Legislation and jurisdiction

Relevant legislation and regulators

What is the relevant legislation and who enforces it?

Merger control, as well as the other main areas of competition law, is governed primarily by the Competition Law 21/1996 (the Competition Law), as republished and amended. The provisions of the Competition Law are further completed by the provisions of the Regulation on Economic Concentrations (the Merger Regulation) approved by RCC Order No. 431/2017, as well as the provisions of the Guidelines on the concepts of concentration, concerned undertaking, full-function joint ventures and calculation of turnover, approved by RCC Order No. 386/2010 (the Guidelines). Ancillary restraints are covered by the Guidelines regarding ancillary restraints approved by RCC Order No. 387/2010 (the Ancillary Restraints Guidelines). Remedies are covered by the Guidelines on remedies in the merger sector, approved by RCC Order No. 688/2010 and the relevant market by the Guidelines on the definition of the relevant market approved by RCC Order No. 388/2010. Finally, on 8 June 2017, Emergency Government Ordinance 39/2017 (EGO 39) entered into force, transposing the EU Damages Directive (2014/104/EU) into Romanian law, which mainly aims at facilitating private enforcement of claims before national courts for damages suffered from competition law infringements.

The authority in charge of enforcing the merger control rules in Romania is the Romanian Competition Council (RCC). Furthermore, the approval of the Superior Council for National Defence (SCND) is required in the case of mergers that take place in sectors that may impact national security.

Scope of legislation

What kinds of mergers are caught?

A merger is defined, for the purposes of the Competition Law, as being a transaction that results in a change of control over an undertaking or undertakings, or parts of an undertaking or undertakings on a lasting basis.

As such, there are two types of mergers:

  • a merger between previously independent undertakings or parts of undertakings; and
  • the acquisition of control over one or more undertakings or parts of one or more undertakings by one or more natural persons already controlling at least one undertaking or by one or more undertakings.

What types of joint ventures are caught?

The creation of a joint venture may amount to a merger, provided that the joint venture is a full-function joint venture (ie, an undertaking that carries out its activity on a lasting basis and that performs all functions of an autonomous economic entity).

Is there a definition of ‘control’ and are minority and other interests less than control caught?

Control is defined by article 9(6) of the Competition Law as the possibility of exercising decisive influence on an undertaking. Control may arise on the basis of rights, contracts or any other elements that, either separately or taken together, and taking into account the legal or factual considerations involved, allow a party to exercise a decisive influence over the behaviour of an undertaking, in particular through:

  • ownership or rights to use over all or part of the assets of an undertaking; or
  • rights or contracts conferring a decisive influence over the structure of an undertaking, the voting process or the decision-making process of the management bodies of an undertaking.

 

The acquisition of a minority shareholding may amount to a notifiable concentration if – and only if – it is considered to amount to an acquisition of control, in particular through the existence of veto rights concerning certain strategic decisions of the respective undertaking.

Thresholds, triggers and approvals

What are the jurisdictional thresholds for notification and are there circumstances in which transactions falling below these thresholds may be investigated?

The merger control provisions are applicable to concentrations where the undertakings concerned generated combined worldwide turnover exceeding the equivalent of €10 million in the previous financial year and each of at least two of the undertakings concerned achieved Romanian turnover exceeding the equivalent of €4 million in the previous financial year.

The RCC will not investigate any economic concentration that does not meet the said requirements. To avoid any potential risks, the parties to a merger that falls below the thresholds are advised to notify the RCC and, if the case may be, the SCND for the merger.

Is the filing mandatory or voluntary? If mandatory, do any exceptions exist?

The filing is mandatory and there are no exceptions.

Do foreign-to-foreign mergers have to be notified and is there a local effects or nexus test?

Foreign-to-foreign transactions are subject to merger control by the RCC, whenever the turnover thresholds for notification are met. The lack of local effect, while not removing the requirement for notification, may lead to the concentration being assessed under the simplified procedure.

Are there also rules on foreign investment, special sectors or other relevant approvals?

Concentrations in certain sectors, such as the financial sector, media sector, energy sector and telecoms sector, may be subject to a notification obligation to the sector regulator. There are no specific rules on foreign investment. Notably, any transaction potentially impacting national defence is subject to further clearance by the SCND and since the legal definition of matters with potential impact on national security is very broad, most of the transactions are notified by the RCC to the SCND, for approval purposes.

Law stated date

Correct on

Give the date on which the information above is accurate.

30 April 2020