ORDINANCE 10 22/01/2004
Print
ORDINANCE No. 10 of January 22nd, 2004on the proceedings of judicial reorganization and bankruptcy of credit institutionsISSUED BY: The Government of RomaniaPUBLISHED IN: The Official Gazette of Romania No. 84 of January 30th, 2004– The initial document was published in The Official Gazette of Romania no. 84 of January 30th, 2004._________ Note C.T.C.E.: For using in court, only the text in the Romanian language has legal foundation. By virtue of art. 108 of the Constitution of Romania, republished, and of art. 1 point II.9 of the Law no. 559/2003 regarding the entitlement of the Government to issue ordinances, The Government of Romania adopts this ordinance. TITLE I Judicial reorganization and bankruptcy proceedingsChapter I General provisionsArticle 1
(1) The proceedings of judicial reorganization and bankruptcy, as regulated by this ordinance, shall apply to the Romanian legal persons acting as credit institutions, including to their branches abroad.(2) The credit cooperatives shall have applied to them the provisions of this ordinance under the terms of the Government Expeditious Ordinance no. 97/2000 on credit cooperatives organizations, as approved and amended by the Law no. 200/2002.Article 2
(1) Within the meanings of this ordinance, the terms and expressions below have the following meanings:a) administrator - person or body appointed by the administrative or judicial authorities whose task is to administer the reorganization measures;b) receiver - the person or body appointed by the administrative or judicial authorities whose task is to administer the liquidation proceedings;c) administrative or judicial authorities - authorities appointed according to the national law, which decide the measures of reorganization or the inception of the liquidation proceedings;d) reorganization proceedings - measures adopted by the administrative or judicial authorities, aimed at maintaining or redressing the financial situation of a credit institution, measures which could affect the pre-existent rights of certain third persons, including the measures which imply the possibility of suspension of rights, suspension of realization or attenuation of claims; the persons which are involved in the internal activity of the credit institutions, the administrators, and the shareholders shall not be deemed as third persons;e) bankruptcy proceedings - the collective proceedings initiated and controlled by the administrative and judicial authorities, designed to realize the assets of a credit institution under the supervision of these authorities, including the case where the proceedings are terminated by means of a deed of arrangement or other similar measure;f) financial instruments- - securities, equity securities of collective investment organizations, money market instruments, futures contracts, including the contracts involving the payment of cash differences, forward interest rate agreements, interest-rate, exchange-rate, and equity swaps, options on any of the financial instrument provided under these categories, including contracts implying payment of cash differences, as well as exchange-rate, interest-rate, and commodity derivative instruments options, and any other instrument accepted in transactions on a regulated market of a Member State or in respect of which an application for the admission on such market has been filed;g) regulated markets - markets of regulated and supervised financial instruments which: function regularly, are characterized by the fact that the regulations issued or submitted for approval define the operating and market access conditions, such conditions governing the financial instruments' listing, and the conditions that must be met by a financial instrument before being dealt on the market and observe the established disclosure and transparency requirements for the purposes of ensuring the protection of investors;h) insolvency - is the condition of a credit institution found in one of the following instances:1. manifest incapacity of paying due debt by using the liquidities available;2. solvency ratio of the credit institution dropping under 2%;3. withdrawal of the functioning authorization of the credit institution, according to the provisions of Law no. 58/1998 regarding the banking activity, as subsequently amended and completed, consequent to the incapacity of financial redressing of a credit institution undergoing special administration;i) bilateral netting agreement - any of the following:1. any contract or provision under a contract concluded between the debtor credit institution and any other entity, including natural persons, having as object transactions with derivative instruments on regulated markets, assimilated markets, or over the counter markets, which stipulate the settlement of payment obligations or undertakings, present of future, arising from, or in connection with, one or several such contracts, including any collateral, or being related to such; or2. any contract or provision, in the nature of those referred to in point 1, which stipulate the settlement of obligations or undertakings, present or future, arising from one or several bilateral netting agreements, including any collateral, or related to such, pursuant to which the contractual netting may be carried out through one or several of the following modalities:a) extinguishment and/or onward relocation of maturity of any payment obligation or undertaking arising from one or several contract falling under the category of above-mentioned;b) calculation or estimation of a netting value, market value, liquidation value, or replacement value of any obligation which has been extinguished or whose maturity has been onward-relocated according to the provisions of let. a);c) conversion into a sole currency of any value computed according to let. b);d) netting, until obtaining a net amount, of any amounts computed according to the provisions of let. b), as they have been converted according to let. c). 2) The terms: credit institution, member state, member state of origin, host member state, branch, and competent authority have the meanings provided for in Law no. 58/1998.Chapter II Participants in the credit institutions' judicial reorganization and bankruptcy proceedingsArticle 3
(1) The bodies that apply the proceedings are: the courts of law, the judge-syndic, the special administrator, the administrator, and the receiver.(2) The proceedings specified by this ordinance, save for the appeal, are exclusively in the line of the court of justice in the precinct of which the registered office of the debtor credit institution is located, as recorded in the trade register, and shall be exercised by the court of justice and a judge-syndic.(3) In all cases the judge-syndic is assigned by the president of the court from the judges appointed as judge-syndics according to art. 12 par. 3 of the Law no. 92/1992 on the judicial organization, republished, with the subsequent amendments and completions.(4) According to this ordinance, the main powers of the court shall be:a) issuance of the decree regarding the initiation of proceedings;b) trial of the debtor credit institution's contestation against the writ of summons formulated by the National Bank of Romania or by the creditors, for the opening of proceedings;c) appointment, by means of a decree, of the judge-syndic, of the administrator, or receiver, assignation of their powers and their replacement, if need be;d) trial of the actions brought by the judge-syndic or by the creditors' committee for the cancellation of collateral constitutions or of transfers with a patrimonial characteristic, preceding the decree of initiation of proceedings;e) trial of the contestations made by the debtor credit institution or by the creditors against the measures taken by the judge-syndic, special administrator, administrator, and receiver;f) confirmation of the reorganization schedule after being voted by the creditors;g) confirmation of the distribution scheme of the amounts obtained consequent to liquidation;h) authentication of legal deeds concluded by the receiver, for the validity of which the authentic form is necessary;i) approval of the liquidation modality and confirmation of the transactions having as object the purchase of assets and undertaking of liabilities;j) assignation of the civil responsibility of managing bodies, censors, and personnel charged with the execution or the control of the insolvent credit institution;k) issuance of the decree for the closure of proceedings.(5) The decrees of the court are final and enforceable. Appeals may be brought against them under the conditions of the law.Article 4
(1) The decrees issued by the court pursuant to the provisions of art. 3 may be appealed against in the court of appeal.(2) The appeal will be heard within 15 days from filing with the court of appeal, summoning of parties having to be carried out, under the conditions of arts. 86 to 94 of the Code of Civil Procedure in the case of the National Bank of Romania, the Guarantee Fund for the Deposits in the banking system, the special administrator, the administrator, or the receiver and by advertising in two nationwide newspapers in the case of the other parties.(3) By way of derogation from art. 300 pars. 2 and 3 of the Code of Civil Procedure, the decrees of the court may not be suspended by the court of appeal. The court of appeal will be able to suspend the following decrees:a) the decree of suspending the contestation of the debtor credit institution, initiated under the conditions of art. 16 par. (2);b) the interlocutory judgement whereby the bankruptcy is decided, pronounced under the conditions of art. 26 par. (1);c) the decree solving the objections to the distribution schemes of the funds obtained consequent to liquidation, pronounced under the conditions of art. 107 of the Law no. 64/1995 on the proceedings of judicial reorganization and bankruptcy, republished, with the subsequent amendments and completions.Article 5
According to this ordinance, the main powers of the judge-syndic shall be:a) controlling the activity of the special administrator, administrator, or receiver;b) setting out the schedule of meetings of creditors assemblies whenever considers necessary and presiding such meetings;c) endorsing the reorganization plan, before submitting it to the approval of the creditors, and remitting the approved plan to the court in order to be confirmed;d) endorsing the scheme of distribution of the amounts obtained from liquidation and referring it to the court for confirmation;e) adopting measures which prove to be expedient consequent to the analysis of the reports provided by the receiver and solving the objections to such, including the endorsing of the liquidation modality and of the transactions having as object the purchase of assets and undertaking of liabilities;f) bringing actions for the cancellation of fraudulent deeds concluded by the debtor credit institution to the detriment of creditors' rights during the three years preceding the opening of the proceedings;g) bringing actions for the cancellation of constitutions of collaterals or transfers of patrimonial rights to third parties and for the return by such parties of goods transferred and reimbursement of amounts standing for other supplied services, realized by the debtor credit institution to the detriment of the creditors' interests, by means of:1. gratuitous transfer deeds, effected during the three years before the opening of proceedings; the humanitarian sponsorships carried out according to the legal provisions shall be excepted;2. commercial operations where the services provided by the debtor credit institution are manifestly in excess of those received during the three years before the opening of proceedings;3. deeds concluded during the three years before the opening of proceedings, all parties involved intending to prevent goods from being pursued by creditor or damage in any other way their rights;4. deeds of property transfer by a creditor for the extinguishment of a previous debt or for own benefit, effected during the 180 days before the opening of proceedings, provided the amount which the creditor could obtain in case of bankruptcy of the debtor credit institution is less than the value of the transfer deed;5. constitution or completion of a real guarantee for a claim that was standing on simple contract during the 120 days before the opening of proceedings;6. advance payment of debts effected during the 120 days before the opening of proceedings, provided their maturity had been set on a date subsequent to the opening of proceedings;7. deeds concluded with persons having special relations with the debtor credit institution, during the year before the opening of proceedings; the persons that have special relations with the debtor credit institution are those specified by the Government Ordinance no. 39/1996 on the foundation and functioning of the Guarantee Fund for the Deposits in the banking system, republished;h) accepting the plan for the liquidation of certain assets in the patrimony of the debtor credit institution until covering the liabilities;i) apprising the court of any problem that would be incumbent on the court for solving, according to the powers assigned by this ordinance;j) executing any procedural deeds required by this ordinance.Article 6
(1) For the fulfilment of their tasks, which involve the application of certain banking regulations, the court, the judge-syndic, the special administrator, the administrator, and the receiver may turn to the opinion of the National Bank of Romania, acting in its capacity of banking supervision authority.(2) The provisions of chapter II section 3 "Creditors' assembly. Creditors' committee" of the Law no. 64/1995, republished, with the subsequent amendments and completions, shall also apply as appropriate to the proceedings of judicial reorganization and bankruptcy of credit institutions, save for art. 131 par. (6) and art. 16 par. (2).(3) The creditors committee may bring actions for the cancellation of certain transfer of patrimonial character conducted by the debtor credit institution to the detriment of the creditors if the judge-syndic did not bring such actions.(4) The provisions of chapter II section 31 "General assembly of associates/shareholders". The Committee of associates/shareholders" of the Law no. 64/1995, republished, with the subsequent amendments and completions, shall also apply as appropriate to the proceedings of judicial reorganization and bankruptcy of credit institutions.Article 7
(1) Upon the request of the creditors' committee, formulated in the cases and under the conditions provided under art. 16 of the Law no. 64/1995, republished, as subsequently amended and completed, of the judge-syndic or of the National Bank of Romania, during the unfolding of the plan of judicial reorganization, the court may withdraw the right of the managing bodies of the credit institutions to represent the credit institution, to administer the assets of the institution in question and have hold of them; in such case, the court will assign the administrator, will specify their powers and will set their remuneration.(2) Through the judgement regarding the opening of the bankruptcy proceedings, the court withdraws the right of administrators of the credit institutions to represent that credit institution, to administer the assets of the institution in question, and to have hold of them, will appoint the receiver, will specify his attributions and set his remuneration. By way of derogation from art. 3 of the Government Ordinance no. 79/1999 on organization of the activity of practitioners in the field of reorganization and liquidation, approved by the Law no. 505/2002, the Guarantee Fund for the Deposits in the banking system may be assigned as receiver.(3) The court withdraws the rights of all managing bodies - general assembly, members of the board of directors, executive management - where the National Bank of Romania requests that the credit institution shall directly go into bankruptcy.(4) The provisions of the Law no. 64/1995, republished, with the subsequent amendments and completions, referring to the remuneration of the administrator and receiver, shall apply as appropriate.Article 8
The debtor credit institution and any of the creditors may file a contestation against the measures taken by the judge-syndic, special administrator, administrator, and receiver in the cases explicitly provided by the law. Such contestation will have to be registered within 5 days from the date the measure was adopted and it will be solved within maximum 15 days from the date of registration of such contestation. If considered necessary, the court will hold a meeting summoning the author of the contestation, debtor credit institution, creditors, and National Bank of Romania, the syndic judge also taking part.Article 9
(1) In any stage of the proceedings, on the grounds of strong reasons, the court may replace the judge-syndic, the special administrator, the administrator or the receiver, by irrevocable interlocutory judgement issued by the Council Chamber; in this respect, the court may request the opinion of the National Bank of Romania.(2) On the date the court lays down the powers of the new judge-syndic/special administrator/administrator/receiver the powers of the former ones will cease. The newly appointed judge-syndic will take over the activity from the replaced judge-syndic, under the control of the court. The newly appointed special administrator/administrator/receiver will take over the activity from those replaced, under the control of the judge-syndic.(3) The powers of the special administrator are those provided under art. 81 of the Law no. 58/1998, with the subsequent amendments and completions, respectively under arts. 200 and 201 of the Government Expeditious Ordinance no. 97/2000, as approved and amended by the Law no. 64/1995, republished, with the subsequent amendments and completions, save for those under lets. d) and e).(4) The debtor credit institution in respect of which the special administrator, or administrator, has been appointed shall be subject to the relevant general regulations of the National Bank of Romania.Article 10
According to this ordinance, the main powers of the receiver shall be:a) at the time of receiving the judgment regarding the beginning of the bankruptcy proceedings, he shall open with in a bank functioning on the territory of Romania, selected by auction, within 10 days at the longest, in connection with the efficiency criteria established for protecting the creditors' interests, including from the point of view of the development of the territorial network, two accounts, one in lei and the other in foreign currency, with the mention "bankrupt credit institution account", with exclusive right of disposal for the convenience of the bankruptcy proceedings. The receiver shall transfer the amounts existing in the accounts with other financial-banking institutions to the bankrupt credit institution accounts. The receiver shall communicate immediately to the National Bank of Romania the name of the commercial bank and the accounts opened therewith, after which the National Bank of Romania shall transfer immediately in these accounts the liquidities of the credit institution that can be found in its records. From then on, the operations of the bankrupt credit institution shall be conducted through these accounts;b) stock control of the debtor credit institution's goods, and adoption of adequate measures for their preservation, the application of the seals at the opening of the bankruptcy proceedings in accordance with the provisions of the Law no. 64/1995, republished, with the subsequent amendments and completions;c) the examination of the debtor credit institution's activity in relation to the actual situation, drafting of a detailed report on the causes and circumstances that have led to the state of insolvency, mentioning the persons to whom it would be imputable, and submission of such report for the approval of the judge-syndic, within maximum 30 days after the beginning of the bankruptcy proceedings; upon the receiver's request the judge-syndic may prolong this period, for solid reasons, by means of irrevocable interlocutory judgment;d) hiring, with the observance of the legal provisions, the personnel necessary for the liquidation and managing its activity; the personnel may be hired from the debtor credit institution's existing personnel;e) management of the debtor credit institution's activity, respectively performing operations for the convenience of the bankruptcy proceedings, including loan rescheduling and setting out new interest rates relating to the assets of the debtor credit institution, provided that any new level of the interest rate be no lower than the level of the last reference interest rate communicated by the National Bank of Romania, as well as participating in the foreign currency interbank market, taking all measures such as the re-dimensioning of the personnel hired with a view to permanent cost-cutting the functioning and liquidation expenses;f) maintaining, cancelling, or denouncing certain contracts concluded with the debtor credit institution, as well as concluding new contracts for the convenience of the bankruptcy proceedings;g) examining the claims on the debtor credit institution and, if applicable, entering objections against such; the budgetary claims shall not undergo examination, case in which the special legal provisions will be observed;h) receiving the amounts in lei and in foreign currency on the account of the debtor credit institution and recording such amounts, within 24 hours, in the new accounts of the debtor credit institution;i) taking the adequate measures regarding the accounts in foreign currency of the debtor credit institution, opened with corresponding credit institutions, by:1. notifying the correspondents of the debtor credit institution being declared in a state of bankruptcy, as well as of the liquidities in the respective accounts in foreign currency being blocked;2. subsequent transfer, within the shortest term, of the liquidities in the new foreign currency account opened with the commercial bank, which develops on the detail accounts - for each foreign currency; the sums in the foreign currency account will be converted in lei and transferred in the account in lei;3. carrying out payments for the operations in progress of the debtor credit institution, as well as the efficient management of the liquid assets;j) pursuing the collecting of claims out of the estate of the debtor credit institution, resulted from the transfer of goods or amounts of money carried out by it before the opening of proceedings;k) liquidating the goods and rights pertaining to the estate of the debtor credit institution - the whole set of procedures, measures, and techniques for the realization of the assets of the bankrupt credit institution - , with the observance of the principle of the minimum presupposed cost, respectively of their optimal capitalization, in order to extinguishing debts to creditors by:1. transactions regarding the purchase of assets and assumption of liabilities, whereby a credit institution with a good financial situation acquires, partially or entirely, the assets of the debtor credit institution and undertakes, partially or entirely, its liabilities, including the aggregate of the secured deposits. The transactions regarding the purchase of assets and assumption of liabilities may be carried out at sight or forward, with option. For the transactions referred to in this paragraph, the receiver may charge the purchasing credit institution a negotiated premium, according to the quality of the purchased assets or of the assumed liabilities, due at the time of the transfer of property, as well as a premium afferent to exercising the option, function to the term of the option, due at the time of the negotiation. After the purchase, for the assets involved in fraudulent operations, which are proved to rely on frauds or to arise from stealing of financial instruments, the parties may change the initial transaction, the acquiring credit institution following to receive from the receiver, as equivalent value, other assets or amounts of money;2. the sale of goods, such as: buildings, land, securities, liquidation operations carried out with the observance of the provisions under section 6 "Bankruptcy" of chapter III of the Law no. 64/1995, republished, with the subsequent amendments and completions;3. other asset realization techniques, such as assignment of claims or novations, carried out for the convenience of the bankruptcy proceedings at a negotiated value;l) drafting a monthly report on the developments of the bankruptcy proceedings, respectively on the status of fulfilling the attributions by the receiver, which will be forwarded to the judge-syndic for approval; such a report will include information referring to the total value of the claims on the debtor credit institution and the total value of its assets that were capitalized, the amounts obtained from the liquidation and collection of claims, and the scheme of distribution among creditors;m) drafting the final liquidation balance sheet; if the liquidation is prolonged beyond the duration of a financial year, the receiver is required to draw up the annual financial statements and to file them with the bodies and within the terms provided by the law;n) apprising the judge-syndic of any problem that would require to be solved by him;o) concluding any document on behalf of the debtor credit institution, initiating and coordinating, on behalf thereof, any action or legal proceedings;p) carrying out any procedure required by the law.Chapter III Proceedings SECTION 1 Opening of proceedings. Consequences of opening the proceedingsArticle 11
The judicial reorganization and bankruptcy proceedings shall begin on the grounds of a petition filed by the debtor credit institution or by its creditors or by the National Bank of Romania.Article 12
(1) The debtor credit institution, which is experiencing insolvency as defined under art. 2 par. (1) let. h) points 1 or/and 2, is required to approach the court with a petition requesting that the provisions of this ordinance be applied to it within maximum 30 days from such insolvency situation occurring/arising.(2) The provisions of point 1 "Debtor's petition" of section 1 chapter III "Proceedings" of the Law no. 64/1995, republished, with the subsequent amendments and completions, shall apply as appropriate to the debtor credit institution.Article 13
(1) Any creditor having a certain, liquid, and exigible claim may submit to the court a petition, under the conditions provided under art. 29 pars. (1) and (2) of the Law no. 64/1995, republished, with the subsequent amendments and completions, against a debtor credit institution which failed to honour in full such claim within at least 30 working days from maturity in the case of the central houses of credit cooperatives, including the credit cooperatives affiliated thereto, respectively within at least 7 working days from maturity in the case of other credit institutions.(2) The creditor cannot file the petition without proving that, formerly, consequent to bringing an action of enforced execution of the account of the debtor credit institution, the National Bank of Romania, in its capacity of garnishee, had communicated that the respective credit institution does not have the necessary means to honour the respective payments.Article 14
(1) The National Bank of Romania, in its supervisory capacity, will file a petition for the opening of judicial reorganization and bankruptcy proceedings against the credit institution in one of the situations referred to in art. 2 par. (1) let. h).(2) The National Bank of Romania will request that the debtor credit institution in one of the situations provided under art. 2 par. (1) let. h) points 2 or/and 3 shall immediately go bankrupt.(3) The petition of the National Bank of Romania will have to be attended by the following documents:a) the decision of the Board of Directors of the National Bank of Romania regarding the withdrawal of the authorization of the credit institution in question;b) the proof of appointing the special administrator, unless the debtor credit institution entered the special administration proceedings before such petition being made;c) any other documents to justify the apprising of the court.Article 15
(1) Consequent to filing the petition, introduced according to arts. 12, 13, and 14, the court will immediately notify the parties mentioned under these articles of such petition.(2) The National Bank of Romania will appoint a special administrator and will set out his remuneration upon receiving the notification referred to in par. (1), if the credit institution is not undergoing special administration proceedings at that time. The special administrator will have the powers laid down in art. 9 par. (3).(3) All the expenses related to the proceedings instituted by this ordinance, including the remuneration, will be deducted from the assets of the debtor credit institution.(4) In the absence of liquidities in the accounts mentioned under art. 10 let. a), there shall be used the liquidities from the liquidation fund provided for in the Law no. 64/1995, republished, with the subsequent amendments.Article 16
(1) At the first hearing, the court will examine the petition and, if the debtor credit institution does not contest the insolvency state claimed by the petitions introduced by the parties referred to in arts. 13 and 14, will issue the decree regarding the beginning of the judicial reorganization and bankruptcy proceedings.(2) Appeal against the petition of commencement of the judicial reorganization and bankruptcy proceedings may be brought within 5 days after notifying the filing of such petition.(3) The tribunal shall deliver on the contestation within ten days of its registration.(4) Where the petition for the opening of proceedings, formulated by the National Bank of Romania, also includes the proposal that the debtor credit institution shall enter the state of bankruptcy immediately, such credit institution may contest, within 15 days of being notified of the petition, under the sanction of loss, both the state of insolvency and the proposal of immediate bankruptcy. In such case, the court will deliver on both objects of the petition through the same decree.(5) Subsequent to the delivery of the decree of opening the judicial reorganization and bankruptcy proceedings and of entering bankruptcy proceedings, as the case may be, consequent to the petition filed according to arts. 12, 13, and 14 and to the appointment of the receiver, the court shall notify the parties provided under the mentioned articles, including the receiver and the Guarantee Fund for the Deposits in the banking system as well as the trade registry office where the debtor credit institution is registered, for the purposes of recording the mention "insolvent credit institution", respectively "bankrupt credit institution". The communication shall be made public in two newspapers of national circulation. Where the debtor credit institution has branches in other countries, the National Bank of Romania will immediately notify the host country-banking supervisor of the beginning of the bankruptcy proceedings.(6) Beginning with the opening of the proceeding, all documents of the debtor credit institution will bear one of the mentions provided in par. (5), as the case may be.Article 17
(1) From the date of opening the judicial reorganization or bankruptcy proceedings all judicial or extra judicial actions for the realization of the claims on the debtor credit institution or on the goods thereof shall be suspended, unless otherwise provided by the law.(2) The opening of the proceedings suspends any statute of limitation afferent to the actions specified in par. (1). The terms will resume their course 30 days after the closure of the proceedings.(3) The actions brought by the receiver in applying the provisions of this ordinance shall be exempt from the stamp duty.(4) The date of opening the judicial reorganization and bankruptcy proceedings is the date when the deposits become unavailable.(5) Apart from the cases provided by the law or those authorized by the court, all deeds, transactions, and payments performed by the debtor credit institution after opening the judicial reorganization and bankruptcy proceedings shall become void.(6) Beginning with the date when the deposits become unavailable, the depositors are entitled to receive the compensations related to the guaranteed deposits, under the terms of the law. Beginning with the same date the Guarantee Fund for the Deposits in the banking system is subrogated to all rights of the guaranteed depositors, in proportion to the quantum representing the guaranteed value of the deposits.Article 18
No interest, penalty of any type or expense may be added to the claims on the debtor credit institution beginning with the date of opening the judicial reorganization and bankruptcy proceedings.Article 19
(1) After ordering the beginning of the judicial reorganization and bankruptcy proceedings according to art. 16 par. (1), the persons who filled management positions, as well as the significant shareholders of the debtor credit institution are forbidden, under the sanction of nullity, to alienate, without the consent of the judge-syndic, the equities or the social shares, as the case may be, held in the debtor credit institution.(2) The judge-syndic shall order that the equities be made unavailable, respectively the social shares, according to par. (1), in the special registers or in the accounts registered electronically.Article 20
The employees of the credit institution subject to judicial reorganization and bankruptcy proceedings will appoint two persons to represent them during the proceedings of recovery of claims representing salaries and other money entitlements. SECTION 2 Reorganization plan. Reorganization of credit institutionsArticle 21
(1) The provisions of chapter III section 4 "The plan" of the Law no. 64/1995, republished, with the subsequent amendments, shall also apply as appropriate to the proceedings of judicial reorganization of credit institutions, save for art. 60 par. (3).(2) Execution of the reorganization pan of a credit institution may not take longer than one year from the date of confirming such plan.Article 22
A copy of the proposed plan will be submitted to the National Bank of Romania, which will be summoned to the meeting convened by the judge-syndic, according to the provisions of art. 62 par. (2) of the Law no. 64/1995, republished, with the subsequent amendments. The court may request the opinion of the National Bank of Romania as regards the objective chances of achieving the proposed plan.Article 23
If no plan is confirmed and the deadline for the proposal of a plan, under the conditions of art. 59 of the Law no. 64/1995, republished, with the subsequent amendments, has expired, the judge-syndic takes note of non-fulfilment of the conditions laid down in art. 77 par. (1) of the mentioned law and will apprise the court for the purposes of immediate opening of bankruptcy proceedings.Article 24
(1) The provisions of chapter III section 5 "Reorganization" of the Law no. 64/1995, republished, with the subsequent amendments, shall also apply as appropriate to the judicial reorganization of credit institutions.(2) The National Bank of Romania will be able to request the court that the debtor credit institution in the situation provided under art. 73 par. (1) of the Law no. 64/1995, republished, with the subsequent amendments shall immediately go bankrupt.Article 25.
All reports the special administrator, the administrator, or the receiver is required to draw up according to the provisions of the law will be compulsorily submitted to the National Bank of Romania. SECTION 3 Bankruptcy of debtor credit institutions. Transactions regarding the purchase of assets and assumption of liabilitiesArticle 26
(1) The court will decide by means of an interlocutory judgment that the debtor credit institution goes bankrupt:a) in the cases referred to in art. 77 of the Law no. 64/1995, republished, with the subsequent amendments;b) in the case referred to in art. 16 par. (4).(2) The provisions of chapter III section 6 "The bankruptcy" of the Law 64/1995, republished, with the subsequent amendments, shall also apply as appropriate to the bankruptcy proceedings of the credit institutions, save for art. 100 par. (2), in what concerns the inception of liquidation after displaying the claims table, and art. 108, in what concerns the order for the payment of claims of creditors on the bankrupt credit institution.Article 27
After the issuance of the judgment regarding the opening of the bankruptcy proceedings for a credit institution, the receiver draws up the report specified in art. 10 let. c), which must also include, inter alia, proposals regarding the modality of liquidation provided under art. 10 let. k) point 1.Article 28
After endorsement of the judge-syndic and approval of the court of the liquidation modality specified in art. 10 let. k) point 1, the receiver shall set up immediately the negotiation regarding the purchase of assets and assumptions of liabilities, if stipulated by the approved liquidation modality; to this effect, the receiver shall set up an informative meeting with all credit institutions considered eligible by the former for presenting the conditions and terms of the negotiations. Prior to the informative meeting, the receiver shall sign a confidentiality accord with all credit institutions attending the meeting, whereby they commit themselves to preserve, under the conditions of the law, the professional secret with regard to the information provided in the tentative inquiry referring to the bankrupt credit institution which is going to be subject of the negotiation.Article 29
According to the interest shown by the credit institutions participating in the meeting, the receiver shall draw up a tentative inquiry regarding the purchase of assets and assumption of liabilities, which shall include, in principal, the following items:a) the categories of assets and liabilities to be subject to the transaction and their amount, classified according to the liquidity and exigibility degree;b) the liquidation value for each category of assets;c) the premium which may be set by the receiver and which will be paid by the tenderer credit institution and which will be set function to several elements, including the quality of the assets and liabilities, celerity of the transaction;d) the deadline for submitting the bids of the involved credit institutions to the receiver.Article 30
The receiver shall transmit, confidentially, the tentative inquiry regarding the purchase of assets and assumption of liabilities to the tenderer credit institutions, laid down by the receiver, which participated in the informative meeting and showed interest in such transaction.Article 31
Within the term set for receiving the tender offers, as provided in the tentative inquiry, which cannot exceed 15 calendar days, the tenderer credit institutions shall transmit to the receiver, in a sealed envelope, the tender offers regarding the proposed transactions of purchase of assets and assumption of liabilities.Article 32
Within the shortest period possible, the receiver shall examine the tender offers received and shall select, according to the principle of the minimum presumed cost, the tender offer of the tenderer credit institution(s) with which the convention of purchase of assets and assumption of liabilities is going to be concluded.Article 33
According to the quality of the assets of the bankrupt credit institution, the acquiring credit institutions may assume liabilities differently, according to the law, respectively only guaranteed deposits or entire deposits, both guaranteed and non-guaranteed, up to the stage where the credit institution declared bankrupt is entirely taken over.Article 34
Where tender offers are not received within the period set out in the tentative inquiry or the tender offers received do not meet the feasibility requirements for such transaction or where the court does not approve the transaction, the liquidation is going to be carried out by employing the other methods provided by this ordinance and the receiver, other than the Guarantee Fund for Deposits in the banking system, will proceed immediately to the payment of compensations, according to the provisions of the law.Article 35
Where the court approves the transaction regarding the purchase of assets and assumption of liabilities, such court will also set the remuneration of the receiver.Article 36
The provisions of art. 17 pars. (43) and (44) of the Law no. 64/1995, republished, with the subsequent amendments, shall apply to the special administrator, the administrator, and the receiver, except for the Guarantee Fund for Deposits in the banking system where the latter acts in one of those capacities.Article 37
(1) The funds obtained consequent to sale of goods from the estate of the debtor credit institution embarrassed, in favour of the creditor, by mortgages, pledges, or other securities or liens of any kind, will be distributed in the following order:a) taxes, stamps, and any other expenses relating to the sale of the goods in question, including the expenses necessary for their preservation and management, as well as the payment of the remuneration of the special administrator, administrator, and receiver;b) claims of the guaranteed creditors, comprising all capital, interest, add-ons, and penalties of any kind, as well as expenses.(2) Where the amounts obtained through the sale of such goods will be insufficient for the full payment of the respective guaranteed claims, the creditors will have at their disposal, in respect of the difference, simple contract claims which will come in competition with those comprised in the corresponding category, according to their nature as defined in art. 18. If subsequent to the payment of the amounts provided for in par. (1) a difference is arising, such difference will be lodged, with the care of the receiver, in the account of the debtor credit institution.(3) A creditor with a guaranteed claim is entitled to participate in any amount distribution, made before the sale of the good subject to his guarantee. The amounts received from such distributions will be deducted from those which the creditor would be entitled to receive thereafter from the price obtained by selling the good that is subject to his guarantee, if this proves necessary in preventing such creditor from receiving more than he would have received had the good subject to his guarantee been sold before the distribution.Article 38
In case of bankruptcy, the claims will be paid in lei in the following order:1. taxes, stamps, and any other expenses related to the judicial reorganization and bankruptcy proceedings, including the expenses necessary for the preservation and management of goods from the estate of the debtor credit institution, as well as the payment of the emoluments of the persons employed according to the law, including that of the special administrator, administrator, or receiver, as the case may be;2. claims arising from the activity of the debtor after opening the proceedings;3. claims emerged from labour contracts of maximum 6 months prior to opening the proceedings;4. budgetary claims, claims of the Guarantee Fund for Deposits in the banking system, as well as the claims of the National Bank of Romania emerged from loans granted by it to the credit institution;5. claims emerged from treasury transactions, from interbank transactions, from transactions with the customers, transactions with securities, other banking transactions, as well as from those resulted from deliveries of products, provision of services or other works, rents, as well as other simple contract claims;6. subordinated claims, in the following preference order: a) loans extended to the debtor legal person by an associate or shareholder holding at least 10% of the share capital; b) claims emerged from gratuitous deeds;7. claims of the shareholders of the bankrupt credit institution, respectively claims of the cooperator members of the credit cooperatives affiliated to the central house of the bankrupt credit cooperatives, deriving from the residual right of their capacity, in compliance with the legal and statutory provisions.Chapter IV Responsibility of the management bodies, censors, and of operational or control personnel of the credit institution in the state of bankruptcyArticle 39
(1) The court may decree that part of the liabilities of the credit institution in the state of bankruptcy be borne by members of the management bodies, censors, financial auditors, operational personnel and/or personnel with control powers that detained the respective functions during the three years prior to the opening of the bankruptcy proceedings, if they have contributed to the insolvency of the credit institution through one of the following deeds:a) they used the goods or loans of the institution for their own benefit;b) they performed trade acts for their own benefit, under the cover of the credit institution;c) they ordered for their own benefit the continuation of an activity that was obviously leading to discontinuation of payments by the credit institution;d) they managed a fictitious bookkeeping, they made accounting documents disappear or they did not keep the accounting books in compliance with the law;e) they embezzled or concealed part of the assets of the credit institution or fictitiously increased the liabilities thereof;f) they employed subversive means to provide funds for the credit institution, for the purpose of delaying the payments;g) they extended loans by infringing the prudential requirements approved by the norms in force, as well as by breaching the internal norms in force;h) they paid, or ordered the payment to, a creditor, preferentially, in the detriment of the other creditors, during the month before the opening of proceedings;i) they drafted financial statements, other accounting statements or reports by disregarding the legal provisions;j) they did not identified and apprehended, by incompliance with the office attributions, within the internal checking actions facts that led to frauds and bad management of the patrimony.(2) Applying the provisions of par. (1) does not prevent the application of the criminal law for the deeds that constitute offences.Article 40
The amounts paid according to art. 39 par. (1) will enter the estate of the debtor credit institution and will be destined to the payment of the debts.Article 41
With a view to the application of the measures provided under art. 39 par. (1), the court may be apprised by the judge-syndic, special administrator, administrator, receiver or by any of the creditors, by the National Bank of Romania or it may take notice ex officio, on the grounds of the data from the case file, and may dictate safeguarding measures.Article 42
The enforced execution against the persons provided under art. 39 par. (1) shall be carried out according to the provisions of the Code of Civil Procedure, save for the cases where the law provides otherwise.Article 43
(1) The judicial reorganization and bankruptcy proceedings will be closed as follows:a) the judicial reorganization by carrying on the activity or by plan-based liquidation will be closed by the court, upon the request of the judge-syndic, by a closing decree, consequent to fulfilling all payment obligations assumed according to the confirmed plan. If the proceedings are commenced as reorganization, subsequently turning to bankruptcy proceedings, such proceeding will be closed in compliance with the provisions of let. b);b) the bankruptcy proceedings were closed by the court upon the request of the judge-syndic, by means of a closing decree, when the court has approved the final report, when all funds or goods of the bankrupt credit institution were distributed and funds unclaimed by those entitled within 90 days from the date of the final report were consigned by the receiver to Casa de Economii si Consemnatiuni - C.E.C. - S.A. (savings bank) or were lodged with another credit institution, and the account statement will be filed with the court. The decision will be communicated in writing, or through the press in at least two nationwide newspapers, to all involved parties according to the provisions of Law no. 64/1995, republished, with the subsequent amendments.(2) Subsequent to entering bankruptcy, the receiver will lodge with the national archives directorate of the district or municipality of Bucharest, as the case may be, the documents of the debtor credit institution, archived according to the Law of the National Archives no. 16/1996, with the subsequent amendments and completions. Within 60 working days from the delivery of the decree of closing the bankruptcy proceedings, the receiver will file with the national archives directorate of the district or municipality of Bucharest, as the case may be, the rest of the documents of the debtor credit institution.Article 44
In any stage of the proceedings, the court will be able to deliver a closing sentence if there are no assets in the estate of the debtor credit institution or such assets are insufficient to cover all administrative expenses and no creditor is offering to advance the credits.Article 45
The provisions of this ordinance shall be completed, to the extent of their compatibility, with those of the Law no. 64/1995, republished, with the subsequent amendments, as well as with those of the Code of Civil Procedure. TITLE II Regulation of the private international law relations in the field of insolvency of credit institutionsChapter I Scope of applicabilityArticle 46
This title comprises:a) norms for determining the law applicable to the judicial reorganization and bankruptcy proceedings, which concern the credit institutions, Romanian legal persons, including their branches abroad, as well as the branches in Romania of the foreign credit institutions, found in a state of bankruptcy;b) norms regarding the conditions in which the involved authorities inform themselves and consult each other in connection with the measures of reorganization and liquidation proceedings of the credit institutions.Chapter II Proceedings of judicial reorganization and bankruptcy of credit institution, Romanian legal persons, and of their branches established in other member states SECTION 1 Competence and applicable lawArticle 47
(1) The competent court of law determined according to the Romanian law is the sole authority empowered to decide the application of judicial reorganization and bankruptcy proceedings in respect of a credit institution, Romanian legal person, including its branches established in other member states.(2) The competent court will immediately inform, through the agency of the National Bank of Romania, the competent authorities of the host member states of the decree of opening judicial reorganization and bankruptcy proceedings, including on the actual effects such proceedings might have. If informing is not possible before the adoption of the decision, such informing shall be carried out immediately after the adoption of the decision.(3) The provisions of pars. (1) and (2) are no prejudice to the provisions referring to the exercise of the approaches of bringing actions against the decrees of the court.Article 48
(1) Opening of judicial reorganization and bankruptcy proceedings regarding a credit institution authorized in Romania, including its branches established in other member states, shall be governed by the Romanian law in what concerns:1. the treatment and application of the proceedings of judicial reorganization;2. the treatment and application of the proceedings of bankruptcy, especially regarding:a) the goods that are subject to the bankruptcy proceedings and the treatment of the goods acquired by the credit institution after the opening of the proceedings;b) the attributions of the credit institution and of the receiver;c) the conditions upon which the legal compensation may be invoked;d) the effects of the bankruptcy proceedings on the contracts in progress where the credit institution is involved;e) the effects of the bankruptcy proceedings on the individual enforcement procedures advanced by the creditors, save for the suits on trial by the courts of other member states, case in which the provisions of par. (2) shall apply;f) the claims that must be declared on the credit institution and the treatment of claims that emerge after the opening of the bankruptcy proceedings;g) the rules regarding the declaration, verification, and admittance of claims;h) the rules regarding the distribution of income derived from the realization of assets, the priority order of settling the claims and the rights of the creditors that have obtained a partial payment after the opening of the bankruptcy proceedings in virtue of a real right or by invoking the legal compensation;i) the conditions and consequences of closing the bankruptcy proceedings;j) the rights of the creditors subsequent to closing the bankruptcy proceedings;k) who shall incur the costs and expenses related to the bankruptcy proceedings;l) the rules regarding the nullity, cancellation or non-opposability of the legal acts that prejudice the rights of all creditors.(2) There shall be excepted from the provisions of par. (1):a) the legal acts, the rights and the procedures referred to in arts. 37 to 40, 42, 43 and 45 to 47 of the Law no. 637/2002 regarding the regulation of the private international law relations in the field of insolvency, case in which the provisions of the law in question will apply as appropriate;b) the exercise of the ownership right or other rights on financial instruments whose existence or transfer is subject to being recorded in a register, account, or centralized depositary system, held or located in a member state, which will be governed by the law of the member state in question;c) the repurchase agreements and the contracts underlying the transactions conducted on a regulated market, which will be governed by the law applicable to the contracts in question;d) the contractual netting, case in which the law governing the respective contract shall apply. SECTION 2 Publishing the decree of opening the judicial reorganization and bankruptcy proceedings and appointing the administrators and receiversArticle 49
(1) The competent court will immediately adopt the measures necessary for the publication of a an excerpt of the decree of opening the judicial reorganization and bankruptcy proceedings in the Official Journal of the European Communities and in two nationwide newspapers in each host member state.(2) The content of the excerpt to be published will have to mention, in the official language or in one of the official languages of the member states concerned, the object and the legal grounds of the adopted decision. The content of the excerpt will have to explicitly specify the term for the initiation of the appeal, including the expiry of such term, as well as the address of the competent court.(3) The judicial reorganization and bankruptcy proceedings shall apply regardless of the advertising provided in par. (1) and shall have plenipotentiary effects on the creditors.Article 50
(1) The competent court is entitled to request the registration with the land registry, trade registry and any other public registry held in the other member states of the decree of opening the judicial reorganization or bankruptcy proceedings against a credit institution.(2) The competent court will take the necessary measures to ensure the registration any time this is mandatory, according to the law of the member state in question.(3) The registration expenses will be considered expenses of proceedings.Article 51
(1) The administrator or the receiver, as the case may be, appointed according to the law, will be able to operate, without any other formality, on the territory of the host member states in virtue of a certified copy of the decree of the competent court which appointed them or in virtue of a certificate issued by such court.(2) The administrator or the receiver, as the case may be, will be able to exercise on the territory of the host member state all competences that pertain to them according to the Romanian law. They will be able to assign other persons to assist or represent them in the course of unfolding the proceedings on the territory of such member states, especially for the purpose of surmounting the potential inconveniences encountered by the creditors in those states.(3) While exercising their competences the receiver will obey the legislation of the member state on the territory of which they operate, especially as regards the proceedings of capitalizing the assets and supplying of information to the employees of the credit institution of the member state concerned. The competences may not include the use of force or the right to solve litigations and disputes.Article 52
(1) The person executing an obligation on the territory of a state for the benefit of a credit institution without legal personality, which is subject to insolvency proceedings opened in another state, instead of executing it in favour of the receiver appointed for those proceedings, it shall be cleared if that person was not aware of the opening of such proceedings.(2) The person executing the respective obligation before advertising requirements stated in art. 49 being satisfied shall be presumed, until proved otherwise, as not being aware of the opening of the insolvency proceedings; the execution of the obligation subsequent to satisfying the advertising requirements presumes, until proved otherwise, that the person was aware of the opening of the proceedings. SECTION 3 Informing creditors and rights thereofArticle 53
(1) After opening the judicial reorganization and bankruptcy proceedings against a credit institution, Romanian legal person, with branches opened in other member states, the administrative or judicial authority or the administrator or receiver, as the case may be, will immediately and individually inform known creditors that have the usual residence, domicile, or registered office in other member states.(2) The informing under the form of a written notification must refer especially to the deadlines, sanctions set out for the non-observance of such deadlines and the legal requirements for the recognition of claims by the court entitled to register the applications for the recognition of such or notes related to such claims, as well as to the other measures or proceedings provided. The notification will also indicate if the privileged claims or those in favour of which real guarantees have been constituted are subject to verification or not.Article 54
(1) Any creditor of the debtor credit institution, with the domicile/residence or registered office, as the case may be, in a member state other than Romania, including the public authorities, have the right to declare their claims or address draw up notes in connection with their claims on the credit institution, which will be submitted to the receiver. The declaration of claims or the notes drafted, as the case may be, may be forwarded in the official language or in one of the official languages of that member state, but they must bear the mention in the Romanian language: "Declaration of claims" or "Notes regarding the claims", as the case may be.(2) The claims of the creditors with their domicile/residence or registered office, as the case may be, off the territory of Romania will be treated in the same manner and will have the same privilege rank as the claims of the same nature of creditors with their domicile/residence or registered office, as the case may be, on the territory of Romania.(3) The creditors exercising the right set out in par. (1) will submit copies of the documents attesting their claims, if they exist, and will state the nature of the claim, the date it emerged and its value, any privileges, real guarantees, and other similar rights in connection with the respective claims and which claims are secured in that manner.(4) Upon the request of the receiver, the creditors must also provide the translation into Romanian of the "Declaration of claims", of the "Notes regarding the claims", as the case may be, and of the documents provided.(5) The receiver will ensure the regular informing of creditors, in the modality considered appropriate, especially as regards the advancement recorded in the capitalization of the assets of the debtor credit institution.Chapter III Judicial reorganization and bankruptcy proceedings applicable to branches in Romania of credit institution from other member statesArticle 55
The administrative or judicial authorities of the member state of origin are the only ones entitled to decide upon the application of one or several reorganization measures or the opening of liquidation proceedings against a credit institution, including its branches established in other member states. The law of the member state of origin shall apply according to the provisions of art. 48 par. (1). The provisions of art. 48 par. (2) shall also apply to branches in Romania of the credit institutions of other member states.Article 56
(1) If judicial reorganization or bankruptcy proceedings have been ordered against a credit institution from a member state, which carries on activity on the territory of Romania, such proceedings shall be applied without other formalities on the territory of Romania and will come into effect under the conditions and on the date provided by the legislation of the member state in question.(2) The judicial reorganization and bankruptcy proceedings will be applied according to the legislation of the member state of origin, with the exceptions laid down in art. 48 par. (2).(3) Upon receiving the appropriate notification from the competent authority of the member state of origin, the National Bank of Romania will immediately inform, by publishing in the Official Gazette of Romania, Part IV, of the opening of the judicial reorganization or bankruptcy proceedings.(4) The competent administrative or judicial authorities of the member state of origin, the administrator, or the receiver will communicate the decree of opening the judicial reorganization or bankruptcy proceedings to the office of the trade registry where the credit institution concerned is registered, for the appropriate mentions to be effected. Also, the communication will be transmitted by the mentioned authorities to two national newspapers of Romania in order to be published.(5) The persons entitled to implement the measures ordered by the administrative or judicial authority of the member state of origin will be able to operate, without other formality, on the territory of Romania in virtue of a certified copy of the appointing document or in virtue of a certificate issued by such authority, attended by the translation in Romanian.(6) The persons specified in par. (5) will be able to exercise on the territory of Romania all competences that pertain thereto according to the legislation of the member state of origin. Such persons will be able to appoint other persons to represent them on the territory of Romania, including for the purposes of providing assistance to the creditors in the course of the implementation of the measures in question.(7) While exercising their competences on the territory of Romania, the persons specified in par. (5) will obey the Romanian legislation, especially that regarding the proceedings concerning the capitalization of assets and supply of information to the employees from Romania of the foreign credit institution. The competences may not include the use of force or the right to settle litigations or disputes. TITLE III General provisionsChapter I Other provisionsArticle 57
(1) The provisions of this ordinance shall be completed, to the extent of their compatibility, with the provisions of the Law no. 105/1992 regarding the regulation of the private international law relations.(2) The competent court, according to the Romanian law, will immediately inform, thorough the agency of the National Bank of Romania, the competent authorities in the host member states of the decree of opening the proceedings, as well as of the actual effects such proceedings might have, provided such decision was made against a branch in Romania of a credit institution with the registered office in a non-member state, but with branches on the territory of other member states. Where the informing is not possible before the adoption of the decision, this shall be done immediately thereafter. In the case of a decree of opening the bankruptcy procedures, the communication will also mention the fact that the functioning authorization of the respective branch has been withdrawn.Article 58
The persons which must receive or pass on information in connection with the informing or consulting proceedings provided in this ordinance shall be obliged to preserve the professional secret in compliance with the provisions of art. 3 par. (7) and of art. 55 of the Law no. 101/1998 on the Statute of the National Bank of Romania, as subsequently amended and completed, and with the provisions included in chapter VIII of the Law no. 58/1998, as subsequently amended and completed, save for any judicial authorities to which the national provisions in force are applied.Article 59
In case of bankruptcy, for statistical purposes, the credit institutions will be considered as continuing to belong to the bank industry. Reports that must be drafted and submitted by the receiver to the National Bank of Romania and the regularity and submission modality thereof will be set out by norms issued by the National Bank of Romania.Article 60
The court will communicate to the National Bank of Romania the decree regarding the opening of the bankruptcy proceedings against the debtor credit institution on the day of its delivery. On the date of the communication of the decree regarding the opening of the bankruptcy proceedings, the National Bank of Rumania will immediately close, after finalizing the settlement of payments for the day in question according to the regulations in force, the accounts of the debtor credit institution opened therewith and will transfer all liquidities to the "bankrupt credit institution accounts", opened with a commercial bank according to art. 10.Article 61
(1) Any bilateral netting agreement, as defined under art. 2 let. i), concluded by the debtor credit institution shall be valid and may be executed and/or shall be opposable to it, to the debtor, or to any guarantor thereof, according to the terms agreed by the parties, and may not be suspended, cancelled, or limited in any other way by deeds of the bodies implementing the judicial reorganization and bankruptcy proceedings.(2) The sole obligation that may be owed, respectively demanded to be executed for the account of the debtor credit institution, on the grounds of a bilateral netting agreement, is that as to execute, respectively demand the execution of, the net obligation obtained through the netting pursuant tot the netting agreement, obligation that may consist of payment of a net amount and/or execution of an undertaking.(3) No power bestowed by this ordinance to the bodies implementing the proceedings will not result in putting out the application of the bilateral netting agreement through extinguishing and/or onward relocation of maturity, in virtue of the agreement, of the payment obligations, or of undertakings arising from one or several contracts in the category of those provided in art. 2 let. i) points 1 and 2, such powers being exercisable only on the net amount resulting from the application of the bilateral netting agreement.(4) For the purposes of this article, a bilateral netting agreement and all contracts that are subject to such agreement will be deemed as a sole contract and, in this respect, except for the cases where the fraudulent intent of the parties is proved, the bodies implementing the proceedings will be able to prevent, request the cancellation, or decide the dissolution, as the case may be, of the transactions with derivative financial instruments, performed on the grounds of contracts that are subject to a bilateral netting agreement, due to the fact that such transactions establish a privileged treatment in favour of certain creditors during the 180 days before the opening of the proceedings.(5) No request for presidential ordinance or any other emergency proceedings may be employed in order to limit, delay, or suspend the execution of a bilateral netting agreement according to this article.Chapter II Transitional and final provisionsArticle 62
The profit obtained within the unfolding of the judicial reorganization and bankruptcy proceedings against credit institutions shall be taxed according to the legal provisions.Article 63
(1) The provisions of this ordinance will come into effect 30 days after its publication in the Official Gazette of Romania, Part I, except for the provisions of title II, which will come into force on the date of accession of Romania to the European Union.(2) On the date of this ordinance entering into force, Romania will inform the European Commission of the entry into force of the exempted provisions.Article 64
The provisions of this ordinance shall apply only to the proceedings opened after coming into force, except for the provisions of art. 43 par. (2), which shall also apply to the proceedings in progress at the time of this ordinance coming into force.Article 65
On the date of this ordinance coming into force the Law no. 83/1998 on the proceedings of bankruptcy of credit institutions, published in the Official Gazette of Romania, Part I, nr. 159 of April 22, 1998, as subsequently amended and supplemented, shall be abolished. PRIME MINISTER ADRIAN NASTASE Countersign: ------------- the Minister of Public Finance Mihai Nicolae Tanasescu _____________
