Specific legal stipulations

The Financial Supervisory Authority publishes the documents it issues according to the existing legal provisions.

 

FINANCIAL INSTRUMENTS AND INVESTMENTS SECTOR

 

1. Law no. 297/2004 regarding the capital market

Art. 274. - (1) Committing the contraventions provided in art. 272 and 2732 is found by the C.N.V.M.

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(4) C.N.V.M. may make public any measure or sanction imposed for non-compliance with the provisions of this law and the regulations adopted in its application.

 

2. Law no. 24/2017 on issuers of financial instruments and market operationsL

Article 130. - (1) A.S.F. publishes all decisions regarding the sanctions and measures imposed in accordance with the provisions of art. 126-129, without undue delay, including at least information on the type and nature of the violation and the identity of the natural persons or legal entities responsible for the violation. As an exception, the A.S.F. may postpone the publication of a decision or may publish the decision anonymously in any of the following circumstances:

a) when, if the sanction is imposed on a natural person, it is found, following a previous mandatory assessment of the proportionality of the publication of personal data, that it is disproportionate;
b) when publication would seriously jeopardize the stability of the financial system or an ongoing official investigation;
c) when the publication would cause, to the extent that this can be established, disproportionate and serious damage to the institutions or individuals involved.

(11) A.S.F. publishes the decisions regarding the sanctions and measures imposed for non-compliance with the provisions of art. 919-9112 by the institutional investors provided in art. 912 lit. e) point (i), in accordance with the publication regime provided by Law no. 237/2015, with subsequent amendments and completions.

(2) In case of filing an appeal against the decision published according to par. (1), A.S.F. is obliged either to publish this information at the time of publication of that decision or to amend the published text if the appeal is lodged after the initial publication.

 


Section 1311. - (1) A.S.F. apply adequate sanctions and effective, proportionate and dissuasive administrative measures, in compliance with the provisions of Regulation (EU) 2017 / 1.129 and this law, to the persons who commit the acts provided in art. 126 para. (2) lit. f).

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(3) In case of violations provided in art. 38 para. (1) lit. a) of Regulation (EU) 2017 / 1.129, A.S.F. may apply the following sanctions and administrative measures:

a) the sanctions and measures provided in art. 38 para. (2) lit. a) -c) of Regulation (EU) 2017 / 1.129. The limits of the sanction provided in art. 38 para. (2) lit. c) of Regulation (EU) 2017 / 1.129 are between one and up to twice the amount of profits obtained or losses avoided as a result of the infringement, if they can be calculated;
b) for natural persons, a fine from 10,000 lei to 9,000,000 lei;
c) for legal entities a fine from 15,000 lei to 45,000,000 lei or 5% of the total annual turnover of the respective legal entity according to the latest available financial statements approved by the management body.

(4) In the case of the violations provided in art. 38 para. (1) lit. b) of Regulation (EU) 2017 / 1.129, A.S.F. may apply the following sanctions and administrative measures:

a) the sanctions and measures provided in art. 38 para. (2) lit. a) and b) of Regulation (EU) 2017 / 1.129;

7. Emergency Ordinance no. 32/2012 on collective investment undertakings in investment securities and investment management companies, as well as for the amendment and completion of Law no. 297/2004 regarding the capital market
Art. 196. - (1) By derogation from the provisions of art. 8 of the Government Ordinance no. 2/2001 regarding the legal regime of contraventions, approved with modifications and completions by Law no. 180/2002, with subsequent amendments and completions, hereinafter referred to as O.G. no. 2/2001, committing the contraventions provided in art. 195 and 1951 are sanctioned as follows:
a) in case of contraventions provided in art. 195 lit. a) -m) and p), as well as at art. 1951:
(i) with a warning or a fine from 1,000 lei to 22,098,000 lei, for natural persons;
(ii) with a warning or a fine from 10,000 lei to 22,098,000 lei or 10% of the total turnover achieved in the financial year prior to the sanction, depending on the gravity of the committed deed, for the legal persons;
b) in the case of the contraventions provided in art. 195 lit. n) and o):
(i) with a fine from 10,000 lei to 22,098,000 lei, for natural persons;
(ii) with a fine from 50,000 lei to 22,098,000 lei or 10% of the total turnover achieved in the financial year prior to the sanction, depending on the gravity of the committed deed, for the legal persons.
(2) By exception from the provisions of par. (1), in case of committing the contraventions provided in art. 195, A.S.F. may increase the amount of fines up to twice the amount of the benefit resulting from the violation of this emergency ordinance, if the benefit exceeds the amount of 22,098,000 lei.
(3) If the turnover achieved in the financial year prior to the sanction is not available on the date of the sanction, the one related to the financial year in which the legal person registered the turnover, year immediately preceding the reference year shall be taken into account. The reference year means the year prior to the sanction.
(4) If the legal person is a parent company or a subsidiary of the parent company, which has the obligation to prepare consolidated financial accounts in accordance with the accounting regulations in force, the relevant total annual turnover is the annual turnover total or the corresponding type of income in accordance with the relevant accounting law of the European Union, as shown in the latest available consolidated accounts approved by the statutory body of the parent company.
(5) In addition to the main contravention sanctions, provided in par. (1) - (4), A.S.F. may also order the application of complementary contravention sanctions for the legal and / or natural persons subject to the present emergency ordinance. Complementary sanctions are:
1. suspension of the authorization;
2. withdrawal of the authorization;
3. the prohibition for a period between 90 days and 5 years of the right to hold a position, to carry out an activity or to provide a service for which the authorization is required under the conditions of this emergency ordinance.
(6) A.S.F. publishes without delay on its website any measure or sanction imposed for non-compliance with the provisions of this emergency ordinance and the regulations adopted in its application, against which there are no appeals against the A.S.F. and after the person to whom the sanction or measure was imposed has been informed of the decision. The publication shall contain at least information on the type and nature of the infringement, as well as the identity of the persons responsible. This obligation does not apply to the decision of the A.S.F. to carry out a check on those infringements.
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(7) If the publication of the identity of legal persons or personal data of natural persons is considered by the A.S.F. as excessive, as a result of a case-by-case assessment of the proportionality of the publication of such information, or where the publication jeopardizes the stability of financial markets or an ongoing investigation, the A.S.F. may take at least one of the following measures:

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b) for individuals, warning or fine from 1,000 lei to 2,000,000 lei;
c) for legal entities, warning or fine from 7,000 lei to 4,000,000 lei or 1% of the total annual turnover of the respective legal entity according to the latest available financial statements approved by the management body.

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(8) A.S.F. publish any decision to apply a minor offense sanction or other administrative measure in accordance with this article, as well as information related to it, in accordance with the provisions of art. 42 of Regulation (EU) 2017 / 1.129.

(9) A.S.F. transmits ESMA, in accordance with art. 43 of Regulation (EU) 2017 / 1.129, information on the sanctions and administrative measures applied according to this article, respectively on the criminal investigations carried out and the criminal sanctions applied in cases falling under art. 134 para. (1) and which constitutes a violation of the provisions of Regulation (EU) 2017 / 1.129, provided in art. 38 para. (1) lit. a) of the same regulation.

(10) For the purposes of applying art. 43 of Regulation (EU) 2017 / 1.129, A.S.F. has access to the information and the final decision in connection with any criminal sanction provided in par. (9) and transmitted to them by ESMA.

Section 132. - (1) A.S.F. applies contravention sanctions and administrative measures appropriate to the persons who commit the violations provided in art. 30 para. (1) lit. a) and b) of Regulation (EU) no. 596/2014.
(2) The limits of the fines established by this article derogate from the provisions of art. 8 of the Government Ordinance no. 2/2001.
(3) In case of violations provided in art. 30 para. (1) lit. a) of Regulation (EU) no. 596/2014, A.S.F. may apply the following sanctions and administrative measures:
  a) the sanctions and measures provided in art. 30 para. (2) lit. a) -h) of Regulation (EU) no. 596/2014. The temporary interdiction provided in art. 30 para. (2) lit. e) and g) of Regulation (EU) no. 596/2014 can be ordered for a period between 90 days and 5 years. The limits of the sanction provided in art. 30 para. (2) lit. h) of Regulation (EU) no. 596/2014 are between once and three times the amount of profits obtained or losses avoided as a result of the violation, if they can be established;
  b) for natural persons, fines as follows:
     (i) a fine from 10,000 lei to 22,000,000 lei for violations of the provisions of art. 14 and 15 of Regulation (EU) no. 596/2014, when the deeds are committed without the form of guilt required by law to be qualified as crimes;
    (ii) fine from 3,000 lei to 4,500,000 lei for violations of the provisions of art. 16 and 17 of Regulation (EU) no. 596/2014; and
    (iii) fine from 1,000 lei to 2,200,000 lei for violations of the provisions of art. 18, 19 and 20 of Regulation (EU) no. 596/2014; and
c) for legal persons, fines as follows:
    (i) a fine from 20,000 lei to 66,000,000 lei or 15% of the total annual turnover of the legal entity according to the latest available financial statements approved by the management body for violations of the provisions of art. 14 and 15 of Regulation (EU) no. 596/2014, when the deeds are committed without the form of guilt required by law to be qualified as crimes;
     (ii) a fine from 10,000 lei to 11,000,000 lei or 2% of the total annual turnover according to the latest available financial statements approved by the management body, for violations of the provisions of art. 16 and 17 of Regulation (EU) no. 596/2014; and
     (iii) fine from 7,000 lei to 4,500,000 lei for violations of the provisions of art. 18, 19 and 20 of Regulation (EU) no. 596/2014.
(4) In the case of the violations provided in art. 30 para. (1) lit. b) of Regulation (EU) no. 596/2014, A.S.F. may apply the following sanctions and administrative measures:
    a) the sanctions and measures provided in art. 30 para. (2) lit. a), c) -e) and g) of Regulation (EU) no. 596/2014; the provisions of par. (3) lit. a) the second sentence is applied accordingly;
    b) for individuals, warning or fine from 1,000 lei to 2,000,000 lei;
    c) for legal entities, warning or fine from 7,000 lei to 4,000,000 lei.
(5) In case of application of the sanctions provided in par. (3) lit. c) points (i) and (ii) the provisions of art. 30 para. (2) the last paragraph of Regulation (EU) no. 596/2014 shall apply accordingly.
(6) In making a decision on the type and level of sanctions and administrative measures applied under this article, the A.S.F. takes into account all relevant circumstances, in accordance with the provisions of art. 31 of Regulation (EU) no. 596/2014.
(7) A.S.F. publish any decision imposing a contravention sanction or administrative measure applied according to this article, in accordance with the provisions of art. 34 of Regulation (EU) no. 596/2014.

 

3. Law no. 126/2018 on the markets for financial instruments

TITLE X - Sanctions and administrative measures
Section 253. - (1) A.S.F. publish on its website, without delay, any decision imposing a sanction or administrative measure in accordance with the provisions of this title, after the person to whom the sanction was imposed has been informed of that decision.
(2) The publication of the decision provided in par. (1) shall contain at least information on the type and nature of the breach and the identity of the persons responsible.
(3) The obligation provided in par. (1) shall not apply to decisions imposing measures relating to an investigation.
(4) By exception from the provisions of par. (1), if the publication of the identity of legal persons or personal data of natural persons is considered by the A.S.F. as disproportionate, as a result of a case-by-case assessment of the proportionality of the publication of such data, or where the publication jeopardizes the stability of financial markets or an ongoing investigation, A.S.F .:
a) postpones publication

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

CHAPTER X - Provisions applicable to financial investment services companies
Art. 278. - (1) The following provisions of this emergency ordinance shall apply accordingly to financial investment service companies and investment management companies whose object of activity is the management of individual investment portfolios under the conditions provided in the following articles. :
a) section 2 of chap. I of Title I, Part I;
b) art. 24 and art. 241 title I, chap. II, section 2 point 2.1;
c) art. 106 of title II, chap. I;
d) art. 121, sections 1-8 and art. 150 para. (1) lit. b) and c) of section 9 of chap. III of Title II, Part I;
e) art. 1521, art. 163-1691, art. 171, 173, 1732, 1734, 174 and chap. II and V of Title III, Part I;
f) art. 210-211, art. 214-229, art. 234 - 2342 of Title III, Part I.
(2) The provisions of chap. Are duly applicable to the Financial Supervisory Authority. VI of Title III, Part I.
(3) The Financial Supervisory Authority establishes by regulations the attributions of the board of directors and of the directors or, as the case may be, of the supervisory board and of the management of a financial investment services company, in order to comply with the provisions of this emergency ordinance. ) no. 575/2013, as well as of the regulations issued in their application.
Art. 234. - (…) (4) The National Bank of Romania shall publish, immediately, on its official website, the sanctions applied according to the provisions of art. 229 para. (1) which were not contested under the conditions of art. 275 and those in respect of which the appeals were definitively rejected, as well as information on the type and nature of the violation committed and the identity of the sanctioned natural or legal person, after he was informed about the application of the sanction.
(5) The National Bank of Romania publishes the sanctions without indicating the identity of the entities involved, in any of the following circumstances:
a) in the situation where the sanction is applied to a natural person and, following a previous obligatory evaluation, it is proved that the publication of personal data is disproportionate in relation to the sanctioned deed;
b) if the publication would jeopardize the stability of the financial markets or an ongoing criminal investigation;
c) in case the publication would cause a disproportionate damage to the persons involved.
(6) If the circumstances provided in par. (5) may cease within a reasonable time, the National Bank of Romania may postpone the publication of the sanctions until the circumstances cease.
(7) The information published according to par. (4) or (5) are kept by the National Bank of Romania on its official website for a period of at least 5 years. Personal data are kept on the official website of the National Bank of Romania only for as long as necessary, in compliance with the provisions of Law no. 677/2001, with subsequent amendments and completions.

Art. 284. - (1) The Financial Supervisory Authority is competent to dispose to a financial investment services company or to the responsible persons, who violate the provisions of this emergency ordinance, of Regulation (EU) no. 575/2013 and of the regulations issued in their application or do not comply with the formulated recommendations, the necessary measures and / or to apply sanctions, in order to eliminate the deficiencies and their causes.

5. Law no. 74/2015 regarding the managers of alternative investment funds
Article 52. - (5) A.S.F. make public any sanction or administrative measure imposed for non-compliance with the provisions of this law and the regulations adopted in its application, unless such publication risks seriously disrupting financial markets, harming the interests of investors or causing disproportionate harm to the parties concerned .

6. Law no. 243/2019 on the regulation of alternative investment funds and for the amendment and completion of some normative acts

Art. 74. - (1) The commission of the contraventions provided in art. 73 para. (2) lit. a) -l) shall be sanctioned as follows:
a) with warning or fine from 1,000 lei to 50,000 lei, for natural persons;
b) with a warning or a fine from 0.1% to 5% of the net turnover achieved in the financial year prior to the sanction, depending on the gravity of the committed deed, for legal entities.
(2) Committing the contraventions provided in art. 73 para. (2) lit. m) is sanctioned according to art. 127 para. (1) lit. c) point 2 or point 3, as the case may be, of Law no. 24/2017.
(3) If the turnover achieved in the financial year prior to the sanction is not available on the date of the sanction, the net turnover of the financial year in which the legal entity registered the turnover, year immediately preceding the reference year, shall be taken into account. . The reference year means the year prior to the sanction.
(4) By derogation from the provisions of art. 8 para. (2) of Government Ordinance no. 2/2001 regarding the legal regime of contraventions, approved with modifications and completions by Law no. 180/2002, with subsequent amendments and completions, hereinafter referred to as Government Ordinance no. 2/2001, in the case of the newly established legal entity and which did not register the turnover in the year prior to the sanction, it is sanctioned with a fine from 10,000 lei to 1,000,000 lei.
(5) Depending on the gravity of the deed, for committing the contraventions provided in art. 73 para. (2), A.S.F. may apply the following complementary sanctions:
a) suspension of the authorization;
b) withdrawal of the authorization;
c) the prohibition for a period between 90 days and 5 years of the right to hold a position, to carry out an activity or to provide a service for which the authorization by the A.S.F. under the conditions of this law.
(6) A.S.F. is entitled to suspend members of the board of directors / supervisory board / board of directors, managers, persons responsible for risk management and / or compliance officers of the A.F.I.A. or to request the introduction on the agenda of the A.G.A. of the proposal to revoke the members of the board of directors / supervisory board / directorate of the F.I.A. administered internally and the appointment of other persons in their place, as the case may be, in the event that these persons are found to be prejudicial to the administration of the F.I.A. authorized by the A.S.F., through the influence exercised in the administration of these entities as a result of holding a qualified participation within the A.F.I.A., defined in art. 3 point 32 of Law no. 74/2015, with subsequent amendments and completions.
(7) Depending on the nature and gravity of the deed, in case of committing the contraventions provided in art. 73 para. (2), A.S.F. may apply administrative measures, such as:
a) a public statement indicating the person responsible for the violation and the nature of the violation of the legal provisions;
b) a decision requiring the person responsible for the infringement to put an end to that conduct and to refrain from repeating it;
c) other warning measures and / or in order to prevent or remedy situations of non-compliance with legal provisions, according to the regulations of the A.S.F.
(8) The main contravention sanctions provided in par. (1) or (2) may be applied cumulatively with one or more complementary contravention sanctions provided in par. (5).
(9) The administrative measures provided in par. (7) may be applied together with the main or complementary sanctions provided in par. (1), (2) and (5).
(10) In case of finding the commission of two or more contraventions, the fine provided for the most serious contravention shall be applied, by derogation from the provisions of art. 10 para. (2) of Government Ordinance no. 2/2001.
(11) A.S.F. makes public on its website any administrative measure or sanction imposed for non-compliance with the provisions of this law and the regulations adopted in its application. The personal data contained in the publication is kept on the website of the A.S.F. in compliance with the legal regulations regarding the protection of personal data, for a period established by the regulations of the A.S.F., in compliance with the provisions of Regulation (EU) no. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46 / EC (General Data Protection Regulation) , hereinafter referred to as Regulation (EU) no. 679/2016, as well as other legal provisions in force in the field of personal data protection.

(12) By exception from the provisions of par. (11), if the publication of the identity of legal persons or personal data of natural persons is considered by the A.S.F. as disproportionate, as a result of a case-by-case assessment of the proportionality of the publication of such information, or where the publication jeopardizes the stability of financial markets or an ongoing investigation, the A.S.F. may adopt at least one of the following administrative measures:
a) postponement of the publication of the individual act imposing the sanction or administrative measure until the reasons for non-publication cease;
b) the publication of the individual act imposing the sanction or administrative measure without indicating the identity of the legal persons or the personal data of the natural persons, by pseudonymization, provided that this publication ensures an effective protection of the personal data in question;
c) non-publication of the individual act of imposing an administrative sanction or measure, in case the options provided in let. a) and b) are considered insufficient to ensure:
1. that the stability of financial markets is not jeopardized;
2. that the proportionality of the publication of such decisions is guaranteed in cases where those measures are considered to be of a minor nature.
(13) In the case of a decision to publish the sanction or administrative measure without indicating the identity of the legal persons or the personal data of the natural persons, the A.S.F. may postpone the publication of the relevant data for a reasonable period of time if it is expected that the reasons for such publication will cease to be valid during that period.
(14) A.S.F. informs ESMA about the sanctions and administrative measures applied based on the provisions of this law, if the reporting is a legal requirement established by Law no. 74/2015, with subsequent amendments and completions.
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