Law 12/2017

– unofficial translation –

Law No. 12/2017 on the macroprudential oversight of the national financial system

The Parliament of Romania passes this law.

CHAPTER I

General provisions

Art. 1.

(1) The National Committee for Macroprudential Oversight (hereinafter referred to as “Committee”) shall be established as an interinstitutional cooperation structure without legal personality, comprising representatives of the National Bank of Romania, the Financial Supervisory Authority and the Government.

(2) Without prejudice to the powers conferred by law upon the authorities referred to in para. (1), the mission of the Committee shall be to ensure coordination in the field of macroprudential oversight of the national financial system by setting the macroprudential policy and the appropriate instruments for its implementation.

Art. 2.

(1) The fundamental objective of the Committee shall be to contribute to safeguarding financial stability, also by strengthening the resilience of the financial system and by containing the build-up of systemic risks, thereby ensuring a sustainable contribution of the financial sector to economic growth. “Financial system” and “systemic risk” shall have the meanings laid down in Regulation (EU) No. 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board.

(2) In achieving the fundamental objective specified in para. (1), the Committee shall be operationally independent.

Art. 3.

(1) With a view to achieving the fundamental objective laid down in Art. 2(1), the Committee shall carry out the following tasks:

  1. identifying, collecting and analysing the necessary information for the purpose of achieving the fundamental objective;
  2. identifying, monitoring and assessing systemic risks;
  3. identifying the systemically important financial institutions and financial system structures;
  4. preparing the strategy on macroprudential policy for the purpose of achieving the fundamental objective;
  5. issuing recommendations and warnings in order to prevent or mitigate systemic risks to the stability of the national financial system;
  6. issuing recommendations and, where appropriate, warnings in order to ensure the implementation of the European Systemic Risk Board recommendations or, where appropriate, issuing the necessary recommendations and warnings following the European Systemic Risk Board warnings, issued under the powers conferred upon it by Regulation (EU) No. 1092/2010;
  7. monitoring the implementation of the recommendations issued by the Committee and of the measures adopted at national level, following the recommendations and warnings issued by the Committee;
  8. setting, reassessing on a regular basis and monitoring the intermediate objectives of macroprudential policy;
  9. setting and reassessing on a regular basis the macroprudential instruments at national level and recognising the macroprudential instruments set by the authorities of other Member States;
  10. issuing advisory opinions in its remit, according to the legal provisions in force;
  11. issuing recommendations for ensuring the implementation at national level of the regulations, decisions, recommendations, guidelines and guides in the field of macroprudential oversight, adopted at EU level.

(2) In performing the tasks set out in para. (1), the Committee shall act as:

  1. macroprudential authority within the meaning of ESRB Recommendation of 22 December 2011 on the macro-prudential mandate of national authorities (ESRB/2011/3);
  2. designated authority within the meaning of provisions contained in Sections I and II, Chapter 4, Title VII of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC;
  3. designated authority within the meaning of Article 458 of Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012.

(3) In applying the provisions of para. (2) lett. b), the Committee shall be empowered to issue a Regulation on the methodology and procedures used for setting the macroprudential instruments provided for in Sections I and II, Chapter 4, Title VII of Directive 2013/36/EU and the scope of these instruments, in order to issue recommendations in this regard. The Regulation shall be published in Monitorul Oficial al României, Part I, as well as according to Art. 10 para (4).

(4) In exercising its tasks, the Committee shall monitor the compliance and, where appropriate, the adoption of necessary measures for the implementation of the regulations, decisions, recommendations, guidelines and guides issued in the field of macroprudential oversight, adopted at EU level.

(5) In addition to the tasks listed in para. (1), the Committee shall also be responsible for the coordination of financial crisis management, henceforward it shall issue recommendations for establishing the necessary measures to mitigate the risk of contamination, when one or more participants in the financial system face difficulties that have a systemic impact, and shall monitor their implementation.

(6) In the discharge of its duties, the Committee shall be entitled to request all relevant data and information necessary for achieving its fundamental objective, including information from the National Bank of Romania and the Financial Supervisory Authority, information from other authorities and institutions, including those outside the regulatory scope of these authorities, as well as institution-level information based on a justified request and provided that the appropriate arrangements are in place to ensure confidentiality, while the notified authorities and institutions shall duly provide the requested information.

(7) The Committee shall provide the Government, the National Bank of Romania and the Financial Supervisory Authority with the relevant information necessary to fulfil their tasks.

(8) For the purpose of exercising the powers conferred upon by this law, the Committee shall ensure the cooperation and the exchange of information with the European Commission, the European Banking Authority and the European Systemic Risk Board, as well as with its peers in other Member States, taking the necessary measures for preserving the confidentiality of exchanged information.

(9) The Committee shall inform the European Systemic Risk Board of the actions taken for preventing and mitigating systemic risks at national level, by observing, where appropriate, the deadlines set forth in ESRB recommendations or in any other relevant acts issued at EU level.

Art. 4.

(1) In order to implement the measures necessary for preventing and mitigating systemic risks at national level, the Committee shall be empowered to:

  1. issue recommendations and warnings to the National Bank of Romania and the Financial Supervisory Authority, in their capacity of national financial supervisory authorities at a sectoral level;
  2. issue recommendations to the Government for the purpose of safeguarding financial stability;
  3. request the European Systemic Risk Board to issue a recommendation for the recognition by one or more Member States of the macroprudential instruments recommended by the Committee.

(2) The recipients of the Committee’s recommendations or warnings referred to in para. (1) may adopt the appropriate measures, including the issuance of regulations, in order to observe the recommendations or, where appropriate, may take action to mitigate the risks they were warned about. The recipients shall inform the Committee of the measures adopted; in cases where the recipients have not taken such measures, they shall provide adequate justification for any inaction.

(3) If the Committee finds that its recommendation has not been followed up or that the recipients have not adequately justified their inaction, it shall inform the recipients under strict confidentiality.

CHAPTER II

Organisation

Art. 5.

(1) The Committee shall have:

  1. a General Board;
  2. a Technical Committee on systemic risk;
  3. a Technical Committee on financial crisis management;
  4. an Advisory Scientific Committee, comprising representatives of the academia;
  5. a Secretariat.

(2) The General Board shall take decisions to fulfil the fundamental objective of the Committee, as set out in Art. 2 para. (1).

(3) The Technical Committee on systemic risk shall support the activity of the General Board by drawing up analyses to identify, assess and monitor systemic risk and by putting forward the measures necessary to fulfil the fundamental objective of the Committee as defined in Art. 2 para. (1).

(4) The Technical Committee on financial crisis management shall support the activity of the General Board by drawing up analyses concerning one or more participants in the financial system which are failing or are likely to fail, thereby having a systemic impact, and by putting forward the measures necessary to mitigate the risk of contagion of other financial institutions or markets, or the financial system as a whole.

(5) The Secretariat shall provide administrative and logistical support to the Committee and shall be ensured by the National Bank of Romania.

(6) TThe chairperson of the Committee shall be the Governor of the National Bank of Romania.

Art. 6.

(1) The chairperson of the Committee shall be the Governor of the National Bank of Romania.

(2) The chairperson shall represent the Committee in relation to third parties. In case of temporary incapacity to act, the chairperson shall be represented by one of the members appointed by the General Board.

Art. 7.

(1) The General Board of the Committee shall be composed of 9 members, as follows:

  1. from the National Bank of Romania: the Governor, the First Deputy Governor and a Deputy Governor appointed by the Board of Directors of the National Bank of Romania;
  2. from the Financial Supervisory Authority: the President, the First Vice President and a Vice President appointed by the Board of the Financial Supervisory Authority;
  3. from the Government: three representatives appointed by the Prime Minister.

(2) The director of the Bank Deposit Guarantee Fund shall participate in the meetings of the General Board without having a voting right.

(3) The pursuit of business as members of the General Board by the persons referred to in para. (1) shall not be covered by the regime of incompatibilities and conflicts of interest set forth by Law No. 161/2003 on some measures to ensure transparency while in positions of public dignity, public functions and within the business environment, to prevent and penalise corruption, as subsequently amended and supplemented, or by the regime provided for by special laws governing the statute of the authorities such persons are part of.

(4) The composition of the technical committees and of the Advisory Scientific Committee shall be established by the General Board.

Art. 8.

(1) The General Board shall hold ordinary meetings at least four times a year.

(2) The General Board shall hold extraordinary meetings at the request of any of its members.

(3) The chairperson of the Committee shall convene the meetings of the General Board.

(4) The General Board members shall attend the meetings in person. In exceptional cases, members may be replaced by persons accredited by the General Board, where the replacement is justified by the temporary incapacity of full members to exercise their tasks.

(5) The persons accredited according to para. (4) shall be part of the same institution as the full members who are replaced.

(6) The General Board members shall not be remunerated for their activity.

Art. 9.

(1) Each General Board member shall have the right to one vote.

(2) The General Board shall validly deliberate in the presence of at least half plus one of its members.

(3) The decisions of the General Board shall be adopted by a majority of the votes cast.

CHAPTER III

Final provisions

Art. 10.

(1) The Committee shall communicate the issued recommendations and warnings to all interested parties and publish a press release on its website within 3 days from their issuance.

(2) In cases where the issuance of recommendations and warnings is conditional on the prior notification and approval by European agencies and institutions, the Committee shall communicate its recommendations and warnings to the interested parties and publish a press release on its website within 3 days after receiving an answer from the European agencies and institutions or from the expiry of the response deadline.

(3) The Committee may publish the issued recommendations and warnings unless it considers there are risks to financial stability in doing so.

(4) The Committee shall publish the Regulation referred to in Art. 3(3) on its website the day after the Regulation was published in Monitorul Oficial al României, Part I.

Art. 11. The chairperson of the Committee shall submit the Annual Report to the Parliament of Romania by 30 June of the following year.

Art. 12.

(1) The General Board members and any other persons who worked or work for the Committee or in relation to the activity of the Committee shall not disclose information subject to professional secrecy.

(2) The information received by the Committee shall solely be used for the purpose of achieving its tasks.

(3) Confidentiality and archiving rules for documents shall be set pursuant to an internal regulation adopted by the General Board of the Committee pursuant to the relevant laws.

Art. 13. The Committee shall adopt and seek to implement the macroprudential policy strategy without prejudice to the independence of the National Bank of Romania, in compliance with Article 130 of the Treaty on the Functioning of the European Union.

Art. 14.

(1) The Committee shall become operational within 30 days after the law was published in Monitorul Oficial al României, Part I.

(2) The recommendations issued pursuant to Art. X of Government Emergency Ordinance No. 113/2013 on some budgetary measures and amending and supplementing Government Emergency Ordinance No. 99/2006 on credit institutions and capital adequacy, as approved, amended and supplemented by Law No. 25/2015, shall remain valid.

This law ensures:

  • the implementation of the provisions contained in Sections I and II, Chapter 4, Title VII of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to credit institutions and prudential supervision of institutions credit and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, published in the Official Journal of the European Union No. L 176 of 27 June 2013;
  • the implementation of Recommendation of the European Systemic Risk Board of 22 December 2011 on the macro-prudential mandate of national authorities (ESRB/2011/3) published in the Official Journal of the European Union No. C 41 of 14 February 2012;
  • the legal framework for the implementation of the Recommendation of the European Systemic Risk Board of 4 April 2013 on intermediate objectives and instruments of macro-prudential policy (ESRB/2013/1), published in the Official Journal of the European Union No. C 170 of 15 June 2013.

This law has been adopted by the Parliament of Romania, in virtue of Art. 77 para. (2), pursuant to the provisions of Art. 75 and Art. 76 para. (2) of the Constitution of Romania (recast).