Romania: Merger Control

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This country-specific Q&A provides an overview to merger control laws and regulations that may occur in Romania.

It will cover jurisdictional thresholds, the substantive test, process, remedies, penalties, appeals as well as the author’s view on planned future reforms of the merger control regime.

This Q&A is part of the global guide to Merger Control. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/merger-control

  1. Overview

    Merger control is governed in Romania by the provisions of Competition Law no. 21/1996 and of the secondary enactments issued by the Competition Council, which is the relevant enforcement authority. The purpose of merger control is to prevent those economic concentrations which may significantly impede effective competition on the Romanian market or on a part of it, in particular due to the creation or the strengthening of a dominant position.

    Notification to the Competition Council is compulsory for the economic concentrations involving undertakings the turnovers of which fulfil certain thresholds. The jurisdictional thresholds do not vary according to whether the concentration is "foreign-to-foreign". In case the jurisdictional thresholds are met, implementation of an economic concentration in the absence of the Competition Council’s prior clearance may entail the application of a fine of up to 10% of the total turnover achieved by the concerned undertaking during the previous financial year.

    Competition Law no. 21/1996 sets forth special rules for the economic concentrations presenting risks for the national security, which must also be reviewed by the Supreme Council of National Defence.

  2. Is mandatory notification compulsory or voluntary?

    Notification to the Competition Council is compulsory for the economic concentrations involving undertakings the turnovers of which fulfil certain thresholds. An exception to this rule applies when economic concentrations also meet the jurisdictional thresholds for notification to the European Commission.

  3. Is there a prohibition on completion or closing prior to clearance by the relevant authority? Are there possibilities for derogation or carve out?

    The rule is that the implementation of an economic concentration fulfilling the jurisdictional thresholds is forbidden prior to its clearance by the Competition Council. However, Competition Law no. 21/1996 provides for the following exemptions to this rule:

    (i) the Competition Council may grant a derogation and allow the implementation of a concentration prior to its clearance, provided that the parties submit a well-founded request in this respect;

    (ii) a public bid may be implemented before its clearance if the following conditions are met: the concentration is notified as soon as possible and the acquirer does not exercise its voting rights acquired or they are only exercised with the sole purpose of preserving the full value of the investment concerned, based on a derogation granted by the Competition Council.

    In deciding to grant a derogation or not, the Competition Council must take into account the effects that the suspension of the concentration may have on the concerned parties or on third parties, as well as the threat represented by the concentration for competition.

    Competition Law no. 21/1996 does not contain any provisions regarding the possibility to “carve out” the Romanian assets and legal entities in order to avoid delaying the global completion of a concentration.

  4. What are the conditions of the test for control?

    According to Competition Law no. 21/1996, an economic concentration implies a change of control on a lasting basis resulting from:

    (i) a merger between two or several previously independent undertakings or parts of undertakings; or

    (ii) the acquisition, by one or several undertakings or by one or several individuals already controlling at least one undertaking, of direct or indirect control over one or several undertakings or parts of undertakings, either through acquisition of shares or assets, or by contract or other means; this scenario also includes the creation of a full-function joint venture.

    Control results from rights, contracts or any other elements which, taken separately or together and considering the factual or legal circumstances, grant the ability to exercise a decisive influence over an undertaking, in particular through:

    (i) ownership rights or rights of use with respect to the whole or part of the undertaking’s assets;

    (ii) rights or contracts granting a decisive influence over the structure of the undertaking, the vote or the decisions of the undertaking’s direction bodies.

  5. What are the conditions on minority interest in your jurisdiction?

    If the acquisition of minority interest does not entail the acquisition of control over the target, then the operation is not characterized as an economic concentration and is not subject to obtaining the Competition Council’s clearance, irrespective of the concerned parties’ turnovers.

    In certain cases, the acquisition of minority interest entails the acquisition of the possibility to exercise decisive influence over the target’s business, for instance de facto control, or the veto rights with respect to, for instance, the target’s budget, business plan, important investments or the appointment of senior management. In these cases, a concentration arises. There is no minimum percentage shareholding below which it is safe to assume the control will not arise. Given the complexity of situations that may arise in practice, a case-by-case assessment must be carried out.

  6. What are the jurisdictional thresholds (turnover, assets, market share and/or local presence)?

    Economic concentrations subject to merger control are those involving undertakings whose turnovers fulfil the following cumulative thresholds:

    (i) the combined turnover of the concerned parties exceeded EUR ten (10) million in the previous financial year (the “worldwide threshold”); and

    (ii) at least two of the concerned parties each achieved on the territory of Romania an individual turnover exceeding EUR four (4) million in the previous financial year (the “national threshold”).

    For the purpose of the abovementioned thresholds, the turnover of the concerned undertaking is assessed at the group level. Thus, in case of acquisition of sole control, the turnovers to be taken into account are: the turnover achieved by the purchaser (including its group) and the turnover achieved by the target company (including its subsidiaries). In case of acquisition of joint control, the turnovers to be taken into account are: the turnover achieved by each undertaking which will exercise joint control (including their respective groups) and the turnover achieved by the joint venture itself (including its subsidiaries), if applicable.

    In any case, given the complexity of the situations that may arise in practice, it is important that the fulfilment of thresholds be checked on a case-by-case basis.

    The thresholds refer to all revenues of the concerned parties in the previous financial year, and not only to those related to the relevant product market. A local presence is not necessary in order for the abovementioned turnover-based thresholds to be applicable.

    The Competition Council may modify the thresholds after obtaining the opinion of the Ministry of Economy. The modification decision enters into force after 6 months from its publication in the Official Journal of Romania.

  7. How are turnover, assets and/or market shares valued or determined for the purposes of jurisdictional thresholds?

    The turnover corresponds to the total revenues obtained by the undertaking from the sale of products and/or supply of services in the previous financial year (1st of January to 31 December), after deduction of taxes and exports (including intra-community deliveries).

    As regards geographical allocation, the solution varies depending on the products / services. For instance, for the sales of products, as a general rule, the turnover must in principle be allocated to the place where the customer is located. Accordingly, for the purpose of calculating turnover achieved on the territory of Romania, all sales made to customers located in Romania, including sales made from another country, should be taken into account. This may vary in case of services, depending on the type of service. In any case, given the complexity of the situations that may arise in practice, it is important that the fulfilment of thresholds be checked on a case-by-case basis.

    For credit institutions and other financial institutions, the turnover is replaced by the sum of the income items, after deduction of contributions and other taxes directly related to these items.

    For insurance undertakings, the turnover is replaced with the value of gross premiums written which shall comprise all amounts received and receivable based on insurance contracts issued by or on behalf of the insurance undertakings, including outgoing reinsurance premiums, after deduction of taxes and contributions charged in reference to the amounts of individual premiums or the total volume of premiums.

  8. Is there a particular exchange rate required to be used for turnover thresholds and asset values?

    The exchange rate required to be used for the purposes of the jurisdictional thresholds is the exchange rate published by the National Bank of Romania for the last day of the financial year preceding the economic concentration. The exchange rates for the last day of the financial year 2016 are the following: 1 EUR = 4.5411 RON; 1 USD = 4.3033 RON (RON is the Romanian national currency).

  9. Do merger control rules apply to joint ventures (both new joint ventures and acquisitions of joint control over an existing business?

    The Romanian merger control rules (including the jurisdictional thresholds) apply to the creation of a new full-function joint venture (i.e. performing on a lasting basis all the functions of an autonomous economic entity) as well as to the acquisition of joint control over an existing business.

    For the purposes of the jurisdictional thresholds, the turnovers to be taken into account are: the turnover achieved by each undertaking which will exercise joint control (including their respective groups) and the turnover achieved by the joint venture itself (including its subsidiaries), if applicable. Therefore, a joint venture may need to be notified to the Competition Council even if it has no actual or foreseen activities in Romania. Failure to notify the economic concentration to the Competition Council may entail the application of a sanction according to the Competition Law no. 21/1996.

    To the extent that the creation of a joint venture has as object or effect the coordination of the competitive behaviour of the undertakings remaining independent, such coordination shall be assessed under the prohibition of anticompetitive agreements. For such review, the Competition Council shall particularly take into account the following criteria:

    (i) if two or several parent companies retain, to a significant extent, the activities in the same market as the joint venture or in a market which is upstream or downstream to the joint venture’s market or in a neighbouring market in close connection with this market;

    (ii) if through the coordination which constitutes the direct consequence of the creation of the joint venture, the concerned parties have the possibility to eliminate competition for a significant part of the products or services in question.

  10. In relation to “foreign-to-foreign” mergers, do the jurisdictional thresholds vary?

    The jurisdictional thresholds do not vary according to whether the transaction is "foreign-to-foreign". In case the jurisdictional thresholds are met, failure to obtain the Competition Council’s prior clearance may entail the application of sanctions according to Competition Law no. 21/1996 (even in the cases where the use of a simplified notification form is allowed by the law).

  11. For voluntary filing regimes (only), are there any factors not related to competition that might influence the decision as to whether or not notify?

    Not applicable.

  12. Additional information: Jurisdictional Test

    Not applicable.

  13. What is the substantive test applied by the relevant authority to assess whether or not to clear the merger, or to clear it subject to remedies?

    The Competition Council analyses if the notified economic concentrations may significantly impede effective competition in the Romanian market or in a part of it, in particular due to the creation or the strengthening of a dominant position. It is presumed, until proven to the contrary, that one or several undertakings are in a dominant position when the market share or the cumulated market shares in the relevant market are in excess of 40%.

    In making this assessment, the Competition Council applies, in particular, the following criteria established by the European legislation:

    (i) the need to protect, maintain and develop an effective competition in the Romanian market or in a substantial part of it, by taking into account, inter alia, the structure of all concerned markets and the actual or potential competition;

    (ii) the market position of the concerned parties and their economic and financial power, the alternatives available to suppliers and users, their access to sources of supply or markets and any legal or other type of barriers to entry in the market, the supply and demand trends for the relevant goods and services, the interests of the intermediate and final consumers, the technical and economic progress provided that it is to the benefit of the consumer and does not constitute an obstacle to competition.

  14. Are non-competitive factors relevant?

    In applying the substantive test, the Competition Council takes into account competition-related factors.

    However, economic concentrations presenting risks for the national security must also be reviewed by the Supreme Council of National Defence, which analyses them from a national security standpoint.

  15. Are there different tests that apply to particular sectors?

    An additional test applies in the audiovisual media sector. As a general rule, ownership concentration and the size of the audience share in the audiovisual media services market are limited to dimensions which ensure economic efficiency, however without generating any preponderant positions in forming the public opinion.

    It is deemed that a natural or legal person holds a preponderant position in forming the public opinion if the audience share of the program services assigned to it exceeds 30% of the significant market.

    In order to assess the preponderant position in forming the public opinion of a natural or legal person, one must take into account the program services having a significant proportion in forming the public opinion (i.e. general, news, analysis, political/economical debating programs) which are provided by that person as licensed operator or by another licensed company where that person, directly or indirectly, holds more than 20% of the share capital or of the voting rights.

  16. Are ancillary restraints covered by the authority’s clearance decision?

    The Competition Council’s clearance decision also covers the restraints which are directly related and necessary for the implementation of the concentration. Ancillary restraints are to be self-assessed by the concerned parties, in accordance with the guidelines adopted by the Competition Council in this respect. Non-competition, non-solicitation or confidentiality obligations, as well as licence agreements or purchase or supply obligations may be found to be ancillary restraints.

  17. What is the earliest time or stage in the transaction at which a notification can be made?

    The rule is that an economic concentration must be notified after the execution of the relevant agreement and prior to the implementation of the transaction resulting thereof.

    However, the Competition Law no. 21/1996 stipulates that the notification may be filed even prior to the execution of a relevant agreement, provided that the concerned parties prove to the Competition Council their intention to execute a binding agreement which gives rise to a notifiable concentration. In this respect, the concerned parties must submit a pre-contract or any other preliminary arrangement which undoubtedly proves their intention to carry out the economic concentration.

  18. For mandatory filing regimes, is there a statutory deadline for notification of the transaction?

    There is no statutory deadline for notification of economic concentrations to the Competition Council. However, it is forbidden to implement a notifiable economic concentration before its clearance, unless a derogation was granted by the Competition Council in this respect.

  19. What is the basic timetable for the authority’s review?

    The time-limits for the Competition Council’s obligation to adopt a decision with respect to a notified economic concentration start to run on the date when the Competition Council considers that all necessary information and documents were provided by the concerned parties and the notification is complete (the effective date).

    Within 30 calendar days as of the receipt of the complete notification, the Competition Council may decide that that the notified transaction does not fall within the merger control legislation. This instance may occur, for instance, because the notified transaction does not amount to a “concentration” within the meaning of the merger control legislation or even if it constitutes a concentration, it does not meet the jurisdictional thresholds.

    In case the notified concentration falls within the merger control legislation, within 45 calendar days as of the receipt of the complete notification:

    (i) the Competition Council may adopt a clearance decision (with or without conditions) in case there are no serious doubts regarding the compatibility of the notified concentration with a normal competitive environment or such doubts were eliminated by the remedies proposed by the concerned parties and accepted by the Competition Council (“phase I procedure”); or

    (ii) the Competition Council may decide to launch an investigation when the serious doubts regarding the compatibility of the notified concentration with a normal competitive environment were not been eliminated; in this case, within 5 months as of the receipt of the complete notification, the Competition Council will adopt a clearance decision (with or without conditions) or a decision prohibiting the concentration (“phase II procedure”).

    If no decision has been adopted once the deadlines of the “phase I procedure” or, as the case may be, “phase 2 procedure” have expired, the concentration may be implemented.

    The decisions adopted by the Competition Council shall be motivated and communicated to the parties within maximum 120 calendar days as of their adoption. However, in practice, decisions are drafted and communicated to the notifying party within a few days of their adoption.

  20. Under what circumstances the basic timetable may be extended, reset or frozen?

    In case the Competition Council considers that a notification is incomplete, it shall require, within 20 calendar days as of the filing of the notification form, that the notification be supplemented with the missing information or documents. The time-limit for providing the requested information or documents may not exceed 15 calendar days. In duly justified cases, this 15 calendar day time-limit may be extended, upon request of the notifying party.

    In practice, especially for complex cases, the initial request for additional information may be followed by further requests.

    Special rules are set forth for the economic concentrations which may present risks for the national security. The Competition Council must inform the Supreme Council of National Defence with respect to the notified concentrations which may be analysed from a national security standpoint. In case the Supreme Council of National Defence communicates to the Competition Council that a notified concentration may present risks for the national security, the time-limits for the Competition Council’s obligation to adopt a decision are suspended as of the date of such communication. The suspension shall cease on the date when the Competition Council is informed by the Supreme Council of National Defence that the concentration is to be forbidden or does not present risks for the national security, as the case may be. In case the Supreme Council of National Defence decides to forbid the concentration, the proceedings before the Competition Council cease and, within 15 calendar days as of the communication of such decision, the Competition Council will inform the notifying party.

  21. Are there any circumstances in which the review timetable can be shortened?

    The regulations do not provide for specific circumstances which may shorten the review timetable, but in practice submitting a notification form which is as complete as possible may speed up the process. Likewise, concentrations which are less complex or for which a simplified notification form may be used are cleared faster in practice.

  22. Which party is responsible for submitting the filing? Who is responsible for filing in cases of acquisitions of joint control and the creation of new joint ventures?

    In case of concentrations resulting from mergers, acquisitions of joint control or creation of new joint ventures, the notification must be filed jointly by the merging parties or by the parties obtaining the joint control, as the case may be. Concentrations resulting from the acquisition of sole control must be notified by the party acquiring the control.

  23. What information is required in the filing form?

    One of the secondary enactments issued by the Competition Council (the Regulation on economic concentrations) sets forth the template of the notification form (the full form and the simplified form).

    Information which is required to be included in the full form refers mainly to the concerned parties and their turnovers, the structure of the concentration, the definition of the relevant markets and their assessment.

    As regards the simplified form, which may be used in certain cases indicated by the Regulation on economic concentrations (where it is apparent that the concentration in question has negligible effects on competition), such form requires less information on the relevant markets that the full form.

    The Competition Council may require the notifying party to complete the notification form with the missing information or documents. The notification shall be effective only when the Competition Council considers that all necessary information and documents were provided and the notification is complete.

  24. Which supporting documents, if any, must be filed with the authority?

    Along with the notification form, the notifying party/parties must provide: the transaction document(s), the balance sheets of the concerned parties for the previous financial year or the most recent annual reports and accounts of the concerned parties, market reports and comparable documents that were specifically prepared with respect to the concentration or the affected markets.

    Documents may be filed in original or in photocopy (photocopies must be certified for conformity with the originals by the notifying party/parties). In case of documents drafted in other languages than Romanian, a translation into Romanian by an authorized translator must also be submitted. If such documents are official documents, the translation must also be super-legalised or, as the case may be, bear the apostille set out by the Hague Convention abolishing the requirement of legalisation for foreign public documents.

    The notification form must be signed by the legal representative(s) of the notifying party/parties. In case the notification form is signed by proxies of the notifying party/parties, a written power of attorney must be filed along with the notification form.

  25. Is there a filing fee? If so, please specify the amount in local currency.

    The filing fee amounts to RON 4,775 (approximately EUR 1,040). If the Competition Council adopts a clearance decision, the notifying party must also pay a clearance fee which may vary between EUR 10,000 and EUR 25,000 in case the decision is adopted in the “phase I procedure” or between EUR 25,001 and EUR 50,000 in case the decision is adopted in the “phase II procedure”.

  26. Is there a public announcement that a notification has been filed?

    The Competition Council may publish on its website and/or in the press an announcement that a notification has been filed, announcement which includes the name of the concerned parties, their country of origin, the nature of the concentration, the areas of activity of the concerned parties and the notification’s filing date. Such announcement usually contains the short non-confidential summary of the concentration which is provided by the notifying party/parties in the introductive part of the notification form. Additions or modifications of the information regarding the concentration may also be published. The Competition Council must take into account the legitimate interest of the undertakings in the protection of business secrets and other confidential information. The notifying party/parties may request, based on well-founded grounds, that no announcement be published until the adoption of the decision. In any case, such request would be refused when the complexity of the case and the anticipated effects on competition determines the Competition Council to seek for observations from third parties.

  27. Does the authority seek or invite the views of third parties?

    The Competition Council may require information or documents which are necessary for the analysis of the notified concentration, from other undertakings or associations of undertakings or from public authorities and institutions.

    The legislation does not provide for an express exception in this respect for transactions not raising competition issues.

  28. What information may be published by the authority or made available to third parties?

    When a notification is filed, an announcement may be published by the Competition Council on its website and/or in the press. Such announcement usually contains the short non-confidential summary of the concentration which is provided by the notifying party/parties in the introductive part of the notification form. The notifying party/parties may request, based on well-founded grounds, that no announcement be published until the adoption of the decision. In any case, such request would be refused when the complexity of the case and the anticipated effects on competition determines the Competition Council to seek for observations from third parties.

    The notification form, the supporting documents and any other submissions made by the parties (e.g. responses to questionnaires, proposals of remedies) may not be published or made available to third parties by the Competition Council to the extent that they contain business secrets or other confidential information the disclosure of which is not considered necessary by the Competition Council for the purpose of the merger control procedure. The notifying party/parties must clearly indicate, based on well-founded grounds, which information or document submitted to the Competition Council constitutes a business secret or other confidential information and must provide a non-confidential version of them.

    As regards the authority’s decision, a non-confidential version is published in the Official Journal of Romania or on the website of the Competition Council. Since the Competition Council must take into account the legitimate interest in the protection of business secrets, the notifying party/parties are provided with the opportunity to propose and review the non-confidential version of the decision prior to publication.

  29. Does the authority cooperate with antitrust authorities in other jurisdictions?

    The Competition Council cooperates with the national competition authorities of other Member States of the European Union and with the European Commission through the European Competition Network. The Competition Council also has relations with competition authorities of states outside the European Union, as well as with the Organisation for Economic Co-operation and Development.

    In case of an economic concentration which is notifiable both in Romania and in another Member State(s) of the European Union (a “multijurisdictional” concentration), the Competition Council may request the permission of the concerned parties in order to provide confidential information relating to the concentration to the competition authorities of the Member State(s) involved in the assessment of the same concentration.

  30. What kind of remedies are acceptable to the authority? How often are behavioural remedies accepted in comparison with major merger control jurisdictions, such as the EU or US?

    Despite the fact that divestment remedies are preferred by the Competition Council, behavioural remedies were also accepted in several important cases in the last years.

    As regards divestment remedies, the Competition Council does not usually require, in practice, an up-front buyer (however, the general guidelines on remedies for economic concentrations provide for such possibility in certain cases). Third party purchasers of divestment businesses must be approved in advance by the Competition Council, based on the following criteria:

    (i) the purchaser is required to be independent of and unconnected to the parties;

    (ii) the purchaser must possess the financial resources, proven relevant expertise and have the incentive and ability to maintain and develop the divested business as a viable and active competitive force in competition with the parties and other competitors; and

    (iii) the acquisition of the business by a proposed purchaser must neither be likely to create new competition problems nor give rise to a risk that the implementation of the remedies will be delayed; therefore, the proposed purchaser must reasonably be expected to obtain all necessary approvals from the relevant regulatory authorities for the acquisition of the business to be divested.

  31. What procedure applies in the event that remedies are required in order to secure clearance?

    In case there are serious doubts regarding the compatibility of the notified concentration with a normal competitive environment, the parties have to propose remedies to the Competition Council in order to eliminate such serious doubts.

    Remedies can be accepted by the Competition Council in the “phase I procedure” (the initial review period) or in the “phase II procedure” (the extended review period).

    In the “phase I procedure”, the parties may propose remedies before the notification’s effective date (i.e. the date on which the Competition Council considers that the notification is complete) or within maximum 2 weeks as of such date. The parties must also submit a non-confidential version of the remedies, to be published by the Competition Council in order to seek observations from third parties with respect to the proposed remedies.

    If the Competition Council considers that the serious doubts regarding the compatibility of the notified concentration with a normal competitive environment were eliminated by the proposed remedies, a conditional clearance decision is adopted within 45 calendar days as of the effective date. If not, an investigation is launched, within the same time-limit of 45 calendar days. In the “phase II procedure”, the parties must propose remedies within 30 calendar days as of the date when the investigation is launched. Upon the parties’ well-grounded request, the Competition Council may extend this time-limit by maximum 15 calendar days. The parties must also submit a non-confidential version of the remedies, to be published by the Competition Council in order to seek observations from third parties with respect to the proposed remedies. Within maximum 5 months as of the effective date, the Competition Council must adopt a decision: if the proposed remedies are accepted, a conditional clearance decision or, if the proposed remedies are rejected, a decision prohibiting the concentration.

  32. What are the penalties for failure to notify, late notification and breaches of a prohibition on closing?

    In case of notifiable economic concentrations, the failure to notify or the implementation of the concentration prior to being cleared by the Competition Council may result in payment of a fine ranging from 0.5% to 10% of the total turnover achieved by the sanctioned undertaking in the financial year preceding the sanction. The fine may be applied to the undertaking(s) having the obligation to notify (the notifying party/parties). Newly established undertakings which have not achieved any turnover in the financial year preceding the sanction may be sanctioned with a fine ranging from RON 15,000 (approximately EUR 3,260) to RON 2,500,000 (approximately EUR 543,500).

    If an economic concentration is implemented before clearance, the Competition Council may also impose interim measures for restoring or maintaining effective competition. The Competition Council may compel the undertakings to comply with such interim measures by applying daily penalties of up to 5% of the average daily turnover achieved by the sanctioned undertaking in the financial year preceding the sanction. In case of newly established undertakings which have not achieved any turnover in the financial year preceding the sanction, the daily penalty may range between RON 500 (approximately EUR 110) and RON 10,000 (approximately EUR 2,175).

    Therefore, in case the concerned parties wish to proceed with closing before competition clearance, they must priory obtain a derogation from the Competition Council in this respect (based on a well-founded request), in order to avoid to be sanctioned for implementing the concentration prior to clearance.

    The validity of economic concentrations (including those implemented before clearance) depends on the analysis and on the decision adopted by the Completion Council with respect to the concentration in question. In case an economic concentration not cleared by the Competition Council is implemented and thereafter a decision prohibiting that concentration is adopted, the Competition Council may take any measures in order to cancel the concentration and to restore the situation preceding its implementation.

    The fact that a transaction is foreign-to-foreign does not alter the above considerations.

  33. What are the penalties for incomplete or misleading information in the notification or in response to the authority’s questions?

    Providing inaccurate, incomplete or misleading information in the notification or in response to the authority’s questions may entail the application of a fine ranging from 0.1% to 1% of the total turnover achieved by the concerned undertaking in the financial year preceding the sanction. The fine may be applied to the undertaking which is responsible for the inaccurate, incomplete or misleading information in question. Newly established undertakings which have not achieved any turnover in the financial year preceding the sanction may be sanctioned with a fine ranging from RON 10,000 (approximately EUR 2,175) to RON 1,000,000 (approximately EUR 217,400).

    The Competition Council may also compel undertakings to provide the information and documents which are necessary to the Competition Council for analysing the notification of the economic concentration, by applying daily penalties of up to 5% of the average daily turnover achieved by the sanctioned undertaking in the financial year preceding the sanction. In case of newly established undertakings which have not achieved any turnover in the financial year preceding the sanction, the daily penalty may range between RON 300 (approximately EUR 65) and RON 7,000 (approximately EUR 1,520).

  34. Can the authority’s decision be appealed to a court? In particular, can third parties who are not involved in the transaction appeal the decision?

    A Competition Council’s decision adopted with respect to an economic concentration may be appealed by the concerned parties before the Bucharest Court of Appeal, within 30 calendar days as of the communication of the decision to the concerned parties. A third party not involved in the transaction may appeal the decision, in which case the abovementioned time-limit for launching the appeal starts to run when the third party becomes aware of the decision.

    The duration of the appeal procedure depends on the complexity of the case. The court decision issued by the Bucharest Court of Appeal may further be appealed before the High Court of Cassation and Justice.

  35. What are the recent trends in the approach of the relevant authority to enforcement, procedure and substantive assessment?

    In 2016, the Competition Council cleared 62 notified economic concentrations and 3 concentrations which had not been notified (and in relation to which the authority applied sanctions for failure to notify).

    Thus, the number of economic concentrations increased by 68% in comparison to 2015 (37 notified concentrations were cleared by the Competition Council in 2015).

  36. Are there any future developments or planned reforms of the merger control regime in your jurisdiction?

    Currently, there are no planned reforms of the merger control regime in Romania.