Regulation 3/2024 brings changes and clarifications to the Regulation of the Financial Supervision Authority 16/2021 on the establishment, disclosure and enforcement of the collateral on financial instruments, as follows:
- The definition of the financial guarantee contract without transfer of ownership was adjusted by adding the possibility for the guarantor to waive certain attributes of the property right, in accordance with the provisions of GO no. 9/2004 regarding certain financial guarantee agreements;
- In accordance with the previous form of the regulation, in the case of movable mortgages, the parties could include in the guarantee agreement clauses regarding a) the possibility of the secured creditor to collect the fruits (i.e. the proceeds) of the relevant financial instruments or portfolios, except the dividends distributed in the form of financial instruments acquired as aneffect of holding the relevant financial instruments or portfolios and b) details regarding the acceleration of the secured debt. The provisions relating to the inclusion in the movable mortgage agreement of the specifications relating to the acceleration of the secured debt at point b) are repealed.
- The obligation is established for the participant who administers the relevant account to ensure that the totality of relevant financial instruments belonging to a pledgor and registered in a relevant account managed by him does not exceed the number of financial instruments of the respective pledgor kept in accounts managed by the respective participant;
- As per the new enactment, the prior written approval of the beneficiary of the security is required as a condition for the pledgor to be able to freely dispose of the relevant financial instruments that are subject matter of the guarantee, with the obligation not to affect the maintenance of the guarantee and nor its value;
- According to the new regulation, no later than 10 days after the date on which the secured obligation has been extinguished, the beneficiary of the guarantee is obliged to request the central depository or, as the case may be, the participant administering the relevant account to transfer the financial instruments from the relevant account to the pledgor’s client account, as well as the removal of any reference to the collateral from the central publicity register, if reference to the collateral has been registered. The beneficiary of the guarantee who fails to request the transfer of the financial instruments from the relevant account and the removal of the collateral from the central publicity register shall be liable for direct or indirect damage to the debtor and the pledgor and shall be liable to pay damages. In this case, the amount of damages to be paid may not be less than the equivalent in RON of the sum of EUR 500.
