LAW
the banking law no. 58 of 1998
CHAPTER
I
General provisions
Section
1
Field of operation
Art.
1. - Banking activities in Romania shall be carried on through the National
Bank of Romania and through banks.
The
carrying on of banking activities also by other juristic persons may be
authorized by law, with observance of the principles under the present law.
Art.
2. - The present law shall operate on banks which are Romanian juristic persons
constituted as trading companies as well as on branches in Romania of the banks
constituted as foreign juristic persons.
The
provisions under chapter X of the present law shall also operate on juristic
persons carrying out interbanking funds transfers.
Section
2
Definitions
Art.
3. - In the meaning under the present law, the terms and phrases farther down
shall have the following significations:
a)
The National Bank of Romania - the central bank of the Romanian state, having
legal personality; its powers are those provided under the Law on the Status of
the National Bank of Romania and under the present law;
b)
bank - a juristic person authorized mainly to carry out activities of
attraction of deposits and granting of credits in its own name and on its own
account;
c)
subsidiary - a juristic person in which another person or group of persons
acting together hold fifty-per-cent or more of the shares with voting right or
a significant participation, enabling them to exercise an effective control
over the management or policies of the subsidiary;
d)
branch - a bank's operational establishment without legal personality directly
carrying out all or some of the bank's activities, within the limits of the
mandate given by it;
e)
affiliate of a bank - a subsidiary of the respective bank or a trading company
for which the bank is a subsidiary, or a trading company which, together with
the respective bank, are under the common control of another trading company;
f)
deposit - a sum of money entrusted under the following conditions:
-
that it be reimbursed in totality, with or without interest or any other
facilities, on request or at a term agreed by the depositor with the
depositary;
-
that it should not refer to the transmission of property, to the provision of
services, or to the granting of guarantees;
g)
credit - any engagement for the payment of a sum of money in exchange of the
right to reimbursement of the sum paid as well as to the payment of interest or
other expenses linked to this sum or any extension of the date of payment of a
debt and any engagement to acquire a title embodying a debt or another right to
the payment of a sum of money.
From
the point of view of the date of payment, the credit may be:
-
on short term, whose reimbursement duration does not exceed twelve months;
-
on medium term, whose reimbursement duration is from one to five years;
-
on long term, whose reimbursement duration exceeds five years;
h)
managers of the bank - the no less than two persons, who, according to the
constitutive deeds and/or the resolution of the statutory bodies of the bank,
are empowered to manage and co-ordinate its daily activities, and are invested
with the competence to engage the bank's responsibility. These are the
president and vice-president(s) of the Managing board, in the case of banks
which are Romanian juristic persons, and the directors empowered lawfully to
engage in Romania the foreign bank authorized to operate in Romania's
territory, through a branch;
i)
significant shareholder - a person holding at least five-per-cent of the shares
of a bank;
j)
person - the juristic or natural person and any group of persons acting
together and which constitute or do not a juristic person;
k)
group of persons acting together - two or more persons having concluded an
agreement with a view to getting or exercising the voting rights with a view to
carrying out a common policy towards the bank.
An
agreement shall be considered to exist:
a.
between
man and wife, relatives, and up to twice-removed in-laws inclusive as well as
b.
between
these and the companies effectively under their control;
c.
between
a company, the president of the Managing board, and its managers;
d.
between
a company and the companies on which it directly or indirectly holds the
effective control power;
e.
between
companies under the effective control of the same person(s);
l)
company under effective control - a company in which a natural or juristic
person:
holds
at least fifty-per-cent of the voting rights;
has
the right to appoint or replace the majority of the members of the Managing
board;
may
decide on the financial-and-banking policy and management on the basis of an
agreement concluded with other shareholders or partners;
m)
authorization - a deed issued by the National Bank of Romania granting the
right to carry on the activities specified in it;
n)
regulation - a statutory instrument issued by the National Bank of Romania in
application of the present law and which is compulsory for all the banks. In
this class are included: rules and regulations, norms, circular letters and
other deeds with a general character issued by the National Bank of Romania;
o)
order - an instrument issued by the National Bank of Romania in application of
the present law or of a regulation issued on the basis of the present law and
which is mandatory for one or more banks;
p)
capital - net assets' value calculated as the difference between total assets,
and liabilities representing obligations made evident in the balance sheet in
keeping with the regulations of the National Bank of Romania. When first set
up, this represents the registered capital;
r)
own funds - a bank's own funds, whose calculation method and minimum level are
established by the National Bank of Romania;
s)
credit documentation - documentation underlying an agreement between a bank and
another person for the granting of a credit, and including at least:
-
current financial statements of the credit applicant and of any of his or her
guarantors, the projection of the financial flows for the reimbursement period
of the credit and payment of interest inclusive;
-
a description of the guaranteeing modalities for the integral payment of the
debt, and an assessment of the value of the goods forming the object of the
guarantee;
-
a description of the conditions of the credit, including the value of the
credit, interest rate, reimbursement schedule and debtor's objective or purpose
which the credit was applied for;
-
signature of every person having authorized the credit in the bank's name;
t)
remedy measures - measures for the removal of the consequences of one or some
of the deeds provided under Art. 69, and which may include:
-
establishment of a plan for increasing the bank's own funds;
-
setting up by the bank's Managing board of committees for the supervision of
the credit's administration, management of the assets and liabilities, or of
the internal check and auditing;
-
suspension of the managers over a period not exceeding one year or their
replacement;
-
replacement of the executive directors and of the auditors;
-
improvement of the internal check and auditing measures;
u)
a single debtor - any person or group of natural and/or juristic persons
towards which the bank has an outstanding credit and which are economically
linked among themselves in the sense that:
1.
one of
the persons, directly or indirectly, exercises on the others a power of
control;
2.
the
cumulated level of the loans granted represents a single credit risk for the
bank, since the persons are linked to such an extent that, if some of them
should face difficulties of reimbursement, another or the others would face
similar difficulties. In the case of these persons, the following situations
will be taken into consideration, this being an unlimitative enumeration:
3.
they
are subsidiaries of the same person;
4.
they
have the same management;
5.
they
have crossed guarantees;
6.
they
have direct commercial interdependence, which is not susceptible of short term
substitution;
v)
outstanding credit - any engagement assumed by a bank towards a single debtor,
regardless of whether it is effective or potential, in or outside the balance
sheet, without being restricted to these:
credits;
1)
discounted
mercantile bills;
2)
investments
in shares and other transferable securities;
3)
mercantile
bills endorsed as guarantee;
4)
issued
guarantees;
5)
open
or confirmed letters of credit;
x)
prudential banking supervision - the establishment of norms and indicators for
banking prudence and the following up of their observance for the purpose of
preventing and limiting banking risks and thereby ensuring the stability and
viability of the whole banking system.
Section 3
Interdictions
Art.
4. - Any person shall be prohibited from carrying out banking activities in
Romania's territory without an authorization issued by the National Bank of
Romania.
Art.
5. - Any person lacking an authorization issued by the National Bank of Romania
shall be prohibited from using the name of bank or derivatives of the name of
bank, in connection with an activity, a product, or a service, except the case
in which this use is established or recognized by law or by an international
agreement, or when, from the context in which the name bank is used it
undoubtedly follows that it is not a question of banking activities.
Art. 6. -
Any foreign bank shall be prohibited from engaging directly in banking
activities in Romania, except the case in which the activities are carried out
through a subsidiary constituted as a. bank, Romanian juristic person, or
through a branch for which an authorization has been issued by the National
Bank of Romania.
Art. 7. -
Any person, other than a bank or company authorized according to the law, shall
be prohibited from engaging in activities of acceptation of deposits.
CHAPTER II
Permitted banking activities
Art. 8. -
Banks, which are Romanian juristic persons, and branches of foreign banks shall
be permitted, within the limits of the granted authorization, to carry out the
following activities:
a)
acceptance
of deposits;
b)
contracting of credits, factoring operations and mercantile bills discounting,
agreed ones inclusive;
c) issue
and management of credit and payment instruments;
d) payments and settlements of accounts;
e)
financial leasing;
f)
transfers of funds;
g)
issues of guarantees and assumption of engagements;
h)
transactions on their own account or on account of their clients with:
negotiable monetary instruments (cheques, bills of
exchange, deposit certificates);
foreign currency;
derived financial instruments;
precious metals, objects made from them, precious
stones;
transferable securities;
i) intermediation in the placement of transferable
securities and offer of services in connection therewith;
j)
administration of clients' portfolios, in their name and at their risk;
k)
custody and administration of transferable securities;
l)
depositary for transferable securities collective placement bodies;
m)
leasing of strongboxes;
n)
financial-and-banking consulting;
o)
mandate operations.
Banks
may carry on the activities provided under the legislation on transferable
securities and stock exchanges through distinct companies specific to the
capital market, functioning under the regulation and supervision of the
National Commission on Transferable Securities, except activities which,
according to this legislation, may be carried on directly by the banks.
Financial
leasing operations shall be carried on by the banks through distinct companies
constituted to this end.
CHAPTER III
Authorization of banks
Art. 9. - Banks which are Romanian juristic persons
may function only on the basis of an authorization issued by the National Bank
of Romania. They shall be constituted in the juridical form of a trading
company by shares, on the basis of the approval of the National Bank of
Romania, with observance of the legal provisions in force, applicable to
trading companies.
The
provisions of the preceding paragraph shall also correspondingly apply in the
case of the banks' branches which are foreign juristic persons.
Art. 10. - Foreign banks shall be under an obligation
to notify the National Bank of Romania on the opening of representations in
Romania conformably to its regulations.
The
representations of foreign banks shall limit their activity to acts of
information, connection, or representation, and shall not carry on operations
of any kind subject to the provisions of the present law.
Art. 11. - The application for an authorization shall
be forwarded to the National Bank of Romania in the form established by it. The
documentation that must attend the application, terms and authorization
procedure shall be established by the regulations of the National Bank of
Romania.
The
conditions under which the authorization may be granted shall be regulated by
the National Bank of Romania, and shall refer, without being limitative, to:
a)
the professional experience and qualification of the bank's managers;
b)
the minimum level of the subscribed registered capital, which has to be paid in
form of cash, in totality, at the moment of the setting up;
c)
the feasibility study of the bank;
d)
the founders and significant shareholders of the bank;
e)
structure of the shareholders body;
f)
head office of the bank;
g)
the independent auditor as provided under Art. 61.
Art. 12. - The National Bank of Romania may request an
applicant to present any supplementary documents and information if the
presented ones are incomplete or insufficient.
Art. 13. - Within not more than four months after the
application was received, the National Bank of Romania shall approve the
constitution of a bank or reject the application and shall communicate in
writing to the applicant its decision, together with the motives underlying it,
in case the application is rejected.
Documents
attesting the legal constitution of the bank shall be presented to the National
Bank of Romania within two months after the communication of the constitution
approval with a view to the granting of the functioning authorization. In the
case of banks constituted by way of public subscription, the presentation term
of these documents shall be of eight months.
The
National Bank of Romania shall decide with regard to the functioning
authorization of a bank within not more than four months after receiving the
documents provided under para. 2.
Art. 14. - The authorization application shall be
rejected if:
a)
the documentation presented is incomplete or is not drawn up conformably to the
legal provisions in force;
b)
the documentation presented is insufficient to determine whether:
1.
the bank will carry on an activity in accordance with the provisions of
the present law;
2. the
honourableness, professional experience and training of the bank's heads and
the quality of the significant shareholders are adequate to the realization of
the objectives provided in the feasibility study and to the
financial-and-banking activities proposed to be carried on;
c) the registered capital is smaller than the minimum
level established by the National Bank of Romania;
d)
the juridical form is different from that provided under Art. 9;
e)
from an evaluation of the feasibility study and/or from the yearly reports of
the foreign bank, as the case may be, it follows that the bank cannot assure
the realization of the objectives proposed under conditions compatible with a
good functioning of the banking system and with the rules of a prudent banking
practice providing the clients with a satisfactory surety, or these fail to
correspond to the conditions existing within the framework of the market
segment which is to be covered by the services supplied by the bank;
f)
the heads of the bank, its managers, or auditors have not the necessary
honourableness, professional experience and qualification adequate to the
function, according to Art. 25, or with regard to whom one of the measures
provided under Art. 69 or 70 was taken;
g) the quality of the founders or of the significant
shareholders falls short of the need of a guaranteed sound and prudent
management of the bank, for causes such as would be that:
their financial power is not sufficient for avoiding
the dependence on the distributed dividends or on other advantages that could
be obtained from the bank with a view to the satisfaction of their financial
obligations in the first three years of the bank's activity;
the source of the funds used for obtaining the
participation is an internal credit;
criminal sentences;
the juristic persons having the quality of founders or
significant shareholders have a length of time in function of less than three
years;
h) before obtaining the approval of constitution, the
founders have made public communications on the founding or functioning of the
bank;
i) the provisions under the present law or the
regulations given in their application are not observed.
Art. 15. - The provisions under articles 11-14 shall
also apply correspondingly in the case of the branches of foreign banks, the
authorization application being forwarded to the National Bank of Romania by
the respective foreign bank.
CHAPTER IV
Withdrawal of authorization
Art. 16. - The National Bank of Romania may withdraw the authorization of a Romanian bank or subsidiary, or a subsidiary or branch of a foreign bank:
1. at the
request of the bank;
2. as a
sanction, according to Art. 69 para. 2 letter e);
3. on the
basis of one of the following grounds:
a) the bank has not started the operations for which
it has been authorized, within a year after the authorization was received, or
it has not exercised the activity of accepting deposits for more than six
months;
b)
the authorization was obtained on the basis of false statements or by any other
unlawful means;
c)
the shareholders have decided to dissolve and wind up the bank
d)
a merger or a division of the bank has taken place;
e)
the competent authority from the country where the foreign bank has its head
office, and which has set up a branch in Romania, has withdrawn its
authorization to carry on banking activities;
f)
the authorization of the bank, whose subsidiary it is, has been withdrawn.
Art. 17. - The decision of the National Bank of
Romania to withdraw the authorization shall be notified in writing to the bank,
subsidiary, or branch in question, together with the reasons on which it was
based, and it shall be published in the "Monitorul Oficial" (Official
Gazette of Romania), Part I, as well as in two publications of national
circulation.
The
withdrawal decision of the authorization shall produce effects after the date
of its publication in the "Monitorul Oficial" (Official Gazette of
Romania) or after a subsequent date specified in the respective decision.
Art. 18. - The bank, subsidiary, or branch shall be
prohibited to engage in any financial operation as from the date of coming into
force of the withdrawal decision of the authorization.
CHAPTER
V
Merger and division of banks
Art. 19. - The merger or division of banks shall be
carried into effect according to the legal provisions as well as with observance
of the regulations of the National Bank of Romania.
Art. 20. - The merger of two or more banks or the
division of a bank shall be decided by each bank according to its own statute.
Before beginning to operate, the bank or banks resulting from the merger or
division shall be under an obligation to obtain the authorization of the
National Bank of Romania.
CHAPTER
VI
Organization and management of banks
Art. 21. - The organization and management of the
banks shall be established by their constitutive deeds in conformity with the
commercial legislation and with observance of the provisions under the present
law,
Art. 22. - In all its official papers, the bank shall
have to identify itself clearly by a minimum of data: the trade name under
which the bank is incorporated with the trade register, the registered capital,
the address of the head office, number and data of incorporation with the trade
register, number and date of registration in the banking register.
Art. 23. - The bank shall be engaged by the signature
of at least two of its heads, having competencies established by the bank's own
constitutive deeds, or by at least two persons empowered by them, in accordance
with the bank's own regulations and with the regulations issued by the National
Bank of Romania in this sense.
Art. 24. - Each bank shall have its own functioning
regulations, approved by the statutory bodies, establishing at least:
a)
the organizational structure of the bank;
b)
the powers of the bank's compartments and relations existing between them;
c)
the powers of the branches and of other secondary seats of the bank;
d)
the powers of the risk committee, of the assets and liabilities administration
committee, of the credits committee, whose setting up is compulsory in the
carrying on of the bank's activity;
e)
the competences and responsibility of the heads and of the bank's executive
directors, of the chief executives of the branches and other secondary seats of
the bank, and of other employees embarking upon banking-and-financial
operations in the bank's name and on its account;
f)
the bank's internal check system.
Art. 25. - The heads of the bank shall be resident in
Romania, shall exercise exclusively the function to which they were appointed,
and at least one of them shall have Romanian citizenship. They must hold a
university degree, and have a length of time of five years in
banking-and-financial activities.
Through their activity, they shall not have caused the
bankruptcy of a trading company.
Persons
designated as heads of a bank shall have to ~e approved by the National Bank of
Romania before starting to exercise the function.
The
National Bank of Romania may also establish other ethical and professional
rules and norms for the quality and activity of the banking personnel.
Art. 26. - In case that the bank's Managing board
should delegate part of its competencies to a committee of management,
according to the law, all managers of the bank shall belong to it.
In this case, the president of the Managing board shall also conduct the
committee of management.
Art. 27. - Managers of the bank shall be only natural
persons. Their number shall not exceed eleven. The term of their mandate shall
not be longer than four years, with a possibility of their being reelected.
In
addition to the conditions provided under the legislation in force with
reference to managers, a person shall not be elected to the Managing board of a
bank, or lose the mandate if elected, when:
a)
he or she is an employee of the bank in question, except its managers;
b)
he or she is an employee, manager, or auditor in another bank; except the
employees and managers of a bank, in case they are elected managers in a
subsidiary of the bank;
c)
his or her approval by the National Bank of Romania was withdrawn, according to
Art. 69, in the last five years, or replaced, according to Art. 70, as a result
of a remediation measure taken by the bank.
Art. 28. - Auditors of a bank shall be only natural
persons having the capacity of expert or authorized accountant, with university
degree, under the conditions of law, and an experience of at least five years
in the banking-and-financial field as well as audit companies authorized to
carry on this activity in Romania' s territory.
Persons
who, according to Art. 70 under the present law, were replaced during the last
five years as a result of a remediation measure taken by a bank, cannot be
auditors of a bank.
CHAPTER VII
The conflict of interests
Art. 29. - The manager shall notify the bank in
writing on the nature and extent of his or her material relation or interest,
if he or she:
a)
is party to a contract with the bank;
b)
is manager of a juristic person that is party to a contract with the bank;
c)
has a material interest or a material relation with a person who is party to a
contract with the bank, except contracts of deposit or custody of securities.
Art. 30. - The obligation provided under Art. 29
devolves upon the manager when he has known or should have known the fact that
such a contract was concluded or was under way of being concluded.
Art. 31. - The manager of a bank shall be under an
obligation, whenever necessary, but not less than once a year, to present in
writing to the Managing board of the bank a statement showing the names and
addresses of his or her associates and data with reference to the material
interest of financial, commercial, agricultural, industrial or of another
nature of the manager and of his or her family.
Art. 32. - A manager having a material interest or a
material relation in the sense of articles 29, 31 and 33 shall not participate
in the debates on the contract and shall abstain from voting on any problem in
connection with this contract.
For the purpose of achieving the necessary quorum for
taking a decision on the contract in question, the manager will be considered
present.
Art. 33. - An interest shall be considered material in
the sense of the provisions under articles 29 and 31, if it refers to the
wealth, affairs or interests of the family (of the husband or wife, relatives,
and in-laws up to twice removed inclusive) of the person who has an interest.
Art. 34. - When a manager fails to declare a conflict
of interests, conformably to the provisions under the present chapter:
a)
the bank, or one of its shareholders, or the National Bank of Romania may
petition the appropriate judicial instance to annul any contract in which the
respective manager has an undeclared material interest, in keeping with the
provisions under the present chapter;
b)
according to Art. 70, the National Bank of Romania may request the bank the
suspension of the manager over a period not exceeding one year, or his/her
replacement.
CHAPTER
VIII
The professional secret
Art. 35. - The bank shall preserve the confidentiality
of all transactions and services it offers, with regard to the holders of the
accounts' identity inclusive.
Art. 36. - The personnel of a bank, subject to the
provisions of the present law, shall not either during their activity, or after
its cessation, have the right to use or to disclose facts or data which, having
become public, might be prejudicial to the interest or prestige of a bank or of
its clients.
The
above provisions shall also apply to persons who get such information from
reports or other documents of the bank.
Art. 37. - Any member of the Managing board of a bank
as well as all persons participating in the bank's activity shall be under an
obligation to preserve the professional secret. Information with regard to the
sums of money deposited and operations carried out in the name of natural or
juristic persons shall be transmitted only to the holders or their lawful
representatives, and in criminal causes in which a criminal trial was set in
motion against the holder at the written request of the public prosecutor or of
the judicial instance. The bank's personnel may not use to their own advantage
banking information it holds or of which they have taken cognizance in any way
what-so ever.
The
provisions of para. 1 shall also apply to persons having obtained information
of the nature of that shown above from the check and supervision activity or
from reports or documents of the bank.
CHAPTER
IX
Operational requirements
Section
1
General provisions
Art. 38. - In their activity, the banks shall be
subject to the orders and regulations issued by the National Bank of Romania,
given in application of the legislation on the monetary, credit, foreign
currency, payments, ensuring the banking prudence, and banking supervision
policy.
The
banks shall organize their whole activity in accordance with the rules of a
prudent and healthy banking practice and with the requirements of the law.
Modifications
in a bank's situation shall be subject to the approval of the National Bank of
Romania, under the conditions established by its regulations. Registration in
the trade register of the mentions with regard to the respective modifications
shall be made only after having obtained this approval.
In
their statutes, the banks may not establish exceptions from the principle
according to which one share entitles to a single vote only.
Shares
issued by banks can only be registered ones.
Art. 39. - With a view to their functioning, each bank
shall be under an obligation to open a current account at the National Bank of
Romania, according to the regulations issued by it, within thirty days after
obtaining the authorization. Money transfers operated by carrying to the
running account opened in the books of the National Bank of Romania are
irrevocable and unconditional.
Banks may also open other accounts at and under the conditions established by
the National Bank of Romania.
Section
2
Capital requirements
Art. 40. - The registered capital of a bank must be
paid in completely, and in form of cash, at the moment of the subscription.
The
minimum registered capital shall be established by the National Bank of
Romania.
At
constitution, the capital contribution shall be paid in into an account with
interest at sight or at term, opened at a bank which is a Romanian juristic
person, or at the branch of a foreign bank authorized to function on Romania's
territory. The capital account shall be blocked up to incorporation of the bank
with the trade register.
Banks
shall permanently maintain a minimum level of the registered capital in form of
cash, in agreement with the regulations of the National Bank of Romania.
Branches
of foreign banks shall permanently maintain an endowment capital at the level
provided through the regulations of the National Bank of Romania for the minimum
registered capital of the banks which are Romanian juristic persons.
Art. 41. - Banks may increase their registered
capital, in addition to subscriptions of new contributions in cash, according
to the legislation in force, by making use of the following sources, too:
a)
issue or contribution bonuses and other bonuses linked to capital, integrally
cashed, remaining after the payment and coverage of unredeemed expenses carried
out with such operations, as well as reserves constituted on account of such
bonuses;
b)
dividends on the net profit due to shareholders after payment of taxes on
dividends according to the law;
c)
reserves from foreign exchange rate influences relating to the appreciation of
foreign currency disposable funds representing registered capital in foreign
currency;
d)
reserves constituted from the net profit, existing in the balance of the last
balance sheet;
e)
the favourable differences from revaluation of the assets which may be included
in the reserves and used for increasing the registered capital.
Art. 42. - Any modification of the level of the
registered capital of a bank shall be subject to the approval of the National
Bank of Romania.
Art. 43. - Banks shall share out twenty-per-cent from
the gross profit for the constitution of a reserve fund until the fund thus
constituted becomes equal to the registered capital, thereafter ten-per-cent
maximum up to the moment when the fund has reached twice the amount of the
registered capital.
After reaching this level, the allocation of sums of
money to the reserve fund shall be made from the net profit.
From
the gross profit, the banks shall portion out the sums of money destined for
the constitution of the general reserve for the credit risk, within the limit
of two-per-cent from the balance of the credits granted.
Section
3
Prudential requirements
Art. 44. - On granting credits, the banks shall have
in view that the applicants should present credibility in respect of reimbursement
at their term. To this end, the banks shall ask from the applicants a guarantee
for the credits under conditions established by their crediting norms.
Art. 45. - The banks must observe the following
prudential requirements when these are provided under the regulations of the
National Bank of Romania:
a)
the minimum level of solvency, determined as a ratio of the level of their own
funds and the total of assets and elements outside the balance sheet, weighted
depending on their degree of risk;
b)
the maximum outstanding credits towards a single debtor, expressed in
percentage, as a ratio between their total value and the level of the bank's
own funds;
c)
the aggregate maximum outstanding credits, expressed in percentage, as a ratio
between the total value of the large outstanding credits and the level of their
own funds;
d)
the minimum level of liquidity, determined depending on the terms of the debts
and engagements of the bank;
e)
the classification of the credits granted and of interests receivable relating
to them and the constitution of the specific risk provisions;
f)
the foreign currency position expressed in percentage depending on the level of
its own funds;
g)
the management of the bank's resources and placements;
h)
the extension of the network of branches and other secondary seats of the bank.
Art. 46. - Banks which are Romanian juristic persons
may open branches and other secondary seats (agencies and other similar ones)
in Romania's territory under the conditions provided by the regulations of the
National Bank of Romania.
The
provisions under para. (1) shall also apply correspondingly in the case of the
branches of foreign banks.
Banks
which are Romanian juristic persons may open representations and branches or
may set up subsidiaries abroad only with the previous approval of the National
Bank of Romania, in keeping with the regulations issued by it.
Art. 47. - A bank may not carry out distributions from
profit for dividends, if, as a result of this distribution, the bank records a
solvency level below the minimum provided by the regulations of the National
Bank of Romania.
Art. 48. - The total value of the long term
investments of a bank in the transferable securities issued by a trading company
which is not engaged in one or more of the financial activities provided under
Art. 8 may not exceed:
a)
twenty-per-cent of the registered capital of the respective trading company;
and
b)
ten-per-cent of the bank's own funds.
The total value of the bank's long term investments in
transferable securities issued by such trading companies may not exceed
fifty-per-cent of the bank's own funds.
Art. 49. - The total value of a bank's investments in
transferable securities carried out in its own name and on its own account may
not exceed the level of one hundred-per-cent of the bank's own funds, except
those in public securities.
Art. 50. - Loans granted to persons in special
relations with the bank or its personnel, their families included, shall be permitted
only under the conditions established by the regulations of the National Bank
of Romania.
Section
4
Significant shareholders
Art. 51. - Any person intending to acquire a
participation of at least five-per-cent of the bank's registered capital must
obtain the previous approval of the National Bank of Romania, in agreement with
the regulations issued by it.
Art. 52. - Any significant shareholder who intends to
increase his, her or its participation, so that the proportion of the
registered capital held should reach or exceed levels representing multiples of
five-per-cent, must obtain the previous approval of the National Bank of
Romania.
Section
5
Prohibited transactions
Art. 53. - Banks shall not carry on the following
operations:
a)
engagement in transactions with movables and immovables, except transactions
with such goods necessary for the carrying on of the activity and for the use
of the employees as well as transactions with movables and immovables acquired
as a result of the execution of the bank's claims.
Movables and immovables acquired as a result of the
enforcement of the claims, other than those necessary for the carrying on of
the activity and for the use of the employees shall be sold by the bank within
one year after their acquisition. For immovables, the term may be extended with
the approval of the National Bank of Romania;
b)
the acquisition of the bank's own shares or their pledging on account of the
bank's debts, except the redemption of its own shares with a view to a reduction
of the registered capital, forming the object of a previous approval of the
National Bank of Romania;
c)
the granting of loans or providing of other services to clients, conditioned by
the sale or buying of the bank's shares;
d)
the granting of credits guaranteed with the shares issued by the bank;
e)
the acceptance of deposits, titles, or other values, when the bank is in a
state of stoppage of payments;
f)
the engagement in acceptation of deposits, if the majority of the deposits
comes from the bank's employees, except operations of placement funds and other
financial operations based on the principle of mutuality.
Section
6
Contracting documents, registers and records
Art. 54. - Each bank shall draw up and preserve at its
registered office documents and records in Romanian, including:
a)
the memorandum of association and articles of association as well all
additional deeds by which these were modified;
b)
a register of its shareholders, according to the law;
c)
the minutes and decisions of the shareholders' general meeting;
d)
the minutes and decisions of the Managing board;
e)
the books and accounting registrations clearly and correctly making evident the
situation of its activity, the explanation of the transactions and financial
position so as to enable the National Bank of Romania to determine whether the
bank has complied with the provisions of the present law;
f)
its own regulations referring to the carrying on of the activity as well as all
their amendments;
g)
other records required according to the present law or the provisions of the
regulations of the National Bank of Romania.
The
documents provided under letters a) and f) shall be transmitted to the National
Bank of Romania, and the documents representing the daily recording of the
registrations for each client of the bank, the characteristics of its
transactions with that client or on the client's account, and the balance due
to or by the client shall be kept at the registered office of the bank or at
its secondary seats.
Art. 55. - Each bank shall draw up and keep at its
registered office or at its secondary seats a copy of the adequate credit
documentations and any information with regard to business relations with its
clients and with other persons which the National Bank of Romania might provide
by regulations and which shall be kept at the disposal of the authorized
personnel of the National Bank of Romania at their request.
Art. 56. - All credit and guarantee operations of the
banks shall have to be recorded in contractual documents from which there
should clearly result all the terms and all the conditions of the respective
transactions. All these documents must be kept by the banks and put at the
disposal of the authorized personnel of the National Bank of Romania at their
request.
The
banking credit contracts as well as the real and personal guarantees,
constituted for the purpose of forming a guarantee for the banking credit shall
constitute writs of execution.
After
investment of the credit contract with the executory formula, interests shall
be farther calculated and recorded by the bank outside the balance sheet,
together with the respective credits.
Section
7
Accounts, financial statements and their checking
Art. 57. - Banks shall permanently keep accounting
records in agreement with the provisions of the Accounting Law and of the
specific regulations given in its application, and to draw up adequate
financial statements in order to adequately reflect their financial operations
and condition. The accounting records and the financial statements of a bank
shall also reflect the operations and financial position of the subsidiaries,
branches, and other secondary seats, on an individual basis and on a
consolidated basis, as the case may be.
Art. 58. - The National Bank of Romania shall
establish rules on the keeping of accounting and the drawing up of the balance
sheet, which must previously be approved by the Ministry of Finance.
The
banks shall be under an obligation to present to the National Bank of Romania their
financial statements consisting of elements of the balance sheet as well as
other data requested by the National Bank of Romania, at the terms and in the
form established by regulations.
Art. 59. - The balance sheet of the banks shall not be
accepted as having legal validity by the legitimate authorities without having
been checked and signed by the bank's auditors.
Art. 60. - The provisions under articles 58 and 59
shall apply also to the branches of foreign banks, the power of the auditors
being carried out by expert accountants, by authorized accountants with
university education, or by audit companies authorized to carry on this
activity on Romania's territory.
The
branches of foreign banks shall draw up a balance sheet which shall cover their
activity, and that of the secondary seats subordinated to them.
Art. 61. - Each bank shall appoint an independent
auditor. As auditor of a bank can be appointed only a company of accounting expertise
authorized under the conditions of the law to carry on this activity in
Romania.
The
independent auditor shall:
a)
grant aid to the bank in the keeping of the accounting books according to the
accounting legislation in Romania and to the regulations of the National Bank
of Romania;
b)
draw up an annual report together with an expressed opinion from which it shall
result whether the financial statement shows a true image of the bank's
condition;
c)
examine the practice and procedure of the internal check and of the auditors
and, if considered inadequate, make recommendations to the bank for their
remediation;
d)
inform the National Bank of Romania with regard to any fraudulent act of a
manager or employee which could have as a consequence a loss of significant
importance for the bank.
Art. 62. - Each bank shall publish the balance sheet,
after its approval by the general assembly of the shareholders, together with
the independent auditor's opinion on it, in the form and at the terms
established by the National Bank of Romania and the Ministry of Finance.
CHAPTER
X
Transfer of funds
Art. 63. - The transfer of funds shall be organized as
part of the banking activity, for the purpose of finalizing the settlement of
accounts and preventing non-payment risks. Each bank shall bear the
responsibility for the lawfulness and discipline of the funds transfer between
its seats.
The
authorization of the funds transfer systems and of the juristic persons who
carry out interbanking funds transfer shall be done by the National Bank of
Romania.
The representative means of payment and the funds
transfer circuits shall previously be approved for each bank by the National
Bank of Romania in the interest of the protection of the consumer of such
services and the promotion of efficient payments without cash.
Art. 64. - With a view to strengthening the discipline
of payments without cash and of reducting the cost of banking activities, on
request, the National Bank of Romania may authorize a juristic person to function
as an interbanking clearing office.
No
collective arrangement for carrying out reciprocal clearing and interbanking
settlements may function on Romania's territory without the previous
authorization of the National Bank of Romania.
Art. 65. - Beside settlements of accounts, the
juristic persons provided under Art 64 may, on request, obtain the National
Bank of Romania' s authorization also to carry out other services of funds
administration over a period of not more than one working day as well as other
services which might contribute to the fulfilment of the purpose provided in
their constitutive deeds and in their working norms.
CHAPTER
XI
Prudential supervision of banks
Art. 66. - The National Bank of Romania shall
supervise the activity of the banks which are Romanian juristic persons and of
the branches of foreign banks on the basis of prudential banking references
made in keeping with the present law and regulations of the National Bank of
Romania issued in its application as well as by inspections:
at the registered office of the banks, of seats of
branches, and at other secondary seats at home and abroad;
at the registered office of the branches of foreign
banks and at the secondary seats in their subordination.
Art. 67. - Inspections at the registered office of the
bank shall be carried out by the personnel of the National Bank of Romania
empowered in this sense, or by independent auditors appointed by the National
Bank of Romania.
In
the case of branches and subsidiaries of foreign banks, the inspection teams
may also include representatives of the supervision authorities from the
country of origin of the foreign bank.
For
the supervision of Romanian banks functioning abroad, the National Bank of
Romania shall cooperate with the banking supervision authorities of the
respective states.
Information
referring to foreign banks carrying on activities in Romania may be provided to
the banking supervision authorities from the country of origin only under
conditions of reciprocity.
Art. 68. - Banks shall be under an obligation to allow
the personnel of the National Bank of Romania and independent auditors
appointed according to the provisions under Art. 67, carrying out the
inspection, to examine the records, accounts, and operations, and to provide
all documents and information in connection with the administration, internal
check, and operations of the bank, such as they shall be solicited by them.
CHAPTER
XII
Remedy measures and sanctions
Art. 69. - In the situation in which the National Bank
of Romania shall find that a bank and/or any of its managers, executive
directors, or auditors are to be blamed for:
a)
the violation of a provision of the present law or of the regulations or orders
issued by the National Bank of Romania in application of the present law;
b)
the violation of any condition or restriction provided in the authorization
issued to the bank;
c)
the carrying out of fictitious operations or without real coverage;
d)
failure to report, belated reporting, or reporting of erroneous data with
regard to the prudential banking indicators, or of other indicators provided in
the regulations of the National Bank of Romania;
e)
non-observance of the measures established by check deeds or as their result;
f)
endangering the bank's viability and credibility by inadequate administration
of the funds enstrusted to it, The National Bank of Romania may apply the
following sanctions:
a)
written warning given to the bank;
b)
limitation of the bank's operations;
c)
a fine applicable to the bank, from 0.1 to 1% from the registered capital, or
to managers, executive directors, or auditors, from one to six average
salaries-per-bank from the previous month, when the deed was established. The
fines collected shall be made revenue to the state budget;
d)
withdrawal of the approval given to the heads of the bank;
e)
withdrawal of the bank's authorization.
Art. 70. - As a result of the findings, the National
Bank of Romania may take the following measures:
a)
conclude a written agreement with the Managing board of the bank, which shall
include a programme of remedy measures;
b)
oblige the bank at fault to apply measures of remediation of the consequences
of the findings;
c)
institute measures of special supervision and of management, according to the
provisions under chapter XIII.
Art. 71. - The finding of the deeds described in the
present chapter, constituting violations of the banking discipline, shall be
made by the personnel of the National Bank of Romania, empowered in this sense
by the persons mentioned under para. 2.
The
deeds of application of the measures and sanctions provided in the present
chapter shall be issued by the governor or vice-governors, in the cases
provided under the regulations of the National Bank of Romania issued in this
sense.
Art. 72. - The application of the sanctions provided
under Art. 69 shall fall under the statute of limitation after two years from
the date when the deed was committed.
The
application of sanctions shall not remove the material, civil, administrative,
or criminal responsibility, as the case may be.
Art. 73. - The exercise of the right to vote of the
significant shareholders not having obtained the approval of the National Bank
of Romania, according to section 4 of chapter IX, shall be suspended.
The
National Bank of Romania shall order the significant shareholders provided
under para. 1 to sell the shares held above the participation approved by the
National Bank of Romania within three months. After expiry of this term, if the
shares have not been sold, the National Bank of Romania shall order the bank to
cancel the respective shares, the issue of new shares bearing the same number,
and to sell them, following upon which, the price collected from the sale to be
deposited at the initial acquirer after deduction of selling expenses.
Art. 74. - The perpetration by natural persons of the
deeds provided under section 3 of chapter I constitutes offences and shall be
punished with imprisonment from one month to two years or with a fine.
CHAPTER
XIII
Measures for instituting special supervision and special management of banks
Art. 75. - The National Bank of Romania, as prudential
banking supervision authority, may decide on measures for instituting a special
supervision and a special management of the banks.
Section
1
Measures for instituting special supervision of the banks
Art. 76. - The Managing board of the National Bank of
Romania may decide on measures for the instituting of special supervision of
banks, for violations of the law or of the prudential regulations issued by the
National Bank of Romania, found as a result of the supervision activities
effected and/or of the examination of the bank's reports as well as in the case
of the finding of a precarious financial position. The special supervision
shall be ensured through a commission instituted to this end, consisting of
five to seven specialists from the National Bank of Romania, one of whom will
fulfil the function of chairman and another that of vice-chairman.
Art. 77. - The powers of this commission shall be
established by the Managing board of the National Bank of Romania, and shall
refer mainly to:
a)
the following up of the way in which the management of the bank acts for the
establishment and application of the measures necessary for the remediation of
the deficiencies written in the control instrument drawn up by the inspection
bodies of the National Bank of Romania;
b)
the advice of all decisional deeds of the bank's statutory bodies, with
reference to the financial position, observance of the prudential regulations
as well as the compulsory suspension or suppression of such deeds;
c)
the modification of the bank's own regulations;
d)
the limitation and/or suspension of banking activities or operations over a
certain period;
e)
any other measures considered necessary for the remediation of the bank's
position.
The
special supervision commission shall not substitute itself to the management of
the bank.
During
the exercising period of the special supervision, the general shareholders'
meeting, the bank's heads and Managing board may not decide on measures
contrary to those disposed by the special supervision commission.
Members
of the special supervision commission shall have access to all documents and
registers of the bank, being under an obligation to preserve the secret with
regard to banking operations.
Art. 78. - The special supervision commission shall present periodical
reports on the bank's position to the Managing board of the National Bank of
Romania.
Depending
on the conclusions resulted from these reports, the Managing board of the
National Bank of Romania shall decide on the cessation or continuation of the
special supervision, without however exceeding a period of more than one
hundred and twenty days after the institution of the special supervision
measure.
In
case that further severe deficiencies shall be found in the bank's activity,
the Managing board of the National Bank of Romania may, from case to case,
decide on measures of special management of it.
Section
2
Measures of special management of the banks
Art. 79. - Measures of special management of the bank
may be disposed in the situation in which the National Bank of Romania shall
have found or been informed with regard to the following situations:
a)
the measures of special supervision have not given results over a period of up
to one hundred and twenty days;
b)
there are certain data leading to the conclusion that the bank will become
insolvent in the following ninety days.
The
value of the bank's assets and liabilities shall be calculated according to the
evalution procedures provided under the regulations of the National Bank of
Romania.
In
order to determine the value of the assets and liabilities of a bank at a
subsequent date, its anticipated revenues and expenditures up to the respective
date shall be taken into consideration.
Art. 80. - The special management activity shall be
carried out by a special manager appointed by the Managing board of the
National Bank of Romania. The special manager may also be a specialized
juristic person constituted in accordance with the law.
Art. 81. - The special manager shall entirely take
over the powers of the Managing board of the bank subject to the special
management form of administration.
The
right to vote regarding the appointment and dismissal of the managers and the
right to dividends of the shareholders, the activity of the Managing board and
of the auditors as well as the right to remuneration of the managers and
auditors shall be suspended over the period of application of the special
management.
The
special manager shall forthwith inform the bank's departments as well as its
secondary seats with the measure thus taken.
In
managing the bank, the special manager shall establish optimum conditions for
the preservation of the assets and collection of claims in the interest of the
depositors and of other creditors.
An
advertisment with regard to the institution of the special management shall be
published in the "Monitorul Oficial" (Official Gazette of Romania)
and in several newspapers of national circulation.
Art. 82. - Within forty-five days after appointment,
the special manager shall submit a written report to the Managing board of the
National Bank of Romania with regard to the financial position of the bank and
the possibility of the recovery of its position from the point of view of the
financial security, and shall attach documents relating to the evaluation of
the assets and liabilities of the bank, the situation of the recovery of assets,
the cost of maintaining the assets and the situation of liquidation of debits.
Within
fifteen days after receiving the special manager's report, the Managing board
of the National Bank of Romania shall make a decision on the extension of the
special manager's activity, over a limited period, or withdrawal of the
authorization, and inform the competent instance on the starting of the bank's
winding up procedure.
The
special manager whose activity was extended shall periodically submit an
evaluation of the bank's financial position.
If
the Managing board of the National Bank of Romania should, on the basis of
information supplied by the special manager, find that the bank has recovered
financially and tallies with prudential supervision parameters established by
law and by the regulations of the National Bank of Romania, the measures of
special management shall cease, and the bank shall resume its activity under
the check of its statutory bodies.
CHAPTER XIV
Ways of contestation
Art. 83. - The deeds issued in application of the
present law may be disputed within fifteen days after their communication. The
contestation shall be lodged with the Managing board of the National Bank of
Romania, which is to pass a decision within thirty days after the information.
The
decision of the Managing board may be sued at the Supreme Court of Justice
within fifteen days after the communication.
CHAPTER XV
Transitory provisions
Art. 84. - The banks and branches of foreign banks,
authorized at the moment of coming into force of the present law, shall be
considered to hold an authorization issued according to the provisions of the
present law.
Art. 85. - Authorization applications unsolved at the
date of coming into force of the present law, and which are not in accordance
with its provisions, may be withdrawn and presented again by the authors of the
applications, in keeping with the provisions of this law.
Art. 86. - For banks which are Romanian juristic
persons, and for the branches of foreign banks, whose organization, management,
financial position and operations are not in agreement with the requirements of
the present law or with the regulations issued in its application, the National
Bank of Romania shall, by regulations and orders, establish the period within
which these shall have to harmonize with the provisions of the present law.
CHAPTER
XVI
Final provisions
Art. 87. - All issued authorizations and those in
force shall be entered by the National Bank of Romania in the banking register,
which shall be permanently accessible to the public.
Art. 88. - Banks may organize a professional
association to represent their collective interests in front of the public
authorities, to study problems of common interest, to promote cooperation, to
inform members of the association and the public, and to organize services of
common interest. The professional association of the banks shall collaborate
with the National Bank of Romania.
Separately or within the framework of the professional
associations, the banks may organize their own body of executors, whose
activity shall be strictly linked to the putting into force of the writs of
execution belonging to the banks.
The
statute of this body of executors shall be approved by order of the minister of
justice.
Art. 89. - By decision of the Government and with the
advice of the National Bank of Romania, the banks may be approved to unfold
financing activities for the stimulation of small and medium-sized enterprises,
for the restructuring, modernization, and privatization of trading companies as
well as for the support and stimulation of exports, the development of the
infrastructure and of other utilities of public interest.
The
sums of money required for the unfolding of the financing activity provided under
para. (1) may be ensured from public funds also by the respective banks by loan
agreements with Romanian or foreign financial institutions as well as by the
mobilization of resources from the home or international capital market, which
may also be guaranteed by the Romanian Government through the Ministry of
Finance.
Banks
carrying on financing activities in agreement with the provisions under the
preceding paragraps shall, corresponding to the respective activities, be
exempt from the payment of the profits tax as well as from the distribution and
payment of dividends and of the tax on dividends, the respective sums of money
being destined to an increase of their reserve fund.
Art. 90. - Institutions, other than banks, qualified
by law to carry on banking activities, shall be subject to the authorization,
prudential supervision, and regulations of the National Bank of Romania.
According
to the provisions of the preceding paragraph, the legislation relating to the
Saving and Consignments Institution and the legislation relating to the credit
cooperation shall be adapted correspondingly.
Art. 91. - All regulations and orders issued by the
National Bank of Romania in application of the present law shall be published
in the "Monitorul Oficial" (Official Gazette of Romania), Part I.
Art. 92. - The present law shall come into force
within thirty days after the date of its publication in the "Monitorul
Oficial" (Official Gazette of Romania).
The
law shall be completed with the provisions under the legislation applicable to
trading companies to the extent to which this shall not come in conflict with
the provisions under the present law.
Art. 93. - The National Bank of Romania shall draw up
regulations and orders in application of the present law, within one hundred
and eighty days after the date of its coming into force.
Art. 94. - The Law No. 33/1991 on banking activity,
published in the "Monitorul Ofcial" (Official Gazette of Romania),
Part I, No. 70 of April 3, 1991; the Law No. 36/199 7 on the approval of the
Government Ordinance No. 40/1996 on the modification and completion of the
regulations relating to the increase of the registered capital of banking
companies, published in the "Monitorul Oficial" (Official Gazette of
Romania), Part I, No. 54 of April 1, 1997 as well as any other contrary
provisions shall be abrogated after the date of coming into force of the
present law.
From
the provisions of the preceding paragraph shall be excepted the present
regulations of the National Bank of Romania wich shall remain in force until
the adoption of the new regulations.
Published
in the "Monitorul Oficial" (Official Gazette of Romania), Part I, No.
121 of March 23, 1998
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