July 2011 – With a view of bringing the competition legislation in line with the EU legislation, the relevant authorities have substantially reformed the Romanian competition legislation during 2010 – 2011, by amendments brought to the Competition Law no. 21/1996 and new versions of secondary legislative measures (i.e. regulations and instructions).
The amendments incorporated elements taken from the Community competition law and European Commission codes of good practice, but also from the practice of the European courts, with the declared aim to coordinate better domestic legislation with articles 101 and 102 of the TFEU and with the Regulation No. 1/2003.
In July 2011, the relevant authorities have amended the recently modified competition legislation (i.e. Ordinance no. 75/1010) by Law no. 149/2011 (the “Law no. 149”).
Main Amendments Brought by Law no. 149
The decrease of the authorisation tax for economic concentrations
Law no.149 has established a clearance fee in merger control cases between EUR 10,000 and EUR 25,000 (before the amendment the authorisation tax for economic concentrations was established at 0.04% of the total turnover achieved by the concerned undertakings in Romania, capped at EUR 100,000). The instructions related to the modality of calculation should be issued shortly by the Competition Council.
Point to consider: positive impact on further transactions by reducing the administrative tax.
Reduced amount for the bail in cases of suspension of the Competition Council’s decisions
Previously, where a sanctioning decision was challenged, the suspension of its enforcement was granted by the court only subject to the payment of a bail of 30% of the fine imposed by the challenged decision. Following the enactment of Law no. 149, the bail cannot exceed 20% of the fine imposed and it will be determined by the Court.
Point to consider: a better access to court suspensions claims for the sanctioned undertakings.
The existence of a market share in excess of 40% treated as a presumption of a dominant position
According to the Amending Law and its new wording, the burden of proof related to the absence of a dominant position lies on the undertaking with a market share above 40%.
Other Noteworthy Amendments
- The decrease of the level of the fine with an amount up to 30% (from 25%) after receiving the investigation report by the undertakings for those entities admitting the violation of the competition law provisions. In order to benefit from the reduction of fine, it is mandatory for undertaking involved to propose remedies and remove the consequences of the violations concerned.
- The information obtained during an investigation may be used not only for the purpose of such investigation, but for the purpose of all violations of competition law. Moreover, other authorities may be informed by the Competition Council insofar issues falling within their competence are being discovered.
- Decisions of public authorities violating the competition legislation may be declared null and void.
- The establishment of a consultative body that will issue non-mandatory opinions concerning the main aspects of the competition policy.
- Oral hearings before the Competition Council in case of investigation are no longer mandatory in all cases, the parties involved may request such hearings.
The Competition Council is responsible for sanctioning unfair competition behaviour stipulated in Law no. 11/1991 on unfair competition and may use all procedural means provided by the Competition Law to discover acts of unfair competition (important amendments to the Unfair Competition Law are expected in the near future).
For more information contact Iustinian Captariu, Counsel, at