Amendments to the Government Emergency Ordinance no. 93/2012 regarding the incorporation, organization and functioning of the FSA
On 21 May 2021 in the Official Gazette of Romania under number 530 has been published the Law 147/2021 ("Law 147/2021") amending and supplementing the Government Emergency Ordinance no. 93/2012 regarding the incorporation, organization and functioning of the Financial Supervisory Authority (the "FSA") ("GEO 93/2012").
The main amendments brought by Law 147/2021 refer to the activity carried out by the FSA within the process of supervision and control of the entities regulated and supervised by the FSA, as follows:
a) Confidentiality - the members of the FSA Board and its staff must maintain the confidentiality of the information obtained in the exercise of their duties, such obligation being incumbent even after they shall no longer hold any position within the FSA.
b) Notion of permanent control has been clarified - as a result of different interpretations in practice, the Law 147/2021 establishes that the exercise of permanent control by the FSA refers to the supervision activity carried out continuously in its three sectors of activity, namely the insurance – reinsurance sector, financial instruments and investments sector and the private pension system.
c) Control of entities supervised by the FSA - in the event that, following a control over an entity supervised by the FSA, it is found that there were elements that have not been previously considered in relation to a period that has already been the subject of a control order (for example, elements unknown and not analysed at that time), Law 147/2021 offers the ability to carry out a new inspection over the entity with respect to the same period, but only once.
d) Obligations of the entities supervised by the FSA - the entities supervised by the FSA must (a) deliver and make available to the FSA the documents and information required within the time limits and in the form established by the FSA and allow access to the FSA representatives within the entity’s headquarters, (b) to provide complete documents and true information in order not to mislead the FSA and (c) to comply with the measures ordered by the FSA through its acts of authorization, supervision and control. Entities that fail to comply with the imposed measures are sanctioned according to the specific applicable legislation, the Law 147/2021 expressly establishing that the repeated violation of the obligations mentioned above under letters b) and c), after the FSA has already applied sanctions according to the applicable legislation, represents a criminal offence.
e) Sanctioning regime - Law 147/2021 establishes the sanctions applicable in case of non-compliance with the provisions of GEO 93/2012, the regulations and decisions of the FSA, in cases when such sanctions are not already included in the specific legislation applicable to entities regulated and supervised by the FSA. Thus, the FSA Board may apply:
- a written warning;
- for individuals, a fine between RON 1,000 and the equivalent in RON of 25% of the annual net income of the individual paid by the employer;
- for legal entities, a fine between RON 10,000 and the equivalent in RON of 1% of the annual turnover;
- partial or total suspension for a period of 90 days of the authorization granted by the FSA;
- withdrawal of the authorization granted by the FSA.