This is an Insight article, written by a selected partner as part of GCR's co-published content. Read more on Insight
The Competition Act No. 21/1996 (the Competition Act)1 establishes the primary rules on antitrust policy and merger control, while the secondary legislation, which mainly reflects the European legislation, facilitates the implementation of the competition rules. Our national competition authority in charge of enforcing the competition policy is the Romanian Competition Council (RCC).
In 2017, the RCC had intense activity in all fields of competition: antitrust enforcement, sectorial inquires and merger control. Almost 80 per cent of its decisions regarded mergers concerning different industries such as real estate market, financial and banking, energy, food and non-food retail, masonry materials.
The RCC launched 19 new investigations (31.5 per cent more than in 2016) out of which 11 concerned cartels. Compared to previous years, the number of investigations concerning abuse of dominant position has increased (ie, five investigations). The RCC has also closed 18 investigations, 78 per cent concerning key sectors (eg, energy, public tenders and liberal professions). The fines applied by the RCC in 2017 amount to €27.35 million (60 per cent more than in 2016).
One of the RCC’s main priorities is enforcing antitrust policy by detecting and sanctioning cartels, especially on bid-rigging cases. In this respect, the RCC started the Big Data project, which will work as a tool for cartel screening. The project consists in integration and analysis of big volumes of data to support investigative activities2. According to the RCC, ‘the Big Data project will facilitate the identification of cartels in the field of public procurement and will facilitate the finalisation of the internal computerisation of the Competition Council.’ This software will also ensure the effective communication between the RCC and other authorities such as the National Authority for the Regulation and Monitoring of Public Acquisitions, National Agency for Fiscal Administration or the National Direction Anticorruption.
The RCC has continued its activity concerning the promotion of the benefits of the recognition procedure, which can lead to important reductions of the fines applied (up to 30 per cent) and the benefits of the leniency procedure leading to partial or total immunity. For instance, in 2017 the RCC has granted total fine immunity to a company that has applied for the leniency procedure. Also, almost 25 per cent of the companies involved in anticompetitive practices have decided to recognise the deed and their fines were consequently reduced.
In 2017, the RCC applied for a fine reduction for the first time because it was impossible for the company to pay the fine.3 The company, which was in a difficult economic situation, had its fine reduced to 1.7 per cent of its previous year’s turnover, which is an important reduction considering that the case concerned a cartel and the fines applied in such cases are usually between 4 per cent and 6 per cent of the company’s turnover.
Recent institutional and legislative developments
The RCC has issued a set of guidelines regarding competition law compliance programmes.4 Before issuing this new set of guidelines, there were no formal criteria that a competition law compliance programme should have fulfilled in order to qualify as a mitigating circumstance. From now on, a compliance programme must fulfil the criteria laid down by the RCC in its guidelines in order to be considered a mitigating circumstance and to consequently lead to fine reductions. The main focus is on the effective implementation of the competition compliance programme.
According to RCC’s guidelines, an effective competition law compliance programme should have two major components:
- information materials (compliance manuals); and
- warning operational mechanisms – audit, alert, advising and awareness.
The effective implementation supposes first of all a management decision with respect to the strict competition compliance policy that should be reiterated each year during the training session. Also, some organisational measures must be taken: a person responsible for the implementation of the competition law policy must be appointed, and in order to identify risks in terms of competition law the internal regulation and job description should include the obligations to participate in the training session and to endorse the compliance guideline. Also in monitoring purposes, the person appointed for programme implementation must prepare a report on the implementation of the compliance programme. The effective implementation also requires the organisation of testing sessions each year.
In 2017, there were also some changes regarding the dawn raids procedure. The Competition Act now expressly provides the possibility given to the RCC to copy all the data stored on electronic devices.5 The RCC Procedure Regulation6 provides that copying all the data is possible in certain circumstances (eg, when there is a big volume of data). The data will be then sealed and the extraction of the information needed for the scope of the investigation will be realised in the presence of the company’s representatives. However, according to article 26(9) of the Procedure Regulation, after seizing the hard copy of the electronic information belonging to the investigated party, the competition inspectors can search data in the absence of the representatives of the companies investigated. The RCC claims this new procedure does not affect the right of defence of the parties investigated as the extraction of the information which falls within the scope of the investigation is realised in the presence of the company’s representatives. Moreover, the Procedure Regulation provides that the copy of the information will be kept until the finalisation of the investigation or, if the decision issued by the RCC is challenged, until a judgment is rendered by a court.
The Emergency Ordinance No. 39/2017 has also modified some aspects concerning the sanctions that can be applied to non-resident companies that implement a transaction before notifying it to the RCC or before the RCC gives its approval or if the RCC considered that the economic concentration affects competition but the parties implement the concentration anyway. In this case the fines are applied by taking into consideration:
- the turnover realised by the companies active in Romania and controlled by the infringer;
- the turnover realised in Romania by all non-resident companies controlled by the infringer; or
- the turnover obtained by the infringer in Romania.
The most important change in legislation was the entry into force of Emergency Ordinance No. 39/20177 (the Ordinance) which transposes the European Directive (the Directive) on private enforcement.8 Regarding its contents, the Ordinance basically mirrors the text of the Directive. It is worth mentioning that neither in the Directive, nor under Romanian law is there any pre-action disclosure procedure. Indeed, under Romanian law, there is no disclosure procedure independent of a trial already brought before a court. It would be useful to regulate this specific issue as victims of competition law infringement could find themselves in the impossibility of providing evidence for bringing a private enforcement claim.
Monitoring activity and sectorial inquires
Part of the RCC’s activity is 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 could 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 in order to address competition concerns.
Over time, the RCC has analysed different economic sectors and issued reports and recommendations regarding food retail,9 the fuel sector,10 the pharmaceutical market,11 the grains market,12 the wood processing market13 and others.
After establishing its report regarding the retail food market, the RCC launched the Price Monitor, which is an online platform that permits the consumers to compare the resale prices for basic food products of different retailers.14 In order to ensure the effective implementation of such platform, the Competition Act was amended this year and it now provides the express obligation for companies active in the food retail sector to provide their resale prices when requested by the RCC, in view of realising studies and market analysis.15 The Competition Act also provides that in case the company refuses to provide the requested information, the RCC can apply fines ranging from around €4,500 to €10,000.
In a similar way, one of the top recommendations of the sectorial inquiry report concerning fuels was the launching of a price comparison platform for fuels like the ones implemented in other European countries.16 According to the RCC, the idea is to increase transparency with respect to prices for consumers, which could enhance the level of competition. However, such project raises interesting issues – the main concern being that the market could become excessively transparent and therefore facilitate collusion between companies active in this sector and in the end there will not be any advantages for consumers. Another point deriving from the implementation of such a project is the necessity of a legal provision regarding the obligation of companies to provide their prices for fuels.
In this sense, there is a project for the amendment of Emergency Ordinance No. 39/2017, which proposes the generalisation of the obligation to provide to the RCC information regarding prices for all companies, regardless of the economic sector in which they are active.17 The project expressly provides that such information may be requested for realising price comparisons on online platforms, the RCC having the liberty to choose the economic sectors included in such analysis. Therefore, it seems that price comparison platforms will be introduced for other sectors than food and fuels.
Concerning the grains sector, the RCC recommended the implementation of a Romanian trading market that would work as an alternative to private tenders. With respect to fuels, besides the recommendation regarding the implementation of a price comparison platform, the RCC proposed to increase the number of fuels distributors by enabling large retailers to commercialise such products. Also, in order to stimulate competition and to increase the number of competitors, the RCC proposed to grant higher points at tenders to companies that do not have a gas station in the area of the highway concerned by the tender.
The RCC has launched in public consultation its preliminary analysis on the market of repair and maintenance services for medical imaging equipment. The RCC signaled that the absence of a database of the providers of maintenance services can affect the competition process as it generates an asymmetry of information between the maintenance service provider and their clients, as well as between the maintenance service providers and the producers of medical equipment that also provide maintenance services and which do not know who are their potential or actual competitors. These conclusions could eventually lead to the launching of an investigation.
The RCC has also modified the relevant geographic market in food retail sector, limiting it to a radius of 10 minutes’ driving from the retail store.18 Before this modification, the geographic market was limited to a radius of 30 minutes from the retail store in Bucharest and 45 minutes’ drive from the retail store in other cities of Romania. Therefore a stricter assessment of antitrust cases and also economic concentrations will be conducted by the RCC as there are higher chances for a food retailer to have a higher market share.
The legal framework for antitrust consists of article 5 of the Competition Act on anticompetitive practices and article 6 governing abuse of dominance, the ‘local’ correspondents of article 101 of the Treaty on the Functioning of the European Union (TFEU) and article 102 TFEU.
New investigations opened
After launching a preliminary examination regarding the market of production and commercialisation of eggs and the market of production and commercialisation of butter and assessing the information collected, the RCC has launched an investigation only on the market of production and commercialisation of eggs in Romania regarding a potential limitation of deliveries by the most important producers. This new line of development of the RCC seems to have appeared in the context of price increases for eggs which drew the attention of governmental representatives.
One of the RCC’s main focuses is on cartels, whether consisting in price-fixing or market allocation. Also, within the large category of cartels, the RCC pays particular attention to bid-rigging cases.
In 2017, the RCC launched an investigation on the market of commercialisation of signalling and road security products regarding a possible market allocation within three tenders. Another investigation concerning bid-rigging was launched by the RCC regarding tenders organised for granting of contracts providing guard services to the Forestry Directory of a Romanian county. The RCC has also launched an investigation regarding a potential bid-rotation scheme within the public tender organised by the National Company of Highways and National Roads in view of granting contracts of day-to-day maintenance of the roads during winter time. Indeed, the RCC suspects that the companies have agreed to participate in the tenders without actually competing and have designated in advance the winner of each procedure. The RCC has also launched an investigation regarding price-fixing and market sharing within the tenders organised on the market of wood processing.
Another investigation regarding cartels launched by the RCC concerns a potential anticompetitive practice consisting in price-fixing and customer allocation between competing companies on the market of linked services to the activity of natural gas distribution. The RCC also launched an investigation on the market of agricultural machinery and equipment with respect to a potential price-fixing.
The RCC has also launched two separate investigations on the market of operational leasing and financial leasing regarding a potential coordination of commercial policies through price-fixing or market sharing, and on the consumer credit market regarding a potential exchange of sensitive information.
The RCC has also launched an investigation on the market of car paint for retouches regarding the conclusion of an exclusive distribution contract between two competitors, as well as a potential collective boycott consisting of the refusal of providing products to a certain client. Another new investigation concerns a potential market sharing of the market of aviation insurances.
Abuse of dominant position
Detecting abuses of dominant position also represents a core interest of the RCC as it has launched several investigations regarding potential abuses of dominant positions. The RCC has launched an investigation into a potential abuse of dominant position of Distrigaz Sud Retele on the market of providing services of technical approval of projects, reception and implementation of the installations for natural gas use. The RCC also launched two investigations into a potential abuse of dominant position of Roche on the market of oncology products. The first investigation regards implementing higher prices in relation to its distributor than the prices offered by Roche within tender proceedings and the second one concerns potential anticompetitive practices of Roche which have as potential effect the elimination of generic medicine.
Another investigation regards the potential abuse of dominant position of Dante International on the market of providing intermediation services on the online platforms in Romania. Dante International is a retailer of non-food products that has a marketplace platform which intermediates the relationship between retailers and customers. The RCC is investigating a potential discriminatory behaviour of Dante with respect to its direct competitors, non-food retailers that use the marketplace.
The RCC can sanction anticompetitive practices with fines ranging from 0.5 per cent and 10 per cent of the turnover realised in the year before the sanctioning decision. In practice, from public information, the RCC has applied fines ranging from:
- 4 per cent to 6 per cent for cartels and abuses of dominant position; and
- from 2 per cent to 4 per cent for vertical agreements.
The parties have also benefited from fine reductions when they recognised the anticompetitive practice (between 10 per cent and 30 per cent). Additional reductions have been applied by the RCC for mitigating circumstances, such as:
- extremely reduced participation to the anticompetitive practice;
- the turnover realised through the infringement represents less than 20 per cent of the total turnover; and
- the effective implementation of a competition compliance programme.
The biggest fine applied in 2017 concerned a cartel on the market of electric power meters consisting in market allocation.19 The case is particularly interesting as one of the companies involved has been granted total fine immunity as it has applied to the leniency procedure and brought evidence regarding the existence of the anticompetitive practices.
In addition, for the first time, the RCC sanctioned the company who organised the public tenders as it concluded that its employees had facilitated the cartel implementation. The RCC has also stated that since these anticompetitive practices have led to higher prices for the consumers, it will collaborate with the Regulation Authority in Energy Field for repairing the prejudice.
The RCC has also sanctioned three companies for implementing an agreement consisting in the limitation of the commercialisation of electricity measuring equipment on the territory of Romania.20 This case had also a vertical component, as two producers agreed to exclusively sell their products only to one company that would deliver the products in Romania by participating in public tenders. In this way the organiser of tenders was obliged to buy the products from this unique distributor. The company which acted as exclusive distributor has benefited from a 15 per cent fine reduction as it recognized the anticompetitive practice.
The RCC also focused on sanctioning anticompetitive practices in which professional associations and its members engaged especially in the field of liberal professions. In this respect, the RCC has sanctioned the Romanian Chambers of Financial Auditors for establishing a minimum fee for providing financial audit services.21 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. The Chamber of Notaries of Suceava county and its members have also been sanctioned for establishing and implementing minimum fees for notary services.22 Only one public notary recognised the deed and therefore benefited from a 15 per cent reduction of the fine. Regarding the National Union of Public Notaries from Romania, the RCC closed the investigation by accepting the commitments proposed. Among the commitments, the Union undertook to transmit to the Ministry of Justice its proposal of eliminating minimum fees for notary services.23
The RCC has also sanctioned the professional association of security companies, as well as its members for price-fixing (through exchange of price related information including costs and announces published on the site of the association of a minimum price based on the costs involved).24 The highest fine applied in this case was of 4.32 per cent.
The National Chamber of Taxi Drivers of Romania has also been sanctioned for price-fixing.25 During the association meetings, the members agreed to practice a unique price for taxi services (one for daytime and one for nighttime).
The RCC has sanctioned 11 companies for engaging in anticompetitive practices on the market for the exploitation of heating cost allocators.26 Indeed, the companies have been found guilty of market allocation and price-fixing. According to the RCC, the consumers were directly affected as they could not choose freely their service provider and also they had to pay higher prices. Two of the companies recognised the anticompetitive deed and benefited from a 15 per cent fine reduction.
The RCC has finalised two investigations on the market of production, distribution and commercialisation of automotive batteries regarding vertical agreements between two producers and their distributors.27 The agreements consisted in resale price-fixing by establishing a minimum price or a minimum discount. All parties investigated have recognised that they participated in the anticompetitive practice and therefore benefited from the maximum quantum of fine reduction (ie, 30 per cent). One of the producers has even organised meetings with its own distributors regarding promotion of competition law (competition compliance programme).
Public authorities engaging in anticompetitive practices
Article 8 of the Competition Act prohibits anticompetitive practices resulting from the action or passivity of public authorities. In such cases, the public authorities are not fined, but the RCC can impose the measures to be taken in order to remediate the situation. Over time, the RCC has issued several decisions in which it established that public authorities have infringed competition law.
In 2017, the RCC considered that one local authority has failed to take appropriate measures regarding the organisation of a public tender for granting contract for providing public service for water supply and sewerage in the locality. In this way the authority has favoured the company that was providing such services without even having a contract concluded with the public authority. The RCC has imposed the organisation of a public tender on the public authority through its decision.
Investigations closed without sanctions
At the end of 2016, the RCC has closed without sanctions the investigation regarding the Romanian Dairy Industry Association and its members. The investigation concerned a potential anticompetitive practice consisting in fixing the acquisition price of raw milk or in allocating the areas of collection of raw milk. The RCC did not find sufficient evidence to prove the violation of competition law. Indeed, the RCC did not identify any exchange of sensitive information – all the information regarding the acquisition price of raw milk were either public data or data regarding price evolutions prior to the moment of the communication. According to RCC, these data could not be considered strategic information capable of reducing the degree of uncertainty in the market.
The RCC also closed an investigation on the production and commercialisation of grains as there was no evidence of competition law infringement discovered.28 The RCC also stated that employees’ mobility is not in itself an element that could facilitate anticompetitive practices in the absence of proof regarding an exchange of information between two companies. Indeed, according to the RCC, prices on the production and commercialisation of grains market are extremely volatile and any sensitive information detained at some point by an employee becomes in a short amount of time irrelevant from competition perspective.
Any economic concentrations that exceed the turnover thresholds set by the Competition Act (ie, aggregate turnover of the parties involved of more than €10 million and that 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 procedure, complete and simplified, when the transaction does not raise competition concerns. The RCC takes around two months starting from the date when the notification becomes effective to issue a clearance decision.
In 2017, the RCC was intensely busy issuing around 60 merger decisions out of which 66 per cent were issued following the simplified procedure.
In terms of novelty, the RCC has issued a clearance decision regarding the creation of a joint venture which will be active in the US and Canada, although it expressly stated in its decision that there is no effect on the Romanian market.29 This decision is quite unusual as the Competition Act enables the RCC to authorise mergers with potential effects on the Romanian market.
The RCC has also faced some challenges, as in 2017 it had two transactions on the table regarding the masonry material market.30 The RCC is currently analysing if it should split the masonry material market into two separate markets: one for bricks and the other one for autoclaved aerated concrete (AAC) or if these two products are substitutable and therefore are part of the larger market of masonry materials.
In addition, the RCC has issued four clearance decisions with commitments. Even though the RCC prefers structural remedies, as stated in its guidelines regarding the remedies in economic concentration,31 the cases concerned structural, but also behavioural, remedies such as limiting the duration of services supply contracts, not including exclusivity clauses or obligations to acquire minimum quantities32 or undertaking not to increase prices for providing money collection services.33
The RCC has continued its recent tendency to consider the wider geographic market than the national, and issued several decision in which it stated that the relevant geographic market could be the European Economic Area or even global.34 This new approach has as direct consequence a more relaxed assessment of the impact of the transaction.
Following the European trend with respect to the compliance with the standing still obligation, the RCC sanctioned the implementing of an economic concentration between CRH Romania and Comnord without notifying and receiving the approval of the RCC.35 Both companies recognised their deed and benefited from fine reductions. In other cases concerning gun jumping, the RCC took into account mitigating circumstances such as effective and full cooperation with the RCC during the investigation and implementation of a competition law compliance programme.
The 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 subjected 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.
Recently, the courts started to pay more attention to assessing the proportionality of the fines imposed by the RCC. As a result, there is a new tendency of reducing fines applied by the RCC. In 2017, only 55 per cent of the fines applied by the RCC were maintained by the Supreme Court, which represents an important evolution compared to the 81 per cent of the fines confirmed in 2016 by the courts.
Also, in the past, the courts had the tendency to analyse the case from a procedural perspective, whereas nowadays it conducts an analysis on its merits and reassess the evidence provided by the parties. In addition, the courts have also started to admit a wider range of evidence, such as expert appraisements.
Regarding legislative developments, besides the project of amendment of Ordinance No. 39/2017 described here above (see ‘Recent institutional and legislative developments section’), another project for the modification of Competition Act is currently debated in Parliament.36 The project contains two important amendments.
Firstly, in case the turnover of the companies that have infringed competition law is below €1 million, according to the legislative project, the fine will be applied only to the turnover realised on the relevant market concerned by the infringement. This will therefore lead in some cases to a reduction of the quantum of the fine. Due to the threshold fixed, 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).
Secondly, the conditions which have to be fulfilled to be appointed president of the Competition Council and member of the Plenum will change. Currently the members of the Plenum are proposed by the Consultative College of the Competition. Following the intended modifications, the proposals of appointment of the president of the Competition Council 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. Furthermore, 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.
With respect to practical developments, almost all of them are directly linked to the legislative amendments of the dawn raid proceedings that ultimately impact the right to defence of the investigated parties as the information stored on electronic devices can be screened without the presence of the companies’ representatives. However, the RCC claims that the right of defence of the parties investigated is observed as the extraction of the information that falls within the scope of the investigation is realised in the presence of the company’s representatives.
As the implementation of the Big Data project will help the RCC screen cartels and especially bid-rigging schemes, the RCC activity will most certainly continue on focusing on detecting and sanctioning bid-rigging schemes.
1 Competition Law No. 21/1996 republished in the Official Gazette, Part I, No. 153 on 29 February 2016.
5 Before this modification, only the secondary legislation provided this possibility.
6 Regulation Procedure, published in the Official Gazette, Part I, No. 601, 26 July 2017.
7 Emergency Ordinance No. 39/2017 published in the Official Gazette, Part 1, No. 422, 8 June 2017.
8 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union Text with EEA relevance, OJ L349.
13 http://www.consiliulconcurentei.ro/uploads/docs/items/bucket12/id12925/raport_investigatie_var_neconfid.pdf; http://www.consiliulconcurentei.ro/uploads/docs/items/bucket12/id12927/sect_lemn_oct_2017.pdf.
15 Amendment introduced by Emergency Ordinance No. 39/2017 published in the Official Gazette, Part 1, No. 422, 8 June 2017.
18 http://www.consiliulconcurentei.ro/uploads/docs/items/bucket12/id12934/com_analiza_piata_relevanta_oct_2017_eng.pdf .
30 http://www.consiliulconcurentei.ro/uploads/docs/items/bucket12/id12957/wienberger_nov_2017_english.pdf; www.zfenglish.com/companies/competition-council-looks-into-macon-deva-takeover-by-xella-international-16960275.
31 Guidelines regarding the remedies in economic concentration field of 9 December 2010 published in the Official Gazette, Part 1, No. 1 the 3rd January 2011.
34 Decision No. 20 of 3 May 2017, http://www.consiliulconcurentei.ro/uploads/docs/items/bucket12/id12268/decizie_20_2017_tch-cimos_neconf.pdf; Decision No. 9 of 23 February 2017, http://www.consiliulconcurentei.ro/uploads/docs/items/bucket12/id12108/decizie_site_concentrare_contitech_21032017.pdf.