Emergency Ordinance No. 94/2013 for the amendment and supplementation of GEO No. 93/2012

Emergency Ordinance No. 94/2013 for the amendment and supplementation of GEO No. 93/2012 on the establishment, organization and operation of the Financial Supervisory Authority, and for the amendment and supplementation of Law No. 136/1995 regarding insurance and reinsurance

Published in the Official Journal, Part I No. 643 of 18/10/2013

Given the legislative and institutional commitments undertaken by the Financial Supervisory Authority (ASF) before the International Monetary Fund and the representatives of the European Authority, aiming at amending in a timely manner Government Emergency Ordinance No. 93/2012 on the establishment, organization and operation of the Financial Supervisory Authority, approved as amended and supplemented by Law No. 113/2013, as subsequently amended and supplemented, for harmonization with international best practices,

given the recommendations of the International Monetary Fund and of the European Commission to reduce the number of members of the ASF Board from 11 to 9, to establish the minimum professional qualification required of the ASF Board members, to establish the ASF personnel and to insert concrete provisions providing the regime of incompatibilities and conflict of interest, both for the ASF Board members and the ASF employees,

 to comply with the corporate governance criteria and to enhance institutional transparency and public communication,

whereas the matters at issue are of exceptional nature, and their regulation may not be postponed because it would mean the breach of the deadlines assumed by Romania in its negotiations with international bodies,

pursuant to Art. 115 Para (4) of the Constitution of Romania, republished,

the Government of Romania hereby adopts this emergency ordinance.

Art. I. - Government Emergency Ordinance No. 93/2012 on the establishment, organization and operation of the Financial Supervisory Authority, published in the Official Journal of Romania, Part. I, No. 874 of 21 December 2012, approved as amended and supplemented by Law No. 113/2013, as subsequently amended and supplemented, is hereby amended and supplemented as follows:

1.    Under Article 1, after paragraph (3), a new paragraph, paragraph (31) is hereby inserted, which shall read as follows:

“(31) The legal provisions on budgetary restrictions of any kind applicable to the National Bank of Romania, shall also apply to the Financial Supervisory Authority.”

2.    After article 4, a new article, article 41, is hereby inserted, which shall read as follows:

“Art. 41. – Any draft normative act of central public authorities, except those initiated by members of Parliament, which refers to FSA and the fields in which it is competent, shall be adopted after requesting ASF’s approval. The approval shall be sent within 15 days from the request."

3.    Under article 7, after paragraph (2) a new paragraph, paragraph (3), is hereby inserted, which shall read as follows:

“(3) ASF holds standing to sue and may intervene in any lawsuit regarding the rules adopted or the individual acts issued by it, and in any lawsuit against regulated entities or persons that have a legal relationship therewith, either directly or indirectly, when such action is necessary to protect the interests of investors, policyholders, beneficiaries of private pension funds and to ensure financial stability.”

4.    Under article 8, paragraphs (1) and (3) are hereby amended and shall read as follows:

“(1) The ASF shall be managed by a Board formed of 9 members, of which one president, one first vice president and 3 vice presidents, who shall be executive members. Each of the 3 vice presidents shall have specific duties corresponding to one of the 3 sectors of financial supervision. The Resolution of the Parliament of Romania for the appointment thereof shall lay down the financial supervision sector to which they are designated. The other 4 members shall be non-executive members.

(3) The joint committees provided under Para (2) shall select the candidates to be appointed members of the ASF Board.”

5.    Under article 9, letters a1) and g) are hereby amended and shall read as follows:

"a1) to have graduated from long-term higher education, attested by a bachelor’s degree;

 

g) not to be spouses, relatives or affines up the third degree with the President of Romania, members of the permanent offices of the two Chambers of the Parliament, members of Government or the Board of Directors of the National Bank of Romania.

6.    Under article 9, after letter a1), a new letter, letter a2), is hereby inserted, which shall read as follows:

" a2) to have professional experience in the financial field, in the field of credit institutions and/or non-banking financial institutions, of minimum 9 years from the graduation of the education stipulated under letter a1);".

7.    Under article 9, after paragraph (1), a new paragraph, paragraph (2), is hereby inserted, which shall read as follows:

"(2) The 4 committees provided under Art. 8 Para (2) shall verify the compliance with the conditions stipulated under Para (1)."

 

8.    After article 17, two new articles, articles 171 and 172, are hereby inserted, which shall read as follows:

"Art. 171. - (1) The ASF employees must fulfil the following conditions:

a) not to be members of the boards of administration, supervisory boards, directorates or censor committees, not to fill positions of managers or otherwise and not to render services to/for the following entities, except for the Insurance Management Institute:

1. entities focusing on the activity of financial instrument intermediaries and undertakings for collective investment;

2. investment management undertakings;

3. entities focusing on the activity of insurers, reinsurers, insurance and reinsurance intermediaries and other related activities;

4. entities focusing on the private pension system, according to Law No. 411/2004 on the privately managed pension funds, republished, as subsequently amended and supplemented, and Law No. 204/2006 on voluntary pensions, as subsequently amended and supplemented;

5. financial investment undertakings.

b) not to hold, either they and/or their family members up to the second degree inclusively, directly or indirectly, more than 5% of the capital of the entities provided under letter a) or of the voting rights or a participation enabling significant influence over the decisions made in the general assembly or the board of administration of such entities. In this respect, a personal transaction log shall be prepared at FSA where the FSA employees must record the participations held;

c) not to fill management positions in the management structures or bodies, either elected or appointed, of political parties defined according to their statute of organizations enjoying the same legal regime as political parties, or of foundations or associations acting alongside political parties.

(2) The persons to whom one of the cases provided under Para (1) letters a) and b) apply shall chose from the capacities that generated their occurrence, within 30 days from the occurrence of the state of incompatibility.

Art. 172. - (1) The ASF employees may run for a position in an executive, legislative or judiciary authority.

(2) Throughout the period when an ASF employee runs for a position in an executive, legislative or judiciary authority, at the employee’s request, the individual labour agreement may be suspended according to law."

9.    Under article 19, paragraph (2) is hereby amended, which shall read as follows:

“(2) The excess of the income and expenditure budget recorded at the end of the year shall be carried forward to the following year and may be used to finance any deficits recorded by the ASF.”

 

10.  After article 21, four new articles, articles 211-214, are hereby inserted, which shall read as follows:

“Art. 211. – Only the commercial operations carried out by the ASF that are recorded in the income and expenditure budget and the annual financial statements shall be subject to the subsequent control of the Court of Accounts.

Art. 212. - (1) The breach of the provisions hereof, of the legislation regulating the activity of entities regulated and/or supervised by the FSA and of the regulations and individual acts issued for the application thereof shall be established by the FSA, further to a permanent inspection exercised by the specialized directorates, either periodically or unannounced.

(2) The ASF Board shall decide upon the conduct of periodic inspections.

(3) The ASF President shall decide upon the conduct of unannounced inspections. The ASF President may initiate inspections ex officio or at the request of any of the 3 vice presidents provided under Art. 8 Para (1), based on the President’s prior notification.

(4) The ASF Board may apply sanctions according to special legislation in the field and/or may order measures to prevent or remedy any breaches of the legal provisions found on the occasion of the inspection.

 

(5) The ASF’s specialized directorates shall follow-up on the application of the sanctions and/or measures provided under Para (4).

(6) After a period or unannounced inspection, a minutes shall be drawn up.

(7) The entity subject to the inspection may file objections to the minutes provided under Para (6) within the terms set out by ASF regulations.

(8) The procedure regarding the inspection activity conducted by the FSA shall be established by the ASF by regulation.

Art. 213. – Decisions and any other administrative acts issued by the ASF are subject to challenge according to Law No. 554/2004 on administrative disputes, as subsequently amended and supplemented.

 

Art. 214. – The minor offences provided in the legislation regulating the ASF activity shall be prescribed within 3 years from the deed.”

Art. II. – Persons who, on the entering into force hereof, are in any of the cases provided under Art. 171 Para (1) letters a) and b) of Government Emergency Ordinance No. 93/2012 on the establishment, organization and operation of the Financial Supervisory Authority, published in the Official Journal of Romania, Part. I, No. 874 of 21 December 2012, approved as amended and supplemented by Law No. 113/2013, as subsequently amended and supplemented, and with the amendments and supplementations brought by this emergency ordinance, shall chose from the capacities that generated the arising of such case, within 30 days from the occurrence thereof.

Art. III. – The appointment of the members of the Board of the Financial Supervisory Authority, under the number provided under Art. 8 Para (1) of Government Emergency Ordinance No. 93/2012 on the establishment, organization and operation of the Financial Supervisory Authority, published in the Official Journal of Romania, Part. I, No. 874 of 21 December 2012, approved as amended and supplemented by Law No. 113/2013, as subsequently amended and supplemented, and in observance of the appointment conditions, as modified hereby, shall be performed by the Parliament, within 15 days from the entering into force hereof.

Art. IV. – The total 718 positions existing on 30 April 2013 shall be reduced to maximum 609 positions, after applying a 15% reduction laid down on the establishment of the Financial Supervisory Authority.

Art. V. – The provisions of Art. IV shall become applicable within 90 days from the entering into force hereof.

 

Art. VI. - Government Emergency Ordinance No. 93/2012 on the establishment, organization and operation of the Financial Supervisory Authority, published in the Official Journal of Romania, Part. I, No. 874 of 21 December 2012, approved as amended and supplemented by Law No. 113/2013, as subsequently amended and supplemented, and with the amendments and supplementations brought by this emergency ordinance, shall be republished in the Official Journal of Romania, Part I, after its approval by law, and the texts shall be renumbered.

Art. VII. – Law No. 136/1995 on insurances and reinsurances in Romania, published in the Official Journal of Romania, Part. I, No. 303 of 30 December 1995, as subsequently amended and supplemented, is hereby amended and shall read as follows:

1. Under article 63 paragraph 2, the introductory part is hereby amended and shall read as follows:

“(2) The minor offences provided under Para 1 shall be acknowledged and sanctioned as follows:”.

2. Under article 63, after paragraph 2, a new paragraph, paragraph 21, is hereby inserted, which shall read as follows:

“(21) The minor offences shall be acknowledged by the Financial Supervisory Authority in accordance with the procedure stipulated by Law No. 32/2000 on the insurance activity and supervision of insurers, as subsequently amended and supplemented."

 

 

 

 

PRIME MINISTER

VICTOR-VIOREL PONTA

 

Countersigns:

 

Vice Prime Minister, the Minister of Public Finance, 

Daniel Chiţoiu

 

Minister delegate for budget, 

Liviu Voinea

Bucharest, 16 October 2013

No. 94

 


16/02/2021
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