Advanced Search

Law No. 139 Of 30 April 2013 For The Modification And Completion Of The Law #. 503/2004 Relating To Financial Recovery And Bankruptcy Of Insurance Undertakings

Original Language Title:  LEGE nr. 139 din 30 aprilie 2013 pentru modificarea şi completarea Legii nr. 503/2004 privind redresarea financiară şi falimentul societăţilor de asigurare

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
LEGE no. 139 139 of 30 April 2013 to amend and supplement Law no. 503/2004 on the financial recovery and bankruptcy of insurance undertakings
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 260 260 of 9 May 2013



The Romanian Parliament adopts this law + Article I Law no. 503/2004 on the financial recovery and bankruptcy of insurance companies, published in the Official Gazette of Romania, Part I, no. 1.193 of 14 December 2004, as amended, shall be amended and supplemented as follows: 1. The title of the law changes and will read as follows: " LEGE on financial recovery, bankruptcy, dissolution and voluntary liquidation in the insurance business " 2. Article 1 is amended and shall read as follows: "" Art. 1. -(1) Procedures relating to financial recovery and bankruptcy of insurance companies established by this Act shall apply to insurers and/or reinsurers as defined in art. 2 2 of Law no. 32/2000 on insurance and insurance supervision, as amended and supplemented, including their foreign-based branches, as well as branches and subsidiaries of third-country insurance companies, which have established in Romania; the procedures for financial recovery and bankruptcy of insurance companies do not apply to the branch of an insurance company or a mutual company in a Member State, which has received an authorisation from the authority the competence of the home Member State. (2) The provisions of this Law do not apply to insurance intermediaries as defined by Law no. 32/2000 , with subsequent amendments and completions, which are subject to the regulations of the common law on judicial reorganization and bankruptcy contained in Law no. 85/2006 on insolvency proceedings, with subsequent amendments and completions, except for the dissolution and voluntary liquidation provided for in the head. III section 4. " 3. In Article 2, paragraph 1 shall be amended and shall read as follows: "" Art. 2. -(1) This law regulates the procedure of financial recovery of the insurer/reinsurer, the procedure of its bankruptcy, as well as the dissolution and voluntary liquidation of insurers/reinsurers and insurance brokers and/or reinsurance. " 4. in Article 3, points c) and g)-k) shall be amended and shall read as follows: " c) bankruptcy proceedings-insolvency proceedings that apply to the insurer/reinsurer involving the measures necessary to liquidate its wealth in order to cover the liability; ................................................................................................. g) liquidator-natural or legal person, including the Guarantee Fund, designated under the conditions Law no. 85/2006 , with subsequent amendments and completions, to lead the activity of the insurer/reinsurer and to exercise the powers provided in art. 40, in the context of bankruptcy proceedings; h) insurance creditors-insured persons, insurance policy holders, beneficiaries of insurance contracts, as well as any other third party prejudiced by non-compliance with the insurance conditions of the contracts, the claims of which have not been paid by the insurance undertaking; i) insurance claims-the claims of insurance creditors, which result from an insurance contract, including the amounts reserved for these creditors when some elements of the debt are not yet known. Insurance claims receivables of the Guarantee Fund, as well as premiums due by the debtor insurance company, shall be deemed to be receivable, resulting from the termination or, as the case may be, from the cancellation of insurance contracts or operations performed, the law applicable to them, before entering the bankruptcy procedure; j) state of insolvency-that state of the insurance/reinsurance company characterized by one of the following situations: 1. the manifest inability to pay due debts with money availability; 2. decrease in the value of the solvency margin available below half of the minimum limit provided by the legal regulations in force for the safety fund; 3. impossibility of restoring the financial situation of the insurance/reinsurance company in the financial recovery procedure; k) payment agreement of insurance claims-the convention intervened before or after the opening of the bankruptcy procedure, concluded between the insurer/reinsurer and the insurance creditors, having as its object the payment terms of the claims; " 5. in Article 3, after paragraph 1, a new paragraph (2) is inserted, with the following contents: "(2) The terms:" Member State "," home Member State "," host Member State "," third country "," subsidiary "," branch "," significant person "and" significant shareholder " have the meaning provided by Law no. 32/2000 ,, as amended and supplemented. " 6. In Article 4, paragraph 2 shall be amended and shall read as follows: "" (2) The verification may be carried out at any time by the Financial Supervisory Authority, including following the complaints of insurance creditors regarding the financial situation of the insurance/reinsurance company, in order to prevent the insolvency and/or the restoration of its situation in the framework of the financial recovery procedure. " 7. In Article 5, paragraph 1 shall be amended and shall read as follows: "" Art. 5. -(1) The financial recovery procedure involves any intervention of the Financial Supervisory Authority for taking the necessary measures to restore the financial situation of the insurance/reinsurance company, in order to prevent the state of insolvency of this and avoiding entry into the bankruptcy procedure. " 8. In Article 6, paragraph 2 shall be amended and shall read as follows: " (2) At the request of the Financial Supervisory Authority, the insurance/reinsurance company is obliged to determine and communicate within 48 hours of the request the following: a) the calculation of the available solvency margin, the minimum solvency margin and the safety fund; b) the liquidity indicator; c) the situation of the gross technical reserves constituted on each category of technical reserves and the insurance class practiced; d) the assets admitted to cover the gross technical reserves. " 9. in Article 6, after paragraph 2, a new paragraph (3) is inserted, with the following contents: "(3) Indicators shall be determined and reported in accordance with the regulations in force, for the month preceding the date of the request by the Financial Supervisory Authority." 10. Article 7 is amended and shall read as follows: "" Art. 7. -An insurance/reinsurance undertaking shall enter into the financial recovery procedure governed by this law when there is at least one of the following situations: a) the non-compliance with the provisions of art. 6 6 para. ((2), as well as any other legal provisions relating to insurance/reinsurance activity, putting at risk the fulfillment of the obligations assumed towards the insurance creditors; b) the value of the available solvency margin decreases below the minimum solvency margin determined in accordance with the regulations in force; c) the value of the available solvency margin falls below the minimum limit provided by the legal regulations in force for the safety fund. " 11. In Article 8, paragraph 1 shall be amended and shall read as follows: "" Art. 8. -(1) In the cases provided for in art. 7 lit. a) and b), the Financial Supervisory Authority may, by reasoned decision, order the opening of the financial recovery procedure by one of the following ways: a) recovery of the insurance/reinsurance company on the basis of financial recovery plan; b) recovery of the insurance/reinsurance company through special administration. " 12. in Article 8, after paragraph 1, a new paragraph (1 ^ 1) is inserted, with the following contents: " (1 ^ 1) In the case provided for in art. 7 lit. c) the board of directors or, as the case may be, the supervisory board is obliged, immediately, to convene the extraordinary general meeting of the shareholders for the increase of the share capital of the company. Within 5 days from the publication in the Official Gazette of Romania, Part IV, of the convocation of the extraordinary general meeting of shareholders, the company will present to the Financial Supervisory Authority: a) proof of the convocation of the extraordinary general meeting and the proposed decision to increase the share capital b) detailed analysis of the factors that led to the decrease of the solvency margin available below the safety fund's value; c) the detailed plan of measures that the company will take to avoid the decrease of the solvency margin available below the value of the safety fund for a period of at least one year. The operation of the increase of the share capital, including the payment of the subscribed share capital, shall not exceed 60 calendar days from the date of convocation of the extraordinary general meeting of the shareholders. " 13. Article 8 (3), letter a) shall be amended and shall read as follows: "" a) taking measures with regard to the goods and/or assets of the insurance/reinsurance undertaking, consisting in their inventory by that and the preservation throughout the financial recovery procedure, as well as the restriction or prohibition the possibility to dispose of them freely; liability for non-application or improper application of these measures ordered by the Financial Supervisory Authority belongs to the members of the board of directors/board supervision and executive management of the insurance/reinsurance company; " 14. Article 12 (3), letter e) shall be amended and shall read as follows: "" e) reinsurance and/or retrocesion programmes; '; 15. In Article 15, letter c) is amended and shall read as follows: " c) the closure of the financial recovery procedure; in this case, the Financial Supervisory Authority will withdraw the authorization to operate the insurance/reinsurance company and, in case of finding its insolvency status, will ask the court immediately opening the bankruptcy procedure, according to art. 3 lit. j) section 3 3. " 16. Article 16 is amended and shall read as follows: "" Art. 16. -(1) In case of application of the financial recovery modality provided for in art. 8 8 para. ((1) lit. b), the Financial Supervisory Authority designates a person as special administrator, who, mainly, will carry out and will take all necessary measures to restore the financial situation of the insurance/reinsurance company, in compliance with the provisions, time limits and conditions contained in the financial recovery decision. (2) In this regard, the special administrator may immediately convene an extraordinary general meeting of the shareholders, with the proposal to carry out the operation to increase the share capital. " 17. In Article 21 (1), point b) shall be amended and shall read as follows: " b) the withdrawal of the operating authorization of the insurance/reinsurance company, as well as, if its insolvency is found, the request, immediately, of the entry into the bankruptcy procedure, in the situation provided for in art. 20 lit. b). " 18. Article 22 is amended and shall read as follows: "" Art. 22. -In the case provided in art. 21 21 para. ((1) lit. b), on the date of publication of the decision on the closure of the financial recovery procedure and the finding of the insolvency of the insurance/reinsurance company is born the right of insurance creditors to request the payment of the amounts due from the Fund Guarantee. " 19. Article 23 is amended and shall read as follows: "" Art. 23. --(1) Within 30 days from the date of publication of the decision to close the financial recovery procedure, the insurance/reinsurance company for which the Financial Supervisory Authority was found of insolvency is obliged to hand over to the Guarantee Fund the record of insurance contracts in force on the closing date of the financial recovery procedure, the complete record of the damage files, as well as the technical-operative and accounting records related to these contracts and dossiers, with a view to publishing insurance creditors, beneficiaries of the amounts due from the Guarantee Fund. Liability for failure to perform or improper performance of the obligation rests with board members/supervisory board and executive management of the insurance/reinsurance company. (2) Within the period provided in par. ((1), the Guarantee Fund shall designate a special commission, consisting of its own specialists, with the following composition: a) 2 members of the management, one of whom is the chairman of the commission; b) the head of the financial department or its legal replacement, as appropriate; c) 2 representatives of the technical directorate, with experience in the matter of liquidation of damages; d) 2 representatives of the legal general directorate, with experience of at least 3 years in the legal field. (3) After the expiry of the term provided in par (1), the Guarantee Fund shall take all necessary measures to publish the list of insurance creditors whose claims have resulted from the records transmitted by the insurance/reinsurance company, according to par. ((1). ((4) Any person appearing in the list of public insurance creditors shall make a written request to the Guarantee Fund. " 20. Article 24 is amended and shall read as follows: "" Art. 24. -(1) Any person who does not appear in the list of insurance creditors and who claims any right of insurance claim on the insurance/reinsurance company may make a reasoned request to the Guarantee Fund. (2) The application provided in par. (1) shall be made in writing by each alleged creditor and shall be submitted to the premises of the Guarantee Fund or by means of mail services, recommended, with acknowledgement of receipt. With the request, the person shall attach the supporting documents, in original, and shall mention all the elements necessary to establish exactly the amount of the amounts requested. At the same time, any other documents can be attached and other information can be communicated through which the amount of the claimed amounts can be proven (3) In the case of the impossibility of presenting the original supporting documents, the insurance creditor may present copies thereof, signed on his own responsibility, and in the application he will specify the reason for the impossibility of their original submission. (4) The application will mainly include the following elements: the nature of the claim, the timing of its birth and the amount of the claimed amount, whether there is any privilege or a genuine guarantee in respect of the claim as well as the goods covered of their insurance. (5) The application, as well as the documents and information requested according to para. (2)-(4) shall be submitted in Romanian; the translations of the documents will be transmitted only under the signature of the authorized translator, according to the law. (6) After receiving each request under the conditions of par. (1)-(5), the specially constituted commission, designated according to art. 23 23 para. (2), record and analyze all documentation related to the application. On the basis of the Commission's proposals, the Guarantee Fund will approve or, where appropriate, reject the amount of the claimed amounts In case of rejection of the amount of the claimed amounts a rejection decision will be issued. Against the decision can be appealed, under the conditions provided in art. 19. (7) For creditors accepted for payment by court decision, publication will be made, for each case, after this decision has remained final. ((8) The right of action against the Guarantee Fund for the payment of allowances/compensation shall be prescribed within 5 years from the date of final stay of the decision to open the bankruptcy procedure. " 21. Article 25 is amended and shall read as follows: "" Art. 25. -(1) Any person who invokes any right of claim against the insurer/reinsurer as a result of the occurrence of risks covered by a viable insurance policy, between the closing date of the financial recovery procedure and the date entry into the bankruptcy procedure, may formulate, under penalty of decay, an application, within 30 days from the date of occurrence of the insured risk, under the conditions of art. 24 24 para. ((2)-(5). ((2) If the portfolio of insurance/reinsurance company insurance contracts has not been transferred until the closing date of the financial recovery procedure, the Financial Supervisory Authority shall have all necessary measures informing the insured of both the possibility for them to denounce, no later than 90 days after the date of entry into the bankruptcy procedure, the insurance contracts concluded with the debtor company and the right to recover the related insurance premiums, for the period between the moment denunciation of the insurance contract and the expiry of its duration of validity. ((3) In case of risks covered by the contracts referred to in par. (2), between the date of entry into the bankruptcy proceedings and that of their denunciation, but no later than 90 days after the date of delivery of the opening decision of the bankruptcy procedure, the Financial Supervisory Authority nominates a company of insurance, with a view to finding and assessing damages. Amounts due to insured persons, established by the insurance company and accepted for payment by the specially constituted commission, provided in art. 23 23 para. (2), shall be paid from the resources of the Guarantee Fund, under the conditions and in compliance with the provisions of this Law and the norms issued by the Financial Supervisory Authority in its application (4) The provisions of art. 24 24 para. ((2)-(8) shall also apply accordingly to the requests of the persons referred to in par. ((1). ' 22. Article 27 is amended and shall read as follows: "" Art. 27. -(1) The guarantee fund shall be subroted in all the rights of the insurance creditors to the competition of the amounts it paid from its availabilities. ((2) By way of derogation from provisions art. 62 62 para. ((1) lit. b) of Law no. 85/2006 , with subsequent amendments and completions, the Guarantee Fund may register at the credit table, throughout the bankruptcy proceedings, in order to recover them, any amounts, interest and/or expenses that it has paid from its resources. (3) Under the conditions of paragraph ((1) and (2), the Guarantee Fund is entitled to register and recover, under the bankruptcy procedure of the insurance/reinsurance undertaking, all amounts paid to creditors, as payments made, as a result of the production the risks secured after the opening of the bankruptcy procedure. '; 23. In Article 29, paragraph 1 shall be amended and shall read as follows: "" Art. 29. -(1) Under this law, the debtor insurance/reinsurance company in a state of insolvency, as defined in art. 3 lit. j) section 1 1, it is obliged to apply to the tribunal an application to be subject to bankruptcy proceedings. The application shall be submitted no later than 20 days after the date of occurrence of the state of insolvency. " 24. In Article 30, paragraph 1 shall be amended and shall read as follows: "" Art. 30. -(1) Creditors of the insurance/reinsurance company debtor, other than the insurance creditors referred to in art. 23 23 para. ((3), art. 24 24 para. ((7) and in art. 25 25 para. ((1) whose claims are to be paid from the availabilities of the Guarantee Fund, may register in court a request for the opening of bankruptcy proceedings against the debtor company, under the terms of this law, if they hold a certain claim, liquid and chargeable for more than 90 days, with a minimum value of 45.000 lei. " 25. In Article 31, paragraph 2 shall be amended and shall read as follows: " (2) The opening of bankruptcy proceedings shall be ruled by the syndic judge if: a) The Financial Supervisory Authority has communicated, by welcoming, that at the time of the formulation of the application for the opening of the bankruptcy procedure a procedure for financial recovery of the company's activity insurance/reinsurance debtor, under the terms of this law; or b) The Financial Supervisory Authority has communicated, by welcoming, that there are no real possibilities to restore the financial situation of the company and to pay the claims of all its creditors in a recovery procedure financial. " 26. Article 32 is amended and shall read as follows: "" Art. 32. -(1) Under this law, the Financial Supervisory Authority may introduce an application for the opening of bankruptcy proceedings against a debtor insurance/reinsurance company, in any of the cases referred to in art. 3 lit. j) section 2 2 and 3. (. The application shall be accompanied by the following documents, as appropriate: a) the decision of the Financial Supervisory Authority on the withdrawal of the operating authorization of the insurance/reinsurance company debtor, the finding of insolvency and the promotion of the application regarding the opening of the bankruptcy procedure against it; b) the decision of the Financial Supervisory Authority on the closure of the financial recovery procedure, followed by the opening of the bankruptcy procedure against the insurance/reinsurance company; c) any other acts or documents that are necessary to justify the request for the investiture of the tribunal. " 27. Article 33 is amended and shall read as follows: "" Art. 33. -(1) Following registration of the application, according to art. 29-32, the insurance/reinsurance company shall be quoted and, as the case may be, the creditor who made the request or the Financial Supervisory Authority. The Guarantee Fund will also be notified. (2) Contestation of the insurance/reinsurance company against the application provided in art. 30 30 and 32 may be entered no later than 5 days after the date of receipt of the notification of the registration of such a request. The appeal is adjudicated expeditiously and in particular; only appeal can be exercised against the judgment of the syndic judge. (3) At the first court term, the syndic judge will consider the introductory application and the submitted documents and, if the debtor insurance/reinsurance company did not dispute the existence of the state of insolvency, according to par. ((2), shall make a decision to open the bankruptcy proceedings. " 28. In Article 34, paragraphs 1 and 3 shall be amended and shall read as follows: "" Art. 34. --(1) Following the opening decision of the bankruptcy proceedings, the liquidator shall immediately communicate to the interested parties, the Guarantee Fund and the trade register office where the company is registered. insurance/reinsurance debtor, in order to make the mention "insurance/reinsurance company in bankruptcy". The communication shall be published, through the care of the Guarantee Fund, in at least two national circulation newspapers, according to the legal provisions. ............................................................................................... (3) All expenses related to the measures provided in par. ((1) shall be borne by the patrimony of the debtor insurance/reinsurance company; in the absence of the necessary availability, the liquidation fund provided by Law no. 85/2006 ,, as amended and supplemented. " 29. Article 35 is amended and shall read as follows: "" Art. 35. -(1) Following the opening of the bankruptcy proceedings it is prohibited, under penalty of nullity, to the significant shareholders of the insurance/reinsurance company debtor or persons who have held management positions to dispose of the shares held to the debtor insurance/reinsurance company, without the prior opinion of the Financial Supervisory Authority and without the approval of the syndic judge. (2) The syndic judge will order the preservation of the shares, according to par. ((1), in the special records kept by the debtor insurance/reinsurance company or in the independent registers. " 30. Article 37 is amended and shall read as follows: "" Art. 37. -By the decision to open the bankruptcy procedure, the syndic judge raises the administrators of the insurance/reinsurance company debtor the right to represent the company, to manage its assets and to dispose of them. " 31. Article 38 is amended and shall read as follows: "" Art. 38. -(1) The decisions of the syndic judge are enforceable and can be appealed only with appeal. (2) The appeal shall be adjudicated by the Bucharest Court of Appeal, expeditiously and in particular. Provisions art. 7 7 of Law no. 85/2006 ,, as amended and supplemented, shall apply accordingly. '; 32. In Article 39, paragraph 1 shall be amended and shall read as follows: "" Art. 39. -(1) According to this law, the syndic judge has the following main duties: a) the reasoned delivery of the decision to open the bankruptcy procedure of the insurer/reinsurer; b) the notification of the Guarantee Fund, as well as of the Financial Supervisory Authority on the registration of the applications; c) to judge the insurer's/reinsurer's appeal against the application made by the Financial Supervisory Authority, the insurance creditors and the other creditors, as the case may be, for the start of the procedure; d) the reasoned designation of the liquidator who will administer the procedure, the establishment of the remuneration, its duties art. 11 lit. c) of Law no. 85/2006 , with subsequent amendments and completions, as well as its replacement, for thorough reasons; e) the judgment of the actions introduced by the judicial liquidator for the cancellation of transfers of a patrimonial nature, prior to the decision to open the bankruptcy procedure; f) to judge the requests of the Financial Supervisory Authority regarding the nullity or cancellation of acts prejudicial to the interests and rights of insurance creditors, prior to the opening of bankruptcy g) the adjudication of claims for compensation of claims, formulated by the insurance/reinsurance company or insurance creditors, as the case may be, with the opinion of the Financial Supervisory Authority; h) the judgment of the appeals made by the Financial Supervisory Authority, the insurance/reinsurance company debtor, the insurance creditors or any person interested, as the case may be, against the measures ordered by the liquidator; i) admission and confirmation of the plan to liquidate some assets of the patrimony of the insurance/reinsurance company debtor, with the prior opinion of the Financial Supervisory Authority; j) admission and confirmation of the payment agreement of insurance claims, with the prior opinion of the Financial Supervisory Authority; k) resolution of appeals to reports of the judicial liquidator; l) the adjudication of requests to attract the responsibility of the members of the governing bodies, the censors, the financial auditors and the execution personnel or with control powers within the insurance/reinsurance company that contributed upon reaching the insurer/reinsurer in insolvency, according to art. 50 50; m) the decision to close the procedure. " 33. Article 40 is amended and shall read as follows: "" Art. 40. -According to the present law, the main duties of the liquidator are a) the analysis of the activity of the insurance/reinsurance company debtor in relation to the factual situation and the preparation of a detailed report on the causes and circumstances that led to its insolvency, with the mention of persons to which the bankruptcy of the insurance/reinsurance company would be imputable, and on the existence of the premises of the employment of their liability under the conditions of art. 50. The report prepared shall be submitted to the syndic judge, no later than 40 days from the date of its designation; a copy of this report shall also be transmitted to the Financial Supervisory Authority. At the request of the liquidator, for thorough reasons, the syndic judge may, by conclusion, extend the presentation period of the report; b) notification of the decision of entry into the bankruptcy procedure of the debtor insurance/reinsurance company; c) the verification of claims on the insurance/reinsurance company debtor and, as the case may be, the formulation of objections against them, as well as the preparation of the debt tables; d) the verification of the claims of the Guarantee Fund, as well as of any other amounts due to it, according to the law, in compliance with the rights, privileges and/or legal guarantees; e) maintaining or denouncing contracts concluded by the debtor insurance/reinsurance company, with the opinion of the Financial Supervisory Authority; f) management of the activity of the insurance/reinsurance company debtor, respectively the performance of the operations in the interest of the bankruptcy procedure, including the recovery of the outstanding insurance premiums, related to g) the conclusion of payment agreements of insurance claims, with the opinion of the Financial Supervisory Authority, and their confirmation by the syndic judge, with or without guaranteeing them with the assets of the insurance/reinsurance company debtor; h) the application of seals, the inventory of the assets of the insurance/reinsurance company and the taking of all appropriate measures to preserve them; i) the employment, in compliance with the legal provisions, of the necessary personnel for the liquidation and management of its activity, the employment also being made from the existing staff of the insurance/reinsurance company debtor; j) the introduction of actions for the cancellation of fraudulent acts, concluded by the insurance/reinsurance company debtor at the expense of the rights of the insurance creditors in the 3 years prior to the opening k) the introduction of shares for the cancellation of guarantees or transfers of patrimonial rights to third parties and for their restitution of the transmitted goods and the value of other executed benefits, carried out by the company insurance/reinsurance debtor by: 1. acts of free transfer, with the exception of sponsorships for humanitarian purposes, carried out in the 3 years prior to the opening of the procedure; 2. acts concluded with a shareholder holding at least 5% of the shares of the insurance/reinsurance company; 3. acts concluded with an administrator, director or with any other member of the management and supervisory bodies of the debtor insurance/reinsurance company; 4. acts concluded with any other natural or legal person in close connection with the debtor insurance/reinsurance company. A person is in close contact with the company when: --holds a direct participation or through a control relationship of at least 20% of the share capital or voting rights of the debtor insurance/reinsurance company; --is permanently linked to the debtor insurance/reinsurance company by means of a control relationship or, as the case may be, accomplishes a common policy towards it; -exercise control powers over the insurance/reinsurance company debtor; l) the introduction of shares for the cancellation of guarantees or transfers of patrimonial rights to third parties and for their restitution of the transmitted goods and the value of other benefits, executed by the insurance company/ reinsurance debtors at the expense of insurance creditors by: 1. acts concluded in the 3 years preceding the opening of the procedure, with the intention of the parties involved to evade goods from the pursuit by the insurance creditors or to harm their rights in any way; 2. commercial operations in which the performance of the insurance/reinsurance company shall clearly exceed the one received, carried out in the 3 years prior to the opening of the procedure; 3. acts of transfer of ownership to a creditor for its benefit or for the extinguishment of a previous debt, carried out in the 180 days prior to the opening of the procedure, if the amount that the creditor could obtain in the proceedings is less than the value of the transfer act; 4. the establishment or completion of a real guarantee for a claim that was chirographic in the 120 days prior to the opening of the procedure; 5. free transfer documents, except for humanitarian sponsorships carried out according to the legal provisions, carried out in the 3 years prior to the opening of the bankruptcy procedure; 6. acts concluded by significant persons or significant shareholders with the debtor insurance/reinsurance company in which they hold this quality, in the year before the bankruptcy procedure started; m) the pursuit of the collection of any claims from the patrimony of the insurance/reinsurance company debtor, resulting from the transfer of goods or amounts of money, carried out by this prior to the registration of the opening application of the procedure; the formulation and support of claims for the collection of insurance/reinsurance claims; n) the preparation of a monthly report on the evolution of the bankruptcy procedure, which it will present to the syndic judge and will transmit it, for approval, to the Financial Supervisory Authority, as well as to the Guarantee Fund; o) referral to the syndic judge about any problem that would require a resolution by him; p) the conclusion of any documents, on behalf of the insurance/reinsurance company debtor, the initiation and coordination, on its behalf, of any legal action or proceedings; r) preparation of the final liquidation balance. If the liquidation is extended beyond the duration of a financial year, the liquidator is obliged to draw up the annual accounting balance and to submit it to the bodies and to the deadlines provided in the models of financial-accounting situations for companies regulated by Company law no. 31/1990 , republished, with subsequent amendments and completions; s) the fulfillment of any provisions of the Financial Supervisory Authority, issued as a competent specialized administrative authority, in the cases expressly provided by law, with the confirmation of the syndic judge, in order to guaranteeing the defence of the interests and rights of insurance creditors; t) liquidating the goods and capitalizing on the rights of the patrimony of the insurance/reinsurance company debtor, with the prior opinion of the Financial Supervisory Authority and with the notification of the Guarantee Fund, provided their confirmation by the syndic judge, aiming at their optimal recovery, in order to pay debts to insurance creditors, by: 1. transactions regarding the purchase of assets and the assumption of liabilities through which an insurance/reinsurance company, with a good or very good financial situation, acquires, in whole or in part, the assets of the debtor insurance/reinsurance company and assume, in part or in all, its liabilities; 2. sale of goods, such as: buildings, land, equipment, securities; 3. any other techniques to capitalize on the assets of the insurance/reinsurance company debtor, such as debt disposals or novations made in the interest of bankruptcy proceedings at a negotiated value; u) preparation of monthly reports in connection with the liquidation activity, which will be subject to the approval of the trade union judge; after their approval, the reports will be submitted to both the Financial Supervisory Authority and the Guarantee Fund; v) performing any procedural documents required by this law. " 34. After Article 40 a new article is inserted, Article 40 ^ 1, with the following contents: "" Art. 40 40 ^ 1. -(1) By the court decision regarding the opening of bankruptcy proceedings, the syndic judge shall designate the liquidator and determine its duties and remuneration. By way of derogation from provisions art. 3 of Government Emergency Ordinance no. 86/2006 on the organization of the activity of insolvency practitioners, republished, with subsequent amendments and completions, the Guarantee Fund will be able to be designated liquidator. (2) The Guarantee Fund may be designated by a liquidator's court decision on the basis of an offer submitted by him to the file regarding the opening of the bankruptcy procedure of insurers/reinsurers. The offer shall be submitted after obtaining the prior opinion of the Financial Supervisory Authority on the proposal of the Management Fund management, made in this regard. (3) The activity of the Guarantee Fund as a liquidator shall be carried out through a representative appointed by the management of the Fund, with the approval of the (4) The Guarantee Fund may be appointed liquidator at any stage of the bankruptcy of an insurer/reinsurer, instead of another liquidator, by the meeting of creditors, on the recommendation of the creditors ' committee and on the basis of the offer of the Guarantee Fund, addressed to the committee of creditors, in compliance with 19 19 para. ((2) and art. 24 24 of Law no. 85/2006 ,, as amended and supplemented. " 35. Article 41 is amended and shall read as follows: "" Art. 41. -(1) The insurance/reinsurance company debtor and/or any of the insurance creditors, the Financial Supervisory Authority, the Guarantee Fund, as well as any other person concerned, as the case may be, may appeal against measures taken by the liquidator. The appeal shall be made no later than 5 days after the date of taking notice of the contested measures. (2) The contestation shall be settled by the emergency syndic judge and in particular. The syndic judge holds a meeting, with the summoning of the objector, the Financial Supervisory Authority, the insurance creditors and/or the Guarantee Fund. " 36. Article 42 is amended and shall read as follows: "" Art. 42. -For thorough reasons, the liquidator may be replaced by the syndic judge, by final conclusion given at the meeting of the council chamber, with the prior opinion of the Financial Supervisory Authority. " 37. Article 43 is amended and shall read as follows: "" Art. 43. -The reports that the liquidator is obliged to draw up in accordance with the provisions of the law shall also be compulsorily transmitted to the Financial Supervisory Authority, as well as to the Guarantee Fund. Failure to fulfill the obligation of the liquidator is a thorough reason for the admission of the application for its replacement, according to 42 42. " 38. Article 44 is amended and shall read as follows: "" Art. 44. -(1) Under the conditions of this law, the opening of bankruptcy proceedings against the debtor insurance/reinsurance company shall be ordered by the judgment of the syndic judge. (2) The decision to open the bankruptcy procedure has as a consequence the withdrawal by the Financial Supervisory Authority of the operating authorization of the debtor insurance/reinsurance company, if this measure was not previously ordered delivery of judgment. The liquidator will publish the decision of the syndic judge in the Official Gazette of Romania, Part IV, according to the modalities provided by law in terms of publication, as well as in at least two newspapers of national circulation. With the publication it will communicate the decision to both the Financial Supervisory Authority and the Guarantee Fund. ((3) The withdrawal of the operating authorization shall not prevent the liquidator or any other person empowered to do so by him to carry out some of the insurance/reinsurance undertaking's insurance operations, in so far as which this is necessary or appropriate, in order to complete the bankruptcy procedure. These operations will only be able to take place with the prior opinion of the Financial Supervisory Authority. (4) The decision to open bankruptcy proceedings has the effect of suspending all judicial or extrajudicial actions and enforcement measures directed against the debtor insurance/reinsurance company. The claims alleged in these processes are registered with the bankruptcy file of the tribunal and subject to their examination and enrolment in the debt table, according to the law. The effects of the bankruptcy proceedings on a pending civil suit on a good or a right of which the insurance/reinsurance company has been stripped are governed by the law of the Member State in which the process is pending. (5) The insurance claims, found by enforceable securities obtained after the moment of delivery of the bankruptcy decision, shall be registered in the court, under penalty of forfeiture of the law, no later than 10 days after the date of obtaining the title. The liquidator is obliged to check and, if applicable, to enroll these claims in the debt table, in compliance with the order of preference and/or privileges or their legal guarantees. In all cases, the application for registration of these claims cannot be filed later than the date of drawing up the consolidated definitive table of claims, according to the law. " 39. In Article 45, paragraph 2 shall be amended and shall read as follows: " (2) In case of approval by the syndic judge of the liquidation modality provided in art. 40 lit. t) section 1, the liquidator shall organize immediately, if the confirmed modality provides, the negotiation on the transaction of purchase of assets and assumption of liabilities. The liquidator shall organize for this purpose an information meeting with all insurance/reinsurance companies considered by the Financial Supervisory Authority, in order to present the terms and conditions of the negotiation. Before the meeting is held, the liquidator is obliged to sign with the respective insurance/reinsurance companies a confidentiality agreement, whereby they undertake, under the law, to keep professional secrecy with regard to the information relating to the debtor insurance/reinsurance undertaking covered by the negotiation. '; 40. Article 47 is amended and shall read as follows: "" Art. 47. -If no offers are received within the period referred to in art. 46 46 para. (3) or the offers received are not appropriate to the feasibility requirements of such a transaction or this transaction is not endorsed by the Financial Supervisory Authority or is not confirmed by the syndic judge, as the case may be, the liquidation the assets and rights of the debtor of the debtor company are to be carried out by other methods/procedures/modalities provided by law. " 41. Article 48 is amended and shall read as follows: "" Art. 48. --(1) On the date of publication of the decision by which the Financial Supervisory Authority finds the existence of the indications of the insolvency of the insurance/reinsurance company and the impossibility of recovery is born the right of insurance creditors to request payment of the amounts due from the Guarantee Fund. (2) From the date of final stay of the decision to open the bankruptcy procedure, under the conditions of this law, the Guarantee Fund is entitled to make payments from the availabilities of this fund, in order to pay the due amounts insurance creditors, according to the law. (3) It is forbidden to insurance creditors whose insurance claims have been paid from the Guarantee Fund to register applications and/or to request the recovery of claims and/or payment of the claimed amounts, within the framework of the procedure bankruptcy of the insurance/reinsurance company debtor. The Guarantee Fund shall be entitled to require the competent authorities to establish the liability of the alleged creditors and to compel them to return the amounts unduly collected. " 42. Article 49 is amended and shall read as follows: "" Art. 49. -(1) Insurance claims shall enjoy absolute priority over any other claims, in respect of assets admitted to represent the technical reserves of the insurance/reinsurance company under the bankruptcy procedure. These claims are paid in lei, immediately after the payment of the receivables provided for art. 123 123 section 1 1 of Law no. 85/2006 , with subsequent amendments and completions. (2) The claims of the Guarantee Fund are insurance claims, for the purposes of this law, and shall be paid in the order of preference provided in par. ((1), benefiting from all their rights and/or guarantees or legal privileges, as a result of subrogation in the rights of insurance creditors whose due amounts have been paid from the availabilities of the Guarantee Fund. " 43. The title of Section 3 of Chapter III is amended and shall read as follows: " SECTION 3 The responsibility of the management bodies, the censors and the financial auditors, the internal control bodies and the execution personnel of the debtor insurance/reinsurance company, who have become insolvent. Closure of bankruptcy proceedings ' 44. In Article 50 (1), the introductory part shall be amended and shall read as follows: "" Art. 50. -(1) The syndic judge may order that part of the liability of the insurance company reached in the state of insolvency shall be borne by the members of the management and/or supervisory bodies of the debtor insurance/reinsurance company, as well as any other person who caused the insolvency of the insurer/reinsurer, through one of the following facts: " 45. In Article 50 (1), points g) and i) shall be amended and shall read as follows: " g) in the 30 days prior to the intervention of the state of insolvency, they paid or ordered to pay, with preference, to a creditor, at the expense of the other insurance creditors; ............................................................................................... i) have not fulfilled or improperly fulfilled the administrative financial recovery measures applied by the Financial Supervisory Authority or, as the case may be, made provisions without the opinion or approval of this authority, thus leading to the state of insolvency and to the triggering of the bankruptcy proceedings against the insurance/reinsurance company; " 46. Article 51 is amended and shall read as follows: "" Art. 51. -Amounts submitted according to art. 50 50 para. ((1) enter the patrimony of the debtor insurance/reinsurance company and are intended to pay its debts, according to the law. " 47. Article 52 (1) shall be amended and shall read as follows: "" Art. 52. -(1) In order to pronounce the decision to oblige the persons referred to in art. 50 50 para. (1) to the partial payment of the liability of the insurance/reinsurance company in insolvency, the syndic judge may be notified by the liquidator, by any of the insurance creditors, by the Financial Supervisory Authority, as well as by the President the committee of creditors, under the conditions art. 138 138 para. ((3) of Law no. 85/2006 , with subsequent amendments and completions. On the basis of the documents in the case file, the syndic judge may approve the establishment of precautionary measures. " 48. In Article 53, the introductory part of paragraph 1 and paragraph 2 shall be amended and shall read as follows: "" Art. 53. -(1) Under the conditions of this law, the bankruptcy procedure shall be closed by the syndic judge, by decision, at the request of the liquidator, if one of the following circumstances is found, as the case may be: ............................................................................................... (2) The decision to close the procedure shall be notified by the syndic judge to all parties concerned, under the conditions of this law and of the provisions of Law no. 85/2006 , with subsequent amendments and completions. The amounts remaining after the satisfaction of the rights of all persons entitled, according to the law, shall be transferred to the Guarantee Fund, for their administration and management according to the legal provisions in force. " 49. Article 54 is amended and shall read as follows: "" Art. 54. -At any stage of the proceedings, the syndic judge can pronounce a decision to close the procedure if it is found that there are no assets in the property of the insurance/reinsurance company debtor or that they are insufficient to cover administrative expenses and no creditor shall be offered to advance the necessary amounts. " 50. Article 55 is amended and shall read as follows: "" Art. 55. -The provisions of this Chapter shall be completed, as regards the bankruptcy procedure of an insurance/reinsurance undertaking, with Law no. 85/2006 , as amended and supplemented, as well as with the provisions Law no. 134/2010 on the Code of Civil Procedure, republished, with subsequent amendments and completions. " 51. After Article 55, a new section is inserted, section 4, comprising Articles 55 ^ 1-55 ^ 8, with the following contents: " SECTION 4 Dissolution and voluntary liquidation of insurance/reinsurance and insurance and/or reinsurance brokers Art. 55 ^ 1. -The dissolution and voluntary liquidation of insurers/reinsurers and insurance and/or reinsurance brokers is made according to the provisions of this section, as well as the rules issued by the Financial Supervisory Authority in application and shall be supplemented by the provisions Law no. 31/1990 , republished, with subsequent amendments and completions. Art. 55 ^ 2. -(1) The dissolution and voluntary liquidation and distribution of the social patrimony of an insurer/reinsurer or insurance and/or reinsurance broker may be made only with the prior notice and under the supervision of the Financial Supervisory Authority. (2) With the withdrawal of the authorization to operate an insurer/reinsurer that is not in a state of insolvency, as provided for in art. 3 lit. j), or an insurance and/or reinsurance broker, which is not in a state of insolvency, according to Law no. 85/2006 , with subsequent amendments and completions, if the shareholders/associations do not decide to change the object of activity, the Financial Supervisory Authority may order, after 30 days from the withdrawal of the authorization, the dissolution followed by liquidation. Art. 55 ^ 3. -(1) Insurance claims shall enjoy absolute priority over any other claims, in respect of assets admitted to represent the technical reserves of insurers/reinsurers in the procedure of dissolution and voluntary liquidation. ((2) The claims arising from the amounts collected as premiums not deposited with insurers/reinsurers by insurance and/or reinsurance brokers, as well as the claims of the Financial Supervisory Authority against insurance brokers and/or reinsurance enjoys absolute priority over any other claims, in the procedures of dissolution and voluntary liquidation according to Law no. 31/1990 , republished, with subsequent amendments and completions, and by the appropriate insolvency Law no. 85/2006 , with subsequent amendments and completions, of these insurance intermediaries. Art. 55 ^ 4. -Liquidators cannot pay shareholders/associates any amount in the account of shares/parties that would be due to the dissolution and voluntary liquidation, before the payment of the claims provided in art. 55 55 ^ 3. Art. 55 ^ 5. -(1) The appointment of the liquidators of an insurer/reinsurer or insurance and/or reinsurance broker shall be made only with the prior opinion of the Financial Supervisory Authority. (2) The liquidation of insurers and/or reinsurers can also be ensured by the appointment of the Guarantee Fund as liquidator under the conditions of par. ((1), and the expenses incurred by the Guarantee Fund occasioned by the conduct of the liquidation activity are considered to be liquidation expenses. (3) The provisions of this law relating to the duties of the liquidator, the order to extinguish the claims, the privilege of insurance creditors and the expenses related to liquidation shall apply accordingly and the voluntary liquidation of insurers/reinsurers or insurance and/or reinsurance brokers according to this section. (4) The legal duties of significant shareholders and of the significant persons of insurers/reinsurers and insurance and/or reinsurance brokers shall be transferred to the liquidator throughout the period of voluntary liquidation. (5) Liquidators have the same liability as the significant persons of insurers/reinsurers and insurance and/or reinsurance brokers. Art. 55 ^ 6. -The liquidators are obliged to prepare and transmit to the Financial Supervisory Authority monthly reports on the stage of the dissolution and liquidation procedure and to fulfill any other provisions of the Supervisory Authority Financial necessary to ensure the rights and legitimate interests of insurance creditors. Art. 55 ^ 7. -(1) For good reasons, the Financial Supervisory Authority may request at any time, during the dissolution and voluntary liquidation procedure, the general meeting of the shareholders/associates or the delegated/syndic judge who appointed the liquidator replacing it. (2) Failure to fulfill the obligations of the liquidator provided in 55 ^ 6 is a thorough reason for the admission of the application for its replacement. (3) The appointment of the new liquidator is also made with the prior opinion of the Financial Supervisory Authority. Art. 55 ^ 8. -(1) If the insurer/reinsurer in the procedure of dissolution and voluntary liquidation is in a state of insolvency, as defined by art. 3 lit. j) section 1, the liquidator is obliged to request the opening of bankruptcy proceedings. ((2) Within 30 days from the date of delivery of the decision on the opening of the bankruptcy procedure to the insurer/reinsurer, the liquidator is obliged to hand over to the Guarantee Fund the obvious insurance contracts in force, complete the damage files, as well as the technical-operative and accounting records related to these contracts and files, according to the provisions of art. 23 23 para. ((1). (3) The provisions of art. 23 23 para. ((2) and art. 24 24-27 shall apply accordingly. ((4) If the insurance and/or reinsurance broker in the dissolution and voluntary liquidation procedure is in a state of insolvency, the liquidator is obliged to ask for the insolvency proceedings to be opened. " 52. The title of Chapter IV is amended and shall read as follows: "" CHAPTER IV Regulation of private international law relations in the field of insolvency of insurance/reinsurance companies " 53. In Article 56, letter a) is amended and shall read as follows: "a) the procedure of bankruptcy of the insurance/reinsurance companies of Romanian legal persons and of their branches, established in the territory of other Member States, in a state of insolvency;" 54. In Article 60, paragraph 1 shall be amended and shall read as follows: "" Art. 60. -(1) The liquidator designated according to art. 39 39 para. ((1) lit. d) may act on the territory of host Member States, without the need for another formality, either on the basis of a certified copy of the judgment of the competent court which has designated it or on the basis of a certificate issued by it. The act of designation may be translated into the official language or one of the languages of the Member State in which the liquidator is to act, without the need to legalise it or any other similar form. ' 55. In Article 63, paragraphs 2 and 5 shall be amended and shall read as follows: " (2) Statements of claims and/or, where applicable, comments thereon shall be addressed to the Guarantee Fund and/or to the liquidator and shall be transmitted in the official language or in one of the official languages of the Member State, situations in which these documents will necessarily bear the mention in Romanian "Statement of receivables" or, as the case may be, "Observations relating to claims". .............................................................................................. (5) The Guarantee Fund and/or the liquidator, as the case may be, shall be obliged to ensure the regular information of the insurance creditors under the law, in particular with regard to the stage of recovery of the assets of the insurance/reinsurance undertaking. " 56. Article 71 (1), letter h) shall be amended and shall read as follows: " h) the breach in any manner of the obligation of surrender to the Guarantee Fund of the insurance contracts in force, of the complete record of the damage files, as well as of the technical-operative and accounting records related to them, according to art. 23 23 para. ((1) and art. 55 ^ 8 para. ((2); ' 57. in Article 71 (1), after letter i), two new letters, j) and k) shall be inserted, with the following contents: " j) the violation in any way of the obligation to appoint the liquidators of an insurer/reinsurer or insurance and/or reinsurance broker, with the prior opinion of the Financial Supervisory Authority, according to art. 55 55 ^ 5; k) failure to fulfill in any way by liquidators the obligations provided by art. 55 ^ 4, 55 ^ 6 and 55 ^ 8 para. ((1) and (4). ' 58. In Article 71, paragraphs 2 and 3 shall be amended and shall read as follows: " (2) The contravention facts provided in par. (1) shall be sanctioned, as follows, with: a) fine, applicable to the insurer/reinsurer, from 15,000 lei to 30,000 lei; b) fine, applicable to the significant persons of the insurer/reinsurer, from 5,000 lei to 15,000 lei; c) fine, applicable to the significant persons of the insurance and/or reinsurance broker, from 5,000 lei to 15,000 lei; d) fine, applicable to the liquidators of the insurer/reinsurer or insurance and/or reinsurance broker, from 5,000 lei to 15,000 lei. ((3) The fine will be applied to the insurer/reinsurer, insurance and/or reinsurance broker, significant persons or liquidators who participated in the commission of the contravention acts. The penalty of the fine will be applied separately to each person who participated in the commission of the contravention. " 59. In Article 74, paragraph 2 shall be amended and shall read as follows: " (2) The open bankruptcy procedure against an insurance/reinsurance company that sells a good, after its delivery, does not constitute a cause of resolution or denunciation of the sale and does not prevent the acquisition by the buyer of the property, if that property is, at the time of the opening of proceedings, in the territory of a Member State other than that in which those proceedings have been opened. ' 60. In Article 75, paragraph 1 shall be amended and shall read as follows: "" Art. 75. -(1) The financial recovery and bankruptcy regulated by this law shall not preclude and affect the exercise of the rights of insurance creditors regarding the compensation of their claims with the claims of the insurance/reinsurance company subject to these procedures, under the law. " 61. Article 77 is amended and shall read as follows: "" Art. 77. -The provisions of this Law are supplemented by Law no. 32/2000 ,, as amended and supplemented, the Law no. 136/1995 ,, as amended and supplemented, the Law no. 287/2009 on the Civil Code, republished, as amended, of Law no. 85/2006 ,, as amended and supplemented, the Law no. 31/1990 , republished, with subsequent amendments and completions, of Law no. 637/2002 on the regulation of private international law relations in the field of insolvency, with subsequent amendments and completions, as well as of Law no. 134/2010 , republished, with subsequent amendments and completions. " 62. In the law, the expression "insurance company" is replaced by the expression "insurance/reinsurance company" or, as the case may be, with the term "insurer/reinsurer". + Article II Law no. 503/2004 on the financial recovery and bankruptcy of insurance companies, published in the Official Gazette of Romania, Part I, no. 1.193 of December 14, 2004, as amended, as well as with the amendments and completions brought by this law, will be republished, giving the texts a new numbering. This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished. p. CHAMBER OF DEPUTIES PRESIDENT, VIOREL HREBENCIUC SENATE PRESIDENT GEORGE-CRIN LAURENȚIU ANTONESCU Bucharest, April 30, 2013. No. 139. -----