On 5 August 2010 the amendments to Competition Law No. 21/1996 (Competition Law) were enacted, bringing about substantial changes, such as:

• raising of the de minimis thresholds for application of the law (in principle, 15 per cent market share for vertical agreements and 10 per cent for horizontal agreements);
• a new procedure for imposing interim measures;
• a new settlement procedure;
• express recognition of legal privilege;
• elimination of individual clearance requests for articles 5 (equivalent to article 101 TFEU) and 6 (equivalent to article 101 TFEU);
• changes in the level of fines;
• 30 per cent security payment for court stays of execution;
• express recognition of private enforcement for damages;
• changes in the statutory time limits for issuance of Competition Council decisions;
• wider powers for the Competition Council to oppose mergers; and
• change in the level and computation of merger clearance fees.

Secondary legislation (such as regulations, guidelines, etc) was also subject to significant amendments (the former regulations were replaced and new regulations are expected to be put in place early in 2011 for matters newly regulated by the Competition Law, such as interim measures, commitments, etc).

Sector inquiries and investigations
In 2010 the Competition Council focused on finalising some of the old investigations into pension funds, postal services, audit and other certified accountants services and public tenders for treatment tickets. However, other ongoing investigations (launched as long ago as 2006) are expected to be finalised in 2011 in various fields, such as oil and gas, telecoms, wholesale medicinal products, retail, and so on.

The fines imposed by the Competition Council in 2010 were significant, especially in terms of percentage of the turnover of the undertakings involved. For instance, the investigation into the postal services market ended with the Romanian Post being penalised for abuse of dominance (four different investigations were put together) and subject to a fine of 7.2 per cent of its turnover for applying dissimilar tariff conditions to its contractual partners. Also, for fixing accountants’ tariffs, the Romanian association of accounting experts and certified accountants (CECCAR) was subject to a fine amounting to 9.2 per cent of its turnover. This fine (unprecedented in Romania, where the maximum fine is 10 per cent) was justified by the Competition Council by the duration of the infringement (nine years) and the aggravating circumstances, such as pressing ahead with the infringement after the launch of the investigation and after the competition authority’s warnings.

Another highlight for the competition authority was the penalty imposed on Raiffeisen Bank SA for providing inaccurate information during an investigation launched by the Competition Council on the banking services sector in Romania.

The main investigations launched in 2010 include:

• investigation of the cigarette market against British American Tobacco Trading SRL, British American Tobacco Romania Investment SRL, JT International Manufacturing SA, JT International (Romania) SRL, Philip Morris Trading SRL and Philip Morris Romania SRL for a potential infringement of article 5 of the Competition Law and article 101 of TFEU;
• investigations of the waste management and collection of electronic equipment market and of the sale of new electric and electronic equipment market for potential infringement of article 5 of the Competition Law, article 101 of TFEU and article 9 of the Competition Law;
• the sector inquiry on the production, transport, distribution and provision of thermal energy in Bucharest; and
• investigation of potential infringement of article 6 (abuse of dominance) of the Competition Law by ArcelorMittal Galati SA following a complaint by a port operator (Comvex SA) in Constanta Port.

Merger control
In 2010 the Competition Council issued a large number of clearance decisions, maintaining the trend of no rejection decisions.

Furthermore, in the merger control area, the Competition Council faced some ‘sensitive’ mergers. For instance, the Competition Council authorised the economic concentration between the Caroli Group companies and Campofrio Group companies in Romania, the newly created entity reaching the first position on the cold cuts market in Romania.

As part of the recent changes, the calculation of the clearance fee has also been amended (currently, the clearance fee is determined by reference to the total turnover of the undertaking concerned and capped at E100,000, unlike in the former system where turnover in the relevant market was taken into account). This change will enable the competition authority to shorten the period in which a decision is issued and focus more closely on the economic aspects of mergers, instead of spending time calculating the clearance fee and the turnover relating to the relevant markets, as was the case previously.

D&B David si Baias SCA