AFTER IOHANNIS SENT THE LAW BACK TO THE PARLIAMENT
BURSA 16.03.2017

EMILIA OLESCU (translated by Cosmin Ghidoveanu)
 
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     The governor of the NBR will not have criminal and civil immunity for his position of president of the National Committee for Macroprudential Oversight, according to the new form of the law which regulates the creation of this entity, passed yesterday by president Klaus Iohannis.
     The MPs have amended the initial text of the law, adapting it to the requirements of the letter sent in April last year by the Romanian president, by which he refused to pass the legislative act and sent it back to Parliament.
     PNL senator Daniel Cătălin Zamfir told us that the most important aspects notified by the president have been removed from the law. One of the most important was the one concerning the immunity granted to the members of the new committee, says Mr. Zamfir, who told us: "The provision in question was removed, and this aspect represents a good opportunity to tackle once again the issue of article 25 of the Bylaws of the NBR, because that clause from the law of macroprudential oversight law was copy-pasted from the Bylaws of the NBR. The president sent in for reexamination that article of the Law of Macroprudentiality because he thought there shouldn't be a category of people having an immunity greater than the one stipulated in the constitution".
     In April last year, president Iohannis pointed out, among other things, that the law created a new type of immunity for a category of dignitaries and public servants.
     The request for reexamination sent by Klaus Iohannis stated: "Art. 11 paragraph (2) of the law sent in for promulgation exonerates from civil and criminal liability, the persons who have held or hold the position of member of the General Council, or of a technical commission or who work or who have worked in the Secretariat of the Committee, for carrying out or failing to carry out any action in relation to the exercising, under the terms of the law, of their duties pertaining to the activity of the Committee, as long as they have acted in good faith and without negligence. Through the provisions of art. 11 paragraph (2) a new type of immunity is instituted for a category of dignitaries and public servants, immunity which exceeds the constitutional boundaries, which therefore requires a legislative clarification, meaning the synchronization of the European regulations in that area with the domestic ones".
     More specifically art. 11 (2) of the initial text of the law emphasized: "The persons who have held or hold the quality of member of the General Council and respectively, of a technical commission, as well as the persons who have worked or work in the secretariat of the committee, don't have a civil or criminal liability for carrying out or omitting to carry out any action, under the terms of the law, as part of their job duties as members of the Committee, provided they had acted in good faith". This article has been eliminated from the law passed today by president Iohannis.
     The law no. 312 of 2004 concerning the NBR status mentions in art. 25 (3): "The members of the Board of Directors of the NBR and its personnel, tasked with exercising roles of prudential oversight, are not civilly or criminally liable, as the case may be, if the courts find that those individuals have carried out or neglected to carry out any action related to the exercising, within the limits of the law, of their prudential oversight roles in good faith and without negligence".
     Last year, Daniel Zamfir submitted a legislative draft requesting the elimination of the article of the law which regulates the Bylaws of the NBR. In his argumentation, the MP stressed: "According to paragraphs (3) and (4) of art. 25, a privileged status is established for those categories of employees, a new type of immunity which is likely to create an imbalance when it comes to the liability of any citizen in relation to the exercising of job duties, immunity which exceeds the constitutional framework. Basically, by maintaining these provisions in the Law concerning the Bylaw of the National Bank of Romania, we can say that we are dealing with a refusal to take responsibility by the decision makers of the NBR, as they don't answer to the law for decisions of major importance concerning the Romanian economy and society. In the context where this has already been notified through the request for reexamination sent to the Romanian parliament on the law concerning the macroprudential oversight of the national financial system which contains a similar provision, I feel that the passing of the current legislative draft fixes a legislative deviation which could lead to a violation of the constitutional principle of the equality of all citizens before the law".
     The initiative of the PNL senator is currently closed.
     * The government is no longer required to follow the recommendations of the Macroprudential Oversight Committee
     Another aspect notified by president Iohannis and removed from the law concerns the recommendations made by the Committee. Initially, the law stipulated that they would be mandatory for the Government. Now, the recommendations made by the new entity will be advisory, meaning their implementation will be optional, senator Zamfir explained.
     In the request for reexamination, the head of state said that some of the provisions of the law lack predictability and clarity. One of the fiercely criticized provisions of the law was the nature of the recommendations that would be made by the Committee.
     The recipients of the recommendations of the National Macroprudential Oversight Committee are either the NBR and the ASF, as sector financial oversight authorities, or the Romanian government. The initial version of the law stated as follows: "The recipients (...) must take the appropriate measures, including the issuing of regulations, in order to comply with the recommendations, or, as the case may be, to take actions in order to reduce the risks that they have been warned about. The recipients have to inform the Committee about the measures passed or to provide an appropriate justification if such measures have not been passed.
     The new form of the law provides the following: "The recipients of the recommendations or warnings issued by the Committee (...) can adopt the corresponding measures, including the issuing of regulations, in order to comply with the recommendations, or, as the case may be, can take action to reduce the risks that they have been warned about. The recipients will notify the committee concerning the measures that they passed or, if such measures have not been taken, the notice will include the reasons for not taking them".
     The request for reexamination made by Klaus Iohannis stated the following: "For the national level implementation of the measures needed in order to prevent or reduce systemic risks, the National Committee for Macroprudential Oversight issues recommendations addressed to the government, in order to initiate, in line with the provisions of the law, some legislative drafts, as well as recommendations and warnings addressed to the National Bank of Romania and the Financial Oversight Authority (...). We hereby clarify that both in the Romanian legislative system, as well as in the European one, a recommendation is an act that does not generate the obligation to comply with it. To that end, we want to stress the fact that the recommendations of the European Union are acts without a mandatory nature and therefore, they do not follow the legal status stipulated by art. 148 paragraph (2) of the Constitution; therefore, their implementation in the domestic legislative system must take into account the domestic regulations, without granting those recommendations priority over the national law.
     As an exception from this concept, art. 4 paragraph (2) of the law stipulates the obligation of the recipients of the recommendations and warnings issued by the Committee (the Financial Oversight Authority, the NBR and the Romanian government respectively) to take the necessary measures, including the issuing of regulations, in order to comply with the recommendations or to take action in order to reduce the risks that they have been warned about. Also, according to the same text, the recipients have to inform the Committee about the measures taken or to provide an adequate justification if such measures have not been taken. Or, if the notion of «adequate justification» is not defined by law, based on the phrasing of the legislative draft, it is not clear based on what criteria the Committee establishes whether the explanations submitted by the recipients of the recommendations are justified or not.
     The introduction of the phrase «have to [...], including the issuing of regulations» (...) - which induces the idea of the government being required to pass some legislative acts - can also lead to the conclusion that these decisions infringe on the function of the government of freely exercising its right to issue laws, as stipulated in article 74 and 108 of the Constitution. (...) We hereby note that in the Romanian constitutional system the Government is only liable in solidum to the Parliament, and is not required to answer to any other public or private entity or authority. Because of these reasons, we feel that the norm is not formulated clearly enough, as it lacks predictability. As a result, we feel that reanalyzing the entire art. 4 is required, in order to ensure both the effectiveness of the National Committee for Macroprudential Oversight, in the context of the applicable European norms, as well as the honoring of the role of the government, as provided in art. 102 of the constitution, of realizing the country's foreign and domestic policy and of leading the public administration".
     Aside from the aspects mentioned above, other modifications to the legislative draft have been made, in order to adapt it to the reexamination request sent to the Parliament by the president.
     The law stipulates, among other things, that the new Committee passes and pursues the implementation of the macroprudential policy, without infringing on the independence of the National Bank of Romania. The president of the Committee has to present to the Parliament, by June 30 of the following year, the annual report.
     * Piperea, in 2016: "The National Committee for Macroprudential Oversight is a «supergovernment»"
     Calling the National Committee for Macroprudential Oversight a "supergovernment", before president Iohannis sent the law back to the Parliament, Gheorghe Piperea asked the Ombudsman to notify the Constitutional Court about the unconstitutionality of the law of macroprudential oversight.
     At the time, he said that the entity which would be created would take over the roles of the government: "In our opinion, the manner of creation, organization and operation of this entity blatantly violates the principles, freedoms, liberties and fundamental rights consecrated through the Romanian Constitution, demolishing the roles and competences of some of the national public authorities".
     The members of this committee, as well as the technicians and secretaries that work for it, "are immune when it comes to any criminal or civil liability for what they do (with the exception of cases where they act in bad faith)", Gheorghe Piperea warned in his petition, and he wondered "who would establish the good or bad faith in the case of secret recommendations/warnings?".
     The lawyer was saying: "It is an immunity that can not even be suspended, like it happens with parliament members and even with the president of the Republic. (...) It is a criminal and civil liability immunity similar to the one that is already granted to the bosses of the NBR through the law no. 312/2004 concerning the bylaws of the NBR. An immunity that is by far, hugely greater than the immunity of parliament members and even of the country's president: (i) it also extends to the civil liability for causing prejudices, and is not limited to the criminal liability; (ii) it can not be removed; in the most restrictive case, assuming they will have acted in bad faith, the members of the macroprudential committee may be sanctioned criminally or civilly; except in the Romanian legal system, good faith is presumed. And the NBR, as well as the committee of macroprudentiality are not even mentioned in the Constitution!"
     Cristian Pârvan, the secretary general of the Association of Romanian Businesspeople (AOAR), said at the time, that he agreed to the opinion of Mr. Piperea, emphasizing that such a financial stability council already existed at the level of the NBR: "Categorically, the Committee is unconstitutional. Why do we need the parliament, government and ministers anymore, if we have this council? You can't hand over the laws of the country to individuals who aren't elected by the people".
     The former minister of public finances Eugen Teodorovici explained, in 2015, that this committee was coming to life following a recommendation of the European Committee concerning the financial system, stating: "Romania made such a proposal starting from the fact that the NBR plays a significant part in the financial market".
     Last year, in the EU, 13 European states had a similar committee to the one that will be created in Romania, other 13 states granted this responsibility of overseeing the macroprudentiality of central banks, and two countries have created authorities for the oversight of financial markets, according to a report by the ESRB (the European Systemic Risk Board). 
 

 
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