Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Article 9 of the Competition Act defines a concentration as a lasting change of control over part or all of one or several undertakings. It can consists either in the merger of independent undertakings (or parts of them) or in the acquisition of direct or indirect control over one or more undertakinfs by persons already controlling or being controlled by at least one of them. 

Control is defined  …

Concept of concentration

Rules applicable to merger control in Romania can be found in the Competition Act (Article 9 et seq.), amended by Ordinance No 31/2015 and Law No 347/2015 and in the Regulation on Economic Concentrations (called the "Merger Regulation") approved by Order No 431/2017 of July 2017.

In addition, useful guidance can be found in the Competition Council's Guidelines: 

- on the concepts of concentration, undertakings concerned, full-function joint-ventures and calculation of turnover, approved by Order No 386/2010;  

- on restrictions directly linked and necessary for the implementation of the concentrations (ancillary restraints), approved by Order No 387/2010; 

- on remedies in the merger sector, approved by Order No 688/2010; 

- on the definition of the relevant market, approved by Order No 388/2010. 

Since Romania is a EU Member, the EU Merger Regulation fully applies. 

Context

Article 9 of the Competition Act defines a concentration as a lasting change of control over part or all of one or several undertakings. It can consists either in the merger of independent undertakings (or parts of them) or in the acquisition of direct or indirect control over one or more undertakinfs by persons already controlling or being controlled by at least one of them. 

Control is defined as the possibility of exercising a decisive influence, whether through asset ownership or through the ability to influence the composition or deliberations of management or the Board of Directors.

The creation of a joint venture which performs on a lasting basis all the functions of an autonomous economic entity constitutes a concentration. When such joint ventures have as their object or effect the coordination of the competitive behavior of the participating undertakings, which remain independent, coordination is assessed according to the criteria laid down in Articles 5(1) and (3) and Article 101 TFEU.

On the other hand, Article 10 enumerates transactions where no concentration is deemed to occur. Thus, there is no concentration within the meaning of the Act where control is acquired by a liquidator for purposes of winding up an undertaking, where a bank, financial institution or insurance company temporarily holds securities and exercises voting rights only to maintain the value of an investment or where undertakings part of the same group perform restructuring and reorganization transactions within that group.

A concentration is subject to control when: 

- the aggregate turnover of the undertakings concerned exceeds EUR 10 million in the previous financial year and; 

- each of at least two of the undertakings involved achieve on the Romanian territory, a turnover of at least EUR 4 million.

The turnover to consider is the combined turnover of each undertaking with the turnover of entities controlling or being controlled by the undertaking. 

Ordinance No 31/2015 vested the Plenum of the Competition Council with the power to amend the merger notification thresholds after approval by the Minister of the Economy. New thresholds enter into force six months after their publication in the Official Gazette.

Thresholds

In accordance with Article 11 of the Competition Act, concentrations must be prohibited if they may significantly impede effective competition on the Romanian market or a part thereof, notably by the creation or strengthening  of a dominant position.

In its Merger Regulation of August 2010, the Competition Council set out the criteria derived from EU Law according to which it may assess transactions: 

a) the need to protect, maintain and develop effective competition on the Romanian market or a substantial part of it, having regard, inter alia, to the structure of all target markets and actual or potential competitors;

b) the market position of the merging parties and their economic power and financial alternatives available to suppliers and users, their access to markets and sources of supply or any other barriers to entry, legal or otherwise, trends in supply and demand for goods and relevant services, the interests of intermediate and ultimate consumers, technical progress and economic development, provided that they are beneficial to consumers and do not represent an obstacle to competition.

Global Competition Law

620. Concept of concentration

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Les notions juridiques connexes

620. Concept of concentration

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise