Parliament is debating a proposed amendment to the law on the sale of food products that would oblige all authorised retailers of food products to ensure that 51% of meat, fruit and vegetables are acquired from the short food supply chain. The proposal raises a number of legal and practical issues, and risks infringing one of the four basic freedoms of the EU common market: the free movement of goods.
Recently issued Government Emergency Ordinance 31/2015 introduces a number of significant changes to the Competition Law, including with regard to merger notification obligations, the organisation and structure of the Competition Council and settlement procedures. The council had proposed further amendments, but these proved highly controversial and were ultimately shelved.
According to the Romanian Constitution, the High Court of Cassation and Justice must ensure the unitary interpretation and application of the law by the other courts. However, as a recent case regarding an antitrust agreement shows, the high court is often one of the worst offenders regarding this principle.
The recently published Government Ordinance 12/2014 makes significant amendments to the Unfair Competition Law and the Competition Law. The amendments provide welcome clarity and streamline certain procedures. However, they also raise substantial questions, including with regard to the Competition Council's discretion to pursue cases and companies' right to defence.
The recent entry into force of the new Criminal Code and Criminal Procedure Code has brought a number of changes to the Competition Law, one of the most significant of which pertains to Competition Council dawn raids. Although the amendments should be seen as a step in the right direction, especially in terms of compliance with EU human rights law, further steps still need to be taken.
The Romanian Competition Council recently launched its second sector inquiry into the pharmaceuticals industry. The inquiry will highlight certain aspects raised by producers' commercial activities in Romania – specifically, the causes of delays in generics entering or penetrating the market and the extent to which the direct-to-pharmacies model fits into the legal framework.
The Competition Council marked the end of 2012 by announcing the conclusion of two investigations into alleged bid-rigging practices surrounding public tender procedures organised by two of Romania's most important public undertakings. In addition, the procedure by which the council took control of the Supervisory Board in the Railway Sector from the Ministry of Transport came to a greatly anticipated end.
Two high-profile investigations into the pharmaceuticals sector have been closed. One, which did not result in penalties, raised the question of when an association's lobbying, for its members' benefit, may amount to an anti-competitive agreement. In the other, pharmaceutical companies Bayer and Sintofarm and certain distributors were fined around €12 million for having concluded anti-competitive agreements.
Including: Main laws and regulations; Competent authorities; Economic concentrations; Anti-competitive practices; Abuse of dominant position; Penalties.
In what is quickly becoming an established tradition, the Competition Council has issued its third annual report on competition in key sectors of the economy. Focusing on banking, pharmaceuticals and public procurement, it highlights the sensitive sectors that the council may be targeting for investigations and, for the first time, outlines the indicators used by the council in assessing levels of competition in a particular sector.
The modernisation of Romania's competition rules affects a wide array of substantial and procedural matters. New rules on penalties and fines - and the overall benefit to the business environment - are changes for the better. However, amendments on the presumption of dominant position, the right to a hearing and the authorisation fee appear to depart from the EU model.
The Competition Council's new rules seek to enhance competition in the telecommunications sector and harmonise Romania's legal framework with EU rules. Among other things, the council has set out the procedure that it will adopt when assessing an access agreement. More generally, it has clarified the relationship between competition law and sector-specific rules and regulations.
The Competition Council has approved a set of instructions on commitments in the field of mergers and acquisitions, detailing the main types of commitment, as well as their specific conditions. The instructions offer guidance to enterprises that seek to make such changes compatible with a healthy competition environment.
A package of amendments to Romania's competition control regime seeks to combine structural and operational changes to the Competition Council and a shift in its policy on monitoring and enforcement. Greater use of guidance letters and official position statements would help companies to identify and avoid anti-competitive practices.
The recent amendments to the Competition Law extend the list of penalties to which an economic agent exposes itself when it contravenes the law. However, it is hoped that other changes will reduce the bureaucratic burden on market participants and allow for more direct contact with the authority for guidance purposes.
A series of amendments to one of the fundamental working instruments of the Competition Council has recently entered into force. Among other things, the amending regulation provides that the council's two special divisions for industry and energy and for consumer goods and services will continue to be coordinated by their directorates, but will also be overseen by a commission.
The Competition Council has opened an investigation into the alleged premature implementation of an economic concentration involving a well-known generic pharmaceuticals company. However, more surprising was its decision to order dawn raids on both parties - the first in Romania in connection with a merger control case and a clear demonstration of the regulator's approach in future.
The Competition Council and an independent think tank have prepared a report that examines seven key sectors of the economy: banking, food retail, public procurement, energy, pharmaceuticals, professional services and taxi services. It highlights factors that may affect the functioning of the national markets and offers guidance on a number of practices that are encountered or envisaged on such markets.
The Constitutional Court has ruled unconstitutional the provisions in Article 28(2) of the Competition Law on the right to challenge regulations issued by the Competition Council before the administrative courts. It held that requiring parties to challenge regulations within 30 days of notification or publication contravenes constitutional provisions on free access to justice and judicial control over administrative acts.
The investigation of Wrigley Romania and 26 of its distributors for alleged fixing of resale prices and market partitioning ultimately reached the Supreme Court. The case provided greater legal certainty on the issues of a supplier's alleged abuse of dominant position and the significance of documentary evidence of a supplier's anti-competitive practice where there is no proof of acceptance by its trading partners.