Competition law -General Provisions
Art.1. - The purpose of the present Law is to protect, maintain and stimulate competition and a normal competing environment, in order to promote consumer's interests.
Art. 2. - The provisions of the present Law are applied to acts and facts that determine or could determine shrinking, stopping or falsifying of competition done by:
1. economic agents, their associates (physical or juridical persons) of Romanian or foreign citizenship or nationality, named as "economic agents".
2. the public central or local administration bodies, if by their ssued decisions or adopted regulations, interfere in market operations, directly or indirectly influencing competition, excepting situations when this measures are taken in applying
other laws or when protecting a major public interest.
When economic agents according paragraph (1) letter a), participates in an association based on agreement, pact, protocol,contract, or other forms, explicit, public or secret, but without juridical personality and no matter of form - entente, coalition, group, block, federation, and other similar - for acts and facts defined at paragraph (1), done while participating at such association, the provisions of the present Law are applied to each economic agent, based on the proportion principle.
The provisions of the present Law are applied to acts and facts defined at paragraph (1), done on Romanian territory, as well as done abroad and having effects on Romanian territory.
The present Law does not apply:
1. to workforce market and work relations;
2. to monetary market and bond market, if free competition on this market is object of special regulations;
Art. 3. - The administration of the present Law and its applying is done by the Council of Competition, as autonomous administrative authority and the Office of Competition, specialized body coordinated by Government, empowered in the conditions and limits established by the following provisions.
Art. 4. - Products prices and tariffs for services and works are freely determined by competition, based on demand and offer. Prices and tariffs applied by the regies autonomous, and the ones applied within the activities of natural monopoly, or of those activities under special legal regime, are established with the approval of the Office of Competition.
In those economic sectors or markets where competition is excluded or significantly shrinked by law or by monopoly position, the Government can, by decision, establish appropriate control measures of prices for a period no longer than 3 years, period that can be prolonged successively on periods of one year the most, if the causes that determined adoption of that decision, still exists.
For determined economic sectors and for exceptional situations as: crisis, major lack of poise between demand and offer and obvious disfunctionallity of market, Government can decide temporarily measures for avoiding excessive increases of prices, or even their blocking. Such measures can be adopted by decision for a period of 6 month, that can be prolonged successively with periods of 3 months the most, as long as causes that determined adoption of that decision, still exists.
Government intervention in situations provided in paragraph (2) and (3) is done with the approval of the Council of Competition.
Anti Competition Practices
Art. 5. - There are forbidden any express or tacit agreements between economic agents or associations of economic agents, any decisions of association or concerted practices among these, that are aimed to shrink, block or falsify competition on Romanian market, or part of it, especially those that aim:
1. concerted targeting, directly or indirectly, of prices for buying or selling, of tariffs, discounts, markups, as well as of any other unfair commercial terms;
2. limitation or control of production, distribution, technological development or investments;
3. dividing of markets, or of suppliers based on territorial criteria, on level of sales and purchasing, or on other criteria;
4. applying, regarding commercial partners, of unequal conditions on equal services, determining in this way, to some of them, a disadvantage in their competing position;
5. conditioning of a contract conclusion by acceptance of different clauses that stipulates supplementary services that have no link with the object of this contracts;
6. participating in concerted way with false offers at bids or at any other forms of contests of offers;
7. elimination from the market of other competitors, limiting or blocking access in the market and of freedom to compete by other economic agents, as well as agreements for not purchasing from or selling to certain economic agents without a reasonable justification.
Exceptions from the interdiction established at paragraph (1) agreements, decisions of association or concerted actions that carry out cumulative conditions from letters a)-d) and one of the conditions from letter e) as follows:
1. positive effects prevail negative ones, or are enough to compensate competition shrinking determined by those agreements, association decisions or concerted actions;
2. beneficiaries or consumers are ensured an advantage according to the one achieved by parts on the respective agreement, association decision or concerted action;
3. eventual shrinking of competition are indispensable for obtaining the forecast advantages, and through respective agreement, association decision or concerted action, to parties are not imposed restrictions that are not necessary for achieving objectives enlisted at letter e);
4. the respective agreement, association decision or concerted action does not give to economic agents or associations of economic agents the possibility to eliminate competition on a substantial part of market for products or services that it
refers to;
5.agreement, association decision or concerted action in cause determines or will determine in a significant way to:
improving production or product distribution, working or services; promotion of technical or economical progress, improving quality of products and services; strengthening the competing positions of small and medium size companies on domestic market; increasing degree of competitivity of Romanian products, works and services on foreign market; applying of prices significantly reduced for consumers;
The benefit of exceptions provided at paragraph (2) are granted by decision of Council of Competition for individual cases of agreements, association decisions or concerted actions, and are established by the book of rules of the Council of Competition, for some categories of agreements, association decisions or concerted actions;
For individual exceptions of agreements, association decisions or concerted actions, economic agents or associations of economic agents will ask exemption from Council of Competition, proving fulfillment of conditions established at paragraph (2);
conditions of asking for exemption, of decision for granting it, terms, presented information, duration and conditions for exemptions are established by regulations of the Council of Competition.
Categories of agreements, association decisions and concerted practices, excepted from applying of provisions from paragraph (1), as well as conditions and criteria for categories, are established by regulations of the Council of Competition.
Decisions of granting exemptions for agreements, association decisions or concerted actions within the provisions from paragraph (2)-(4), will specify the applying date, exemption duration, condition and oligations that must be observed by beneficiaries.
Agreements, association decisions or concerted actions within the categories exempted from provisions provided at paragraph (1), will be notified by the economic agents or associations of economic agents to the Council of Competition, that will verify the fulfillment of conditions, criteria and procedures established by this through regulations and rules. If the answer is not communicated to the Council of Competition in the term established by rules, the notifier will be considered to be into the
exempted category.
The exemption granted according paragraph (6) for an agreement, association decision or concerted action, can be renewed, at request, if required conditions are still satisfied, and can be revoked, if conditions when it was granted have been modified; decision of granting exemption is null, if it was granted based on false, inaccurate or incomplete information.
Art. 6. - It is forbidden using in an abusive way of a dominant position detained by one or more economic agents on Romanian market, or on a substantial part of it, by using anticompetition actions that affect or will affect trade or prejudice consumers. Such abusive practices can mainly consist in:
1. imposing, directly or indirectly, of selling or buying prices, or of other unfair contractual clauses and refusing of dealing with certain suppliers or beneficiaries
2. limitation of production, distribution or technological development in the disadvantage of users or consumers
3. applying, regarding commercial partners, of some unequal conditions at equal services, such determining to some of them a disadvantage in the competing position
4. conditioning conclusion of contracts by partners acceptance of some clauses regarding supplementary services that have no connection neither by their nature, nor by commercial practices.
5. importing without competition of offers and practices of technical-commercial negociations, in case of products and
services that determine the general level of prices and tariffs in economy
6. applying excessive prices or dumping prices, under costs, aiming to eliminate competition or export selling under
production prices, covering the differences by imposing increased prices to domestic consumers
7. exploiting the status of economic dependence of a client or supplier towards such an agent or economic agents that do not have an alternate solution in equivalent conditions, as well as breaking contractual relations for the only reason that
the partner refuses to obey to unjustifiable commercial terms
Art.7. - If, by adopted measures and by sanctions applied by Council of Competition, according to provisions of chapter IV-VI of the present Law, to an economic agent abusing his dominant position, is not solved the situation and prevented the repeating of the abuse, the Council of Competition, for the reason of harming major public interest, can ask to the Court of Appeal in whose territorial area exists the headquarters of the economic agent that abuses by its dominant position, to order adequate actions to liquidate its dominant position on market, Court of Law will proceed, according to the case:
a) canceling of contracts or of contract clauses through which is abusively exploited the dominant position
b) canceling of the act or acts of achieving a creative concentration of dominant position, even when through the act or juridical acts in discussion, a new juridical person would have been set up.
c) limitation or interdiction of access on the market
d) selling of assets
e) restructuring through dividing the economic agent
Council of Competition has to specify, indicating the legal text, the action or actions that have to be ordered by Court, without asking applying of one or all of them, and Court without ordering any other action than the one or ones that are mentioned in the application.
Court of Law can order one or more of actions provided at paragraph (1) only under condition that any increases of prices determined by this will be avoided, as well as avoiding affecting the economic agent in executing the obligations undertaken towards third parties.
In cases of Regies Autonomes, of commercial companies where the State is major shareholder, as well as other institutions or public bodies that perform production activities, distribution or services, but without this to act prerogatives of public authority, Council of Competition notifies the abilitated body of local or central public administration, to accordingly decide regarding solving situation and preventing abuse repeating, through restructuring or other actions adequate to the situation, being able to notify the competent Court of Appeal only in case of not adopting any adequate decision by the administrative body in a period of 30 days from notify.
It is considered major public interest, justifying the request of Council of Competition for deciding extreme actions from those provided at paragraph (1), public security, independent economic agents, consumers welfare, prudential rules. The task of proving important harming of a major public interest belongs to Council of Competition.
For the situations provided at paragraph (4), the competent body of public administration can intervene in trial according to the rules of Civil Procedure Law
Against the Court of Appeal verdict, notified according to paragraph (1) or (4), appeal to Supreme Court of Justice of can be done by Council of Competition, economic agents under its measures, as well as in situations provided at paragraph (4), the competent body of public administration
Art. 8. - Provisions of Art.5 and 6 do not apply in case of economic agents or association of economic agents whose turnover of fiscal year results from before having a behaviour susceptible of being considered anticompetition practices, does not exceed a level yearly established by the Council of Competition, and market share of the economic agent or of the economic agents members of association does not exceed 5%
Limits provided at paragraph (1) do not apply to anticompetition forbidden by provisions of Art.5 and 6 when they refer to prices, tariffs, agreements of market segmenting or auctions
Art 9. - There are forbidden any actions of public administration bodies, central or local, having as object or determining shrinking, blocking or falsifying competition, especially:
1. To take decisions that limitate freedom of trade or autonomy of economic agents, that is done respecting the legal
provisions.
2. To establish discriminative conditions for the activity of the economic agents
(2) Provisions of paragraph (1) are not object of applying the exemption established at Art.2, paragraph (1), letter b).
Art.10. - The public administration bodies, central and local, as well as other institutions empowered by law to restructure through merger or division the regies autonomes, commercial companies where the State is major shareholder, or other state owned juridical persons that carry on activities of production, distribution or services, will ask to Council of Competition approval regarding creation and improving competition climate in economy, made by foreseen restructuring, shrinking the size of the economic agents, in conditions of preserving scale economies and increasing the number of economic agents that offer similar or substitute products or services
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