Competition outlook: will 2024 be a game-changing year for antitrust and foreign investment control in Romania?

2023 in retrospect

Antitrust enforcement

Last year was marked by the unseen, as what had become traditional patterns of public enforcement in Romania were broken. The Romanian Competition Council (RCC) did not finalise any of its significant investigations for potential breaches last year, other than two cases closed with no sanctions, for potential market sharing concerns on the automotive paints market (opened in 2017) and road signalling instruments (opened in 2020). In exchange, the RCC opened new high-profile cases in the food (butter, sugar and sunflower seed oil), luxury goods, financial, energy, video gaming and app-advertising markets, including by resorting once again to cross-border inspections.

For the first time in a while, the RCC imposed hefty fines on three companies within the same group. The penalty resulted from their obstruction and delay of a raid by refusing to grant access to data hosted on cross-border servers and in the cloud[1].

Private enforcement is still nascent, with truly minimal development in 2023.

Transactions

According to our best guess calculation, the number of merger control filings once again far exceeded 100, while FDI filings were likely at least twofold that number. Most of the cases were reviewed in phase 1. No FDI prohibition or commitment decisions were issued in 2023, a testament to an investor-friendly environment.

Surprises usually come last… Major legislative reshuffle

The end of 2023 was marked by a significant shift in both the antitrust and FDI regimes. The government passed an Emergency Ordinance[2] ("EGO 108/2023") formally designated to implement the ECN+ Directive[3], but in fact far exceeding the scope of the latter.

Here are the key changes brought by EGO 108/2023:

• The benign: The reshuffled antitrust regime sets out new provisions on digital markets and the monitoring powers of the RCC under EU legislation[4], cross-border cooperation during investigations, the priority of leniency applications in the event of multi-jurisdictional proceedings and immunity, or the power of the RCC to impose interim measures, which need to be proportional and limited in time. The latter may also be inspired by the Illumina/GRAIL saga.
• The controversial or please mind the gap: There are also changes contested for not being in line with established EU principles. These include serious limitations to attorney-client privilege[5] or the right of the government to call for "case analyses" based on indications of potential market distortions. In such cases the RCC will conduct inspections (without opening an investigation, but still with prior court approval) and finalise the analysis within six to nine months. How will this ultimately play out in terms of competition authorities needing to be fully independent of any political influence under the ECN+ on the one hand and companies needing to benefit from the effective protection of legal safeguards on the other? We will likely need to wait and see.
• Please mind the process: The RCC now has the power to conduct announced inspections (without court approval), subject to the consent of the undertaking concerned. Why was this specific investigation tool even needed and how often and in what context will it be used? Interviews are now mandatory, subject to penalties for not responding or for providing incorrect or misleading information. Inspection powers have been further strengthened, as inspectors may search and seize data stored anywhere, including on external servers or in the cloud. Personal items used for business purposes (such as mobile phones, tablets and laptops) are also specifically included in the scope of searches.
• The not so good news: Finally, the new antitrust regime sets much more severe fining rules. The maximum fine for companies is 10 % of the worldwide turnover of a single economic unit (not a subsidiary directly involved in an alleged breach). For trade associations, the maximum fine is 10 % of the sum of the worldwide turnovers of members active on the market affected by the association's breach. If the association is unable to pay the fine, the RCC may seek payment from the members (first from members of the decision-making bodies of the association, then from any other member). You might want to rethink membership in Romanian trade associations these days...
• FDI: Foreign direct investment is redefined as an investment of any nature creating long-lasting and direct links between an investor and either an entrepreneur or an undertaking that receives funding from the investor to do business in Romania. This includes investments that allow for effective participation in the management or control of an undertaking. Accordingly, minority shareholdings allowing, for example, the investor to appoint some members to the board or other executive committees of the target trigger a formal filing requirement. The regime is expressly extended to EU investors, although it must be pointed out that this was based on the authority's interpretation of the first iteration of the FDI legislation, despite the somewhat unclear language of the legal texts. There are also some changes to the process rules, including review deadlines and a fast-track process for EU investors. New investments by established investors (which include opening a new production unit, extending capacities, diversifying production or output, and making fundamental changes to the production process) and internal reorganisations remain in scope. The sanctions toolkit is enhanced, as the government may decide to cancel an investment made in breach of the FDI legislation and restore the status quo before implementation. Finally, there is a screening fee of EUR 10,000 payable upfront and returnable if the authority concludes that it had no jurisdiction, for lack of nexus or any other reason.

Outlook for 2024

A lot happened at the end of 2023, if not on the enforcement side, then certainly on the regulatory one. Looking at the past, it is reasonable to expect even stronger antitrust enforcement, considering the array of new powers conferred on the RCC together with new sanctioning rules. The RCC also took a greater interest in less traditional markets in 2023, such as the digital or luxury markets. It should therefore come as no surprise if other investigations are opened in new markets in 2024.

The reshuffled regime has laid the groundwork for a potential game-changing enforcement policy. Companies need to be more mindful of at least the following:

• new rights of competition inspectors and new obligations of companies subject to investigation by the RCC;
• new and more severe maximum fines, especially risks resulting from trade association memberships;
• transaction and new investment planning, to factor in FDI implications.

[1] The sanctions were challenged in court and the fines were stayed by the Bucharest Court of Appeal.

[2] Emergency Government Ordinance No. 108/2023 for the amendment and update of Competition Law No. 21/1996 and other laws, published in the Official Gazette, Part I No. 1100 of 6 December 2023.

[3] Directive (EU) 2019/1 published in the Official Journal of the European Union on 14 January 2019.

[4] Including the FSR, DMA or P2B Regulation.

[5] From mid-2023, my enthusiasm for the expected procedural changes in the context of a then-recent ECJ ruling on LPP (please see: https://ceelegalmatters.com/analysis/1421-partners/georgiana-badescu/23671-key-enforcement-trends-and-top-priorities-of-the-romanian-competition-council) has been curbed for the time being, as under EGO 108/2023 inspectors are allowed to challenge claims for LPP made on the spot and actually read privileged correspondence. The Ombudsman was alerted at the end of December 2023 with a claim for non-constitutionality of the limitations to the LPP brought by EGO 108/2023, and further non-constitutionality claims are likely expected. In a reasonable approach, the limitations manifestly contradicting EU trends will be discarded by the law for approval of EGO 108/2023.

author: Georgiana Bădescu