EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 27 January 2010 
on the special administration procedure initiated by Banca Na ţională a României 
for credit institutions in distress  
(CON/2010/12) 
 
Introduction and legal basis  
On 6 January 2010 the European Central Bank (ECB) received a request from Banca Na ţională a 
României (BNR) for an opinion on a draft law amen ding and supplementing the Government Emergency 
Ordinance No 99/2006 on credit institutions and capit al adequacy (hereinafter the ‘draft law’). 
The ECB’s competence to deliver an  opinion is based on Articles 127(4) and 282(5) of the Treaty on the 
Functioning of the European Union and the third and sixth indents of Article 2(1) of Council 
Decision 98/415/EC of 29 June 1998 on the consu ltation of the European Central Bank by national 
authorities regarding draft legislative provisions1, as the draft law relates to BNR and to rules applicable 
to financial institutions insofar as they materially influence the stability of financial institutions and 
markets.  
In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central 
Bank, the Governing Council has adopted this opinion. 
 1.  Purpose of the draft law 
1.1  The draft law is designed to amend the special  administration procedure currently provided for by 
the Government Emergency Ordinance No 99/20 06 on credit institutions and capital adequacy 
(hereinafter the ‘GEO No 99/2006’). The aim is to  provide supplementary tools to enable BNR to 
respond in a timely and effective manner in the ev ent of a credit institution in distress and to 
strengthen the special administrator's powers by explicitly allowing it to promptly implement a broad range of restructuring measures with respect  to such credit institution. GEO No 99/2006 is 
the main piece of legislation regulating the activity of credit institutions and financial investment 
companies in Romania, as well as their prudentia l supervision and the s upervision of payment 
systems and settlement systems for financial instrume nts. The draft law forms part of the legislative 
amendments to be adopted by Romania, as agre ed during the negotiations between the Romanian 
Government, on the one hand, and the Internationa l Monetary Fund and the European Union, on 
the other.  
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2 1.2  Moreover, the draft law aims at ensuring great er legal certainty for the measures adopted during 
special administration so that they could neither be  suspended nor reversed by a court of law, nor 
subject to the consent of the credit institutio n’s creditors. The main issues relate to: 
• the special administration procedure, including the conditions and the period of time for 
imposing this procedure, the characteristics and tasks of the special administrator and the possible measures to be taken during this procedure; 
• the prerogatives of BNR in the case of the special  administration procedure. With regard to 
the appointment of the special administrator,  the draft law extends BNR’s prerogatives by 
allowing it to specifically designate the objectiv es and tasks of the designated person(s), their 
remuneration and the amounts that may be spent in the performance of the authorised tasks 
(see, in particular, Section 2 in Chapter VIII of the draft law). 
 2. General observations  2.1 The consulting authority has informed the ECB that the draft law is to be adopted before 
31 March 2010. In view thereof, the consulting authority invokes the exemption provided for in 
Article 3(2) of Council Decision 98/415/EC, whic h allows for a reduction of the minimum time 
limit for submission of the ECB’s opinion of one month only in case of extreme urgency, and asks 
the ECB to deliver its opinion by 31 January 20 10. The ECB would however wish to draw the 
consulting authority’s attention to the fact  that the second sentence of Article 4 of 
Decision 98/415/EC states that the ECB must be consulted ‘at an appropriate stage’ in the legislative process. This implies that the consulta tion should take place at a point in the legislative 
process that affords the ECB suffici ent time to examine the draft legislative provisions and to adopt 
its opinion in the required language versions and which also enables the relevant national 
authorities to take the ECB’s opinion into cons ideration before the provisions are adopted.  
2.2 The ECB takes note of the draft law’s widening of BNR’s prerogatives and restates its view that 
the tasks to be performed by BNR to aid the ca rrying out of stabilisation measures in the domestic 
banking sector must be conducted in a manner that is  fully compatible with BNR’s institutional and 
financial independence and that safeguards the pr oper performance of its existing tasks under the 
Treaty and the Statute of the Eu ropean System of Central Banks and of the European Central 
Bank
2. Moreover, BNR should independently avail it self of sufficient financial and personnel 
resources, both in terms of quantity and quality, to carry out tasks related to the European System 
of Central Banks as well as its own tasks, including its new tasks based on the draft law3. 
2.3.1 The ECB welcomes the intention of the draft law to increase the preventive character of the actions 
to be taken in order to improve th e financial situation of a credit institution in distress. Furthermore, 
the ECB supports the extension of the responsibility of those involved in the special administration 
                                                 
2  See paragraph 3.7 of ECB Opinion CON/2008/68. Al l ECB opinions are published on the ECB website at 
www.ecb.europa.eu. 
3 See the ECB Convergence Report, May 2008,  p. 20. See also Opinion CON/2009/27.  
3 procedure for the purposes of assuring financial st ability and protecting the interests of the credit 
institution’s depositors. 
2.3.2 The ECB understands that the draft law aims to : (i) allow the special administrator to deal with 
ailing credit institutions with a broader range of restructuring measures; (ii) ensure that credit 
institution resolution measures during the special ad ministration may not be suspended or reversed 
by a court of law, and are not subject to the cred itors’ consent; (iii) specify a clear trigger for the 
early and mandatory appointment of a special administrator based on a regulatory threshold. The ECB notes that the financial crisis has shown the importance of an efficient resolution regime and 
has triggered reflections both at internationa l and European level on how to enhance the 
instruments at the disposal of competent authorities in a crisis situation. In this context, the ECB 
welcomes the measures contained in the draft law to  enhance the capability of BNR to respond in a 
timely and effective manner in the event of a credit institution in distress. The forthcoming 
legislative proposals of the European Commission on early intervention tools and crisis resolution 
may result in a need to further improve the national legal framework. 
 3. Specific observations The draft law provides only for the right of the credito r of a credit institution to claim compensation if his 
interests have been negatively affected as a resu lt of the measures implemented during a special 
administration procedure concerning the credit institu tion, without specifying who bears the liability to 
compensate such creditor (see Article 254
1(3) of the draft law). This should therefore also be expressly 
specified in the draft law.  
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 27 January 2010. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET