Less than a month after the Romanian Competition Council (“RCC”) published for consultation on its website a proposal for amendments of the Competition Law No. 21/1996 (“the Competition Law”), the Government passed Emergency Ordinance No. 31/2015 of 30 June 2015 approving some of the RCC’s initial proposals. For additional information regarding the initial amendment proposal, please see our previous contribution on the matter.
The amendments give the RCC new prerogatives following the conclusion of sector inquiries. In case the RCC identifies market dysfunctionalities that affect the competition environment, it can now: (i) issue recommendations; (ii) promote the adoption of new regulations; and (iii) even impose, through a decision, the necessary, adequate and proportionate measures in order to redress the identified market dysfunctionalities. Under the third option, the RCC could ultimately adopt a decision concerning specific undertakings without conducting any prior “regular investigation”. According to the amendments, undertakings concerned by such decisions will nevertheless have a right to access the file and present their arguments in writing. The parties involved may also file a request for oral hearings to be held in the course of the procedure.
New rules were also adopted to implement the settlement procedure. Under the Competition Law, when an undertaking admits that its conduct violated competition rules and proposes remedies in order to mitigate the breach, it will receive a reduction of the fine between 10% and 30%. The undertaking concerned can now make such a settlement request even before being presented with the investigation report - an amendment that the RCC hopes will reduce the length of proceedings and court disputes, as an undertaking will no longer benefit from the reduction of the fine if it subsequently challenges the decision in court. Moreover, the RCC can use the admission as evidence against the respective undertaking. In cases where the undertaking concerned also filed for leniency, the maximum amount of the reduction cannot exceed 60%.
Another amendment concerns economic concentrations. The merger control notification thresholds established by the Competition Law can now be amended by the RCC after having sought the opinion of the Ministry of Economy, Commerce and Tourism. Such changes are to enter into force six (6) months after being published in the Official Gazette.
It is noteworthy that the final text of the Emergency Ordinance does not include some of the more controversial proposals that were included in the initial draft of the RCC, such as: fines based on worldwide turnover of the group, parent-subsidiary liability, or a reduction of the scope of legally privileged documents. It remains to be seen if such amendments will be approved later this year by Parliament.