transfer and which are necessary to carry out the activities of the bridge-bank.

(2) For the purpose of application of the provisions of paragraph (1):

a) no services provider – electricity, natural gas, water, telephone services, as well as other

services required for the functioning of the bridge-bank – has no right to change in the detriment of

the credit institution, to deny or temporarily discontinue such service to the credit institution from

which the transfer was carried out, if the credit institution continues to meet the contractual

obligations;

b) no contractual party of a rental agreement, including leasing, concluded by the credit

institution from which the transfer was carried out, in which current and fixed assets are put into use

for it, can not require the notice of unilateral cancellation of the contract, if the asset is necessary for

carrying out the activity of the bridge-bank, and the credit institution continues to meet the

contractual obligations;

c) the delegated administrator and, by case, the liquidator, shall ensure the enforcement of the

dispositions of the directorate members of the bridge-bank with the credit institution’s existing staff

from which the transfer was carried out.

Art.24038 – (1) On the date of the transfer, the validity of the credit institution’s authorisation

from which the transfer of assets and liabilities was carried out, as well as the mandate of the

delegated administrator appointed in accordance with Art. 24023 paragraph (3) shall legally cease.

(2) By way of derogation from the provisions of the Government Ordinance no.10/2004,

approved with amendments and supplements by Law no.278/2004, as further amended and

supplemented, the credit institution from which the transfer was made goes into liquidation, with

the proper application of the provisions of Section 3 of Chapter VIII from Title III of Part I,

excepting the provisions of Art.255 and 257.

(3) The liquidator shall notify immediately, to the creditors and debtors of the credit

institution in liquidation, this situation.

(4) From the date of opening the liquidation procedure referred to in paragraph (2), it shall be

suspended all legal and extrajudicial proceedings or foreclosure measures regarding realization of

claims on the debtor credit institution or on its assets.

(5) Until the sale of the bridge-bank, the liquidator shall take all necessary measures, for

meeting the obligations referred to in Art. 24037 by the credit institution in liquidation.

(6) In order to achieve the objectives of the stabilisation measures determined under Art.24032,

the National Bank of Romania shall monitor the accomplishment by the liquidator of the obligation

referred to in paragraph (5).

(7) Until the sale of the bridge-bank, the fulfilling of duties by the liquidator in accordance

with the applicable legal provisions referred to in paragraph (2) is carried out to the extent that they

do not impede with the fulfillment of the obligation of paragraph (5).

Art.24039 - (1) The sale of the bridge-bank shall be decided by the National Bank of

Romania.

(2) The sale of the bridge-bank is made by one of the following methods:

a) shares sale, the provisions of Art.25-31 and of Art.24014 paragraph (3) lett.b) being applied

accordingly;

b) assets sale with assumption of liabilities.

(3) On performing the assets sale with assumption of liabilities transaction, referred to in

para.(2) lett.b), the provisions of Art.24014 paragraph (1), paragraph (4), paragraph (5) and

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paragraph (7) – (9) shall be met, which shall apply accordingly, as well as the following

requirements:

a) fair treatment and fair competition among institutions that fulfill the eligibility conditions

provided in Art.24014 para.(1) and that indicate their intention for taking over should be ensured; in

this respect, there shall be made available to the interested institutions, in a non-discriminatory manner,

and only after these institutions signed a confidentiality agreement, of the pack of relevant information,

as well as facilitating the carrying on of the valuation of assets and/or, by case, of liabilities that will be

taken over, if this valuation is performed prior to the transfer;

b) if there are bids from several institutions complying with the eligibility conditions referred

to in Art.24014 paragraph (1), the designation of the winning institution or, as appropriate, institutions,

hereinafter referred to as the beneficiary institution/institutions, is based on the most advantageous bid,

as considered by the National Bank of Romania, in terms of the objectives pursued;

c) assets sale with assumption of liabilities to the beneficiary institution or, by case, the

return of assets from it to the credit institution from which the transfer was carried out, shall ensure

that the rights and obligations subject to a netting agreement, or related to a securitisation

transaction are either transferred or fully kept, and those related to guarantee contracts shall follow

the transferred assets;

d) within an assets sale with assumption of liabilities, may be subject to the transaction,

inclusively rights and obligations related to elements which are not recorded as balance-sheet assets

or liabilities, if, in the opinion of the National Bank of Romania, this is necessary to achieve the

objectives pursued.

Art.24040 – (1) Any proceeds obtained from the sale of the bridge-bank shall be distributed in

the following order:

a) covering the expenses related to sale;

b) payment of obligations arising from employment relationships which are due and unpaid

until the date of sale;

c) claims recovering of the Bank Deposit Guarantee Fund resulting from financing granted

according to Art. 24031;

d) redemption of budget claims;

e) covering of other expenses of the bridge-bank recorded up to the date of sale.

(2) Any amounts remaining after application of the provisions of paragraph (1) shall return to

the Bank Deposit Guarantee Fund.

Art.24041 –To the end of period referred to in Art.240

29 paragraph (1) the validity of the

functioning authorisation of the bridge-bank shall legally cease.

Section 3

Winding-up of credit institutions

Art. 255 – Along with the withdrawal of the credit institution’s authorisation, the National

Bank of Romania shall order the dissolution followed by winding-up of the credit institution,

according to the provisions of this Section, or, if the credit institution finds itself in one of the

insolvency cases referred to in the specific legislation regarding the bankruptcy proceedings for

credit institutions, the National Bank of Romania shall inform the competent court in order to open

the winding-up proceedings.

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Art. 256 – (1) The winding-up of the credit institution that does not find itself in insolvency,

including its branches established in Romania, in other Member States or in third countries, shall be

performed in compliance with the Romanian laws applicable for the dissolution and winding-up of

joint-stock commercial companies, and in accordance with the provisions of this emergency

ordinance.

(2) The performing of the duties regarding the winding-up of the credit institution shall be

the Bank Deposit Guarantee Fund, hereinafter referred to as liquidator, both when the winding-up

was decided in accordance with the provisions of Article 255 and when the winding-up was decided

by shareholders/members.

Art. 257 – The winding-up proceedings in keeping with the provisions of

Article 255 or the voluntary liquidation initiated by the shareholders/members shall not preclude the

opening of bankruptcy proceedings, if during the winding-up proceedings, the credit institution

finds itself in one of the insolvency cases referred to in the specific legislation regarding the

bankruptcy proceedings for credit institutions.

Art. 258 – (1) The provisions laid down in the legislation on the bankruptcy of credit

institutions regarding the liquidator’s duties, the costs and expenses incurred by the winding-up

proceedings, the order of debt extinction shall also apply accordingly to the winding-up of the

insolvent credit institution in accordance with the provisions of this Section.

(2) For the purposes of para. (1), any expenses incurred by the Bank Deposit Guarantee

Fund in relation to the winding-up proceedings shall be deemed as winding-up expenses.

Art. 259 – (1) Where the authorisation of a credit institution, a Romanian legal person,

which operates within the territory of one or several Member States is withdrawn, the National

Bank of Romania shall inform the competent authorities of the host Member States, without delay

and by any available means, of its decision, of the legal consequences and the possibly related

effects.

(2) Where the adoption of the decision cannot be delayed, for reasons pertaining to the

protection of depositors or to other public matters, the National Bank of Romania shall

communicate the information referred to in para. (1) immediately after the decision was taken.

Art. 260 – (1) If the measure referred to in Article 255 is aimed at a branch in Romania of a

credit institution situated in a third country, which has branches in at least another Member State,

the National Bank of Romania shall, before taking the decision, inform all the competent authorities

of the other host Member States in which the credit institution operates, of its decision and the

related effects.

(2) Where the adoption of the decision cannot be delayed, for reasons pertaining to the

protection of depositors or to other public matters, the National Bank of Romania shall

communicate the information referred to in para. (1) immediately after the decision was taken.

(3) The National Bank of Romania shall provide the coordination of its actions with those of

the competent authorities of the other host Members States. The liquidator shall ensure the

coordination of its actions with those of the liquidators appointed in the respective Member States.

Art. 261 – (1) Where the authorisation of a credit institution, a Romanian legal person,

which also operates within the territory of one or more Member States is withdrawn, the liquidator

shall immediately take the necessary measures to publish an excerpt from the National Bank of

Romania’s decision on opening the winding-up proceedings of the credit institution in the Official

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Journal of the European Union and in two national newspapers in each host Member State, in the

official language or one of the official languages of the respective Member State.

(2) The National Bank of Romania’s decision shall have effects on all the host Member

States, without any other formality, and shall enter into force on the date of its publication in

Monitorul Oficial al României, Part One, or at a later date stipulated in that decision.

(3) Where necessary, the liquidator may request that the National Bank of Romania’s

decision to open winding-up proceedings be registered in the land register, the trade register or any

other public register kept in the host Member States. If the host Member State’s laws stipulate the

binding character of such formalities, the liquidator shall take all the measures to ensure the

registration. The costs of registration shall be regarded as costs and expenses incurred by the

winding-up proceedings.

Art. 262 – (1) The liquidator may operate within the territory of the host Member States

based on a certified copy of the National Bank of Romania’s decision or on a certificate issued by

it, without any other formality.

(2) The liquidator may exercise within the territory of the host Member States all the powers

he is entitled to by the Romanian law. He may also appoint persons to assist or represent him within

the territory of these states, including for the purpose of assisting creditors during the winding-up

proceedings.

(3) In exercising his powers, the liquidator shall comply with the laws of the Member State

within the territory of which he operates, in particular with regard to procedures for the realisation

of assets and the provision of information to the credit institution’s employees within the Member

State concerned. The liquidator’s powers may not include the use of force or the right to rule on

litigations or disputes.

Art. 263 – In the case of winding up of a credit institution, a Romanian legal person, which

operates within the territory of one or more Member States, the Romanian laws shall be applied,

along with the exceptions under Articles 266-274.

Art. 264 – (1) Any creditor of the credit institution subject to winding-up proceedings,

including public authorities, having his domicile/residence or, as the case may be, the registered

office in Romania or in another Member State, shall have the right to lodge claims or to submit to

the liquidator written observations on claims against the credit institution. The lodgement of claims

or the written observations on claims, as the case may be, shall be submitted in the official language

or one of the official languages of the Member State concerned, in which the creditor has his

domicile/residence, or, as the case may be, his registered office, and shall bear the heading

“Lodgement of Claims” or, as the case may be “Observations on Claims” in Romanian.

(2) The claims of creditors whose domiciles/normal places of residence or, as the case may

be, registered offices are in States other than Romania shall be considered in the same way and shall

bear the same ranking as claims of an equivalent nature, which may be lodged by creditors having

their domiciles/normal places of residence, or, as the case may be, registered offices in Romania.

(3) The creditors exercising the right referred to in para. (1) shall send copies of documents

confirming their claims, if any, and shall indicate the nature of the claim, the date on which it arose

and its amount, as well as whether they allege preference, security in re and other similar rights in

respect of those claims and what assets are covered by their security.

(4) At the liquidator’s request, creditors shall provide a translation into Romanian of the

lodgement of claims or, as the case may be, of the observations on claims and the submitted

documents.

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Art. 265 – (1) The liquidator shall keep creditors regularly informed, in an appropriate

manner, particularly with regard to progress in the realisation of the credit institution’s assets.

(2) The liquidator shall be bound by professional secrecy in accordance with the provisions

laid down in Chapter V, Title III, Part I.

Art. 266 – The effects of the credit institution’s winding-up proceedings on certain contracts

and rights shall be governed as follows:

a) employment contracts and relationships shall be governed by the laws of the Member

State applicable to each employment contract;

b) contracts conferring the right to make use of or to acquire immovable property shall be

governed by the laws of the Member State within the territory of which the immovable property is

located. The respective laws shall determine whether the considered property is movable or

immovable;

c) rights in respect of immovable property, ships and aircraft subject to registration in a

public register shall be governed by the laws of the Member State under whose authority the

register is held.

Art. 267 – (1) The opening of the credit institution’s winding-up proceedings shall not

affect the rights in re of creditors or third parties in respect of tangible or intangible, movable or

immovable assets – both specific assets and collections of indefinite assets as a whole – belonging

to the credit institution and which are located within the territory of other Member States at the time

of entry into force of the winding-up decision.

(2) The rights referred to in para. (1) shall in particular mean:

a) the right to dispose of assets or have them disposed of and to obtain satisfaction from the

proceeds of or income from those assets, in particular by virtue of a lien or a mortgage;

b) the exclusive right to have a claim met ahead of other holders with rights in respect of the

respective asset;

c) the right to demand the assets from anyone having possession or use of them;

d) a right to the beneficial use of assets.

Art. 268 – (1) The opening of winding-up proceedings against a credit institution

purchasing an asset shall not affect the seller’s rights based on a reservation of title, until a certain

time limit or until the fulfilment of certain conditions is achieved, where at the time of entry into

force of the winding-up decision the asset purchased is located within the territory of another

Member State.

(2) The opening of winding-up proceedings against a credit institution selling an asset shall

not constitute grounds for rescinding or terminating the sale and shall not affect the purchaser’s

rights if the opening occurred upon the delivery of the asset and if, at the time of entry into force of

the winding-up decision, the asset sold is located within the territory of another Member State.

Art. 269 – (1) The opening of winding-up proceedings shall not affect the right of creditors

to demand the legal set-off of their claims against the claims of the credit institution, where the law

applicable to the credit institution’s claims allows such a set-off.

(2) In case of netting agreements, the law governing such agreements shall apply.

Art. 270 – The provisions of Articles 267, 268 and 269 para. (1) shall not preclude the

actions for nullity or unenforceability of legal acts, according to the Romanian law.

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Art. 271 – (1) The enforcement of proprietary rights or other rights on securities whose

existence or transfer presupposes their recording in a register, account or a centralised deposit

system held or located in a Member State shall be governed by the law of the Member State where

the register, account, or centralised deposit system in which those rights are recorded is held or

located.

(2) Without prejudice to para. (1), repurchase agreements and transactions carried out on a

regulated market shall be governed by the law of the contract, which governs such agreements and

transactions.

Art. 272 – The Romanian legislation relating to the nullity of fraudulent legal acts

detrimental to the creditors shall not apply in the case where the beneficiary of these acts proves

that the act detrimental to the creditors as a whole is governed by the law of another Member State,

and that the law does not allow any means of challenging the respective act.

Art. 273 – The validity of documents concluded upon the opening of winding-up

proceedings by which the credit institution disposes of its immovable assets, ships or aircraft that

are subject to registration in a public register, or securities or rights on such securities the existence

or transfer of which presupposes their being recorded in a register, account or centralised deposit

system held or located in another Member State, shall be governed by the law of the Member State

within the territory of which the immovable assets are located or, as the case may be, under the

authority of which that register, account or centralised deposit system is kept.

Art. 274 – Pending lawsuits concerning the assets or the rights the credit institution has

been divested of shall be governed by the law of the Member State in which the lawsuit is pending.

CHAPTER IX

Manners of appeal

Art. 275 – (1) The decisions taken by the National Bank of Romania according to the

provisions referred to in this emergency ordinance, regarding a credit institution, including those

concerning the persons referred to in Art.108 para.1, or the persons in charge of branches of the

credit institution or concerning shareholders may be disputed within 15 days from their

transmission, to the National Bank of Romania’s Board, which is to make a well grounded decision

within 30 days from the date of receiving the complain.

(2) The decision of the National Bank of Romania’s Board may be appealed for

unlawfulness to the Court of Appeal in Bucharest, within 15 days from notification.

(3) The National Bank of Romania is the sole authority empowered to decide on the criteria

of opportunity, qualitative assessments and analyses underlying its acts.

(4) In case of appeal against the National Bank of Romania acts, the court shall deliver a

decision in respect of lawfulness of these acts.

Art. 276 – The provisions of Article 275 shall also be accordingly applied in the case of an

unfounded refusal of the National Bank of Romania to deliver a decision, within the period

provided by the law, in respect of an application for authorisation which contains all the data and

information required under the legal provisions in force.

Art. 277 – Execution of the acts issued by the National Bank of Romania shall remain in

place until a decision is made by the National Bank of Romania Board according to Article 275

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para. (1), or, until the delivery of a final and irrevocable decision by the court in compliance with

para. (2), of the same Article.

CHAPTER X

Provisions applicable to financial investment firms

Art. 278 – (1) The following provisions of this emergency ordinance shall apply to financial

investment firms and to investment management companies whose business is the management of

individual investment portfolios defined in accordance with Law No. 297/2004, as subsequently

amended and supplemented, in the conditions provided for in the following articles:

a) Section 2, Chapter I, Title I, Part I;

b) Articles 23 and 24;

c) Sections 1-8 and Article 150 para. (1) points b) and c) of Section 9, Chapter III, Title II,

Part I, specifying that the provisions of Article 137 shall apply only to financial investment firms

which are authorised to perform transactions in financial instruments on own account and to

underwrite financial instrument and/or investment of financial instruments based on firm

commitment;

d) Chapter V, Title II, Part I;

e) Articles 164-168 of Chapter I and Chapter II, Title III, Part I;

f) Articles 226 and 227 of Chapter VII, Title III, Part I.

(2) The provisions of Chapter VI, Title III, Part I shall apply accordingly to the National

Securities Commission.

Art. 279 – For the enforcement of Article 278 the following shall be taken into

consideration:

a) any reference to a credit institution, a Romanian legal person, to a parent credit institution

in Romania or to a parent credit institution in European Union is considered to be made to a

Romanian financial investment firm, a parent investment firm in Romania and a parent investment

firm in European Union excepting Articles 143 and 177 where only the first reference to credit

institutions, Romanian legal persons, is considered to be made to the Romanian investment firms.

Any reference to the National Bank of Romania is considered to be made to the National Securities

Commission.

b) for the purposes of applying the provisions of this emergency ordinance to groups that

include an investment firm but which do not include a credit institution, the terms and definitions

specified in Article 7 para. 1, points 2, 21 and 25 have the following meanings:

1. competent authority – means the national authority empowered to exert prudential

supervision of investment firms;

2. financial holding company – a financial institution the subsidiary undertakings of which

are either exclusively or mainly investment firms or other financial institutions, at least one of

which being an investment firm, and which is not a mixed financial holding company within the

meaning of Emergency Ordinance No. 98/2006;

3. mixed-activity holding company – a parent undertaking, other than a financial holding

company, an investment firm or a mixed financial holding company within the meaning of

Emergency Ordinance No. 98/2006, whose subsidiary undertakings include at least one investment

firm;

c) for the enforcement of Article 129 para. (2), the National Securities Commission may

acknowledge eligibility of an external credit assessment institution, without being necessary another

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assessment, if the National Bank of Romania or the competent authority of another Member State

acknowledged the eligibility of this institution;

d) for the enforcement of Article 168 para. (2) the reference to this emergency ordinance

shall be considered as a reference to the Law No. 297/2004, as subsequently supplemented and

amended;

e) where a group does not include a credit institution, the provisions referred to in para. (1)

of Article 202 shall be read as follows: “Where an investment firm, a financial holding company or

a mixed-activity holding company controls one or more subsidiaries which are insurance

companies, the National Securities Commission shall cooperate closely with the Insurance

Supervisory Commission and other authorities responsible for the supervision of insurance

companies”;

f) for the enforcement of Article 202 para. (2) and Article 226 para. (5) the reference to

Chapter V of Title III, Part I shall be considered as a reference to Article 7 para. 21 and 2

2 of the

Statute of the National Securities Commission approved by the Government Emergency Ordinance

No. 25/2002, approved with amendments by the Law No. 514/2002, as subsequently amended and

supplemented;

g) for the enforcement of Article 226 para. (2) point g) the reference to Chapter VIII of Title

III, Part I shall be considered as a reference to Title IX of the Law No. 297/2004 as subsequently

amended and supplemented.

Art. 280 – For the purpose of supervision on a consolidated basis, the terms “financial

holding company”, “parent financial holding company in Romania”, “EU parent financial holding

company” and “ancillary services undertaking” shall cover undertakings defined in Article 7, with

special mention that every reference to credit institutions shall be read as a reference to credit

institutions or investment firms, as the case may be.

Art. 281 – Where an EU parent financial holding company has as subsidiary both a credit

institution and an investment firm, the provisions of Title III, Part I shall apply both to the

supervision of credit institutions and supervision of Romanian investment firms.

Art. 282 – (1) Where a credit institution has as parent undertaking a parent investment firm

in Romania, only that investment firm shall be subject to supervision on a consolidated basis by the

National Securities Commission, in accordance with the provisions of this emergency ordinance

and of the regulations issued for its application.

(2) Where a Romanian investment firm has as parent undertaking a parent credit institution

in Romania, only that credit institution shall be subject to supervision on a consolidated basis by the

National Bank of Romania, in accordance with the provisions of this emergency ordinance and of

the regulations issued for its application.

(3) Where a financial holding company has as subsidiaries at least a credit institution, a

Romanian legal person and a financial ', only the credit institution shall be subject to supervision on

a consolidated basis by the National Bank of Romania, in accordance with the provisions of this

emergency ordinance and of the regulations issued for its application.

Art. 283 – The National Securities Commission shall closely cooperate with the Member

States’ competent authorities for performing the duties provided for in this emergency ordinance

and in subsequent regulations issued for its application, particularly where investment services and

activities are provided on the basis of the freedom to provide services or through the establishment

of branches.

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Art. 284 – (1) The National Securities Commission shall dispose, to a financial ' or to

responsible persons that infringe the provisions of this emergency ordinance or of the regulations or

other pieces of legislation issued for the application thereof concerning prudential and capital

adequacy requirements or they do not comply with the recommendations made, the necessary

measures and/or apply sanctions in order to bring to an end the infringements, to remove the

deficiencies and their causes.

(2) The measures established by the National Securities Commission in order to remedy

immediately the situation of the entities mentioned in para. (1) are those provided for in Article 226,

applying accordingly the provisions of Article 227.

(3) Where the prudential and capital adequacy requirements stipulated in this emergency

ordinance, in the regulations or in other pieces of legislation issued for the application thereof are

not observed or the recommendations made are not followed, the National Securities Commission

shall apply sanctions in accordance with the provisions stipulated in Title X of the Law No.

297/2004, as subsequently amended and supplemented.

PART II

SPECIFIC PROVISIONS

TITLE I

BANKS

Art. 285 – Banks are credit institutions with universal activity, which may perform any of

the activities provided in Section 1.2, Chapter II of Title I, Part I.

Art. 286 – The general provisions applicable to credit institutions in accordance with this

emergency ordinance are fully applicable to banks.

Art. 287 – (1) Banks, Romanian legal entities, are legally constituted as joint-stock

companies in accordance with the commercial legislation and the observance of the provisions of

this emergency ordinance.

(2) Banks, Romanian legal entities, shall not use a name specific to another category of

credit institutions governed by this emergency ordinance.

TITLE II

SAVINGS BANKS FOR HOUSING

CHAPTER I

General provisions

Art. 288 – This Title shall govern the regime applicable to savings banks for housing, as

credit institutions, Romanian legal entities, specialized in long-term financing for housing, which

have as the main scope of activity collective saving and lending for housing.

Art. 289 – The general provisions applicable to credit institutions in accordance with the

provisions of this emergency ordinance shall apply to savings banks for housing, Romanian legal

entities, accordingly, unless otherwise stipulated under the provisions included in this Title.

Art. 290 – For the purposes of this Title, the definition and expressions mentioned below

have the following meaning:

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a) housing activities represent:

1. construction, purchasing, restoration, refurbishment, consolidation or expansion of

buildings having housing as the main purpose;

2. purchasing, restoration, refurbishment, consolidation or expansion of buildings, other than

those having housing as the main purpose, on condition that they are used as dwellings;

3. purchasing of urban land or acquiring the rights of concession to erect buildings having

housing as the main purpose;

4. purchasing of urban land or acquiring the rights of concession in order to erect buildings,

other than those having housing as the main purpose, within the limit of the share held by dwellings

in the entire structure built on the land;

5. rendering viable the land transferred to urban property with a view to promoting

construction of residential districts;

6. taking over some claims related to performance of activities set forth under points 1-5;

7. building of commercial, industrial and social and cultural areas, if they are connected to

the building of dwellings or if they contribute, given their location, to the supply of goods and

services to these areas or to meeting the social and cultural needs;

8. construction works in the housing area committed by the tenant in order to modernise the

dwelling;

b) client – natural or legal person who/which concludes a contract of collective saving and

lending for housing with the savings bank for housing pursuant to which that person acquires,

following the deposits made according to the contract, the legal status to be granted a credit at the

interest rate established under the contract;

c) collective savings and lending for housing hereinafter referred to as saving-lending

contract – parties’ commitment by means of which the client is bound to save an amount

constituting the minimum saved amount while the savings bank for housing is bound to grant a

credit at fixed interest rate to cover the difference between the total amount stipulated by the

contract and the amount saved, including interest and premiums granted, the client being bound to

meet all requirements for taking the credit;

d) allotment date – the date on which the savings balance and the loan for housing are made

available to the client;

e) collective savings and lending for housing – taking deposits from clients and lending to

clients at fixed interest rate on amounts collected for housing activities;

f) financing on the basis of saving-lending contract – credit at fixed interest rate granted to

the client on terms and conditions stipulated by the saving-lending contract;

g) anticipated financing – the credit at market interest rate granted to the client who did not

save yet the minimum amount established by the savings bank for housing in the saving-lending

contract; this credit, for which only the interest is paid, turns into a fixed-rate credit at the date all

terms and conditions for granting the credit, as stipulated under the saving-lending contract, are

met;

h) intermediate financing – the credit at market interest rate granted to the client who saved

the minimum amount established by the saving-lending contract but who does not fulfil the other

terms stipulated by the saving-lending contract; this credit, for which only the interest is paid, turns

into a fixed-interest rate credit at the date all terms stipulated by the saving-lending contract are

met;

i) special fund – the fund established by the savings bank for housing in order to guarantee

the operation of the system as regards the method of collective saving and lending for housing and

in order to protect the client’s interests;

j) allotment amount – resources of the savings bank for housing, coming from deposits,

related interest, any other payments contributing to the increase in the balance of savings, credit-

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related amounts repaid, premiums and related interest, other sources taken solely for financing,

based on the saving-lending contract, as well as amounts from own sources;

k) individual ratio between client and savings bank for housing – the ratio between client’s

cash contribution calculated by each saving-lending contract and cash contribution of the savings

bank for housing after the credit was granted;

l) collective ratio between clients and savings bank for housing – the ratio between the total

cash contributions of clients and the expected cash contribution of the savings bank for housing

resulting from saving-lending contracts whose saving process came to an end and/or was

discontinued, calculated for a certain period;

m) waiting time – the period beginning on the date the saving-lending contract was

concluded and ending on the date the client’s contract is delivered;

n) type of contracts – alternative ways for collective saving and lending for housing made

available to clients by the savings bank for housing in terms of the amount stipulated by the

contract, interest and terms of repayment related to financing based on the saving-lending contract

as well as according to other criteria established by the savings bank for housing.

Art. 291 – (1) Savings banks for housing, Romanian legal entities, are legally established as

joint-stock companies in compliance with legal provisions applicable to commercial companies and

with the provisions of this emergency ordinance.

(2) The name of a savings bank for housing, a Romanian legal entity, should include the

phrase “savings bank for housing” or another expression that indicates its specialisation in financing

for housing.

Art. 292 – (1) Savings banks for housing may carry on, to the limit of the powers assigned

following the authorisation granted, the following activities:

a) collective savings and lending for housing;

b) anticipated financing and intermediate financing based on saving-lending contracts;

c) granting of credits for housing in compliance with the provisions of para. (2);

d) management of third parties’ credit portfolios and intermediation of credits to third

parties, if the credits are intended to financing of some housing activities;

e) issuance, in accordance with the provisions of para. (2), of guarantees for those types of

credits granted to a person that the savings banks may grant;

f) low risk investments, according to the National Bank of Romania regulations;

g) granting of credits to commercial companies in which the savings banks for housing hold

equity interests, according to the provisions of Article 307;

h) issuance and management of payment and credit instruments;

i) payments;

j) financial and banking consulting services;

k) financial-banking mandate operations;

l) other operations, according to the provisions of Article 18, if they underpin the carrying

on of the activity.

(2) The total claims from credits and liabilities set forth in para. (1) points c) and e)

respectively may not exceed the level stipulated by the National Bank of Romania of the volume of

financing based on saving-lending contracts and financing in accordance with para. (1) point b).

(3) Claims pledge arising from credits granted according to para.1 lett. a)-c) shall be carried

out according to the regulations issued by the National Bank of Romania.

Art. 293 – Savings banks for housing may transfer the claims from financing based on

saving-lending contract and related guarantees, only if the amounts gained from transfer are used

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for the activity of the collective saving and lending for housing and for the anticipated and

intermediate financing.

Chapter II

Specific provisions on authorisation and withdrawal of the authorisation

Art. 294 – Savings banks for housing shall be subject to authorisation criteria applicable to

credit institutions and they should also fulfil the specific criteria established by the National Bank of

Romania’s regulations, which shall refer, without being limited, to the following:

a) general business conditions and general conditions of saving-lending contracts;

b) fulfilment of specific technical and operational requirements;

c) own regulations of savings banks for housing concerning the simplified unfolding

procedure of saving-lending contracts;

d) types of contracts proposed to be made available to the clients.

Art. 295 – The National Bank of Romania shall also reject the application for authorisation

of a savings bank for housing according to the provisions of Article 38 if the General Business

Conditions and/or General Conditions of saving-lending contracts:

a) may not ensure proper execution of saving-lending contracts and, taken separately they

do not ensure, during the period of the contract, an adequate individual ratio between the client and

the savings bank for housing;

b) include provisions stipulating the payment of the saved amounts, repayments or any other

obligations that delay inadequately the assignment of saving-lending contracts, lead to unduly

extension of saving-lending contract period or do not ensure enough guarantees for the clients’

interests.

Art. 296 – (1) The National Bank of Romania may withdraw the authorisation of a savings

bank for housing, according to the provisions of Article 39, in the following cases as well:

a) finds that the clients’ interest cannot be sufficiently protected by adopting other measures,

in accordance with this emergency ordinance;

b) finds that the deeds similar in nature to those laid down in Article 295, which provide the

grounds for withdrawal of the authorisation;

(2) Withdrawal of the authorisation of a savings bank for housing entails the commencement

of the simplified unfolding procedure of saving-lending contracts.

Art. 297 – (1) Merger and split-up of the savings banks for housing shall be performed in

accordance with the provisions included in Chapter VII of Title I, Part I, by observing the specific

provisions applicable to this category of credit institutions.

(2) Savings banks for housing may only merge with other savings banks for housing.

Chapter III

Specific requirements for carrying on the activity

Art. 298 – Savings banks for housing shall issue their own regulations in respect of General

Business Conditions and General Conditions of saving-lending contracts that shall underlie the

types of contracts provided.

Art. 299 – The General Business Conditions shall refer, without being limited, to the

following:

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a) calculations underlying the unfolding of saving-lending contracts, indicating the

individual client-to-savings bank for housing ratio and the minimum, medium and maximum

waiting time;

b) the procedure to provide saving-lending contracts, indicating the composition of

allotment amount, the terms of allotment, assessment of fulfilling the allotment requirements and

establishment of the allotment order;

c) the procedure in respect of calculation of resources of the allotment amount, which,

temporarily, may not be allotted, of additional returns on investment of such resources and

destination of the special fund;

d) the method of calculation of guarantee;

e) the method of refunding the amounts saved if saving-lending contracts are cancelled;

f) the procedure for saving-lending contracts unfolding in a simplified manner, for the

benefit of the client, if the authorisation is withdrawn or if the winding-up proceedings commence;

g) financing of investment for rendering viable the land transferred to urban property with a

view to promoting construction of residential districts;

h) financing of construction works for commercial, industrial and social and cultural areas to

the extent the provisions of Article 290 point a) point 7 are fulfilled.

Art. 300 – The General Conditions of saving-lending contracts shall encompass the

following provisions:

a) the value and maturity of contributions of the client and of the savings bank for housing,

and the effect of delayed contributions;

b) deposit and lending rates;

c) the value of commissions and of other expenses binding upon the client;

d) the method for assessing fulfilment of the allotment requirements, establishment of

allotment order and requirements for payment of the amount stipulated by the contract;

e) credit guarantee and repayment methods and insurance methods against default risk;

f) the terms and conditions under which a saving-lending contract can be parted or

connected to other saving-lending contract;

g) the terms and conditions under which the amount stipulated by the contract is raised or

lowered;

h) the terms and conditions under which the rights deriving from saving-lending contract

can be transferred;

i) the terms and conditions under which a saving-lending contract can be cancelled and the

effects following cancellation or following the unfolding of the simplified procedure;

j) the conditions for managing client accounts;

k) the competent authority empowered to settle the disputes.

Art. 301 – (1) The amendments or supplements to the General Business Conditions and the

General Conditions of saving-lending contracts relative to the provisions of Article 299, except

point d), and of Article 300, except point c), as well as those to the General Business Conditions

and the General Conditions of saving-lending contracts, as regards new types of saving-lending

contracts, shall be subject to prior approval of the National Bank of Romania.

(2) The National Bank of Romania may ask the savings banks for housing to alter the

General Business Conditions and the General Conditions of saving-lending contracts whenever it

finds that the savings banks for housing may not ensure fulfilment of their obligations arising from

such contracts.

Art. 302 – The introduction of new types of saving-lending contracts shall be subject to

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approval of the National Bank of Romania at least 3 months before these contracts are made

available to the clients and they shall comply with the provisions of the General Business

Conditions and the General Conditions of saving-lending contracts.

Art. 303 – (1) If the allotment volume is not used for financing based on saving-lending

contracts, this may be used only for the purpose of refunding the savings taken which were

incorporated into the allotment amount and for anticipated and intermediate financing.

(2) The allotment amount shall be allotted so as to ensure a uniform assignment of saving-

lending contracts and as short as possible waiting time.

Art. 304 – (1) In the case of saving-lending contracts denominated in foreign currency, the

savings banks for housing shall create separate allotment amounts for each currency the saved

amount is denominated in. These allotment amounts shall be used mainly in the currency in which

the amount was saved, the savings banks for housing being bound to manage appropriately the

foreign exchange risk.

(2) In special cases, upon grounded request, the National Bank of Romania may exempt

savings banks for housing from creating separate allotment amounts, without prejudice to the

clients’ interests.

Art. 305 – The savings banks for housing may not commit themselves to make available to

the client the amount stipulated by the contract in view of being granted the credit at a fixed date,

before the assignment of saving-lending contract.

Art. 306 – Savings banks for housing shall assign on an annual basis, before the application

of profit tax in the special fund account, the difference between the realized income as a result of

temporary placements from the allotment amount which was not used for financing as set forth

under the saving-lending contracts, because of non-fulfilment by the clients of the allotment

conditions and the income that would have been realized as a result of financing as set forth under

the saving-lending contract, within the limit of 3 percent of deposits taken. The special fund may be

closed at the end of the year within the limit of the share which exceeds 3 percent of deposits taken.

Art. 307 – (1) Savings banks for housing may hold equity stakes only in commercial

companies whose core business includes housing activities and which perform mainly such

activities, within the limit of one third of their share capital and by observing the provisions of

Article 143.

(2) A higher equity stake is permitted only in the case of other savings banks for housing,

provided the total equity stakes held in such companies is not higher than 20 percent of own funds

of the savings bank for housing.

Art. 308 – (1) Besides the tasks laid down by the law, the independent auditors of the

savings banks for housing shall also have the following special tasks:

a) to check the observance of the provisions set forth in the General Business Conditions

concerning the allotment procedure, for which they are entitled to have access to the documents of

the savings banks for housing insofar as they refer to the allotment procedure;

b) to check the observance of the conditions laid down in the bylaws on credit payment and

guaranteeing the claims arising from credits;

c) to check the observance of the regulations issued by the National Bank of Romania for

the application of this emergency ordinance.

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(2) The financial auditor shall be bound to notify the National Bank of Romania whenever

he/she finds that the savings banks for housing breached the provisions of this emergency ordinance

and/or of the regulations issued for the application of this one.

(3) The financial auditor shall, at the end of the financial year, prepare a report on the

collective saving and lending activity for housing that shall be submitted to the National Bank of

Romania as well.

Chapter IV

Regulatory framework and specific measures

Art. 309 – (1) In order to ensure appropriate conditions for carrying out the obligations

arising from the saving-lending contracts and, particularly, for guaranteeing the existence of

sufficiently large funds of the savings banks for housing to secure a pace of allotment as even as

possible, the National Bank of Romania shall issue regulations concerning:

a) temporary placement of saved amounts in order to be allotted and of the amounts already

allotted but whose payment has not been required yet by the clients;

b) the method for calculation of large-value saving-lending contracts as well as:

1. the admitted share of amounts associated with the large-value saving-lending contracts in

the total amounts stipulated by the contract, associated with the saving-lending contracts of the

savings bank for housing which were not assigned;

2. the admitted share of amounts associated with the large-value saving-lending contracts

concluded during a calendar year in the total amounts stipulated by the contract, associated with the

saving-lending contracts concluded during the respective calendar year;

c) the terms under which housing loans provided for in Article 290 point a) point 7 as well

as the admitted share of these contracts in the total lending of a savings bank for housing which

may not exceed 3 percent of total;

d) the admitted maximum exposure to a commercial company included in the categories

provided for in Article 307 para. (1), as well as the total admitted maximum exposure to such

commercial companies;

e) the admitted share of credits granted based on saving-lending contracts and guaranteed by

various types of guarantees in the total credits based on saving-lending contracts, in the case that

such as a prudential measure is deemed necessary;

f) minimum conditions for assignment of saving-lending contracts, particularly those

referring to the minimum saved amount and the calculation of the minimum assessment index, in

order to ensure an adequate individual ratio between client and savings bank for housing;

g) the method of establishment, use and liquidation of the special fund.

(2) When calculating the number of large-value saving-lending contracts admitted,

according to para. (1) point b), the saving-lending contracts under which, in accordance with the

General Business Conditions, the clients paid the minimum saved amount during the first year after

the conclusion of the saving-lending contract shall be included as well.

Art. 310 – (1) The National Bank of Romania is empowered to take all the necessary steps

to ensure that the collective saving and lending activities for housing are performed in compliance

with the General Business Conditions and the General Conditions of saving-lending contracts, as

well as with the other conditions laid down in this emergency ordinance and in the regulations

issued for the application of this emergency ordinance.

(2) Where there is clear evidence leading to the conclusion that a savings bank for housing

will not be able to pay its obligations, the National Bank of Romania may forbid it to conclude, for

a limited time period, new saving-lending contracts.

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(3) When the situation mentioned under para. (2) is not redressed, the National Bank of

Romania may order the withdrawal of the authorisation and the commencement of the procedure of

simplified unfolding of saving-lending contracts.

(4) The procedure of simplified unfolding of saving-lending contracts shall be aimed at

realising the cash contributions from clients and from the savings bank for housing, as stipulated in

the extant saving-lending contracts, in order to protect the clients’ interests.

Chapter V

Promotion of collective saving and lending for housing

Art. 311 – (1) Every client, natural person, Romanian citizen and having a stable place of

residence in Romania, shall benefit from a government-granted premium for the annual savings

made on the basis of a saving-lending contract concluded with a savings bank for housing.

(2) The right to the government-granted premium shall be established at the end of the year

when the saving was made. The year of saving is the calendar year when the premium is granted for

the amounts saved.

(3) The government-granted premium shall be requested by the client from the savings bank

for housing with which the saving-lending contract was concluded, by, at most, the end of the

calendar year subsequent to the year when the saving was made.

(4) In the event the government-granted premium was not requested by the end of the

calendar year following the year when saving was made, the right to the premium shall be lost by

limitation.

Art. 312. - (1) The government-granted premium shall be established at 25 percent of the

saved amount in the year concerned.

(2) The government-granted premium may not exceed the RON equivalent of EUR 250

calculated in terms of the RON/EUR exchange rate communicated by the National Bank of

Romania on the last working day of the year when the saving was made.

(3) In the event the client concludes several saving-lending contracts with the savings bank

for housing and the premiums exceed the maximum premium admitted in the year when the saving

was made, the total amount of premiums shall not exceed the level set forth in para. (2).

Art. 313 – (1) The clients, single persons, as well as any of the spouses, separately, no

matter who saved the amount, shall be entitled to receive the government-granted premium.

(2) The single person, as referred to in para. (1) shall mean any person that are unmarried,

widow/widower or divorcee.

Art. 314 – The government-granted premium is paid from the government budget via the

budget of the Ministry of Transport, Construction and Tourism, being granted after the expiry of

every calendar year, within at most 60 days from the day the request was sent by the savings bank

for housing to the aforementioned authority. The savings bank for housing shall transfer the

premium to the client’s account.

Art. 315 – (1) In order to benefit, on a regular basis, from the government premium, the

saving-lending contracts must be concluded for a period of at least five years, without necessarily

proving that the saved amount was used for housing purposes, and it is compulsory that neither total

nor partial reimbursements out of the saved amounts should be made before the expiry date of the

saving-lending contract.

(2) The provisions of para. (1) shall not apply to the following:

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a) the amount saved and/or the contracted amount is made available after allotment and the

saver uses the amount for housing purposes;

b) in case of transfer of the saving-lending contract, the amount saved or the contracted

amount is used for housing purposes by the transferor after allotment;

c) in case of demise of the person who saved money for housing purposes, or of his spouse,

or the persons have become totally and permanently incapacitated after the conclusion of the

saving-lending contract;

d) the person who saved money for housing purposes has become unemployed and the

unemployment period lasts for at least nine successive months and the person is still unemployed on

the date the withdrawal of the amount is requested.

Art. 316 – The clients who received the government-granted premium by breaching the

provisions of this emergency ordinance or of the regulations issued for its application shall be

bound to pay back the premium to the Ministry of Transport, Construction and Tourism, within

maximum 90 days from the date the premium was granted.

Art. 317 – The procedure of granting the premium shall be established by the Ministry of

Public Finance and the Ministry of Transport, Construction and Tourism via methodological norms

approved through a joint order.

TITLE III

MORTGAGE BANKS

Art. 318 – (1) The provisions of this Title shall govern the regime of the mortgage banks,

Romanian legal entities, as specialised credit institutions, which have as core business the granting

with professional title of mortgage loans for real estate investments and raising of repayable funds

from the public by issuing mortgage-backed bonds.

(2) With the exception of deposit-receiving activities, mortgage banks may, within the

boundaries of the granted authorization, carry on activities set forth in Art. 18 provided these

activities support the granting of mortgage loans and the issuing of mortgage bonds. The provisions

of Articles 20-22 shall apply accordingly.

Art. 319 – (1) Mortgage banks, Romanian legal entities, are legally constituted as joint-

stock companies in accordance with the legislation applicable to commercial companies and with

the observance of the provisions of this emergency ordinance.

(2) The name of a mortgage bank shall include the phrase “mortgage loan bank” or the

phrase “mortgage bank”.

Art. 320 – The general provisions applicable to credit institutions in accordance with this

emergency ordinance shall apply to mortgage banks accordingly.

TITLE IV - repealed

ELECTRONIC MONEY INSTITUTIONS

Art. 321 – Art. 332 - repealed

TITLE V

CREDIT COOPERATIVE ORGANISATIONS

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Chapter 1

General provisions

Section 1

Scope and definitions

Art. 333 – (1) The provisions included in this Title shall apply to credit cooperatives,

Romanian legal entities, and to the central bodies, Romanian legal entities, of credit cooperative

organisations to which these organisations are affiliated, hereinafter referred to as credit

cooperative organisations.

(2) The general provisions included in Part I of this emergency ordinance shall apply

entirely to the central bodies and, unless otherwise stipulated in this Title, to the affiliated credit

cooperatives.

(3) The central body and the credit cooperatives affiliated thereto shall observe the

requirements laid down in Chapters III and V of Title II, Part I under the conditions laid down in

Art. 384.

Art. 334 – For the purpose of this Title, the terms and expressions below shall have the

meanings, as follows:

a) credit cooperative – a credit institution established as an independent association of

natural persons jointed by their own free will to fulfil their common economic, social and cultural

goals and aspirations, whose activity is based mainly on the principle of mutual benefit of the

cooperative members;

b) central body of credit cooperatives – a credit institution established through the

association of credit cooperatives, in order to manage their common interests, to perform a

centralised supervision of the application of legal provisions and regulations applicable to all the

affiliated credit cooperatives by means of the supervision and the administrative, technical and

financial control of their organisation and operation, hereinafter referred to as central body;

c) affiliated to a central body – a credit cooperative that subscribes and pays to the

registered capital of the central body at least the number of shares established in the general Articles

of association and which is subordinated to it in accordance with the provisions of this Title and

with the affiliation terms and conditions laid down by the central body;

d) general Articles of association – a compulsory guide relative to the association,

organisation and operation of the credit cooperative affiliated to a central body, drafted by the

central body and approved by the National Bank of Romania, providing for the minimal provisions

on the drawing-up of the general Articles of association of the affiliated credit cooperatives as well

as for the regulation on the organisation and operation of the network;

e) general regulations – regulations, norms and instructions issued by a central body in the

performance of its duties provided for by the law, which are compulsory for all the credit

cooperatives affiliated to the central body in order to carry on the activity within the cooperative

network, in a consistent manner and in line with the legal requirements and the National Bank of

Romania’s regulations issued for the application of this emergency ordinance;

f) credit cooperative network – a group consisting of a central body and its affiliates.

Section 2

General principles

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Art. 335 – (1) Credit cooperative organisations, Romanian legal entities, are independent,

non-political and non-governmental associations, carrying on activities specific to credit institutions

for the mutual benefit of their members in accordance with the provisions of this emergency

ordinance.

(2) The activity within a credit cooperative network shall be run mainly for the cooperative

members and the credit cooperative organisations affiliated to the central body.

Art. 336 – (1) Credit cooperative organisations, Romanian legal entities, may be organised

and function only as credit cooperatives and as a central body to which these credit cooperatives are

affiliated.

(2) The affiliation to a central body is compulsory. The terms and procedure of affiliation

shall be established in the Articles of association of a central body.

Art. 337 – (1) The central body of credit cooperatives shall ensure the promotion of the

interests of affiliated credit cooperatives and shall have the following main tasks:

a) to represent the common economic, financial, legal, social and cultural interests of the

affiliates before the National Bank of Romania, public institutions and legal courts;

b) to aim at and ensure the consistency and well-functioning of the entire network for which

purpose the central body shall take all the necessary measures to guarantee the liquidity and risk

capital adequacy of each affiliate in the network and of the network as a whole, including by

granting financial assistance to the affiliates;

c) to issue the general Articles of association and also other general regulations regarding

the organisation of activity within the network;

d) to supervise the affiliates as regards the observance of the legal provisions and

regulations issued by the National Bank of Romania, of the general Articles of association and

general regulations of the central body and to exercise the administrative, technical and financial

control over their organisation and management;

e) to guarantee all the liabilities of the affiliated credit cooperatives, by imposing the

necessary measures in order to ensure the payment of the established contributions;

f) to liquidate the affiliated credit cooperatives;

g) to report, in compliance with the regulations in force, the data and information required

by the National Bank of Romania;

h) to inform the affiliates of the regulations issued for the application of this emergency

ordinance and to issue general regulations in order to ensure the observance of requirements at the

level of the entire network;

i) to ensure the management of the resources available in the network;

j) to ensure the settlement of receipts and payments among affiliates and of receipts and

payments of their own network with the State Treasury and other credit institutions through a

current account opened with the National Bank of Romania;

k) to provide training for the staff and to organise social and cultural activities of common

interest.

(2) In order to perform its specific tasks, the central body may recommend and impose

measures against the affiliates or it may propose to the National Bank of Romania the imposition of

sanctions, in accordance with the provisions of this title.

Chapter II

Authorisation of credit cooperative organisations

Section 1

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Authorisation of credit cooperatives and withdrawal of authorisation

Art. 338 – (1) The authorization of credit co-operatives shall be performed under the

conditions applicable to credit institutions provided for in Chapter II of Title I, Part I, except for

Art. 11 and Art. 17, whose provisions shall not be applicable to the credit co-operatives within the

network.

(2) Credit cooperatives which are established and affiliated to a central body that has been

already authorised may be authorised by the National Bank of Romania only under the agreement

of affiliation with the central body concerned.

(3) Credit cooperatives which are established simultaneously with the central body shall be

authorised under the conditions provided for in Section 2 of this chapter.

Art. 339 – The National Bank of Romania may establish a minimum level of the initial

capital for the credit cooperatives, by accordingly observing the requirement laid down in Art. 23.

Art. 340 – (1) Credit cooperatives may carry on, to the limit of their authorisation, the

activities provided for in Section 1 of Chapter II of Title 1, Part I, except for the provisions referred

to in Article 18 para. (1) points c), point g) points 1), 3) and 4), point h), points j)-m), point o) and

point p), under the conditions laid down in the following provisions:

(2) Credit cooperatives may take deposits or other repayable funds from their members, as

well as from individuals, legal entities or from other entities, whose domicile, normal place of

residence, workplace or registered office is situated within the credit cooperative’s operating

territory.

(3) Credit cooperatives may grant credits to:

a) their members, who have priority over the other entities;

b) individuals, legal entities or other entities without legal personality, whose domicile,

normal place of residence, workplace or registered office is situated within the credit cooperative’s

operating territory, in an amount which cannot exceed 25 percent of the credit cooperative’ assets.

(4) Credit cooperatives may extend loans, on behalf of and through the account of the state,

from sources made available, which are intended for the entities referred to in para. (3) and/or to

finance some development/rehabilitation projects of the economic and social activities within the

credit cooperative’s operating territory.

Art. 341 – Credit cooperatives shall not issue bonds. These organisations may be financed

from inter-cooperative loans or loans from other credit institutions, by observing the provisions of

Article 337 para. (1) point i).

Art. 342 – The National Bank of Romania may withdraw the authorisation of a credit

cooperative in accordance with the provisions of Article 39 and at the substantiated request of the

central body to which the respective credit cooperative is affiliated, where it finds out that the credit

cooperative is undergoing either one of the predicaments referred to in the respective article or

insolvency, as defined by the laws on bankruptcy of credit institutions.

Art. 343 – Apart from other cases when it stops to be valid, the authorisation of a credit

cooperative is no longer valid starting with the date the authorisation of the central body is

withdrawn or ceases its validity in accordance with Article 40 para. (1) and Article 41 para. (1)

points b) and c).

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Art. 344 – The decision of the National Bank of Romania to withdraw the authorisation of a

credit cooperative shall be notified in writing both to the credit cooperative and the central body this

is affiliated to.

Section 2

Authorisation of the central body and withdrawal of authorisation

Art. 345 – (1) Central bodies shall be authorised, collectively, together with all the credit

cooperatives within the network which are proposed to be established, in accordance with the

provisions laid down in Chapter III of Title I, Part I.

(2) The National Bank of Romania shall grant authorisation to the central body and to the

credit cooperatives within a network, only if the requirements provided for by the emergency

ordinance and the regulations issued for its application are fulfilled at the level of the central body

and at that of each affiliated credit cooperative, as well as at the level of the entire cooperative

network.

(3) For the application of para. (2), the requirements laid down in Section 1 of Chapter II of

Title I, Part I and in the regulations issued by the National Bank of Romania for their application

shall be fulfilled at the level of the central body and the entire cooperative network. The provisions

laid down in Article 338 para. (1) shall be applicable to credit cooperatives.

(4) The minimum level of the total capital of a credit cooperative network and the elements

used in its calculation are set by the National Bank of Romania through regulations. This level shall

not be lower than the equivalent in RON of EUR 5 million.

Art. 346 – (1) Central bodies may carry on, to the limit of their authorisation, any of the

activities allowed to a credit institution, under the conditions laid down in Section 1.2 of Chapter II

of Title I, Part I. The activity is mainly carried on for the interest of the affiliated credit cooperatives

and with a view to ensuring risk capital adequacy and liquidity at the level of the entire network.

(2) The credits granted by a central body to legal entities, other than the affiliated credit

cooperatives, shall not exceed 20 percent of the assets of the central body.

(3) Central bodies may issue bonds under the conditions stipulated by the law for joint-stock

companies.

Art. 347 – The National Bank of Romania shall reject the authorisation of a cooperative

network in accordance with the provisions of Article 38 and should either of the following occur:

a) according to the assessment of the activity plan, the cooperative network, as a whole,

cannot ensure the fulfilment of the proposed objectives in compliance with the requirements laid

down in this emergency ordinance and in the applicable regulations;

b) the requirements on the minimum level of the total capital of the network are not fulfilled.

Art. 348 – Where, according to the assessment of the documents submitted at any stage of

the authorisation process, only some of the credit cooperatives within the network and the central

body fulfil the requirements laid down, the National Bank of Romania may grant authorisation,

only if the provisions of this emergency ordinance and of the regulations issued for its application

are complied with at the level of the network.

Art. 349 – Where the authorisation granted to the central body is withdrawn, the provisions

of Article 344 shall be applied accordingly.

Section 3

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The carrying on of the activity outside Romania

Art. 350 – The provisions laid down in Chapter VI of Title I, Part I shall apply to the whole

as constituted by the central body and its affiliated credit cooperatives.

Chapter III

Specific provisions on the legal establishment and operation

Section 1

Common provisions applying to all credit cooperative organisations

Art. 351 – (1) The provisions of Law No. 31/1990 on commercial companies, republished,

as subsequently amended and supplemented, shall apply accordingly to credit cooperative

organisations as well, unless otherwise provided for by this title. The establishment, operation,

amendment of the Articles of association, dissolution, merger, division and liquidation of credit

cooperative organisations shall be governed by the same provisions as are applicable to joint-stock

companies.

(2) For the application of para. (1), any reference to shares and shareholders is considered to

be made to the share capital and the cooperative members/affiliated credit cooperatives, and any

reference to a certain percent of the share capital of the joint-stock company is considered to be

made to the total voting rights at the level of a credit cooperative/central body.

(3) In all the official documents, credit cooperative organisations shall indicate, beside other

elements stipulated by the emergency ordinance, the mention “variable share capital”, while credit

cooperatives shall also indicate the name of the central body to which they are affiliated.

Art. 352 – (1) Credit cooperative organisations have a variable number of cooperative

members or, as the case may be, of affiliated credit cooperatives, which shall not be lower than the

minimum number provided for in this title.

(2) The share capital of a credit cooperative organisation may vary and consists in shares of

equal value.

(3) Within a cooperative network, the shares of all the credit cooperative organisations must

have an equal value.

Art. 353 – (1) The nominal value of a share shall be laid down in the general Articles of

association, but it shall not be lower than RON 10.

(2) The shares shall bear dividends. Dividends shall be paid to the cooperative members and

to the affiliated credit cooperatives from the net profit, proportionally to the stake in the share

capital and for the time period of holding the shares during the financial year.

Art. 354 – (1) The shares shall not be represented by negotiable securities. They are

indivisible and may be sold, transferred, or pledged as collateral only between the cooperative

members, except where the capacity of member ceases in accordance with the Articles of

association, and between the credit cooperatives affiliated to the central body.

(2) The shares shall not be used for the payment of personal debts of their holders to the

credit cooperative organisation or to third parties and do not bear interest.

(3) The cooperative members and the affiliated credit cooperatives shall not require the

partial repayment of the equivalent value of the subscribed shares, except for those resulting from

the compensations referred to in Article 369 para. (2), in the case of shares subscribed to the central

body.

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(4) The shareholders, cooperative members or credit cooperatives, as the case may be, are

liable for the obligations of the credit cooperative organisation within the limit of their subscribed

shares.

Art. 355. – (1) The General Meeting of Shareholders of a credit co-operative organization

shall convene whenever necessary, under the terms and conditions provided by law, in order to

decide on all the issues that fall within the field of competence of the ordinary and extraordinary

general meetings of a joint-stock company, and in the case of credit co-operatives, to appoint from

among the members of the Board of Directors or of the directorate, as appropriate, the credit

cooperative representatives in the General Meeting of Shareholders of the central body.

(2) The General Meeting of Shareholders of the credit co-operative organization may

delegate to the Board of Directors or to the directorate, as appropriate, under the conditions laid

down in the articles of association, the power to change the core business, to decide on the

relocation of the registered office, to set up or dissolve branches, and, as appropriate, to appoint

representatives in the General Meeting of Shareholders of the central body.

Art. 356 – At the level of a credit co-operative network, there should be a single

management system of the credit co-operative organizations within the network.

Art. 357 – The Board of Directors or, as appropriate, the directorate of a credit co-operative

organization may decide on the conclusion of legal documents granting the right to acquire,

alienate, rent, exchange or pledge as collateral some of the assets of the credit co-operative

organization, whose value exceeds one fifth of the book value of its assets on the date of signing the

legal document, only with the approval of the General Meeting of Shareholders and, in the case of

credit co operatives, also with the approval of the central body to which the credit cooperative

organization is affiliated.

Art. 358 – The monthly remuneration of the members of the Board of Directors or, as

appropriate, of the supervision council of a credit co-operative organization, as laid down in the

articles of association or by the decision of the General Meeting of Shareholders, shall not exceed

20% of the gross remuneration of the general manager/manager or of the directorate chairman, as

applicable.

Art. 359 – (1) The central body shall set up a mutual guarantee fund on the basis of the

contributions paid by affiliates and of a share of 5 percent at most of the accounting profit

calculated before the deduction of the profit tax of the central body. The setting-up, utilisation, as

well as the level of the mutual guarantee fund shall be laid down in the general regulations of the

central bodies.

(2) Credit cooperatives shall contribute to the setting-up of the mutual guarantee fund of the

central body, in accordance with the general regulations issued by the central body for that purpose.

The contributions paid by the credit cooperatives shall be recognised as tax-deductible expenses.

Section 2

Credit cooperatives

Art. 360 – Credit cooperatives shall be established based on the freedom of association of

individuals, without any discrimination based on nationality or ethnic origin, language, religion,

political affiliation, wealth, social status, race or gender.

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Art. 361 – (1) Any natural person with full capacity to act, whose domicile, normal place of

residence or workplace is situated within the credit cooperative’s operating territory, who signed or

accepted, as the case may be, the Articles of association of the concerned credit cooperative and

who subscribed and paid at least the minimum number of shares laid down in the general Articles of

association, may become a cooperative member.

(2) The Articles of association may also provide for other eligibility conditions for cooperative

members.

Art. 362 – (1) Credit cooperatives shall have their own operating territory, as laid down in

the Articles of association, where they may establish branches. This area may include certain

territories within the county where the credit cooperative has its registered office or within other

bordering counties.

(2) The operating territories of credit cooperatives affiliated to the same central body shall

not overlap.

(3) Any change in the operating territory of a credit cooperative shall be submitted for prior

approval to the central body to which the credit cooperative is affiliated.

Art. 363 – (1) Credit cooperatives shall be established based on the Articles of association

which are drafted on the basis of the general Articles of association.

(2) The minimum number of founder cooperative members, laid down in the general

Articles of association, may not be lower than 1,000. The general Articles of association may

provide for the possibility to establish a credit cooperative by the association of at least 100 founder

cooperative members provided that they subscribe and pay at least 1,000 shares.

Art. 364 – Apart from other legal provisions, the Articles of association shall include

provisions related to:

a) the conditions and procedure for joining a credit cooperative, including, as the case may

be, the registration fee, as well as the manner to rule on complaints against the decision to reject the

registration application;

b) the conditions and procedure to cancel the membership of cooperative members,

including in the case of withdrawal, exclusion and demise, and to the establishment of the means to

pay off the debts of the credit cooperative to the cooperative member or his successors and the debts

of the cooperative member or his successors to the credit cooperative;

c) the rights and obligations of cooperative members;

d) the operating territory of the credit cooperative.

Art. 365 – (1) The name of a credit cooperative shall include the expression “credit

cooperative” or “cooperative bank” and the name of the locality where the credit cooperative has its

registered office.

(2) Credit cooperatives within the same cooperative network shall use only one of the

expressions provided for in para. (1).

Art. 366 – (1) Each cooperative member shall be entitled to one vote only, irrespective of

the number of shares held.

(2) The decisions of the general meeting of shareholders are valid only if they are made in

the presence of most cooperative members and voted by the majority thereof.

(3) If unable to work, owing to non-compliance with the requirements laid down in para.

(2), the general meeting of shareholders shall convene for the second time and shall decide on the

issues on the initial agenda, unless otherwise provided for in the Articles of association, in the

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presence of at least one third of the number of cooperative members; decisions shall be valid if

voted by the majority of the present cooperative members.

Art. 367 - (1) In case of organisation to the level of credit cooperative of structures

regarding the management and control of risks, internal audit, conformity, treasury, credit activity,

as well as any other activities which may expose the credit cooperative to significant risks, the

persons appointed to conduct the business of these structures shall be approved by the central body

before starting the performance of the responsibilities, according to the regulations issued by the

central body.

(2) The central body may withdraw the granted approval, according to the provisions of

Art. 229 para.4.

Art. 368 – Credit cooperatives shall allot 25 percent per annum of the accounting profit

determined after the deduction of profit tax to the setting-up of a mutual reserve fund intended to

creating the conditions required for reducing the costs related to the operations performed with

cooperative members.

Section 3

Central body

Art. 369 – (1) Central bodies are established based on the Articles of association by the

association of at least 30 founder credit cooperatives.

(2) Each of the affiliated credit cooperatives shall subscribe and pay to the share capital of

the central body shares accounting for at least 20 percent of their share capital. Based on the share

capital recorded at the end of the financial year by each credit cooperative, the equity holdings in

the capital of the central body shall be recalculated, and the differences found shall be compensated

within 90 days after the end of the financial year.

Art. 370 – The name of a central body shall include the expression “central body” or

“cooperative central bank”.

Art. 371 – Except for the legal provisions, the Articles of association of a central body shall

include provisions related to:

a) the affiliation conditions and procedure of credit cooperatives;

b) the rights and obligations of the affiliated credit cooperatives;

c) the manner of representing the affiliated credit cooperatives within the general meeting of

shareholders of the central body;

d) the duties of the central body concerning the representation, guidance, regulation,

supervision, control and informing within the network.

Art. 372 – (1) Each affiliated credit cooperative shall be entitled to a number of votes in the

general meeting of shareholders of the central body equal to the number of persons in the register of

cooperative members at the end of the month preceding the date of holding the general meeting of

shareholders.

(2) The decisions of the general meeting of shareholders of the central body are valid only if

they are made in the presence of representatives of the affiliated credit cooperatives accounting for

at least half of the number of eligible votes and voted by the majority thereof, unless the Articles of

association provides for a larger majority.

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(3) If unable to work, owing to non-compliance with the requirements laid down in para.

(2), the general meeting of shareholders shall convene for the second time and shall decide on the

issues on the initial agenda in the presence of representatives of the affiliated credit cooperatives

accounting for at least one third of the number of eligible votes; decisions shall be valid if voted by

the majority of the present representatives.

Art. 373 – (1) The members of the Board of Directors or, as appropriate, of the supervision

council of the central body shall be elected by the General Meeting of Shareholders from among the

persons appointed for this purpose by the representatives of the affiliated credit co-operatives.

Apart from the discrepancies and prohibitions laid down by the law, a person may not carry out

administration and/or management tasks simultaneously at the central body and at a credit

cooperative.

(2) Beside the tasks laid down in the legislation on commercial companies, the Board of

Directors or, as appropriate, the directorate of the central body shall also have the following tasks

relative to the network of affiliated credit co-operatives:

a) to approve or reject the affiliation of credit cooperatives;

b) to approve, in advance, the changes in the status of the credit cooperatives within the

network, other than those submitted for prior approval of the National Bank of Romania as laid

down in this title, in compliance with the general regulations;

c) to take the necessary measures in order to ensure the minimum number of affiliated credit

cooperatives;

d) to approve the general regulations and the changes to the general Articles of association;

e) to establish and submit for approval to the general meeting of shareholders the aggregated

financial statement prepared at the level of the credit cooperative network;

f) to establish and approve the general regulations on the supervision of the affiliated credit

cooperatives and to decide on the measures to be taken for the affiliated credit cooperatives, and,

where necessary, on the sanctions for non-compliance with the provisions of this emergency

ordinance and of the regulations issued for its application.

(3) The Board of Directors may not delegate to the managers the tasks laid down in para.

(2).

Art. 374 – Central bodies shall keep highly liquid assets at a level at least equal to the level

of the mutual guarantee fund.

Art. 375 – Beside the records laid down by the law, central bodies shall also keep a record

of the affiliated credit cooperatives.

Section 4

Some specific provisions on the dissolution, merger and split-up of

credit cooperative organisations

Art. 376 – By way of derogation from the provisions of the laws applicable to commercial

companies, the dissolution of a credit cooperative organisation, following a decrease in the number

of cooperative members and of affiliated credit cooperatives below the minimum level established

in accordance with this title, takes place where this number has not been raised within one year

from the decrease establishment date.

Art. 377 – (1) A central body of credit cooperatives may merge only with another central

body.

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(2) The merger and split-up operations of credit cooperatives are performed only within the

same credit cooperative network, except for the situation referred to in para. (1).

(3) The merger or split-up of credit cooperative organisations shall be performed under the

conditions laid down in Chapter VII of Title I, Part I, and in the case of credit cooperatives, also

with the approval of the central body to which these cooperatives are affiliated.

Section 5

Payment operations of credit cooperative organisations

Art. 378 – In order to start operating, within 30 days from receiving the authorisation each

credit cooperative organisation shall open a current account as follows:

a) the central body shall open a current account with the National Bank of Romania, in

accordance with the regulations issued by the latter;

b) credit cooperatives shall open a current account with the central body to which they are

affiliated, in accordance with the general regulations.

Art. 379 – (1) Each central body shall issue, with the approval of the National Bank of

Romania, general regulations on the carrying on of payment operations between the affiliated credit

cooperatives.

(2) Credit cooperative organisations are responsible for the legality and discipline of

payment operations performed within the network.

Chapter IV

Specific provisions on the operational requirements

Section 1

General provisions

Art. 380 – (1) Credit cooperative organisations shall organise their whole activity in

accordance with the rules of a prudent and sound banking practice, the requirements of the law and

of the regulations issued for its application, as well as in compliance with the general regulations

issued by the central body.

(2) The provisions included in Title II, Part I shall apply accordingly to credit cooperative

organisations, in line with the provisions and conditions laid down in this chapter.

Art. 381 – For the application of the provisions of Article 105, the Articles of association,

internal regulations of credit cooperative organisations and the general regulations issued by the

central body shall be submitted to the National Bank of Romania, under the conditions laid down in

its regulations issued on the basis of this emergency ordinance.

Art. 382 – (1) By the general Articles of association and the general regulations, the central

body shall ensure the consistent implementation, at the level of the entire cooperative network, of

an administration framework, identification, administration, monitoring and reporting process of the

risks and of some internal control mechanisms which shall ensure the observance of the

requirements of this emergency ordinance and of the regulations issued for its application.

(2) The central body is responsible for organising the internal control of the activity, for

managing the significant risks, as well as for organising and carrying on the internal audit activity at

the level of the entire cooperative network. By way of derogation from the provisions of Law No.

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31/1990, republished, subsequently amended and supplemented, the establishment of an audit

committee within each credit cooperative is not compulsory.

Art. 383 –By way of derogation from the provisions of Law No. 31/1990 on commercial

companies, republished, as subsequently amended and supplemented, credit co-operatives counting

up to 5,000 co-operative members may appoint a single manager, who will have to assign the

management tasks to at least one manager or, as appropriate, they may appoint a single general

manager under the permanent control of a person carrying out the tasks of the supervision council.

Section 2

Prudential requirements and disclosure

Art. 384 – (1) A credit cooperative network shall observe the requirements provided for in

Article 24, Article 126, in Sections 6, 7 and 8 of Chapter III and the requirements provided for in

Chapter V of Title II, Part I.

(2) In applying the provisions of para. (1), a credit institution’s own funds may not fall

below the minimum level of the total capital required for its authorisation.

(3) The central body shall ensure the observance of the requirements laid down in Chapter V

of Title I, Part I concerning its own activity, as well as the activity of the entire cooperative

network.

Art. 385 – (1) Each credit cooperative organisation shall comply with the provisions

referred to in Article 384 para. (1), in accordance with the regulations of the National Bank of

Romania and, as the case may be, with the general regulations of the central body.

(2) Each credit cooperative within the network shall keep, on an ongoing basis, own funds at

the level laid down in the general regulations issued by the central body for the purpose of covering

the risks to which the credit cooperative is or may be exposed; this level shall not be lower than the

minimum level of share capital established by the National Bank of Romania through regulations,

where appropriate.

Art. 386 – (1) The central body shall set forth through general regulations the amendments

to the initial conditions of authorisation of credit cooperatives, which call for the central body’s

prior approval, other than the amendments referred to in this title or the amendments submitted for

approval to the National Bank of Romania according to its regulations, as well as the amendments

which call for a subsequent notification shall be satisfactory.

(2) The mentions corresponding to the amendments made at the level of a credit cooperative

organisation, which are subject to prior approval, shall be registered in the trade register only after

receiving the approval of the National Bank of Romania or, as the case may be, of the central body.

Section 3

Financial statements and audit Art. 387 – (1) Beside the requirements concerning the preparation of financial statements by

each credit institution, the central body shall draw up an annual aggregated financial statement,

according to the legal provisions, reflecting the operations and the financial standing of all the

credit cooperative organisations within the network.

(2) In applying the provisions laid down in para. (1) and in order for the central body to

draw up the reports required by the National Bank of Romania at the level of the cooperative

network, credit cooperatives shall submit to the central body they are affiliated to their annual

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financial statements and other data and information required by the central body, within the time

limits set forth by the general regulations of the central body.

Art. 388 – (1) The financial auditor of the credit cooperative shall be subject to the prior

approval by the central body, except for the first financial auditor of a credit cooperative, who shall

be appointed and authorised simultaneously with the central body.

(2) The National Bank of Romania may require the central body to withdraw the approval

granted to a financial auditor in the cases laid down in Article 157.

Art. 389 – The reports drafted by the financial auditor of a credit cooperative in applying

the provisions of Article 156 shall be submitted to the central body, which shall notify the National

Bank of Romania thereof.

Art. 390 – (1) The financial auditor of the central body shall audit the annual financial

statements of the central body, as well as the annual aggregated financial statements of the

cooperative network.

(2) The financial auditor of the central body may audit also the annual financial statements

of the affiliated credit cooperatives. In this case, the provisions laid down in Article 388 para. (1)

and para. (2) shall not be applicable.

Art. 391 – The financial auditor’s validation for more than one credit cooperative

organisation shall not be considered an infringement of its independence principle.

Chapter V

Supervision of credit cooperative organisations

Section 1

Exercising of supervision tasks

Art. 392 – (1) The National Bank of Romania shall ensure the prudential supervision of the

central body on an individual basis, and the prudential supervision of all the credit cooperative

organisations within the network at an aggregate level. Where necessary, the National Bank of

Romania may perform inspections at the registered office of credit cooperatives.

(2) The central body shall report to the National Bank of Romania the necessary data and

information for the assessment of the compliance with the provisions laid down in this emergency

ordinance and in the regulations issued for its application, concerning both its own activity and the

activity of the entire cooperative network.

(3) Without prejudice to the prerogatives of the National Bank of Romania to supervise

credit cooperative organisations, the central bodies shall ensure the monitoring of the affiliated

credit cooperatives. For this purpose, the provisions of Chapter I of Title III, Part I shall be applied

accordingly, and any reference to the National Bank of Romania shall be considered a reference to

the central body.

(4) The persons acting as Board members and/or managers of a central body, the staff of the

central body and any person acting on the account of a central body shall keep the professional

secrecy in accordance with Art. 214 while exercising the tasks of this institution referred to in para.

(3).

Section 2

Supervision measures and sanctions

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Art. 393 – (1) In performing its tasks laid down in this title, the central body may take the

measures referred to in Article 226 para. (2) points a)-f) against an affiliated credit cooperative,

which breaches the provisions of the law, of the regulations or of other rules issued for the

application of the law concerning the supervision or the carrying on of the activity, under the

conditions laid down in the general regulations issued by the central body for this purpose.

(2) The central body may suggest in a substantiated manner to the National Bank of

Romania to take the measures referred to in Article 226 para. (2) point g) against a credit

cooperative and/or to apply the sanctions provided for by the law.

(3) The provisions referred to in Chapter VII of Title III, Part I shall be applied accordingly

to the central body in exercising the prerogatives laid down in para. (1).

(4) The central body shall notify the National Bank of Romania of any measure taken,

within 5 days from the date of its adoption.

(5) The rules for the enforcement of the measures in accordance with para. (1) shall be

issued by the managers or, as appropriate, by the members of the directorate of the central body,

consistent with the general regulations issued for this purpose.

Art. 394 – Where a severe deterioration of the financial standing and of prudential

indicators is found at the level of the central body or of one of its affiliates, the central body may

ask the affiliated credit cooperatives to contribute to the increase in its financial resources either by

subscription of new shares or by placing some deposits repayable at the time limits set by the

central body.

Art. 395 – The National Bank of Romania may take the necessary measures or apply

sanctions for non-fulfilment or inadequate fulfilment by the central body of the control and

supervisory tasks assigned according to this Title or delegated by the National Bank of Romania, in

relation to the affiliated credit cooperatives.

Section 3

Specific provisions for special procedures

Art. 396 – (1) The National Bank of Romania may take special supervision or

administration measures in relation to a credit cooperative also at the substantiated proposal of the

central body to which the credit cooperative is affiliated.

(2) The special supervision or administration of a credit cooperative may be delegated to the

central body to which the credit cooperative is affiliated, by the decision of the National Bank of

Romania.

Art. 397 – (1) Where the special supervision is performed by the central body in compliance

with the provisions of Article 396, the provisions laid down in Section 1 of Chapter VIII of Title III,

Part I shall be applied accordingly and any reference to the National Bank of Romania shall be

considered a reference to the central body.

(2) The periodical reports referred to in Article 239 para. (1) shall be submitted to the

National Bank of Romania as well.

(3) Where, during the special supervision serious deficiencies continue to be found in the

credit cooperative’s activity, the central body may propose to the National Bank of Romania, on a

case by case basis, to take administration measures or other measures stipulated by the law, or it

may ask the National Bank of Romania to withdraw the authorisation of the concerned credit

cooperative.

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Art. 398 – (1) Where the special administration is ensured by the central body in accordance

with Article 396, the provisions laid down in Section 2 of Chapter VIII, Title III of Part I shall

apply accordingly, and any reference to the National Bank of Romania shall be considered a

reference to the central body.

(2) In applying the provisions of para. (1), the special administrator’s reports shall be

submitted also to the National Bank of Romania.

(3) The central body may ask the National Bank of Romania to withdraw the authorisation

of the concerned credit cooperative according to the provisions of Article 252 para. (2).

Art. 399 – (1) The liquidation of a credit cooperative following the withdrawal of its

authorisation according to Article 342 shall be performed by the central body to which it is

affiliated, including where the credit cooperative is in insolvency, by accordingly applying the

provisions of Section 3 of Chapter VIII of Title III, Part I. The central body may appoint an

authorised liquidator.

(2) Where the credit cooperative is in insolvency, the general meeting of shareholders of the

central body shall decide on the assets of the credit cooperative, whose authorisation has been

withdrawn. Its assets may be distributed to the credit cooperative organisations within the network;

in this situation, the central body shall fulfil its task referred to in Article 337 para. (1) point e).

Art. 400 – (1) In other cases than those referred to in Article 399 para. (2), while liquidating

a credit cooperative organisation, the cooperative members and the affiliated credit cooperatives

shall receive from the net assets remained after the repayment of its liabilities the amounts

representing the value in exchange of the subscribed and paid-in shares, as well as all dividends for

the current financial year. The remainder shall be taken over in case of liquidation of the credit

cooperatives by the central body they are affiliated to, and in case of liquidation of the central

bodies and its affiliates, by the Bank Deposit Guarantee Fund.

(2) Where the remaining net assets do not cover the total value of the shares, they shall be

distributed proportionally to the shares owned by every member of the cooperative.

Chapter VI

Bankruptcy of central bodies

Art. 401 – Where a central body is in insolvency, the provisions of the laws on bankruptcy

of credit institutions shall be applicable; the procedure stipulated by the law shall be applied at an

aggregate level to the credit organisations within the network.

Chapter VII

Other provisions

Art. 402 – The decisions adopted by a central body according to the provisions of this

emergency ordinance regarding a credit cooperative may be subject to appeal under the conditions

laid down in Articles 275 – 277.

Art. 403 – The share capital set up by the cooperative members until the date of entry into

force of this emergency ordinance, according to the provisions of Emergency Ordinance No.

97/2000 on credit cooperative organisations, subsequently amended and supplemented, and

approved by the Law No.200/2002, as subsequently amended and supplemented, may not be

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withdrawn earlier than one year after the last principal repayment and the related interest payment,

unless otherwise stipulated in the agreement concluded by the parties.

TITLE VI

PAYMENT SYSTEMS

Chapter I

General provisions

Art. 404 – (1) The National Bank of Romania regulates, authorises and supervises the

payment systems and the financial instruments settlement systems in Romania, including their

administrators, in order to ensure the smooth functioning of these systems in accordance with the

international standards in the field.

(2) The systems referred to in para. (1) may not operate within the territory of Romania

without being authorised by the National Bank of Romania.

Art. 4041 - (1) The payment systems shall ensure the unrestricted access to the system of

the payment service providers, credit institutions, payment institutions, within the meaning of the

Government Emergency Ordinance no.113/2009 on payment services, approved with amendments

and supplements by Law no.197/2010, as further amended and supplemented, and electronic money

institutions in the meaning of Law no.127/2011 on the activity of electronic money issuance, based

on objective, non-discriminatory and proportionate rules, that will not inhibit the access more than

is necessary to safeguard the payment system against specific risks such as settlement risk,

operational risk and business risk and to protect the financial and operational stability of the

payment system.

(2) Payment systems shall impose on payment service providers, on payment service users

or on other payment systems none of the following requirements:

a) any restrictive rule on effective participation in other payment systems;

b) any rules which discriminate the payment services providers in relation to the rights and

obligations of participants;

c) any restriction on the basis of institutional status.

(3) Paragraphs 1 and 2 shall not apply to:

a) payment systems designated by the National Bank of Romania according to the Law

no.253/2004 on the final feature of settlements in the payment system and in the settlement systems

of operations with financial instruments, to which this law is applicable;

(b) payment systems composed exclusively of payment service providers belonging to a

group composed of entities linked by capital where one of the linked entities enjoys effective

control over the other linked entities;

(c) payment systems where a sole payment service provider, whether as a single entity or

as a group, fulfills cumulatively the following conditions: acts or can act as the payment service

provider for both the payer and the payee and is exclusively responsible for the management of

the system, and in the meantime licenses other payment service providers to participate in the

system and the latter have no right to negotiate fees between or amongst themselves in relation to

the payment system although they may establish their own pricing in relation to payers and

payees.

Art. 405 – The National Bank of Romania issues regulations regarding the payment systems

and the financial instruments settlement systems, which shall refer to the following:

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a) the conditions and the manner of organising the systems;

b) the authorisation conditions and procedure, the cases where the authorisation may be

withdrawn;

c) the criteria and the rules for the supervision of the systems, including of the participants

in these systems and of their administrators;

d) the information and reports that shall be provided to the National Bank of Romania;

e) the minimum requirements related to the functioning, operational audit and risk

management of a system and those referring to the financial statements and the internal audit of the

participants and of the administrator of a system;

f) any other specific requirements necessary for the smooth functioning of a system.

Art. 406 – (1) The funds and financial instruments of the participants in the payment

systems, set up as reserves at the disposal of the settlement agent, within the limits imposed by the

system rules, in order to guarantee the fulfilment of the obligations arising from the capacity of

participant in the system, may not be subject to the forced sale by third parties, and may not be

subject to any guarantees or to other similar duties assumed by the debtor participant.

(2) The funds and financial instruments referred to in para. (1) are exempted from

registration with the Electronic Archive of Movable Real Collateral.

(3) In case of bankruptcy of a participant in the payment system, the funds and financial

instruments provided for in para. (1) shall only be used in the performance of its obligations arising

from the irrevocable transfer orders and net positions resulting from the clearing, obligations that

are incumbent on the participant until the date when the ruling of opening the bankruptcy

proceedings is passed.

(4) Where the capacity of a participant in the payment system ceases, the funds and financial

instruments referred to in para. (1) shall only be used in the performance of its obligations arising

from the irrevocable transfer orders and net positions resulting from the clearing, obligations that

are incumbent on the participant until the capacity of participant ceases.

Chapter II

Remedial measures and sanctions

Art. 407 – The National Bank of Romania may require the participants and/or

administrators of payment systems and financial instruments settlement systems to adopt remedial

measures to remove the deficiencies found within the systems.

Art. 408 – (1) Where the National Bank of Romania finds that the participants or

administrators of payment systems and financial instruments settlement systems are guilty of non-

compliance with the provisions of this chapter, with the regulations issued by the National Bank of

Romania for the application of these provisions or with the remedial measures imposed, it may

apply the following sanctions:

a) written warning;

b) fine ranging from RON 10,000 to RON 100,000;

c) suspension or exclusion of one or more participants from one or several systems;

d) suspension, over a period of up to 90 days, of the authorisation granted by the National

Bank of Romania to a system administrator;

e) withdrawal of the authorisation granted to the system administrator.

(2) The documents establishing the measures and the sanctions laid down in this chapter

shall be issued by the Governor, the First Deputy Governor or Deputy Governors of the National

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Bank of Romania, except for the sanctions referred to in para. (1) points d) and e), the imposition of

which falls within the scope of the National Bank of Romania Board.

Art. 409 – (1) The imposition of the sanctions laid down in Art. 407 shall be lost by

limitation within one year from notification, but not later than 3 years from the date the deed was

perpetrated.

(2) The collected fines shall be recognised as revenue to the state budget.

(3) The imposition of sanctions does not remove the material, civil or penal responsibility,

as the case may be.

PART III

CRIMINAL OFFENCES AND TRANSITORY AND FINAL PROVISIONS

TITLE I

CRIMINAL OFFENCES

Art. 410 – The carrying on of activities prohibited by Article 5 by an individual, on his own

account or on the account of an entity which is not a credit institution, shall be deemed a criminal

offence and shall be punished by 2 to 7 years’ imprisonment.

Art. 411 – The unauthorised utilisation by an individual of a specific name of a credit

institution, by infringing the provisions of Article 6, shall be deemed a criminal offence and shall be

punished by imprisonment from 3 months to 2 years or by fine.

Art. 412 –The following deeds shall be deemed as infringements and shall be punished by

imprisonment from one year to 3 years:

a) the deed of a Board member, manager or, as appropriate, of a member of the supervision

council or of the directorate or any employee of a credit institution who, in bad faith, infringes the

provisions of Art. 171 or, in any other way, prevents the National Bank of Romania from exercising

supervision;

b) the deed of any person entrusted with the administration and/or management tasks

relative to a financial holding company or a mixed-activity holding company who infringes the

provisions of Art. 166 and Art. 176-203 with a view to preventing the National Bank of Romania

from exercising supervision of credit institutions.

Art. 413 – Repealed

TITLE II

TRANSITORY AND FINAL PROVISIONS

Chapter I

Transitory provisions

Art. 414 – (1) The authorisation applications unsolved at the date of entry into force of this

emergency ordinance, which are not in accordance with the provisions of the laws and/or the

regulations issued for its application, may be withdrawn and submitted again by their holders after

correcting the deficiencies.

(2) Except for the provisions in para. (1), the authorisation applications submitted by the

credit institutions authorised and supervised by the competent authority from another Member State

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shall be classified as being unfounded and these credit institutions shall follow the notification

procedure referred to in Section 1 of Chapter IV of Title I, Part I.

Art. 415 – (1) The credit institutions, Romanian legal entities, the branches of credit

institutions in third countries and payment system administrators, which at the date of entry into

force of this Government Emergency Ordinance were licensed by the National Bank of Romania

and operate in Romania, are considered to hold an authorization in accordance with the provisions

of this Government Emergency Ordinance.

(2) The credit institutions from other Member States which, at the date of entry into force of

this emergency ordinance, perform activity in Romania through a branch are considered to be

notified in accordance with the provisions of Chapter IV of Title I, Part I. Starting with the date of

entry into force of this emergency ordinance, the authorisations issued by the National Bank of

Romania for these branches shall be no longer legally valid and the branches will continue to

operate based on the authorisation granted to the credit institution by the competent authority of the

home Member State. The provisions of Article 41 para. (2) are not applicable in these cases.

Art. 416 – The credit institutions, Romania legal entities and the branches of the credit

institutions from third countries shall comply with the new requirements in this emergency

ordinance, within the time limits and under the conditions established by the regulations issued for

its application.

Art. 4161. – As of the date of coming into force of this Government Emergency Ordinance,

any reference in the existing pieces of legislation to Law No. 541/2002 on collective saving and

lending for housing, as subsequently amended and supplemented, shall be deemed as reference to

Part II, Title II ‘Savings banks for housing’ herein or to the corresponding chapters in this

Government Emergency Ordinance, as appropriate.

Chapter II

Final provisions

Art. 417 – The credit institutions which perform their activity in Romania in accordance

with this emergency ordinance, including the branches of the credit institutions from other Member

States and from third countries, shall be registered by the National Bank of Romania in the register

of the credit institutions which shall be available to those interested.

Art. 418 – (1) Credit institutions may establish professional associations to represent their

collective interests in relation to the public authorities, analyse common interest issues, promote

cooperation, inform the association members and the public, and organise common interest

services. The professional associations of the credit institutions cooperate with the National Bank of

Romania.

(2) Credit institutions may organise separately or, as appropriate, within the professional

associations, their own body of executors, whose activity shall be strictly related to the collection of

claims of a credit institution or of other entities which belong to this institution and carry on

financial activities.

(3) The status of this body of executors shall be approved by the order of the Minister of

Justice, and its activity shall be governed by the relevant provisions of common law.

(4) In the cases set forth by law and whenever the official receiver deems it necessary, the

police, the gendarmerie or any other law enforcement agents, as appropriate, shall assist the official

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receiver in carrying out the forced sale. At the request of the relevant court of law or of the official

receiver, any persons owing money to or holding assets of the prosecuted debtor, which fall under

the scope of the investigation under the law, shall provide the required information for performing

the forced sale. Furthermore, at the request of the relevant court of law or of the official receiver,

institutions, credit institutions and any other persons shall immediately disclose in writing any data

and information necessary for the forced sale, notwithstanding any contrary provisions of special

laws.

Art. 419 – (1) This emergency ordinance shall enter into force on 1 January 2007.

(2) This emergency ordinance shall be supplemented by the provisions of the legislation

applicable to commercial companies, to the extent to which these provisions are not contrary to the

provisions of this emergency ordinance and to those relating to the carrying on of certain

activities/operations, as the case may be.

Art. 420 – (1) The National Bank of Romania shall issue regulations for the application of

this emergency ordinance, which shall be published in Monitorul Oficial al României, Part I, as

well as on the National Bank of Romania website.

(2) For the purpose of a consistent application of the provisions of this emergency ordinance

and of the regulations issued on its basis, the National Bank of Romania may issue instructions and

guidelines which shall be communicated to all the credit institutions and published on the National

Bank of Romania website.

(3) Except for the provisions of para. (1) and para. (2), for the application of the provisions

of this emergency ordinance that are applicable both to credit institutions and according to Chapter

X of Title III, Part I to financial investment firms, and, if the case may be, to investment

management companies, whose scope of activity includes the management of individual investment

portfolios, the regulations and, respectively, the instructions and guidelines shall be jointly issued

by the National Bank of Romania and the National Securities Commission.

(4) When elaborating regulations, instructions and guidelines, the National Bank of

Romania and the National Securities Commission shall ensure the transposition of the relevant

legislation adopted at the European Union level and shall follow the implementation of the best

international practices in the prudential supervision field.

Art. 421 – (1) The regulations issued by the National Bank of Romania, on the basis of the

pieces of legislation referred to in Art. 422, and by the National Securities Commission, on the basis

of Law No. 297/2004, as subsequently amended and supplemented, shall be further applicable until

the express repeal thereof.

(2) In order to calculate capital requirements, credit institutions, financial investment firms

and, as the case may be, investment management companies may choose to apply, until 1 January

2008, certain provisions of the regulations referred to in para. (1) under the conditions laid down in

the new regulations jointly issued, according to the provisions of Article 420 para. (3), by the

National Bank of Romania and the National Securities Commission.

(3) The regulations jointly issued by the National Bank of Romania and the National

Securities Commission shall expressly establish which of the provisions of the previous regulations

remain, exceptionally, in force until 1 January 2008, being applicable to the credit institutions,

financial investment firms and, as the case may be, investment management companies which make

the choice referred to in para. (2).

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Art. 4211. – The definitions laid down in Art. 7, para. (1), points 6 and 141 shall also apply

when enforcing the provisions of Law No. 297/2004 on the capital market, as subsequently

amended and supplemented.

Art. 422 – At the date of entry into force of this emergency ordinance, the following pieces

of legislation shall be repealed:

a) Law No. 58/1998 on the banking activity, republished in Monitorul Oficial al României,

Part I, No.78/24 January 2005, subsequently amended;

b) Government Emergency Ordinance No. 97/2000 on credit cooperative organisations,

published in Monitorul Oficial al României, Part I, No. 330/14 July 2000, approved through

amending and supplementing by the Law No.200/2002, subsequently amended and supplemented;

c) Law No. 541/2002 on collective saving and lending for housing, published in Monitorul

Oficial al României, Part I, No. 733/8 October 2002, subsequently amended and supplemented;

d) Law No.33/2006 on mortgage banks, published in Monitorul Oficial al României, Part I,

No. 200/3 March 2006;

e) any other contrary provision.

The text shall be supplemented with Art.II and Art.III of the GEO no.26/2010 amending and

supplementing GEO no.99/2006 regarding credit institutions and capital adequacy and other acts, as

well as with art.III1 (supplemented by Law no.231/2010 approving the Government Emergency

Ordinance no.26/2010 amending and supplementing Government Emergency Ordinance

no.99/2006 on credit institutions and capital adequacy and of other acts), as follows:

Art.II – The reserves in the balance representing the general reserve for credit risk and the fund

for general banking risks, set up according to the law, may be used for the purpose they have been

established, respectively for decreasing of the loan losses and, as appropriate, from items

constituting risk bearing assets specific for the banking activity.

Art.III – (1) Any application for approval of transforming an entity into a credit institution,

submitted to the National Bank of Romania before entering into force of this emergency ordinance,

being under examination on that date, shall be settled as follows:

a) the application shall be rejected if the National Bank of Romania has not taken any

decision until that date on the approval of the transformation process, according to the

regulations issued within this meaning;

b) the application shall be assessed according to the applicable regulations issued,

regarding the authorization of functioning of the credit institution, as a result of

transformation, if the National Bank of Romania has approved the transformation

process.

(2) For any situations referred to in para.(1) lett.b) shall be applicable the regulations issued

by the National Bank of Romania in compliance with the provisions of Section 2 of Chapter VII,

Title I of Part I of the Government Emergency Ordinance no.99/2006, approved with amendments

and supplements by Law no.227/2007, as further amended and supplemented.

Art. III1 –Until 31 December 2012, the time limits established in Article 182

2 para.(1) and in

Article 1823 are of 6 months.

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The text shall be supplemented with Art.II of Legea nr.231/2010 Law no.231/2010 approving the

Government Emergency Ordinance no.26/2010 amending and supplementing Government

Emergency Ordinance no.99/2006 on credit institutions and capital adequacy and of other acts, as

follows:

Art. II – Credit institutions shall ensure the compliance with the principles and rules in

matters of remuneration policies, established by regulations issued for the application of the

Government Emergency Ordinance no.99/2006, as further amended and supplemented, as amended

and supplemented by this law, including in the case of:

a) remunerations established according to the contracts concluded before 31 December 2010

inclusively, which are due and paid after that date;

b) remunarations due, but not yet paid, before the date of 31 December 2010 inclusively, for

activities performed during the year 2010.

________________________________________________________________________________

This emergency ordinance transposes the provisions of European Union Directives

governing credit institutions and investment firms as follows:

1. Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006,

relating to the taking up and pursuit of the business of credit institutions, published in Official

Journal of the European Union No. L 177/30 June 2006: Art. (1) – (3), Art.4 (1) – (5), (7) – (17),

(19) – (21) and (46), Art. (5) – (8), Art. 9 (1), Art.10 (1) and (5), Art. 11 – 25, Art.26 (1) – (3),

Art.27, Art.28 (1) and (2), Art. 29 - 38, Art. 40 – 49, Art. 52 - 56, Art. 75, Art. 76, Art. 80 (1) the

third sentence, Art. 81 (1), (3) and (4), Art. 84 (1), (5) and (6), Art. 85 (1) and (2), Art. 89, Art. 91,

Art. 97 (1) and (3) – (5), Art. 102 (1) and (4), Art. 105 (1), (3) and (4), Art. 109, Art. 120, Art. 121,

Art. 122 (1), Art. 123, Art.124 (1) – (4), Art. 125 – 132, Art.135 – 137, Art. 138 (1), Art. 139 – 142,

Art.143 (1), (2) the second sentence and (3), Art. 144, Art. 145, Art. 147 – 149, Art. 152 (8), Art.

157, and Annex 1;

2. Directive No. 2006/49/EC of the European Parliament and of the Council of 14 June

2006, on the capital adequacy of investment firms and credit institutions, published in Official

Journal of the European Union No. L 177/30 June 2006: Art. 1 (1), Art. 2 (1) and (2) points b), d)

and e), Art. 3 (1) points a), f) and g), (2) and (3), Art.10 (4), Art. 13 (1) first sentence, Art. 18 (1),

Art. 20 (1), Art. 28 (1), Art. 34, Art. 35 (1), Art. 37 (1), Art. 38, Art. 39, Art.49 (1) the second and

third sentences and (2), Art.50 (1) and Annex 1 (1);

3. Directive No. 2000/46/EC of the European Parliament and of the Council of 18

September 2000, on the taking up, pursuit of and prudential supervision of the business of

electronic money institutions, published in Official Journal of the European Communities No. L

275/27 October 2000: Art. 1 – 3, Art. 4 (1), Art. 7 and Art. 8;

4. Directive No. 2001/24/EC of the European Parliament and of the Council of 4 April 2001,

on the reorganisation and winding up of credit institutions, published in Official Journal of the

European Communities No. L 125/5 May 2001: Art. 1, Art. 2, Art. 9 – 13 and Art. 16 – 33;

5. Council Directive No. 89/117/EEC of 13 February 1989 on the obligations of branches

established in a Member State of credit institutions and financial institutions having their head

offices outside that Member State regarding the publication of annual accounting documents,

published in Official Journal of the European Communities No. L 044/16 February 1989: Art. 1 (1)

and Art. 2 – 4.

6. Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on

markets in financial instruments, published in the Official Journal of the European Union L145 of

30 April 2004: Art. 4, para. (1), point 1), subpara. 1 and Annex 1.

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7. the provisions of Art.5 para.2- para.4 and those of Art.8 para.2 of Directive 2007/44/EC

of the European Parliament and of the Council of 5 September 2007 amending Council Directive

92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards

procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of

holdings in the financial sector, published in the Official Journal of the European Union (JOUE)

no.L 247 dated 21 September 2007.

8. the provisions of Art.3, 4, 6 and 7, of Art.20-33 and of Art.34 para.(2) of Directive

2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganization

and winding up of credit institutions, published in the Official Journal of the European Community

(JOCE) no.L 125 of 5 Mai 2001.

9. the provisions of Art.20 of Directive 2009/110/EC of the European Parliament and of the

Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business

of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing

Directive 2000/46/EC, published in the Official Journal of the European Community (JOCE) no.L

267 of 10 October 2009.

10. the provisions of Art.1 para.(2) lett.c), para.(3)-(6) and para.(31)-(33) of Directive

2009/111/EC of the European Parliament and of the Council of 16 September 2009 amending

Directives 2006/48/EC, 2006/49/EC and 2007/64/EC as regards banks affiliated to central

institutions, certain own funds items, large exposures, supervisory arrangements, and crisis

management, published in the Official Journal of the European Community (JOCE) no.L 302 of 17

November 2009.

11. the provisions of Art.28 and 92 of Directive 2007/64/EC of the European Parliament and

of the Council of 13 November 2007 on payment services in the internal market amending

Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC,

published in the Official Journal of the European Community (JOCE) no.L 319 of 5 December

2009.

12. the provisions of Art.1 of Commission Directive 2010/16/EU of 9 March 2010 amending

Directive 2006/48/EC of the European Parliament and of the Council as regards the exclusion of a

certain institution from the scope of application, published in the Official Journal of the Eurpoean

Union (JOUE) no. L 60 of 10 March 2010;

13. the provisions of Art.1 points 3, 4, 10, 11 and of Art. 3 paragraphs 1 and 2 of Directive

2010/76/UE of the European Parliament and of the Council amending Directives 2006/48/EC and

2006/49/EC as regards capital requirements for the trading book and for re-securitisations, and the

supervisory review of remuneration policies

14. the provisions of Art.9 point (1) (a), point (3), point (4), point (10), point (11), point (12),

point 14 paragraph (1), point (15) (a), point (16), point. (17), point (18), point (19) (a), point (31),

point (32) (a), (b), (d) i) - iv), point (33), point (34), point (35) (a) paragraph 2 - 4, point (35) (b) ii),

point (36), point 37, point (38) (a) ii), point (38) (b) and of Art. 13 point (1) of Directive

2010/78/EU of the European Parliament and of the Council of 24 November 2010 amending

Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC,

2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC and 2009/65/EC in respect of the powers of

the European Supervisory Authority (European Banking Authority), the European Supervisory

Authority (European Insurance and Occupational Pensions Authority) and the European

Supervisory Authority (European Securities and Markets Authority), published in the Official

Journal of the European Union (JOUE) no. L 331 dated 15 December 2010; 15. the provisions of Art.20 point 1 of Directive 2009/110/EC of the European Parliament and

of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the

business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and

130

repealing Directive 2000/46/EC, published in the Official Journal of the European Union (JOUE) L

267 dated 10 October 2009.