On May 22 and May 23, 2014, the Competition Council submitted a series of draft regulations and instructions to public debate:

The Draft Regulation for amending the Regulation on the ascertaining of offences and the application of sanctions by the Competition Council, enforced by Order no. 668/2011 issued by the President of the Competition Council

The proposal for the amendment of the Regulation aims at removing from the content of Articles 17 and 19(2) the provision according to which the Council’s decision ascertaining and applying civil sanctions must not be challenged within the statutory time-limit set out by the law in order for it to be held as an enforceable title.

Draft Regulation for amending the Regulation on economic concentrations, enforced by Order no. 385/2010 issued by the President of the Competition Council

This Draft expressly sets out a recommended time-limit of at least 2 weeks prior to the notification of a concentration within which the parties may ask the Council to conduct consultations for the purposes of clarifying key aspects related to that concentration and of at least 5 days prior to the meeting so that the parties may provide the Council with the information required in this respect. Moreover, the scope of protection of the confidentiality of undertakings is restricted to the protection of their business secrets, without any reference being made to other categories of confidential information.

In the event of a merger or acquisition of sole or joint control over an undertaking, it proposes an increase of the combined market share of all parties to the concentration within horizontal relationships of up to less than 20%, and, within vertical relationships, neither the individual market shares nor the combined market shares of all parties to the concentration must be equal to or higher than 30%.

As concerns exemptions from the application of the simplified procedure for analyzing economic concentrations, in the case of economic concentrations within which at least two of the parties to the concentrations are present on closely related neighboring markets, it sets out an increase of the individual market share of one or more parties to the concentration of minimum 30% on a market neighboring another market on which another party is active.

In the case of affected markets, it proposes an increase in the combined market shares of the parties to the concentration, which conduct activities on the same product market (horizontal relationships) to 20% or more, as well as in individual or combined market shares of certain parties to the concentration, which conduct activities on a product market located upstream or downstream of a product market on which any of the remaining parties to the concentration are active to 30% or more, regardless of whether there is or is not an existing supplier/customer relationship between the parties to the concentration (vertical relationships).

Draft Instructions for amending the Instructions concerning the conditions, timelimits and procedure for accepting and evaluating undertakings, in the case of anticompetitive practices, enforced by Order no. 724/2010 issued by the President of the Competition Council

This Draft proposes the introduction of an express provision regarding the case in which an investigation was initiated based on a complaint; in such case, the Competition Council will inform the complaining party, in this stage, in relation to the market test and invite it to provide comments.

Draft Instructions for amending the Instructions concerning the conditions and criteria for applying a clemency policy according to Article 51(2) of Law no. 21/1996 on competition, enforced by Order no. 300/2009 issued by the President of the Competition Council

This Draft contemplates the removal of vertical agreements from the scope of the Instructions.

Moreover, it expressly sets out the immunity from fines (exemption from its application) of undertakings which disclose their participation in an agreement prohibited by Article 5(1) of Law no. 21/1996, and by Article 81 (1) of the Treaty on the Functioning of the European Union.

It sets forth the introduction of the requirement of mentioning that the economic operator did not take any steps in view of forcing other operators into participating to the alleged agreement or into staying a party thereto. This requirement will be included in the relevant clarifications in relation to the evidence provided in support of the request for initiating an investigation by the Council.

Furthermore, it proposes the removal of the economic operator initiating the agreement from the category of economic operators excluded from the benefit of immunity from fines, as well as the removal of the condition related to the territory of Romania in the case of economic operators which disclose their participation in the agreement, but which do not meet the conditions for obtaining immunity, and which may benefit, however, from a reduction of the amount of the fine.

It proposes the regulation of the obligation of the Competition Council to ensure upon the request of the operator requesting clemency, confidentiality in relation to its identity, until the delivery of the investigation report.

Draft Instructions for amending the Instructions concerning the rules for accessing the Competition Council’s case file in situations referring to Articles 5, 6 and 9 of Law no. 21/1996 on competition and to Articles 101 and 102 of the Treaty on the Functioning of the European Union, as well as in cases of economic concentrations

This Draft expressly sets out the obligation to return the documents, which following a more detailed investigation turn out not to be related to the subject matter of the investigation in question, to those from which such documents were collected, by the date at which the investigation report is delivered, at the latest. Moreover, it clearly states that the internal documents from the Competition Council’s case file are not of inculpatory or exculpatory nature.

The draft proposes that, most of the time, the documents be able to receive the status of non-confidential by the mere deletion of the information deemed as confidential. In the event that confidentiality may be ensured by a summary of the relevant information, access to such summary will be granted, access which will be designed by the undertaking benefiting from such confidentiality so as to allow for the identification of the relevant subject matter of the document whose summary is made. The Competition Council will be entitled to verify whether the summary made by the undertaking meets the abovementioned requirement.

It also proposes the removal of the exemplification according to which other confidential information may be information provided by third-parties in relation to the involved economic operators, which may exercise considerable pressure from an economic and commercial point of view on the competitors or business partners, clients and/or suppliers of these economic operators. The requirement concerning the provision of written evidence by third-parties in relation to their reasoned option of remaining anonymous, is also removed.