Merger control in Romania: overview
A Q&A guide to merger control in Romania.
The Q&A gives a high level overview of merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in Romania. It also covers notification requirements, procedures and timetables, publicity and confidentiality, third party rights, substantive test, remedies, penalties, appeals, joint ventures and proposals for reform.
For information on restraints of trade, monopolies and abuses of market power in Romania, visit Restraints of trade and dominance in Romania: overview.
This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Merger Control Q&As visit www.practicallaw.com/mergercontrol-guide. For a full list of jurisdictional Restraints of Trade and Dominance Q&As visit www.practicallaw.com/restraintsoftrade-guide.
For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-mjg.
Generally, mergers and acquisitions are subject to the control of the Competition Council (the regulatory authority), subject to certain turnover thresholds (see Question 2).
The current regulatory framework is set out by:
Law No. 21 of 1996 on competition as subsequently amended and supplemented (Competition Law).
Merger Regulation 2010 issued by the Competition Council, as subsequently amended and supplemented (Merger Regulation).
Secondary legislation in the form of guidelines issued by the Competition Council offers guidance to undertakings in interpreting the regulatory framework:
Guidelines on the concepts of economic concentration, concerned undertakings, full functioning and turnover (issued in 2010).
Guidelines on the definition of the relevant market (issued in 2010).
Guidelines on ancillary restraints directly linked and necessary for the implementation of a merger (issued in 2010).
Guidelines on commitments in merger control proceedings.
Guidelines on the enforcement of Article 32 of the Competition Law on the calculation of the authorisation fee in cases of merger control (issued in 2010 and amended in 2011).
Supreme National Defence Council Decision 73 of 2012.
The regulatory authority is the Competition Council. The Supreme National Defence Council can also be involved in the analysis of certain transactions.
See box, The regulatory authority.
Merger control legislation applies to any lasting change of control (an economic concentration) as a result of:
A merger of two or more previously independent undertakings.
Acquiring direct or indirect control by an:
individual already holding control over at least one or more undertakings;
undertaking that has control over one or more undertakings or parts of them.
"Control" is defined as the possibility of a party being able to exercise a decisive influence on an undertaking, irrespective of whether this derives from rights, agreements or any other means, either separately or in combination. Control can be acquired directly or indirectly and it can be exercised by one party only or jointly by several undertakings. Qualitative changes in control (that is changes from sole to joint control and vice versa) can be subject to merger control rules.
In certain circumstances acquiring minority shareholdings can amount to a change of control if the acquiring party benefits from specific controlling rights (that is the right to veto important business decisions).
Additionally, the formation of a full functioning joint venture can be subject to merger control. A full functioning joint venture is a jointly controlled undertaking that carries out its activity on a long-lasting basis and that performs all functions of an autonomous economic entity.
Whenever the Competition Council receives a notification on an economic concentration, the authority sends to the Supreme National Defence Council (SNDC) the basic information on the transaction, including the:
Implementation method (for example, merger or acquisition).
Parties and their identification data.
Field in which the parties are active.
Object of the transaction (companies or assets).
The transactions that are likely to be scrutinised by the SNDC are those falling in one of the categories mentioned in Decision No. 73 of 2012. Under these provisions, any transactions resulting in the acquisition of control of undertakings or assets as well as any economic concentrations (mergers) in any of the fields provided under it must be notified to the SNDC. These fields include energy security, the security of critical infrastructure or the security of supply of a vital resources system.
Where the control transfer transaction does not meet the notification thresholds (see below, Thresholds), and so notification to the Competition Council is not required, but falls into any of the categories mentioned in Decision No. 73 of 2012 then this transaction must be notified directly to the SNDC.
If, following the SNDC's analysis, it is determined that a transaction presents a risk to national security, the government, at the proposal of SNDC, issues a resolution forbidding the operation, irrespective of whether the Competition Council has cleared the transaction or not.
The statute of limitations for failure to notify an economic concentration or its implementation is five years from the date that the infringement occurred.
Any economic concentration meeting both of the following conditions must be notified to the Competition Council before its effective implementation:
There are at least two undertakings involved, each with a turnover of at least EUR4 million in Romania during the preceding year (irrespective of the product market where the turnover originated).
The cumulated worldwide turnover of the involved undertakings exceeds EUR10 million for the previous year.
To determine if the thresholds are met, the cumulated turnover of the groups of the involved undertakings is taken into account and not just that of the actual undertakings that are party to the transaction.
The turnover is determined by taking into consideration all revenues generated by the sale of goods or provision of services in Romania (irrespective of the relevant product market on which the concentration takes place). The amounts due as fiscal obligations and exports value (including intra-community sales) achieved by each party involved in the transaction and the group of companies it belongs to are deducted first. Parties' groups include, for example:
Other subsidiaries of its parent companies.
Other entities jointly controlled by two or more of the companies belonging to the group.
Intra-group turnover (that is the sales between the companies belonging to the same group) are not taken into consideration when determining the turnover for the purpose of verifying that the thresholds are met.
Mandatory or voluntary
Notification of economic concentrations meeting the thresholds (see Question 2) is mandatory before their implementation.
A transaction amounting to an economic concentration must be notified to the Competition Council and clearance must be obtained before the transaction's implementation (the effective change of control) (see Question 2). Usually, the transaction is notified after the signing of the relevant transaction documents or after the announcement of the public bid (for publicly traded companies). Sometimes, the parties can notify the Competition Council in advance if the parties prove that, acting in good faith, they intend to implement the transaction or, for publicly traded companies, the parties make public their intention to make an offer.
Formal guidance can be obtained from the Competition Council before submitting the notification file. In addition, the Merger Regulation 2010 provides that it is advisable for the parties to request a meeting with the Competition Council's representatives at least two weeks before filing the notification to clarify essential aspects on the economic concentration. The parties must submit, at least five days before the meeting, complete information on the transaction, such as:
The involved parties.
The markets on which they are active.
A brief description of the transaction.
The methods of exercising control.
Responsibility for notification
Generally, the party acquiring control must notify the authority. Depending on the type of transaction, the obligation to notify can rest with one or more of the parties. For example, with mergers, all the parties involved in the merger must submit the notification, whereas for several parties acquiring control, all the parties must file the notification. If a full functioning joint venture is established, the notification obligation falls on the parent undertakings.
The notification must be submitted to the Competition Council.
Form of notification
The notification forms are provided in the Merger Regulation 2010 (a copy of which is available, in Romanian only at www.consiliulconcurentei.ro/ro/pagini/modele-formulare.html, which is the official website of the Competition Council). There are two types of notification forms:
The simplified form can be used for any of the following economic concentrations:
Transactions where two or more undertakings acquire joint control over an undertaking that has no business (or has business of little importance) in Romania. This condition is met if either the:
turnover of the joint-venture or the turnover of the transferred activities does not exceed EUR4 million in Romania; or
total value of the assets transferred to the joint venture does not exceed the Romanian new leu equivalent of EUR4 million.
Transactions between parties operating on different markets that are not related.
Transactions that are unlikely to affect the market:
with vertical integration, the cumulated market share must not exceed 30%;
for horizontal overlapping, the combined market share must be below 20%.
Transactions that will result in one party acquiring sole control in an undertaking in which it previously had joint control.
Currently, the party submitting a notification must pay a filing fee of RON4,775.
Obligation to suspend
The parties cannot implement the transaction before obtaining clearance from the Competition Council (see Question 3). Failure to observe this obligation is considered a minor offence and can be sanctioned with a fine ranging between 0.5% and 10% of the turnover of the party that has to submit the notification.
However, the parties can implement any measures that are not irreversible and that do not permanently modify the market structure.
Procedure and timetable
Following the submission of the notification, the Competition Council confirms to the parties that the notification is validly registered. Confirmation is given within five days of the submission.
The notification becomes effective on the date of its registration with the Competition Council. The Competition Council must immediately inform the parties on the date that the notification becomes effective. However, if the authority considers that the notification does not include all the mandatory information required under the applicable legislation, it informs the notifying parties, within 20 days of the registration of the notification, on the missing documents or information. The authority grants the parties a term (not exceeding 15 days) for providing the additional required information or documents. The 15 day term can be extended, for justifiable reasons, for a maximum of five days.
Within 30 days of the date of the notification received from the Competition Council, the Supreme National Defence Council (SNDC) informs the competition authority where it considers that the transaction must be analysed from a national security viewpoint. The Competition Council immediately informs the parties that the transaction is subject to the scrutiny of SNDC.
The parties must then send directly to the SNDC any documents and information requested by the SNDC. In practice, any additional information is requested through the Competition Council. The analysis performed by the SNDC must be finalised within 45 days of the date that the parties sent all the documents and information requested by the SNDC.
The SNDC's notification does not suspend the review of the transaction performed by the Competition Council. In addition, the Competition Council can issue a decision on the transaction before the SNDC finalises its analysis.
Within 45 days of the date when the notification is effective, the Competition Council must issue a decision on the notified transaction. This decision can be:
A non-intervention decision, whenever the authority finds that the transaction does not fall under the Competition Law.
An authorisation decision if the transaction is subject to the provisions of the Competition Law but does not raise any concerns on the relevant markets or if the concerns have been removed by the parties by means of commitments accepted by the Competition Council.
A decision to open a Phase II investigation if, following its analysis, the Competition Council considers that the transaction raises serious doubts on its compatibility with a normal competitive environment.
If a Phase II investigation is initiated, the Competition Council must issue a decision on the notified transaction within five months of the date when the notification became effective. The authority can decide:
To prohibit the transaction, when this is deemed to significantly impede effective competition.
To clear the transaction, if the Phase II investigation has revealed that it does not raise any material concerns on the relevant market.
To conditionally clear the transaction, based on the commitments undertaken by the parties for removing any impediment, while imposing obligations or conditions on the parties aimed at ensuring the observance by the parties of the proposed commitments.
However, the Competition Law also provides that, if the Competition Council does not issue a decision within the deadlines mentioned above, the notified transaction is considered approved.
The submission of commitments will have an effect on the Phase I and Phase II timetables (see Question 10).
For an overview of the notification process, see flowchart, Romania: merger notifications ( www.practicallaw.com/8-504-4226) .
Publicity and confidentiality
The Competition Council publishes on its website (see box, The regulatory authority) a brief notice on the registered notification including the following information:
Their countries of origin.
The nature of the concentration.
The relevant markets on which the transaction takes place.
The date when the notification was registered with the authority.
Any subsequent amendments of the initial notification can also be published, at the authority's discretion.
Generally, the Competition Council publishes a press release at the start of both Phase I and Phase II proceedings. Subsequently, the authority publishes on its website a confidential version of the decision closing either a Phase I or Phase II investigation.
The Competition Council is bound by the law to observe the confidentiality of information disclosed to it. However, if the council deems that certain information must be disclosed for the purpose of the proceedings, it can disclose it, taking into consideration the legitimate interests of the parties. Also, the Competition Council usually publishes a non-confidential version of the decision (except when, for valid reasons this is not possible).
Confidentiality on request
The parties can request that certain information is treated as confidential. The request must be based on valid reasons and, if it is approved, the parties must submit to the Competition Council a non-confidential version of the document including this confidential data. The Competition Council can disregard this request if it considers that the complexity of the transaction and its effects on the market require it to request observations from third parties.
Rights of third parties
After the information on the notified concentration is published, any interested party can submit comments on its alleged effects. In addition, where the Competition Council has doubts on the compatibility of the transaction with a competitive environment, it publishes on its website (see box, The regulatory authority) an invitation for all interested parties to submit their comments.
If the Competition Council considers accepting commitments, a brief summary of the transaction and of the proposed commitments is published on its website, together with the deadline for comments to be submitted by third parties. The Competition Council is not bound by these comments and recommendations.
The Competition Council can also decide to actively approach some undertakings or associations of undertakings active on the concerned relevant markets by sending them questionnaires. The receiving parties must answer within the term imposed by the council.
If the Competition Council begins an investigation following a complaint filed by an interested party, the claimant can be heard by the Competition Council, if the President of the Competition Council approves these proceedings.
Third parties have limited access to documents in the investigation file. A person or undertaking filing a complaint can access certain documents of the investigation file (but not confidential information or business secrets) if the authority informs him that it intends to reject the claim with a view to preparing a point of view on the preliminary decision of the Competition Council.
In addition, if the complainant will be heard by the Competition Council, it receives a non-confidential version of the investigation report.
Any experts appointed by the Competition Council and any persons who will be heard by the authority ( see below, Be heard) can receive, at their request and subject to the discretionary approval of the Council, a confidential version of the investigation report.
Third parties that received a copy of the investigation report are sometimes granted access to certain documents in the investigation file if the President of the Competition Council considers that access is required to allow these parties to prepare their observations.
During an investigation initiated by the Competition Council, the person filing a complaint or any interested third party can be heard by the Council's plenary assembly, subject to the prior approval of the president of the Council.
In assessing whether a concentration can be cleared, the Competition Council verifies whether the transaction will lead to significant impediments of effective competition on the relevant markets. Usually, the council checks whether the transaction creates or strengthens a dominant position on the relevant markets or any parts of it.
In analysing a concentration and its impact on competition in the relevant market, the Competition Council must factor in a multitude of criteria such as the market position of the parties and existing barriers to entry. Under the Merger Regulation 2010, the Competition Council must also consider the evolution of technical and economic progress resulting from the analysed transaction, provided that this is to the benefit of consumers and does not represent a barrier to competition.
Increases in efficiencies resulting from the transaction can therefore be used as an argument to counter any competition concerns, provided that these benefit consumers.
Competition authorities are generally reluctant to accept the failing firm defence when analysing mergers that can significantly affect competition on the relevant markets. The Competition Council has not appeared to accept the failing firm argument. However, given the latest case law at EU level (which the Competition Council follows closely), namely the Aegean Airlines and Olympic Air cases, it is possible that the Competition Council may accept the failing firm defence, provided that the strict criteria provided by the EU case law is met. The criteria is that, if there is no merger the failing firm exits the market and there is no less anti-competitive alternative than the notified merger.
Remedies, penalties and appeal
The parties to a notified transaction can offer remedies, either behavioural or structural, for removing the competition concerns. Historically, the Competition Council prefers structural remedies as they are simpler and easier to implement, although it has recently cleared a takeover following both structural and behavioural remedies offered by the parties.
The Competition Council can accept remedies including:
Divestments, which is the most common remedy.
Termination of ties with competitors.
Access to infrastructure.
Networks and important technologies.
Amendments of long term exclusivity agreements.
During Phase I of the notification procedure, the remedies must be proposed before the notification becomes effective or within a maximum two weeks of this date. During Phase II, the remedies must be submitted within 30 days from the date of the initiation of the investigation. This term can be extended by 15 additional days in exceptional cases.
The effective implementation of the remedies can be monitored either by the Competition Council or by an independent attorney-in-fact appointed by the parties, with the prior approval of the council.
Failure to notify correctly
Failure to provide exact and complete information during the notification process is considered a minor offence and can be sanctioned with a fine ranging between 0.1% and 1% of the turnover of the notifying party for the preceding fiscal year.
Implementation before approval or after prohibition
Implementing a concentration before its approval or after a prohibition decision is issued can result in a fine of 0.5% to 10% of the total turnover obtained in the previous year.
Failure to observe
Failure to observe a prohibition decision of the Competition Council can result in a fine of 0.5% to 10% of the total turnover obtained in the previous year.
Periodic penalty payments of up to 5% of the median daily turnover of the undertakings for each day of delay in complying with the applicable decision can also be imposed by the Competition Council.
Rights of appeal
The decisions issued by the Competition Council can be challenged in front of the Bucharest Court of Appeal within 30 days from their communication.
The appeal procedure can vary in length, from six to 18 months (it can sometimes be more than 18 months). The ruling of the Bucharest Court of Appeal can be further challenged before the Romanian High Court of Cassation and Justice within 15 days of the date of communication to the parties.
Third party rights of appeal
Any interested third party can challenge a decision issued by the Competition Council within 30 days of the date of publication of the decision.
Automatic clearance of restrictive provisions
The Merger Regulation 2010 states that a decision under which a concentration is declared compatible with a normal competitive environment also covers ancillary restrictions that are directly linked and necessary for the implementation of the transaction. However, the Competition Council does not have to analyse each restriction individually and the parties have a duty to self-assess. For any restrictions that generate uncertainty and that are not detailed in the guidelines on ancillary restraints as being directly linked and necessary for the implementation of a merger, the parties can expressly request that the Competition Council individually assess them.
Historically, the Competition Council has considered that the following restrictions are directly linked and necessary for the implementation of a concentration:
Non-compete clauses imposed on the seller for periods of up to three years (for the transfer of goodwill and know-how) or two years (for the transfer of goodwill only). Non-compete obligations are not accepted for transactions concerning specific assets or IP rights. Limitations on the geographical area where the obligations are effective and other restrictions must be observed.
Non-solicitation and confidentiality obligations are analysed in the same way as non-compete obligations.
Buying or selling obligations.
Regulation of specific industries
Apart from transactions that can affect national security, for which a Supreme National Defence Council assessment is required, there are no other industries specifically regulated. However, there are specific provisions on the calculation of turnover for bank and financial institutions, and insurance companies.
There is no formal or legal definition of a joint venture. The setting up of a full functioning joint venture can be subject to merger control rules (see Question 2). Non-full functioning joint ventures can be analysed using the standard applicable to restrictive agreements.
The Competition Council is part of the International Competition Network and the European Competition Network. The Competition Council can therefore request documents and information from any of the other authorities that are part of these networks. In addition, the Competition Council can perform dawn raids on national undertakings at the request of the European Commission.
Recently, the Competition Council approved a transaction under which the third largest bank in Romania obtained direct control over two undertakings active on the same market. Following the implementation of the transaction, the buyer will become the second largest bank in Romania. Before submitting a formal notification, the buyer requested, and the Competition Council approved, a derogation from the general prohibition of implementing a transaction before a clearance decision has been issued by the council. In approving the request, the council noted that the transaction documents included a "lock box" mechanism. Under this mechanism the risks and benefits of the target undertakings are transferred to the buyer on the date the documents are executed, the buyer cannot request an adjustment of the purchase price for any losses incurred by the target undertakings until completion. The Competition Council also acknowledged that the target undertakings experienced losses during the previous three years and that the market conditions were unfavourable for the target companies. For these reasons, the Competition Council allowed the buyer to implement the transaction before issuing a clearance decision, with a view to mitigating the losses of the target undertakings and their clients.
Proposals for reform
The Competition Law has been amended recently (2015). One of the amendments relates to the possibility of modifying the thresholds triggering the obligation to notify by means of a decision of the plenary assembly of the Competition Council rather than by law, as currently required. Moreover, the Competition Council has published on its website a draft regulation amending the Merger Regulation 2010. The document is in public debate and it is expected to be approved and in force in the next couple of months.
Description. This is the official website of the Competition Council where the decisions, press releases and other documents originating from the council, or of interest in this field, are published. The information is official but not up-to-date, especially the legislation, which is both in Romanian and English. English translations are for guidance only.
The regulatory authority
Romanian Competition Council
Outline structure. The Competition Council consists of seven members:
One president (with the rank of Minister).
Two vice-presidents (with the rank of Secretary of State).
Four competition counsellors (with the rank of Deputy Secretary of State).
The Council members are appointed by the President of Romania, under the proposal of the Government.
The Competition Council is organised by departments, the most important are:
Department for consumer goods.
Department for services.
Department for industry and energy.
Department for public procurement procedures and complaints.
Department for state aid.
Responsibilities. The main responsibilities of the Competition Council are to:
Conduct investigations and issue decisions in all matters under Competition Law.
Carry out, on its own initiative, investigations aimed at a better understanding of the market.
Issue secondary legislation for the effective implementation of the provisions of the Competition Law.
Endorse state policy and the schemes of granting state aid from the point of view of the possible effects on competition and to ensure these rules are observed.
Recommend to the government and the local public administration the adoption of measures facilitating the market and competition development.
Analyse and endorse new legislation that may have an impact on competition.
Procedure for obtaining documents. The website of the Competition Council contains legislation, both in Romanian and English, although it is not up-to-date. English translations are for guidance only. The vast majority of the decisions issued by the council are also available on its website, together with yearly reports, studies and press releases.
Remus Ene, Partner
Pachiu & Associates
Professional qualifications. Romania, Lawyer
Areas of practice. Competition; intellectual property; environment; oil and gas; energy.
Non-professional qualifications. Post-graduate degree in Competition Law, King's College, London; BA in law and administration, Dimitrie Cantemir University
Assisting in relation to merger control, structuring and implementation of various business models, both horizontally and vertically, in compliance with the competition legislation.
Assisting in the analysis of everyday commercial behaviour.
Assisting with clients' agreements for the prevention of breaches in the Romanian and European competition legislation.
Assisting clients before the Competition Council in all stages of investigations initiated by the council for potential breaches of competition legislation.
Assisting in filing and sustaining complaints against anti-competition behaviour of competing undertakings on the market.
Responsible for multiple core legal issues surrounding the rights of ownership of copyrights, trade marks, patents, industrial designs, computer software and databases.
Languages. Romanian, English, French
Publications. Co-authored several international comparative legal guides, focusing on the Romanian regulatory framework in the energy and natural resources, competition and product liability fields.