1. General Aspects
The Chamber of Commerce and Industry of Romania (”CCIR”) has published in the Official Gazette of Romania no. 77 of 29 January 2024 the Regulation no. 27 of 6 December 2023 regarding the approval, supervision, control and sanctioning of the activity of commodity exchanges (the ”Regulation”), which came into force on the same date of 29 January 2024.
With the entry into force of this new Regulation, the CCIR Regulation no. 26/2021 regarding the approval, supervision, control and sanctioning of the activity of commodity exchanges, which was published in the Official Gazette of Romania no. 368 of 9 April 2021, was repealed.
The new Regulation mainly establishes aspects regarding:
• the approval of commodity exchanges and their regulations;
• the specific sanctions, the withdrawal of granted approvals and the procedures for challenging these measures;
• the fees charged by the CCIR for applying the provisions of the Regulation.
2. The purpose of the Regulation and the organizational framework for its implementation
The purpose of the Regulation is to regulate the conditions and procedure for the approval, supervision, control and sanctioning of commodity exchanges, organized in accordance with the provisions of Law no. 357/2005 on commodity exchanges.
Its provisions are to be implemented by the Governing Board of the CCIR (the ”Governing Board”) through a commodity exchange commission.
The commodity exchange commission will be a specialized structure tasked with approving, supervising, controlling and sanctioning the activity of commodity exchanges. The Regulation details the organization and operation of the Commission, which will operate in accordance with the principles of objectivity, confidentiality, avoidance of conflicts of interest, impartiality and of proactive role.
Thus, the Commission will have responsibilities such as verifying the fulfillment of legal conditions for establishing commodity exchanges, controlling and approving operational regulations, withdrawing approvals in case of violations, suspending trading rights for violations, resolving complaints against sanctions and requesting the transaction registers of commodity exchanges and brokerage firms, in accordance with the provisions of Law no. 357/2005. Its decisions will be made by a majority vote of the members and the Commission’s secretariat will be provided by the Head of the Commodity Exchange Supervision Office.
3. The approval of commodity exchanges
Regarding the approval of commodity exchanges, the Regulation stipulates that before establishment, the founders of the organizing companies of commodity exchanges, through their specially designated representatives, will request a prior legal and opportunity approval from the Governing Board, submitting specific documentation for this purpose. The Commission will decide on the approval request for establishing a commodity exchange within a maximum of 30 days from the submission of the required documentation.
The Commission’s decision can be appealed through a preliminary complaint to the Governing Board within a maximum of 30 days from the date of response to the approval request. The decision made by the Governing Board on the preliminary complaint can be legally challenged within the legal timeframe at the competent judicial court.
4. The approval of commodity exchanges regulations
The Commission will approve the operational regulations of commodity exchanges, i.e., those regulations of a commodity exchange that are enforceable against its members, the exchange’s clients and third parties in the activity conducted on the markets managed by that exchange. The Regulation provides a specific procedure in this regard, noting that if a request to approve an operational regulation is rejected, the Commission will issue a decision motivated by facts and law, which can later be challenged in court.
Furthermore, any modification to an operational regulation of a commodity exchange is subject to the Commission’s approval.
5. The prevention of conflicts of interest
In any situation that might at some point raise a reasonable suspicion that certain members of the Governing Board or of the Commission would benefit materially for themselves, their spouse, a relative, or an in-law up to the second degree inclusive, or where the decision to be adopted concerns them directly or indirectly or concerns the legal entity whose activities they represent, those members will be obliged to abstain from voting on any matter related to the activity of a particular commodity exchange, but will still be considered present for establishing the quorum necessary for making a decision.
6. Appeals
Shareholder members, affiliated members and clients of commodity exchanges may appeal against suspension, exclusion or delisting sanctions imposed by the commodity exchanges’ boards of directors. Appeals shall be resolved by the Commission within 30 days from the date of their submission.
Decisions to dismiss appeals may be challenged before the Governing Board within a maximum period of 30 days from the date of their communication and the Governing Board shall render its decisions on the appeals at its next meeting.
7. The fees charged by the CCIR under the Regulation
For the performance of the duties established under the Regulation, the CCIR shall charge fees based on the Regulation, set between 5,000 and 10,000 lei (i.e., approximately 1,000 – 2,000 euros).
8. The sanctions of the Commission and the withdrawal of the approvals
The Commission’s sanctions for serious violations of the commodity exchange legislation or, as the case may be, of the operational regulations, may include: (i) the withdrawal of the granted approval concerning an operational regulation, (ii) the suspension of a shareholder member’s or an affiliated member’s trading right for a period ranging from one month to six months, (iii) the exclusion from trading of an affiliated member or (iv) the withdrawal of a commodity exchange client’s access right.
Before the Commission makes a sanctioning decision, the persons concerned may defend themselves before the Commission.
Moreover, preliminary and opportunity approvals granted to commodity exchanges may be withdrawn in the following situations: (i) when one of the conditions underlying the approval is no longer met, (ii) when the commodity exchange organizing company is undergoing judicial reorganization or bankruptcy, or (iii) in any other situation, upon request of the commodity exchange organizing company.
