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 multi-jurisdictional guide to competition and cartel leniency. For a full list of jurisdictional Competition Q&As visit www.practicallaw.com/competition-mjg.
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.
Economic concentrations, such as mergers and acquisitions or creation of full-function joint ventures, exceeding certain thresholds must be notified and cleared by the Romanian Competition Council (Consilul Concurenţei) (RCC) prior to their implementation. Foreign-to-foreign economic concentrations must also be notified if the thresholds are met.
The regulatory framework for merger control comprises the Competition Law No 21/1996 (Competition Law) and the regulations published by the RCC. The latter include, among others:
Regulation regarding economic concentrations.
Regulation regarding the concepts of economic concentration, undertakings concerned, full functioning and turnover.
Regulation on the definition of the relevant market.
Regulation on restrictions directly related and necessary to concentrations.
Regulation on the calculation of the authorisation fee in cases of merger control.
Regulation on commitments in merger control proceedings.
The regulatory authority is the RCC.
See box, The regulatory authority.
A transaction must be notified and cleared by the RCC if it represents an economic concentration and the turnover thresholds are met.
An economic concentration represents a change of control over an undertaking occurring on a lasting basis. Situations were economic concentrations arise are:
Mergers between previously independent undertakings (two or more independent undertakings amalgamate into a new undertaking or one undertaking is absorbed by another).
Acquisition of direct or indirect, sole or joint control, over an existing undertaking or parts of an undertaking by contract or other means.
Creation of full-function joint ventures.
Control is defined as the power to exercise a decisive influence over another undertaking. Decisive influence represents the power to determine the strategic commercial behaviour of an undertaking on the market (for example, appointment of the board of directors, approval of the budget or business plan, entry into new product or geographical markets).
Control may be acquired by various means such as, for example, acquisition of shares, veto rights, power to appoint more than half of the board members. Control can also be exercised on a de facto basis.
The RCC must take action and apply fines within five years from the date when the infringement was committed (that is, the economic concentration was implemented without prior clearance). However, it may be argued that implementing an economic concentration without prior clearance from the RCC is a continuous infringement and this makes it very difficult in practice to escape the jurisdiction of the RCC based on the five-year limitation period.
An economic concentration must be notified and cleared by the RCC prior to its implementation if the following two conditions are met:
The combined worldwide turnover of the undertakings concerned (or, if they are part of a group of companies, the combined turnover of the groups) for the previous financial year exceeds the RON equivalent of EUR10 million.
The turnover for the previous financial year of each of at least two of the undertakings concerned (or, if they are part of a group of companies, the turnover of the groups) derived from Romania exceeds the RON equivalent of EUR4 million.
The RON equivalent is calculated at the official exchange rate published on 31 December by the National Bank of Romania for the year preceding the notification.
The turnover represents the income resulting from the sale of products and/or provision of services in Romania. There are specific rules for determining the undertakings concerned and their groups, the concept of turnover and calculation rules, and geographical allocation of turnover, among others.
The turnover must be adjusted according to several rules prescribed by the RCC, the most important being that intra-group turnover, any taxes directly related to the sale of products and/or provision of services (for example, excise duties) and export values (including intra-community deliveries) must be excluded.
Mandatory or voluntary
The prior notification and clearance of an economic concentration that meets the turnover thresholds is mandatory.
An economic concentration must be notified to the RCC after the conclusion of the agreement based on which control is acquired and before its implementation. A notification may also be possible based on a letter of intent, heads of terms or pre-agreement, provided that it shows, without a doubt, the intention of the parties to carry out an economic concentration.
Both formal and informal guidance before notification can be obtained through pre-notification meetings or discussions with the case team allocated by the RCC. Such meetings are advisable in order to clarify any aspects regarding the notification and the overall process.
Responsibility for notification
The undertaking acquiring control has the obligation to notify the RCC. In practice, this means that:
In the case of mergers, each of the merging undertakings must notify.
In an acquisition of sole or joint control, the acquirer(s) must notify.
Where a full-function joint venture is created, the undertakings which will hold joint control must notify.
A notification of an economic concentration must be submitted to the RCC.
When the RCC receives a notification of an economic concentration it must also inform the Supreme National Defence Council, which must analyse the transaction from a national security perspective.
Form of notification
Official forms for standard merger notifications and simplified merger notifications are used, similar to notification forms used for notifications of economic concentrations to the European Commission.
Two types of fees must be paid by the undertaking which files a notification of an economic concentration with the RCC:
The filing fee of approximately EUR1,100 which must be paid before lodging any notification form with the RCC.
The authorisation fee which must be paid if the RCC clears a notified transaction. The amount of the authorisation fee can be between EUR10,000 and EUR25,000.
Obligation to suspend
Until the economic concentration is cleared by the RCC, the parties are prohibited from implementing the transaction. The following measures, without limitation, are considered implementation of a transaction:
Entering or exiting other/new product or territorial markets, in accordance with the strategy of the acquirer.
Changing the business purpose/investment objectives of the target or changing the members of the board in accordance with the instructions/strategy of the acquirer.
Changing the name of the target or publicly listing the target.
Restructuring, closing or any de-merger of the target.
Terminating or entering into long-term or other important agreements.
Sacking of employees of the target or selling the assets of the target.
Exceptionally, the RCC may grant derogation from the non-implementation rule based on a grounded request received from the parties.
Procedure and timetable
Phase I. Following submission of a notification form, the RCC has 20 days to request additional information if it considers that the notification form is incomplete (the parties must respond no later than 15 days after receipt of the additional request for information from the RCC).
The notification becomes effective as of the date the RCC considers that the information received is both accurate and complete. The RCC must immediately inform the notifying parties in respect of the date when the notification has become effective.
Within 45 days as of the effective date, the RCC must either issue a non-objection decision (subject to conditions where appropriate) or order the initiation of an in-depth investigation if it believes that the economic concentration may significantly impede competition. If the RCC does not issue a decision within the above term, the concentration is considered authorised.
Phase II. Where the RCC initiates an investigation, it will analyse the compatibility of the economic concentration with the competition environment. At the end of the investigation, the RCC can issue:
A refusal decision.
An authorisation decision.
A conditional authorisation decision.
The investigation must be completed within five months from the effective date. If the RCC does not issue a decision within this term, the concentration is considered authorised.
For an overview of the notification process, see flowchart, Romania: merger notifications.
Publicity and confidentiality
As a general rule, the RCC and the responsible case team must keep confidential the information specifically identified as such by the parties.
Upon receiving a notification of an economic concentration, the RCC will publish on its website and/or in the press a note regarding the notified operation. The note will identify the undertakings concerned, their country of origin, the nature of the concentration, the economic sectors concerned and the date when the RCC received the notification. However, the parties can request (providing sound reasons) that no publication be made until the issuance of the final decision.
At the end of the procedure, the decisions of the RCC are published on its website. The parties are asked before publication to identify the confidential information in the decision which will not be published and to provide reasons as to why confidentiality is requested.
The RCC personnel have a general obligation to keep confidential all business secrets and other information that it receives, but the parties must identify the information which they consider confidential and must provide the RCC with arguments justifying their confidentiality request.
Confidentiality on request
The parties must identify the confidential information which must not be published or made available to third parties with supporting arguments in this respect and a non-confidential version of the respective documents.
Rights of third parties
The RCC may request a point of view from other undertakings active in the relevant market(s).
In the case that the RCC intends to accept remedies proposed by the parties (see Question 10), it will publish a summary of the case and contents of the proposed remedies and any interested third parties can send their observations within the term set by the RCC.
The RCC may grant access to other parties involved in the economic concentration procedure (that is, the parties other than the notifying undertaking, such as the seller or the target), to which the investigation report was sent, if the RCC considers that access to the file is necessary in order for the respective parties to present their observations. The right of access to the file does not cover confidential information.
The RCC may decide to hear interested third parties if they can provide relevant information in an investigation regarding an economic concentration.
Remedies, penalties and appeal
Both behavioural and structural remedies can be proposed in order to address competition concerns, although structural remedies are preferred. Remedies can be proposed both during Phase I (at the latest within two weeks of the effective date) and during Phase II of the investigation (see Question 4).
Specific examples of remedies are:
Divestments or eliminating ties with competitors.
Granting access to infrastructure, networks or technologies.
Amendment of long-term exclusive agreements.
The monitoring procedure is agreed with the RCC. The maximum monitoring period is ten years after the issuance of the clearance decision.
Failure to notify correctly
Providing incomplete, inaccurate or misleading information to the RCC may result in an administrative fine between 0.1% and 1% of the total turnover achieved in Romania by the infringing undertaking(s) during the year preceding the year of the sanctioning decision.
Implementation before approval or after prohibition
Implementation before approval or after prohibition will result in an administrative fine between 0.5% and 10% of the total turnover achieved in Romania by the infringing undertaking(s) during the year preceding the year of the sanctioning decision.
Failure to observe
The RCC has the right to impose an administrative fine of up to 5% of the average daily turnover of the undertakings for each day of delay in complying with a decision of the RCC.
Failure to implement or observe any remedial commitments may result in an administrative fine between 0.5% and 10% of the total turnover achieved in Romania by the infringing undertaking(s) during the year preceding the year of the sanctioning decision.
Rights of appeal
The decisions of the plenum of the RCC can be appealed before the Bucharest Court of Appeal within 30 days from its communication or publication, as the case may be. The decision of the Bucharest Court of Appeal can be appealed before the High Court of Cassation and Justice within 30 days from its communication. There are special deadlines and procedures for appealing other orders or decisions of the RCC.
Third party rights of appeal
Third parties could theoretically challenge the decisions of the RCC if they prove a legitimate interest.
Automatic clearance of restrictive provisions
A clearance decision of an economic concentration by the RCC also covers the restrictions directly related and necessary to the respective concentration (ancillary restraints). However, the undertakings concerned must assess for themselves whether and to what extent the restraints are ancillary to the economic concentration.
For example, non-competition clauses are justified for periods of up to three years, when the transfer of the undertaking includes the transfer of customer loyalty in the form of both goodwill and know-how. When only goodwill is included, they are justified for periods of up to two years.
Regulation of specific industries
Full-function joint ventures, meaning joint ventures performing on a lasting basis all of the functions of autonomous economic entities, are subject to the merger control rules, while non-full-function joint ventures are reviewed under the framework of anti-competitive practices and agreements.
A joint venture satisfies the full-functionality criterion if:
It has sufficient resources to operate independently on a market.
Its activities are beyond one specific function for the parent companies.
The sale/purchase relations with the parent companies are not predominant.
It operates on a lasting basis.
Proposals for reform
A reform is expected in the field of unfair competition, currently regulated by the Competition Law, the RCC already having the power to investigate and sanction acts of unfair competition. Unfair competition covers, among other things, obtaining or disclosing commercial secrets, commercial or industrial espionage, and damaging the reputation of another firm through false advertising. The reform aims to further clarify the cases amounting to unfair competition and to grant effective investigation and sanctioning powers to the RCC. An important aspect relates to the proposed increase in the severity of the fines, which, in the current draft, can be of up to 3% of the turnover. However, the time frame for the enactment of the new legislation is unclear.
Romanian Competition Council (Consilul Concurenţei) (RCC)
Description. The official website of the RCC where original language text of the legislation, case law and rules referred to in this article can be obtained. English language version is not always up to date.
The regulatory authority
Romanian Competition Council (Consilul Concurenţei) (RCC)
Head. Bogdan Chiriţoiu (Chairman)
Contact details. 1 Piaţa Presei Libere
D1, District 1, 013701
Bucharest, OP 33
T +40 21 317 1191
F +40 21 316 4909
Outline structure. The RCC is headed by its Chairman. The organisation chart also includes the plenum and other divisions, such as commissions, departments, and services directions, among others.
The RCC departments include:
- Department for consumer goods.
- Department for services.
- Department for industry and energy.
- Department for tenders and complaints.
- Department for cartels.
- State aid department.
- Legal department.
Responsibilities. The main responsibilities of the RCC are to:
- Conduct investigations and take decisions in cases dealing with anti-competitive agreements or practices, abuse of dominance and economic concentrations.
- Accept commitments and impose interim measures.
- Conduct sector inquiries.
- Submit recommendations to the government and to other administrative public authorities likely to facilitate market evolution and competition.
- Ensure the application of the national procedures regarding state aid.
Procedure for obtaining documents. The RCC's website contains the legislation, decisions, press releases, orders in relation to investigations, recommendations, and annual reports and publications.
Professional qualifications. Attorney-at-law, Bucharest Bar
Areas of practice. Competition; litigation.
Recent transactions. Recent work includes advising in all fields of competition law clients such as BMW, BRD Pension Fund (part of Groupe Société Générale), CORA Hypermarché, E.ON, Johnson Controls, MasterCard.