The Romanian Competition Law was recently amended by the Emergency Government Ordinance no 75/2010 ("EGO 75/2010") which entered into force on 5 August 2010.

The main amendments brought by EGO 75/2010 which aim at further aligning Romanian competition rules with EU competition rules, are the following:

Economic concentrations – new provisions regarding notification of RCC

  • The 30-day deadline for the submission of notification has been abolished. A notification may be submitted at any moment prior to the implementation of the underlying documentation.
  • A notification may be submitted to the RCC even prior to the conclusion of the transaction agreement if (i) the entities involved are able to demonstrate their intention of good faith in concluding an agreement or (ii) if in case of public takeover bids the entities involved have publicly expressed their intention to make such an offer.
  • Obtaining clearance in simplified proceedings has been facilitated by introducing the possibility for the involved parties to initiate RCC pre-merger talks with the RCC at least 2 weeks prior to the date when they intend to submit a short form notification. Such premerger talks are hoped to speed up the review time for unproblematic concentrations (particularly where the parties have only negligible activities in Romania, don't overlap in their activities or where the concentration concerns the acquisition of sole control by the previously jointly controlling shareholder).

Dominant position

  • EGO 75/2010 introduces a rebuttable presumption of absence of dominance below a market share of 40% on the relevant market at the time the analysis is performed.

Suspension of a decision taken by the Romanian Competition Council ("RCC")

  • According to the new legal provisions, the Bucharest Court of Appeals may suspend the enforcement of a RCC decision only upon request, subject to the payment of a warranty amounting to 30% of the fine established in the decision that is contested. Decisions of the RCC may be appealed before the Bucharest Court of Appeals within 30 days from their communication.

Substitution of the individual exemption regime

  • The individual exemption regime is now based on self-assessment, the notification system has been abolished.
  • The legal regime of block exemptions has also been changed. The wording of EGO 75/2010 suggests that only EC's group exemptions will apply from now on. The RCC has meanwhile proceeded with abolishing internal group exemption regulations. It is assumed that the block exemption regulations of the European Commission will apply by analogy.

Agreements of low importance exempted from the prohibition established for anti-competition behavior

  • EGO 75/2010 enlarges the scope of application of the de minimis safe harbour for restrictive agreements by increasing the relevant market shares thresholds at the level established by the EU de minimis notice and eliminating maximum turnover requirements.

RCC inspections

  • The RCC is now officially empowered to carry out inspections at the request of the European Commission or of any other competition authority from an EU member state.

Fines

  • The RCC may apply fines ranging from RON 5,000 lei to RON 40,000, to local and central public authorities, for non-providing or providing inaccurate, incomplete or misleading information and/or documents. Prior to EGO 75/2010, only the private entities were subject to fines.
  • The penalty applicable for non-observance of the obligation to notify the RCC in case of an concentration prior to its implementation now ranges from 0.5% to 10% from the total turnover obtained in the previous financial year.
  • When a legal entity subject to an investigation expressly admits that it was in breach of the competition laws, it shall benefit from a reduction of the fine between 10% and 25%.
  • The RCC may finalise an investigation without applying a penalty in case the undertaking(s) subject to investigation commits in writing to observe the recommendations of the competition authority. Interim measures may also be taken in this respect.

Time limit for requesting damages

Natural and legal persons who incurred damages due to anti-competitive practices may claim damages within a maximum of 2 years from the date when the decision of the RCC became final and irrevocable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.