Unofficial translation
National Bank of Romania
REGULATION no.11/ 2007(*)
on the authorisation of credit institutions, Romanian legal entities, and branches in Romania of third-country credit institutions, as further amended and supplemented published the Official Gazette of Romania , Part One, No. 837 of 6 December 2007
Having regard to the provisions of Art. 10, Art. 31 para. (1), Art. 32 para. (1), Art. 67 para. (1), Art. 109, Art. 294, Art. 329, and Art. 345 of Government Emergency Ordinance No. 99/2006 on credit institutions and capital adequacy, as approved, amended and supplemented by Law No. 227/2007,
In virtue of the provisions of Art. 25 para. (2) let. a) and Art. 48 para. (1) of Law No. 312/2004 – the Statute of the National Bank of Romania,
The National Bank of Romania issues this Regulation.
CHAPTER I General provisions
SECTION 1 Scope and definitions
Art. 1. – (1) Credit institutions, Romanian legal entities, and branches of third-country credit institutions may be set up and operate in Romania only according to the authorisation issued by the National Bank of Romania. (2) This Regulation establishes the procedure, the authorisation conditions and the documents that shall be submitted to the National Bank of Romania in the process of authorisation of banks, savings bans for housing, mortgage banks,
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(*) Consolidated text with amendments and completions by Regulation no.1 dated 6/01/2009 published in the Official Journal, Part I no. 28 dated 14/01/2009, by Regulation no. 4 dated 23/03/2009 published in the Official Journal, Part I no. 180 dated 23/03/2009, by Regulation no. 15 dated 12.08.2009 published in the Official Journal, Part I no. 570 dated 17.08.2009, by Regulation no.17 dated 17.09.2009 published in the Official Journal, Part I no. 626 dated 21.09.2009 and by Regulation no.7/2011 published in the Official Journal, Part I no. 510 dated 19.07.2011
1 electronic money institutions, and credit co-operative organisations, Romanian legal entities, hereinafter referred to as “credit institutions”, as well as of branches in Romania of third-country credit institutions.
Art. 2. – (1) The terms and expressions used in this Regulation have the meaning provided for in Art. 7 para. (1), Art. 290, and Art. 334 of Government Emergency Ordinance No. 99/2006 on credit institutions and capital adequacy, as approved, amended and supplemented by Law No. 227/2007, hereinafter referred to as Government Emergency Ordinance No.99/2006, and in Art. 2 of Law No.32/2006 on mortgage bonds. (2) For the purpose of this Regulation, the terms and expressions below shall have the following meaning: a) indirect shareholder – a shareholder who holds equity stake or voting rights in a credit institution, via an undertaking/entity controlled by the shareholder; b) significant shareholder – a natural or legal person, or a group of natural and/or legal persons, acting in concert, who holds, whether directly or indirectly, qualifying holdings in a credit institution; c) trust – specific institution of Anglo-Saxon law, which is a legal transaction by which a person, the constituent, entrusts his goods/assets to another person named administrator for possessing, managing and delivering to beneficiaries indicated by the constituent, during his life or after death. (3) It is deemed that the persons are acting in concert when each of them decides to exercise the rights related to the shares held, in accordance with an explicitly or implicitly agreement intervened between them.
Art. 21. - (1) When determining a qualifying holding for calculating a person’s voting rights, the provisions of Art.116 para.(1) the last two sentences, para.(2) and para.(7)-(10) of the National Securities Commission Regulation no.1/2006 on issuers and securities operations, approved by National Securities Commission Order no.23/2006, as subsequently amended and supplemented, as well as the provisions of Art.5, 6 and 10 of National Securities Commission Regulation no.1/2008 for implementing Directive 2007/14/EC on establishing the rules of application of certain provisions of Directive 2004/109/EC on the harmonization of transparency requirements in relation to information about issuers whose securities are admitted for trading on a regulated market, approved by the National Securities Commission Order no.28/2008 shall be applied. (2) When determining a qualifying holding, it shall not be taken into account the voting rights or shares which investment firms or credit institutions may hold as a result of underwriting financial instruments and/or placing financial instruments based on a firm commitment assumed in carrying out activities referred to in Art.7 para.(1) point 6 lett.A.f) of G.E.O. no.99/2006, as subsequently amended and supplemented, provided that, on one side, voting rights or shares should not be exercised or used to intervene in the management activity of the issuer and, on the other side, voting rights or shares should be disposed within one year from the purchase date of the participation.
2 SECTION 2 Common provisions
Art. 3. – (1) The authorisation process of credit institutions by the National Bank of Romania involves/comprises two stages: a) the approval of the establishment of the credit institution; b) the authorisation of the credit institution’s functioning.
(2) The approval of the establishment of the credit institution does not guarantee the obtaining of the authorisation and indicates only the permission granted to shareholders to proceed on the setting-up of the credit institution according to the legal provisions and the methods stipulated in the documents submitted. (3) The amendment of the conditions governing the approval to establish a credit institution shall require a new assessment by the National Bank of Romania during the second stage of the authorisation process, which may lead to the cancellation of the decision to approve the setting-up of a credit institution, if such amendment is contrary to the legal provisions or to this Regulation. (4) The authorisation of the credit institution shall be accompanied by the approvals of the persons appointed as board member, manager, member of the supervisory council, member of the directorate and financial auditor of the credit institution, and by the confirmation of the significant shareholders of the credit institution.
Art. 4. – (1) At each stage of the authorisation process, all the documents and information provided for in Chapters II-VII, as appropriate, shall be submitted so as to support the authorisation application. (2) The National Bank of Romania may request in writing, in the time limit provided for in Art. 33 para. (3) of Government Emergency Ordinance No. 99/2006, as subsequently amended and supplemented, any additional information or documents, if those submitted are not sufficient or relevant for the assessment or if the documentation shows other deficiencies. Information can also be obtained by conducting professional interviews with nominees in charge to exercise administration and/or management duties. (21) The holders of a licensing application may submit, by their own initiative, any information and documents considered by them necessary to support the application. (3) Repealed (4) All the documents registered with the National Bank of Romania starting with the day prior to the 30-day period before the expiry of the time limits during which the National Bank of Romania must decide, in accordance with the provisions of Art. 33 paras. (1) and (3) of Government Emergency Ordinance No. 99/2006, shall not be taken into consideration when analysing the applications and they may be returned to the applicants.
Art. 5. – (1) Credit institutions shall have their registered offices and, as appropriate, their actual places of business on the territory of Romania. (2) The place agreed upon to be the registered office and, as appropriate, the actual place of business of a credit institution shall not be located in the basements of buildings or on the upper floors of housing estates and must be appropriate in terms of area, security conditions, and endowments for the activities to be performed. (3) The provisions of para. (2) shall also be applied accordingly to branches and subsidiaries of credit institutions.
3 Art. 6. – The provisions of this Section shall also be applied accordingly to the branches in Romania of third-country credit institutions.
CHAPTER II
Authorisation of banks, Romanian legal entities
SECTION 1 General provisions
1.1. Name
Art. 7. – The name of a bank shall be in Romanian language, except when the bank is part of a group whose parent undertaking is located outside Romania, in which case its name takes, in whole or in part, the name used within the group.
1.2. Scope of activity
Art. 8. – (1) The authorised scope of activity of a bank shall include only the activities for which the ability of the bank to perform such activities is appropriately warranted by the plan of activity.
(2) Investment services and investment activities on a professional basis may be carried out by a bank authorised by the National Bank of Romania after its registration in the National Securities Commission Register, in accordance with the regulations issued by the National Securities Commission.
1.3. Interdictions
Art. 9. – Repealed
Art. 10. – Repealed
1.4. Ownership
Art. 11. – The National Bank of Romania shall be informed about the identity of the bank’s direct and indirect shareholders and about their equity stake.
Art. 12. – (1) The quality of direct and indirect shareholders of a bank shall be consistent with the requirements of a healthy and prudent management of the credit institution provided by law and by this Regulation. (2) The assessment of the quality of direct and indirect significant shareholders, as well as the their financial soundness in relation to the participation which will be held in the bank is based on the criteria set out in Art.26 para.(1) of G.E.O. no.99/2006, as further amended and supplemented, relating to: a) the reputation of the significant shareholder; b) the financial soundness of the significant shareholder; c) the capacity of the bank to comply with the prudential requirements; d) the suspicion on money laundering or terrorist financing.
4 (3) The assessment of the group of natural and/or legal entities acting in concert, in accordance with the provisions of Art.(2) para.(3) will consider the criteria set in para.(2) on an individual and/or group basis, as appropriate. (4) The assessment of the quality of direct shareholders who will not hold qualifying holdings in the bank shall comply with the provisions of para. (2) let. d). When assessing these shareholders, the National Bank of Romania shall take into consideration, on a case-by-case basis, also other issues than those stipulated in para. (2). (5) If a qualifying holding in a bank will be owned indirectly through one or more persons, each of them being significant indirect shareholder, it will be subject to review by the National Bank of Romania. The National Bank of Romania may decide on assessing only the person being the ultimate indirect shareholder and persons who will directly hold participations in the credit institution concerned, except the National Bank of Romania considers necessary to evaluate one or more intermediaries in the chain of participations.
Art. 13. – Repealed
Art. 14. – Repealed
Art. 15. – Repealed
1.5. The persons designated to ensure the administration and/or management of the bank
Art. 16. – (1) The persons designated to exercise administration and/or management responsibilities of the bank shall have a good reputation and the professional experience appropriate for the scope, extent and complexity of the activity carried out by the credit institution and for the related responsibilities in order to ensure a prudent and sound management of the bank.
(2) In order to meet the professional experience requirement, these persons must have appropriate theoretical and practical knowledge concerning the activities to be performed by the bank. Persons nominated to exercise managerial responsibilities of the bank shall also have experience in management of an entity or in its organizational structures, with relevance, including in terms of complexity, for the activity to be carried out within the bank.
(3) At least one of the managers or of the directorate’s members respectively has to prove his/her knowledge of the Romanian language.
Art. 17. – (1) The National Bank of Romania shall assess, on a case-by-case basis, for each person designated to exercise administration and/or management responsibilities, if all the requirements provided for in Art. 16 para. (1) are fulfilled, taking into consideration the information on the activity, experience and reputation of the person concerned, as well as any other relevant circumstances. (2) Within the meaning of the provisions of para. (1), for the last ten years, the following situations shall be taken into consideration, to the extent of their relevance:
a) the respective person is or has been in conflict with any supervisory authority in the financial and banking field in Romania or abroad, has been sanctioned or has been denied an authorisation by such authority or has been in other situation which, given its relevant aspects, might have negative effects on the image of the bank where the respective person is nominated to exercise administration and/or management responsibilities;
5 b) the person has exercised, without the approval of the authority mentioned in let. a), a function for which the obtaining of such an approval was mandatory, according to the applicable legal provisions; c) in exercising of an administration and/or management function of a credit institution, Romanian legal entity, or of a foreign credit institution’s branch, the person has not assumed the responsibilities deriving from such a capacity or has participated in the adoption and/or application of some decisions regarding its activity which were aimed at serving individual or group interests; d) a credit institution has registered an inappropriate development of the prudential indicators or that credit institution was subject to special supervision measures, special administration measures or other similar measures imposed by the supervisory authority, as a consequence of the activity carried out during the period in which the person performed administration and/or management tasks in the credit institution concerned; e) the entities where that person performs or has performed administration and/or management tasks or where that person is or has been a significant shareholder or associate have been in conflict with any authority in Romania or abroad, charged with the supervision of the financial and banking field, have been sanctioned by such authority or have been denied or withdrawn an authorisation by such authority; f) the person has been or is subject to criminal or administrative proceedings.
(21) The provisions of Art.183 para.(1) and (3) and of Art.1822 will be applied accordingly. (3) When assessing the persons nominated to perform administration and/or management tasks in a bank, the plan of activity adopted and submitted by such persons shall be considered in order to establish if it is based on a realistic approach and it proves professionalism.
1.6. Financial auditor
Art. 18. – (1) The persons nominated as financial auditors shall meet the requirements provided by law and shall not be in any situation of incompatibility or conflict of interests as provided by the legislation into force.
(11) The provisions of Art.183 para.(1) and (3) and of Art.1822 shall be applied accordingly.
(2) The persons nominated as financial auditors shall have relevant experience in the field of auditing the financial statements of the credit institutions. (3) In the case of the financial auditors, legal entities, at least the financial auditor, natural person, coordinating the team that is to perform the financial audit of the bank, shall meet the requirement provided for in para. (2).
1.7 – The business plan Art. 181. – The business plan shall contain achievable objectives in the time horizon concerned, in compliance with the requirements applicable to credit institutions, according to G.E.O. no.99/2006 and the regulations issued in its application.
6
SECTION 11
Criteria for evaluating significant shareholders
11.1 The reputation of the significant shareholder Art.182 – The evaluation of the significant shareholder’s reputation takes into account the following elements: a) the integrity b) the professional competence
Art.183- (1) In assessing the integrity of significant shareholder will be considered, as far as relevant, in the sense that it may induce doubts about the performance criteria, at least the following matters and situations: a) the existence of a criminal conviction for corruption, money laundering, offenses against property, abuse of authority, making or bribery, forgery and use of forgery, fraudulent misuse of funds, tax evasion, receiving of undue benefits, influence peddling, perjury, offenses under special laws governing financial and banking field, under legislation relating to companies, insolvency or consumer protection or to any other relevant facts; b) the significant shareholder is or has been criminally investigated or judged for any offense described in lett. a); c) ongoing or past investigations and / or measures applicable to shareholder or imposition of administrative sanctions for non-compliance with provisions governing banking, financial, securities, insurance activity or those concerning securities markets or financial instruments and of payment instruments or any other financial services legislation; d) ongoing or past investigations and / or measures and sanctions applied by any regulatory or professional body for breach of any relevant provisions. (2) In addition to those provided in par. (1) in assessing the integrity of significant shareholder it will be considered the extent to which lack of accuracy in business conducted in the past may undermine its integrity and credibility. In this regard, the National Bank of Romania shall consider situations such as: a) any indication that the shareholder was not transparent, opened and cooperative in its relationship with the supervisory or regulatory authority, including any indication that he tried to avoid the assessment in a licensing procedure of a regulated entity, ignored deliberately required notice of intent to acquire a qualifying holding in a regulated entity or tried to avoid prudential assessment that he must obey as a potential acquirer of a qualifying holding; b) the registration, authorization, membership granting have been refused to the shareholder or a license for a trading activity, a business or a profession has been denied, such registration, authorization, membership or license has been revoked, withdrawn or canceled or he was excluded by a regulatory or professional body; c) the shareholder was dismissed or released from a trust position, a fiduciary relationship or a similar situation or resignation or withdrawal from such a position was required to him; d) the shareholder is prohibited to occupy a management function in a commercial entity. (3) The shareholder is presumed to have a good reputation until proven otherwise. (4) In assessing the significant shareholders, the situations described in paragraphs (1) and (2) will be considered also to persons controlled or conducted in the past or currently by the significant shareholder, natural person and respectively, to persons controlled by the significant shareholder, legal person. (5) The National Bank of Romania assesses the relevance of situations as provided in para. (1) and (2), on a case by case basis, taking into account the gravity of circumstances specific to each
7 situation, and that such cases may be significant considered together, even if taken separately may not show relevance.
Art. 184. - If the significant shareholder is a commercial entity or an institution, the integrity requirement shall be satisfied both by the legal person and by the persons providing the management activity.
Art. 185. - In carrying out the significant shareholder’s integrity assessment, the National Bank of Romania may take into account relevant information in terms of integrity of any person related to it, such as anyone who has or seems to have a relevant family or business relationship with the shareholder.
Art. 186. – The integrity requirements are assessed according to Art. 183-185, regardless of the level of the qualifying holding which the shareholder will own and of his involvement in bank management or by the influence he aims to pursue over it.
Art. 187. - For the purposes of Art.182 lett. b), the professional competence of the significant shareholder includes competence in managing, called managerial competence, and competence in the field of financial activities carried out by the bank, called technical competence.
Art. 188. – The managerialcompetence shall be assessed in view of the previous experience of the shareholder in purchasing and managing holdings in commercial entities, which shall demonstrate skill, diligence and compliance with the relevant standards.
Art. 189. – The technical competence is assessed considering the previous experience of the shareholder gained as a shareholder which exercised control over credit institutions or financial institutions and / or as a person who has managed and / or conducted the business of such an institution. In this case, the experience shall demonstrate also skill, diligence and compliance with the relevant standards.
Art. 1810. - (1) Where the significant shareholder is a legal entity, the professional competence assessment should cover both the legal entity itself and the persons who ensure the management of its activity. (2) The assessment of technical competence shall have particular regard to financial activities currently undertaken by the shareholder and / or by entities in the group to which he belongs.
Art. 1811. - (1) In assessing the competence requirements there will be taken into account the particularities of each case, especially the level of participation which is to be held in the bank and the expected involvement of the shareholder in the bank management. (2) For purposes of para. (1), are taken into account situations such as: a) the significant shareholder is not in a position to exercise or does not intend to exercise influence over the bank. In this case it will be proved only the requirement for managerial competence; b) the significant shareholder will participate in the bank capital in order to diversify its portfolio and / or to obtain dividends or capital income, and not in order to get involved in that bank management. In this case it will be proved the compliance with the requirements for managerial competence, and professional competence requirements can be significantly reduced; c) the significant shareholder of the bank will have control or will exercise a strong influence over it, for example through a participation conferring a right of veto. In this case, the
8 requirement for managerial competence will be proved and the level of professional competence will be higher, taking into account the nature and complexity of the proposed activities.
Art. 1812. - The reputation requirements shall be considered to be fulfilled if: a) the significant shareholder is a natural or legal person already considered to be of good reputation as a significant shareholder in an entity regulated and supervised by a competent authority in Romania or in another Member State; b) the significant shareholder is an natural person who provides the management and / or administration of the activity of an entity which is regulated and supervised by the National Bank of Romania, the National Securities Commission, the Insurance Supervisory Commission of the Private Pension Supervisory System or a similar supervisory authority from another Member State; c) the significant shareholder is an entity which is regulated and supervised by the National Bank of Romania, the National Securities Commission, the Insurance Supervisory Commission, the Private Pension Supervisory System or a similar supervisory authority from another Member State.
Art. 1813. – The assessment of reputation requirements may be facilitated by cooperation with the competent supervisory authority from the third country whose regulations on reputation requirements are considered equivalent if: a) the significant shareholder is a natural or legal person, already considered to have a good reputation as a significant shareholder of an entity regulated and supervised by a supervisory authority in a third country; b) the significant shareholder is a natural person who provides the management and / or administration of an entity regulated and supervised by a supervisory authority in a third country; c) the significant shareholder is an entity regulated and supervised by a supervisory authority in a third country.
11.2. Financial soundness of the significant shareholder Art. 1814. - (1) The financial soundness of the significant shareholder shall be assessed in terms of its capacity to fund his participation and to keep a solid financial structure, as well as to ensure sound and prudent management of the bank in the foreseeable future. This ability should be reflected in the overall objective of its participation in the bank capital and in its policy regarding this participation and also, when the shareholder which shall have control over the bank, in the projected financial targets, consistent to the strategy set out in the business plan. (2) The financial soundness is reviewed in correlation with the criterion mentioned in Art. 12 para. (2) lett. c) on the bank's ability to meet prudential requirements for the shareholder which shall have control over the bank.
Art. 1815 – The National Bank of Romania analyzes if the funding mechanisms used by the significant shareholder to finance the participation in the bank capital or if the existing financial relationships between the significant shareholder and the bank may produce conflicts of interest which may destabilize the financial structure of the bank.
Art. 1816. – The review of financial soundness of the significant shareholder will be reported to the nature of the shareholder and will be proportionate to his participation in the bank capital, distinguished in terms of depth and methods of carrying out the review, among the situation in which the shareholder will exercise control over the bank and that in which it will exercise a significant influence; even in the latter situation it has to be considered the shareholder’s future involvement in the bank management.
9 Art. 1817. – The information required to assess the financial soundness of significant shareholder depend on the legal status of the shareholder (e.g. credit institution or financial institution subject to prudential supervision; legal entity other than a credit institution or financial institution, natural person).
Art. 1818. - If the significant shareholder is a regulated and prudentially supervised entity by another supervisory authority in Romania, in another Member State or in a third country whose prudential regulations are considered to be equivalent, the National Bank of Romania will take into consideration the assessment of the shareholder’s financial position carried out by its supervisory authority, in conjunction with the documents sent directly by the supervisory authority of the significant shareholder to the National Bank of Romania.
11.3. Bank's compliance with prudential requirements Art. 1819. - (1) Assessing the suitability of the significant shareholder also considers whether the bank will be able to comply with the prudential requirements under GEO no. 99/2006, as subsequently amended and supplemented, and the regulations issued for its application and, in particular, whether the group of which he is part of, has a structure that allows the exercise of effective supervision, efficient exchanges of information with the competent authorities and determine the distribution of responsibilities between the competent authorities. (2) The group structure refers to the group members, including parent undertakings and subsidiaries, as well as to the intra-group administration and management rules (decision making mechanisms, level of independence, capital administration). (3) The assessment of issues related to exercise effective supervision envisages that National Bank of Romania should not be impeded to fulfill its supervisory tasks by the bank’s close links with other natural or legal persons or by laws, regulations or administrative measures in another state governing the natural or legal person which is closely linked to the bank, or by difficulties in implementing these laws, regulations or administrative measures.
Art. 1820. - Prudential assessment of the significant shareholder shall cover its ability to sustain a suitable organization of the bank within the group. Both the bank and the group shall have a clear and transparent governance and management framework and a suitable organization, including effective internal control and independent control functions (risk management, compliance and internal audit).
Art. 1821. – The National Bank of Romania will take into account whether the significant shareholder will be able to: a) provide the bank with financial support which it may need for the proposed activity; b) provide the bank withcapital which it may need for the further development of the business; c) implement any appropriate solution to adjust future needs of the bank's own funds.
11.4. Suspicion on money laundering or terrorist financing
Art. 1822. - The quality of a significant shareholder will not be considered adequate if: a) the shareholder is suspected or known domestically or internationally, as being involved in money laundering operations or attempts of this kind, whether or not they are related to the proposed acquisition; b) the shareholder is suspected or known domestically or internationally as terrorist or for terrorism financing; c) the shareholder is established in a state or territory considered by FATF - GAFI - International Financial Action Group as being "uncooperative" or in a state or territory that has not taken sufficient steps to comply with the recommendations of FATF - GAFI.
10 Art. 1823. - The assessment criteria on money laundering and terrorism financing is carried out in relation with assessing integrity and regardless of the amount or other characteristics of the participation that is intended to be held in the bank.
Art. 1824. – The funds used for participation in the capital shall originate from legitimate sources and funding mechanism shall be transparent. In this regard, it will demonstrate at least that these funds are transferred through credit institutions or financial institutions subject to supervision by competent authorities of Member States or third countries considered to have equivalent systems to those in the European Union to fight against money laundering and terrorist financing.
SECTION 2
Documents necessary for obtaining the approval for the establishment of the bank
Art. 19. – The formalities for the establishment of the bank, according to the provisions of Law No. 31/1990 on trading companies, republished, as subsequently amended and supplemented, shall be fulfilled only after obtaining the approval of the National Bank of Romania for the establishment of the bank.
Art. 20. – In order to obtain the approval for establishment, the applicants shall submit an application to the National Bank of Romania, in accordance with the model set out in Annex 1, accompanied by the following information and documents: a) the authenticated mandate or letter of attorney, as appropriate, signed by all direct shareholders of the bank, whereby they appoint one or several persons to represent them in the relation with the National Bank of Romania during the processing of the authorisation application; b) the draft of the Articles of association. Where secondary places of business are opened concomitantly with the establishment of the bank, the draft of the Articles of association shall also specify the scope of activity of the respective places of business, the identification data of the persons in charge with the management of the respective places of business, as well as the limit of their mandate; c) information on the equity stake in the share capital and the voting rights held by direct shareholders and indirect significant shareholders and the documents provided for in Art. 21, for each of these categories; d) the documents specified in Art. 22 for the persons appointed to exercise administration and/or management responsibilities in their capacity as board members, managers or members of the supervisory council or of the directorate respectively. e) the business plan, signed by the direct and indirect significant shareholders of the bank and adopted by the persons appointed to exercise administration and/or management responsibilities in their capacity as board member, manager or member of the supervisory council or of the directorate respectively, and drawn up in accordance with the provisions of Art. 23; f) list of persons having close relations with the bank. The documents provided for in Art. 24 shall be submitted by the persons having close relations with the bank, other than direct shareholders, indirect significant shareholders and the persons designated
11 to exercise administration and/or management responsibilities; g) any other information the shareholders deem necessary to support the viability of the submitted project.
Art. 21. – (1) Each of the direct and indirect significant shareholders, legal entities, except for credit institutions and non-bank financial institutions recorded in the special register, Romanian legal entities, shall submit the following documents: a) ascertaining certificate issued by the Trade Register or any other equivalent official document issued by the similar authority in the home country, which shall confirm at least the name, registration date, the persons legally authorised to represent the legal entity and the scope of activity thereof; b) Repealed c) the questionnaire for the participants in the share capital of the bank, the model of which is set out in Annex 2, filled in and signed by each of the shareholders; d) copies of the last three audited annual financial statements and, as appropriate, those drawn up at the level of the accounting-consolidation area which include the shareholder, in compliance with the International Financial Reporting Standards or with some regulations in line with the European accounting directives and submitted to the competent authorities. The annual financial statements on an individual and/or on a consolidated basis, drawn up in compliance with other international accounting standards, may be accepted with the approval by the National Bank of Romania. e) estimations of the balance sheet and profit and loss account for the next three years, on an individual level and, where appropriate, on a consolidated basis, signed by the shareholder, accompanied by grounding of the forecasted values; f) curriculum vitae by observing the provisions of para. (6) let. b) for the persons exercising management responsibilities of the shareholder; the information provided shall support the requirements of professional competence under Art. 1810 para. (1); g) certificate of criminal record, by observing the provisions of Art. 22 para. (2) and para. (21) for the persons exercising management responsibilities of the shareholder.
(2) Each of the direct shareholders, others than those provided for in para. (1), credit institutions and non-bank financial institutions recorded in the special register, Romanian legal entities, shall submit the documents provided for in para. (1) let. a), c) and g) and the latest audited annual financial statement. (3) In the case of shareholders, foreign legal entities, the annual financial statements provided for in paras. (1) and (2) shall be audited by a financial auditor, which is an active member of a professional organisation acknowledged by the International Federation of Accountants (IFAC) and which observes the Code of Ethics issued by IFAC. The National Bank of Romania may require documents that testify the fulfillment of the mentioned requirements. (4) In case of direct shareholders and indirect significant shareholders, credit institutions, Romanian legal entities, shall be submitted the document provided for in para. (1) let. c). (5) In case of direct shareholders and indirect significant shareholders, non-bank financial institutions recorded in the special register, Romanian legal entities, shall be submitted the documents provided for in para. (1) let. c) and d). (51) The significant shareholders referred to in para.(4) and (5) shall submit also the documents provided under para.(1) lett.e). (6) For each shareholder, natural person, shall be submitted the following documents:
12 a) the copy of the identification document, whose authenticity shall be certified by the holder of the identification document; b) the curriculum vitae stating the previous and currently activity carried out, including the name of the employer, the type of the performed activity, the position held and other relevant information on his activity, and indicating the entities in which the individual held or is currently holding administration and/or management responsibilities, as well as, for the significant shareholder, any other relevant information to support the requirements of professional competence; c) the questionnaire, whose model is set out in Annex 2, filled in and signed by each shareholder; d) the certificate of criminal record, by observing the provisions of Art. 22 para. (2) and (21); e) Repealed f) Repealed
(7) Repealed
(8) The provisions of para. (1)-(3) shall apply accordingly to the entities without legal personality, shareholders of the bank, as appropriate.
Art. 22. – (1) For each of the persons designated to exercise administration and/or management responsibilities in their capacity as board members, managers, members of the supervisory council or of the directorate, shall be submitted the following information and documents: a) the copy of the identification document, whose authenticity shall be certified by the holder of the identification document; b) the curriculum vitae, containing at least information on their education, by mentioning the education institution, the type of courses attended and the graduation year, and a detailed presentation of the activity carried out, by stating the name, address, and scope of activity of the respective entity, the type and duration of the activities performed, the tasks discharged and, as appropriate, the authority charged with the supervision of each of the entities where the respective person performed his/her activity; c) the questionnaire whose, model is set out Annex 4, filled in and signed by the respective persons; d) the own statement, indicating that the person concerned complies with the provisions of Art. 107 para. (3) of Government Emergency Ordinance No. 99/2006 as subsequently amended and supplemented and is not in one of the situations provided for in Art. 110 of Government Emergency Ordinance No.99/2006 as subsequently amended and supplemented, or in any other situation of incompatibility as provided by the legislation in force, or indicating that the person concerned accepts to renounce to any situation of incompatibility before starting the exercise of the function for which it was approved by the National Bank of Romania; e) the certificate of criminal record or any other equivalent document issued by the competent authorities in the country where they have their domiciles/places of residence, by observing the provisions of para. (2).
13 (2) The persons having their place of residence in Romania for less than three years shall submit the certificate of criminal record or other equivalent document issued by the competent authorities in the country in which they had their domiciles/places of residence. (21) If the criminal record or equivalent document cannot be obtained, a solemn declaration will be submitted that will properly justify the impossibility to obtain official documents, accompanied, where appropriate, by evidence of the diligence exercised to achieve this document. (3) Where none of the designated managers or members of the directorate is Romanian citizen, at least one of them shall prove his/her knowledge of the Romanian language. In the absence of relevant documents, it is sufficient for them to prove their knowledge of the Romanian language during the talks with the staff of the National Bank of Romania throughout the authorisation process.
Art. 23. – (1) The plan of activity shall include the following:
a) the description of the objectives, policies, and strategies of the bank;
b) the formal framework for the management of the bank;
c) the description of the identification, administration, monitoring and reporting processes of the risks; d) the description of internal control mechanisms; e) the estimations of financial statements for the first three years of activity, drawn up in compliance with National Bank of Romania Order No. 13/2007 on FINREP financial statements at individual level, applicable to credit institutions and with National Bank of Romania Order No. 6/2007 on the consolidated financial statements compliant with the International Financial Reporting Standards, as requested by credit institutions for prudential supervision purposes. (2) The description of the bank’s objectives, policies and strategies, provided for in para. (1) let. a), shall include at least the following: a) the description of the objectives to be attained during the first three years of activity; b) the description of customers and of the market segment where the bank intends to carry out its activity; ] c) the description of categories of activities that the bank is going to carry out during the first three years of activity and accordingly, of the products and services provided and of the related pricing/charging policy . For each of such category of activities, the probable date when they are to be included in the bank’s offer shall also be specified. d) the volume of activity and the market share, generally and by category of activity, for the first three years of activity; e) the description of “know your customers” policies; f) the description of capitalisation policies and financing sources; g) the structure of assets; h) the description of the local network to be developed by the bank in the first three years of activity; i) the investment value for establishing of the technical support necessary for carrying out the proposed activity and for establishing of the organizational structure and chart of their achievement;
14 j) the outsourcing policies, the activities to be outsourced and the types of entities (inside or outside the group) to which the activities are outsourced in the first three years of activity; k) ) the payment systems the bank chooses to connect to and the connection method; l) the staff policy regarding at least the recruiting and training of the personnel. For each position in the organisation structure of the bank, which is relevant for its activity, the requirements for honesty, qualification and professional expertise shall be specified. In the case of the persons in management positions within the relevant departments of the bank and the persons ensuring the direct management of the secondary places of business of the bank, the requirements shall be specified in detail. (21) The description of activities referred to in para. (2) lit. c) shall include in case of electronic money issuance, at least the following information: a) the currency in which the issuance is denominated; b) the territorial area of use; c) the number of electronic payment instruments to be issued and the storage capacity of electronic device; d) the validity period of that instrument; e) the distribution channels (over the counter, branches, by post etc.); f) the description of the issuance scheme and use of electronic money and of the settlement way of transactions with electronic money; g) the estimation during a 3 year period of income and expenses related to electronic money and its use; h) the estimates of the total amount of financial liabilities related to the issue.
(3) The formal framework for the administration of the bank activity, provided for in para.(1) let. b), shall include: the draft of the organisation structure of the bank, the assignment of tasks for each department/responsibility centre of the bank and the relations between them (information flows), the tasks of the branches and other secondary offices of the bank, the tasks of the specialized committees of the bank, the responsibilities of the administration and/or management bodies of the bank (Board of Directors, managers, the supervisory council and the directorate), of the persons charged with the management of bank departments, branches and other secondary offices and of other employees performing transactions in the name and account of the bank. Where appropriate, it will be presented also the position of the credit institution within the belonging group, in terms of management structures and lines.
(4) The presentation of risk identification, management, monitoring, and reporting processes, provided for in para. (1) let. c), shall include at least:
a) the description of the risk profile, indicating the levels at which risks are considered to be significant ; b) the policies for each of the following risks: credit risk, dilution risk, counterparty credit risk, position risk, settlement risk, currency risk, commodity risk and operational risk, as well as for any other potentially significant risks related to the activity carried out; c) the methods for calculation of capital requirements in order to cover risks (credit risk, dilution risk, counterparty credit risk, position risk, settlement risk, currency risk, commodity risk and operational risk), which are considered to be used during the first three years of activity. The selection of the methods shall take into consideration the
15 conditions set by regulations; d) the annual estimations on own funds level and the estimations on capital requirements in order to cover the risks for the first three years of activity, in compliance with National Bank of Romania Order No. 12/2007 on the reporting of minimum capital requirements for credit institutions; e) Repealed f) the estimations on the level of large exposures in the first three years of activity, taking into account NBR-NSC Regulation no.16/21/2006 on large exposures for credit institutions and investment firms, approved by NBR-NSC Order no. 13/110/2006, and NBR Order no. 2/2008 on reporting of large exposures of credit institutions. (5) The description of internal control mechanisms, referred to in para. (1) let. d) shall refer to the organisation of risk control functions, to ensuring the conformity and the internal audit, in compliance with the regulations issued by the National Bank of Romania. (6) The estimations on financial statements provided for in para. (1) lett. e) shall be accompanied by grounding calculation of the main items of financial statements, as well as by the report of a financial auditor on the forecasted financial data, drawn up in compliance with the International Standards on Assurance Engagements regarding the relevant insurance commitments and with the contract concluded between parties. (7) The financial auditor referred to in paras. (5) and (6) shall be a an active member of a professional organisation acknowledged by the International Federation of Accountants (IFAC), observe the Code of Ethics issued by IFAC, and have employees with relevant experience in the financial and banking field. The financial auditor shall submit to the National Bank of Romania curriculum vitae stating the required experience. (8) Where the credit institution is expected to be subject to supervision on a consolidated or sub-consolidated basis by the National Bank of Romania under NBR-NSC Regulation no. 17/22/2006 on consolidated supervision of credit institutions and investment firms, approved by NBR-NSC Order no. 15/112/2006, the information required under paragraph. (4) lett. d) and f) will be provided also on a consolidated or sub-consolidated basis, as appropriate, taking into account the NBR Order no. 12/2007 on reporting of minimum capital requirements for credit institutions, as subsequently amended, and respectively, of NBR-NSC Regulation no. 16/21/2006 and NBR Order no. 2/2008.
Art. 24. – (1) Each of the persons having close relations with the bank, others than direct shareholders, indirect significant shareholders and the persons designated to exercise administration and/or management responsibilities shall submit their identification data and provide a description of the relations such persons have with the bank, in accordance with the provisions of Art. 7 para. (1) point 15 of Government Emergency Ordinance No. 99/2006. (2) In order to assess the persons provided for in para. (1), the National Bank of Romania may require any additional information and documents.
SECTION 3 Documents necessary for obtaining the authorisation
Art. 25. – (1) With a view to obtaining the authorisation, within the time limit provided under Art. 33 para. (5) of Government Emergency Ordinance No.99/2006, as subsequently amended and supplemented, the documents certifying the establishment of the bank in accordance with the applicable provisions shall be submitted to the National Bank of Romania.
16 (2) The documents to be submitted at this stage shall include:
a) the certified copy or the original of the Articles of association. The exactly date of the Articles of association is the subscription date of the share capital; b) the letter from the depositary of the funds for the share capital, confirming the amount paid up by each shareholder in a special account for the collection of the share capital, which was blocked until the bank was registered; b1) documents certifying that the amount paid by each shareholder in the account referred to in point. b) has been paid by credit institutions or financial institutions subject to supervision by competent authorities of Member States or third countries considered to have equivalent systems to those in the European Union to combat money laundering and terrorist financing
c) the notification with respect to the equity stake in the share capital and the voting rights held indirectly by the significant shareholders, signed by the representative(s) of direct shareholders; c1) updated information for each of the direct and indirect significant shareholders and direct shareholders who do not hold a qualifying holding, excluding credit institutions and non-banking financial institutions registered in the special register, Romanian legal entities;
d) the notification with respect to the identity of the financial auditor, accompanied by the documents provided for in para. (4); e) the certified copy of the certificate of registration issued by the Trade Register Office and of the registration decision; f) the notification regarding the existence of own regulations on the carrying out of activity, signed by the persons designated to perform management tasks in their capacity as managers or members of the directorate; g) the report of the financial auditor, drawn up in accordance with the international standards in the field, attesting that the IT system that will be implemented at the bank level is appropriate to the features and volume of activities expected to be carried out during the first three years of activity, taking into consideration at least the following: the ability to perform the activities concerned, the security level of information, the ability to observe the rules of the payment systems to which the bank decides to connect, the ability to submit the reports required by the National Bank of Romania, the ability to connect to the interbank communications network, the ability to allow the utilisation of data collection systems, the calculation of prudential indicators, the fulfillment by the automated data processing systems in the financial and accounting field of the minimum criteria set forth by the regulations in force. (21) For updating the information provided in para. (2) lett. c1) relating to significant direct and indirect shareholders, legal persons, for each of them will be reported the following: a) the most recent annual financial statements on an individual and consolidated level, audited, as appropriate, as well as the most recent individual and consolidated interim financial statements, drawn up after the date of submission of the licensing application; b) estimates of the balance sheet and profit and loss account for the next three years, on an individual and consolidated basis, signed by the shareholder, accompanied by a grounding report for the forecasted value adjustments presented initially, if there have
17 been recorded significant adverse developments the financial statements referred to in point. a) compared to those presented in the first stage of the licensing process; c) the model questionnaire in Annex no. 2, where the information originally presented therein was changed, duly completed with updated information; (22) For updating the information provided in para. (2) lett. c1), relating to direct shareholders, legal persons, which do not have a qualifying holding, for each of them will be submitted documents mentioned in para. (21) lett. a) and, if applicable, lett. c). (23) For updating the information provided in para. (2) lett. c1) related to significant shareholders, natural persons, for each of them will be submitted the model questionnaire in Annex no. 2, where the information originally provided therein have changed, duly completed with updated information, but at least current information regarding its financial situation. (24) In case of unincorporated entities, direct shareholders and indirect significant shareholders of the bank, for updating the information provided in para. (2) lett. c1) there will be applied accordingly the provisions of para. (21) or (22), as appropriate. (3) The financial auditor referred to in para. (2) let. g) shall be an active member of a professional organisation acknowledged by the International Federation of Accountants (IFAC), observe the Code of Ethics issued by IFAC, and have employees with relevant experience as concerns the information systems. The curricula vitae stating the required experience of the above-mentioned persons shall be submitted to the National Bank of Romania. (4) The verification of the level of the information system adequacy to the specific of the activity that is going to be carried out, in accordance with the provisions of para. (2) let. g), may be the subject of a report drawn up in compliance with the standards in the field, by an auditor of the information systems, member of a professional organisation acknowledged worldwide, and who has experience in the financial and banking system. (5) The auditor of the information systems referred to in para. (4) shall provide a short description of his/her activity or, as appropriate, curriculum vitae stating the required experience. When the auditor of the information systems is a member of a professional organisation abroad, the National Bank of Romania may require the documents certifying the fulfilment of the requirements provided for in para. (4). (6) When the conditions governing the granting of approval for the establishment of the bank were amended, the following documents shall also be submitted: a) the documents provided for in Art. 20, which are necessary to the National Bank of Romania in order to assess the amendments occurred; b) the statement of the persons designated to exercise administration and/or management responsibilities in their capacity as board members, managers, members of the supervisory council or of the directorate that have not been assessed by the National Bank of Romania during the first stage of the authorisation process, regarding the adoption of the activity plan. (7) The financial auditor shall submit the following documents: a) the record of his/her capacity as financial auditor authorised to carry out this activity on the territory of Romania; to this effect, a copy of the authorisation issued by the Chamber of Financial Auditors of Romania certifying his/her capacity as a member shall be submitted; b) the questionnaire, whose model is provided for in Annex 5, filled in and signed.
(8) Where the person designated as the financial auditor of the bank was approved and acts in this capacity in another credit institution or branch of a foreign credit institution, the documents provided for in para. (7) shall be replaced by a statement confirming that the 18 information in the documents in the records of the National Bank of Romania has not been subject to amendments or noticing the amendments occurred, as appropriate. Where the documents in the records of the National Bank of Romania are incomplete and fail to meet the requirements provided for in para. (7), they shall be appropriately completed.
Art. 26. – Where one or several branches or secondary places of business are opened concomitantly with the establishment of the bank, in each case, the following documents/information shall be submitted to the National Bank of Romania: a) the certified copy of the certificate of registration with the Trade Register Office and of the registration decision in the case of opening branches, the ascertaining certificate attesting the records in the trade register with respect to the opening of other secondary places of business which have not gained the branch status, as well as to the registration of the managers of such secondary places of business; b) the full address and telephone and/or fax number of the branch or the secondary place of business; c) for the person(s) appointed to ensure the management of the secondary place of business, the copy of the identification document, whose authenticity shall be certified by the holder of the identification document, a curriculum vitae, drawn up in accordance with the provisions of Art. 22 para. (1) let. b), and a certificate of criminal record, with the appropriate application of the provisions of Art. 22 para. (2).
CHAPTER III Authorisation of savings banks for housing, Romanian legal entities
Art. 27. – The provisions of Chapter II are applicable accordingly to savings banks for housing, where there are no contrary provisions in this chapter.
Art. 28. – In order to obtain the establishment authorisation, the documents submitted to the National Bank of Romania by the savings bank for housing shall include also the General Business Conditions, the General Conditions of saving-lending contracts and the types of contracts offered to customers.
Art. 29. – (1) The plan of activity shall be elaborated by accordingly applying the provisions of Art. 23 and by observing the provisions below.
(2) The savings bank for housing shall prove the achievement in the long term of a collective customers-savings ban for housing contribution ratio of at least 1. For this purpose, the estimations on financial statements shall be drawn up for the first ten years of activity.
(3) The plan of activity shall include also the following information: a) the estimations on the anticipated and intermediary financing, large-value contracts, the financing related to the construction of commercial, industrial, and social-cultural premises, the exposures to the trading companies in which the savings bank for housing holds interests, the establishment and use of the special fund, with the observance of the limits and requirements provided for them by National Bank of Romania Norms No. 5/2003 on the specific operating conditions for savings banks for housing;
19 b) data referring to the specific organisation of the activity to be carried on, the description of the manners of distributing products and training sales persons, as the case may be. (4) The plan of activity shall be accompanied also by a report of a financial auditor on the management system of collective saving and lending for the housing sector, drawn up in accordance with the relevant international standards and with the contract concluded between parties.
Art. 30. – (1) The calculations in respect of the unfolding of the saving-lending contracts of included in the General Business Conditions shall be accompanied by supporting notes related to the factors taken into consideration for the saving period and for the lending period, and shall indicate at least the employed parameters, the manner of calculating the evaluation figure and its correlation with the individual customer- savings bank for housing contribution ratio, the monthly trend of the evaluation figure and of the individual customer- savings bank for housing contribution ratio at the time of meeting the assignment requirements, the minimum, average, and maximum waiting time. (2) The employed parameters, specified in para. (1) shall refer at least to: the amount saved monthly, monthly repayments, the credit commission, the interest rate paid on savings and the interest rate charged on loans. (3) The minimum waiting time shall be computed by taking into account the cumulative fulfillment of the requirements referring to the minimum evaluation figure and to the minimum saving period. (4) The average waiting time shall be computed where there is an individual customer- savings bank for housing contribution ratio equal to 1. (5) The maximum waiting time shall be computed as the period for which the saving of the entire contracted amount is ensured by paying the interest rate on savings and the interest rates on loans.
Art. 31. – (1) The procedure for the assignment of saving-lending contracts shall refer at least to: the composition of the assignment volume and the calculation of the liquidities to be assigned, the data regarding the assessment of fulfilling the assignment requirements and the terms for assignment, the requirements for the participation in the assignment procedure, the target evaluation figure. (2) The target evaluation figure is the lowest evaluation figure for the assignment, out of the means available at a certain assignment time, of all contracts having the same evaluation figure which fulfill the assignment requirements. The target evaluation figure shall not be lower than the minimum evaluation figure and it must correspond at least to the minimum individual customer- savings bank for housing contribution ratio provided by National Bank of Romania Norms No. 5/2003 on the specific operating conditions for savings banks for housing.
Art. 32. – The amounts accrued in order to be assigned or those already assigned, but for which customers have not applied, may be used by the savings bank for housing in making other investments, to the extent to which a long-term uniform assignment is ensured for the saving-lending contracts. The investments may be made in low credit-risk assets only, in compliance with the provisions laid down in National Bank of Romania Norms No. 5/2003 on the specific operating conditions for savings banks for housing.
Art. 33. – The cancellation procedure of saving-lending contracts must provide at least the following: a) the percentage of the assignment volume which may be used for refunding the
20 savings under the cancelled contracts; b) the time limit calculated from the date of filing the application for cancellation, within which the savings bank for housing is to refund the taken savings; c) the possibility to postpone the refunding of savings where the percentage of the assignment volume cannot cover such payment; d) the setting of a maximum period during which the refunding may be postponed, period that cannot exceed six months from the date of filing the application for cancellation; e) the savings bank for housing shall continue to pay the interest rate on taken savings according to the contract until their refunding.
Art. 34. – (1) The simplified unfolding procedure of saving-lending contracts must be clearly defined in the General Business Conditions. In regulating such procedure, at least the following requirements shall be taken into consideration: a) upon opening the procedure, the taking of new savings and the granting of new credits shall cease, the activity of the savings bank for housing being confined only to collecting the principal and the interest on credits in its portfolio, for the purpose of refunding the taken savings until the date of opening the procedure; b) upon opening the procedure, the savings bank for housing shall use all available means, including liquidities, investments and participations, for the purpose of refunding the taken savings at the request of customers;
c) during the period of unfolding the simplified procedure, the savings bank for housing shall continue to pay the interest rate on taken savings, according to the contract; d) the procedure shall clearly establish the priority order for refunding the taken savings purposes and the criteria based on which this priority order is established, so all the customers of the savings bank for housing are equally treated; e) where a judgment has been passed to open the bankruptcy proceedings against the savings bank for housing, the simplified unfolding procedure shall be terminated.
(2) The consequences on the rights and obligations of the customer, arising from the opening of the proceedings referred to in para. (1), must be clearly specified in the General Conditions for the saving-lending contracts.
Art. 35. – (1) For the purpose of rendering viable the land transferred to the urban area, savings banks for housing may finance projects that stimulate house building or generate benefits for the dwelling areas, such as: land-reclamation works for the construction of dwellings, the construction, maintenance, or modernisation of housing, social-cultural, sanitary, leisure premises and suchlike, the construction of water-, gas-, electricity-supplying systems and sewerage systems. (2) The buildings may be financed in the following cases, by observing the following conditions: a) they are mainly housing buildings; b) where they are not mainly housing buildings, nor do they contribute to the catering of the dwelling areas or to the fulfillment of social and cultural needs, the financing shall be performed only within the limits of the percentage of dwelling spaces in the entire structure to be built;
21 c) where the buildings are predominantly or entirely built for commercial, industrial, social-cultural purposes, the financing shall be performed only if such buildings contribute to the catering of dwelling areas or the fulfillment of social-cultural needs. (3) A building shall be considered to be mainly a housing building where the operational area used for dwelling is greater than the operational area used for other purposes.
Art. 36. – (1) The General Conditions of saving-lending contracts must include all contractual conditions and terms, in accordance with Government Emergency Ordinance No. 99/2006, and they shall be included in the contract. For this purpose, the General Conditions of saving-lending contracts shall be drawn up in a clear and comprehensible form and shall be fully acknowledged and accepted by customers through signing the contract, which shall include an express clause in this respect. (2) The General Conditions of saving-lending contracts must encompass the minimum-admitted values for the evaluation figures and other adequate assignment requirements, so that, on a long term, they lead to a collective customers-savings ban for building contribution ratio of at least 1.
Art. 37. – (1) The types of contracts to be offered by savings banks for housing must be drafted so that to ensure the observance of the following requirements: a) a uniform and as short as possible waiting time; b) a minimum saving period of at least 18 months; c) the differences between the interest rate charged on loans and the interest rate paid on savings shall not exceed 4%; d) the highest interest rate on taken savings, paid by the savings bank for housing, shall not exceed the level of the lowest interest rate on loans granted.
(2) In evaluating a type of contract, the National Bank of Romania shall also take into consideration the level of commissions and of other bank charges payable by the customer, so that a balance is ensured between the interests of savings banks for housing and those of the customers thereof.
Art. 38. – (1) The savings banks for housing shall allot on an annual basis, before the profit taxation, the amounts necessary for the establishment of the special fund provided by Government Emergency Ordinance No. 99/2006 inasmuch as such amounts are reflected in the net profit. (2) During the first business years, the savings banks for housing shall establish the special fund, under the terms of para. (1), as follows: a) at the end of years 1 and 2, at least 1% of taken deposits; b) at the end of years 3 and 4, at least 1.5% of taken deposits; c) at the end of years 5 and 6, at least 2% of taken deposits; d) at the end of year 7, at least 2.5% of taken deposits.
(3) As of the end of year 8, the allotment of the resources stipulated by Government Emergency Ordinance No. 99/2006 on the establishment of the special fund shall reach the maximum level of 3% of taken deposits, under the terms of para. (1).
Art. 39. – The General Business Conditions, the General Conditions of saving-lending contracts, and the types of contracts proposed to be made available to customers shall be accompanied by the report of a financial auditor, assessing the observance of the minimum 22 levels set for the individual customer-savings bank for building contribution ratio and for the aggregate customer-to- savings bank for housing contribution ratio, according to National Bank of Romania Norms No. 5/2003 on the specific operating conditions for savings banks for housing, and the calculations underlying the type of contract offered, drawn up in accordance with the relevant international standards and with the contract concluded by parties.
Art. 40. – The financial auditor that draws up reports regarding the plan of activity, the General Business Conditions, the General Conditions of saving-lending contracts, and the types of contracts proposed to be made available to customers must be supported by members of the staff with expertise in the field of credit institutions specialised in collective saving-lending for the housing sector and, as the case may be, in information systems, for whom a curriculum vitae stating the required experience shall be submitted to the National Bank of Romania.
Art. 41. – (1) The persons nominated as financial auditors of a savings bank for building shall have expertise in the savings banks for housing auditing field.
(2) In the case of financial auditors, legal entities, at least the financial auditor, natural person, who coordinates the team by auditing the savings bank for housing, shall meet the requirement provided by para. (1).
Art. 42. – (1) The functioning authorisation of a savings bank for housing shall be accompanied by the approvals for the General Business Conditions, the General Conditions of saving-lending contracts, and the types of contracts. (2) The approval by the National Bank of Romania of the General Business Conditions, the General Conditions of saving-lending contracts, and of the types of contracts of a savings bank for housing does not stand for a guarantee or opinion of the National Bank of Romania with respect to the opportunity, advantages or disadvantages, profit or risks that the conclusion of a saving-lending contract might imply. The approval shall certify only the fact that they have been drawn up in accordance with the legal provisions.
CHAPTER IV
Authorisation of mortgage banks, Romanian legal entities
Art. 43. – The provisions of Chapter II are applicable accordingly to mortgage banks as well during the authorisation process where there are no contrary provisions in this chapter.
Art. 44. – The plan of activity shall include, in addition to the provisions of Art. 23, the presentation of the issues of mortgage bonds provided to be performed during the first three years of activity, which shall include information on the estimated date of each issue and the main features of the bond loans and of the mortgage loan portfolios assigned to them, in accordance with the provisions of Art. 20 para. (1) let. b) and c) of Law No. 32/2006.
CHAPTER V
Authorisation of institutions issuing electronic money, Romanian legal entities Art. 45– Repealed Art. 46. – Repealed Art. 47. – Repealed Art. 48. – Repealed
23
CHAPTER VI Authorisation of credit-cooperative organisations
SECTION 1 Common provisions
Art. 49. – (1) The provisions of Art. 16, Art. 17 and Art. 18 are applicable accordingly to credit co-operative organisations as well.
(2) The provisions of Art. 8 para. (1) are applicable accordingly to the central body and to the affiliated credit co-operatives, which are established simultaneously with the central body. (3) The provisions of Art. 8 para. (2) are applicable accordingly to the central body. (4) The provisions of Art. 11, 12 and of Art.182 - 1824 are applicable accordingly to the credit co-operative members with participations representing at least 10% of the share capital of the credit co-operative.
Art. 50. – The persons designated to run the secondary place of business of a central body shall have adequate reputation and expertise in order to discharge the assigned duties for the central body to exercise the legal tasks in relationship with the affiliated credit co-operatives.
Art. 51. – The participation in the share capital of each credit co-operative member shall not reach too high a level so that the withdrawal of the respective member should have a significant impact on the financial position of the whole network, which, thus, could not be able to operate by observing the banking prudential requirements such as the requirements on the minimum aggregated capital and the minimum number of credit co-operatives within a network.
Art. 52. – The central body shall maintain confidentiality of the information acquired during the authorisation process of the affiliated credit co-operatives, except for the cases provided by law.
SECTION 2 Authorisation of credit co-operatives affiliated to a central body already authorised
Art. 53. – (1) In order to obtain the establishment approval, the central body shall submit to the National Bank of Romania an application for the authorisation of the credit co-operative, accompanied by the following documents: a) the draft of the Articles of association; b) the list of the credit co-operative members; c) the documents provided by para. (2) for the co-operative members who subscribed capital representing at least 10% of the share capital of the credit co-operative; d) showing the operational territorial area of the credit co-operative, by indicating the neighbourhoods; e) the report on the identity of the persons designated to exercise administration and/or management responsibilities of the credit co-operative, accompanied, for each person by the questionnaire provided in Annex 4, the certificate of criminal record, by 24 applying accordingly the provisions of Art. 22 para. (2) and (21), the curriculum vitae and the statement on own responsibility stating that the person observes the provisions of Art. 107 para. (3) of Government Emergency Ordinance No. 99/2006, as subsequently amended and supplemented, and that he/she neither undergoes any of the situations provided by Art. 110 and Art. 373 para. (1) of Government Emergency Ordinance No. 99/2006, as subsequently amended and supplemented, nor other situation of incompatibility provided by the legislation in force and that he/she understands to renounce to any situation of incompatibility, before starting the exercise of the function for which the approval of the National Bank of Romania was achieved. f) Repealed g) the approval by the central body for the financial auditor of the credit co-operative; h) the central body affiliation agreement; i) a report by the board of directors or, as the case may be, by the supervisory council of the central body, which shall include the substantiation of the decision to approve the affiliation of the credit co-operative. (2) For co-operative members that subscribed capital representing at least 10% of the share capital of the credit co-operative the following documents shall be submitted: a) curriculum vitae; b) the certificate of criminal record, by applying accordingly the provisions of Art. 22 para. (2) and (21); c) the questionnaire whose model is provided by Annex 2; d) a bona fide commitment, by which that person agrees that it will not formulate any withdrawal application from the credit co-operative within 2 years from the date of shares subscription; (3) In the report provided by para. (1) let. i) the central body shall emphasise, mainly, the following: a) the assessment on the activity that the credit co-operative is going to carry out; b) the assessment of the persons designated to exercise management responsibilities of the credit co-operative; c) other reasons underlying the decision to approve the affiliation of the credit co-operative.
(4) The central body represents the co-operative members, namely the credit co-operative in relationship with the National Bank of Romania during the authorisation process.
Art. 54. – The National Bank of Romania’s decision on the approval or rejection of the establishment of the credit co-operative shall be communicated to the central body, which shall remit it to the applicant.
Art. 55. – In order to obtain the functioning authorisation of the credit co-operative, within the time limit provided by Art. 33 para. (5) of Government Emergency Ordinance No. 99/2006, as subsequently amended and supplemented, the central body shall submit to the National Bank of Romania the following documents: a) the legalised copy of the registration document of the credit co-operative issued by the Trade Register Office;
25 b) the letter from the credit institution with which the account destined for the collection of the share capital was opened, confirming the amount paid by each co-operative member and that the account was blocked until the registration of the credit co-operative; b1) documents certifying that the amount paid up by each cooperative member who has subscribed shares representing at least 10% of the share capital of cooperative credit in the account referred to in lett. b) has been paid through credit institutions and financial institutions subject to supervision by competent authorities of Member States or third countries considered to have equivalent systems in the European Union to combat money laundering and terrorist financing;
c) the document attesting the subscription of capital to the share capital of the central body for affiliation; d) the legalised copy of the Articles of association or an original copy thereof; e) the notification on the existence of regulations regarding the carrying out of the activity, under the signature of the persons designated to exercise management responsibilities of the credit co-operative.
Art. 56. – The National Bank of Romania’s decision to approve the authorisation application, accompanied by the functioning authorisation and the approval for managers, members of the directorate of the credit co-operative respectively or, as the case may be, the National Bank of Romania’s decision to reject the authorisation application, including the reasons underlying the decision, shall be communicated to the central body, which shall remit it immediately to the applicant.
SECTION 3 Authorisation of the central body and of the affiliated credit co-operatives
Art. 57. – (1) In order to obtain the establishment approval of the central body, together with all the credit co-operatives in the network, an application shall be submitted to the National Bank of Romania, in accordance with the model provided by Annex 7, accompanied by the documents provided by Art. 58 and Art. 59.
(2) The collective application for the establishment approval shall be signed by the persons empowered by power of attorney or attorney delegation, at the level of each credit co-operative, by the co-operative members to represent them in relationship with the National Bank of Romania during the authorisation process of the central body and of the affiliated credit co-operatives. The founder co-operative members of two, several or of all credit co-operatives may empower the same persons to represent them in relationship with the National Bank of Romania.
Art. 58. – (1) For each credit co-operative that is established simultaneously with the central body the documents provided by Art. 53 para. (1) let. a)-e) shall be submitted alongside an affiliation commitment, under the signature of the persons designated to exercise administration and/or management responsibilities of the credit co-operative, as well as the power of attorney provided by Art. 57 para. (2).
(2) Repealed
26 Art. 59. – (1) For the central body, the following documents shall be submitted: a) the Articles of association, specifying the scope of activity of secondary places of business, the identification data of the persons designated to ensure their management, as well as the limit of their mandate; b) the list of credit co-operatives to be affiliated; c) the notification on the persons designated to exercise administration and/or management responsibilities of the central body. For each of them the following documents shall be remitted: a copy of the identity card whose conformity with the original shall be certificated by the owner of the identity card, the curriculum vitae filled in according to Art. 22 para. (1) let. b), the certificate of criminal record, by applying accordingly the provisions of Art. 22 para. (2) and (21), the questionnaire provided by Annex 4, signed and dated by the person in question, and the statement on own responsibility provided by Art. 53 para. (1) let. e). (2) Except for the specific documents of the central body provided by para. (1) the following documents shall be submitted: a) the draft of the general Articles of association; b) the plan of activity adopted by the persons designated to exercise administration and/or management responsibilities as board members, managers, members of the supervisory council or of the directorate of the central body.
Art. 60. – (1) The plan of activity shall be drawn up by applying accordingly the provisions of Art. 23 and by observing the provisions of paras. (2)-(5).
(2) The presentation of objectives, policies, and strategies shall refer to both the central body and the credit co-operative network as a whole and shall include also a description of the organisation manner of the intra-network funds transfer. (3) The presentation of the formal administrative framework of the activity carried out by credit co-operatives at the network level shall include also the manner of the central body and its branches to discharge their responsibilities of representing, guiding, regulating, supervising, controlling and informing the affiliated credit co-operatives. (4) The presentation of the process aimed at identifying, managing, monitoring, and reporting risks, of the internal assessment process of capital adequacy to the risk profile shall refer to both the central body and the credit co-operative network as a whole. (5) The estimations of financial statements shall be drawn up for the central body, as well as at the level of the credit co-operative network.
Art. 61. – (1) In order to obtain the functioning authorisation of the central body and of the affiliated credit co-operatives which were established in accordance with the collective approval for the establishment of the network, within the time limit provided by Art. 33 para. (2) of Government Emergency Ordinance No. 99/2006, as subsequently amended and supplemented, the following documents shall be submitted to the National Bank of Romania, for each credit co-operative organisation in the network: a) the legalised copy of the registration certificate issued by the Trade Register Office and of the conclusion of the registration procedure; b) the letter from the depository of funds destined to represent the share capital, confirming the amount paid by each co-operative member/credit co-operative in a special account opened for collecting the share capital, blocked until the registration of the credit cooperative organisation;
27 b1) the documents referred to in Art.55 lett.b1); c) the legalised copy of the Articles of association or an original thereof; d) the notification on the existence of own regulations, as well as of framework-regulations in the case of the central body; e) the confirmation by the central body of the fulfillment of the legal requirements related to the establishment of the operation geographical areas of the affiliated credit cooperatives; f) the notification on the identity of the financial auditor accompanied by the copy of the document issued by the Chamber of Financial Auditors of Romania, attesting his capacity as a member, and by the questionnaire, whose model is provided by Annex 5, filled in and signed; g) the report provided by Art. 25 para. (2) let. g), by taking into consideration the provisions of Art. 25 para. (3)-(5).
(2) The report provided by para. (1) let. g) shall confirm also the capacity of the information system to support the carrying out of the payment operations between the affiliated credit cooperatives. (3) For the branches of the central body opened simultaneously with its establishment, the documents provided by Art. 26 shall be submitted to the National Bank of Romania. (4) Where the conditions under which the approval for the establishment of the central body/credit co-operatives was granted have changed, the following documents shall be submitted:
a) the documents provided by Art. 58 or Art. 59, necessary to the National Bank of Romania in order to assess the changes; b) the statement of the persons designated to exercise administration and/or management responsibilities as board members, managers, members of the supervisory council or of the directorate, who had not been assessed by the National Bank of Romania during the first stage of the authorisation process, on the adoption of the plan of activity.
CHAPTER VII Authorisation of the branches of credit institutions in third countries
Art. 62. – The provisions of Art. 8, 16, 17 and, as the case may be, of Art. 48 para. (1) are applicable accordingly to the branches of credit institutions in third countries as well.
Art. 63. – The name of the branch established in Romania by a credit institution in a third country shall include the name of the credit institution, followed by the word “branch” and the locality/country where the branch has its headquarters.
Art. 64. – Repealed
Art. 65. – Repealed
Art. 66. – In the case of the persons nominated as financial auditors, the provisions of Art. 18, Art. 41 or Art. 47 shall be applied as appropriate.
Art. 67. – (1) In order to obtain the approval for the establishment of the branch, the applicant credit institution in a third country shall submit an application for authorisation to the
28 National Bank of Romania, according to the model provided by Annex 8, accompanied by the following documents: a) the legalised copy of the Articles of association; b) an excerpt from the Trade Register of the home country, attesting at least the registration of the foreign credit institution and the identity of its representatives; c) the questionnaire whose model is provided by Annex 2, filled in and signed by the legal representatives of the credit institution in a third country; d) the last three audited financial statements, the most recent interim financial statements of the credit institution in a third country, and, as the case may be, those drawn up at the level of the accounting-consolidation area which includes the credit institution, issued in accordance with the International Standards of Financial Reporting or with some regulations consistent with the European accounting directives. The individual and/or consolidated annual statements, which are drawn up in compliance with other internationally acknowledged accounting standards, may be accepted with the approval of the National Bank of Romania. The provisions of Art. 21 para. (3) shall be applied accordingly; e) the statement of the competent authority supervising the credit institution in a third country on the rejection or approval, as the case may be, of the establishment of a branch in Romania; f) the decision of the statutory body of the foreign credit institution regarding the opening of a branch on the territory of Romania, reflecting at least the information provided by para. (2); g) the plan of activity adopted by the nominated managers of the branch of the credit institution in the third country and by the legal/statutory representatives of the credit institution in the third country, drawn up by accordingly applying the provisions of Art. 23, Art. 29 and, as the case may be of Art. 46; h) the list of the persons having close relationships with the foreign credit institution. For the respective persons, the documents provided by Art. 24 shall be remitted; i) in the case of specialised credit institution branches, the specific documents provided by this Regulation; j) any other information that the credit institution considers as likely to support the viability of the presented project.
(2) The decision of the statutory body of the credit institution in a third country regarding the establishment of a branch on the territory of Romania shall reflect at least the following information: a) the address of the branch headquarters; b) the operations to be performed on the territory of Romania by the branch, without exceeding the scope of activity of the respective credit institution; c) the amount to be made available to the branch as endowment capital, according to Art. 70 of Government Emergency Ordinance No. 99/2006; d) the identity of the persons (at least two) empowered to manage the activity of the branch and to legally engage the credit institution in the third country in Romania and their powers. For such persons, the documents specified in Art. 22 shall be submitted.
Art. 68. – (1) In order to obtain the functioning authorisation, within the time limit
29 provided by Art. 33 para. 2 of Government Emergency Ordinance No.99/2006, as subsequently amended and supplemented, the documents attesting the fulfillment of all the formalities for the establishment of the branch shall be submitted to the National Bank of Romania.
(2) The documents to be submitted shall include: a) the letter from the depository of the funds destined to represent the endowment capital of the branch, confirming its being deposited by the credit institution in the third country in an account that is to remain blocked until the registration of the branch with the trade register; b) the legalised copy of the certificate issued by the Trade Register Office stating the registration of the branch; c) the notification with respect to the identity of the financial auditor, accompanied by the documents provided by Art. 25 para. (4), by accordingly observing the provisions of para. (5) of the same article. d) the report provided by Art. 25 para. (2) let. g), by taking into consideration the provisions of Art. 25 para. (3)-(5).
CHAPTER VIII Rejection of the authorisation application
Art. 69. – (1) For the well functioning of the banking system and in order to ensure its viability and stability, by laying the groundwork for the carrying out of activities by each credit institution, Romanian legal entity, and branches of a credit institution in a third country, in accordance with the rules of a prudent banking practice, the National Bank of Romania may reject an authorisation application according to Art. 38 of Government Emergency Ordinance No. 99/2006, at any stage of the authorisation process. (2) Apart from the situation provided by para. (1), the authorisation application of a savings bank for housing, Romanian legal entity, may be rejected by the National Bank of Romania, according to Art. 295 of Government Emergency Ordinance No. 99/2006, at any stage of the authorisation process.
Art. 70. – (1) The refusal to grant the functioning authorisation shall automatically call for the revocation of establishment approval. (2) The establishment approval shall be also revoked in case of non-observance of the time limit provided by Art. 33 para. 2 of Government Emergency Ordinance No. 99/2006, as subsequently amended and supplemented, for submitting of documents for obtaining the functioning licensing.
CHAPTER IX Final and transitory provisions
Art. 71. – To avoid delays in providing information required in the licensing process, including the request for further information, in anticipating a formal licensing application, the National Bank of Romania may be required to organize preliminary meetings for consulting and clarifying items related to the proposed project, especially if the project is particularly complex.
30 Art. 72. – Repealed
Art. 73. – Repealed
Art. 74. – (1) The National Bank of Romania shall take into consideration the information made available during the authorisation process only if it is relevant, based on the circumstances specific to each case.
(2) The applicants shall support with appropriate documents the information provided and shall state to the National Bank of Romania that all the information supplied is complete and true. (3) The provisions of para.(2) shall not prejudice the right of the National Bank of Romania to verify the statements made by the applicants within the licensing process, by requiring documents to prove that those declared are true and/or by obtaining confirmation from other national or foreign authority, as appropriate.
Art. 75. – Any curriculum vitae submitted to the National Bank of Romania in accordance with this Regulation shall be signed and dated by the respective person.
Art. 76. – The personal data of the persons who according to the requirements of this Regulation shall remit to the National Bank of Romania the curriculum vitae, shall be processed by the National Bank of Romania, in the discharge of its responsibilities in accordance with the legal provisions in force, in its capacity as a personal data operator.
Art. 77. – (1) The documents submitted in support of the application for authorization will be mentioned in an opis. The documents shall be submitted to the National Bank of Romania in Romanian. The official documents and those bearing a private signature, for which this Regulation does not provide any form to be submitted to the National Bank of Romania, shall be submitted in original or in a legalised copy, as the case may be. For the documents drawn up in a foreign language, a legalised translation of all documents shall be submitted as well. For the documents drawn up in an international circulation language, the National Bank of Romania may exclude, from case to case, the appliance of the requirement relating to the legalised translation. (2) The documents issued or legalised by a foreign authority shall be super legalised under the terms provided by law or shall bear the apostil provided by the Convention with regard to the waiving of the super legalisation requirement for foreign official documents, adopted at Hague on October 5, 1961. Where the waiving of these requirements is invoked, a confirmation by the competent Romanian or foreign authorities shall be submitted. Art. 78. – Annexes No. 1 to 8 are part of this Regulation.
Art. 79. – (1) The licensing applications and the related documents submitted to the National Bank of Romania, which are not set on the date of the entry into force of this Regulation, and which are not in accordance with the provisions of this Regulation, shall be rejected and submitted again by the applicants after the correction of deficiencies.
(2) If the applications and the documents are not withdrawn, the existent deficiencies, both in the case where the fundamental conditions are not fulfilled, and the case where the documents are incomplete or incorrect, shall be rejected until the expiry date of the terms provided by Art. 33 paras.(1) and (3) of Government Emergency Ordinance No. 99/2006, by observing accordingly the provisions of Art. 4 para. (4). Otherwise, the provisions relating to the rejection of the licensing application in Government Emergency Ordinance No. 99/2006 shall become applicable.
31
Art. 80. – On the date of the entry into force of this Regulation, National Bank of Romania Norms No.10/2004 on the authorisation of banks, mortgage credit banks, money issuing institutions, other than banks, savings banks for housing, and branches in Romania of foreign credit institutions, as published in Monitorul Oficial al României, Part One, No. 945 of 15 October, 2005, as subsequently amended and supplemented and National Bank of Romania Norms No. 7/2007 on the authorisation of credit co-operative organisations, published in Monitorul Oficial al României, Part One, No. 452 bis of 13 September 2000, as subsequently amended and supplemented, shall be repealed.
Chairman of the National Bank of Romania Board,
Mugur Constantin Isărescu
32 ANNEX 1
APPLICATION FOR AUTHORISATION
Dear Mr. Governor,
I/we, the undersigned, (full name) acting as proxy/proxies under ...... , (reference number and date of the deed in trust/power of attorney) request the authorisation of the credit institution*) ………………………………………………...... (registered name of the credit institution)
I/we indicate the following: -the persons designated to fulfill administration and/or management responsibilities as board members, managers, respectively members of the supervisory board or of the directorate are: ……………………………………………………………………………………………… …...... -the registered name and address of the registered office of the credit institution where the account shall be opened with for the paid share capital are:…………………………………………………… ……...... ; -the address of the registered office and, as appropriate, of the actual place of business of the credit institution is/are: …......
In supporting this application I/we attach the following documents, in accordance with the provisions**) ...... of National Bank of Romania Regulation No. 11/2007 on the authorisation of credit institutions, Romanian legal entities, and of branches in Romania of credit institutions in third countries: ......
Our contact address is: ......
Telephone...... Fax...... Date...... Signature......
To the Governor of the National Bank of Romania *) The phrase “credit institution” shall be replaced correspondingly by the category of credit institution for which the authorisation is requested. **) The following shall be filled in: - Art. 20 in the case of banks, mortgage banks, electronic money institutions; - Art. 20 and Art. 28 in the case of savings banks for housing.
33
ANNEX 2 (Confidential) *) QUESTIONNAIRE for the stockholders in the share capital of the credit institution
*) This questionnaire will be filled in by each participant in the share capital of the credit institution and by each participant that will hold indirectly a qualifying holding. Where requesting authorization of branches in Romania of a credit institution from a third country, the questionnaire will be filled in by the latter, all the questions concerning the participant in the credit institution's capital being considered to refer to the credit institution in the third country. The questionnaire shall be drawn up according to the template, in computerized form; all the questions must be thoroughly answered and all the necessary details must be given, so that the qualitative assessment and financial soundness of the participant in the share capital of the credit institution can be made, in relation to the level of participation to be held by him, and compliance with applicable legal requirements. Within the questionnaire, the words “credit institution” shall be replaced by the category of the credit institution for which the information is communicated. In case of credit institutions, Romanian legal entities, the information required in points 2.4 and 18. is not required to be provided. The questionnaires signed by way of representation shall not be accepted.
I. Identity of the participant (stockholder)
1. Natural person
Specify the full name, date and place of birth, nationality, domicile and residence. For persons with a nationality other than Romanian, specify also, if applicable, the date on which the participant has established his residence in Romania: …………………………………………………………………………………………………… …………………
2. Legal entity
2.1. Specify the registered name and business, the legal form and registered office address:
…………………………………………………………………………………………………… …………….
2.2. Provide a description of the activities carried out so far, detailing issues which are likely to support the fulfillment of professional competence.
…………………………………………………………………………………………………… ……………..
34
2.3. Specify the identity of the persons providing management activity of the legal persons (indicate full name, their function and if they have the right to represent the entity).
…………………………………………………………………………………………………… ……………….
2. 4. Communicate the identity of all persons who are real beneficiaries1 of the legal entity:
…………………………………………………………………………………………………… ………………..
3. Entity organized as a trust:
3.1. Specify the identity of all persons who will manage the assets (administrators) in accordance with the terms of the documents for the trust establishing and their participation in the resulted income distribution:
…………………………………………………………………………………………………… ………………….
3.2. Specify the identity of all persons who are real beneficiaries of the trust property:
…………………………………………………………………………………………………… ………………
II. Further information with regard to the stockholder
a) natural person
4. For the stockholder and any entity managed or controlled by him ever, indicate whether they are in one of the following situations:
a) has been or is currently under investigations or criminal proceedings, of relevant civil or administrative actions or disciplinary actions (including prohibition to hold the position of manager of an entity, bankruptcy, insolvency or similar proceedings)? These investigations, proceedings or actions were concluded with a sanction or prohibition? If yes, give details even if in the meantime occurred a rehabilitation.
…………………………………………………………………………………………………… ………………
b) has been or is currently the subject of investigations, policies, special supervisory procedures or sanctions from a supervisory authority? If yes, give details.
35 ………………………………………………………………………………………………………………………… ………………..
c) a request of a registration, authorization, quality of member or acquisition of a license to carry out a commercial activity, business or profession was refused; was subject to a withdrawal, dismissal or cancellation of a registration, authorization, quality of member or a license; was subject to an exclusion from an activity or profession, ordered by a regulatory or governmental authority? If yes, give details.
…………………………………………………………………………………………………… ……………….
d) has been dismissed from a function or a trust position, from a fiduciary relationship or a similar situation or it was requested the resignation or renunciation from such a position? If yes, give details.
…………………………………………………………………………………………………… ……………….
5. Provide information concerning the existence of a previous assessement of the stockholder’s reputation as a shareholder or as a person providing management activity of a credit institution or a financial institution, already performed by another supervisory authority. Specify the identity of that authority and provide proof of the result for that assessement.
………………………………………………………………………………………………………………………… ……………………
6. Provide information concerning the existence of a previous stockholder’s assessements conducted by a non-financial sector authority. Specify the identity of that authority and provide proof of the result for that assessement.
…………………………………………………………………………………………………… ………………….
7. Provide information about your financial situation and strength: details on the sources of income to the assets owned and obligations assumed, including pledges and other guarantees granted etc.:
…………………………………………………………………………………………………… …………………
List the documents attached in supporting the information provided
…………………………………………………………………………………………………… …………………… 8. Provide financial information of entities controlled or managed by the stockholder, including rating reports and public reports of entities and, where available, of the stockholder himself.
36
…………………………………………………………………………………………………… ………………
9. Describe the financial2 and non-financial3 interests and relationships of the stockholder with: a) any other shareholder of the credit institution …………………………………………………………………………………………………… …………….. b) any person entitled to exercise voting rights in the credit institution …………………………………………………………………………………………………… ………………
c) any person having responsibility for the administration and/or management of the credit institution concerned ………………………………………………………………………………………………… ……………. d) the credit institution and its group …………………………………………………………………………………………………… ……………… e) any other interests or activities of the stockholder which would be in conflict with the credit institution and possible solutions for these conflicts of interest …………………………………………………………………………………………………… ……………. b) legal entity
10. For the stockholder and for any entity being under its control, indicate whether they are in one of the following situations:
a) has been or is currently under investigation or criminal proceedings, of relevant civil or administrative actions or disciplinary actions (including prohibition to hold the position of manager of an entity, bankruptcy, insolvency or similar proceedings)? These investigations, proceedings or actions concluded with a sanction or prohibition? If yes, give details even if in the meantime occurred a rehabilitation.
…………………………………………………………………………………………………… ………………
b) has been or is currently the subject of investigations, policies, special supervisory procedures or sanctions from a supervisory authority? If yes, give details.
………………………………………………………………………………………………………………………… ………………..
37 c) a request of a registration, authorization, quality of member or acquisition of a license to carry out a commercial activity, business or profession was refused; was subject to a withdrawal, dismissal or cancellation of a registration, authorization, quality of member or a license; was subject to an exclusion from an activity or profession, ordered by a regulatory or governmental authority? If yes, give details.
…………………………………………………………………………………………………… ……………….
11. For persons providing management of the stockholder, legal entity, provide the information specified in question 10 by their attachment to this questionnaire, signed by the persons concerned.
…………………………………………………………………………………………………… ………………….
12. Provide information concerning the existence of a previous assessement of the stockholder reputation as a shareholder or as a person providing management activity of a credit institution or a financial institution, already performed by another supervisory authority. Specify the identity of that authority and provide proof of the result for that assessement.
………………………………………………………………………………………………………………………… …………………….
13. Provide information concerning the existence of a previous stockholder assessement conducted by a non-financial sector authority. Specify the identity of that authority and provide proof of the result for that assessement.
…………………………………………………………………………………………………… …………………
14. Describe the financial and non-financial interests and relationships of the stockholder with: a) any other shareholder of the credit institution
…………………………………………………………………………………………………… ……………..
d) any person entitled to exercise voting rights in the credit institution
…………………………………………………………………………………………………… ………………
e) any person having responsibility for the administration and/or management of the credit institution concerned ………………………………………………………………………………………………… ……………. 38 d) the credit institution and its group …………………………………………………………………………………………………… ……………… e) any other interests or activities of the stockholder which would be in conflict with the credit institution and possible solutions for these conflicts of interest …………………………………………………………………………………………………… …………….
15. Provide the structure of the stockholder’s ownership, by specifying the identity of all significant shareholders and the percentage of the share capital and voting rights held by them, and information on agreements between shareholders. …………………………………………………………………………………………………… ………………..
16. If the stockholder is part of a group (as a subsidiary or parent undertaking), provide a detailed organizational chart of the entire corporate structure, including the intra-group administration and management rules, and information regarding the ratio of the capital and voting rights of the relevant shareholders and activities currently undertaken by the group.
…………………………………………………………………………………………………… …………………..
17. If the stockholder is part of a group, indicate the supervised institutions within the group and the name of the concerned supervisory authority. …………………………………………………………………………………………………… ………………..
18. If the stockholder or the group to which it belongs benefit of ratings, provide information and relevant documents of the stockholder 's credit rating and overall rating of the group: …………………………………………………………………………………………………… …………………..
19. Specify if you are aware about the existence of legal provisions or administrative measures in the home state (e.g. permission to keep anonymity in terms of identity of the shareholders / associates, persons in charge with administration and / or management responsibilities of the stockholder, no organizational obligation and bookkeeping or preparation or publication of financial statements), to prevent effective supervision of the credit institution in which you intend to acquire holdings.
III. Information relating to equity participation in the credit institution
20. Name and address of the registered office of the credit institution / branch in Romania of a credit institution from a third country for which information is communicated: …………………………………………………………………………………………………… ………………. 39
21. Specify which is the overall objective pursued by participating in the share capital of the credit institution (e.g. strategic investment, portfolio investment). …………………………………………………………………………………………………… ………………..
22. Specify the guidelines taken into account by the stockholder about the nature, volume and profitability of the business of the credit institution in the coming years and, if appropriate, regarding the composition of the administration and / or management body of the credit institution. …………………………………………………………………………………………………… ………………..
23. Specify the number and type of shares, their value and the percentage of participation in the share capital of the credit institution and in the voting rights (in the calculation of voting rights will be considered art. 21 of NBR Regulation no. 11/2007): …………………………………………………………………………………………………… ……………………
a) which is to be held by the stockholder: b) currently held:
…..no. and type of shares …..no. and type of shares …..RON …..RON …..foreign currency …..foreign currency …..% of total share capital …..% of total share capital …..% of total voting rights …..% of total voting rights
24. The stockholder is part of a group of persons acting in concert to acquire a qualifying holding in the capital of the credit institution? If yes, specify the group composition, the nature of existent relations between its members and information related to other persons contribution on funding, means of participation in financial arrangements, future organizational arrangements etc. …………………………………………………………………………………………………… …………………..
25. Specify the provisions of the existing or planned agreements of the stockholder with other shareholders relating to the credit institution. …………………………………………………………………………………………………… ………………….
26. Specify the period for which you intend to hold shares after acquiring them, and any intent to increase, decrease or keep the level of participation in the next 3 years. …………………………………………………………………………………………………… …………………
IV. Information on funding participation in the credit institution's capital
27. Specify the source of funds used to obtain participation in the share capital of the credit institution, respectively:
40
a) details about using their own financial resources and about their origin, supported by grounding documents or solemn declaration, if it is not possible to provide supporting documents: …………………………………………………………………………………………………………………… ……………..
b) information on the means and network used to transfer funds (availability of resources that will be used for purchasing, financial arrangements etc.): …………………………………………………………………………………………………………………… ……………….
c) details regarding access to capital resources and financial markets and on funding for purchasing of shares: ………………………………………………………………………………………………… …………………
d) information on the use of borrowed funds contracted in the banking system (financial instruments that will be issued) or any other type of financial relationship with other shareholders of the credit institution (maturity, terms, pledges and other guarantees): ………………………………………………………………………………………………… ……………..
e) information regarding the assests of the stockholder or of the credit institution which will be sold in a short term in order to fund the participation (conditions of sale, evaluating pricing and details of its characteristics): …………………………………………………………………………………………………………………… ………………….
28. Specify the expected effects / consequences of participation in the share capital of the credit institution. Provide information regarding the impact of this transaction over the financial indicators and, where applicable, prudential indicators of the stockholder (e.g, level of own funds, liquidity indicator etc.). …………………………………………………………………………………………………… ………………..
29. Provide information about the financial capacity and willingness of the stockholder to support the credit institution with additional own funds, if necessary, for the development of its activities or in case of financial difficulties. ………………………………………………………………………………………………………………………… ………………..
I, the undersigned, state on my own responsibility under the law, that all information contained in this questionnaire is complete and true.
Data….. Full name ……………………….. Position (where appropriate) …………………………. 41
Signature and seal (where appropriate) ...... (For legal entities, their legal/statutory representatives shall sign) ______
1 Real beneficiaries are individuals who finally own or control the stockholder, as well as persons on account of which the participation is acquired. It includes also persons exercising ultimately effective control over the stockholder, that is a legal person or a legal arrangement (such as a trust). 2 Financial interests include, for example, credit operations, guarantees, pledges. 3 Non-financial interests include, for example, family relationships.
NOTE: The National Bank of Romania shall comply with the obligation of confidentiality relating to the information contained in the responses to this questionnaire, except as provided by the law.
ANNEX 3 repealed
ANNEX 4 (Confidential) *) QUESTIONNAIRE for managers and administrators
*) This questionnaire will be filled in by each of the managers of the credit institution/branch of the foreign credit institution and administrators of the credit institution in a third country. The questionnaire shall be drawn up according to this template, in computerized form; all the questions are mandatory. The phrase “credit institution” in the questionnaire shall be replaced by the appropriate category of credit institution. Questionnaires signed by way of representation shall not be accepted.
1 Registered name and address of the registered office of the credit institution/branch of the credit institution in a third country:...... 2 Identity of the applicant (first and last names, serial number of the identification document, issuer and date of issue thereof, date and place of birth, citizenship, domicile and/or residence). Foreign citizens shall also specify, where relevant, the date as of which they domicile and/or reside in
42 Romania:...... 3 The function that you will perform in the credit institution/branch of the credit institution in a third country. A description of the tasks and responsibilities relating to such function shall also be provided. In the case of managers, the list of activities each of such persons is to coordinate within the credit institution/branch of the credit institution in a third country shall also be provided...... 4 Are you going to follow instructions from another natural or legal entity outside the credit institution in discharging your functions? If so, make the necessary specifications...... 5 Have you been over the last 10 years or are you at this time a qualifying shareholder or partner in a company? If so, state the registered name and activity of the company and the amount of your participation...... 6 Have you fulfilled over the last 10 years or do you fulfill at this time management and/or administration responsibilities in an entity (company, institution, organization, etc.), other than those stated in the curriculum vitae? If so, state the registered name and activity thereof, nature and duration of the position held, the tasks and the results...... 7 Specify the entities in which you have fulfilled or currently fulfill management and/or administration responsibilities or in which you have been or are a qualifying shareholder or member and which, to your knowledge, have or might have in the future significant business relationships with the credit institution/branch of the credit institution in a third country indicated at point 1...... 8. Over the last 10 years, have the Romanian or foreign supervisory authorities in the financial and banking field denied any authorization or applied any punishment to you personally or to any of the entities in which you have fulfilled or currently fulfill management and/or administration responsibilities or in which you have been or are a qualifying shareholder or member? If so, give details...... 9. Are you or any of the entities in which you have fulfilled or currently fulfill management and/or administration responsibilities or in which you have been or are a qualifying shareholder or member, or have you or the said entities been over the last 10 years in conflict with any Romanian or foreign supervisory authority in the financial and banking field? If so, make the necessary specifications......
43 10. Over the last 10 years, have you been subject, in Romania or abroad, to an investigation or professional, disciplinary, administrative, or legal procedure which resulted with a sanction, or are you currently the subject of such investigation or procedure? If so, give details, regardless of whether meanwhile you have been rehabilitated (specify the authority which ordered the sanction, the sanctioned deed, the sanction itself, and the date of the sanction)...... 11. Have you been disciplinarily sanctioned in any of the entities you have worked for? If so, give details...... 12. Are your financial liabilities in a sound relation with your income? ...... 13. Have you or the entities in which you have fulfilled or currently fulfill management and/or administration responsibilities or in which you have been or are a qualifying shareholder or member encountered major financial difficulties or have you or such entities been in other situations which have resulted in judicial or extra-judicial proceedings, either completed or pending? If so, make the necessary specifications...... 14. Do you have or intend to have a participation in the share capital of the credit institution referred to at point 1? ...... 15. Have you engaged or intend to engage in business relations with the credit institution referred to at point 1? If so, give details...... 16. State any additional information which might be considered relevant for the assessment of your qualification, professional experience and respectability......
I, the undersigned, hereby state on my own responsibility under the law that all responses are complete and true and there are no other relevant facts that the National Bank of Romania should be informed of. Furthermore, I hereby undertake to notify the National Bank of Romania of any change in the information supplied.
Date...... Signature of the applicant......
NOTE: The National Bank of Romania shall comply with the obligation of confidentiality relating to the information contained in the responses to this questionnaire, except as provided by law.
44 ANNEX 5 (Confidential) *) QUESTIONNAIRE for the financial auditor
*) This questionnaire shall be filled in and signed by the financial auditor, natural person, or by the legal/statutory representative of the financial audit company. The questionnaire shall be drawn up according to this template, in computerized form; all the questions are mandatory. The questionnaires signed by way of representation shall not be accepted.
1. The identity of the financial auditor (specify the full name, domicile/residence and telephone number, or the name of the company, legal status, address of the registered office, single registration code) and the number of the operating license issued by the Chamber of Financial Auditors of Romania): ......
2 The identity of the legal/statutory representative of the financial audit company (specifies the full name, position, domicile/residence, and telephone number)...... 3 The identity of the financial auditor, natural person, coordinating the team that is to audit the credit institution (specifies the full name, position, domicile/residence, and telephone number)...... 4 Over the last 10 years, has any of the entities in which the financial auditor mentioned at point 1 provided financial audit services been in conflict with any supervisory authority in the financial and banking field or has its authorization in that field been denied/withdrawn? If so, give details...... 5 Over the last 10 years, have any of the entities in which the financial auditor mentioned at point 1 provided financial audit services been subject to judicial reorganization/bankruptcy/liquidation proceedings? If so, make the necessary specifications...... 6 Over the last 10 years, has the company mentioned at point 1 or the shareholders/members thereof been subject, in Romania or abroad, to an investigation or professional, disciplinary, administrative, or legal procedure which resulted with a sanction, or are they currently subject to such investigation or procedure? If so, give details, regardless of whether meanwhile they have been rehabilitated. Specify the authority which ordered the sanction, the sanctioned deed, the sanction itself, and the date of the sanction...... 7 Have the natural persons mentioned in points 1 – 3 or the associates/shareholders, or persons that ensure the company administration and/or management as indicated at point 1 been convicted for the offences referred to in Art. 183 para. (1) lett.a) of NBR Regulation No. 11/2007
45 on the authorisation of credit institutions, Romanian legal entities, and of branches in Romania of third-country credit institutions? If so, give details...... 8 Specify the credit institutions in which the person mentioned at point 1 act as a financial auditor or has acted as such over the last 5 years...... 9 Specify the credit institutions in which the coordinator of the team performing the financial audit as provided for at point 3 has accomplished audit missions over the last 5 years, by indicating the situations when he coordinated teams performing the concerned missions ...... 10 Specify any additional information that could be considered relevant to the activity of the entity mentioned at point 1......
I, the undersigned, hereby state on my own responsibility that I am not / the entity mentioned at point 1 is not in any of the situations laid down under Art. 9 of Government Emergency Ordinance 75/1999 on the financial audit activity, as republished and subsequently amended, nor in any other situation of incompatibility or conflict of interests as stipulated by the legislation in force. I also state on my own responsibility under the law that all responses are complete and true and there are no other relevant facts that the National Bank of Romania should be informed of. Furthermore, on my personal behalf / on behalf of the company I represent, I hereby undertake to notify the National Bank of Romania of any change in the information supplied.
Date...... First and last names...... Signature and seal......
NOTE: The National Bank of Romania shall comply with the obligation of confidentiality relating to the information contained in the responses to this questionnaire, except as provided by law.
ANNEX 6
Repealed
46
ANNEX 7
APPLICATION FOR AUTHORISATION
Dear Mr. Governor,
I/we, the undersigned...... (full name) acting as legal/statutory representative(s) of ...... , (reference number and date of the deed in trust/power of attorney) request the authorization of the credit institution
I/We require the authorisation ...... ……………...... (name of the central body) and of the credit co-operatives referred to in Annex 7 a).
I/we indicate the following: - the persons designated to fulfill administration and/or management responsibilities as board members , managers, members of the supervisory board or directorate of the central body ……………………………………………………………………………… (name of the central body) are: ...... ; - registered name and address of the registered office of the credit institution with which the account for the payment of the share capital is to be opened are: ...... ; - address of the registered office and of the actual place of business, as appropriate, of the central body is/are: ......
In supporting this application I/we attach the following documents, in accordance with the provisions of Art. 58 - 59 of Regulation No. 11/2007 on the authorisation of credit institutions, Romanian legal entities, and branches in Romania of credit institutions in third countries: ......
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Our contact address is: ......
Telephone ……………… Fax...... Date...... Signature......
To the Governor of the National Bank of Romania
48 ANNEX 7 a)
The credit co-operatives affiliated to ...... , for which the authorization is requested (name of the central body)
No. Name of the credit Registered office Registered name and Persons designated to co-operative address of the fulfill administration registered office of the and/or management credit institution with responsibilities as which the account for board members, the payment of the managers, members of share capital is to be the supervisory board opened or directorate of the central body
ANNEX 8
APPLICATION FOR AUTHORISATION
Dear Mr. Governor,
I/we, the ndersigned ...... , (full name)
acting as legal/statutory representative(s) of ...... , (name of the credit institution in the third country which requested and the location where it has the registered office)
I/We request the authorisation of the branch in ………………………….. (location in Romania where the branch for which the authorisation is requested shall have the registered office) of this credit institution.
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I/we indicate the following:
- the persons ensuring the management of the credit institution branch are: …...... ; - the name and address of the registered office of the credit institution where the account shall be opened and in which the amount representing the endowment capital shall be transferred are: ...... ; - the address of the registered office of the credit institution is: ......
In supporting this application I/we attach the following documents, in accordance with the provisions of Art. 67 of Regulation No. 11/2007 of the National Bank of Romania on the authorization of credit institutions, Romanian legal entities, and branches in Romania of credit institutions in third countries......
Our contact address is: ......
Telephone...... Fax......
Date...... Signature and seal......
To the Governor of the National Bank of Romania
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