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LAW ON COMPETITION (Law 21 / 10 April 1996)

 

CHAPTER I 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 issued 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, specialised body co-ordinated 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.

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CHAPTER II 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, mark-ups, 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 competitively 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 fulfilment 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 obligations 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 fulfilment 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 notifies 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 anti-competition 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) cancelling of contracts or of contract clauses through which is abusively exploited the dominant position

b) cancelling 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 anti-competition 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 anti-competition 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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CHAPTER III Economic Concentration

Art.11

Economic concentration is achieved by any juridical act, no matter of its form and which either operates the transfer of property or of using in total or in part the goods, rights and obligations of an economic agent, or has as object or as effect to allow an economic agent or an association of economic agents to exert, directly or indirectly a determining influence upon another economic agent or other economic agents.

An operation of economic concentration is done when:

1.two or more economic agents, independent before, are merging

2.one or more persons that already have control of an economic agent or one or more economic agents, obtain directly or indirectly control upon one or many more other economic agents or upon some parts of them, either through participation at the social capital, either through acquiring shares, through contract or other methods.

Association operations, having as object or as effect co-ordination of computational behaviour of the participant economic agents that remain independent, does not represent concentration through obtaining control, even when such operations would consist in creation of mutual economic entities. If the mutual economic entity is a juridical person carrying out continuously all the functions of a autonomous economic entity, yet without achieving a co-ordination of competitional behaviour, either among founder economic agents, or among entity and them, the operation is a concentration according provisions from paragraph (2), letter b)

In the sense of the present law, the control is due to rights, contracts, or other means that offer, each in part or all together and considering the circumstances, the possibility of excising a determinant influence upon an economic agent, specially from:

1.property rights or of using all or part of assets of an economic agent

2.rights or contracts that offer a determinant influence upon constitution, debates or decisions of an economic agent.

Control is reached, according to provisions from paragraph (2)-(4), by the person or persons or by the economic agents that own the rights or are beneficiaries of the contracts mentioned at paragraph (4), or that, not owing such rights or contracts, have the power to excise the determinant influence that offers such rights or contracts.

Art.12

It is not considered an operation of economic concentration, situations in which:

1.control is obtained and exerted by a liquidator established by Court decision or by other person mandated by public authority to carry on the procedure of stopping the payment, rehabilitation, concordance, judiciary liquidation or any other similar procedure.

2.banks, credit or financial institutions (investments, investments administrations, intermediates of stock exchange) or insurance companies, whose normal activity includes transactions and negotiations on their own, or on behalf of third parties, detain temporarily participation in an economic agent which they got in order to resell them, as long as they do not exert voting rights according to this participations in respect to determine the competitional behaviour of the respective economic agent, or it exerts them only in view of achieving this participation, on the condition that achieving the respective participation to be done in a period of one year calculated from the date of obtaining; at request Council of Competition can prolong the term if the applicant proves that achieving of the obtained participation was not reasonable possible in the fixed term;

3.control is obtained by persons or economic agents mentioned in Art.11 paragraph (2), letter b), on condition that voting rights according to detained participation not to be exerted, especially when appointing members in administration councils, executive management, supervising and control of economic agent where they detain participation, only in view to save the total value of this investment, and not to determine directly or indirectly the competitional behaviour of the controlled economic agent.

Art.13

There are forbidden economic concentrations that have as effect creation or consolidation of a dominant position, lead or might lead to shrinking, eliminating or falsifying in a significant way of competition on the Romanian market or on a part of it.

Art.14

For establishing their compatibility with a normal competitive environment, operations of economic concentration are appreciated upon the following criteria:

1.the necessity of maintaining and developing competition on the Romanian market, considering the structure of all the markets in discussion and of existing or potential competition between economic agents in Romania and abroad

2.the market share detained by the economic agents, their economic and financial power

3.available alternatives for suppliers and users, their access on markets and on supplying sources, as well as any other barriers instituted by normative acts or other nature in penetrating the market

4.the trend of demand and offer for the respective goods and services

5.how much the beneficiaries and consumers interests are affected;

6.contribution to the technical and economical progress.

Economic concentrations can be accepted if the parts interested in the concentration operations prove that they carry out cumulative, the following conditions:

1.the concentration operation will contribute to increasing of economic efficiency, to improve distribution of production or the technique progress, or will increase competitiveness for exports

2.favorable effects of concentration compensate the unfavourable effects of shrinking competition

3.of the resulted advantages will benefit in a reasonable proportion also the consumers, especially through really more reduced prices.

Art.15

Provisions of the present chapter do not apply to the economic concentrations, when the economic agents implied in the action have a total turnover up to 10 billion Lei.

Art.16

Economic concentrations that exceeds the level provided at art.15 are under control and have to be notified to the Council of Competition.

Economic concentration that are done through an agreement, must be notified by each of interested parts ; in the other cases, the notify must be submitted by that economic agent that initiated the concentration.

The procedure of notifying, the terms, documents and information to be presented, communications and the presentation of notes by the economic agents interested, are established by rules and instructions adopted by the Council of Competition.

Until taking, by the Council of Competition, of a decision regarding notified concentration, the economic agents in cause, can adopt only those measures linked to concentration, that are not irreversible and do not modify the structure of the market.

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CHAPTER IV Section I The Council of Competition

Art.17

Council of Competition is set up, autonomous administrative authority in the field of competition, juridical person having headquarters in Bucharest, that exerts its attributions according provisions of the present Law.

The organisational and personnel structure of the Council of Competition, management and execution attributions of its personnel, are established by it through internal regulations.

Art.18

Council of Competition is formed out of 10 members, as follows: a president, 3 vice-presidents and 6 counsellors of competition. The members of the Council of Competition are appointed by the President of Romania, at the mutual proposal of the Economic Commission of the Senate and of the Commission for Economical Politics, Reform and Privatisation of the Chamber of Deputies, that will submit the list with the persons nominated on functions.

Duration of the mandate of the Council of Competition members is of 5 years, having the possibility of being reinvested not more than two times.

For being appointed member of the Council of Competition there are required superior education, high professional competence, a good reputation and at least 10 years of experience in the activities from the fields: commercial, prices and competition, or juridical.

Members of the Council of Competition are civil servants and their status is incompatible with exertion of any other public functions or dignities, excepting teaching in the superior education institutions.

For the members of the Council of Competition it is forbidden to exert, directly or through intermediate persons, of trade activities and participation in administration or management of commercial companies, regies autonomous, or of cooperative organisations. They can not be designated experts or arbitrators, neither by parts, nor by Court of Law or any other institution.

Members of the Council of Competition do not represent the authority that have appointed them, and they are independent in adopting decisions.

The members of the Council of Competition and the inspectors for competition can not be members of political parties or other political groups.

The mandate of the Council of Competition stops:

1.on the duration expires

2.through resignation

3.through death

4.through definitive impossibility of exerting, constituted into an indisponibility that exceeds 60 consecutive days

5.when appears an incompatibility or an impediment from the ones provided at the paragraph (4)-(6), according to the provisions of the paragraph (10)

6.through revoke, for not respecting the provisions of the present Law, or for criminal verdict, through definitive decision of the Criminal Court, for having done a criminal offence.

The members of the Council of Competition are revocable in the case provided at paragraph (8) letter f), by the authority that have appointed them. Until the Criminal Court's verdict becomes definitive, they can be suspended from the function by the same authority.

In case of vacancy of a place in the Council of Competition, due to one of the situations provided at paragraph (8), letters b)-f), it will be proceeded according to the provisions of the paragraph (1), at designating and appointing a new member for the left duration of the mandate, in the vacant function.

Members of the Council of Competition are obliged to notify immediately the Council of appearing of any incompatibility or impeachment situation provided at paragraph (4)-(7), they being lawfully suspended from function in the appearance moment of this situation, and if this situation exceeds 10 consecutive days, the mandate is stopped and will be proceeded according to paragraphs (8) and (10).

Art.19

Before starting to exert the function, each member of the Council of Competition is obliged to be sworn in, towards the President of Romania and in the presence of the other appointed members, as follows:

"I swear to respect the Constitution and the Laws of the country, to defend the interests of Romania, the fundamental rights and liberties of the citizens, to carry on with honour, dignity, loyalty, responsibility and without partiality my duty. So God help me."

The President of the Council of Competition will be sworn in the first.

In case of not sworn in for 30 days from the date of publishing in the Romanian Official Gazette of the appointment Decree, the appointed member is lawfully resigned, the procedure of designation and appointment of another person for the vacant position, being resumed.

The acts done by any of the members of the Council of Competition before the sworn in, are lawfully nulls.

Art.20

The mandate of the first Council of Competition starts from the date of sworn in of the President of the Council of Competition and expires at reaching the term of 5 years calculated from this date.

If, until expiring the existent mandate, the President of the Council of Competition designated for the next mandate will have not sworn in respecting the provisions of Art.19, the active members of the Council of Competition will continue their activity until swearing in of the President of the Council, designated for the next mandate.

Art.21

Council of Competition carries out its activities and debates in quorum and in commissions.

Each commission is formed out of 2 competition counsellors in the componence established by the President of the Council of Competition for each case, and is headed by a Vice-president of the Council of Competition.

The President of the Council of Competition orders investigations and appoints the person to report for each investigation.

Council of Competition examines in quorum:

1.reports of investigations, with eventually notes, and decides upon measures to be adopted

2.authorizing economic concentrations

3.notifying Courts of Law in applying provisions from Art.7

4.points of view, recommendations and approvals to be formulated in carrying on the provisions of the present Law

5.categories of agreements, association decisions and concerted practices proposed for exemption 6.regulation projects proposed to be adopted

7.annual report regarding competition.

In the debating groups, each member has one vote, in case of equal number of votes, the solution voted by the President prevails.

Adopted decisions by the Council of Competition in quorum according to provisions of paragraph (4) are signed by the President on behalf of the Council of Competition; they will be able to be contested in a period of 30 days from publication, or when is the case, from their communication in the procedure of disputed claim at the Appeal Court in Bucharest; verdict will have no right for appeal, against it being possible to declare recourse at the Supreme Court of Law.

Art.22

The president of the Council of Competition will engage patrimonial through his signature, the Council of Competition as a juridical person, and represents it as public institution towards the physical and juridical persons, of legal authorities, judiciary and administrative, as well as of other Romanian, foreign and international institutions. He exerts disciplinary prerogatives upon all the personnel of the Council of Competition.

The orders and decisions of the Council of Competition, through which measures are disposed and penalties are applied, are signed by the President, and regulations adopted by the Council of Competition are applied, suspended or abrogated through order of the President.

In case of absence or of indisponibility of the President, legal representation of the Council of Competition will occur to one of the Vice-president, designated by the President for the period of absence or indisponibility.

The President of the Council of Competition can empower for representing any of the vice-presidents, competition counsellors, competition inspectors, or other persons, the mandate having to mention explicitly the power delegated and their duration.

Art.23

In order to exert its attributions, Council of Competition elaborates and adopts the regulations for organizing, function and procedure and creates its own structure, whose payroll structure will be established through regulations.

(2) The list of functions, conditions of deciding the function and promotion in rank, as well as the attributions of each function are established through the regulations adopted by the Council of Competition.

Art.24

The function of president of the Council of Competition is assimilated to the rank of Minister, vice-president to the rank of State Secretary, and competition counsellor to the Sub- Secretary of State.

Art.25

Under the co-ordination of the Council of Competition, works a General Secretarial Office, headed by a General Secretary designated by the Council of Competition. The attributions of the General Secretary are established by the regulations of organising, functioning and procedure adopted by the Council of Competition.

Art.26

Council of Competition established its own project of budget, which is mentioned distinctly in the State Budget.

For the functioning of the Council of Competition and of its territorial body, Government, and when is the case, the local public administration bodies, will attribute to Council of Competition in administration the necessary buildings, respectively the lands and utilities from the public domain of national interest, or when the case, local, in term of 60 days from the registration of the application of the Council of Competition

Amounts representing taxes and fines or any other sanctions applied by the Council of Competition becomes income to the State Budget in conditions of the law.

Art.27

Council of Competition has the following duties:

1.adopts the decisions provided by the present Law for cases of not respecting the provisions of the Articles 5,6,13 and 16, found out through investigations;

2.certifies, based on the investigations made at request of the economic agents or associations of economic agents and based on the proves presented, that there is no reason for its intervention based on Art.5 paragraph (1) or on Art.6;

3.decides to grant exemptions or individual exemptions of agreements, decisions, or concerted practices, that respect the provisions of Art.5 paragraph (2), as well as decisions of approving economic concentrations, according to the provisions of Art.14 paragraph (2), following the investigation done in notified cases by the economic agents or associations of interested economic agents;

4.ensures effective appliance of own decisions;

5.makes on own initiative market researches;

6.warns the Government upon presence of a monopoly situation or other situations, same as those described in art. 4, paragraph (2) and (3); proposes necessary actions for price control;

7.warns the courts of law on cases of their jurisdiction;

8.supervises the enforcement of legal dispositions and other regulatory acts pertaining to the domain of the present law;

9.warns the Government on public administration bodies, central and local, interfering in the enforcement of the present law;

10.approves projects of Government Decisions having anti- competition impact and suggests modification of regulatory acts having such effects;

11.approves, from the point of view of effects on competition, the policies and the rationale of state support programmes and controls the enforcement of these rules.

12.makes recommendations to the Government and to the local public administration bodies on adopting measures to facilitate market and competition development;

13.proposes to the Government and to the local public administration bodies taking disciplinary action against subordinated personnel in case of not complying with the mandatory dispositions of the Council of Competition;

14.delivers studies and drafts reports on topics pertaining to its domain of activity and supplies the Government, the public and the international organisations with informations on this activity;

15.represents Romania and promotes information and know-how exchange in relations with similar international organisations and institutions and co-operates with foreign and communitary authorities on competition.

Art. 28

The Council of Competition adopts regulations and instructions, issues orders, takes decisions and formulates approvals, makes recommendations and drafts reports.

The Council of Competition adopts regulation on:

• its organisation, functioning and procedure;

• authorisation of economic concentration;

• exemption of certain categories of agreements, association decisions or concerted practice;

• procedures of exemption;

• ascertains and applies sanctions provided by the present law;

• tariffs for notifications, exemption applications, documentation access and release of copies and excerpts; • investigation, inquiry and control personnel;

• personnel's disciplinary procedure.

The Council of Competition adopts instructions on:

• notification of economic concentration;

• notification of inclusion in categories of agreements, decisions of association or exempted concerted practices;

• exemption application and exemption termination;

• computing of turnover and ceilings provisioned by the present law;

• establishing the market segment;

• payment of duties and tariffs established by the present law and regulations.

The Council of Competition issues orders by which it establishes periodically updated ceilings, provisioned by the present law, applies, suspends or terminates adopted regulations, calls for investigation, orders inquiries and measures to be taken against commercial agents.

The decisions are acts of individual administration, management and internal discipline, sanction, authorisation, exemption granting and exemption termination.

Approvals are formulated, recommendations and proposals are made, points of view are formulated, reports are drafted and communicated, or if the case, published, according to the provisions of the present law.

Art. 29

Regulation and instruction projects and also their modification require the approval of the Legislative Council and are afterwards adopted by the quorum of the Council of Competition and applied by order of the president of the Council of Competition.

The regulations issued by the Council of Competition could be attacked as disputed claim in front of the Court of Appeal covering the territorial area where the petitioner is resident.

Art. 30

The Council of Competition will communicate its point of view on any aspect pertaining to the competition policy, at the request of:

1.the Presidency of Romania;

2.commissions of Parliament, senators and representatives;

3.central and local public administration bodies;

4.professional, ownership and trade union organisations, including Romania's Chamber of Commerce and Industry;

5.consumer protection organisations;

6.courts of law and district attorney offices.

Art. 31

In order to fulfil its attributions, the Council of Competition could consult the National Agency for Privatisation, the State Ownership Fund, competent ministries, other public administration bodies and also ownership organisations on privatisation policy, branch or sector policy respectively.

The bodies and organisations provisioned in paragraph (1) will send their point of view to the Council of Competition within 30 days from the request. The point of view will be attached to the report on the analysed case.

Art. 32

The Council of Competition drafts, annually, a report on its activity and the ways by which commercial agents and public authorities are complying to the rules of competitions, according to the present law.

The report is adopted in the quorum of the Council of Competition and is released to the public.

Art. 33

By present law, the following duties are set up:

1.economic concentration authorisation duty;

2.exemption duty for individual exemption for agreements, association decisions or concerted practices.

The authorisation duty for economic concentration is levied at 0.1% from the cumulative turnover of the authorised economic concentration beneficiaries and is computed based on the turnover produced in the fiscal year prior to the authorisation of the economic concentration, determined according to the regulations of the Council of Competition.

The exemption duty, provisioned in paragraph (1), letter b) has annual meaning, is not dividable, irrespective of the moment of year in which the exemption is granted, terminated, expires or is cancelled by any other cause and is levied at 0.1% from the cumulative turnover of the individual exemption beneficiaries; the duty is computed based on the turnover produced in the fiscal year prior to the year the duty is due, determined according to the regulations of the Council of Competition.

The amounts resulted from duties specified by paragraph (1) will be collected by the state budget in due time and according to the procedures established by the fiscal regulations.

The amounts resulted from tariffs on notifications and applications are to be considered income of the Council of Competition.

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SECTION II The Office of Competition

Art. 34

The Office of Competition is established as specialised body of competition, subordinated to the Government, with legal profile and resident in Bucharest city, with attributions according to the present law.

The organisation and personnel structure of the Office of Competition is established by Government decision.

Art. 35

The office is led by the head of the Office of Competition. The position of head of the Office of Competition is assimilated to secretary of state.

The head of the Office of Competition has a deputy who's position is assimilated to sub-secretary of state.

The head of the Office of Competition, or the person empowered by him, represents the Government during consultations of the Council of Competition according to art. 21; when he judges that the decision of the Council of Competition could harm a major public interest, the head of the Office of Competition could request a second consultation of the Council of Competition.

Art. 36

In order to fulfil its attributions, the Office of Competition elaborates and adopts its organisation and functioning regulations, establishes its own investigation and control body, central and territorial, composed of competition inspectors, experts and other positions provided by public institutions payroll regulations.

At territorial level, the Office of Competition sets up county Competition Inspectorates and Bucharest City Inspectorate.

The territorial competition inspectorate is led by a director which must have the position of competition inspector, first rank.

The public position of competition inspector is set up with three ranks - I, II, III and as for payroll and promotion conditions and also for empowerment and duties pending, these are established by regulation adopted by the head of the Office of Competition.

Art. 37

The Office of Competition has the following attributions:

1.executes, at its own initiative or following a complaint, claim or notice, investigations on observance of dispositions of art. 5, 6, 13 and 16 of the present law;

2.approves prices' set up in situations provisioned by art. 4, paragraph (1).

3.monitors implementation of legal dispositions and other regulatory acts incident to the regulatory domain of the present law;

4.monitors effective implementation of decisions issued by the Council of Competition and informs about the findings;

5.monitors prices' evolution over the economy, conducts research within economy's sectors in which the evolution and level of prices, prices' rigidity or any other circumstance suggests a restriction in competition and proposes corrective actions according to legal disposition;

6.elaborates studies and drafts reports in its field of activity and forwards informations on this activity to the Government, the Council of Competition, to the public and international organisations. 7.keeps track of state assistance, monitors and reports, in conditions of transparency, the extension of state assistance.

8.promotes the exchange of information and know-how in relation with similar international organisations and institutions and co- operates with foreign and communitary competition authorities.

Art. 38

The provisions of art. 26, paragraph (1) and (2) and of art. 31 are applied accordingly also to the Office of Competition.

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CHAPTER V Procedures of investigation and decision taking

Art. 39.

Revealing and investigating infringements to the present law are tasks of the Council of Competition and the Office of Competition, which take action through specialised control personnel empowered for this purpose.

In case of an offence defined by art. 63, paragraph (1) of the present law, the personnel designated according to paragraph (1) could perform only the acts established by art. 214 of the Criminal Procedure Code.

The Council of Competition and the Office of Competition will inform one-another on initiated investigations and could co- operate in carrying on any investigation.

Art. 40

The Council of Competition or, according to the case, the Office of Competition orders investigations, according to their attributions, complying with art 46 of the present law:

1.from its own initiative;

2.at the complaint of a physical or legal person really and directly affected by the infringement of provisions of art. 5 paragraph (1), art. 6, 13 and 16 of the present law;

3.at the request of interested commercial agents or associations of commercial agents, according to provisions of art. 5, paragraph (2) or art. 14, paragraph (2);

4.at the request of any authority, institution, organisation or any other body mentioned in art. 30, letter a) through f);

Art. 41

In order to fulfil the attributions conferred by the present law, the personnel of the Council of Competition or, respectively, of the Office of Competition could request necessary informations, making mention of legal base and purpose of the request and could set deadlines until those informations should be made available, against sanctions provided by the present law.

Art. 42

From the control personnel provided in art. 39, paragraph (1), the president of the Council of Competition or, according to the case, the head of the Office of Competition, nominates persons for which he requires investigative power to be granted by the Ministry of Justice, or respectively, warrants perquisition and document arresting or copying rights, sealing or other measures from those provided by art. 214 of the Criminal Procedure Code in relation with infringements of provisions of the present law.

The personnel provided by art. 39, paragraph (1), empowered to investigate infringements of provisions of the present law, could request declarations or any other document necessary to fulfill their mission, seal, arrest any books, financial - accounting and commercial documents or any other kind of record, releasing copies to the person under investigation, or taking copies and leaving the originals; is also authorized to conduct unexpected inspections with results written in a finding report and to receive, by convocation or at site, informations or justifications.

In case of ascertainment of an offence provided in art. 63, paragraph (1), the investigator, empowered according to the above paragraph (1), will proceed according to provisions of art. 39, paragraph (2) from the present law.

Art. 43

Based on the judicial authorisation issued by presidential ordinance, according to art. 44, the investigator could conduct perquisition:

1.within premises, land parcels or business transportation vehicles owned by commercial agents if there are signs that documents could be found or informations obtained that are considered necessary in order to fulfil his mission;

2.at the residence of commercial agents' executives, managers, agents and directors and also at the residence of physical persons in charge of managing the financial, accounting or marketing department, according to the conditions provided by art. 27 paragraph (3) from the Constitution of Romania.

Art. 44

The investigators cannot proceed to perquisition in any place nor can they arrest documents or apply seals other than within an inquiry ordered by the president of the Council of Competition, or respectively by the head of the Office of Competition, and with judicial authorisation issued as order by the president of the county's court of law, or according to the case, the Bucharest city's court of law, in whose jurisdiction area the places to be controlled are located, or by a judge empowered by him. When these places are located in various jurisdiction areas and the action must be simultaneous, anyone of the presidents of competent courts of law could issue a sole ordinance.

The authorisation application must contain all information susceptible to justify the perquisition, and the notified judge is to be hold responsible for checking application grounds.

The perquisition and the included acts are done under the authority and control of the authorising judge who nominates one or more criminal police officers in charge to assist these operations and inform him on their developing. If certain acts must be executed outside the territorial jurisdiction of the court of law, the ordinance issuing president orders a delegate commission to exercise control through the president of the court of law in whose jurisdiction the corresponding acts must be performed.

The judge may inspect the sites under intervention and may decide, at any time, to suspend or terminate the perquisition.

Whatever the circumstances may be, the perquisition may not start before 8:00 am or after 6:00 p.m. and must be performed in presence of site's resident or his representative; only the investigators, the site's resident or his representative can be notified of evidence and documents before arresting them.

Itemisation and seal applying are done according to the provisions of the Criminal Procedure Code; the originals of reports and list of itemisation are sent to perquisition ordering judge and evidence or documents no longer useful to establish the facts are to be released to site's resident.

The ordinance mentioned in paragraph (1) could be appealed in front Bucharest City Court of Appeal; the appeal does not suspend execution.

The president of the Council of Competition, or according to the case, the head of the Office of Competition is informed without delay of the starting of perquisition and of operations performed.

During the entire execution of perquisition, according to dispositions above, the procedure is totally contradictory.

Art. 45

Local and central public administration bodies and also any other public institution or authority is obligated to allow access of investigating and inquiring personnel belonging to the Council of Competition and the Office of Competition, to documents, data and informations detained, as long as these are necessary to fulfil the legal mission of the Council of Competition and the Office of Competition, without opposing the character of state secret or technical secret belonging to such documents, data or information.

The investigation and inquiry personnel, being granted access to documents, data and information mentioned in paragraph (1) is held to strictly observe the character of state secret or technical secret legally attributed to those documents, data and information.

Art. 46

When receiving a complaint or a claim denouncing, respectively accusing an anti -competition practice, the Council of Competition, respectively, the Office of Competition examines if sufficient facts and legal base exists in order to initiate an investigation.

If the request or complaint does not have sufficient base to justify the initiation of an investigation, the Council of Competition, respectively, the Office of Competition rejects it, notifying, in written form, to the author, its decision, including the reasons, within 30 days from request or complaint registration.

Art. 47

Any time it orders the initiation of an investigation, the president of the Council of Competition, respectively, the head of the Office of Competition, nominates an reporting officer, responsible for drafting the report on the investigation, its notifying to the parts involved, receiving observations and presenting the report in front of the quorum of the Council of Competition, if the case.

The nominated reporting officer supervises all the acts of the investigation procedure, proposing to the president of the Council of Competition, respectively, the head of the Office of Competition, taking measures according to their competence.

Art. 48

Any investigation procedure requires hearing of the commercial agents, members of the agreements or participants to the decision of association or concerted practice or economic concentration, object of the investigation. The hearing is ordered by the president of the Council of Competition, or respectively, the head of the Office of Competition.

The president of the Council of Competition, or respectively, the head of the Office of Competition, could nominate experts and could allow the hearing of the author of complaint or claim, at his request, and also of any other physical or legal person that declares detaining relevant data for establishing the truth in the investigated cause.

Failing to show up or renouncing the hearing and also refusing to make any statement or deposition does not impede the development of the investigating procedure.

Art. 49

With minimum 30 days before settled date of hearing, a copy of the report will be transmitted, as information, to the persons whom hearing was ordered according to art. 48 paragraph (1). To the persons whom hearing was admitted according to art. 48, paragraph (2), a copy of the report will be sent only at request and if the president of the Council of Competition judges this to be useful and in the interest of the investigation.

The president of the Council of Competition could allow consulting of the file to the parts in cause, at the secretarial office of the Council of Competition and extension, against payment, of copies and excerpts from the documents of the investigation.

The documents, data and informations from the file of the cause, which have state secret character or are confidential, are not accessible to be consulted or copied, in part or in whole, other than by order of the president of the Council of Competition.

In case of a procedure of investigation, having as object an economic concentration, the provisions of the present article referring to the consulting of the file apply to the associates and executive directors of the entities participating in the concentration, as long as they can justify a legitimate interest in the cause.

Art. 50

After hearings ordered, and if the case, admitted and after examination of part's observations on the investigation report, the Council of Competition could order, as follows:

1.in case of an investigation ordered as a result of self- initiative or at request, regarding the infringements of provisions of art. 6, according to the case, order the ending of ascertained anti-competition practices, formulate recommendations, impose special conditions or other obligations to the parts, apply fees to the commercial agents, according to conditions provided in chp. VI;

2.in case of a request, according to provisions of art. 5, paragraph (4), issues a motivated order to grant or deny an individual exemption for the requested agreement, association decision or concerted practice; 3.in case of a notification, according to the provisions of of art. 5, paragraph (7), issues a motivated order of inclusion or non-inclusion of the notified agreement, association decision or concerted practice within an exempted category.

Art. 51

Within 30 days of receipt of a notice on an economic concentration operation, the Council of Competition:

a) will issue an order, when reaching the conclusion that the notified economic concentration operation does not contradict the present law;

b) will issue a no-objection order, when ascertaining that, although the notified economic concentration operation falls under the incidence of the present law, there are no reasons to deny it;

c) orders the initiation of an investigation, when ascertaining that the notified economic concentration operation falls under the incidence of the present law and shows serious doubts as of its compatibility with a normal competition environment.

Within maximum 5 months from receiving the notification of an economic concentration, for which the Council of Competition has ordered the initiation of an investigation as a result of doubts on its compatibility with a normal competition environment, the Council of Competition:

1.will issue an denial order, if by the economic concentration operation creates or consolidates a dominant position in the terms of art. 13;

2.will issue an authorisation order if, by the economic concentration operation, a dominant position, in the terms of art. 13, is not created nor consolidated;

3.will issue an order by which it establishes obligations and/or conditions to be fulfilled for the authorisation of the economic concentration operation, if it ascertains that, with some modifications, it could be compatible with a normal competition environment.

In the case in which the Council of Competition does not issue an order within deadlines established by paragraph (1) and (2), the notified economic concentration operation could take place, the right of the Council of Competition to initiate an investigation and issue an order, if and when judging necessary, being reserved.

Art. 52

The measures of suspending an interdiction for ascertained anti-competition practices, and also injunctions given to commercial agents in order to revert to previous situations will be ordered by the Council of Competition in applying provisions of art 50 and 51 only when ascertaining explicit illegal facts being anti-competition practices forbidden expressively by the present law and that must be terminated without delay in order to stop or prevent producing a definite and serious damage.

The measures provided in paragraph (1) must be strictly limitate, both in time and object, at what is necessary to correct a manifest and intolerable damage to the free competition.

The orders issued by the Council of Competition in applying provisions of art. 50 and 51 will be notified as soon as possible to the parts. They could be attacked as disputed claim in front of the Court of Appeal in Bucharest, within 30 days from notification. The president of the court could order, at request, the suspension of the attacked order execution.

Art. 53

The order issued by the Council of Competition in applying provisions of art. 51 regarding an economic concentration operation in which a regie autonome is part will be also notified to the responsible ministry.

Within 30 days from order notification according to paragraph (1), the Government, at the initiative of the responsible minister, could issue, on its own responsibility, an different order compared to the one of the Council of Competition, for general public interest reasons. The order is executory and will be published along with the one of the Council of Competition in the Official Gazette of Romania.

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CHAPTER VI Sanctions

Art. 54

All pledges, conventions or contractual clauses referring to an anti-competition practice forbidden by art. 5 and 6 of the present law, being either express or silent, public or occult, are rightfully null.

Art. 55

The following are considered an offence and are sanctioned with fees from 2,000,000 lei up to 100,000,000 lei, if these are not produced in such conditions that, according to the criminal law, could be considered criminal:

1.omission of notification of an economic concentration requested by art. 16;

2.supplying inexact or incomplete information through the application stipulated by provision of art. 5 paragraph (4) or by notification according to provisions of art. 5 paragraph (7) or those of art. 16; 3.supplying inexact information or not supplying information requested according to provisions of art. 41; 4.supplying documents, records or evidences in an incomplete form, during investigation carried on according to provisions of art. 41, paragraph (2);

5.refusing to be submitted to control carried on according to provisions of art. 42, paragraph (1) and art. 43.

Art. 56

Following offences will are sanctioned with fee from 5,000,000 lei up to 250,000,000 lei, and for commercial agents with a turnover above 2,500,000,000 lei, with a fee of up to 10% of the turnover:

a) infringements of provisions of art. 5, paragraph (1), art. 6 or art. 13 of the present law;

b) concluding a economic concentration operation with infringement of provisions of art. 16, paragraph (4);

c) initiating an economic concentration action that is declared incompatible with the provisions of the present law by an order of the Council of Competition, taken according to provisions of art. 51, paragraph (2), letter a);

d) un-fulfillment of an obligation or condition imposed by an order taken according to provisions of the present law.

Art. 57

Customising the sanction, in case of an offence provided by art. 55 and 56, is made taking into account the gravity and its consequences on the competitors, using criteria of turnover of the offender and his market share, graded in steps adopted by regulation of the Council of Competition.

Art. 58

If, within 45 days from the notification of the order issued by the Council of Competition, according to the provisions of the present law, the implied commercial agent does not comply to the measures ordered, the Council of Competition can apply the maximum fee provided in art. 56 or request the competent court of law to issue an order established by art. 7, paragraph (1).

Art. 59

The Council of Competition, or respectively, the Office of Competition, can force, by order, the commercial agents or the associations of commercial agents to pay deterrent fees amounting up to 250,000 lei for each day of delay, computed from the date established by order, for determining them to:

a) supply complete and correct information as requested according to provisions of art. 41;

b) comply to control provided by art. 42-44 from the present law.

The Council of Competition, or respectively, the Office of Competition, can force, by order, the commercial agents to pay a deterrent fee of up to 750,000 lei for each day of delay, for determining them to:

a) respect the provisions of art. 5 , paragraph (1), art. 6 and art. 13 of the present law;

b) to apply measures announced by an order taken according to provisions of art. 51, paragraph (2),

letter c).

Based on the decision of the Council of Competition, or respectively, of the Office of Competition, supplementary profits obtained by commercial agents as a result of infringement of the present law, will be confiscated and transferred to the state budget.

Art. 60

(1) The offences provided in the present law are ascertained by the control personnel empowered by the Council of Competition, or respectively, by the Office of Competition.

Sanction for the offences provided in art. 55, letter b)-e) and in art. 56. letter d) are to be applied by control personnel empowered according to paragraph (1).

Sanction for the offences provided in art. 55, letter a) and art. 56, letter a)-c), and also the deterrent fees provided in art. 59 are to be applied by the commissions of the Council of Competition, or according to the case, by orders of the Office of Competition.

Against decisions taken in conditions at paragraph (3), a complaint is possible, within 15 days from notification, in front of the president of the Council of Competition, or respectively, the head of the Office of Competition who must give motivated solution.

The solutions of the president of the Council of Competition, or respectively, of the head of the Office of Competition, taken in applying provisions of paragraph (4), could be attacked in front of the disputed claim department of the Supreme Court of Justice, within 15 days from the notification.

Art. 61

The offences provided in art. 55, letter b)-e) and art. 56, letter 56, letter d) from the present law are under provisions of Law no. 32/1968 on establishing and sanctioning offences, with the exception of art. 25-27.

Art. 62

Orders issued according to art. 50, 51 and 55-60 will be notified to the parts in cause by the secretarial office of the Council of Competition and could be published in the Official Gazette of Romania, at offender or applicant expenses, according to the case.

When publishing orders one must take into account legitimate interest of commercial agents so that professional secret will not be released.

Art. 63

Participating determinantly and with intention of fraud, of a physical person, in conceiving, organising or execution of forbidden practices in art. 5, paragraph (1) and art. 6 and that are not exempted according to art. 5, paragraph (2) or art. 8, are to be considered crime and will be punished by jail from 6 months to 4 years or a fee.

The criminal procedure is initiated at the request of The Council of Competition.

The Court of Law can order publishing in the media, at the offender expenses, the definitive verdict.

Art. 64

Independently of the sanctions applied according to the provisions of the present law, the right of physical/legal persons to an reparatory action, in order to wholly recover prejudice caused by anti-competition practices forbidden by the present law, remains reserved.

Art. 65

Any person who uses or transmits, with other purpose than provided by the present law, documents or informations with professional secret character, received or acknowledged during the performance of duties or related to duties, is responsible according to the criminal law, being also eligible to repair caused damage.

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CHAPTER VII Final and common dispositions

Art. 66

Any disposition regarding competition, established by special law, is administrated by the Council of Competition and by the Office of Competition.

The regulations adopted by the Council of Competition and its orders are compulsory for the Office of Competition.Art.67 - (1) Turnover specified in the Art.8 and 15 is the sum of the income reached out of sales of products and/or from services done by the economic agent during the last fiscal year results, out of which are deducted the amounts owed as taxes and the book value of exports made directly or through intermediary

When an operation of Economic concentration is done according to provisions of Art.11 paragraph (2), letter (b), either through participation at the capital, or through acquiring assets, from the turnover established according to the paragraph (1) will be taken in consideration, only the amount corresponding to the participation- shares or social parts - or, when the case, to assets that are object of transaction.

If during a period of 2 years, two or more transactions of the type mentioned in paragraph (2), take place between the same physical and/or juridical persons, they are considered as a single operation of economic concentration done at the date of the last transaction.

Art.67

Turnover is replaced:

1.for banks, institutions of credit or financial and financial companies - with the tenth part of the value of their balance total;

2.for insurance companies - with the value of the brutto bonuses, that will include all the received or to be received amounts according to the insurance contracts concluded by them or in their behalf, including the bonuses donated to reinsurers after deduction of taxes and fiscal taxes for the amount of bonuses, or the total volume of them.

Art.68

In order of applying the provisions of Art.8 and 15, but respecting also provisions of the paragraph (2) and (3) of Art.67, if any of the commercial companies considered in applying of Art.8 or 15 is part of a group of commercial companies, as its turnover will be considered the cumulate turnover of the companies members of that group.

Art.69

The limits of the values, established according to provisions of the present Law, reporting it to the turnover, will be periodically updated, based on the order of the President of the Council of Competition, considering the evolution of the general index of the prices and tariffs, but at periods of 6 months at least.

Art.70

Administrators, managers and executive directors that have managerial and decision positions, or control positions, directly or through intermediaries at competing economic agents, are obliged to notify Council of Competition this situation in a period of 30 days from its creation.

Art.71

For payment of the members and personnel of the Council of Competition, is applied, similarly, the provisions of Law 50/1995 regarding payment of the members and personnel of the Court of Accounts.

The personnel of the Council of Competition and of the Office of Competition benefit of provisions of the provisions from Art.29 paragraph (3) and of Art.33 paragraph (1) from Law 40/1991, republished in 1993.

The personnel with attributions regarding prices and competition protection within the Ministry of Finance, the one from the central body as well as the one from the territory, is undertaken by the Office of Competition through transfer in job's interest.

Art.72

The present Law enters in force in 9 months from its publication in the Romanian Official Gazette, excepting the dispositions that regulates setting up and organising of Council of Competition and of Office of Competition, that enters in force on the date of its publishing in the Romanian Official Gazette.

At the date of entering in force of the present Law, there are abrogated Art.36-38 from Law 15/1990 regarding the state owned enterprise restructuring in regies autonomes and commercial companies, Art.4 letter a) from Law 11/1991 regarding preventing unfair competition and any other contrary dispositions.

Art.73

In a period of 6 months from its set-up, but not before entering in force of the present Law, Council of Competition will adopt and will apply the rules and instructions mentioned in Art.28, paragraphs (2) and (3).

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