Competition Outlook: Will 2024 Be A Game-Changing Year For Antitrust And Foreign Investment Control In Romania?

• Published date: 18 January 2024
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Law Firm: Schoenherr Attorneys at Law
• Author: Ms Georgiana Bădescu

As Carl Sagan aptly stated, "You have to know the past to understand the present." Furthermore, I would argue that knowing the past is also essential for trying to project the future. The historical landscape of antitrust and foreign direct investment ("FDI") control in Romania is, as some of you may expect, complex and, to a certain extent, even frustrating.

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 cloud¹.

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 Ordinance² ("EGO 108/2023") formally designated to implement the ECN+ Directive³, 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 legislation⁴, 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...