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/2018/56)
Date: 2018-12-11
Institutions: European Central Bank
Subjects: Romania, administrative responsibility, central bank, civil liability proceedings, financial supervision, liability

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/2018/56) 

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  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 

The  purpose  of  the  draft  law  is  to  remove  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  that  BNR  bears  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  

2  

3  

Lege nr. 312/2004 privind Statutul Băncii Naționale a României, publicată în Monitorul Oficial al României nr. 582 din 
30 iunie 2004. 
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). 
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. 

 
 
 
 
   
                                                 
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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  Effective 
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 supervisor, 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, the 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  

5  

6  

7  

8  

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. 
Principles  for  Effective  Banking  Supervision  of  the  Basel  Committee  on  Banking  Supervision,  available  at 
https://www.bis.org.  
Articolul  16  din  Lege  nr.  287/2009  privind  Codul  civil,  publicată  în  Monitorul  Oficial  al  României  nr.  505  din 
15 iulie 2011. 
Articolul  16  din  Lege  nr.  286/2009  privind  Codul  penal,  publicată  în  Monitorul  Oficial  al  României  nr.  510  din 
24 iulie 2009. 

See Opinion CON/2014/43, paragraph 5.1. 

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3.2  Proposed amendment on the litigation costs of BNR Board 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 current form, Article 25(4) of the Law on BNR protects 

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  their  personal  liability  is  concerned.  At  the  same 

time,  while  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  according  to 
applicable national law 9, 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. 

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