NEWS & INSIGHTS

Up-to-date.

September 2024 – On 11 September 2024 the Romanian Competition Council’s (“RCC”) Order no. 2436/2024 implementing the Guidelines on informal guidance on novel or unresolved questions arising in individual cases concerning the application of Art. 5 and 6 of the Romanian Competition Law No. 21/1996 (the “Competition Law”) was published in the Official Gazette of Romania and entered into force (the “Guidelines”). Art. 5 and 6 of the Competition Law represent the local-law equivalents of Art. 101 and 102 of the Treaty on the Functioning of the European Union and deal with the prohibition of agreements that restrict competition and, respectively, abuse of dominance.

The Guidelines replace the previous RCC note on the matter applicable as of 2005. Similar to the European Commission’s Notice on guidance letters[1], the Guidelines provide information on the framework and procedure for the issuance of guidance letters by the RCC, as well as the effects of guidance letters. The changes introduced by the Guidelines aim to update the guidance letter instrument and make it more flexible and appealing to market players. Main novelties introduced include, among others, the option of organising preliminary discussions with the RCC, the possibility for the RCC, with the applicant’s consent, to request additional information from third parties, the RCC cooperating with the European Commission and national competition authorities from Member States in addressing a guidance letter request or the prerogative for the RCC to set a particular timeline for the guidance letter to apply.

Scope of the Guidelines and assessment criteria considered by the RCC

The Guidelines aim to clarify the assessment criteria for issuing guidance letters, the procedural aspects of the request for guidance, the evaluation of the request, and the effects of such letters issued by the RCC.

The issuance of guidance letters should generally reduce uncertainty regarding the application of Art. 5 and 6 of the Competition Law and allow undertakings to benefit from an informal response to their questions, while ensuring that antitrust rules are duly followed.

The Guidelines only apply with respect to potential questions under Art. 5 and 6 of the Competition Law, and not, for instance, to Article 8 of the Competition Law (on public authorities’ actions in breach of competition), merger control aspects, or other competition law-related matters.

Upon receiving a request for guidance, the RCC will make a prima facie assessment of the facts and the legal considerations of the conduct and whether it would be useful to provide clarification on the application of Art. 5 and 6 by issuing a guidance letter. The following assessment criteria will be considered when requesting guidance:

• whether the issue is novel or unresolved: the RCC will assess whether the agreement or unilateral practice raises an issue that is not sufficiently clarified in the relevant national and European legislation, decision-making practice, and case-law and for which sufficient general guidance is not publicly available in previous guidance letters; and
• if there is an interest in providing guidance: the assessment of the agreement or unilateral practice suggests that a public clarification of the applicability of Art. 5 or 6 of the Competition Law by means of a guidance letter would bring added value in terms of legal certainty, considering one or more of the following elements:
  • the actual or potential economic importance of the goods or services concerned by the agreement or unilateral practice, particularly considering consumers’ interests;
  • the relevance of the objectives of the agreement or unilateral practice in relation to the RCC’s priorities;
  • the magnitude of the investment made or to be made by the undertakings concerned;
  • the extent to which the agreement or unilateral practice might correspond to widespread behaviour at the national level.

The Guidelines further provide that the RCC will not consider a request for a guidance letter if the agreement or unilateral practice is subject to proceedings pending before the RCC or the European Commission or if there is a case pending before a national or European court. Additionally, the matter must not have been previously addressed in national or European case-law or in decisions or guidance letters issued by the RCC or the European Commission.

Moreover, the RCC will not consider hypothetical questions and will not issue guidance letters in such cases. The Guidelines also state that an undertaking may request guidance on an envisaged agreement or unilateral practice if related planning is at a sufficiently advanced stage.

Main points to be addressed by a guidance letter application

The Guidelines set out the elements that should be included in a request for a guidance letter:

• the identity of all undertakings concerned as well as at least one contact person indicating the address for communication with the RCC;
• a description of the competition issues and the precise questions on which guidance is sought;
• complete information on all relevant aspects and the documentation relating to them in order for the RCC to be able to make a proper assessment;
• the applicant’s preliminary assessment as to the reasons why the request presents novel or unresolved questions;
• the applicant’s preliminary assessment as to the reasons why a public clarification would increase legal certainty;
• the applicant’s interpretation of the application of Art. 5 or 6 of the Competition Law to the novel or unresolved questions raised by the agreement or unilateral practice;
• any other information enabling an assessment to be made, including a declaration that, to the best of the applicant’s knowledge, the agreement or unilateral practice to which the request refers is not subject to ongoing proceedings before the RCC or the European Commission or before a national or European court;
• if the application contains elements that are considered confidential, i.e., business secrets or other confidential information, these shall be clearly identified, together with the reasons supporting this.

Further procedural aspects on the issuance of guidance letters

The Guidelines provide that the RCC may request additional information from the applicant as well as from third parties and may share the information submitted or discuss the substance of the request with the European Commission and competition authorities from other Member States. The information provided by the applicant or by third parties will be treated as confidential.

It is also worth noting that undertakings may contact the RCC prior to making a request for a guidance letter to discuss their intention to submit such a request in an informal and confidential manner.

If no guidance letter is issued, the RCC will inform the applicant of this within 30 days of the registration of the application or of the receipt of the additional information requested by the RCC. The applicant can also withdraw its request at any point in time. However, the information that was provided may be used by the RCC to initiate further proceedings under the Competition Law.

Regarding the content of guidance letters issued by the RCC, the Guidelines provide that they should include a summary description of the facts and the legal reasoning adopted by the RCC on the application of Art. 5 and 6 of the Competition Law. A guidance letter may address some of the issues on which guidance is sought in the request and may also include additional aspects and a time limit for its application.

Guidance letters or a summary thereof will be published on the RCC's website, taking into consideration the legitimate interests of the undertakings concerned, so as not to disclose their business secrets or other confidential information. The RCC may also amend or revoke a guidance letter if the public interest so requires.

Rationale and effects of guidance letters

Guidance letters issued by the RCC are intended to help companies assess their agreements or unilateral practices under competition law. While the letters provide guidance, businesses are still responsible for their own evaluations regarding Art. 5 and 6 of the Competition Law. The letters reflect the RCC’s opinion but do not create rights or obligations for applicants or third parties.

Importantly, the Guidelines also clarify that the issuance of a guidance letter does not prevent the RCC from later investigating the same agreements or practices under competition rules. In such cases, the RCC will consider the guidance letter, especially if there have been factual changes, new information, or legal developments. However, businesses acting in good faith based on a guidance letter will not be fined, unless the underlying facts have significantly changed.

Also, the guidance provided is conditional on the accuracy and completeness of the information submitted. If the information is found to be false or incomplete, the letter becomes void.

End remarks

On the one hand, obtaining such a letter should provide certain comfort and guidance in shaping the envisaged investment or transaction, and businesses acting in good faith based on a guidance letter should generally be shielded from fines; on the other hand, particular matters concerning the activities of the companies concerned would need to be disclosed to the authority, and the RCC will not be restricted from subsequently investigating agreements or practices, even if a guidance letter was issued on such matters. Not least, a letter's validity is tied to the accuracy of the information provided, with any discrepancies potentially rendering the guidance void.

Applying for a guidance letter would therefore not replace the need for advice from competition counsel, but it may provide an added layer of comfort, depending on the specifics of the agreement or unilateral practice in question.