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Law No. March 24, 2017Pentru 29, Amendment And Completion Of The Government Emergency Ordinance Nr. 32/2012 Relating To Undertakings For Collective Investment In Transferable Securities And Asset Management Firms, As Well As Modification And Co.

Original Language Title: LEGE nr. 29 din 24 martie 2017pentru modificarea şi completarea Ordonanţei de urgenţă a Guvernului nr. 32/2012 privind organismele de plasament colectiv în valori mobiliare şi societăţile de administrare a investiţiilor, precum şi pentru modificarea şi co

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LEGE no. 29 29 of 24 March 2017 to amend and supplement Government Emergency Ordinance no. 32/2012 on undertakings for collective investment in transferable securities and investment management companies and for amending and supplementing Law no. 297/2004 on the capital market
ISSUER ROMANIAN PARLIAMENT
Published in OFFICIAL MONITOR no. 213 213 of 29 March 2017



The Romanian Parliament adopts this law + Article I Government Emergency Ordinance no. 32/2012 on undertakings for collective investment in transferable securities and investment management companies and for amending and supplementing Law no. 297/2004 on the capital market, published in the Official Gazette of Romania, Part I, no. 435 of 30 June 2012, approved with amendments and additions by Law no. 10/2015 , as amended, amend and supplement as follows: 1. La Article 1, paragraph 2 is amended and will read as follows: ((2) The Financial Supervisory Authority, hereinafter referred to as the A.S.F., is the competent authority that applies the provisions of this emergency ordinance, by exercising the powers and prerogatives established by Government Emergency Ordinance no. 93/2012 on the establishment, organization and functioning of the Financial Supervisory Authority, approved with amendments and completions by Law no. 113/2013 , with subsequent amendments and completions. 2. La Article 3 (1), after point 26 four new points are inserted, paragraphs 27-30, with the following contents: 27. governing body-the final decision-making body in an investment management company, investment company or depositary, established according to the instruments of incorporation, in accordance with the provisions Company law no. 31/1990 , republished, with subsequent amendments and completions, which supervise and monitor the decision-making process of management. If the aforementioned entities are administered in unitary system, the governing body shall be represented by the board of directors and directors, and if they are administered in a dualistic system, the organ of management is represented by the supervisory board and the directorate according to the provisions Law no. 31/1990 , republished, with subsequent amendments and completions; 28. the management body in its supervisory function-the governing body that performs its supervisory and monitoring role of the management decision-making process and which is represented by the board of directors, within the framework of the the unitary administration system, and the supervisory board, within the dualistic administration system; 29. senior management-individuals exercising effective management positions within an investment management company, depositary, or investment firm and who are responsible and liable to the management body for the current management activity of those entities. The senior management is represented by the directors, within the unitary administration system, and by the directorate, within the dualistic administration system; 30. financial instruments: a) securities; b) money market instruments; c) participation titles issued by collective investment undertakings; d) options, futures, swaps, forward-rate contracts and any other derivative contracts in relation to securities, currencies, interest rates or returns/returns, emission allowances or other derivatives, indices financial or financial indicators that can be settled by physical delivery or cash; e) options, futures, swaps, forward contracts and any other derivative contracts in relation to goods to be settled in cash or may be settled in cash at the request of one of the parties, excluding the default or other incident leading to termination; f) options, futures, swaps, forward contracts and any other derivative contract relating to commodities that can be settled by physical delivery, provided that it is traded on a regulated market, within a multilateral system of trading, hereinafter referred to as the SMT, or an organised trading system, hereinafter referred to as SOT, with the exception of wholesale energy products traded on a SOT to be settled by physical delivery; g) options, futures, swap contracts, forward contracts and any other derivative contracts in relation to goods that may be settled by physical delivery, not included in the category of those referred to in lett. f), and having no commercial purpose, which presents the characteristics of other derivatives; h) derivatives for the transfer of credit risk; i) financial contracts for differences; j) options, futures, swaps, forward rate contracts and any other derivative contract relating to climate variables, to freight or inflation rates or other official statistical indicators to be settled in cash or maybe be settled in cash at the request of one of the parties, excluding the case of non-payment or other incident leading to termination, as well as any other derivative contract in relation to assets, rights, obligations, indices and indicators, not included in the present definition, which presents the characteristics of other derivatives, taking into account account, in particular, of its trading on a regulated market, within the framework of an SMT or a SOT; k) emission allowances as defined in the art. 3 lit. b) of Government Decision no. 780/2006 on the establishment of the greenhouse gas emission allowance trading scheme, as amended and supplemented. 3. La Article 5 (2) - ((4) changes and will have the following contents: ((2) Besides the administration of O.P.C.V.M. provided in par. (1), S.A.I. may also administer other collective investment undertakings that are not covered by this Emergency Ordinance and for which S.A.I. is subject to prudential supervision, but whose participation titles may not be marketed in other Member States under this Emergency Ordinance. ((3) By exception to para. (1), S.A.I. may carry out, in addition to the administration activity of O.P.C.V.M., the following activities: a) the management of individual investment portfolios, including those held by pension funds, on a discretionary basis, according to the mandates given by investors, where these portfolios include one or more instruments financial; b) related services: ((i) investment advice on one or more financial instruments; ((ii) the retention and administration activity related to the participation titles of collective investment undertakings. ((4) S.A.I. may be authorized to carry out the activities provided in par. ((3) only if it is authorized in advance to carry out the activities referred to in par. ((1) and may be authorized to carry out the activities provided in par. ((3) lit. b) only if they carry out the activities referred to in par. ((3) lit. a). 4. La Article 18, after paragraph 2 a new paragraph (3) is inserted, with the following contents: ((3) S.A.I., investment and storage companies O.P.C.V.M. must establish, implement and maintain effective and transparent procedures regarding the reporting by employees of these entities of violations of the provisions of this ordinance. emergency, via a specific, independent and autonomous channel. 5. After Article 34 two new articles are introduced, Articles 34 ^ 1 and 34 ^ 2, with the following contents: + Article 34 ^ 1 ((1) S.A.I. establishes and applies remuneration policies and practices that promote and be compatible with sound and effective risk management and that do not encourage the assumption of risks incompatible with the risk profiles mentioned in the the establishment documents of the O.P.C.V.M. that they administer and that do not affect the performance of the S.A.I. obligation to act in the interest of the holders of participation titles of the O.P.C.V.M. ((2) Remuneration policies and practices shall specify fixed and variable components of remuneration and discretionary pension benefits. ((3) Remuneration policies and practices apply to those categories of staff whose professional activities have an important impact on the risk profile of S.A.I. or the O.P.C.V.M. they administer, including staff in the workplace. senior management, persons responsible for risk management, those with control functions, and any employees who receive a total remuneration falling within the remuneration step of senior management staff and of persons responsible for risk management. ((4) A.S.F. issues regulations on the remuneration policies and practices applied to the persons referred to in par. (3), taking into account the guidelines and recommendations developed by ESMA. + Article 34 ^ 2 ((1) When establishing and applying the remuneration policies provided for in art. 34 ^ 1, S.A.I. complies with the following principles, in a manner and to an appropriate extent in relation to their size, with their internal organization, as well as with the nature, extent and complexity of their activities: a) the remuneration policy is compatible with sound and effective risk management and promotes this type of administration, without encouraging risk-taking that is not in line with the risk profile, the rules of the funds or, where applicable, in the acts constituent of the investment companies that S.A.I. manages; b) the remuneration policy is in line with the business strategy, objectives, values and interests of S.A.I. and O.P.C.V.M.s that it manages, as well as the holders of participation titles of these O.P.C.V.M. s and includes measures to avoid conflicts of interest; c) the remuneration policy is adopted by the management body of the S.A.I. within the framework of its supervisory function, and this body adopts and assesses at least annually the general principles of the remuneration policy and oversees the implementation of d) the tasks referred to in point c) are implemented only by non-executive members of the management body of the S.A.I., namely the non-executive members of the board of directors, in the case of management in unitary system, or members of the supervisory board, in the case leadership in a dualistic system, which have experience in risk management and remuneration; e) the implementation of the remuneration policy shall be subject, at least annually, of a central and independent internal assessment of compliance with the remuneration policies and procedures adopted by the management body of the S.A.I. in the its surveillance; f) the members of the staff holding control functions shall be rewarded according to the achievement of the objectives of their functions, independently of the results of the sectors of activity they control; g) the remuneration of persons coordinating the risk management and compliance/internal control activities shall be directly supervised by the remuneration committee, where such a committee exists; h) where the remuneration depends on the performance, its total amount shall be calculated according to an assessment combining the individual performance and those of the operational unit concerned of the S.A.I. or the respective O.P.C.V.M., such as and their risks and the global results of S.A.I. when assessing individual performance, with consideration of financial/quantitative and non-financial/qualitative criteria; i) the performance evaluation is carried out in a multiannual framework appropriate to the holding period recommended to the investors of the O.P.C.V.M. administered by S.A.I., in order to guarantee that the evaluation process is based on the long-term performance of O.P.C.V.M. and on the risks related to their investments and that the actual payment of the components of the remuneration that depend on performance is carried out over the same period; j) the guaranteed variable remuneration is exceptional, intervening only in the context of the employment of new staff and is limited to the first year of employment; k) the fixed and variable component of the total remuneration are properly balanced and the fixed component represents a sufficiently large proportion of the total remuneration to enable the application of a flexible component policy variable remuneration, including the possibility of paying no variable component of remuneration; l) payments related to the anticipated termination of a contract reflect the performance achieved during the employment/mandate period and are granted so as not to reward probable performance or failures; m) the measurement of performance used in the calculation of variable components of remuneration or variable component assemblies of remuneration comprises a comprehensive adaptation mechanism that includes all relevant types of risks present or future; n) depending on the legal structure of the O.P.C.V.M. and the rules of the fund or, as the case may be, the constitutive act of the investment company, a significant percentage, which may not be less than 50%, of any variable component of the remuneration consists of ................................................. O.P.C.V.M. administered represents less than 50% of the total portfolio administered by S.A.I., including individual accounts, the 50% minimum not applying in this case; o) the instruments referred to in point n) are subject to a proper detention policy, aimed at harmonizing the incentives with the interests of S.A.I., of the O.P.C.V.M. administered and of the holders of participation titles in the respective O.P.C.V.M. n) applies both to the percentage of the variable component of the remuneration that is deferred in accordance with lit. p), as well as the percentage of the variable component of the remuneration that is not deferred; p) in compliance with the conditions laid down in n) and o), at least 40% of the variable component of the remuneration shall be postponed for an appropriate period from the point of view of the holding period recommended to the holders of participation titles of the respective O.P.C.V.M., this period being appropriate to the nature of the risks assumed by the O.P.C.V.M. in question; q) the period referred to in point p) is at least 3 years, the remuneration due under deferral measures is granted faster than on a proportional basis, in the case of a component of variable remuneration in the particularly large amount, at least 60% of the amount being deferred; r) the variable remuneration, including the deferred part, is paid or granted only if it is sustainable according to the financial situation of the S.A.I. and if it is justified by the performance of the operational unit of S.A.I., O.P.C.V.M. and the person in cause; s) the total variable remuneration is significantly reduced if a weak or negative performance of the S.A.I. or the targeted O.P.C.V.M. is recorded, taking into account both the current remuneration and the reductions in the payment of the amounts previously earned, including through the application of the "malus" principle or through recovery mechanisms; s) the pension policy is compatible with the business strategy, objectives, values and long-term interests of S.A.I. and the O.P.C.V.M. administered; t) if the employee ceases, of his own will, the contractual relations with S.A.I. before retiring, the discretionary benefits of the type of pensions shall be retained by S.A.I. for 5 years in the form of the instruments provided in lett. n). Where an employee reaches retirement age, the discretionary benefits of the type of pensions shall be paid to the employee concerned in the form of the instruments referred to in point. n), subject to a retention period of 5 years; t) The S.A.I. staff shall declare on their own responsibility that they do not use personal hedging or insurance-related insurance or liability strategies to undermine the effects of the alignment of the risks provided for in their remuneration contracts; u) the variable remuneration is not paid by means of instruments or methods to facilitate the avoidance of compliance with the requirements laid down in this Emergency Ordinance. ((2) At the request of ESMA, the A.S.F. shall transmit to it information on the remuneration policies and practices referred to in 34 34 ^ 1. ((3) The principles provided in par. (1) applies to benefits of any type paid by S.A.I., to all amounts paid directly by the O.P.C.V.M. itself, including performance commissions, as well as to all transfers of fund units or shares of O.P.C.V.M., made for the benefit of those categories of personnel, including senior management personnel, persons responsible for risk management, those with control functions and any employee benefiting of a total remuneration falling within the same category of remuneration as the management higher and persons responsible for risk management, whose professional activities have a significant impact on their risk profile or on the risk profile of the O.P.C.V.M. they manage. ((4) S.A.I. significant from the point of view of their size or the size of the O.P.C.V.M. they administer, defined according to the regulations issued by A.S.F. in application of this emergency ordinance, of their internal organization and of the nature, scale and complexity of their activities, call a remuneration committee mandatory. The remuneration committee shall analyse the remuneration policies and practices, as well as the incentives offered by the S.A.I., in order to manage the risks. ((5) The remuneration committee shall be responsible for decisions on remuneration, including decisions that have implications for risks and the management of the risks of the S.A.I. or the O.P.C.V.M. concerned, to be adopted by the governing body. within the framework of its supervisory function. ((6) The remuneration committee shall consist of members of the management body who do not hold executive positions in the S.A.I. in question. One of the members of the governing body holds the position of chairman of the remuneration committee. ((7) When drawing up its decisions, the remuneration committee shall take into account the long-term interest of the holders of the participation titles of the O.P.C.V.M. and other interested parties, as well as the public interest. 6. Article 52 is amended and will read as follows: + Article 52 ((1) The assets of an O.P.C.V.M. authorized by A.S.F. are entrusted to safe storage, based on a written contract, to a single depositary. ((2) The contract mentioned in par. (1) regulates, among other things, the flow of information deemed necessary to allow the depositary to exercise its functions for the O.P.C.V.M. for which it was appointed depositary, as provided for in this Emergency Ordinance, in regulations issued by the A.S.F. in its application and in Delegated Regulation (EU) 2016/438 of the Commission of 17 December 2015 supplementing the Directive 2009 /65/EC of the European Parliament and of the Council as regards the obligations of depositaries, hereinafter referred to as Delegated Regulation (EU) 2016/438 . ((3) The depositary shall: a) ensure that the sale, issuance, redemption or cancellation of the participation titles are made by S.A.I. or another entity, on behalf of O.P.C.V.M., according to this emergency ordinance, A.S.F. regulations and its fund rules, where applicable, the articles of association of the investment company; b) ensure that the value of the securities is calculated according to the rules of the fund or, as the case may be, the investment company's articles of association and the provisions of this emergency ordinance c) carry out the instructions of the S.A.I. or of the investment firms, unless they are contrary to the legislation in force or to the rules of the fund or, where applicable, to the investment company's articles of association; d) to ensure that, in transactions having as object the assets of O.P.C.V.M., any amount is paid within the established period; e) ensure that the revenues of O.P.C.V.M. are administered and calculated according to the legislation in force, the regulations of the A.S.F. and the rules of the fund or, as the case may be, the articles of association ((4) The depositary shall ensure that the cash flows of the O.P.C.V.M. are properly monitored and, in particular, that all payments made by or on behalf of investors to the subscription of participation securities have been collected. O.P.C.V.M. and that all the cash O.P.C.V.M. was registered in cash accounts that: a) are opened on behalf of O.P.C.V.M. or of S.A.I. acting on behalf of O.P.C.V.M. or of the depositary acting on behalf of O.P.C.V.M.; b) are opened at a central bank, a credit institution authorized under Community law or a bank authorized in a third country and are administered in accordance with the principles laid down in the regulations issued by the A.S.F. on the obligation the safekeeping of the rights of customers in relation to financial instruments and funds belonging to them. ((5) If the cash accounts are opened on behalf of the depositary acting on behalf of the O.P.C.V.M., the number of the entity referred to in paragraph shall not be registered in these accounts. ((4) lit. b) and the depositary's own cash. ((6) The assets of O.P.C.V.M. shall be entrusted to the depositary for safekeeping, as follows: a) for financial instruments that may be held in custody, the depositary: 1. keep in custody all financial instruments that can be recorded in an account of financial instruments opened in their own books and all financial instruments that can be physically delivered; 2. ensure that all financial instruments that can be recorded in an account of financial instruments opened in their own books are recorded in separate accounts, opened on behalf of the O.P.C.V.M. or S.A.I. acting on behalf of O.P.C.V.M., so that it can be clearly identified at any time as belonging to O.P.C.V.M.; b) for other assets, the depositary: 1. verify the ownership of O.P.C.V.M. or S.A.I. acting on behalf of the O.P.C.V.M. on the respective assets, analyzing whether O.P.C.V.M. or S.A.I. acting on behalf of O.P.C.V.M. is the holder of the right of property, based on information or documents provided by O.P.C.V.M. or the management company and, if available, external evidence; 2. keep a record of the assets for which he is confident that the O.P.C.V.M. or S.A.I. acting on behalf of O.P.C.V.M. is the holder of the ownership and updates this evidence. ((7) The depositary presents at least monthly S.A.I. or investment company a comprehensive inventory of all O.P.C.V.M. assets. ((8) The assets held in custody by the depositary shall not be reused on their own account by the depositary or by a third party to whom the custody function has been delegated. Reuse includes all transactions with assets kept in custody, including, without limitation, transfers, gajars, sales and loans. ((9) Assets held in custody by the depositary may be reused only if: a) the reuse of assets is executed on behalf of the O.P.C.V.M.; b) the depositary performs the instructions of the S.A.I. on behalf of the O.P.C.V.M.; c) reuse is made for the benefit of O.P.C.V.M. and in the interest of holders of participation titles; and d) the transaction is covered by high quality and liquid guarantees received by O.P.C.V.M. under a proprietary transfer agreement. The market value of the collateral at any time amounts to at least the market value of the reused assets, plus a premium. ((10) In the event of the insolvency of a depositary and/or a third party located in a Member State to which custody of assets of the O.P.C.V.M. has been delegated, the assets of the O.P.C.V.M. held in custody at that depositary/third entity may not be used to be distributed between the creditors of this depositary and/or third parties, cannot be subject to enforcement proceedings triggered by the depositary's creditors, cannot be seized or paid by them. ((11) The depositary has its registered office or is established in the home Member State of O.P.C.V.M. 7. After Article 52 a new article is inserted, Article 52 ^ 1, with the following contents: + Article 52 ^ 1 ((1) The depositary shall not delegate to third parties the functions referred to in art. 52 52 para. ((3)-(5). ((2) The depositary may delegate to third parties the functions provided for in art. 52 52 para. ((6), but only on condition that: a) the tasks are not delegated with the intention of circumventing the depositary's obligations; b) the depositary can demonstrate to the S.A.I., the investment company, the holders of participation titles of O.P.C.V.M. whose assets are kept safe or A.S.F., as the case may be, the existence of an objective reason for the delegation; c) the depositary shall act with the necessary competence, care and diligence when it selects and appoints a third party to which it intends to delegate some of its tasks and to provide further proof of competence, care and diligence necessary when regularly checking and supervising the third party to which it delegated part of its tasks and the measures taken by the third entity in relation to the tasks that have been delegated. ((3) The safe storage functions of O.P.C.V.M. assets in custody or other assets may be delegated by the depositary to a third party entity only if during the entire period of the execution of the tasks that have been delegated to it: a) it has appropriate structures and specialized knowledge and commensurate with the nature and complexity of the assets of the O.P.C.V.M. or of S.A.I. acting on behalf of the O.P.C.V.M. entrusted to it; b) as regards the custody duties provided for in art. 52 52 para. ((6) lit. a), are subject to: 1. effective prudential regulations, including minimum capital requirements and supervision in the jurisdiction concerned; 2. a periodic external audit to ensure that financial instruments are in its possession; c) separate the depositary's client assets from its own assets and depositary assets so that it can be clearly identified at any time as belonging to the clients of a particular depositary; d) take all necessary measures to ensure that, in the event of third-party insolvency, the assets of the O.P.C.V.M. held in custody by the third entity cannot be used to be distributed among its creditors, cannot be subject to proceedings enforced enforcement by the creditors of the third party, cannot be seized or posted by them; and e) comply with art. 52 52 para. ((2), (6), (8) and (9) and art. 55. ((4) Without prejudice to the provisions of par. ((3) lit. b) section 1, where the legislation of the third State requires that certain financial instruments be kept in custody by a local entity and no local entity meets the delegation requirements laid down in that letter, the depositary shall may delegate the functions of such a local entity only in so far as it is provided for in the law of the third State and only as long as there are no local entities that meet the requirements of the delegation, subject to the following conditions: a) the holders of participation titles of the O.P.C.V.M. in question are duly informed, before making the investment, that such delegation is imposed by the legal constraints in the legislation of the third State, in relation to the circumstances that justify the delegation and the risks involved; b) the investment firm or the management company acting on behalf of the O.P.C.V.M. has instructed the depositary to delegate the custody of such financial instruments to such a local entity. ((5) The third party may, in turn, subdelegate these functions, provided that the same requirements are met. In such cases, art. 54 54 para. ((4) shall apply accordingly to the relevant parties. ((6) For the purposes of this Article, provision of services provided by Law no. 253/2004 on the definitive nature of settlement in payment systems and settlement systems of operations with financial instruments, as amended and supplemented, by securities settlement systems, designated in the meaning of that law, or the provision of similar services by securities settlement systems in third countries shall not be considered a delegation of custody functions. 8. Article 53 is amended and will read as follows: + Article 53 ((1) The asset storage activity of an O.P.C.V.M. authorized by A.S.F. can be carried out by: a) National Bank of Romania; b) a credit institution in Romania, authorized by the National Bank of Romania, according to the legislation applicable to credit institutions, or a branch in Romania of a credit institution, authorized in another Member State in accordance with Directive 2013 /36/EU of the European Parliament and of the Council of 26 June 2013 on the access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002 /87/EC and repealing the Directives 2006 /48/EC and 2006 2006 /49/EC , endorsed by A.S.F. for the storage activity, according to the provisions of this emergency ordinance and the regulations issued by A.S.F. in its application; or c) by another legal person, endorsed by A.S.F. to carry out storage activities of O.P.C.V.M. assets in accordance with the regulations issued by A.S.F. in the application of this emergency ordinance and which is subject to adequacy requirements capital, which are not lower than the calculated requirements, depending on the approach selected, in accordance with Article 315 or Article 317 of the Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 ,, and holding own funds at least equal to the amount of initial capital provided for in art. 7 7 para. ((8) of Law no. 297/2004 on the capital market, with subsequent amendments and completions. ((2) Legal person referred to in par. ((1) lit. c) is subject to the authorization, regulation and supervision of the A.S.F. and cumulatively meets the following minimum requirements: a) it has the necessary infrastructure to keep financial instruments in custody that can be registered in a financial instrument account opened in the depositary's books; b) establish policies and procedures to ensure compliance of the entity with its obligations under this Emergency Ordinance, including compliance with those obligations by persons with management functions and by its employees; c) have adequate and rigorous accounting and administrative procedures, internal control mechanisms, effective risk assessment procedures and effective control and protection mechanisms for information systems; d) maintain and implement organisational and administrative mechanisms in order to take all measures to prevent conflicts of interest; e) take measures so as to keep records of all the services, activities and transactions they carry out, records that are sufficient to enable the A.S.F. to carry out its supervisory tasks and to discharge actions to ensure compliance with the relevant provisions laid down in this Emergency Ordinance; f) take measures to ensure the continuity and smooth operation of the activities of its depositary functions through the use of appropriate systems, resources and procedures; g) all members of the management body and of the senior management shall comply at all times with the conditions of good repute established by the A.S.F. and possess sufficient knowledge, skills and experience; h) the management body possesses the appropriate knowledge, competence and experience to be able to understand the activities of the depositary, including the main risks; i) all members of the management body and senior management act with honesty and integrity. 9. Article 54 is amended and will read as follows: + Article 54 ((1) The depositary responds to O.P.C.V.M. and to the holders of participation titles of O.P.C.V.M. for the loss of financial instruments kept in custody in accordance with the provisions of art. 52 52 para. ((6) lit. a), whether the loss is due to the depositary or to a third party to which custody has been delegated. ((2) In case of loss of a financial instrument kept in custody by the depositary, it shall return a financial instrument of the same type or of an appropriate value to the O.P.C.V.M. or S.A.I. acting on behalf of the O.P.C.V.M., without unjustified delays. The depositary is cleared of liability if it can prove that the loss occurred as a result of an outside event beyond reasonable control, the consequences of which would have been unavoidable despite all reasonable counteraction efforts. ((3) The depositary of an O.P.C.V.M. is liable to it and to the investors of O.P.C.V.M. for any further losses suffered by them as a result of the fact that the depositary, negligently or with intent, has not adequately fulfilled the obligations incumbent upon it in accordance with this Emergency Ordinance and the regulations issued by the A.S.F. in its application. ((4) Liability of the depositary provided in par. ((1)-(3) may not be removed or contractually limited by the fact that it has delegated the activities referred to in art. 52 52 ^ 1. ((5) Any contract concluded in violation of paragraph ((4) is null. ((6) Holders of participation titles issued by O.P.C.V.M. may invoke the liability of the depositary directly or indirectly, through the S.A.I. or the investment company, provided that it does not lead to a double repair of the damage or to an unequal treatment of title holders. 10. Article 55 is amended and will read as follows: + Article 55 ((1) A depositary of the assets of O.P.C.V.M. cannot perform at the same time the function of S.A.I. or of investment company. ((2) In the exercise of their functions, S.A.I. and the depositary, respectively the investment company and the depositary, act honestly, correctly, professionally, independently and exclusively in the interest of O.P.C.V.M. and their investors. ((3) The depositary does not carry out activities regarding O.P.C.V.M. or S.A.I. acting on behalf of O.P.C.V.M. that could create conflicts of interest between O.P.C.V.M., O.P.C.V.M. investors, management company and depositary. ; where possible conflicts of interest are identified, the depositary shall exercise distinctly the depositary tasks of the other tasks which could result in conflicts of interest, which are functionally separate and hierarchy. Any conflicts of interest are identified, managed, properly monitored and communicated to the A.S.F. and O.P.C.V.M. investors by decision-making personnel within the department/service conducting operations. related to the storage activity. 11. Article 56 is amended and will read as follows: + Article 56 ((1) The rules of the open investment fund define the conditions for the replacement of S.A.I. and the depositary and provide for rules that ensure the protection of holders of participation titles in the event of such a replacement, in accordance with the regulations of the A.S.F. ((2) The constitutive act of the investment company defines the conditions for the replacement of S.A.I. and the depositary and provides rules that ensure the protection of shareholders in the event of such a replacement, in accordance with the regulations of the A.S.F. 12. After Article 56 a new article is inserted, Article 56 ^ 1, with the following contents: + Article 56 ^ 1 ((1) The depositary shall make available to the A.S.F., upon request, all the information it has obtained in the performance of its tasks and which may be required by the A.S.F. for the performance of its prerogatives. ((2) In the case of O.P.C.V.M. authorized by A.S.F., but managed by investment management companies from other member states based on art. 63 63 para. ((2), A.S.F. shall transmit without delay the information received to the competent authorities of the management company. 13. La Article 58, introductory wording is amended and will read as follows: + Article 58 The depositary and S.A.I. include in the written contract provided for in art. 52 52 para. (1) the following clauses relating to the services provided and the procedures to be followed by the parties to the contract, taking into account the provisions of the delegated acts of the European Commission and the regulations of the A.S.F. 14. La Article 59 (1), introductory wording is amended and will read as follows: + Article 59 ((1) The depositary and S.A.I. include in the written contract provided for in art. 52 52 para. (1) the following clauses relating to the exchange of information and obligations in matters of confidentiality and money laundering, with the consideration of the provisions Delegated Regulation (EU) 2016/438 and the regulations of A.S.F.: 15. La Article 60, introductory wording is amended and will read as follows: + Article 60 If the depositary or S.A.I. intends to designate third parties for the performance of their tasks, they shall include in the written contract provided for in art. 52 52 para. (1) the following clauses, taking into account the provisions Delegated Regulation (EU) 2016/438 and the regulations of A.S.F.: 16. La Article 61, introductory wording is amended and will read as follows: + Article 61 The depositary and S.A.I. include in the written contract provided for in art. 52 52 para. (1) the following clauses related to the modification and termination of the contract, with the consideration of the provisions Delegated Regulation (EU) 2016/438 and the regulations of A.S.F.: 17. Article 62 is amended and will read as follows: + Article 62 ((1) With consideration of provisions Delegated Regulation (EU) 2016/438 and the regulations of A.S.F., the depositary and S.A.I. include in the written contract provided in art. 52 52 para. ((1) a reference to the fact that the legislation applicable to the contract is the law of the home Member State of the O.P.C.V.M. ((2) In situations in which the parties of the contract provided for in 52 52 para. (1) agree to resort to the electronic transmission of all or part of the information it changes, the contract contains, with the consideration of the provisions Delegated Regulation (EU) 2016/438 and A.S.F. regulations, provisions for keeping an obvious of this information. ((3) The contract provided in art. 52 52 para. (1) may cover more than one O.P.C.V.M. administered by S.A.I. In this situation, the contract must list the covered O.P.C.V.M. ((4) Clauses on the modalities and procedures referred to in art. 58 lit. c) and d) may be included either in the contract provided for in art. 52 52 para. ((1), or in a separate written contract. 18. La Article 75, paragraph 1 is amended and will read as follows: + Article 75 ((1) In cases where this emergency ordinance does not expressly mention the contrary, self-managed investment companies comply with the provisions of this applicable S.A.I., referred to in art. 6 6, art. 9 9 para. ((1) lit. b), c), e)-g), para. ((2) and (3), art. 12 12, art. 33 33 and art. 52-56 ^ 1, as well as the conditions established by A.S.F. regulations 19. Article 76 is amended and will read as follows: + Article 76 The provisions of the 2nd, 3rd and 6th sections of the head. II, and the provisions of art. 34 34 para. ((1) and (2), art. 34 ^ 1, 34 ^ 2 and 36-43 also apply accordingly to self-managed investment companies, according to A.S.F. regulations. 20. La Article 84, paragraphs 1 and ((11) changes and will have the following contents: + Article 84 ((1) S.A.I. and the self-managed investment company must use a risk management system, in accordance with the A.S.F. regulations and in compliance with the guidelines issued by ESMA, allowing them: a) to monitor and quantify, at any time, the risk associated with positions and their influence at the overall risk profile of the O.P.C.V.M. portfolio In this regard, S.A.I. and the self-managed investment company must not rely on exclusively or automatically on credit ratings issued by credit rating agencies defined in art. 3 3 para. ((1) lit. b) of Commission Implementing Regulation (EU) No 1.060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies to assess the creditworthiness of the assets of the O.P.C.V.M.; b) ensure a fair and independent assessment of the value of derivatives negotiated outside regulated markets. ............................................................................... ((11) Taking into account the nature, scale and complexity of O.P.C.V.M. activities, the A.S.F. monitors the adequacy of credit risk assessment processes by management companies, namely investment firms. self-administered, evaluate the use of references to credit ratings, as referred to in par. (1), within the investment policies of the respective O.P.C.V.M. and, when appropriate, encourage the mitigation of the impact of these references, in order to reduce the exclusive and automatic dependence on such credit ratings. 21. La Article 92, after paragraph 4 a new paragraph (4 ^ 1) is inserted, with the following contents: (4 ^ 1) The annual report also contains: a) the total amount of remuneration for the financial year, broken down by fixed remuneration and variable remuneration paid by the S.A.I. or by the investment firm to their staff, the number of beneficiaries and, where applicable, any amount paid directly from the O.P.C.V.M. account, including any performance commissions; b) the total amount of remuneration broken down by category of employees or other members of staff referred to in art. 34 ^ 1 para. ((3); c) a description of the method of calculation of remuneration and benefits; d) the result of the assessments provided in 34 ^ 2 para. ((1) lit. c)-e), including any irregularities found; e) substantial changes to the remuneration policy adopted. 22. La Article 93, paragraph 1 is amended and will read as follows: + Article 93 ((1) The prospectus must contain the information necessary for investors to be able to appreciate in full knowledge of the investment proposed to them and, in particular, the risks it entails. The prospectus must include a clear and understandable description of the fund's risk profile, regardless of the instruments in which it invests. The prospectus must include detailed information on the updated remuneration policy, including but not limited to a description of the method of calculation of remuneration and benefits, the identity of the persons responsible for the the award of remuneration and benefits, including the composition of the remuneration committee, where such a committee exists. Detailed information on the remuneration policy is publicly available through the website of the S.A.I. or self-managed investment company and is delivered free of charge on paper at the request of any interested party. 23. La Article 98 (3), point a) is amended and will read as follows: a) identification of O.P.C.V.M. and competent authority of O.P.C.V.M.; 24. La Article 98, after paragraph 5 a new paragraph (5 ^ 1) is inserted, with the following contents: ((5 ^ 1) Key information for investors shall also include a statement containing the information provided for in art. 93 93 para. ((1). 25. La Article 168 (1), point a) is amended and will read as follows: a) the written contract concluded with the depositary, provided for in art. 52 52 para. ((1); 26. La Article 180 (5), by letter c) a new letter, letter d) is inserted, with the following contents: d) compliance with the request for cooperation is likely to negatively affect the conduct of its own investigation by the A.S.F., its own enforcement activities or, as the case may be, a criminal investigation. 27. La Article 187, after paragraph 2 a new paragraph (3) is inserted, with the following contents: ((3) In case of processing of personal data carried out on the territory of Romania pursuant to this emergency ordinance, A.S.F. applies the provisions Law no. 677/2001 for the protection of individuals with regard to the processing of personal data and the free movement of such data, with subsequent amendments and completions. 28. Chapter VI a new chapter, Chapter VI ^ 1 "Prerogatives of the Financial Supervisory Authority", comprising Articles 193 ^ 1 and 193 ^ 2, is inserted as follows: + Chapter VI ^ 1 Powers of the Financial Supervisory Authority + Article 193 ^ 1 A.S.F. exercises its supervisory and control powers regarding the activity of O.P.C.V.M., S.A.I., self-managed investment companies and depositaries of assets O.P.C.V.M. These powers are exercised in any of the following Modes: a) directly; b) in collaboration with other authorities; c) under their responsibility, by delegation to entities entrusted with tasks; d) by referral to the competent judicial authorities. + Article 193 ^ 2 In application of art. 193 ^ 1, A.S.F. has the following powers: a) to have access to any documents held by the natural or legal persons to whom the present emergency ordinance is subject, regardless of their form, and to receive copies thereof; b) to require any person to whom this emergency ordinance is subject to submit information and, if necessary, to do so at its hearing; c) to carry out controls at the headquarters of the legal entities to which this emergency ordinance is present and, in the case of individuals, with the support of the competent institutions/authorities/bodies for the exercise of this right; d) to require natural or legal persons to whom the provisions of this emergency ordinance are incidental to the cessation of any practice contrary to the provisions adopted pursuant to this normative act and to refrain from its repetition; e) to refer to the competent judicial authorities in order to dispose of precautionary measures, such as the freezing or seizure of assets of O.P.C.V.M., subjects of this emergency ordinance; f) to order the temporary prohibition of the exercise of professional activity by legal persons and/or physical subjects of this emergency ordinance; g) to adopt, within the limits of its legal powers, measures to ensure that the natural and legal persons subject to this emergency ordinance comply with the legal provisions applicable to this effect; h) to require S.A.I. or self-managed investment companies to suspend the issuance or repurchase of participation titles in the interest of holders of such securities or in the public interest; i) to suspend or withdraw the authorization granted to an O.P.C.V.M., to an S.A.I. or the opinion granted to a depositary O.P.C.V.M.; j) to refer the matter to the competent authorities in the field of prosecution; k) request information from the auditors of the legal persons carrying out activities in relation to the activities covered by this Emergency Ordinance. 29. La Article 195, by letter a) Insert a new letter, letter a ^ 1), with the following contents: a ^ 1) obtaining by an S.A.I. or a self-administered investment company of the authorization by false statements, as provided for in art. 11 lit. c); 30. La Article 195, letter l) is amended and will read as follows: l) non-compliance with 150, 151 para. ((1), art. 152 152 para. ((1), art. 153 153 para. ((5)-(7), art. 154 154 para. ((2), (3) and (5), art. 158 158 para. ((1), (9)-(11), art. 174 174 para. ((2) and art. 176 relating to cross-border operations; 31. Article 196 is amended and will read as follows: + Article 196 ((1) By way of derogation from provisions art. 8 of Government Ordinance no. 2/2001 on the legal regime of contraventions, approved with amendments and additions by Law no. 180/2002 ,, as amended and supplemented, hereinafter referred to as O.G. no. 2/2001 , committing the contraventions provided in art. 195 195 shall be sanctioned as follows: a) in case of contraventions provided in art. 195 lit. a)-m) and lit. p): ((i) with warning or fine from 1,000 lei to 22,098,000 lei, for individuals; ((ii) with warning or fine from 10,000 lei up to 22,098,000 lei or 10% of the total turnover made in the financial year before the sanction, depending on the seriousness of the act committed, for legal entities; b) in case of contraventions provided in art. 195 lit. n) and o): ((i) with a fine of 10,000 lei to 22,098,000 lei, for individuals; ((ii) with a fine from 50,000 lei up to 22,098,000 lei or 10% of the total turnover made in the financial year before the sanction, depending on the seriousness of the act committed, for legal entities. ((2) By exception to the provisions of par. (1), in case of committing the contraventions provided in art. 195, A.S.F. may increase the amount of fines up to twice the amount of the benefit resulting from the violation of this emergency ordinance, if the benefit exceeds the amount of 22,098,000 lei. ((3) If the turnover made in the financial year before the sanction is not available at the time of the sanction, the financial year in which the legal person registered the turnover is taken into account, immediately prior to the reference year. The reference year is understood the year before the sanction. ((4) Where the legal person is a parent company or subsidiary of the parent company, which is required to draw up consolidated financial accounts in accordance with the accounting regulations in force, the relevant total annual turnover is the total annual turnover or type of income in accordance with the relevant European Union accounting law, as evidenced by the last available consolidated accounts approved by the statutory body of the the main parent company. ((5) In addition to the main contravention sanctions, provided in par. (1)-(4), A.S.F. may also order the application of complementary contravention sanctions for legal persons and/or physical subjects of this emergency ordinance. The complementary contravention sanctions are: 1. suspension of authorisation 2. withdrawal of authorisation 3. prohibition for a period of between 90 days and 5 years of the right to occupy a position, to carry out an activity or to provide a service for which authorization is required under the conditions of this emergency ordinance. ((6) A.S.F. makes public without delay on its own website any measure or sanction imposed for non-compliance with the provisions of this emergency ordinance and the regulations adopted in its application, against which there are no more remedies in the A.S.F. girl and after the person to whom the sanction was imposed or the measure was informed of that decision. The publication shall contain at least information on the type and nature of the infringement and the identity of the This obligation does not apply to the decision of the A.S.F. to conduct a control on those violations. ((7) If the publication of the identity of legal persons or personal data of individuals is considered by the A.S.F. as excessive, as a result of an assessment carried out on a case-by-case basis with respect to the proportionality of the publication of such information, or where the publication endangers the stability of financial markets or an ongoing investigation, the A.S.F. may adopt at least one of the following measures: a) postponing the publication of the individual sanction or measure until the reasons for non-publication cease to be valid; b) the publication of the individual sanction or measure without indicating the identity of the natural persons or personal data of natural persons, provided that such publication ensures effective protection of the data with personal character in question; c) non-publication of the individual act of imposition of a sanction or measure, if the options referred to in point (a) a) and b) are considered insufficient to ensure: 1. the stability of financial markets is not jeopardised; 2. The proportionality of the publication of such decisions in cases where those measures are considered to be of a minor nature is guaranteed. In the case of a decision to publish the sanction or measure without indicating the identity of legal persons or personal data of individuals, the A.S.F. may postpone the publication of the relevant data for a reasonable period, if It is expected that during that period the reasons behind this publication will cease to be valid. ((8) A.S.F. shall inform ESMA of any administrative sanctions imposed, but not published, in accordance with paragraph 1. ((7) lit. c), including any appeal against them and its outcome. ((9) If the decision to impose a penalty or to institute a measure is the subject of an appeal before the judicial authorities or other relevant authorities, the A.S.F. shall immediately publish on its website this information and any information. subsequent on the outcome of this remedy. The A.S.F. also publishes any decision to cancel an earlier decision to impose a penalty or measure. ((10) Information published pursuant to this Article shall be maintained on the A.S.F. website for a period of at least 5 years after publication. The personal data contained in the published information shall be kept on the A.S.F. website only for the necessary period, in accordance with the applicable legislation on the protection of personal data. 32. Article 199 is amended and will read as follows: + Article 199 ((1) The individualization of the sanction takes into account the personal and real circumstances of the act and the conduct of the perpetrator, depending on: a) gravity and duration of the infringement b) the degree of guilt of the offender; c) the financial capacity of the offender, indicated, for example, by the total turnover of the legal person or the annual income of the natural person; d) the amount of profits earned or losses avoided by the offender, the damage suffered by other persons and, where appropriate, the damage to the functioning of the financial market or the economy as a whole, to the extent that they can be determined; e) the degree of cooperation of the offender with the A.S.F.; f) previous infringements committed by the offender; g) any measures taken by the offender, subsequent to the act, to limit the damage, to cover the damage or to desist the act. ((2) In exercising its powers to impose the penalties provided for by this Emergency Ordinance, the A.S.F. shall cooperate with the competent authorities of other Member States to ensure that administrative sanctions and supervisory powers and control produce the results tracked by this emergency ordinance. ((3) A.S.F. shall coordinate its actions with the competent authorities of other Member States in order to avoid possible duplication and duplication in the exercise of supervisory and control powers and in the application of administrative sanctions and measures cross-border cases, in accordance with art. 179 179 and 180. 33. After Article 200 two new articles are introduced, Articles 200 ^ 1 and 200 ^ 2, with the following contents: + Article 200 ^ 1 ((1) Reporting to A.S.F. of violations, possible or certain, of the provisions of this emergency ordinance is carried out in accordance with the regulations issued by A.S.F. ((2) A.S.F. establishes independent and autonomous communication channels, which are safe and ensure confidentiality, for receiving reports on violations of the provisions of this emergency ordinance, hereinafter referred to as communication methods secured. ((3) Secure communication methods shall be considered independent and autonomous, provided that they cumulatively meet the following criteria: a) are separate from the general communication channels of the A.S.F., including those through which the A.S.F. communicates internally and with third parties within its usual business; b) are designed, established and used in a manner that guarantees completeness, integrity and confidentiality of information and prevents the access of unauthorised employees of the A.S.F.; c) enable the sustainable storage of information, in accordance with the regulations issued by the A.S.F., to allow further investigation. A.S.F. keeps the records provided in this letter in a confidential and secure database. ((4) Secure communication methods allow reporting of possible or certain violations at least in the following ways: a) written reporting of infringements, in electronic form or on paper; b) oral reporting of infringements via telephone lines, whether registered or unregistered; c) meeting with specialized employees of A.S.F., if applicable. ((5) A.S.F. shall ensure that a reporting on a breach received by means other than the secure communication methods provided for in this Article is immediately transmitted, without modification, to the specialized employees of the A.S.F., using the methods of Secure communication. ((6) The management process by A.S.F. of reports transmitted by persons advertising violations of the provisions of this emergency ordinance shall be carried out according to par. ((2)-(5) and the regulations issued by A.S.F., with the insurance: a) drawing up specific procedures for the receipt of reports of infringements and subsequent action; b) an adequate level of protection of those employees of S.A.I., of investment companies or of O.P.C.V.M. depositaries who report the violations committed within those entities, at least regarding acts of revenge, of discrimination and other types of unjust treatment; c) the protection of personal data both with respect to the person who reports violations to this emergency ordinance and with regard to the natural person suspected of having been guilty of a violation, in accordance with the provisions of Law no. 677/2001 , with subsequent amendments and completions; d) confidentiality as regards the person reporting a breach, unless national law requires disclosure of his or her identity, in the context of investigations or subsequent judicial proceedings. ((7) Reporting by employees of S.A.I., within investment companies or within depositaries, provided in par. ((1)-(5), shall not be considered as a violation of any restriction on the disclosure of information imposed by contract or by any act with the power of law or administrative act and does not entail the responsibility of the person notifying in connection with that reporting. + Article 200 ^ 2 ((1) A.S.F. provides annually to ESMA aggregated information on all sanctions and measures applied in accordance with art. 194-200, by 31 January of the following calendar year. ((2) If it has informed the public of the sanctions applied for non-compliance with this emergency ordinance, the A.S.F. shall simultaneously report the respective sanctions or measures to ESMA. 34. La Article 202, paragraph 1 is repealed. 35. La Article 202, paragraph 2 is amended and will read as follows: ((2) Art. 15, 34, art. 52 52 para. ((3) lit. b)-d) and art. 105 105 para. (2) will apply accordingly and A.O.P.C. 36. La Article 33 (2) (c) , Article 82 (d) point 1 and Article 178 (1) (d) , the words 'concluded a cooperation agreement', 'there is concluded a cooperation agreement' and 'the existence of a cooperation agreement' is replaced, in the order of enumeration, with the following phrases: 'there are relations of cooperation', ' there are relations of cooperation "," the existence of cooperative relations ". 37. La the entry for acts of the European Union, after point 9 Insert a new point, paragraph 10, with the following contents: 10. Directive 2014 /91/EU of the European Parliament and of the Council of 23 July 2014 amending Directive 2009 /65/EC coordinating the laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), with regard to depositary functions, remuneration policies and sanctions. + Article II This law shall enter into force 30 days from the date of publication in the Official Gazette of Romania, Part I. + Article III A.S.F. issues regulations in application of provisions Government Emergency Ordinance no. 32/2012 on undertakings for collective investment in transferable securities and investment management companies and for amending and supplementing Law no. 297/2004 on the capital market, approved with amendments and additions by Law no. 10/2015 , as amended, as well as with the amendments and additions made by this law, with the consideration of the provisions Delegated Regulation (EU) 2016/438 and the guidance issued by ESMA, on the application Directive 2014 /91/EU , within 6 months after the entry into force of this Law. + Article IV ((1) S.A.I., O.P.C.V.M. and storage O.P.C.V.M. operating on the date of entry into force of this law are obliged within 3 months from the date of entry into force of the regulations provided for in art. III: a) adapt their constituent and functioning documents, as well as the activity, to the provisions of this law; b) request the authorization/approval of the necessary modifications of the documents referred to in point a) and submit applications and documentation in this regard. ((2) S.A.I., O.P.C.V.M. and storage O.P.C.V.M. that are being authorized on the date of entry into force of this law shall be authorized according to the provisions of this normative act. + Article V After the entry into force of this Law, Government Emergency Ordinance no. 32/2012 on undertakings for collective investment in transferable securities and investment management companies and for amending and supplementing Law no. 297/2004 on the capital market, published in the Official Gazette of Romania, Part I, no. 435 of 30 June 2012, approved with amendments and additions by Law no. 10/2015 , as amended, as well as with the amendments and completions brought by this law will be republished in the Official Gazette of Romania, Part I, giving the texts a new numbering. This law was adopted by the Romanian Parliament, in compliance with the provisions art. 75 and ale art. 76 76 para. ((1) of the Romanian Constitution, republished.
CHAMBER OF DEPUTIES PRESIDENT
NICOLAE-LIVIU DRAGNEA
SENATE PRESIDENT
CĂLIN-CONSTANTIN-ANTON POPESCU-TARICEANU Bucharest, March 24, 2017. No. 29. -----