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Law No. 122 Of 19 April 2004 On The Amendment Of The Government Emergency Ordinance Nr. 97/2000 Credit Cooperative Organizations

Original Language Title:  LEGE nr. 122 din 19 aprilie 2004 pentru modificarea Ordonanţei de urgenţă a Guvernului nr. 97/2000 privind organizaţiile cooperatiste de credit

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LEGE no. 122 122 of 19 April 2004 for amendment Government Emergency Ordinance no. 97/2000 on cooperative credit organisations
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 387 387 of 3 May 2004



The Romanian Parliament adopts this law + Article I Government Emergency Ordinance no. 97 97 of 29 June 2000 on cooperative credit organizations, published in the Official Gazette of Romania, Part I, no. 330 330 of 14 July 2000, approved with amendments and additions by Law no. 200/2002 , as amended and supplemented, shall be amended and supplemented as follows: 1. Paragraph 1 of Article 7 shall read as follows: "" Art. 7. -The central house fully guarantees the obligations of affiliated credit cooperatives, in accordance with the regulations issued by it. For this central house will constitute the mutual guarantee reserve based on the contributions of affiliated credit cooperatives, in accordance with the regulations issued by the central house for this purpose, and of a maximum 5% share of the accounting profit determined before the deduction of the corporate tax of the central house. " 2. Paragraph 1 of Article 8 shall read as follows: "" Art. 8. -May be a cooperative member any natural person who has full exercise capacity, has domicile/residence within the territorial operating range of the credit cooperative, has signed or accepted, as the case may be, its constituent act and subscribed and has shed at least the number of social parts established by the constituent-framework act. " 3. Paragraph 2 of Article 9 shall read as follows: " The application for registration will include at least the following elements: the name and surname of the applicant, the personal numerical code, the domicile and, as the case may be, the residence, number and value of the social parts that he intends to subscribe and demand. The application for registration will also include the declaration of acceptance of the provisions of the articles of association. " 4. Article 13 shall read as follows: "" Art. 13. -The cooperative membership of a credit cooperative ceases by withdrawal, by changing the domicile/residence outside the territorial operating range of the credit cooperative, by exclusion or as a result of death. The cooperative membership of a credit cooperative may also cease as a result of the division, merger or liquidation of the credit cooperative. " 5. Paragraph 2 of Article 15 shall read as follows: " Conditions and procedures for extinguishing the patrimonial obligations between the credit cooperative and the cooperative member, namely its legal successors, for cases of termination of the cooperative member as a result of the change domicile/residence outside the territorial area of operation of the credit cooperative, exclusion or as a result of death will be established by the constitutive act. " 6. Paragraph 1 of Article 17 ^ 1 shall read as follows: "" Art. 17 17 ^ 1. -For the purpose of helping each cooperating member applying for a loan will constitute a social fund whose amount will be determined by the articles of association. " 7. Article 18 shall read as follows: "" Art. 18. -Credit cooperatives shall allocate annually 20% of the accounting profit determined before the deduction of the corporate tax for the establishment of a reserve fund, until the fund thus constituted equals the share capital, then a maximum of 10% until the time when the fund has reached twice the share capital. After reaching this level the allocation of amounts for the reserve fund is made from the net profit. For the calculation of allocations to the reserve fund, the level of the existing social capital at the end of each financial year will be considered. Credit cooperatives shall allocate annually from the accounting profit determined before the deduction of the corporate tax the amounts for the establishment of the general reserve for credit risk, within the limit of 2% of the balance of the loans granted. Provisions of para. 1 1 and 2 are applicable until the end of the financial year of 2004 inclusive. Since the financial year 2005, the credit cooperatives constitute the reserve fund under the provisions of the company law and also constitute the general banking risk fund from the profit. accounting determined before the deduction of corporate tax, within 1% of the balance of assets carrying risks specific to banking activity, as established by the regulations of the National Bank of Romania with the opinion of the Ministry Public finances, in so far as the respective amounts are found in net profit. When determining the level of the fund for general banking risks, the amounts representing the general reserve for credit risk, constituted according to par. 2, existence in the hip. Reserve fund and general reserve for credit risk, set up according to par. 1 and 2, shall not be reduced according to the limits and quotas provided in par. 4 and will be used according to the destinations provided by the legal regulations. The use of the fund for general banking risks is established by regulations of the National Bank of Romania. Credit cooperatives shall allocate annually 25% of the accounting profit determined after deducting the corporate income tax for the establishment of a relief reserve, intended to create the necessary conditions for the deduction of the costs of the operations banking with cooperative members. " 8. In Article 21, points a), c), d) and j) shall read as follows: " a) the acceptance of deposits from the cooperating members, as well as from natural and legal persons who reside/have their registered office and operate within the territorial operating range of the credit cooperative; .............................................................. c) the granting of loans to micro-enterprises, public and cult organizations, family associations, individuals with regulated free professions, who have their registered office and operate within the territorial operating range of the credit cooperative; d) the development of credits, on behalf and on behalf of the state, from sources made available for the cooperative members, as well as for micro, public and cult organizations, family associations, individuals with regulated free professions, having their registered office and operating within the territorial operating range of the credit cooperative; ............................................................... j) consultancy on activities carried out by cooperative credit organizations, granted to cooperative members, as well as individuals, micro-enterprises, public and cult organizations, family associations and individuals with regulated free professions, which reside/have their registered office and operate within the territorial operating range of the credit cooperative; " 9. In Article 25, letters a) and h) shall read as follows: "" a) the name and surname, place and date of birth, nationality, domicile and, where applicable, the residence of the founding co-operative members ............................................................... h) the name and surname, place and date of birth, nationality, domicile and, as the case may be, the residence of the designated administrators, managers and censors 10. In Article 29, the first indent shall read as follows: "-a register of cooperative members, including the name and surname, the personal identification number, the domicile and, where applicable, their residence, the number and the value of the shares held;" 11. Paragraph 1 of Article 35 shall read as follows: "" Art. 35. -In the general assembly the cooperative members may be represented by delegates who will be appointed only from among the cooperative members who do not hold the membership of the board of directors, on the basis of a delegation in authentic form or certified by the secretary of the administrative-territorial unit in which the respective cooperative members are domiciled/resident. The delegations shall be submitted in original to the place and time limit set by the notice of convocation and shall be referred to in the minutes. " 12. Paragraph 2 of Article 47 shall read as follows: "Administrators shall be revoked and shall be appointed for a period of not more than 4 years, with the possibility of being re-elected." 13 13. The letter g) of paragraph 2 of Article 59 shall read as follows: "" g) approve the credit policy of the credit cooperative and the loans granted by it, under its competence, in compliance with the regulations issued by the central house to which the credit cooperative is affiliated. " 14. Article 65 shall read as follows: "" Art. 65. -The heads of the credit cooperative shall preferably have their domicile/residence within the territorial operating range of the credit cooperative. " 15. in Article 66, after paragraph 1, paragraph 1 shall be inserted with the following contents: "If the leaders of the credit cooperative do not have Romanian citizenship, at least one of them must attest to the knowledge of the Romanian language." 16. The first sentence of paragraph 7 of Article 69 shall be repealed. 17. Article 102 shall read as follows: "" Art. 102. -The central houses shall allocate annually 20% of the accounting profit determined before the deduction of the corporate tax for the establishment of a reserve fund, until the fund thus constituted equals the share capital, then a maximum of 10% until the moment in which the fund has reached twice the share capital. After reaching this level, the allocation of amounts for the reserve fund is made from the net profit. For the calculation of allocations to the reserve fund, the level of the existing social capital at the end of each financial year will be considered. The central banks shall allocate annually from the accounting profit determined before the deduction of the corporate tax the amounts for the establishment of the general reserve for credit risk, within the limit of 2% of the balance of the loans granted. Provisions of para. 1 1 and 2 are applicable until the end of the financial year of 2004 inclusive. Since the financial year of 2005, the central houses of credit cooperatives constitute the reserve fund according to the provisions of the companies legislation and also constitute the general banking risk fund. from the accounting profit determined before the deduction of the profit tax, within the limit of 1% of the balance of assets carrying risks specific to banking activity, as established by the regulations of the National Bank of Romania with the opinion Ministry of Public Finance, in so far as the respective amounts are found in net profit. When determining the level of the fund for general banking risks, the amounts representing the general reserve for credit risk, constituted according to par. 2, existence in the hip. Reserve fund and general reserve for credit risk, set up according to par. 1 and 2, shall not be reduced according to the limits and quotas provided in par. 4 and will be used according to the destinations provided by the legal regulations. The use of the fund for general banking risks is established by regulations of the National Bank of Romania. The central houses shall allocate annually a share of the accounting profit determined before the deduction of the corporate tax for the constitution of the mutual guarantee reserve, which will be used for the purpose of guaranteeing the obligations of the credit cooperatives affiliated, in so far as the respective amounts are found in the net profit. The mode of incorporation and use, as well as the level of the mutual guarantee reserve will be established by regulations of the central houses. The central houses are obliged to maintain, in addition to the mandatory minimum reserve, a level of assets with a high degree of liquidity at least equal to that of the mutual guarantee reserve. " 18. In Article 104, letter b) shall read as follows: " b) the granting of credits to individuals other than the cooperative members of the affiliated credit cooperatives, and to legal persons who have their domicile/residence, respectively have their registered office or operate through a unit without legal personality within the territorial operating range of the central house; " 19. Paragraph 2 of Article 116 shall read as follows: "Administrators shall be revoked and shall be appointed for a period of not more than 4 years, with the possibility of being re-elected." 20 20. The letter h) of paragraph 1 of paragraph 2 of Article 121 shall read as follows: "h) approve the credit policy of the central house and establish by its own regulations the approval of the loans granted by the central house;" 21. in Article 121 (2) (2), the following shall be inserted after point h): "" i) establishes by its own regulations the general framework for the approval of loans granted by affiliated credit cooperatives, in compliance with the regulations issued by the National Bank of Romania. " 22. Article 125 shall read as follows: "" Art. 125. -The leaders of the central house must have, during the exercise of their function, their residence in the locality where the central house is based. " 23. in Article 126, after paragraph 1, paragraph 1 shall be inserted with the following contents: "If the leaders of the central house do not have Romanian citizenship, at least one of its leaders must attest to the knowledge of the Romanian language." 24. The first sentence of Article 128 shall be repealed. 25 25. The letter c) of paragraph 2 of Article 189 shall read as follows: " c) the fine applicable to the cooperative credit organization or, as the case may be, to the financial auditor, between 0,1% and 1% of the share capital, or to the managers, managers, members of the executive office or censors, between 1-6 gross average salaries of framing/organization of them from the previous month, at the time of finding the deed; the fines collected are made to the state budget; " + Article II ((1) Organisations of credit cooperation and cooperative credit organizations whose applications for authorisation of operation, submitted pursuant to art. 146 146 para. (2) of Government Emergency Ordinance no. 97/2000 , were rejected by the National Bank of Romania and which, on the date of entry into force of this law, are in an attack procedure provided for in art. 202 of Government Emergency Ordinance no. 97/2000 can request the National Bank of Romania, directly, the authorization of operation, in the regime Government Emergency Ordinance no. 97/2000 , with the amendments made by this law. (2) Credit cooperation organizations and cooperative credit organizations, provided in par. ((1), will give up the remedy provided for in art. 202 of Government Emergency Ordinance no. 97/2000 in order to request operating authorization, according to the provisions of this law. (3) In application of the provisions of ((1), credit cooperation organizations and cooperative credit organizations whose applications for authorization of operation, submitted pursuant to art. 146 146 para. 2 of Government Emergency Ordinance no. 97/2000 , were rejected by the National Bank of Romania and who decided to authorize the operation under the conditions of this law may proceed, based on the decisions of the competent statutory bodies, as follows: a) within 4 months from the entry into force of this law, the central houses will proceed to reorganization by merger, in order to establish a cooperative credit network; b) within 6 months from the expiry of the term provided in lett. a), the central house resulting from the merger, as well as the credit unions affiliated to it will undertake the necessary measures for the performance at the level of each credit cooperative in the network, as well as at the level of the cooperative network in assembly of requirements set out by Government Emergency Ordinance no. 97/2000 , as well as the regulations issued in their application, including through operations to merge credit cooperatives, increase their share capital, assess the quality of assets and provisionally provide them. The constituent acts of the credit cooperatives resulting from the merger shall be drawn up in compliance with the provisions of the framework of the network established by the central house; c) within 3 months from the expiry of the period referred to in lett. b), credit cooperation organizations and cooperative credit organizations that have completed the merger operations, have given up the use of the remedies provided in art. 202 202 and meeting the requirements laid down by Government Emergency Ordinance no. 97/2000 and by the norms issued in its application will ask the National Bank of Romania to authorize the operation (4) The central house and the credit cooperatives will provide proof that both at their level and at the level of the cooperative credit network, the requirements regarding the level of bank prudence indicators established by the National Bank of Moldova Romania for cooperative credit organizations authorized to operate. The calculation of the indicators will be made in accordance with the regulations in force at the date of application for authorization, for the date representing the end of the month (5) The authorization application will be submitted to the National Bank of Romania in the form established by it. (6) The documentation that must accompany the application and the authorization procedure will be established by the regulations of the National Bank of Romania. (7) The documentation shall include at least the following: a) the framework of the central house which calls for the authorization of the operation; b) the constituent acts of the credit cooperatives, updated, elaborated on the basis of the framework constitutive act referred to in lett. a); c) the registration certificate, accompanied by the conclusion of the judge delegated to the trade register office, showing that he ordered the registration in the trade register of the mentions corresponding to the constituent acts mentioned in lett. b); d) the feasibility study of the network, showing the fulfilment of the legal requirements, as well as the capacity of the network to operate for the purpose for which it was established, in compliance with the applicable prudential requirements, as well as the capacity of the house central and its organizational structure to carry out its tasks and responsibilities, arising from the duties conferred by law on the line of supervision, control, regulation and authorization of affiliated cooperative organizations, as well as the transfer of funds intraretea; e) statement on the liquidation of the operations art. 246 ^ 2 of Government Emergency Ordinance no. 97/2000 ; f) financial statements prepared for the end of the month preceding the date of application; the financial statements of the central house and those of the affiliated credit cooperatives will be certified by financial auditors authorized by the Chamber of Auditors Financial from Romania. The financial statements must contain the data recorded in the accounting books, registers to be kept in accordance with the accounting regulations in force; g) the calculation of the aggregate capital and own funds, the situation of the classification of loans and placements and the needs of specific credit risk provisions, the calculation of solvency indicators, the situations regarding large exposures, the situations regarding loans granted to persons in special relations, their own staff and their families, drawn up according to the regulations in force, under the conditions of provisioning the assets according to the regulations Romania for the end of the month preceding the date of application authorization, both at the level of each entity in the network and at the network level, as applicable; h) documents proving the fulfilment of legal requirements by managers, administrators, financial auditors; i) confirmation by the central house of the affiliation of each credit cooperative, the fulfilment of the legal requirements by the proposed leaders of the credit cooperatives, as well as the fact that the checks carried out by the central house result both the fact that the constitutive act of each credit cooperative is prepared in compliance with the provisions Government Emergency Ordinance no. 97/2000 and the constituent-framework act, and the fact that each organization in the network meets the legal requirements relating to the level of capital, own funds, as well as to the level of the other indicators of bank prudence, calculated in the conditions of asset provisioning according to the regulations of the National Bank j) documents proving the legal ownership of the space representing the registered office, for the central house and for each credit cooperative on the network; k) the draft rules on the transfer of funds intraretea and of the rules on requirements to be fulfilled by the leaders, elaborated by the central house; l) confirmation on the existence of the own regulations of the central house and affiliated credit cooperatives, elaborated in accordance with the provisions Government Emergency Ordinance no. 97/2000 and of the regulations issued in their application, applicable to cooperative credit organizations; m) documents justifying the origin of the funds used for the purchase of social parts, in the case of cooperative members who have subscribed and paid social parts of at least the equivalent in lei of 10,000 euros; the acquisition of the shares must originate from its own sources and the shareholding of each cooperative member in the capital of a credit cooperative must not be at such a level that the withdrawal of that cooperative member has a significant impact on the financial situation of the entire network (8) The National Bank of Romania shall examine and settle the application for authorization of operation within 6 months from the submission of the application, the examination and the assessment being carried out in accordance with the provisions Government Emergency Ordinance no. 97/2000 and the implementing rules issued by the National Bank of Romania, applicable at the date of registration of the application (9) The provisions of art. 143 143 para. 2 2 and ale art. 145 of Government Emergency Ordinance no. 97/2000 it shall apply accordingly. (10) The operations of merger of central houses and credit cooperatives provided in par. (3) will be carried out under the regime established by Law no. 109/1996 on the organization and functioning of consumer cooperation and credit cooperation, supplemented by the provisions of the common law on the reorganization of legal persons traders. ((11) In application of the provisions of this Article, the cooperative organizations of credit constituted during the authorization process provided for in art. 250 250 para. 1 of Government Emergency Ordinance no. 97/2000 will not be able to have the capacity of an absorbent credit cooperative of an organization of credit cooperation. (12) Provisions art. 146 and 258 of Government Emergency Ordinance no. 97/2000 are not applicable to credit cooperative organizations/cooperative credit organizations applying for authorisation under this Act. (13) Provisions art. 246 ^ 2 of Government Emergency Ordinance no. 97/2000 it shall apply accordingly. In this regard, banking operations, activities, investments and contracts will be liquidated by the end of the month preceding the date of submission of the authorization application. (14) Provisions art. 250 250 para. 2 of Government Emergency Ordinance no. 97/2000 shall apply accordingly, from the date of expiry of the period referred to in paragraph 1. ((3) lit. b). In this regard, the central house and the credit cooperatives will submit a statement, signed by the legal representatives, showing that, at the time of the application for authorization, they have all the obligations due honored, do not register a negative level of the net asset and that the solvency indicators are at least at the minimum level provided by the regulations of the National Bank of Romania for authorized cooperative credit organizations. ((15) In case of non-application of the operating authorization within 13 months from the date of entry into force of this Law or of non-obtaining of the operating authorization after the exhaustion of the authorization procedure at the National Bank of Romania and of the of attack provided for art. 202 of Government Emergency Ordinance no. 97/2000 , credit cooperation organizations and cooperative credit organizations referred to in par. (1) dissolves from the right and immediately enters into liquidation, according to the provisions Law no. 109/1996 , as amended, and of the common law on legal persons for profit purposes, provisions Law no. 31/1990 on companies, republished, with subsequent amendments and completions, being applicable. + Article III ((1) As from the financial year 2004, the credit unions provided for in art. 68 of Government Emergency Ordinance no. 97/2000 appoint a financial auditor, who will also audit the annual financial statements, drawn up by the cooperative credit organisations for the financial year 2003, with a deadline of 30 November 2004. (2) Mandate of censors appointed by credit unions, according to art. 68 of Government Emergency Ordinance no. 97/2000 , will be limited from the date of appointment of the financial auditor to the fulfilment of the obligation to certify the annual financial statements drawn up for the financial year 2003. The mandate of the censors will cease on the date of submission of + Article IV (1) Cooperative credit organizations will be able to organize their own body of executors, whose activity will be strictly related to the execution of enforceable securities belonging to cooperative credit organizations. (2) The status of this body of executors will be approved by order of the Minister of Justice + Article V The National Bank of Romania will issue regulations in the application of this law, within 4 months from the date of its entry into force. + Article VI Provisions of the contents Government Emergency Ordinance no. 97/2000 , approved with amendments and additions by Law no. 200/2002 , with subsequent amendments and completions, regarding the censors of credit cooperatives and their activity, shall be repealed as of the date of entry into force of this Law. + Article VII Throughout the law the phrase liberal professions is replaced by the phrase free professions. + Article VIII Government Emergency Ordinance no. 97/2000 , approved with amendments and additions by Law no. 200/2002 , with subsequent amendments and completions, 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 Senate at its meeting on March 11, 2004, in compliance with the provisions of art 76 76 para. (1) of the Romanian Constitution, republished. SENATE PRESIDENT NICOLAE VACAROIU This law was adopted by the Chamber of Deputies at the meeting of March 30, 2004, in compliance with the provisions of 76 76 para. (1) of the Romanian Constitution, republished. CHAMBER OF DEPUTIES PRESIDENT VALER DORNEANU Bucharest, April 19, 2004. No. 122. ______________