Law no. 347/2015 approving Government Emergency Ordinance no. 31/2015 amending and supplementing Competition Law no. 21/1996 (”Competition Law”) was published in the Official Gazette no. 973 dated December 29, 2015.
We have listed below the main amendments to the law enforceable as of January 1, 2016.
Decisions of the Competition Council
- Decisions for granting access to confidential information
Decisions for granting access to confidential information have been excluded from the list of decisions of the Competition Council that constitute unilateral administrative acts of individual application, with direct impact on the possibility to challenge them separately in front of administrative courts. - The moment when the Competition Council’s decisions establishing fines or authorization fees in the case of economic concentrations constitute enforceable titles
Competition Council’s decisions setting fines or authorization fees in the case of economic concentrations constitute enforceable titles without any further formality, within 30 days as of their communication.
The authorization fee for economic concentrations
The authorization fee payable in the case a decision for authorizing an economic concentration is issued is referenced to the time when the Competition Council is making the analysis and is issuing the decision, as follows:
- between 10,000 euro and 25,000 euro (the limits of authorization fees remain unchanged as to the previous regulation) in the case a non-objection decision is issued when there are no serious doubts about the compatibility of the economic concentration with a normal competitive environment or when doubts were removed by the commitments proposed by the parties and accepted by the Competition Council;
- between 25,001 euro and 50,000 euro in the case a decision authorizing the economic concentration (simple or conditioned by obligations and/or conditions which parties must observe) is adopted after an investigation of the Competition Council due to its having serious doubts regarding compatibility with a normal competitive environment.
Introducing the legal concept of „competition whistleblowers”
“Competition whistleblowers” are defined by the Competition Law as “individuals who provide to the Competition Council, at their own initiative, information on possible infringements of the law”. According to this new provision, any individual who is aware of a possible breach of the Competition Law can provide the information to the Competition Council, under the following assurance:
- by observing the confidentiality, and
- without this action being considered a breach of the confidentiality obligation set forth by the labor legislation.
Introducing the legal institution of interviews in order to gather evidences
In order to gather evidences, competition inspectors, except beginners, in exercising their duties, may hold interviews with any natural or legal person, with their consent, through any means, including electronic available means.
It is expressly established that the act of providing inaccurate or misleading information during this procedure constitutes an offense.
Changes brought to the settlement procedure
The terms of settlement procedure in case of admission of guilt by undertakings during the investigations of the Competition Council have been significantly amended.
- Thus, the admission of guilt must take place only prior to the hearings. In a situation where recognition occurs before the communication of the statement of objection, the Competition Council may apply a simplified procedure;
- The undertaking admitting its guilt may benefit from a reduction of the fine by a percentage ranging between 10 and 30% applied to the base level of the fine but the level of the final fine imposed cannot be lower than 0.2% of the total turnover achieved in the year prior to the sanctioning;
- The undertaking will, however, lose the benefit of the fine reduction in the case where it files an action for annulment against the decision of the Competition Council, at the request addressed by the Competition Council to the courts. It was removed from the law the provision stating that if the undertaking had challenged the decision of the Competition Council, the authority was free to use the admission of guilt, leading to the conclusion that once the undertaking challenges the decision of the Competition Council, the latter would not be able to use the terms of the recognition against the respective undertaking.
Removing the Competition Council’s interdiction to collect certain documents
The interdiction for the Competition Council to collect and / or use as evidence preparatory documents produced by the undertaking with the sole purpose of exercising the right to defense has been removed. Documents covered by attorney-client privilege still remain protected.
Andrei Burz-Pinzaru
Partner, Reff & Associates Attorney at Law
Florentina Munteanu
Associate Partner, Reff & Associates Attorney at Law
Andrea Grigoras
Senior Associate, Attorney at Law
