1 Relevant Authorities and Legislation
1.1 Who is/are the relevant merger authority(ies)?
The competent merger control authority in Romania is the Romanian Competition Council ("RCC"). Also, the Romanian Government is empowered to review mergers raising national security issues.
1.2 What is the merger legislation?
The main legislative acts regulating concentrations are:
- Law no. 21/1996 on competition ("Competition Law") with the subsequent amendments.
- Regulation on concentrations ("Merger Regulation") approved by RCC Order no. 385/2010, with the subsequent amendments.
- Guidelines on the concepts of concentration, concerned undertakings, full-function joint ventures and calculation of turnover, approved by RCC Order no. 386/2010. Guidelines regarding restrictions directly linked and necessary for the implementation of concentrations, approved by RCC Order no. 387/2010.
- Guidelines for the implementation of Article 32 of the Competition Law no. 21/1996 on the calculation of the authorisation fee for concentrations, approved by RCC Order no. 400/2010, with the subsequent amendments.
- Guidelines on the calculation of sanctions for the misdemeanours stipulated in Article 50 and Article 501 of the Competition Law, approved by RCC Order no. 419/2010.
- Guidelines on the calculation of sanctions for misdemeanours stipulated in Article 51 of the Competition Law, approved by RCC Order no. 420/2010.
- Guidelines on remedies applicable for cases of concentrations, approved by RCC Order no. 688/2010.
- Guidelines on access to the file in cases regarding Article 5, Article 6 and Article 9 of the Competition Law, Articles 101 and 102 of the Treaty on the Functioning of the European Union, as well as for concentrations, approved by RCC Order no. 421/2011, with the subsequent amendments.
- Regulation on tariffs charged for procedures and services provided under the Competition Law and the regulations issued for its implementation, approved by RCC Order no. 426/2011, with the subsequent amendments.
- Regulation on application of sanctions by the RCC approved by RCC Order no. 668/2011.
1.3 Is there any other relevant legislation for foreign mergers?
No. The merger control rules set out under question 1.2 above apply equally to domestic and foreign-to-foreign mergers.
1.4 Is there any other relevant legislation for mergers in particular sectors?
The Romanian Government may issue decisions prohibiting concentrations that pose risks to national security, with observance of the competence of the European Commission, if applicable.
Other than that, there are no special merger control rules for particular sectors.
2 Transactions Caught by Merger Control Legislation
2.1 Which types of transaction are caught – in particular, how is the concept of "control" defined?
The merger control legislation applies to mergers and acquisitions of control over undertakings or parts of undertakings (altogether referred to as 'concentrations').
"Control" is defined as deriving from rights, contracts or any other elements which together or separately confer to an undertaking, or person, the possibility to exercise a decisive influence over an undertaking. The definition of control is sufficiently broad to encompass all types of transactions that bring about changes in control (share deal, asset deal, shareholder agreements, etc.).
2.2 Can the acquisition of a minority shareholding amount to a "merger"?
The acquisition of a minority shareholding is deemed to amount to a concentration only if it implies an acquisition of control. This may occur if the respective minority shareholding is associated with controlling rights, e.g. decisive veto rights in joint control cases providing the possibility to block decision-making processes in negative sole-control cases.
2.3 Are joint ventures subject to merger control?
Only the setting up of a full-function joint venture may be subject to merger control in Romania. Full-function joint ventures are defined as jointly-controlled undertakings which may carry out their business on a long-term basis and which may perform all functions of an autonomous economic entity. The Romanian criteria for assessing whether such requirements are met mirror the principles defined in the European Commission's Consolidated Jurisdictional Notice.
2.4 What are the jurisdictional thresholds for application of merger control?
The merger control review process applies to concentrations involving undertakings with a combined worldwide turnover for the previous financial year exceeding EUR 10,000,000. Furthermore, at least two of these concerned undertakings must each have had a Romanian turnover exceeding EUR 4,000,000 for the previous financial year.
2.5 Does merger control apply in the absence of a substantive overlap?
Merger control applies whenever the conditions mentioned under question 2.4 above are fulfilled, regardless of the absence of substantive overlaps between the concerned undertakings.
2.6 In what circumstances is it likely that transactions between parties outside Romania ("foreign-to-foreign" transactions) would be caught by your merger control legislation?
Foreign-to-foreign transactions are also subject to the merger control of the RCC, whenever the turnover thresholds defined under question 2.4 above are met (of course, the Romanian thresholds must be assessed in this case).
2.7 Please describe any mechanisms whereby the operation of the jurisdictional thresholds may be overridden by other provisions.
Except for the one-stop-shop principle and the referral mechanisms under the EC Merger Regulation, there are no further mechanisms whereby the jurisdiction of RCC may be overridden.
2.8 Where a merger takes place in stages, what principles are applied in order to identify whether the various stages constitute a single transaction or a series of transactions?
The Competition Law provides that acquisitions of different assets taking place between the same undertakings within a period of 2 years are considered a single concentration, finalised on the date of the last transaction.
Other than this, the secondary legislation identifies several situations where a series of transactions are treated as a single concentration:
(a) In successive operations, whereby the first transaction is transitory. The acquisition of control over an undertaking is deemed transitory when such acquisition is made:
- jointly by several undertakings for splitting the target's assets among themselves within a short period of 1 year maximum; or
- jointly by several undertakings for a transitory period of 1 year maximum, at the lapse of which one of the associates is to acquire final sole control.
(b) By an 'intermediary acquirer' on behalf of a final purchaser. In interdependent transactions, one transaction would not have been carried out without the other, and, where control is acquired, it is ultimately by the same undertaking(s). This covers the following situations if interdependent:
- the same buyer acquires a business or undertaking through several acquisition transactions of shares or assets;
- the same buyer acquires the control over several undertakings from different sellers; and
- the same buyer acquires sole control for a transitory period, at the end of which it would be turned into joint control with a third undertaking.
3 Notification and its Impact on the Transaction Timetable
3.1 Where the jurisdictional thresholds are met, is notification compulsory and is there a deadline for notification?
Concentrations meeting the turnover thresholds, described under question 2.4 above, are subject to a mandatory notification to the RCC. This notification may be submitted upon the conclusion of the agreement underlying the respective transaction or upon the announcement of the public bid in the event of an acquisition of control over publicly-traded companies. The Competition Law provides that notifications can be submitted even earlier, if the parties prove their good faith that they intend to conclude the transaction or, where an acquisition takes place by public offering, after the parties have made public their intention to make such an offer. As opposed to the previous merger control regime, there is no specific deadline for notifying a transaction. In any case, the notification must be submitted before the concentration is implemented.
3.2 Please describe any exceptions where, even though the jurisdictional thresholds are met, clearance is not required.
Pursuant to the Competition Law, the following are not considered concentrations:
- Where banks and other credit and financial institutions, insurance and reinsurance companies – the normal activities of which include transactions and dealing in securities for their own account or for the account of others – acquire securities on a temporary basis for resale, provided that they do not exercise voting rights in respect of those securities to determine the competitive behaviour of that undertaking or provided that they exercise such voting rights only to prepare the disposal of those securities and that any such disposal take place within one year of the date of acquisition; the one year term may be prolonged by the RCC.
- Where control is acquired by a liquidator appointed by a court decision or by another person mandated by a public authority to pursue proceedings related to cessation payments, judicial liquidation or any other any similar proceedings.
- Where there are restructuring and reorganisation within the same group of undertakings.
- Where the acquisition of control is made by an undertaking - the sole business purpose of which is to acquire, manage and dispose of the respective participations – without involvement in the management of that undertaking and without exercising the voting rights in respect of the controlled undertaking, in particular, in relation to the appointment of the management and supervisory bodies of the undertaking controlled, except where only to maintain the full value of such investment, but not to determine directly or indirectly the competitive conduct of the undertaking controlled.
3.3 Where a merger technically requires notification and clearance, what are the risks of not filing? Are there any formal sanctions?
The failure to obtain clearance from the RCC prior to the implementation of a notifiable concentration may be sanctioned with a fine ranging from 0.5% to 10% of the total turnover obtained in the previous financial year. For newly set-up companies that did not register any turnover in the previous financial year, the fine may range from RON 15,000 to RON 2,500,000.
3.4 Is it possible to carve out local completion of a merger to avoid delaying global completion?
Romanian merger control legislation does not expressly provide for any form of carve-out mechanism that would allow for an implementation outside Romania. Also, there is no relevant case law on this matter.
Under the Competition Law, however, the RCC is competent to appraise only the effects of the respective concentration on the Romanian market. Therefore, if it is possible to hold the target's Romanian business separate until clearance is obtained by the RCC, it may be argued that the implementation of the merger outside Romania is not prohibited given the absence of the RCC's jurisdiction outside Romania.
The transfer of shares is arguably not an act of early implementation, provided that the acquiring undertaking does not cast the voting rights attached thereto.
On the other hand, since Romanian merger control legislation provides for the possibility to apply for a derogation from the standstill obligation, such approach appears as the safest solution for implementing an international transaction.
3.5 At what stage in the transaction timetable can the notification be filed?
Please see question 3.1 above.
3.6 What is the timeframe for scrutiny of the merger by the merger authority? What are the main stages in the regulatory process? Can the timeframe be suspended by the authority?
Pre-notification phase: parties are advised to initiate prenotification contacts with the RCC 2 weeks prior to the submission of the notification, at the latest.
Submission of notification: within 5 days as of the submission of a notification, the RCC informs the parties in writing whether the notification file meets the requirements to be deemed validly submitted.
Effective date: within 20 days as of the valid submission of the notification, the RCC may request parties concerned to submit additional information/documentation. The deadline for submission of such documents cannot be longer than 15 days from the date of the RCC request. There may be several rounds of requests for information/answers until a notification is deemed complete by the RCC ('effective day').
Phase I: proceedings may last maximum 45 days from the effective day, at the end of which the RCC may issue either a so-called "nonopposition" decision whereby the transaction is authorised or a decision launching Phase II. Non-opposition decisions may be issued if: (i) there are no serious doubts regarding the compatibility of the concentration with a normal competition environment; or (ii) if serious doubts regarding compatibility with a normal competition environment have been removed by commitments proposed by the parties concerned and accepted by the RCC. Phase I may also conclude within 30 days of the effective day, with the issuance of a letter stating that the respective transaction does not fall under the merger control process before the RCC. According to the internal statistics of the competition authority, the average duration for reviewing a notification from submission until Phase I clearance is approx. 2.5 months.
Phase II: if the RCC opens phase II proceedings, it must decide within 5 months as of the effective day whether: (i) to clear the transaction unconditionally; (ii) to clear the transaction subject to commitments; or (iii) to prohibit the transaction. Phase II proceedings may not be extended beyond this 5-month period. In 2010, the RCC launched and closed a Phase II investigation in one case only, concerning the case Lidl/Plus deferred by the European Commission for review by the Romanian and Bulgarian competition authorities. In 2010, the RCC also launched an investigation in relation to the plan envisaged by the Romanian Government to reunite all state owned energy companies into two energy companies. The project was, however, subsequently abandoned and the investigations were closed. Regarding the timeframe for submitting remedies, please refer to question 5.3 below.
Tacit approval: if the RCC does not take any decision within the deadlines established by the law, the notified concentration is considered approved and can be closed.
The current legislation does not expressly regulate the possibility for the RCC to suspend proceedings. Since Phase I and Phase II periods only start from the effective day, proceedings are practically suspended until the parties provide the information required by the RCC. Once a notification is deemed complete, there is no regulated mechanism to suspend proceedings. Nevertheless, the RCC has the possibility to impose significant fines on the parties for failing to (timely) supply the required information.
3.7 Is there any prohibition on completing the transaction before clearance is received or any compulsory waiting period has ended? What are the risks in completing before clearance is received?
It is forbidden to implement a concentration prior to its clearance by the RCC. The RCC may grant derogations from this standstill, upon the parties' reasoned request, even prior to the submission of the formal notification. It is advisable that the parties prioritise the submission of derogation applications since these ultimately impact on the length of the merger review process itself. To date, the RCC has usually approved derogation applications backed by the financial and economic distress of the target undertaking. In 2010, the RCC approved only a single derogation application, for an asset deal, justified by the high maintenance costs incurred by the seller in relation to the target assets.
However, the standstill obligation does not impede the carrying-out of a public offer or series of dealings with publicly-listed securities whereby control is acquired from different sellers, provided that the respective concentration is notified without delay to the RCC and that the acquired voting rights are not exerted.
The following are considered as acts of implementation, inter alia:
- exercising voting rights in respect of the budget, investment plan, business plan and appointment of members in the managing bodies of the target undertaking;
- changing the scope of the business or the commercial name of the target undertaking;
- market entry/exit of the target undertaking;
- restructuring, dissolution or spin-off of the target undertaking;
- selling assets of the target undertaking;
- layoff of employees of the target undertaking;
- conclusion or termination of long-term or other important agreements between the target undertaking and third parties; and
- listing of the target undertaking on a stock exchange market.
For the fining risks related to completing before clearance, please refer to question 3.3 above. The validity of implementation measures taken in breach of the standstill obligation will depend on the outcome of the merger control procedure before the RCC.
3.8 Where notification is required, is there a prescribed format?
There are two types of notification forms: the simplified form; and the full form. The simplified form requires information on the parties, their business and turnover and certain market data. The full form requires, in addition, data on the suppliers, customers and competitors of the parties and extensive information on the competitive effects of the concentration on the market.
3.9 Is there a short form or accelerated procedure for any types of mergers? Are there any informal ways in which the clearance timetable can be speeded up?
The Merger Regulation provides that the following categories of concentrations may be assessed under the simplified merger control procedure:
(i) transactions where two or more undertakings acquire joint control over an undertaking that does not carry out any business in Romania or has only an insignificant business in Romania. This requirement is met if the turnover of the joint venture and/or of the transferred business, as well as the value of the assets transferred to the joint venture, does not exceed EUR 4 million in Romania;
(ii) transactions between parties operating on non-related markets;
(iii) transactions which do not affect markets (i.e., for vertical overlaps, neither of the parties operating upstream or downstream to another party has a market share in excess of 25%; for horizontal overlaps, the parties' combined market share is below 15%); or
(iv) transactions whereby an undertaking acquires sole control of a target over which it previously held joint control.
The concerned parties may initiate pre-notification consultations with the RCC, at least 2 weeks prior to when they intend to submit a simplified notification form with the RCC.
Ideally, a simplified notification form should be deemed effective on the day of its submission to the RCC.
The clearance timetable can be sped up if (a) notification is submitted prior to signing of the transaction documents as the RCC has flexibility to start processing merger control filings on the basis of a LoI or MoU or even draft SPA, (b) offering of remedies already during phase 1 if a conditional clearance is anticipated, and (c) face-to-face meetings involving business people with knowledge about the industry are being sought by the notifying party.
3.10 Who is responsible for making the notification and are there any filing fees?
Mergers must be notified by each of the concerned parties. Acquisitions of control must be notified by parties acquiring control. When there is a change from sole to joint control or when the number of parties holding joint control increases, the notification must be filed by all parties holding joint control.
All merger control notifications are subject to a filing fee in amount of RON 4,775 (approx. EUR 1,105). Cleared concentrations are subject to a clearance fee that ranges between EUR 10,000 and EUR 25,000, depending on the turnover achieved in Romania in the year preceding the clearance of the concentration by the merging undertakings in case of mergers or by the target or the acquiring undertakings/person(s) in case of acquisitions, depending on the type of transaction. The equivalent in RON is calculated at the exchange rate established by the National Bank of Romania, for the last day of the year preceding the issuance of the clearance decision.
3.11 What impact, if any, do rules governing a public offer for a listed business have on the merger control clearance process in such cases?
Outside rules on public offers for listed businesses have no impact on the merger control clearance process in Romania.
3.12 Will the notification be published?
Notifications per se are not published by the RCC. However, where the RCC finds the Competition Law applicable to an economic concentration, it may publish on its website and/or release information from the notification, mentioning the name of the involved undertakings, their country of origin, the nature of concentration, the involved economic sectors and the date when of receipt of the notification. Any additions or changes to the information supplied by the parties may also be published. Nevertheless, the RCC will take into account the legitimate interests of the undertakings in order to protect their business secrets and other confidential information.
4 Substantive Assessment of the Merger and Outcome of the Process
4.1 What is the substantive test against which a merger will be assessed?
The substantive test applied by the RCC in merger control proceedings is whether a concentration leads to significant impediments to efficient competition on the Romanian market or a substantial part thereof, especially by creating or strengthening a dominant position on the Romanian market or a part thereof.
4.2 To what extent are efficiency considerations taken into account?
The Merger Regulations set out rather broad criteria which RCC needs to consider upon assessment of every filing (e.g., market position, sourcing, and entry barriers). Such criteria also refer to economic and technical progress to the extent such represents a benefit to the end consumer and not an obstruction to competition. Apart from this quite broad wording, applicable laws are currently silent in regulating other efficiency considerations. RCC often uses in practice the considerations set out in the EU guidelines in cases where (i) clearance is sought in phase 1 and there overlaps which result in a combined market share of around 40% (threshold as of which market dominance is presumed), or (ii) phase II proceedings in connection with discussions around remedies.
4.3 Are non-competition issues taken into account in assessing the merger?
There is no clear legal basis for RCC to take into account noncompetition issues. When rendering its assessment RCC may however consider some major economic or social aspects on a case-by-case basis.
4.4 What is the scope for the involvement of third parties (or complainants) in the regulatory scrutiny process?
There are several instances where third parties may intervene in the merger control review process:
Submission of comments: in practice, in cases which may raise doubts as to their compatibility with the Romanian market, the RCC proceeds to publish on its website an invitation for third parties to submit comments on the respective concentration. The RCC may also ask third parties to submit their comments within a deadline when it intends to accept commitments proposed by the concerned parties. For this, the RCC will publish a summary of the case and the essential content of the proposed commitments.
Questionnaires: in some cases, the RCC may send questionnaires to third parties such as suppliers, customers, competitors or trade associations for obtaining information on the concerned markets.
Complaints: third parties may file complaints with the RCC regarding concentrations. Upon receipt of a complaint, the RCC may theoretically decide to investigate the contested transaction.
4.5 What information gathering powers does the regulator enjoy in relation to the scrutiny of a merger?
The RCC may require the concerned parties, as well as third parties to provide whatever information and documents it deems relevant for assessing a concentration. The RCC may also interview any legal or natural person who agrees to be interviewed. The case handlers may also request meetings with representatives of the concerned undertakings. RCC officials are also empowered to conduct dawn raids and collect relevant information from any type of support, should the RCC open an investigation for a suspected failure to notify a concentration or for an infringement of the suspension clause.
4.6 During the regulatory process, what provision is there for the protection of commercially sensitive information?
The parties cannot withhold confidential information from the RCC. The parties must identity confidential information by marking it appropriately in the notification file or written answers to the RCC as "business secret" or "confidential information".
The RCC is bound, however, by the confidentiality of such information when publishing a decision or when granting third parties access to the file. Confidential documents, data and information may not be consulted or copied by third parties unless the President of the RCC issues a decision expressly authorising this. Such decision is subject to appeal before the Bucharest Court of Appeals within 15 days from when it was communicated to the concerned parties. The decision of the Bucharest Court of Appeals may be appealed within 5 days of its communication. The courts will rule in an emergency proceeding.
A particular situation is that of the courts, which have the possibility to retrieve confidential information when reviewing cases regarding the awarding of damages. In such circumstances, the courts may ask the RCC to provide them with the entire underlying documentation for decisions whereby an anticompetitive conduct was established and sanctioned. Courts are, however, bound by the confidentiality of commercially-sensitive information or any other information qualified as confidential.
Even though, according to the 2011 amendments to the Competition Law, information collected by the RCC may only be used for the purpose of enforcing the Competition Law, the RCC may nevertheless inform other authorities of aspects provided therein, pertaining to their jurisdiction.
5 The End of the Process: Remedies, Appeals and Enforcement
5.1 How does the regulatory process end?
Please refer to question 3.6.
5.2 Where competition problems are identified, is it possible to negotiate "remedies" which are acceptable to the parties?
Subsequent to filing a merger control notification, the parties may submit proposals for remedies to the RCC. It is possible to submit both behavioural and structural remedies. However, structural remedies are preferred. For example, possible remedies encompass individually or jointly the following: divestments; termination or amendment of existing exclusive agreements; access to necessary infrastructure; networks or key technologies by way of licence agreements or otherwise; and price reporting obligations and mechanisms designed to prevent customer discrimination. The RCC may also accept compartmental remedies, but only under exceptional and specific circumstances, such as where necessary to remedy competition issues arising from conglomerate structures.
5.3 To what extent have remedies been imposed in foreign-to-foreign mergers?
The RCC has not yet issued any decision involving remedies in foreign-to-foreign mergers.
5.4 At what stage in the process can the negotiation of remedies be commenced? Please describe any relevant procedural steps and deadlines.
Remedy proposals may be submitted in both phases of a merger control proceeding. However, remedies may only be accepted if submitted either before when the notification becomes effective or within 2 weeks after, or within 30 days after Phase II proceedings have been opened. In exceptional circumstances, the parties may request a 15-day extension of the 30-day period, in order to find an acceptable remedies solution. If remedies are accepted, the RCC will issue a conditional clearance decision, stating therein also the timeline within which the remedies must be implemented. The failure to comply with the remedies imposed on the concerned undertakings may lead to the revocation of the clearance decision the suspension of the concentration and the imposition of fines of up to 10% of the total turnover.
5.5 If a divestment remedy is required, does the merger authority have a standard approach to the terms and conditions to be applied to the divestment?
No. To date, the RCC has not issued model texts for divesture commitments and trustee mandates.
5.6 Can the parties complete the merger before the remedies have been complied with?
In the clearance decision, the RCC sets forth a timeline within which the respective remedies must be implemented. Meanwhile, parties may proceed to implement the transaction. However, for certain types of remedies such as divestments, the parties may have to delay the implementation of the transaction, depending on the circumstances, until a suitable buyer is found.
5.7 How are any negotiated remedies enforced?
In order to supervise the compliance with divestment-related remedies, the concerned undertakings may have to appoint a representative. Such representatives must be approved by the RCC in advance, and may be investment banks, audit or consultancy companies or any individual familiar with the relevant industry. The representative shall be remunerated by the concerned undertakings and shall safeguard, in good faith, the implementation of the remedies on behalf of the RCC.
5.8 Will a clearance decision cover ancillary restrictions?
RCC clearance decisions are deemed to cover ancillary restraints. Nevertheless, the parties to a transaction must assess on their own whether a restriction falls within the ancillary restraints category, pursuant to the RCC Guidelines on ancillary restraints. In practice, the RCC still plays an active role and informs the parties of the requirements it deems necessary to render restrictions ancillary.
5.9 Can a decision on merger clearance be appealed?
RCC merger control decisions are subject to appeal before the Bucharest Court of Appeals within 30 days of their communication to the parties. The judgment of the Court of Appeals is subject to a further and final appeal to the High Court of Cassation and Justice.
5.10 What is the time limit for any appeal?
Please see the answer to question 5.9 above.
5.11 Is there a time limit for enforcement of merger control legislation?
The statute of limitations for the failure to notify a concentration or for its implementation is 5 years. The statute of limitations for procedural infringements is 3 years. These periods begin to run from the date when the unlawful practice occurred. In the case of continuous unlawful practices, the statute of limitations is calculated from the date of the last unlawful act.
6.1 To what extent does the merger authority in Romania liaise with those in other jurisdictions?
The RCC is a member of the International Competition Network and of the European Competition Network. The RCC may demand documents and information and may carry out inspections of various undertakings at the request of the European Commission and of other competition authorities in the EU Member States.
6.2 Are there any proposals for reform of the merger control regime in Romania?
Recently, the RCC released a document describing the reform goals for its activity. Two of the proposals address economic concentrations. Firstly, the RCC intends to pass Guidelines on the simplified procedure for economic concentrations. The procedure will involve a less hierarchical structure and approach, in order to maximise results. Secondly, the RCC plans to adopt criteria for reviewing the impact the application of competition rules and the analysis of competitive effects have on cases of economic concentrations and abuse of dominance. Such criteria will be geared towards consumer benefits and, according to the RCC, will consist of internationally-acknowledged methods, which will take into account the recent literature.
6.3 Please identify the date as at which your answers are up to date.
Our answers are up to date as of September 20, 2012.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.