of July 11, 2012 No. 171
About the capital market
The parliament adopts this organic law.
This law is transposition of the following European Union directives:
The directive No. 97/9/EU of March 3, 1997 the European Parliament and Council about schemes of compensation to investors published in the Official magazine of the European Communities No. L 84 of March 26, 1997;
The directive No. 98/26/EU of May 19, 1998 the European Parliament and Council about finality of calculations in payment systems and settlement systems for securities published in the Official magazine of the European Communities No. L 166 of June 11, 1998;
The directive No. 2001/34/EU of May 28, 2001 the European Parliament and Council about the admission of securities to the official quotation at the exchange and about information which shall be opened concerning these securities, published in the Official magazine of the European Communities No. L184 of July 6, 2001;
The directive No. 2003/6/EU of January 28, 2003 the European Parliament and Council about illegal use of confidential information and market manipulations (market abuses) published in the Official magazine of the European Union No. L96 of April 12, 2003;
The directive No. 2003/71/EU of November 4, 2003 the European Parliament and Council about the prospectus which is subject to publication in case of public offer of securities or in case of the admission of securities to the biddings changing the Directive No. 2001/34/EU, published in the Official magazine of the European Union No. L345 of December 31, 2003;
The directive No. 2004/25/EU of April 21, 2004 the European Parliament and Council about public offers on purchase published in the Official magazine of the European Union No. L142 of April 30, 2004;
The directive No. 2004/39/EU of April 21, 2004 the European Parliament and Council about the markets of financial instruments changing Directives of Council No. 85/611/EEC, No. 93/6/EEC and the Directive No. 2000/12/EU of the European Parliament and Council, and also canceling the Directive No. 93/22/EEC of Council, published in the Official magazine of the European Union No. L145 of April 30, 2004;
The directive No. 2004/109/EU of December 15, 2004 of the European Parliament and Council about harmonizations of requirements of transparency for information on issuers, whose securities are admitted to trading in the controlled markets, changing the Directive No. 2001/34/EC, published in the Official magazine of the European Union No. L390 of December 31, 2004;
The directive No. 2006/49/EU of June 14, 2006 the European Parliament and Council about adequacy of the capital of investment companies and credit institutions published in the Official magazine of the European Union No. L177 of June 30, 2006;
The directive No. 2006/73/EC of August 10, 2006 the Commissions on application of the Directive No. 2004/39/EC of the European Parliament and Council about organizational requirements and operating conditions of investment company and definitions of concepts for the purposes of this Directive published in the Official magazine of the European Union No. L241 of September 2, 2006;
The directive No. 2009/65/EC of July 13, 2009 the European Parliament and Council about coordination of legislative, reglamentarny and administrative provisions concerning the organizations of collective investment into securities (OKITsB) published in the Official magazine of the European Union No. L302 of November 17, 2009.
The directive No. 2013/36/EU of June 26, 2013 the European Parliament and Council about access to activities of credit institutes and prudential supervision of activities of credit institutes and investment firms changing the Directive No. 2002/87/EU and canceling Directives No. 2006/48/EU and No. 2006/49/EU, published in the Official magazine of the European Union by L 176 of June 27, 2013 (part (5) Articles 4, Article 28, part (3) Articles 65, part (1) Articles 74, part (2) Articles 76, Item a) parts (1) Articles 97, parts (2) - (4) Articles 97, parts (1) - (3) Articles 99, part (1) Article 103 and Items a), c), e), g), i), j) and l) parts (1) Articles 104).
(1) This law regulates activities of investment societies, organizations of collective investment and Fund of compensation to investors, public offers, takeover offers, infrastructure of the capital market, including the controlled markets, determines abuses in the capital market and requirements to disclosure of information for the purpose of maintenance of high standards of work in the capital market and creations of optimum conditions for financial investments.
(2) Any activities in the capital market are performed according to provisions of this law, other applicable legal acts and acts of the National commission on the financial market (further - the National commission).
(3) the National commission is body, competent to implement this law according to the powers determined by the Law on the National commission on the financial market No. 192-XIV of November 12, 1998.
(4) For implementation of this law the National commission makes decisions of the regulating nature and individual decisions, and also publishes notifications or letters of explanatory and advisory nature.
(1) This law is applied to physical persons and legal entities of the Republic of Moldova, foreign physical persons and legal entities and stateless persons which render services or perform activities in the capital market or which own or intend to acquire the financial instruments issued by issuers of the Republic of Moldova.
(2) Provisions of this law are applied to the commercial banks performing investment services and activities taking into account the exceptions provided by this law.
(3) Commercial banks render investment services and perform investing activities according to regulations of this law and regulations on activities of financial institutions.
(4) Provisions of this law do not extend to systems of clearing and payment under the transactions with tools of the money market and government securities performed out of the controlled market and/or multilateral trade system and also to the settlement and clearing systems authorized by National Bank of Moldova relating to financial institutions.
a) are admitted to trading in the controlled market and/or in multilateral trade system;
b) were subject of public offer.
(6) Provisions of Chapter III do not extend to the organizations of collective investment into securities.
This law is not applied:
a) in case of debt management of the public sector in which are involved National Bank of Moldova and organizations of member states of the European Union, the Ministry of Finance and other bodies of the public power similar to it;
b) concerning persons rendering investment services to only parent society, the subsidiaries or other subsidiaries of the parent society;
c) concerning persons making transactions with financial instruments at own expense, except as specified when they are market makers or make transactions at own expense orderly, often and systematically out of the controlled market or multilateral trade system, by means of provision to the third parties of available system for the purpose of expansion of scale of transactions with them;
d) concerning persons rendering consulting services in the field of investments when implementing of other main activities by them which are not regulated by this law provided that rendering such consulting services is not rewarded separately from the main activities;
e) concerning persons whose main activities are transactions with primary raw materials and its derivative tools at own expense;
f) concerning persons rendering investment services irregularly in the course of professional activity in case it is regulated by the acts which are valid the law or the deontological code which do not exclude provision of such service;
g) concerning persons whose investment services consist only in management of system of participation of workers;
h) concerning the companies which investment services and activities consist only in transactions at own expense in the markets of urgent financial instruments or the option markets or other markets of derivatives and in the markets poste restante only for the purpose of receipt of line items in the markets of derivatives, or the companies which make transactions at the expense of other participants of such markets or provide pricing for them and, therefore, are provided with guarantee of the compensating agent of these markets if the agreement responsibility, concluded by these companies, the compensating agent of the same markets bears.
(1) the Financial services and financial activities regulated by this law extend to the following financial instruments:
b) shares (shares) issued by the organizations of collective investment into securities;
d) the option agreements, futures contracts, swap contracts, forward percentage contracts and any other derivative financial instruments relating to securities, currencies, interest rates, profitability, financial indexes or property;
e) derivative financial instruments for transfer of credit risk;
(2) This law regulates the security market and the shares issued by the organizations of collective investment into securities. Use of the financial instruments listed in Items c) - f) parts (1), it is regulated by this law only in case of transactions with them in the controlled market or in multilateral trade system. The admission of financial instruments on the controlled markets or in multilateral trade system is performed after their registration by the National commission according to the procedure, established in its regulations.
(3) According to this law the following financial instruments are considered as securities:
Tasks of the National commission on regulation in the field of the capital market are:
a) maintenance and promotion of concepts of justice, efficiency, transparency and orderliness in the capital market;
b) protection of the rights and interests of persons investing in financial instruments within public offers and/or using investment services;
c) the prevention of violations of the law in the field of the capital market;
d) reducing systemic risks in the capital market;
e) preserving financial stability of the Republic of Moldova by acceptance of adequate measures concerning the capital market;
f) education of general population concerning the capital market, financial instruments, investment services and activities.
(1) for the purposes of this law the following concepts are used:
the financial analyst - the specialist who conducts investment research;
firm commitment - the obligation of investment society to be signed on all unclaimed financial instruments;
the auditor - auditor society or the auditor-individual entrepreneur which have the license for implementation of auditor activities;
the requirement about obligatory response - the requirement sent to owners of the voting securities about purchase of these securities on the conditions provided by this law;
clearing - replacement of the debts and obligations following from transfer orders which one or several participants publish for benefit of one or several participants or receive them from one or several participants, single net debt or the single net obligation therefore only one net debt can be demanded and only one net obligation is owed;
the client - any physical person or legal entity to which investment society renders investment and/or support services;
the retail client - the client who is not the professional client;
the professional client - persons determined in part (1) Article 137;
investment company - the organization of collective investment into securities - the legal entity created in the form of joint-stock company according to provisions of this law and Join-stock companies law No. 1134-XIII of April 2, 1997 who places and redeems the shares upon the demand of the shareholder;
investment consulting - provision to the client, at its request or at the initiative of investment society, taking into account features of this client, personal recommendations for one or several transactions with financial instruments which concern:
a) purchases, sales, subscriptions, exchange, redemption or ownership of any financial instrument;
b) execution or non-executions of the right granted by the financial instrument concerning purchase, sale, subscription, exchange or the redemption of the financial instrument;
control - situation in which the physical person or legal entity answers, at least, one of the following conditions:
a) owns independently or together with persons acting in coordination, the majority of voting shares or shares in commercial society;
b) owns independently or together with persons acting in coordination, the number of voting shares or shares which allows it to appoint or dismiss most of members of council of society, executive body or most of members of executive body and/or the auditor or most of members of audit committee;
c) exerts the dominating impact on commercial society, shareholder or the member of whom is, based on the contract with this commercial society or provision of the constituent act or the charter of society;
d) is shareholder or the member of commercial society and controls independently, based on the agreement signed with other shareholders or members of this society, the majority of voting powers;
custodial activities, or storage - the activities performed by depositary of assets of the organization of collective investment into securities, the central depositary, investment society for storage and/or accounting of financial instruments and money of clients according to requirements of this law;
the depositary of assets of the organization of collective investment into securities - commercial bank which has the license of National Bank of Moldova for implementation of financial activities is responsible for the obligations provided in Section 3 of Chapter V and carries out other provisions provided in Chapter III;
the subject of public value - the subject corresponding to, at least, one of the following criteria:
a) financial institution, insurance company, leasing company, facultative pension fund;
b) the issuer whose securities, on its request or consent, are admitted to trading in the controlled market or MTS;
execution of the orders concerning financial instruments on behalf of clients - implementation of necessary measures for transactions for sale or purchase of financial instruments on behalf of clients;
exposure to sale - the period between registration date of the offer on security sale at the operator of market/system and date of execution/expiration of the offer;
eksternalization - transfer of some functions by investment society to other person;
investment fund - the organization of collective investment into securities without legal position founded on the basis of the agreement of particular partnership which continuously and immediately places and redeems shares in the form of investment shares and which performs the activities according to provisions of this law and regulations of the National commission;
the insider - any person having exclusive information;
tools of the money market - tools, business in which is usually done in the money market, liquid and giving in to exact value assessment at any time, including the government securities issued for a period of up to one year, deposit certificates and other similar tools, except for payment instruments;
the skilled investor - persons specified in part (1) Article 138;
close ties - situation in which two or several physical persons or legal entities are connected by means of:
a) participations that means immediate or indirect possession in at least than 20 percent of voting shares or the authorized capital of commercial society;
b) control that means the relation between parent society and subsidiary or the similar relation between any physical person or legal entity and commercial society; any subsidiary of subsidiary is considered subsidiary of parent society which actually controls these subsidiaries. Also the situation in which two or more physical persons or legal entities are connected constantly with the same person by means of control is considered close connection;
portfolio management - portfolio management, created from one or several financial instruments, on discretionary and individualized basis, according to the powers conferred by the client;
the market maker - person who is continuously present at the capital market who buys and sells financial instruments at own expense and at the prices established by it;
the offerer - physical person or legal entity which performs the offer of securities;
the takeover offer - the obligatory or voluntary offer addressed to all owners of the voting securities of certain joint-stock company, concerning purchase of all or certain number of securities, the pursuing or aiming establishment of control over the society which issued these securities; the takeover offer the offer of society issuer concerning own securities is not considered;
the public offer of securities - the message addressed to certain persons, performed in any form and any methods which contains sufficient information about proposal validity and about the offered securities and thus allows the investor to make the decision on purchase of these securities or on subscription to these securities;
the operator of the market - the legal entity who manages the controlled market and/or exploits him;
the organization of collective investment into securities (further - OKITsB) the subject with legal position created on the basis of the constituent act in the form of investment company or on the basis of the agreement of particular partnership without organization of the legal entity, in the form of investment fund which is effective according to the principle of distribution of risks and which activities consist in attraction and collection of free money of physical persons and/or legal entities by release and share placing or investment shares for the purpose of their subsequent investment into the turned securities and/or into other financial instruments or into other assets according to part provisions (1) Article 112;
qualified participation - immediate or indirect possession in at least than 10 percent of the authorized capital of investment society, the operator of the market, the issuer or the ownership allowing to have significant effect on management of them;
persons acting in coordination - two or more faces tied directly expressed (oral or written) or acquiescence which interact with the offerer or society for the purpose of receipt of control over this society. The return will not be proved yet, the following persons are considered acting in coordination:
1) affiliates of the legal entity (issuer, offerer, owner of securities):
a) members of council of society, members of executive body, members of audit committee, officials of management company (trustee), the head of the auditor performing functions of audit committee, other officials, if necessary (heads of branches, the chief accountant, etc.);
b) the spouses/spouse, relatives and cousins-in-laws to the second degree inclusive the physical persons specified in Item and);
e) the legal entity jointly with the affiliates specified in Item and), or the physical person acting on behalf or at the expense of the corresponding legal entity;
f) the legal entity jointly with the affiliates specified in Item and), or physical person, from name or at the expense of which the corresponding legal entity acts;
g) the legal entity jointly with the affiliates specified in Item and), or the physical person acting together with the corresponding legal entity;
h) the legal entity who is together with the corresponding legal entity under control of the third party;
i) any other physical person or legal entity which affiliation is proved, depending on circumstances, the issuer, the owner of securities, degree of jurisdiction or the National commission;
2) affiliates of physical person (offerer, owner of securities):
a) the spouses/spouse, relatives and cousins-in-laws to the second degree inclusive the relevant physical person;
b) commercial society in which capital the relevant physical person independently or jointly with the affiliates specified in Item and), has control;
c) the legal entity jointly with the affiliates specified in Item and) parts (1), or the physical person acting on behalf or at the expense of the relevant physical person;
d) legal entity or physical person, from name or at the expense of which the relevant physical person is effective;
3) parent society together with subsidiaries, and also any of subsidiaries of the same parent society among themselves;
4) the legal entity with the pension funds and society on management of these funds. Qualification of direct and indirect affiliation in relation to the issuer, the offerer or the owner of securities, and also cases of use of affiliation for determination of immediate or indirect possession in the authorized capital of commercial society, and also for the purpose of identification of manipulation in the capital market are determined in regulations of the National commission;
persons managing activities of investment society - the physical persons performing function of management and management in investment society which can influence decisions of investment society. In case of investment societies which are not commercial banks sole executive body, the members of collegiate executive body and/or members of council of society performing the activities in investment society on the basis of the individual employment contract who according to internal regulations of investment society have powers on management of its activities can be persons managing activities of investment society. In case of commercial banks sole executive body, the members of collegiate executive body and/or members of council of the society and division managers responsible for activities in the capital market performing the activities in commercial bank on the basis of the individual employment contract who according to internal regulations of investment society have powers on management of its activities can be persons managing activities of investment society;
relevant persons - the following categories of persons:
a) members of council, members of executive body and audit committee, and also employees of investment society;
b) the authorized agent of investment society - physical person;
c) members of council, members of executive body and audit committee, and also workers of the authorized agent of investment society - the legal entity;
d) persons holding shares and/or shares in the capital of investment societies and/or authorized agents;
e) any physical person which represents investment society or the authorized agent when implementing investing activities or when rendering investment service;
f) any physical person which on the basis of the agreement on eksternalization is directly involved in implementation of investing activities or in rendering investment service to investment society or the authorized agent;
the controlled market - the multilateral system administered and operated by the operator of the market which provides or facilitates data, according to its not discretionary rules, the numerous orders received from the third parties about purchase and sale of financial instruments in such a way that there is conclusion of agreements concerning the financial instruments admitted to trading according to its regulations and which is authorized and functions regularly according to provisions of this law;
the potential buyer - physical person or legal entity which independently or together with persons acting in coordination intends to take directly or indirectly shares in the capital of investment society;
the program of the offer - the plan allowing to issue continuously or repeatedly during the certain period of time, the securities which are not capital;
the project of acquisition - intention of the potential buyer to acquire share in the authorized capital of investment society;
the Moldavian depositary receipt - the security issued based on the share issued by the foreign issuer or the bond which grants the right to the dividends and any other payments made by the foreign issuer according to these shares and bonds and also other related rights;
the family relations - the relations of person with persons having one of the following statuses:
a) spouses/spouse of person;
b) the own or nonnative child who is dependent on person;
c) any other relative of person who lives in one housing with it within, at least, one year;
restructuring of issue (issues) of securities - change of number of shares, and/or the nominal (established) value of all securities of certain class, and/or the size of the authorized capital which, depending on circumstances, can be followed by consolidation, crushing or converting of securities of the corresponding class;
the location of investment society - the place where persons which are really managing investment society regularly perform the powers. The location of investment society legal entity of the Republic of Moldova shall be located in the territory of the Republic of Moldova and shall be specified in the charter of investment society;
multilateral trade system (further - MTC) - the multilateral system operated by investment society or the operator of the market which provides data, according to its not discretionary rules, the numerous orders received from the third parties about purchase and sale of financial instruments;
society of trust management of investments - the investment society having the license of category B or C which activities consist in rendering specialized services in asset management based on the agreement according to provisions of this law and regulations of the National commission;
investment society - the legal entity whose activities consist in rendering investment services and/or in implementation of investing activities on professional basis;
investment research - studying, the analysis or information stated in other form, the containing accurate recommendations or offers on investment strategy for one or several financial instruments or issuers of financial instruments, including any opinion on cost or on the present or future price of these tools or on issuers which are intended for distribution by various methods, including through mass media, electronic resources or the public provided that they:
a) are called or described as investment research or similar terms or are provided as objective or independent explanation of contents of the recommendation;
b) are not investment consulting;
capital securities - shares and another similar it securities, and also any other type of securities which can be converted into shares or which grant the right to share purchase of the same issuer;
the personal transaction - the transaction with financial instruments made directly or indirectly by relevant person, answering to at least one of the following conditions:
1) actions of relevant person are not part of actions which are performed by it within activities of investment society or the authorized agent;
2) the transaction is made for the account:
a) this relevant person;
b) any person with whom this relevant person consists in the family relations or with which it has close ties;
c) person with whom this relevant person consists in such relations owing to which relevant person has direct or indirect interest in result of the transaction in addition to the collection or the commission levied for transaction;
principal trading - transactions with financial instruments at own expense;
investment share - the dematerializovanny equity financial instruments in the form of records on accounts issued by investment fund which confirm the owner's right to part of assets of the relevant fund and which acquisition is the only way of investment into investment fund;
usufruct on securities - right to use by one person (usufructuary) the determined or determined period of time the securities belonging on the property right to other person (the nominal owner) and uses of the rights granted by these securities except for the rights to alienate them. The procedure for establishment of usufruct on securities, its registration and exception of the register of owners of securities is determined by regulations of the National commission;
the securities which are not capital - bonds and other types of debt securities, and also any other type of securities which can be converted or which grant the right to bond purchase and other types of debt securities of the same issuer; the securities issued continuously or repeatedly - the securities of one class issued continuously or at least than two separate tranches within one year;
the turned securities - the following types of securities:
a) shares and other values, equivalent to shares (further - shares);
b) bonds and other debt securities (further - bonds);
c) other negotsiiruyemy securities granting the right to acquire such securities by subscription or exchange.
(2) the National commission has the right on own initiative or upon the demand of the concerned party to publish decisions in the form of resolutions on assessment and qualification of person, organization, situation, information, transaction, financial instruments or legal acts.
(1) Shares and any other securities which can be converted or which grant the right to purchase or sale of shares can be issued only by joint-stock companies.
(2) Bonds and any other securities which can be converted or which grant the right to bond purchase can be issued by joint-stock companies, limited liability companies and bodies of local public authority.
(3) the Moldavian depositary receipts can be issued only by investment societies having the license of category C for investment societies.
(4) Issue of securities can be performed:
a) by means of public offer;
b) by means of the closed offer (the closed issue).
(5) Securities which shall become subject of public offer and/or to be admitted to trading in the controlled market or in MTC, except for government securities, are subject to registration by the National commission.
(6) Before registration of securities by the National commission according to part (5) the public offer of securities is forbidden.
(8) the Securities regulated by this Chapter can be issued only in national currency.
(9) Registration of securities is performed according to provisions of this law, Civil code of the Republic of Moldova No. 1107-XV of June 6, 2002 and the Join-stock companies law No. 1134-XIII of April 2, 1997.
a) discrepancy of information containing in the submitted documents, procedure for their acceptance to legislation provisions;
b) availability in the submitted documents of information specifying that conditions of release and security circulation contradict legislation provisions, and also availability of false or unreliable information;
c) not remedial action, the submitted documents revealed in.
(1) the Issuers determined in part (2) Articles 7, have the right to issue:
b) unsecured bonds - the bonds which are not providing the providing forms listed in Item and).
(2) Unsecured bonds can be issued if they grant the right to converting in the share or if the issuer answers all following conditions:
a) owns equity of more than 1 million lei;
b) performs activities within at least than three years, at the same time within the last two years - with receipt of net profit; in case of commercial banks - performs activities within at least than one year and finished year with net profit;
c) within the last three years, and in case of commercial banks - for the last year about day of decision making about issue it was not brought to responsibility for violation of provisions of the legislation on disclosure of information and on the rights of owners of securities;
d) did not allow cases of non-execution or non-compliance with completion dates of the obligations to owners of earlier placed bonds, if necessary.
(The bond emission Cost, receivable percent and other expenses of the issuer connected with bond redemption cannot exceed 3):
a) 90 percent of cost of pledge of own property and/or property of the third parties - in case of the bonds provided with pledge of own property and/or property of the third parties;
b) sizes of the bank guarantee, the guarantee and/or insurance guarantee - in case of the bonds provided with the bank guarantee, the guarantee and/or insurance guarantee;
c) 90 percent of size of equity of the issuer - in case of unsecured bonds.
(4) Secured bonds grant to the owner all rights arising with respect thereto providing. The transfer of property on the secured bond to the new owner involves transfer of all rights following from this providing.
(5) the Bank guarantee used as form of providing bonds cannot be withdrawn or cancelled. The bank guarantee shall remain valid before execution by the issuer of all obligations on bond buyback. If the bank which provided the corresponding guarantee becomes insolvent, the issuer shall during no more than 15 working days from the date of the announcement of insolvency to take measures for replacement of guarantee.
(7) the Guarantee agreement shall contain also information on compliance of the guarantor to the requirements stated in this Article and the obligation of the guarantor not to alienate the property belonging to it before complete execution by the issuer of the obligations under the terms of loan.
(8) the National commission has the right to demand from the issuer of the conclusion of other guarantee agreement if the initial guarantor does not answer conditions of this law any more, or to demand replacement of form of providing.
(9) Market value of the pledged property serving ensuring bond emission is determined by the independent appraiser.
(10) During circulation period of bonds the established pledge cannot be excluded from the register of pledge.
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