Romania: private practice perspective

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Competition Council is the enforcement authority for Romania. Read their profile.


General overview of the Romanian Competition Council

Scope and powers

The Romanian Competition Council (RCC or the Authority) started its activity on 6 September 1996, and it is the sole authority empowered with the enforcement in Romania of the competition rules laid out under Competition Law No. 21/1996 (the Competition Law) and under the Treaty on the Functioning of the European Union (TFEU).

The RCC is not responsible for the enforcement of consumer protection laws (as the prerogatives are attributed by national legislation to the National Authority for Consumer Protection), but the Authority has other specific powers concerning: (i) state aid; (ii) unfair competition (business-to-business unfair trading practices); (iii) the implementation of the P2B Regulation;[1] and (iv) compliance with the national and European Union provisions of the activities in the railway sector, and in the areas of the management of ports and waterways, the use of shipping facilities held in the public domain and the operation of shipping activities in ports and on inland waterways. Recently, the Authority has also been empowered with specific roles in the screening process of foreign direct investments (FDI)[2] and with the enforcement of the national law transposing the UTP Directive.[3] The RCC enjoys extensive competences and powers related to the above subject matters, yet its focal point is continuously based on competition-related aspects.

The RCC is independent and autonomous from both the Government and Parliament. The decisions passed by the RCC can be appealed only before the Bucharest Court of Appeal (as court of first jurisdiction), whose decision is in turn subject to appeal before the High Court of Cassation and Justice of Romania.

As per its annual report,[4] the RCC was involved in 221 competition court cases in the past year. With respect to the decisions passed by the relevant courts in 2022, the Authority’s success rate before the High Court of Cassation and Justice was 89 per cent (while the latter upheld 66 per cent of the total amount of fines imposed).

Recent developments

In 2022, the Authority launched 16 new investigations into possible infringements of competition law, 11 of which were initiated ex officio and five following complaints. Of the 16 investigations opened in 2022, most of them concern potential cartels, while only a few look into potential abuses of dominant position. However, this number is still below the activity level recorded by the Authority in the pre-pandemic period. In terms of geographical reach targeted by the investigations launched in 2022, 44 per cent of them concern possible infringements of national and EU competition law, while the remainder, representing 56 per cent of all investigations launched in 2022, concern possible infringements of national competition rules.

One of the most interesting investigations launched in the past year targets the way in which 10 of the major banks in Romania (Banca Transilvania, BCR, BRD – Groupe Société Générale, ING Bank, Raiffeisen Bank, CEC Bank, UniCredit Bank, OTP Bank România, EximBank and Intesa Sanpaolo Romania) cumulatively contribute to the computation of the ROBOR index (based on which rates are calculated for all loans with variable interest contracted before May 2019), suspecting an agreement between these banks to set the interest rate at the highest possible level.

Another very daring move of the Authority was to launch an investigation into “no-poach” agreements (practices by which undertakings agree not to contact, recruit or hire people that work or have worked for any of the undertakings involved). The RCC has launched, for the first time, an investigation into the potential anticompetitive behaviour of several undertakings on the market of specialised labour force in the field of motor vehicle production in Romania, namely Renault Technologie Roumanie, Alten Si-Techno Romania, Akka Romserv, Bertrandt Engineering Technologies Romania, Expleo Romania, Fev Ece Automotive and Segula Technologies Romania. The competition authority has ideas on a possible coordination of the behaviour of competing undertakings to share the market of skilled workforce in this niche of automotive engineering activities, which would enable them to coordinate salaries.

Cartels

During 2022, the RCC has sanctioned companies for diverse infringements of competition law. The most visible sanctions include the fines of around €3 million applied to three companies (Generali S.p.A. UK Branch, Generali Romania and Omniasig) and an insurance broker (Aon Romania) for anticompetitive agreements on the Romanian aviation insurance market. The Authority has established that the involved undertakings had concluded a cooperation agreement that targeted the Romanian aviation insurance market for large clients, whereby they had split the larger clients into four tenders organised by them (Romatsa, National Bucharest Airport Company and Romaero) and had eliminated the competition between them. The companies have admitted the infringement and thus benefited from a reduction of fines.

Another significant fine was that of overall €26 million applied to 65 companies and one professional association that allegedly participated in an anticompetitive agreement on the Romanian vehicle maintenance and repair services market. Most of the sanctioned companies were members of the Dacia, Renault and Nissan Dealers Association (ACODAREN). The infringers were found to have coordinated their commercial behaviour, via ACODAREN, by setting, among other things, a fixed level of prices for spare parts and labour charges used in their negotiations with certain insurance companies. The investigation showed that the actions were supported, consolidated and amplified by the behaviour and actions of Renault Commercial Roumanie, RCI Broker de Asigurare and some of the largest insurance companies on the Romanian market.

Vertical restraints

At the end of 2022, the RCC completed an investigation into possible anticompetitive practices in the market for the distribution of new, medium and heavy Renault trucks. The analysis found that Volvo Romania (formerly Renault Trucks Romania) and the distributors in its selective truck distribution network had anticompetitive agreements between 2005 and 2014. These agreements consisted in restricting the territory in which the distributors could sell the contract goods. Volvo Romania and the dealers in its selective distribution network thus agreed on the territory in which they could resell new, medium and heavy Renault trucks and agreed not to sell these trucks outside Romania.

Mergers

In 2022, the RCC analysed no less than 94 transactions subject to merger control, representing a record high in the past 16 years. Some of the most important merger clearance decisions are in the medical sector, such as the clearance of acquisitions carried out by Medlife, one of the most important medical service providers, of several medical clinics across the country, the transaction whereby the Belgian company Ceres Pharma acquired a majority stake in the largest Romanian food supplement producer, Dacia Plant, or the takeover by Turkish Memorial Group of Monza Oncology Clinic from Policlinico di Monza Group. Other key clearance decisions were passed in the energy sector, where the Authority approved 10 joint ventures established by Complexul Energetic Oltenia and selected private partners OMV Petrom, Tinmar Energy and Alro for the operation of photovoltaic and CCGT plants, as well as the banking sector, where Banca Transilvania received the green light from the Authority to acquire control over major leasing company Tiriac Leasing IFN.

State aid

During 2022, the RCC advised on measures related to the National Recovery and Resilience Plan (NRRP) and the 2021–2027 multiannual financial framework, as well as on other state aid proposed in the unstable economic context as a result of the covid-19 pandemic and the war between Russia and Ukraine.

State aid cases authorised by the European Commission (EC) can be classified according to the purpose and context in which they are granted. Thus, in 2022, the European Commission approved a number of state aid measures for Romania, which consisted, among others, of individual aid for restructuring of state-owned companies, aid schemes to support the green transition, aid schemes to overcome the economic crisis generated by the covid-19 pandemic, as well as aid schemes to support the economy in the context of Russia’s aggression against Ukraine. The following is a brief presentation of the most notable state aid cases in Romania, finalised by an authorisation decision issued by the EC in the past year.

In January 2022, the restructuring aid of up to €2.7 billion in favour of Complex Energetic Oltenia was formally approved by the European Commission, after a complex in-depth investigation. The Commission initially expressed its doubts about the compatibility of the restructuring aid with the internal market. In this context, the restructuring plan was revised and the amendments were subsequently accepted by the Commission, covering the transition from coal-fired power generation to energy from natural gas and renewable energy sources, the closure of coal-fired power plants and mining operations, the attraction of private investors for investments in alternative energy production by setting up SPVs for this purpose.

To support the clean energy transition, the EC approved two major Romanian state aid schemes made available through the Recovery and Resilience Facility.[5] First, in August 2022, the Commission approved €149 million Romanian scheme to support renewable hydrogen production, aimed at contributing to the development of renewable hydrogen, in line with the objectives of the EU Hydrogen Strategy[6] and the EU Green Deal,[7] as well as with the objectives of the REPowerEU Plan[8] to reduce dependence on Russian fossil fuels and fast forward the green transition. Second, in September 2022, the EC approved a €390 million Romanian scheme to support the production of electricity and heat from high-efficient cogeneration installations connected to district heating networks in Romania, also contributing to the EU's strategic objectives relating to the EU Green Deal.

Sector inquiries

The RCC was very active in the past year in the field of sector inquiries. This instrument allows the Authority to get valuable insights into the competitive problems of a given market and, if necessary, to move on to launching an investigation into potential infringements on the respective market. Some key sectors that are under its scrutiny include the pharma retail market and copyright market. It is also worth mentioning that RCC surprisingly fined major food retailer Mega Image some €2 million for reporting inaccurate average acquisition and sale prices for basic goods such as sunflower oil, as part of a survey. The fine has to been appealed in court, as Mega Image argued that it was requested to provide a huge amount of data, which it offered in good faith and, anyways, was not aimed at end-users.

Legislative framework

In 2022, the RCC has been highly involved in the enactment of the new FDI (foreign direct investment) regulatory framework in Romania. As per GEO No. 46/2022 on measures for applying EU Regulation 2019/452 establishing a framework for the screening of foreign direct investment into the Union and amending Competition Law No. 21/1996 (FDI Ordinance), the new FDI framework in Romania was introduced in April 2022 and was followed by the enactment of secondary FDI rules on the organisation and functioning of the FDI Screening Commission in November 2022. This framework has suffered some amendments that can pose serious inconveniences to foreign investors because of the obligation to preapprove any investment falling under the scope of the FDI Ordinance, which basically covers all investments carried out by both non-EU and, in some circumstances, EU investors, as long as the investment is new and, in principle, exceeds a de minimis value of €2 million. However, the practical application of FDI rules still poses some difficulty to M&A and competition lawyers alike, due to several loopholes in the legislation, which should be solved by future statutory amendments.

Another novelty concerns major changes to the legal framework of unfair competition rules in Romania. On 16 June 2022, the Romanian government adopted significant amendments to Law No. 11/1991 on unfair competition (Unfair Competition Law).[9] These cover, among others, the inclusion under the scope of unfair competition practices of the abuse of superior bargaining position. Abusive behaviour that falls under the Unfair Competition Law could consist in a conduct such as: (i) the unjustified refusal to supply or purchase goods or services; (ii) the failure to comply with contractual clauses regarding payment, supply or purchase; (iii) the imposition of unjustifiably burdensome or discriminatory conditions relative to the scope of the agreement; or (iv) the amendment or termination in an unjustified manner of a business relationship.

On 12 April 2022, the UTP Directive was transposed in Romania by virtue of UTP Law,[10] which is aimed at eliminating the risk of potentially abusive behaviour of large companies in business relationships with significantly smaller partners active in the agricultural and/or food supply chain, based on their superior bargaining position. The RCC is the designated enforcement authority for the UTP law, while the monitoring authority is the Ministry of Agriculture and Rural Development. In the enforcement of the UTP Law, the RCC uses its standard powers to initiate in-depth investigations, such as conducting dawn raids, receiving complaints, issuing fines or imposing interim measures. In 2023, secondary legislation on the procedure for handling complaints in relation to unfair business-to-business commercial practices in the agricultural and food supply chain have been endorsed.[11]

The year ahead

A number of investigations into possible competition law infringements in areas of high importance are expected to be completed during 2023, as per the public announcements made by the RCC. For example, one of them concerns the electricity sector and examines possible abusive behaviour of two companies in the electricity distribution market in the geographical areas for which they hold an exclusive distribution licence. Another investigation, also to be potentially completed in 2023, concerns possible price-fixing arrangements for household appliances and information and communication technology products. Other important investigations are in key areas such as cement production.

In this context, horizontal agreements continue to account for the largest share of all infringement investigations, signalling that this type of practice remains under the RCC’s constant scrutiny. Nevertheless, there are clear indications that abuse of dominance cases have become an important focus for the RCC in recent years and companies with a significant market share need to be particularly cautious about how they conduct their business from a competition law compliance perspective. The recent activity of the Authority reveals that it monitors and investigates a wide range of potentially anticompetitive behaviours (price fixing, bid rigging, exchanges of sensitive information, potential abuses of dominant position and, as a novelty, no-poach agreements).

The RCC representatives have, on numerous occasions, expressed interest in certain sectors that are essential for consumers and the economy (such as energy markets or the distribution of health products and services), without, however, excluding that other areas of activity also be subject to the control or at least the monitoring by the Authority. RCC is paying close attention to concentrated markets, where relatively few players are active, but also to other sectors of activity of particular significance to consumers (pharma, food, online intermediation platforms, fuels, construction materials etc).

The RCC also expects a lot of activity in the field of state aid, partially due to the crisis generated by the war in Ukraine, but most importantly due to the pressure to ensure absorption of the EU funds Romania has at its disposal. Cases of major importance for Romania, such as Complexul Energetic Hunedoara, Tarom restructuring and CFR Marfa, which are now under examination by the European Commission, are expected to be completed. At the same time, a significant number of support measures will need to be assessed in the context of the NRRP, including the new REPowerEU chapter subject to approval by the Commission, as well as the Modernisation Fund,[12] notably in the energy sector. Furthermore, the RCC will continue to provide technical assistance for setting up state aid schemes for the implementation of the operational programmes for 2021–2027. As a result of the war in Ukraine with many businesses looking to relocate in Romania and the energy crisis at EU level, the Authority will also be dealing with new complex cases such as: individual regional aid cases for large investment projects, investments in nuclear energy, major investments in the production of renewable energy, energy storage and decarbonisation of industrial processes, investments in the production of strategic net-zero technologies, contracts for difference, mine closure plan amendment etc.

In 2023, the RCC continues to be heavily involved in the regulatory approval process of public policies or normative acts, as well as in the co-initiation of draft legislation, working closely with ministries and public authorities to ensure a pro-competitive and fair regulatory framework. Following the sky-high food price increases, the Authority initiated discussions with major commercial networks, which agreed to participate in the voluntary agreement between retailers and processors for the reduction of fresh milk price, effective for a period of six months from 1 May 2023. At the same time, the RCC shed some light on the way sale and purchase agreements should take place in the agricultural and food supply chain following the adoption of GEO No. 67/2023 establishing a temporary measure to combat excessive price increases for certain agricultural and food products (GEO 67/2023), effective for three months starting with 30 July 2023, so as to ensure that competition risks are minimised. In particular, as GEO 67/2023 sets a maximum cumulative mark-up on the overall distribution chain (ie, a maximum of 5 per cent of the purchase price plus operating costs), irrespective of the number of distributors, the Authority pointed out that distributors must not pass on information on their own purchase prices or mark-ups (percentage or absolute value), and that the only information that a distributor can pass on to another distributor is the maximum mark-up (expressed in absolute value) that the latter may apply, determined within the limits of the ordinance. However, market players are free to apply mark-ups lower than the maximum mark-up imposed by suppliers. The Authority has also expressed its view in relation to GD No. 298/2023 establishing maximum premium tariffs charged by vehicle insurance providers.


Notes

[1] Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (the P2B Regulation).

[2] Pursuant to Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union.

[3] Law No. 81/2022 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain, which transposes the provisions of Directive (EU) 2019/633 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain.

[4] Available online at: www.consiliulconcurentei.ro/wp-content/uploads/2023/05/Raport-anual-2022.pdf.

[5] More information can be accessed at: https://commission.europa.eu/business-economy-euro/economic-recovery/recovery-and-resilience-facility_en.

[6] Communication from the Commission — A hydrogen strategy for a climate-neutral Europe (COM/2020/301 final).

[7] Communication from the Commission — The European Green Deal (COM/2019/640 final).

[8] Communication from the Commission — REPowerEU Plan (COM/2022/230 final).

[9] By virtue of GEO No. 84/2022 on combating speculative actions and amending and supplementing certain normative acts.

[10] Law No. 81/2022 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain.

[11] GD No. 198/2023 approving the Regulation on the procedure for registration, investigation and settlement of complaints concerning unfair business-to-business commercial practices in the agricultural and food supply chain, as well as the RCC’s guidelines and clarifications on the interpretation and application of Law No. 81/2022 on unfair business-to-business commercial practices in the agricultural and food supply chain and the Regulation of 2023 on the procedure for registration, investigation and settlement of complaints concerning unfair business-to-business commercial practices in the agricultural and food supply chain, available at: www.consiliulconcurentei.ro/indrumari-si-clarificari-referitoare-la-interpretarea-si-aplicarea-dispozitiilor-legii-nr-81-2022-privind-practicile-comerciale-neloiale-dintre-intreprinderi-in-cadrul-lantului-de-aprovizionare-agric/.

[12] The Modernisation Fund is a programme from the EU to support 10 Member States to meet 2030 energy targets by helping to modernise energy systems and improve energy efficiency. More information can be accessed at: https://modernisationfund.eu/.

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