EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 11 December 2018  
on amendments to the liability regime concerning the Board members and employees  of Banca 
Naţională a României  
(CON/20 18/56) 
 
Introduction and legal basis  
On 27 September 2018  the European Central Bank (ECB) received a request from the Vice Chairman of 
the Romanian Senate for an opinion on draft amendments to the Law on Banca Naţională a României1.  
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 (TFEU) and the third indent  of Article  2(1) of Council Decision 
98/415/EC2, as the draft law relates to Banca Naţională a României (BNR) . In ac cordance 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  
The purpose of the draft law is  to remov e Article 25(3) and (4) of the Law on BNR  which provide, 
respectively , that the Board members and employees of BNR who are entrusted with prudential 
supervision tasks do not incur criminal or civil liability for discharging their duties in good faith and without 
negligence and t hat BNR bear s the costs related to court proceedings  which involve BNR’s Board 
members and employees entrusted with prudential supervision tasks .   
   
2. General observation   
Although it is not apparent from the draft law  and accompanying documents, the ECB understands  that 
the removal of Article 25(3) and (4) of the Law on BNR  will indirectly  affect Article 8 of the Law on the 
recovery and resolution of credit institutions and investment firms3. Article 8  provides that Article 25(3) 
and (4) of the Law on BNR apply in respect of the liability regime that covers  the resolution authority, its 
employees  and any person under the control of that authority in the exercise of  the tasks under the Law 
                                                 
1  Lege nr . 312/2004 privind Statutul Băncii Naționale a României , publicată î n Monitorul Oficial al României  nr. 582 din 
30 iunie 2004.  
2  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions ( OJ L 189, 3.7.1998, p. 42) . 
3  Lege nr. 312/ 2015 privind redresarea și rezoluția instituțiilor de credit și a firmelor de investiții, precum și pentru 
modificarea și completarea unor acte normative în domeniul financiar , publicată în Monitorul Oficial al României 
nr. 920 din 11 decembrie 2015.  
ECB -PUBLIC  
2 on the recovery and resolution of credit institutions and investment firms . In this respect, it is noted that 
BNR is the resolution authority in Romania.  
 
3. Specific observations   
3.1 Proposed amendment  to the liability regime   
3.1.1  In its current form,  Article 25(3) of the Law on BNR provides that BNR’s Board members and 
employees entrusted with prudential supervision tasks cannot incur criminal or civil liability for 
actions or omissions  discharged ‘in good faith and without negligence ’.  
3.1.2  It is apparent from the wording of Article 25(3) of the Law on BNR that, contrary to the views 
included in the statement of reasons that accompanies the draft law4, criminal and civil liability may, 
in fact, be incurred for all other actions or omissions , namely  those discharged with intent or by 
negligence.  
3.1.3  Article 25(3) of the Law on BNR incorporates Principle 2 of the Core Principles for Effectiv e 
Banking Supervision of the Basel Committee on Banking Supervision5 (the ‘Basel Core Principles ’) 
on independence,  accountability, resourcing and legal protection for supervisors  into national 
legislation . Principle 2  sets out in essential criteria  1 and 9, respectively,  that the supervisor should 
possess ‘operational independence ’ and that laws should ‘provide protection to the supervisor and 
its staff against lawsuits for actions taken and/or omissions made while discharging their duties in 
good faith ’. As the Law on BNR refers exclusively to employee  liability, without referring to BNR’s 
liability as a supervi sor, Article 25(3) transposes the cited criterion  9 in part.    
3.1.4  The ECB understands that  removing Article 25(3) of the Law on BNR cannot be seen as 
substantially impacting the liability regime applicable to BNR’s Board members and employees , as 
both the Romanian Civil Code6 and the Criminal Code7 require either intent or negligence for 
liability to be incurred at all. This is already the case under the current wording of the Law on BNR.  
3.1.5  However, the ECB notes the benefit of keeping Article 25(3)  in the Law on BNR . In this manner,  
both legal certainty and the  stability of the legal framework  are ensured as  far as the liability regime  
applicable in respect of  the discharge of BNR’s prudential supervisory tasks  is concerned.   
3.1.6  At the same time, t he ECB acknowledges that different supervisory liability regimes currently exist 
at national level and understands that it is, in principle, a matter for national law to determine the 
scope of such  liability8.  
                                                 
4  According to the statement of reasons, BNR’s Board members and staff entrusted with supervisory tasks are subject 
to a ‘ privileged’  immunity regime and do not incur  any criminal or civil liability.  
5  Principles for Effective Banking Supervision of the Bas el Committee on Banking Supervision, available at 
https://www.bis.org .  
6  Articolul 16 din Lege nr. 287/ 2009 privind Codul civil, publicată în Monitorul Oficial al României nr. 505 din 
15 iulie 2011.  
7  Articolul 16 din Lege nr. 286/ 2009 privind Codul penal, publicată în Monitorul Oficial al României nr. 510 din 
24 iulie 2009.  
8  See Opinion CON/2014/43, paragraph 5.1.  
ECB -PUBLIC  
3 3.2 Proposed amendment  on the litigation costs  of BNR Bo ard members and employees   
3.2.1  In addition to the abovementioned observations on the liability  regime , Article 25( 4) of the Law on 
BNR also incorporates Principle 2 of the Basel Core Principles  into national legislation.  Principle 2 
sets out in essential criterion 9 that the law should ensure that ‘ the supervisor and its staff are 
adequately protected against the costs of defending their actions and/or omissions made while 
discharging their duties in good faith’ . In its cu rrent form, Article 25(4) of the Law on BNR protect s 
the Board members and employees of BNR who are entrusted with prudential supervision tasks  
from having to bear their own litigation costs.  
3.2.2  The ECB notes the benefit of keeping Article 25(4)  in the Law on BNR . In this manner,  both legal 
certainty and the stability of the legal framework  are ensured as  far as the personal responsibility of 
the Board members and employees of BNR who are entrusted with prudential supervision tasks for 
costs related to court proceedings concerning the ir personal liability  is concerned. At the same 
time, w hile the draft law would require the Board members and employees of BNR to bear their 
own litigation costs , the ECB acknowledges that such costs are recoverable accordin g to 
applicable national law9, and that it is, in principle, a matter for national law to determine the scope 
of such cost recovery arrangements .  
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main, 11 December  2018.  
 
[signed]  
 
The President of the ECB  
Mario DRAGHI  
                                                 
9  Articolul 453 din Lege nr . 134/ 2010 privind Codul de procedură civilă, publicată în Monitorul Oficial al României 
nr. 247 din 10 aprilie 2015.