In brief
- The Ministry of Finance has repealed the 2008 technical rules that set out, through a published formula, how much a company pays into the risk fund for a state guarantee.
- The level of the commission will from now on be set case by case, on the basis of an opinion from EXIM Banca Românească about market conditions, and approved by the Minister of Finance through an internal note.
- Guarantees already granted are not recalculated: the commission stays at the level set when the guarantee was issued.
Published: Official Gazette of Romania (Monitorul Oficial) no. 702 of 25 August 2026
In force from: 25 August 2026
A company that wants the state to guarantee its loan can no longer work out for itself, from a published formula, how much it will pay for that guarantee: from now on the price is negotiated inside a memorandum, on the basis of a bank opinion about market conditions. Order of the Minister of Finance no. 1.105/2026, published in Official Gazette of Romania no. 702 of 25 August 2026, rewrites two points of the state guarantee procedure and repeals the technical rules that had been in force since 2008. It is the second move by the Ministry of Finance on guarantees in recent months, after the 200 million euro InvestEU contribution agreement for guarantees aimed at small and medium-sized enterprises.
The risk fund commission is the amount paid to the state by the economic operator for which the state signs the guarantee letter. The risk fund covers the situation in which the company can no longer pay and the state, as guarantor, has to settle the debt in its place.
The procedure being amended is the one in Annex no. 1 to Order of the Minister of Public Finance no. 138/2009, published in Official Gazette of Romania no. 62 of 2 February 2009. It describes the steps that lead from a company’s application to a state guarantee approved by law.
What it changes in practice
The first effect is a new requirement in the risk analysis. Point 3 of the procedure adds the obligation for the analysis carried out by EXIM Banca Românească to also include an opinion on the level of the risk commission, one that reflects the applicable market conditions and the methodological considerations used.
The second effect is that the decision moves into the memorandum. The document submitted for approval to the Government and to the President of Romania now includes the proposed level of the risk fund commission, set by the Ministry of Finance on the basis of the conclusions of the risk analysis.
The third effect is the way the level is approved. The specialist directorate submits the level of the risk fund commission to the Minister of Finance for approval, through an internal note. No normative act publishing the amount or the formula appears any longer.
The fourth effect concerns the negotiation. The Ministry of Finance examines the structure of the financing, the contractual documentation, meaning the loan agreement and the guarantee letter, as well as the financial terms, maturity, interest and grace period, and takes part in the negotiation alongside the borrower.
The fifth effect concerns State aid. Point 5, rewritten, requires the specialist directorate to assess whether the guarantee falls under the State aid rules, then to submit the measure to the European Commission for consultation, through the Competition Council.
The sixth effect is the content of the notification. If matters reach the notification stage, it has to include, alongside the draft law approving the guarantee, information about the investment project, about the beneficiary operator, the terms of the loan, amount, repayment period, interest and associated costs, plus the level of the risk fund commission.
The seventh effect is a non-retroactivity clause. The commission on guarantees granted before the order entered into force stays at the level set at that time, whether the loan comes from commercial banks, from international financial institutions or under bilateral agreements.
The eighth effect is institutional. The activities assigned to EXIM Banca Românească are carried out by it until they are taken over by Banca de Investiții și Dezvoltare, under the terms of Law no. 96/2000.
What has changed compared with the previous situation
The most important change is the disappearance of the public formula. Order of the Minister of Economy and Finance no. 1.603/2008, published in Official Gazette of Romania no. 413 of 2 June 2008, approved technical rules that set the amount of the commission through a calculation with variables.
A comparison with the 2008 text shows how detailed that calculation was. The score rose in steps according to the value of the loan, from 2.5 points for amounts below the equivalent of 50 million euro to 10 points for amounts above 150 million. A second score, also running from 2.5 to 10, tracked the repayment period, from under 5 years to over 15 years.
The rules also provided for a correction index of between 0 and 0.40%, applied upwards or downwards depending on the importance of the investment project, on the weight of the loan in the beneficiary’s credit portfolio and on the way earlier loans had been serviced.
The supporting documents were listed as well: the opinion of the export-import bank stating the beneficiary’s financial performance class, an internal note on the recovery rate of the government public debt service, the loan agreement and any other relevant documents. The amount was approved by the coordinating state secretary.
All of this is repealed. What is left in its place is a single procedural sentence: the EXIM opinion about market conditions, the Ministry of Finance proposal in the memorandum and the minister’s approval through an internal note.
The second change is the explicit appearance of the State aid filter. Point 5 already spoke about notification, but the assessment of whether the State aid rules apply is now the first step, and the consultation of the European Commission goes expressly through the Competition Council.
The third change is the name of the institution. The text uses EXIM Banca Românească, not the old export-import bank name from the 2008 rules, and announces the takeover of its tasks by Banca de Investiții și Dezvoltare.
What does not change is the underlying architecture. A state guarantee is still granted by a law, preceded by a memorandum approved by the Government and by the President of Romania.
Advantages and disadvantages
What it improves
- The commission can reflect real market conditions instead of a fixed score set almost two decades ago.
- The bank’s risk analysis has to explain the methodology used, so the proposal cannot be a figure without justification.
- Checking the State aid rules becomes a mandatory and explicit step, ahead of any notification to the European Commission.
- The notification has to set out all the terms of the loan and of the guarantee, including the commission, so the file reaches Brussels complete.
- Guarantees already running are not recalculated, so companies that are paying a commission already are unaffected.
What remains a problem
- A company can no longer estimate the cost of the guarantee on its own before entering the procedure, because the published formula is gone.
- The level of the commission is approved through an internal note, a document that is not published.
- The criteria that lead to one figure rather than another are no longer written down in any normative act.
- The opinion about market conditions comes from a single institution, with no second assessment provided for in the procedure.
- The text sets out no way of challenging the level established for the commission.
- The transfer of tasks from EXIM Banca Românească to Banca de Investiții și Dezvoltare has no stated deadline.
Practical advice
- If you are preparing a project financed with a state guarantee, stop using the scale in the 2008 technical rules to estimate costs. It was repealed on 25 August 2026.
- Ask EXIM Banca Românească for the risk analysis in good time. It now has to contain the opinion on the level of the commission as well, and without it the memorandum cannot be completed.
- Prepare the investment documentation in detail. The notification to the European Commission calls for information about the project, about the company and about every term of the loan.
- If you already have a state guarantee running, check that you are not being asked to recalculate the commission. The order says expressly that it stays at the level set initially.
- Budget for the time as well, not just the money. Consultation with representatives of the European Commission goes through the Competition Council and can add months to the project timetable.
- Keep an eye on the moment when Banca de Investiții și Dezvoltare takes over the tasks. Until then, your counterpart remains EXIM Banca Românească.
Frequently asked questions
What is the risk fund commission?
How much will a state guarantee cost now?
Will the commission change on a guarantee already granted?
What exactly has been repealed?
Does the European Commission have to be notified for every guarantee?
Who ultimately approves the guarantee?
What happens to EXIM Banca Românească?
Errors and inconsistencies in the published text
- The title does not cover everything the order does. The act is called „pentru modificarea anexei nr. 1 la Ordinul ministrului finanțelor publice nr. 138/2009”, amending Annex no. 1 to Order of the Minister of Public Finance no. 138/2009, but its operative part goes a good deal further: Article IV repeals another act in its entirety, Order of the Minister of Economy and Finance no. 1.603/2008, Article II lays down a transitional rule for guarantees already running, and Article V moves the powers of a bank into the future. Anyone searching the Official Gazette of Romania for the act that abolished the 2008 technical rules will not find it by its title.
- The repeal is wider than the replacement. Article IV strikes out technical rules which, according to their own title reproduced in the same place, covered two categories: state guaranteed loans and „împrumuturile contractate direct de stat și subîmprumutate beneficiarilor finali”, loans contracted directly by the state and on-lent to final beneficiaries. The new text, however, amends only the state guarantee procedure in Annex no. 1 to Order no. 138/2009. For sub-loans, after 25 August 2026 there is no rule at all for setting the risk fund commission, and Article II does not mention even those already running.
- The saving clause in Article II is narrower than what has been repealed. It protects the commission previously set only for „operatorii economici”, economic operators, that borrowed from commercial banks, from international financial institutions or under bilateral agreements. The 2008 rules referred to „persoane juridice”, legal persons, and to „instituțiile creditoare”, the lending institutions, which are broader categories. A beneficiary of a state guarantee that is not an economic operator, or whose lender does not fall into one of the three types listed, is left without an express rule.
- A condition with no alternative, at point 3. The second paragraph of the rewritten point begins with „În cazul garanțiilor acordate de stat, analiza de risc a EXIM Banca Românească va cuprinde și o opinie cu privire la nivelul comisionului de risc”, in the case of guarantees granted by the state, the risk analysis of EXIM Banca Românească is also to contain an opinion on the level of the risk commission. Annex no. 1 to Order no. 138/2009 governs nothing but the contracting of government public debt through the issuing of state guarantees, so the condition introduces a distinction whose other branch does not exist. There is no way of telling whether the opinion is required in every risk analysis under the procedure or only in some of them.
Editorial analysis
The reason for the change becomes visible if you look at what has been repealed. The 2008 rules set the commission through a scoring system with thresholds fixed in euro, 50 and 150 million, and in years of repayment, under 5 and over 15, corrected by an index between 0 and 0.40%. A grid that does not move with the market gives, after almost two decades, the wrong price in both directions, and when it is too low the gap against the market price becomes exactly what the rewritten point 5 now puts first in the procedure: a possible state aid measure. Moving to a case by case assessment anchored in „condițiile de piață aplicabile”, the applicable market conditions, is consistent with the test the European Commission applies to public guarantees in any event.
Except that what replaces the grid is not a methodology but a chain of approvals. The order says who issues the opinion, who proposes the level and who approves it, but says nothing about what the opinion has to contain, what factors are weighed and within what range the result may fall. The phrase „considerentele metodologice utilizate”, the methodological considerations used, presupposes a methodology that is neither approved, nor published, nor even named. What was public in 2008, namely what counts and how much it weighs, becomes the content of a bank document with no publicity regime at all, and the resulting level is approved by internal note, the least visible administrative instrument there is.
The contrast hardest to justify is the one between the recipients of the figure. The rewritten point 5 requires the notification to the European Commission to contain „nivelul comisionului la fondul de risc care urmează să fie plătit de către operatorul economic statului”, the level of the risk fund commission to be paid to the state by the economic operator, alongside the amount of the loan, the repayment period, the interest and the associated costs. The price of the guarantee therefore reaches Brussels in the file, while in Romania it stays in an internal note, even though the guarantee itself is granted by a law, that is, by a vote of Parliament. There is also a problem with the order of operations: point 3 requires the memorandum submitted to the Government and to the President to include the proposed level of the commission and, in the very next sentence, requires that level to be approved by the minister through an internal note, without saying which of the two comes first and what happens if they do not match.
What should be changed
- The level of the commission, published together with the law approving the guarantee. The bill or its explanatory memorandum ought to carry the approved percentage and the basis of calculation. In practice, the figure that reaches the European Commission through the notification in any event would also reach the member of parliament voting on the law and the reader of the Official Gazette of Romania.
- A published framework methodology, even without a fixed grid. The ministry could approve and publish the list of factors the EXIM opinion weighs, the financial performance class, the maturity, the collateral, the recovery rate, plus the maximum range within which the commission may fall. In practice, a company could estimate the cost of the guarantee before entering a procedure that ends in a law.
- The order of the approvals, fixed expressly in point 3. The internal note by which the minister approves the level ought to come before the memorandum, and any later change to the level ought to require a return to the Government. In practice, the Government and the President would give their agreement in principle to a guarantee whose price is already set rather than still to be set.
- A rule for sub-loans. The order ought to say which act determines, after the repeal of the 2008 rules, the risk fund commission for loans contracted directly by the state and on-lent to final beneficiaries. In practice, a final beneficiary would know on what basis the sum it pays from 25 August 2026 is calculated.
- A point in time for the takeover by Banca de Investiții și Dezvoltare. Article V ought to name the event from which the transfer operates and the fate of the analyses under way at that moment. In practice, an applicant whose file has already started would know who completes its risk analysis and whether an opinion already issued stays valid.
Original text of the legal act
The text below is reproduced in Romanian, the official form of publication.
The full text, as published in the Official Gazette of Romania
Official Gazette of Romania no. 702 of 25 August 2026 16 pages PDF, 159 KB the act starts on page 15
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This article is for informational purposes only and does not constitute legal advice. For specific situations, consult a licensed attorney or tax advisor.