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Competition Act No. 21/1996 1 (the Competition Act) establishes the primary rules on antitrust policy and merger control, while the secondary legislation facilitates the implementation of the competition rules. The legal framework for antitrust consists of article 5 of the Competition Act on anticompetitive practices and article 6 governing abuse of dominance, which mirror article 101 of the Treaty on the Functioning of the European Union (TFEU) and article 102 TFEU.
Regarding anticompetitive practices, article 5 of the Competition Act prohibits all agreements, concerted practices and decisions of associations of undertakings that have as their object or effect the prevention, restriction or distortion of competition. Among the anticompetitive practices, as set out in article 7 paragraph 4 of the Competition Act, price fixing, production or sales limitations and market or client allocation practices between competitors are included within the hardcore restrictions category.
The Competition Act also provides a de minimis exemption, according to which potential anticompetitive agreements fall out of the scope of antitrust regulations if the aggregate market share held by the parties to the agreement is below 10 per cent (when the parties are competitors) or below 15 per cent (when the parties are not competitors). However, the de minimis exemption is not available for hardcore restrictions, which are subject to stricter enforcement action.
Our national competition authority in charge of enforcing the competition policy is the Romanian Competition Council (RCC). The RCC has supplemented the set of secondary legislation by issuing a series of specific guides, such as joint bidding guidelines 2 and guidelines on the competition law compliance programme. 3
The RCC can sanction anticompetitive practices with fines ranging from 0.5 to 10 per cent of the turnover achieved in the year before the sanctioning decision. In practice, from public information, the RCC has applied fines ranging from:
- 4 to 6 per cent for cartels and abuses of dominant position; 4 and
- 2 to 4 per cent for vertical agreements.
It is worth mentioning that unlike under European legislation, under Romanian competition regulations there is no settlement procedure. Nonetheless, under Romanian law the commitments procedure may enable the investigated parties to avoid sanctioning and the recognition procedure may lead to fine reductions.
Under the commitments procedure, the investigated parties, without acknowledging the anticompetitive deeds, may propose remedies in order to eliminate RCC’s competition concerns. If RCC considers that the remedies are sufficient enough to remove its competition concerns, it will issue a commitment acceptance decision through which it closes the investigation without sanctions. Further on, the parties must implement the accepted remedies. If not, the RCC may fine the parties for non-compliance, but it may also reopen the investigation.
Under the recognition procedure, which implies acknowledgement of the alleged anticompetitive deeds, the parties may benefit from fine reductions of between 10 and 30 per cent. Also, additional reductions have been applied by the RCC for mitigating circumstances such as:
- extremely reduced participation to the anticompetitive practice;
- turnover achieved through the infringement representing less than 20 per cent of the total turnover; and
- effective implementation of a competition compliance programme.
As regards merger control, under the Competition Act, any economic concentrations that exceed the legal turnover thresholds (ie, the aggregate turnover of the involved parties is more than €10 million and each of at least two involved parties have obtained a turnover exceeding €4 million in Romania in the year preceding the merger) must seek the RCC’s approval before implementation. There are two types of procedures, complete and simplified, when the transaction does not raise competition concerns. It takes around two months from the date when the notification becomes effective for RCC to issue a clearance decision under the simplified procedure. Under the complete procedure, the term for issuing a clearance decision may be slighter higher (around two to three months).
Besides the sanctioning and merger control activity, the RCC is also focused on market monitoring. According to article 25(g) of the Competition Act, the RCC can realise sectorial inquiries in different economic sectors when there are factors that may indicate a distortion of competition. The sectorial inquiry is finalised with a report in which the RCC identifies issues from a competition perspective and eventually recommends measures to address competition concerns. Over time, the RCC has analysed different economic sectors and issued reports and recommendations regarding food retail, the fuel sector, the pharmaceutical market, the grains market, the wood processing market and others.
In 2018, the RCC had intense activity in all competition fields: antitrust enforcement, sectorial inquires and merger control. 5 Most of the new investigations launched concern potential cartels and abuses of dominant position. The investigations launched by the RCC concern diverse sensitive industries and potential anticompetitive deeds such as the production and commercialisation of electrical energy (potential abuse of dominant position); 6 the production of human immunoglobulin (potential horizontal agreement); 7 and the cement industry (potential price fixing and market allocation agreements). 8
It is worth mentioning that the RCC has started to reinforce its cooperation with foreign competition authorities. For instance, as the investigation regarding the immunoglobulin market has an international dimension, the RCC has conducted dawn raids in Belgium and Italy.
One-third of the investigations closed in 2018 concerned cartels and most were finalised with the sanctioning of the parties involved (ie, 80 per cent). The fines applied by the RCC in 2018 amount to €93 million, the highest amount of fines applied by the RCC since 2011.
The RCC has continued to promote the benefits of recognition procedures and leniency procedures leading to partial or total immunity. In 2018, almost 40 per cent of the companies involved in anticompetitive practices decided to recognise the deed and their fines were consequently reduced. In addition, almost 20 per cent of the cases finalised in 2018 involved companies that have applied to the leniency programme.
The whistle-blower platform – an online tool that enables any person to signal potential anticompetitive deeds – has also been subject to intense promotion from the RCC. As a result, during 2018, 51 messages signalling potential anticompetitive practices in diverse industries such as insurance, spare parts and electrical energy were received via this platform. In 2018, the RCC launched an investigation on the market for personal protective equipment following a message received via the whistle-blower platform. In addition, the RCC finalised its first investigation launched through the platform (the cartel on the tourism services market, detailed below).
Recent institutional and legislative developments
In 2018, there were no major changes regarding competition legislation. Nonetheless, a part of the secondary legislation has been amended. The main changes brought were to the following instructions.
Instructions regarding the conditions, terms and procedure for acceptance and assessment of commitments in case of anticompetitive practices
The main amendment concerns the maximum duration of the commitments procedure from the moment the parties are informed by the RCC of its availability to initiate discussions regarding potential commitments until the actual decision is issued by the RCC. Such period has passed from 6 months to 12 months currently. The other amendments are mainly formal ones aiming at updating articles that refer to provisions of the Competition Act and clarifying certain provisions.
Instructions regarding the individualisation of sanctions for anticompetitive practices– merger case related sanctions and recognition procedure
By considering accounting regulations and the RCC’s practice, the instructions now provide that the level of the fine in merger-related cases is calculated by taking into consideration the net turnover generated by the sanctioned company in the year prior to the sanctioning decision. Following last year’s amendments brought by the Emergency Ordinance no 39/2017, 11 the amended instructions also provide that when non-resident companies implement a transaction before notifying it to the RCC or before the RCC gives its clearance, or if the RCC considers that the economic concentration affects competition but the parties implement the concentration anyway, the fines are applied to the total amount of the following:
- turnover achieved by the companies active in Romania and controlled by the infringer;
- revenues achieved in Romania by all non-resident companies controlled by the infringer; and
- revenues obtained by the infringer in Romania.
Other amendments aim at clarifying and optimising the recognition procedure. For instance, when RCC sent a company a request regarding potential recognition of the anticompetitive deed, the parties had a term of 15 days to respond at this request. Under the amended version of the instructions, the initial 15-day term may be prolonged once for another 15 days.
One of the RCC’s main focuses is on cartels, whether comprising price-fixing or market allocation.
During the past two years, the RCC has launched several investigations regarding potential horizontal agreements, switching the trend of investigating mainly potential anticompetitive vertical agreements. In 2018, the new investigations concerned key sectors such as the commercialisation of electrical energy and the production of human immunoglobulin.
Also, as in the previous years, the RCC continues to actively detect potential bid-rigging schemes. In 2018, the RCC launched several new investigation regarding potential bid-rigging schemes in various sectors such as the acquisition of dairy products and of fruits (apples) organised by a public authority, the acquisition of street upgrading works 12 and the acquisition of infrastructure works for natural gas transportation and maintenance works.
With respect to its sanctioning activity, the RCC sanctioned nine insurance companies and the National Union of Insurance and Reinsurance Companies of Romania fines amounting to approximatively €53 million for coordinating behaviour on the market by exchanging sensitive commercial information aimed at increasing the tariffs for mandatory civil liability insurance 13 – the biggest fine applied by the RCC in 2018. This concerted practice was facilitated by the National Union of Insurance and Reinsurance Companies of Romania. One of the companies applied for the leniency programme and has provided valuable evidence to the RCC, and so benefited from a fine reduction.
In addition, the RCC sanctioned 13 tourism agencies and the National Association of Tourism agency for coordinating behaviour on the market of tourism products through travel agencies. 14 The companies coordinated their commercial policies based on an exchange of sensitive information. The aim was to not allow the prices of traded products and tourist packages to decrease.
Regarding public tenders, the RCC sanctioned three companies for implementing a bid-rigging scheme in the market for wood. 15 The RCC considered that the companies participating in the public tender established in advance the prices for their offers, thus eliminating competition between them. All three companies admitted participation in the anticompetitive agreement and benefited from a 15 per cent fine reduction.
In addition, the RCC sanctioned a bid-rigging scheme whereby several companies have shared the gas connection works. 16 This investigation was launched following a referral from the Directorate for the Investigation of Organized Crime and Terrorism. The bid-rigging scheme was implemented through an exchange of sensitive information aimed at coordinating their behaviour within the public tenders.
Abuse of dominant position
Detecting abuses of dominant position is also a core interest of the RCC. In 2018, the RCC launched an investigation into a potential abuse of dominant position by Hidroelectrica, a state-owned company in the production and commercialisation of electrical energy. 17 Also in the energy sector – specifically the market for linked services of natural gas – the RCC launched an investigation regarding an alleged abuse of dominant position committed by applying a differentiated treatment in relation to the operators authorised to carry out the verifications and technical revisions of natural gas installations. 18
In addition, the RCC launched a third investigation regarding a potential abuse of dominant position in the market of therapeutic mineral water supply in a certain resort in Romania.
The RCC was also active in the field of sanctioning abuses of dominant position. The RCC investigated the behaviour of the national company Administratia Porturilor Maritime following complaints submitted by harbour operators. In short, the potential anticompetitive behaviour amounted to a possible restriction of access to an essential facility (the maritime transport infrastructure) by imposing potential inequitable rents for using the harbour and a potentially inequitable annual freight traffic provision. In order to eliminate the competition concerns, the company proposed certain remedies that were accepted by the RCC, thus closing the investigation without sanctions. The company has committed to determine the value of the rent and the freight traffic clause based on a transparent, proportional and objective methodology that will take into consideration economic criteria. 19
Another case of abuse of dominant position concerned the question of tied sales. The RCC has considered that a company active on the market for providing public services for water supply and sewerage had abused its dominant position by conditioning the conclusion of the water supply and sewerage services contracts to an additional service (the performance of analysis services of waste water). In such conditions, the company eliminated its competitors on the market for the provision of waste water analysis services.
In 2018, the RCC finalised its retail investigation sanctioning three food retailers and four of their suppliers for resale price maintenance within the promotion organised by the retailers. 20 The RCC considered that in some cases the resale price was fixed in advanced by the supplier and the retailer, the retailer being unable to decrease the resale price under the fixed price. This case is actually the sequel to the so-called retail case 1 of 2014, in which the RCC sanctioned the same type of vertical agreements.
In addition, at the end of 2017, the RCC sanctioned several movie distributors and cinemas for fixing movie ticket prices. 21 The contracts concluded contained a provision under which the minimum entry price for tickets will be established by the distributors together with the cinemas. In addition the contracts contained several sanctioning mechanisms in case of deviation from the minimum fixed price.
Investigations closed without sanctions
The RCC has also closed the investigation in the market of movie distribution to cinemas without sanctions. 22 The investigation concerned potential anticompetitive practices in the coordination of movie release dates, price-fixing agreements between movie distributors or cinemas, and resale price maintenance between distributors and cinemas. The RCC did not find sufficient evidence to prove the existence of a competition law infringement.
In addition, in 2017, the RCC closed an investigation without sanctions in a case concerning a potential bid-rigging scheme in the IT sector. 23 Regarding the standard of proof applied, the RCC decided there was not sufficient evidence to justify imposing measures or fines.
In 2018, the RCC issued around 57 merger decisions; most of them following the simplified procedure. The RCC had under analysis mergers in different fields of economy such as banking, energy, medical services and agribusiness.
The RCC faced an interesting case concerning a potential merger between Wienerberger and Brikston in the market for masonry materials (bricks), which was notified to the RCC in November 2017. Following its analysis, the RCC decided that the notified merger led to the creation of a dominant position in the market of the production and marketing of bricks and ceramic blocks in Romania, which could have as its effect an increase in price. 24 Even though the parties submitted commitments aiming at the elimination of competitive concerns, the RCC decided such remedies were not sufficient. Instead, the RCC decided to launch an investigation and entered in Phase II of the procedure. The procedure ended when the parties decided in July 2018 not to go forward with their transaction. At the end of 2018, Leir Rom, a company active in the concrete sector, acquired the control over Brikston.
In addition, the RCC issued two clearance decisions with commitments. Such decisions are issued when the RCC identifies competition concerns generated by a potential merger. In order to eliminate such concerns, the parties may commit to implement structural or behavioural remedies. In a case regarding the merger of Unilever and Betty Ice in the market for the production and commercialisation of ice cream, the RCC considered that the merger would lead to the creation of a dominant position on the market and as a result a barrier to the entry on the market may be created. This barrier was deemed to be created mainly by considering the number of freezer cabinets belonging to Unilever and Betty Ice placed in different stores that do have not the physical space to install other freezers belonging to competitors. Therefore the buyer committed to withdraw several freezers cabinets installed in different stores, 25 and so competitors will be able to place their own freezers in those stores.
The other clearance decision issued with commitments concerned the pharmaceutical sector. As the merger generated a horizontal overlap on wholesale and retail trading markets with pharmaceutical and parapharmaceutical products, which would have led to the consolidation of the purchaser’s position on the retail market of the aforementioned products, the purchaser proposed a structural remedy comprising the sale of 18 pharmacies located in various areas of Romania. 26
Following the European trend regarding compliance with the standstill obligation, the RCC sanctioned the implemention of an economic concentration between two companies active in the e-commerce sector. In this case, the purchaser listed its own products on the three sites acquired, and processed and delivered products to customers. This measure was deemed by the RCC to be an implementation of economic concentration. 27
Monitoring activity and sectorial inquires
Regarding e-commerce, the RCC analysed the impact of the development of online commerce on competition through marketing strategies applied by active companies in this sector. The main findings refer to price-reduction campaigns. Under Romanian law, any price reduction must be based on a reference price (ie, the smallest price practiced by the same company within the past 30 days). Following its inquiry, the RCC found that the price to which the reduction is applied is higher than the reference legal price. This finding is also true during Black Friday campaigns where the reduced price was even higher than the maximum price applied in the past 30 days. The conclusions were also included in Romania’s note regarding the implications of e-commerce for competition policy sent to the OECD. 31 The RCC issued a series of recommendations including the implementation of a legal obligation for online stores to display, for each product, information regarding the evolution of the reference price and the price practised within the past 30 days. According to the RCC, even in the absence of a legal obligation, online retailers should integrate on their platform a transparent system for tracking price evolution.
Moreover, the RCC finalised its study into the lock-in effect in the field of public tenders organised for the acquisition of IT products and medical equipment, and issued a series of recommendations based on its main conclusion. 32 In short, the RCC established that public authorities became dependent upon a certain supplier becuase in the IT field the development of software solutions may be conducted only by the initial suppliers; and in the field of medical equipment, supplies and spare parts must be compatible with the equipment held by the medical facility. In order to reduce the degree of dependence, the RCC recommended public authorities to define non-discriminator requirements in the tender documentation and establish neutral technical specifications foe several economic operator to comply with. Specifically, with respect to the IT sector, the RCC recommended that the public authority request not only the delivery of a software solution, but also linked elements (eg, technical documentation, source code and testing plans).
The RCC has also launched a new sectorial inquiry regarding the modernisation, maintenance and reparation of roads at the level of county capital city halls.
In addition, three new studies were launched regarding over-the-counter medicine, 33 the effects on competition of the Big Data platform and the sharing economy (ie, the effect on traditional businesses of companies such as Uber or Airbnb). 34
The sanctioning decisions issued by the RCC can be challenged before the Court of Appeal of Bucharest within 30 days of their communication. Almost all decisions issued by the RCC are subject to annulment. However, the cases in which parties seek annulment of the RCC’s decisions have diminished as the benefit of recognition is lost if the RCC’s decision is challenged.
During recent years, the courts have started to conduct an analysis on the merits and to assess the proportionality of fines imposed by the RCC. As a result, there is a new tendency in reducing fines applied by the RCC. However, the number of cases in which the Supreme Court has reduced the fine applied by the RCC was smaller in 2018 than in 2017. In 2018, 76 per cent of the fines applied by the RCC were maintained by the Supreme Court, compared to the 55 per cent of the fines maintained in 2017.
In terms of novelty, in recent years the Bucharest Court of Appeal has issued several annulment decisions with respect to the RCC’s sanctioning decision in the so-called retail case 1. The annulment decisions were grounded by the fact that the RCC’s right to apply sanctions were time-barred. As a consequence, in one of the cases which was brought before the Supreme Court, the RCC raised a preliminary question. In short, the RCC asked if the principle of effectivity of European law removes the interpretation of the national law’s statute of limitation regulations according to which only the formal act of launching an investigation interrupts the statute of limitation. This preliminary question was referred by the Supreme Court to the Court of Justice of the European Union. Depending on the answer, the Supreme Court may or may not maintain the annulment decisions issued by the Bucharest Court of Appeal.
Regarding legislative developments, there are currently two projects for the amendment of the Competition Act currently debated in the Romanian Parliament. As detailed below, the two projects are not fully harmonised, mainly with respect to some of the amendments regarding sanctions.
One of the projects was initiated at the end of 2017 and was recently adopted by the Chamber of Deputies, and will be debated in the senate 35 (Project 1). Project 1 contains two important amendments.
If the turnover of the companies that have infringed competition law is below €1 million, the fine will be applied only to the turnover achieved on the relevant market concerned by the infringement. Due to the fixed threshold, this amendment is basically in the advantage of small undertakings that have engaged in the same anticompetitive practice with several parties (eg, several producers have fixed resale prices of the investigated distributor), except for cases in which the RCC would extend the geographic relevant market from Romania to the level of the European Union.
Following the intended modifications, the proposals for appointing the RCC president and two members of the plenum will be made by the Chamber of Deputies and the proposal for the vice president will be made by the senate. Finally, the president of Romania will appoint them.
In order to be appointed president of the Competition Council, it is necessary to have had 15 years of experience in management positions and to have proven high professional and managerial competency.
The other project currently being debated was rejected by the senate and will be debated in the Chamber of Deputies (Project 2). 36 Project 2 aims at amending the Competition Act under two aspects.
The fines, which currently range from 0.5 to 10 per cent of the total turnover achieved by the company in the year prior to the sanctioning decision, will be applied, according to Project 2, to the turnover generated from the sale of products or services subject to the anticompetitive behaviour.
Enforceable character of RCC’s decisions
Even though the RCC’s decisions, through which it applies fines or establishes clearance fees for economic concentration, are enforceable without any other formality 30 days after the communication, Project 2 provides that challenging the RCC’s decision automatically suspends their enforceable character. In other words, if a party challenges the RCC’s sanctioning decision, it does not have to pay the fine until a final decision is issued by the court. Under the current legislation, enforcement of the RCC’s decision may be suspended only on the basis of a court order. In practice, most applications for the suspension of enforcement are rejected by courts.
In addition, the project of amending the Emergency Ordinance No. 39/2017(Project 3), debated in the Romanian Parliament since 2017 and which included the obligation for any type of company to provide to the RCC information regarding prices regardless of the economic sector in which they are active, has been further modified. The major amendments concern the private enforcement field, mainly that:
- abuses of dominant position are presumed to cause harm – nonetheless, the presumption may be reverted by the infringer. Under the current form of private enforcement regulations, only cartels are presumed to cause harm; and
- cartels are presumed to cause prejudices consisting in price increases with 20 per cent of the products or services subject to the cartel – such presumptions will ease the remedy of the harm incurred, quantifying from the very beginning the amount of the prejudice. Nonetheless, the presumption may be reverted by the infringer.
In addition, the RCC published on its website a project for amending the RCC’s Procedure Regulation which provides that referrals received from the Romanian government will be urgently and expressly resolved. 38 Nonetheless, there is no definition of the emergency procedure, nor the correlation between this provision and the priority principle under which the RCC may prioritise its cases by considering the impact on competition, consumers’ general interest or the strategic importance of the economic sector concerned.
At a European Level, the Directive ECN+ (the Directive) 39 was adopted and must be transposed into our national legislation by 4 February 2021. The Directive aims at ensuring that competition authorities from member states have the appropriate enforcement tools necessary to harmonise EU antitrust enforcement area. The Directive also creates a clearer cooperation framework between competition authorities in EU. As a general note, the RCC already benefits from the enforcement powers included in the Directive.
As regards practical developments, according to RCC’s list of priorities, the Price Monitor – an online platform launched in 2016 that allows the consumers to compare the resale prices of basic food products from different retailers – will be extended nationwide. In accordance with the RCC’s announcement in 2018 that it will launch a price comparison platform for fuel, the extension of the Price Monitor will also include fuel products prices.
Regarding the RCC’s sanctioning activity, as in the previous years, cartel detection remains a core interest. In this sense, in view of identifying indicia regarding potential violations of competition law and for optimising the investigation of anticompetitive practices, the RCC has intensified its cooperation with the National Anticorruption Direction and the Directorate for the Investigation of Organized Crime and Terrorism.
Moreover, the Big Data project launched in 2018, aiming at facilitating the identification of cartels in public tenders. The RCC will most certainly continue to focus on the sanctioning of bid-rigging schemes.
The RCC expressly stated in its activity report that it will finalise several key investigations in 2019, such as those in the pharmaceutical sector and the aviation insurance market. The RCC also plans to finalise several sectorial inquires among which the most expected is the inquiry regarding the banking services sector.
1 Competition Act No. 21/1996 republished in the Official Gazette, Part I, No. 153 on 29 February 2016.
4 In 2017, the RCC sanctioned the Romanian Chambers of Financial Auditors a minimum fee for providing financial audit services. The fine applied was particularly high (8.4 per cent), most probably due to the fact that the Romanian Chambers of Financial Auditors did not have a big turnover.
5 For details see RCC’s 2018 annual report - http://www.consiliulconcurentei.ro/uploads/docs/items/bucket14/id14441/raport_anual_2018_final.pdf.
9 Instructions regarding the conditions, terms and the procedure for the acceptance and assessment of commitments in case of anticompetitive practices, published in the Official Gazette, Part I, No. 11 of 5 January 2011.
10 Instructions regarding the individualisation of sanctions for the violations provided in article 55 of Competition Act no. 21/1996, published in the Official Gazette, Part I, no 882 of 3 November 2016.
11 Emergency Ordinance No. 39/2017 published in the Official Gazette, Part 1, No. 422, 8 June 2017.
39 DIRECTIVE (EU) 2019/1 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2018, L11/3 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.