During the final quarter of 2014, Romanian antitrust legislation was amended regarding both aspects of procedure applied by the Romanian Competition Council (RCC) and merger control regulations modified as a result of amendments implemented at the EU level in 2014.
Amendments brought to the access to file procedure
The provisions regarding the access to file procedure included in the Romanian Competition Law were subject to subsequent modifications at the end of 2014.
According to the Competition Law, in the context of an investigation, the confidential documents included in the RCC file are made available to the investigated parties in the context of the access to file procedure, based on an order issued by the RCC President. Before the adoption of the amendments, the order of the RCC President whereby the parties to an investigation were denied access to such confidential documents might have been challenged directly in court; when a claim was initiated, the investigation process would be suspended until a court decision on the claim was issued.
Following the adoption of the relevant amendments, such an order may only be challenged along with the final decision issued in the respective case, and the challenge must be lodged by way of the same court action.
In this context, the parties to the investigation are no longer able to challenge potential breaches of access to information which is necessary in the preparation of their defense prior to the finalization of the investigation.
At the end of 2014, the Guidelines regarding the rules of access to the RCC file was also modified by clarifying the definitions of “business secret” and “other confidential information”.
Amendments to the Regulation on economic concentration (RCC Merger Regulation)
In October 2014, the RCC Merger Regulation was modified to reflect the package of measures adopted by the European Commission at the end of 2013 for the simplification of procedures for notifying mergers under the EU Merger Regulation.
The scope of the simplified merger procedure has been extended in order to mirror amendments brought by the European Commission. In this context, the RCC has increased the market share limits in the sense that the simplified procedure covers transactions where parties’ combined market shares are below 20 percent for horizontal overlaps and below 30 percent for vertical overlaps.
Similarly, the RCC amended the definition of the “affected markets” of Annex 1 to the RCC Merger Regulation (which mirrors Form CO of the European Commission’s Implementing Regulation). Parties only need to submit information for affected markets where there are horizontal overlaps of more than 20 percent (previously 15 percent) and vertical overlaps of more than 30 percent (previously 25 percent).
The RCC Merger Regulation also emphasises the importance of pre-notification contacts in cases of simplified notification, but notes that such contacts are not mandatory and that the parties are recommended to request a meeting with the RCC representative, with a two-week deadline prior to the submission of the notification, provided that they submit relevant information in relation to the envisaged notification prior to such meeting.
Amendments to the Guidelines regarding the acceptance of commitments in antitrust cases (Commitments Guidelines)
According to the amendments to the Commitments Guidelines, should a commitments proposal be prima facie deemed acceptable by the RCC and if the investigation was initiated based on a complaint, then the complainant will also be notified in relation to the market test and will be invited to submit observations (similar to the provisions of the Commission’s Best Practices on the conduct of proceedings concerning art. 101 and 102 TFEU). Moreover, the deadline for the submission of observations within the commitments procedure by third parties cannot be shorter than 30 days (previously it was 15).
Amendments to the Regulation for ascertaining of breaches and application of fines
The RCC Regulation for ascertaining of breaches and application of fines has been modified in order to include that the RCC decision for application of fines constitutes a writ of execution, without any other formality being necessary.
Other amendments concerning the adoption of decisions by the RCC Plenum
The modality of adopting decisions by the RCC Plenum has been modified. In previous version of the Competition Law, meetings of the RCC Plenum were valid when held in the presence of five out of seven members and the decisions were valid with the vote of the majority of its members. These requirements have been amended to the following:
The RCC Plenum meetings are validly held in the presence of the majority of the Plenum members in function, but with no less than three of such members and Decisions may be validly adopted with the vote of the majority of the present members of the Plenum.
Implications of the amendments
The amendments brought to the RCC Merger Regulation should result in a better alignment of the local merger control rules with those applicable at EU level.
Moreover, as regards the additional modifications, it seems that the RCC intended to correct certain disadvantages and failures of the previous legal provisions observed in practice. However, the issue of the application and interpretation of such amendments in practice remains open, while the amendment which removed the right to challenge in court immediately the denial of access to information in the file raises concerns from the perspective of the Romanian Constitution. Several companies have already raised an unconstitutionality claim and the Constitutional Court will have to decide the issue.