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Law No. 21 Of 10 April 1996 (Republished) Competition Law *)

Original Language Title: LEGE nr. 21 din 10 aprilie 1996 (*republicată*) legea concurenţei*)

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LEGE no. 21 21 of 10 April 1996 (* republished *) competition law *)
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 153 153 of 29 February 2016



Note
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* *) Republicated pursuant to art. III of Law no. 347/2015 for approval Government Emergency Ordinance no. 31/2015 to amend and supplement Competition law no. 21/1996 and for completing art. 1 of Government Emergency Ordinance no. 83/2014 on the salary of personnel paid from public funds in 2015, as well as other measures in the field of public expenditure, published in the Official Gazette of Romania, Part I, no. 973 of 29 December 2015, giving the texts a new numbering.
Competition law no. 21/1996 was republished in the Official Gazette of Romania, Part I, no. 240 of 3 April 2014 and subsequently amended and supplemented by:
- Government Ordinance no. 12/2014 to amend and supplement Law no. 11/1991 on combating unfair competition and other acts in the field of competition protection, published in the Official Gazette of Romania, Part I, no. 586 of 6 August 2014, approved with amendments and additions by Law no. 117/2015 , published in the Official Gazette of Romania, Part I, no. 355 355 of 22 May 2015;
- Government Emergency Ordinance no. 77/2014 on national procedures in the field of State aid and amending and supplementing Competition law no. 21/1996 , published in the Official Gazette of Romania, Part I, no. 893 of 9 December 2014, corrected in the Official Gazette of Romania, Part I, no. 954 of 29 December 2014, approved with amendments and additions by Law no. 20/2015 , published in the Official Gazette of Romania, Part I, no. 160 of 6 March 2015, as amended;
- Government Emergency Ordinance no. 31/2015 to amend and supplement Competition law no. 21/1996 and for completing Government Emergency Ordinance no. 83/2014 on the salary of personnel paid from public funds in 2015, as well as other measures in the field of public expenditure, published in the Official Gazette of Romania, Part I, no. 474 of 30 June 2015, approved with amendments and additions by Law no. 347/2015 .
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+ Chapter I General provisions + Article 1 This law aims to protect, maintain and stimulate competition and a normal competitive environment in order to promote the interests of consumers. + Article 2 (1) The provisions of this Law shall apply to acts and acts which restrict, impede or distort competition, committed by: a) undertakings or associations of undertakings-natural or legal persons-of nationality, respectively of Romanian or foreign nationality, hereinafter referred to as undertakings; b) the central or local public administration authorities and institutions, in so far as they, by decisions issued or by the regulations adopted, intervene in market operations, directly or indirectly influencing the competition, except situations where such measures are taken in the application of other laws or in defence of a major public interest. (2) By undertaking, for the purposes of this law, any economic entity engaged in an activity consisting of offering goods or services on a given market shall be understood, regardless of its legal status and the way of financing, as it is defined in European Union case law. (3) When enterprises, defined according to the provisions of para. ((1) lit. a), participate in a group made by conventional means by agreement, understanding, pact, protocol, contract and the like, be it explicit, public or hidden, but without legal personality and regardless of form-alliance, coalition, group, block, federation and the like-for the acts and deeds provided in par. ((1), committed in the framework of participation in such a grouping, the provisions of this law shall apply to each undertaking, taking into account the principle of proportionality. (4) The provisions of this Law shall apply to acts and acts referred to in paragraph (1), when they are committed on the territory of Romania, as well as those committed outside the territory of the country, when they produce effects on the territory of Romania. + Article 3 (1) The implementation of this Law is entrusted to the Competition Council as a national competition authority. The Competition Council is an autonomous administrative authority, invested for this purpose, under the conditions, modalities and limits established by the provisions of this law. (2) The Competition Council applies the provisions of art. 101 and 102 of the Treaty on the Functioning of the European Union, Regulation (EC) No 1/2003 by the Council of 16 December 2002 on the implementation of the competition rules laid down in Articles 81 and 82 of the Treaty, as amended and supplemented, hereinafter referred to as Council Regulation (EC) No 45/ 1/2003 , in cases where the acts or acts of undertakings or associations of undertakings may affect trade between the Member States of the European Union. + Article 4 (1) Product prices and tariffs of services and works shall be determined freely by competition on the basis of supply and demand. The prices and tariffs charged under natural monopoly activities or economic activities stipulated by law shall be established and adjusted with the opinion of the Ministry of Public Finance, except those for which, by Special laws, other powers are provided. (2) In economic sectors or in markets where competition is excluded or substantially restricted by the effect of a law or because of the existence of a monopoly position, the Government may, by decision, establish appropriate forms of control of prices for a period of not more than 3 years, which may be successively extended for a period of not more than one year, if the circumstances which justified the adoption of that judgment continue to exist. (3) For economic sectors determined and in exceptional circumstances, such as: crisis situations, major imbalance between supply and demand and obvious market failure, the Government may order measures of a temporary nature to combat excessive price increases or even blocking them. Such measures can be adopted by decision for a period of 6 months, which can be successively extended for durations of no more than 3 months, as long as the circumstances that led to the adoption of that judgment persist. (4) Government intervention in the situations provided in par. (2) and (3) shall be made with the opinion of the Competition Council. + Chapter II Anticompetitive practices + Article 5 (1) Any agreements between undertakings, decisions of associations of undertakings and concerted practices, which have as their object or have the effect of preventing, restricting or distorting competition on the Romanian market or on one side of the its, in particular those which: a) establish, directly or indirectly, purchase or sale prices or any other trading conditions; b) limit or control the production, marketing, technical development or investment; c) share markets or sources of supply; d) apply, in relations with commercial partners, unequal conditions to equivalent benefits, thereby creating a competitive disadvantage; e) condition the conclusion of contracts for the acceptance by the partners of additional benefits which, by their nature or in accordance with commercial usages, are not related to the object of these contracts. (2) The prohibition provided in par. ((1) does not apply to agreements or categories of agreements between undertakings, decisions or categories of decisions of associations of undertakings, concerted practices or categories of concerted practices, where they meet cumulatively the following conditions: a) contribute to the improvement of the production or distribution of goods or to the promotion of technical or economic progress, while ensuring that consumers have an advantage corresponding to that of the parties to that agreement, or concerted practice; b) impose on the undertakings concerned only those restrictions which are indispensable for achieving these objectives; c) does not give undertakings the possibility to eliminate competition from a substantial part of the market in the products concerned. (3) The categories of agreements, decisions and concerted practices, exempted by the application of the provisions of par. (2), as well as the conditions and criteria for classification by categories are those established in the regulations of the Council of the European Union or the European Commission on the application of the provisions of 101 101 para. ((3) of the Treaty on the Functioning of the European Union to certain categories of agreements, decisions of associations of undertakings or concerted practices, referred to as block exemption regulations, which shall apply accordingly. (4) The views, decisions and concerted practices referred to in par. (1), which meet the conditions provided in par. ((2) or fall into the categories provided in par. (3), are considered legal, without the need for their notification by the parties and the issuance of a decision by the Competition Council. (5) The burden of proof of a violation of the provisions (1) returns to the Competition Council. The enterprise or association of undertakings that invokes the benefit of ((2) or (3) it is up to him to prove that the conditions laid down in those paragraphs are fulfilled. (6) Whenever the Competition Council applies the provisions of par. (1) agreements, decisions or concerted practices, in so far as they may affect trade between Member States, shall also apply the provisions of art. 101 the Treaty on the Functioning of the European Union + Article 6 (1) It is forbidden to misuse by one or more enterprises a dominant position held on the Romanian market or on a substantial part of it. These abusive practices may consist in particular of: a) the imposition, directly or indirectly, of sale or purchase prices or other unfair trading conditions; b) limitation of production, marketing or technical development to the disadvantage of consumers; c) the application in relation to trading partners of unequal conditions to equivalent benefits, thereby creating a competitive disadvantage; d) the conditioning of the conclusion of contracts on the acceptance by the partners of additional benefits which, by their nature or in accordance with the commercial usages, are not related to the object of these contracts. (2) Whenever the Competition Council applies the provisions of par. (1), in so far as the misuse of the dominant position may affect trade between the Member States, it shall also apply the provisions of art. 102 the Treaty on the Functioning of the European Union (3) It is presumed, until proven otherwise, that one or more undertakings are in a dominant position, in a situation where the quota or cumulative shares on the relevant market, recorded in the period under analysis, exceed 40%. + Article 7 (1) The provisions of art. 5 5 para. ((1) shall not apply in the following situations: a) where the combined market share held by the parties to a settlement does not exceed 10% on any of the relevant markets affected by the agreement, where it is concluded between undertakings which are competitors, existing or potential, in one of these markets; b) where the market share held by each of the parties to a settlement does not exceed 15% on any of the relevant markets affected by the agreement, where it is concluded between undertakings which are not competitors, existing or potential, on any of these markets; c) if it is difficult to determine whether it is a deal between competitors or between non-current, the threshold of 10% applies, according to the provisions of par. ((1) lit. a). (2) When a competing market is restricted by the cumulative effect of agreements on the sale of goods or services concluded with different suppliers or distributors, the thresholds referred to in par. (1) are reduced to 5%, both for the agreements concluded between the competitors and for those concluded between non-competitors. ((3) The agreements do not restrict competition if the market shares do not exceed the thresholds of 10%, 15% and 5%, respectively, provided in par. ((1) and (2), by more than two percentage points during 2 successive calendar years. (4) The provisions of par. ((1)-(3) shall not apply to agreements containing any of the following serious restrictions: a) with regard to agreements between competitors, as defined in par. ((1), restrictions which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object: 1. fixing the sale prices of products to third parties; 2. limitation of production or sales; 3. the division of markets or customers; b) in respect of agreements between non-competencies, as defined in par. ((1), restrictions which, directly or indirectly, in isolation or in combination with other factors under the control of the parties have as their object: 1. restriction of the buyer's ability to set their sale price, without prejudice to the supplier's possibility to impose a maximum sale price or recommend a sale price, provided that the latter is not equivalent to a fixed or minimum selling price set as a result of pressure from one of the parties or the incentive measures applied by it; 2. territorial restrictions or on customers to whom the buyer may sell the goods or services covered by the contract, unless it is one of the following restrictions that are not serious: ((i) the restriction of active sales to the exclusive territory or to an exclusive clientele reserved to the supplier or ceded by the supplier to another purchaser, where such a restriction does not limit the sales of the purchaser's customers; (ii) the restriction of sales to end users by a buyer acting on the market as a wholesaler; (iii) restriction of sales to unauthorised distributors by members of a selective distribution system; (iv) the restriction of the buyer's ability to sell components intended for the incorporation of customers who could use them for the manufacture of products similar to those produced by the supplier; 3. restriction of active sales or passive sales to end users made by members of a selective distribution system acting on the market as retail sellers, without prejudice to the possibility of prohibiting a member of the system to carry out its activities from an unauthorized secondary establishment; 4. the restriction of cross-deliveries between distributors within a selective distribution system, including between distributors acting at different levels of trade; 5. the restriction agreed between a component supplier and a buyer incorporating these components, which limits the ability of the supplier to sell these components as separate parts to end users, repairers or other service providers who have not been designated by the buyer for the repair or maintenance of his goods; c) with regard to agreements between competitors, as defined in par. ((1), when the competitors act, within the meaning of the agreement, at different levels of the production or distribution chain, any of the serious restrictions listed in lett. a) and b). (5) Provisions of para. ((1)-(4) shall also apply to decisions of associations of undertakings and concerted practices. + Article 8 (1) Any actions or inactions of central or local public administration authorities and institutions and entities to which they delegate their duties, which restrict, impede or distort competition, shall be prohibited, such as: a) limiting the freedom of trade or autonomy of enterprises, exercised in compliance with legal regulations; b) the establishment of discriminatory conditions for business activity. ((2) If the central or local public administration authorities or institutions or entities to which they have delegated their duties do not comply, within the deadline set, to the measures ordered by the decision by the Council Competition in order to restore the competitive environment, it can introduce action in administrative litigation, at the Bucharest Court of Appeal, asking the court, as the case may be, to cancel, in whole or in part, the act that led to the restriction, preventing or distorting competition, obliging the authority or institution concerned to issue an administrative act or carry out a certain administrative operation. (3) The Competition Council may appeal to the court under the conditions of par. ((2), within 6 months from the date of expiry of the period provided for in the decision, the period during which the authority or institution of the central or local public administration had the obligation to comply with the measures necessary to restore the competitive environment Normal. + Chapter III Economic concentration + Article 9 (. A concentration shall be carried out where the lasting change of control results from: a) merging of two or more previously independent undertakings or parts of undertakings; or b) acquisition, by one or more persons who already control at least one undertaking or by one or more undertakings, either by acquiring securities or by assets, or by contract or by any other means, direct or indirect control over one or more undertakings or parts thereof. (2) The creation of a joint venture that sustainably fulfils all the functions of an autonomous economic entity constitutes a concentration according to the provisions of paragraph ((1) lit. b). (3) In so far as the creation of a joint company, representing a concentration according to the provisions of par. ((1), it has as its object or effect the coordination of the competitive behaviour of the remaining independent enterprises, such coordination is assessed in accordance with the criteria provided in art. 5 5 para. ((1)-(3), as well as with those of art. 101 101 para. (1) and (3) of the Treaty on the Functioning of the European Union, in order to determine whether or not the operation is compatible with a normal competitive environment. (4) When carrying out the evaluation provided in par. ((3) The Competition Council shall take into account, in particular, the following criteria: a) if two or more parent companies retain, to a significant extent, the activities of the same market as the joint venture or a market located upstream or downstream of that of the joint venture or a neighbouring market located in close to this market; b) if by coordination which is the direct consequence of the creation of a joint venture, the undertakings concerned have the possibility to eliminate competition for a significant part of the products or services concerned. ((5) According to the provisions of the present law, the control derives from rights, contracts or any other elements which, each and every one taken together and taking into account the factual or legal circumstances, confer the possibility to exert an influence determining an undertaking, in particular by: a) property rights or for use on all or part of the assets of an undertaking; b) rights or contracts which confer a decisive influence on the structure of the undertaking, vote or decisions of the governing bodies of an undertaking. (6) Control provided in par. ((1)-(5) is acquired by the person or persons or by undertakings which: a) are titular of the rights or beneficiary of the contracts provided in par. ((5); b) are not titular of the rights or beneficiary of the contracts provided in par. (5), but have the power to exercise the determining influence conferred by them. + Article 10 It shall not constitute economic concentration operations where: a) the control is acquired and exercised by a liquidator appointed by judicial decision or by another person mandated by the public authority for the performance of a payment cessation procedure, recovery, concordat, liquidation judicial, foreclosure or other similar procedure; b) credit institutions or other financial institutions or insurance companies whose ordinary activities include the trading and the negotiation of securities in their account or in the account of others temporarily hold securities of a undertakings which they have acquired for resale, provided that they do not exercise the voting rights conferred on the securities in question in order to determine the competitive conduct of the undertaking in question, or exercise these voting rights only for the preparation of full or partial divestment of the undertaking concerned or its assets or the divestment of the securities in question and that the assignment takes place within one year from the date of the acquisition; the Competition Council may extend that period, upon request, if those institutions or companies may prove that the divestment was not possible, on reasonable terms, within the prescribed period; c) control, according to art. 9 9 para. ((1) lit. b), is acquired by an undertaking whose sole object of activity is to acquire holdings in other undertakings, to manage and capitalise on those holdings, without being directly or indirectly involved in the management of undertakings in question, however, without prejudice to the rights that the undertaking holds as a shareholder, provided that the voting rights relating to the holdings held are exercised, in particular as regards the appointment of members the management and supervisory bodies of the undertakings in which the holdings are, only to maintain the full value of the investments in question and not to determine, directly or indirectly, the competitive behaviour of those undertakings; d) enterprises, including those belonging to economic groups, carry out operations to restructure or reorganize their own activities. + Article 11 Economic concentrations that can raise significant obstacles to effective competition on the Romanian market or on one side of it, especially as a result of the creation or consolidation of a dominant position, are prohibited. + Article 12 (1) The provisions of this chapter shall apply to economic concentration operations, when the cumulative turnover of the undertakings involved in the operation exceeds the equivalent in lei of 10,000,000 euros and when at least two of the the enterprises involved realized on the territory of Romania, each in part, a turnover higher than the equivalent in lei of 4,000,000 euros. The equivalent in lei is calculated at the exchange rate communicated by the National Bank of Romania valid for the last day of the financial year of the year before the operation. (2) The value thresholds provided in par. (1) may be amended by decision of the Plenum of the Competition Council, which shall be implemented by order of the President of the Competition Council, after obtaining the opinion of the Ministry of Economy, Trade and Relations with the Business Environment, and enter in force 6 months from the date of publication in the Official Gazette of Romania, Part I. + Article 13 (1) Economic concentrations exceeding the value thresholds provided for in art. 12 must be notified to the Competition Council before implementation and after the conclusion of the agreement, after the announcement of the public offer or after the takeover of the control ((2) The notification may also be made in cases where the undertakings concerned demonstrate to the Competition Council the intention to conclude an agreement or, in the case of the public offering, have announced their intention to make such an offer, provided that the agreement or offer planned to result in a concentration that meets the conditions laid down in art. 12. (3) According to the provisions of this law, the term "notified economic concentration" also includes the planned concentrations, notified according to the provisions of par. ((2). (4) The economic concentrations which are achieved by the merger of two or more undertakings shall be notified by each of the parties concerned; in the other cases, the notification must be submitted by the person, the undertaking or undertakings which acquire control over one or more undertakings or parts thereof. ((5) Criteria for the assessment of the compatibility of economic concentrations with a normal competitive environment, the notification procedure, the granting of the derogation, the deadlines, the documents and the information to be presented, the communications and the submission of comments Interested undertakings shall be established by means of regulations and instructions adopted by the Competition Council. (6) It is forbidden to implement an economic concentration operation before notification and before being declared compatible with a normal competitive environment, by a decision adopted by the Competition Council, according to the provisions of art. 47. (7) The provisions of par. ((6) does not prevent the implementation of a public offering or a series of securities transactions, including securities convertible into other types of securities, accepted for trading on a market of the type of stock exchange. of values, through which control is acquired according to the provisions of art. 9 from different vendors, if the following conditions are cumulatively met: a) the concentration should be notified without delay to the Competition Council, according to the provisions of ((1); b) the one acquiring the control not to exercise the voting rights related to the securities concerned or to do so only to maintain the full value of its investment under a derogation granted by the Competition Council, according to par. ((8). (8) The Competition Council may grant, upon request, a derogation from the rule established in par. ((6). The application for derogation must be reasoned. In the decision the Competition Council will issue will take into account the effects of the suspension of economic concentration on one or more of the enterprises involved in the operation or on third parties and the threat posed by concentration on competition. This derogation may be granted subject to conditions and obligations intended to ensure effective competition. A derogation may be granted at any time, both previously and after notification. (9) The validity of any operation of economic concentration, including those carried out in violation of the provisions of par. (6), depends on the analysis and the decision that the Competition Council adopts on the operation, according to the provisions of art. 47 47 para. ((2), (4), (5) and (8). + Chapter IV Competition Council + Article 14 (1) The Competition Council is established, an autonomous administrative authority in the field of competition, with legal personality, which exercises its powers according to the provisions of this law. The headquarters of the Competition Council is in Bucharest. (2) The organizational and personnel structure of the Competition Council, the management and execution tasks of its staff shall be established by the internal regulations adopted by it. + Article 15 (1) The plenum of the Competition Council is a collegial body and consists of 7 members, as follows: a president, 2 vice presidents and 4 competition advisers. The appointment of the members of the Plenum of the Competition Council is carried out by the President of Romania, at the proposal of the Advisory College of the Competition Council, with the opinion of the Government and after Parliament. The rejection of a nomination can only be made subject to the presentation of the reasons that it is based. (2) The term of office of the members of the Plenum of the Competition Council is 5 years, which can be renewed only once, regardless of the duration of the previous Members of the Plenum shall perform duties according to the regulations approved by the Plen or according to the delegation (3) The President, Vice-Presidents and Competition Counselors must have genuine independence and enjoy a high professional reputation and civic probity. (4) In order to be appointed a member of the Competition Council, a person must meet the following conditions: a) is a Romanian citizen, citizen of another Member State of the European Union or belonging to the European Economic Area or citizen of the Swiss Confederation; b) knows the Romanian language; c) has full exercise capacity; d) graduated from proven higher education with diploma; e) show high professional competence in the field of competition; f) benefit from a good reputation; g) is at least 10 years old in economic or legal activities; h) is not incapable or was not convicted of crimes against heritage by disregarding trust, corruption offences, embezzlement, crimes of forgery in documents, tax evasion, crimes provided by Law no. 656/2002 for the prevention and sanctioning of money laundering, as well as for the establishment of measures to prevent and combat the financing of terrorism, republished, as amended, or for the offences provided by this law or other crimes committed with intent, for which the law provides for a prison sentence of 3 years or higher. (5) The President must have fulfilled a leadership position with wide responsibilities, in which he has demonstrated his professional and managerial competence. (6) The membership of the Competition Council is incompatible with the exercise of any other professional or consulting activity, with participation, directly or through interposed persons, at the management or administration of public entities or private or with the holding of functions or public dignities, with the exception of functions and teaching activities in higher education, scientific research and literary-artistic creation. They may not be designated experts or arbitrators either by the parties or by the court or by another institution. (7) The members of the Plenum of the Competition Council do not represent the authority that appointed them and are independent in (8) The members of the Competition Council Plenum and the competition inspectors cannot be part of the parties or other political parties. (9) The mandate of the Plenum of the Competition Council shall cease: a) on expiry of the duration b) by resignation; c) by death; d) by final impossibility of exercising, consisting of an unavailability of more than 60 consecutive days; e) to the occurrence of incompatibilities between those provided in par. (6) and (8), according to the provisions of para. ((12); f) by revocation, for serious violation of this law or for conviction, by final court decision, for the commission of a crime. (10) The members of the Plenum of the Competition Council are revocable, in the case provided in ((9) lit. f), by the authority that appointed them. Until the final stay of the criminal court judgment they can be suspended from office by the same authority. (11) In the situations provided in par. ((9) lit. b)-f) will proceed, according to the provisions of par. (1) and (2), to the appointment and appointment of a new member of the Plenum of the Competition Council for a 5-year term. (12) The members of the Competition Council are obliged to notify the Council immediately of any situation of incompatibility or impediment between those provided in par. (6) and (8), they being of right suspended from office from the moment of occurrence of this situation, and if the situation is extended over 10 consecutive days, the mandate ceases and shall be done according to the provisions of par. ((10) and (11). (13) The activity carried out by the members of the Plenum of the Competition Council is considered the specialized experience necessary for appointment in the governing bodies of the regulatory authorities, as well as of any other authorities or institutions public. + Article 16 In case of holiday of the position of president of the Competition Council, for one of the situations provided in art. 15 15 para. ((9) lit. b)-f), until the appointment and appointment, under the law, of a new president, for the remaining term of office, the interim will be provided by that member of the Plenum, who has the highest seniority as Vice President of the Council Competition. + Article 17 (1) Before starting to exercise his office, each member of the Competition Council is obliged to submit before the President of Romania, in the presence of the other appointed members and after the reading of the presidential decree of appointment, the following Oath: " I swear to respect the Constitution and the laws of the country, to defend the interests of Romania, the fundamental rights and freedoms of citizens, to fulfill with honor, dignity, loyalty, responsibility and without bias my duties. So help me God! " (2) The President of the Competition Council shall provide the first oath. (3) In case of non-performance of the oath within 30 days from the date of publication in the Official Gazette of Romania of the appointment decree, the appointed member is of resignation, following the procedure of appointment and appointment of another person for The function became vacant. ((4) The acts performed by any of the members of the Competition Council before the oath are void of law. + Article 18 (1) The mandates of the members of the Competition Council shall begin from the date of their swearing-in and shall expire upon the fulfilment of the deadlines provided for in 15 15 para. ((2), calculated from this date. (2) If, until the expiry of the current mandate, the President of the Competition Council appointed for the following mandate will not be taken the oath in compliance with the provisions of art 17, the members of the Exercise Competition Council will continue their work until the swearing-in of the President of the Council, designated for the following mandate under the previous President's (3) If until the expiry of the term of office of a member of the Plenum of the Competition Council, 15 15 para. ((9) lit. a), is not appointed a successor, the member of the Plenum whose mandate expires will continue his activity until the swearing-in of the one designated for the following mandate. + Article 19 (1) The Competition Council operates, deliberates and makes decisions in plenary or committees. The plenum of the Competition Council meets in the presence of the majority of the members in office, but not less than 3 of them, and adopts decisions with the majority vote of the members present. The Commission shall adopt a decision by a majority The plenary adopts decisions on matters of an economic and administrative nature, at the request of the president (2) Each commission shall consist of 3 members of the Plenum of the Competition Council. The President of the Competition Council shall determine the composition of the commission for each individual case and shall designate one of the members to conduct its work. At the request of a member of the commission or the president of the Competition Council, the case with which the commission was invested is subject to the attention of the Plenum of the Competition Council, which (3) On the basis of the decision taken by the plenary or commission, as the case may be, the President of the Competition Council shall order, by order, investigations. By the same order the case report is designated, based on the proposal of the Director General. (4) In application of this law, the Competition Council shall examine in plenary: a) the investigative reports, with any objections raised thereto, and decide on the measures to be taken; b) authorization of economic concentrations; c) the views, recommendations and opinions formulated in carrying out the duties provided for by this Law; d) draft regulations proposed for adoption; e) the annual report provided in art. 30 30 para. (1), the annual State aid report and any other reports on competition and state aid; f) the incidence of art. 60 60 para. ((4). (5) The Plenum of the Competition Council will be able to delegate the exercise of the tasks ((4) lit. a), b) and c) to a commission consisting of 3 members of the Plenum of the Competition Council. (6) In the deliberative parties each member shall have one vote; in case of equal share of the votes, the solution voted by the President shall prevail. (7) Decisions adopted by the Competition Council in plenary according to the provisions of par. (4) shall be signed by the President, on behalf of the Competition Council. They will be able to be attacked within 30 days of publication or, as the case may be, from communication, in the administrative litigation procedure at the Bucharest Court of Appeal. The sentence will be handed down without appeal, against her being able to be declared an appeal to the High Court of Cassation and Justice. + Article 20 (1) The President of the Competition Council hires patrimonial, by his signature, the Competition Council as a legal person and represents him as a public institution in front of natural and legal persons, legislative, judicial and administrative, as well as other Romanian, foreign and international institutions. He exercises disciplinary prerogatives over the entire staff of the Competition Council. (2) The orders and decisions of the Competition Council, through which measures are available and sanctions are applied, shall be signed by the president, and the regulations adopted by the Competition Council are implemented, suspended or repealed by order of the president. (3) In case of absence or unavailability of the president, the legal representation of the Competition Council rests with one of the vice presidents appointed by order of president for the duration of the absence or its unavailability. In case of unavailability of the Vice-Presidents of the Competition Council, the delegation may be made to another member of the Plenum of the Competition Council designated by order of president for the duration of the absence or its unavailability. (4) The President of the Competition Council may delegate powers of representation to any of the vice-presidents, competition advisers, competition inspectors or other persons, the mandate having to expressly mention the delegated powers and the duration of the exercising them. + Article 21 (1) In order to exercise its powers, the Competition Council shall develop and adopt its rules of organization, operation and procedure and shall constitute its own apparatus, at central and local level. (2) The nomenclature of functions of its own apparatus, comprising competition inspectors and other personnel, the conditions of employment, promotion in grade and stimulation, and the duties of each function shall be determined by regulation adopted by the Competition Council, in compliance with the regulations on public office and civil servants and regulations on the salary of contract staff in the budgetary sector. (3) The specialized public office for the Competition Council is the competition inspector. By way of derogation from provisions art. 56 56 of Law no. 188/1999 on the Statute of civil servants, republished, with subsequent amendments and completions, the final occupation of the specialized public office is made only by promotion or by recruitment, in accordance with the legal provisions in force. (4) The activity carried out within the Competition Council by the competition inspectors with higher education is specialized seniority. (5) The activity of the competition inspectors with legal studies exercising powers of representation of the authority's interests before the courts, by way of derogation from the provisions art. 84 84 para. ((1) of Law no. 134/2010 on the Code of Civil Procedure, republished, as amended, constitutes seniority in legal specialty and is assimilated to seniority in legal work carried out by the legal adviser, according to the provisions of art. 7 7 of Law no. 514/2003 on the organization and exercise of the profession of legal adviser, with subsequent additions. + Article 22 The position of president of the Competition Council is assimilated to the minister, and the positions of vice president and competition adviser are assimilated to the secretary of state. + Article 23 (1) In the organization of the Competition Council operates a general secretary and a deputy secretary general, appointed and relieved from office by decision of the Prime Minister, at the proposal of the Competition Council, based on the results obtained at the contest national entry in the category of senior civil servants, organized under the law. The Secretary-General and Deputy Secretary-General are senior civil servants to whom the status of senior civil servants applies, according to Law no. 188/1999 , republished, with subsequent amendments and completions, and other specific regulations. Their duties are established by the regulation of organization, operation and procedure adopted by the Competition Council. (2) In the organization of the Competition Council operates a general manager. He is a public management official, and his duties are established by the regulation of organization, operation and procedure adopted by the Competition Council. (3) The Competition Council operates the Advisory College, as a non-permanent body, consisting of 11 to 17 representatives of the university environment of competition, of the business environment and of consumer protection associations or of other persons with prestige in the economic, legal or competition field. (4) The expenses regarding the organization of meetings of the Consultative College shall be borne from the budget of the Competition Council, in compliance with (5) The members of the Consultative College are entitled to settle, from the budget of the Competition Council, travel and accommodation expenses, if the meetings are held in a locality other than their domicile, in compliance with legal provisions. (6) The members of the Advisory College must comply with the legal provisions regarding the conflict of interest related to the activities in which they participate in it. The works of the Consultative College are attended by the former presidents of the Competition Council. (7) The Advisory College issues non-binding opinions on the main aspects of the competition policy. Within the Advisory College work groups can operate on specific topics. (8) The way of appointment of members, the role, operation and organization of the Advisory College are provided in the operating regulation, approved by Government decision *). Note
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* *) See Government Decision no. 390/2012 for the approval of the Regulation on organization and functioning of the Consultative College of the Competition Council, published in the Official Gazette of Romania, Part I, no. 305 of 8 May 2012, with subsequent amendments and completions.
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+ Article 24 (1) The Competition Council shall draw up its own draft budget, which shall be provided distinctly in the state budget. The financing of the Competition Council shall be ensured from the state budget, as well as from its own revenues from the sources provided in art. 31. (2) For the functioning of the Competition Council and its territorial apparatus, the Government and, as the case may be, the local public administration bodies shall assign to the Competition Council the necessary buildings, namely the lands and facilities of the public domain of national interest or, as the case may be, local, within 60 days from the registration of the Competition Council's request. (3) The amounts representing tariffs and fines or other sanctions applied by the Competition Council are made to the state budget, under the law. (4) The decisions of the Competition Council by which fines or authorization fees are imposed shall constitute enforceable securities, without any other formality, within 30 days of their communication. (5) The Competition Council shall bear, within the limits of the budgetary funds approved with this destination, the amounts necessary to ensure legal assistance for the members of the Plenum, the competition inspectors and the other personnel, in relation to the acts committed by them in the exercise, according to the law, of their duties, when they have the status of accused or defendant. (6) The amounts granted by the Competition Council to the members of the Plenum, competition inspectors or other employees for the provision of legal assistance will be returned by them, if a final judicial decision has been made. established their guilt or that the act was committed outside the exercise of the duties provided by law. (7) The procedure and the conditions under which the amounts necessary to ensure legal assistance are borne by the Competition Council will be regulated by order of the President of the Competition Council. + Article 25 (1) The Competition Council has the following tasks: a) carry out the investigations on the application of 5 5, 6, 8, 13 and art. 47 47 para. (3) of this law, as well as the provisions of art. 101 101 and 102 of the Treaty on the Functioning of the European b) take the decisions provided by law for cases of violation of the provisions of art. 5, 6, 8 and 13 of this law, as well as the provisions of art. 101 101 and 102 of the Treaty on the Functioning of the European Union, found after investigations carried out by the competition inspectors; c) accept commitments and impose interim measures, under the conditions provided by law; d) make the decisions provided by law for cases of economic concentrations; e) withdraw, by decision, the benefit of the exemption for the agreements, decisions of the associations of enterprises or concerted practices to which the provisions of one of the European Block Exemption Regulations apply, according to the provisions of art. 29 29 para. ((2) of Council Regulation (EC) No 45/ 1/2003 ; f) ensure the effective application of own decisions, including the monitoring of the measures ordered and the effects of the economic concentrations authorized by decisions; g) carry out, on its own initiative, investigations on a particular economic sector or a certain type of agreement in different sectors, when the rigidity of prices or other circumstances suggest the possibility of restricting or distorting competition the market. The Competition Council may publish a report on the results of the investigation of certain sectors of the economy or certain agreements in different sectors and invite interested parties to comment; h) refers the Government to the existence of a monopoly situation or other cases, as provided in art. 4 4 para. (2) and (3), and propose to it the adoption of the necessary measures to remedy the malfunctions found; i) notify the courts of the cases in which they are competent, according to the present law; j) pursues the application of legal provisions and other normative acts in the field of regulation of this law; k) notifies the Government of cases of interference of central and local public administration bodies in the application of this law; l) issue opinions or points of view for draft normative acts, draft public policy documents, which may have anti-competitive impact, and may recommend their modification; m) makes recommendations to the Government and local public administration bodies for the adoption of measures to facilitate the development of the market and competition; n) proposes to the Government or bodies of the local public administration to take disciplinary measures against the staff subordinated to them, if it does not comply with the mandatory provisions of the Competition Council; o) conduct studies and prepare reports on its field of activity and provide the Government, the public and specialized international organizations with information on this activity; p) represents Romania and promotes the exchange of information and experience in relations with international organizations and institutions; as a national competition authority, the Competition Council is responsible for the relationship with the institutions The European Union, according to the relevant provisions of European law, and cooperates with other competition authorities; r) establish and approve the mission, general strategy and activity programmes of the competition authority; s) make any other decisions in the performance of the duties arising from this law; s) ensure application of provisions Government Emergency Ordinance no. 77/2014 on national procedures in the field of State aid and amending and supplementing Competition law no. 21/1996 , approved with amendments and additions by Law no. 20/2015 , as amended as well as the application of the provisions Law no. 11/1991 on combating unfair competition, with subsequent amendments and completions. (2) In order to exercise the duties provided in par. ((1) lit. a) and g), the Competition Council may carry out preliminary examinations, within which it has the right to request the necessary information and documents, according to the provisions of art. 34 34 para. ((2). (3) In application of para. ((1) lit. l), the central and local public administration authorities and institutions have the obligation to request opinions or points of view when initiating draft normative acts, draft public policy documents, which may impact anticompetitive. The comments and proposals made in the opinion or point of view of the Competition Council will be considered to finalize the draft normative act, namely the draft public policy documents. (4) The Competition Council, as the national competition authority, has all the rights and obligations provided by Council Regulation (EC) No 45/ 1/2003 ,, as well as those provided by Council Regulation (EC) No 45/ 139/2004 of the Council of 22 January 2004 on the control of concentrations between undertakings. National courts have all the rights and obligations provided by Council Regulation (EC) No 45/ 1/2003 . (5) An investigation into a particular economic sector may be completed by identifying market failures affecting the competitive process. In this situation, the Competition Council will take, as soon as possible, the necessary measures in order to create conditions of effective competition by: a) issuing recommendations to the business environment, public authorities or consumers, to facilitate the development of the market and competition; b) the promotion of specific regulations, if it is found that the market failures were generated by normative acts in force; c) the imposition, by decision, of the necessary, appropriate and proportionate measures to remedy the market failures. (6) The measures provided in par. ((5) lit. c) are subject to public consultation before a decision is taken. The enterprises to which these measures are required have the right of access to the documents in the Competition Council file, in accordance with the provisions of art. 45, and may present in writing their point of view. In written submissions, the parties concerned may request the holding of hearings by the Competition Council. The date by which the observations are sent, respectively the date of the hearing, as the case may be, shall be determined by (7) All references in Law no. 11/1991 , with subsequent amendments and completions, at the Competition Office will be replaced by reference to the Competition Council. The Competition Council will be able to use any of the instruments provided by this law to identify and sanction acts of unfair competition. + Article 26 (1) The Competition Council shall adopt regulations and instructions, issue orders, make decisions and formulate opinions, make recommendations and develop reports in application of the provisions of this law. (2) The Competition Council may make recommendations of good practice in various economic sectors and guidance on various general aspects of the application of competition law, taking into account the practice of national courts and of the European Union, as well as the practice of the European Commission. (3) The Competition Council issues orders by which it implements, suspends or repeals the regulations adopted in plenary, orders investigations, orders inspections, takes measures on internal management and subordinate personnel, as well as any other measures necessary to fulfil the competition authority's strategy and mission. (4) The decisions of the Competition Council are unilateral administrative acts of an individual nature by which the violation of the provisions of this law is found and the appropriate sanctions are applied, the necessary measures are available to restore competitive, the complaints made under the provisions of this law, as well as requests and notifications concerning economic concentrations, are resolved. (5) The opinions are formulated, the recommendations and proposals are made, the views are formulated, the reports are elaborated and communicated, as the case may be, published, according to the provisions of this law + Article 27 (1) The draft regulations and instructions, as well as their amendments, require the opinion of the Legislative Council, after which they are adopted in the Plenum of the Competition Council and implemented by order of the President of the Competition Council. (2) The regulations of the Competition Council can be appealed in administrative litigation to the Bucharest Court of Appeal, under the conditions Law of Administrative Litigation no. 554/2004 , with subsequent amendments and completions. + Article 28 The Competition Council will communicate its point of view on any aspect in the field of competition policy, at the request of: a) Presidential Administration and Government of Romania; b) parliamentary committees, senators and deputies; c) central and local public administration authorities and institutions; d) professional and employers ' organizations in so far as they have legal powers to regulate the areas in which they operate; e) consumer organisations; f) courts and prosecutors ' offices. + Article 29 (1) With regard to the privatization policy, namely the branch or sectoral policies, the Competition Council will consult the relevant ministries and other bodies of the central or local public administration, as well as the employers ' organizations concerned. (2) The bodies and organizations referred to in par. (1) will send to the Competition Council their point of view within 30 days of the request. This view will be attached to the report on the case under consideration. (3) In the performance of its duties the Competition Council shall consult with central or local public administration bodies and shall request information and assistance from them. + Article 30 (1) The Competition Council shall draw up annually a report on its activity and the manner in which economic operators and public authorities comply with the competition rules, according to this law. (2) The report shall be adopted in the Plenum of the Competition Council and released. + Article 31 (1) The following tax is established by this law: the authorization fee of the economic concentrations, which is paid in case of issuance of a authorization decision according to the provisions of art. 47 47 para. ((2) and para. ((4) lit. b) and c). (2) The authorization fee of the economic concentration shall be established by instructions of the Competition Council between 10,000 euros and 25,000 euros, in case of issuance of a authorization decision according to the provisions of art. 47 47 para. (2), respectively between 25.001 euros and 50,000 euros, in case of issuing a authorization decision according to the provisions of art. 47 47 para. ((4) lit. b) and c). The equivalent in lei of the authorization fee is calculated at the exchange rate communicated by the National Bank of Romania valid for the last day of the financial year of the year before the issuance of the decision authorizing the economic concentration. (3) The amounts referred to in par. (1) own revenues are made to the budget of the Competition Council. (4) The Competition Council may retain and use the revenues from the authorization fee of the economic concentrations, by setting up in addition to a fully financed activity of its own income. (5) The revenues made by the Competition Council according to par. ((4) shall be used for: a) professional training for the staff of the Competition Council; b) consultancy and expertise; c) performance allowance granted to the staff of the Competition Council with special results, under the law; d) editing and printing of the Romanian Competition Magazine; e) other activities in the field of activity of the Competition Council, under the law. (6) The staff of the Competition Council may benefit from the performance allowance granted from the income provided in par. ((4). The way of granting the performance allowance is established by regulation of the Competition Council. (7) The activity provided in par. ((4) falls within the same budget chapter to which the authorising officer in addition has been established. (8) The revenue and expenditure budget for this activity is elaborated and approved with the budget of the Competition Council, according to the legal provisions in force. (9) The annual statement resulting from the execution of the revenue and expenditure budget shall be carried over to the following year by the same destination, according to the legal provisions in force. (10) The house execution of the revenue and expenditure budget of the activity is carried out through the State Treasury, according to the legal provisions in force. (11) The reporting of the house execution of the revenue and expenditure budget of the activity shall be carried out in accordance with the legal provisions in force. (12) In contractual relations, the activity provided in par. ((4) is represented by the authorized persons of the institution in addition to which it was established.
+ Chapter V Procedure for preliminary examination, investigation and decision-making + Article 32 (1) The discovery and investigation of violations of the provisions of the present law, as well as of 101 and 102 of the Treaty on the Functioning of the European Union incumba the Competition Council acting through competition inspectors. (2) In the case of the crime referred to in 65 65 para. (1), staff designated under the conditions of par. (1) may carry out only the acts established by art. 61 61 of Law no. 135/2010 on the Code of Criminal Procedure, with subsequent amendments and completions. + Article 33 (1) The Competition Council, according to its powers, has investigations, if there is sufficient factual and legal basis: a) ex officio; b) to the complaint of a natural or legal person affected in real and direct manner by violating the provisions of art. 5, 6, 8 and 13 of this law, as well as of art. 101 and 102 of the Treaty on the Functioning of the European Union, under the conditions of ((2). (2) In order to rationally use resources to trigger and conduct investigations, the Competition Council may prioritize cases according to the potential impact on effective competition, the general interest of consumers or strategic importance of the economic sector concerned. + Article 34 (1) In order to analyze the complaints made according to art. 33 33 para. ((1) lit. b) and notifications of economic concentrations, as well as in the exercise of the duties provided for in art. 25 25 para. (1), competition inspectors, indicating the legal basis, the purpose, the deadlines, as well as the sanctions provided, as the case may be, in 53 lit. a) and b), art. 54 54 para. ((1) lit. a) and para. ((2) and art. 59 59 para. ((1) lit. e), may request the information and documents required to them: a) enterprises and associations of undertakings; b) central and local public administration authorities and institutions. (2) In carrying out the preliminary examination procedure, necessary for the ex officio exercise of the duties provided for in art. 25 25 para. ((1) lit. a) and g), the competition inspectors, indicating the legal basis, the purpose, the deadlines, as well as the sanctions provided in art. 53 lit. c) or, as the case may be, art. 54 54 para. ((1) lit. b), may require undertakings and associations of undertakings, as well as central and local public administration authorities and institutions with any necessary information and documents. (3) In carrying out the duties provided by law, the Competition Council will be able to use, under the law, the information and documents collected by other authorities and public institutions in carrying out their specific activities. (4) For the purpose of applying art. 101 101 and 102 of the Treaty on the Functioning of the European Union, the documents and information provided in ((1) and (2) may be requested by the Competition Council, at the request of the European Commission and the competition authorities of the Member States of the European Union. (5) Competition inspectors, receiving access to the documents, data and information provided in par. ((1), (2) and (4), are kept in strict compliance with the character of state secret or service secret assigned legally to those documents, data and information. (6) Information collected according to par. ((1)-(4), art. 36 36 and art. 38 38 can only be used for the purpose of applying competition law. The Competition Council will also be able to refer other institutions or public authorities as aspects related to their competence are discovered. (7) According to art. 12 12 para. ((1) of Commission Implementing Regulation (EU) No 1/2003 ,, for the purpose of applying Article 101 and 102 of the Treaty on the Functioning of the European Union, the Competition Council may exchange or use as a means of proof any element of fact or law, including confidential information with the European Commission, as well as any other competition authority of a Member State of the European Union empowered to do so, in compliance with the legal provisions in force. (8) The Competition Council, in compliance with the legal provisions in force, may transmit the information in accordance with the provisions of par. (7), provided that the competition authority which receives them: a) to use them only for the application of the competition provisions and for the purpose for which they were collected by the Competition Council; b) to protect the confidential nature of this information and to transmit this information to third parties only with the prior consent of the Competition Council. + Article 35 (1) The natural persons who provide the Competition Council, from their own initiative, information on possible violations of this law are warned of competition. (2) The Competition Council protects the identity of the whistleblower. ((3) The provision of information according to the provisions of this Article shall not be considered a breach of the obligation of confidentiality Law no. 53/2003 -Labor Code, republished, with subsequent amendments and completions, respectively in the employment contract. + Article 36 In order to fulfill the legal duties, the Competition Council may take statements from any natural person or from the legal representative of the legal person, who consents to give such statements. + Article 37 (1) In order to carry out the legal duties, the competition inspectors, with the exception of the debutants, may interview any natural or legal person, who has consented to this. (2) In order to carry out the interviews provided in par. (1), the Competition Council shall send a written request to the person or persons to be interviewed, indicating the legal basis, the purpose, the date and place of the interview, as well as the sanctions provided by this law. ((3) The interview can be conducted by any means, including by electronic means, will be recorded on audiovideo support and recorded in a minutes signed by all participants. + Article 38 (1) In order to investigate the violation of the provisions of this law, the competition inspectors are empowered with inspection powers, with the exception of junior inspectors, and have the following inspection powers: a) enter into the premises, land or means of transport that undertakings or associations of undertakings hold legally and/or operate; b) to examine any documents, registers, financial-accounting and commercial acts or other records related to the activity of the enterprise or associations of enterprises, regardless of where they are stored and the physical or electronic support on which are kept; c) ask any representative or staff member of the undertaking or association of undertakings to explain the facts or documents relating to the subject matter and purpose of the inspection and to record or record their replies; d) to raise or obtain in any form copies or extracts from any documents, registers, financial-accounting and commercial acts or from other records related to the activity of the enterprise or association of enterprises; e) to seal any site intended for the activities of the enterprise or association of enterprises and any documents, registers, financial-accounting and commercial acts or other records related to the activity of the enterprise or association of undertakings, for the duration and to the extent necessary for inspection. (2) The competition inspectors with inspection powers will proceed with the acts provided in par. ((1) only if there are indications that documents may be found or information deemed necessary for the performance of their mission may be obtained, and their result will be recorded in a report of finding and inventory. (3) Competition inspectors with inspection powers may make unannounced inspections and request any information or justification related to the performance of the mission, both on the spot and at the convocation at the Competition Council headquarters. (4) Competition inspectors are empowered with inspection powers by order of the President of the Competition Council. A certified copy of this order and judicial authorization shall be communicated to the enterprise or association of enterprises subject to inspection ordered in compliance with the provisions of par. ((2). If the communication cannot be physically made to the legal representative or, failing that, to any employee of that undertaking, it may also be effected by telefax, electronic mail or other means which provide transmission of the text of the order and judicial authorization, as well as confirmation of its dispatch In this situation, the communication of the inspection order and its related documents shall be deemed fulfilled on the date and time on the printed copy of the confirmation of dispatch. If the communication cannot be done by any of the modalities provided above, the competition inspectors will proceed to display the inspection order, judicial authorization and the order to trigger the investigation at the time. the site for inspection, drawing up a display report in this regard, in which the date and time of the display will be indicated. (5) The Competition Council carries out inspections at the request of the European Commission or another competition authority of a Member State, according to the provisions of art. 22 22 of Council Regulation (EC) No 45/ 1/2003 and art. 12 12 of Council Regulation (EC) No 45/ 139/2004 , based on the inspection order issued by the President of the Competition Council. The Competition Council may allow persons authorized by the competition authorities of the Member States to assist, cooperate or participate together with the inspectors of the Competition Council designated by order according to par. (4) at the inspections carried out by the Competition Council according to art. 22 22 of Council Regulation (EC) No 45/ 1/2003 . (6) The inspection order will indicate the object and purpose of the inspection, determine the date on which the sanctions provided for in art. 53 and 59, as well as the right to appeal the order to the Bucharest Court of Appeal, Administrative and Fiscal Litigation Section, within 15 days of communication, by way of derogation from Law no. 554/2004 , with subsequent amendments and completions. The judgment of the appellate court is subject to appeal, which shall be declared within 5 days of the communication. The courts will settle the cause of emergency and in particular. (7) At the request of the Competition Council, in the event that there may be an opposition to the conduct of the inspection, the police bodies are obliged to accompany and provide the necessary support to the inspection teams, in the exercise of the powers of inspection. ((8) The communications between the undertaking or the association of undertakings investigated and its lawyer, carried out within and for the sole purpose of exercising the rights of defence of the undertaking or association of undertakings, respectively after the opening of the administrative procedure under this law, or prior to the opening of the administrative procedure, provided that such communications are related to the subject-matter of the procedure, cannot be taken or used as evidence during the conducted by the Competition Council. (9) Where undertakings do not prove the protected nature of a communication, in order for it to fall within the scope of paragraph 1. (8), the competition inspectors carrying out the inspection will seal and lift the communication in question in duplicate. (10) The President of the Competition Council will decide, as a matter of urgency, on the evidence and arguments presented. Given that the President of the Competition Council decides to reject the protected nature of the communication, the unsealing of the document can take place only after the expiry of the term in which the decision can be challenged, according to the ((11) or, if the decision is challenged, after the decision of the court becomes final. (11) The decision of the President of the Competition Council regarding the protected nature of the communication can be appealed in administrative litigation to the Bucharest Court of Appeal, within 15 days from the communication, by way of derogation from Law no. 554/2004 , with subsequent amendments and completions. The judgment of the appellate court is subject to appeal, which shall be declared within 5 days of the communication. The courts will settle the cause of emergency and in particular. (12) The exercise of inspection powers shall be carried out in accordance with the Regulation on the organization, operation and procedure of the Competition Council *). Note
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* *) See Order of the President of the Competition Council 101/2012 on the implementation of the Regulation on organization, operation and procedure of the Competition Council, published in the Official Gazette of Romania, Part I, no. 113 113 of 14 February 2012, with subsequent amendments and completions.
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+ Article 39 Based on the judicial authorization given by conclusion, according to art. 40, the competition inspector may carry out inspections, in the premises provided for in art. 38, as well as in any other premises, including domicile, land or means of transport belonging to managers, administrators, directors and other employees of economic operators or associations of economic operators subject investigation. + Article 40 (1) Competition inspectors may proceed to inspections, according to the provisions of art. 39, only on the basis of an order issued by the President of the Competition Council and with the judicial authorization given by the President of the Bucharest Court of Appeal or by a judge delegated by him. A certified copy of the inspection order and the judicial authorization shall be compulsorily communicated to the person subject to inspection before its commencement. (2) The application for authorization shall be adjudicated in the council chamber without citing the parties. The judge shall rule on the application for authorization no later than 48 hours after the date of registration of the application. The conclusion shall be motivated and communicated to the Competition Council no later than 48 hours after the ruling. (3) If the inspection must be carried out simultaneously in several spaces between those provided for in art. 39, the Competition Council will introduce a single application, the court ruling by a conclusion in which the spaces in which the inspection is to be carried out will be indicated. (4) The application for authorization must contain all information such as to justify the inspection, and the judge referred to it shall verify that the application is well founded. (5) Whatever the circumstances, the inspection shall be carried out between 8,00 and 18,00 and shall be carried out in the presence of the person to whom the inspection or his representative is carried out. The inspection may continue after 18,00 only with the consent of the person to whom the inspection or his representative is carried out. (6) Inventories and seals shall be made in accordance with the provisions of Law no. 135/2010 on the Code of Criminal Procedure, with subsequent amendments and completions. (7) The conclusion provided in par. (1) may be appealed to the High Court of Cassation and Justice within 72 hours. For the Competition Council, the deadline within which the conclusion can be appealed flows from the moment of its communication, according to the provisions of para. ((2). As regards the person subject to the inspection, the deadline within which the conclusion can be appealed shall flow from the moment of its communication, according to the provisions of ((1). The appeal is not suspensive of execution. (8) The President of the Bucharest Court of Appeal or the judge delegated by him has the power to issue the judicial authorization provided for in 21 21 para. ((3) of Council Regulation (EC) No 45/ 1/2003 . + Article 41 (1) Upon receiving a complaint regarding an anticompetitive practice, the Competition Council shall examine whether it presents sufficient factual and legal basis to justify the disposition of an investigation. (2) If the complaint does not present sufficient grounds to justify the triggering of an investigation, including by reference to the provisions of art. 33 33 para. (2), the Competition Council rejects it, communicating to the author the decision, in writing, stating the reasons, within 60 working days from the date on which it is confirmed that the complaint is complete and meets all the conditions, established according to the provisions of ((4). The rejection of a complaint is made by decision of the Competition Council after it was given to the author of the complaint the opportunity to present its point of view to the reasons why the competition authority intends to reject Complaint. (3) The decision to reject the complaint can be appealed to the Bucharest Court of Appeal, within 30 days of communication. (4) The Competition Council will establish, by regulation, the conditions that a request addressed to it must meet in order to be qualified as a complaint, as well as the procedure applicable to its resolution. (5) If the filed complaint does not fall under the present law, the Competition Council will respond, in writing, within 30 days from the registration of the complaint. + Article 42 (1) Whenever the Competition Council orders the initiation of an investigation, the case report shall be designated in the order to trigger the investigation, at the proposal of the Director General. The rapporteur is responsible for the preparation of the report on the investigation, the communication of the parties concerned, the receipt of comments and the presentation of the report to the Plenum of the Competition (2) The designated rapporteur shall deal with all the acts of the investigation procedure, proposing to the Competition Council the disposition of the measures that are within its competence. + Article 43 (1) If, following the onset of an investigation ex officio, it is found that it did not lead to the discovery of sufficient evidence of the violation of the law, justifying the imposition of measures or sanctions by the Council The competition, it, by order of the president, will close the investigation and immediately inform the parties involved. (2) In the event that the investigation was triggered as a result of a complaint and it is found that it did not lead to the discovery of sufficient evidence of the violation of the law, justifying the imposition of measures or sanctions by the Council Competition, the closure of the investigation will be made by decision of the Competition Council. + Article 44 (1) Except for the situation provided in art. 43 43 para. (1), in any investigation procedure, the Competition Council shall grant undertakings participating in the settlement, the decision taken by associations of undertakings, concerted practice, abuse of dominant position or economic concentration, object of the investigation, the opportunity to express in writing its observations on the content of the investigative report. In written submissions, the parties concerned may request the holding of hearings by the Competition Council. When assessing that it is useful for establishing the truth in the case investigated, the Competition Council can also hold hearings in the absence of a request of the parties involved. The date by which the observations must be sent, namely the date of the hearing, as the case may be, shall be fixed by the (2) The President of the Competition Council may designate experts and may admit hearing the author of the complaint, at his request, as well as of any natural or legal person who declares that he/she has data and information relevant to the establishment The truth is being investigated. (3) Failure to submit or waive the hearing, as well as the refusal of any deposition or declaration, shall not constitute impediments to further investigation. + Article 45 (. A copy of the report shall be forwarded to the attention of the parties concerned who are subject to the investigation, giving them a minimum period of 30 days in which they make their comments. Persons whose hearing was admitted according to the provisions of art. 44 44 para. (2) will be sent the copy of the report only on request and if the Competition Council considers it useful in the interest of the investigation. (2) The President of the Competition Council will allow the parties concerned to consult the file and obtain, in electronic format, copies and/or extracts of the acts of the investigation procedure. (3) The right of access to the file shall not extend to business secrets, other confidential information, nor to the internal documents of the Competition Council, the European Commission or the competition authorities of the Member States of European Union. The right of access to the file does not extend to the correspondence between the Competition Council and the European Commission or the competition authorities of the Member States or between the latter when the correspondence is included in the file Competition Council. (4) The documents, data and confidential information in the case file are accessible for consultation or obtaining copies and/or extracts only by order of the President of the Competition Council, which can be attacked only with the decision by which the investigation is completed, by the same call for appeal. (5) No provision of this law prohibits the right of the Competition Council to disclose and use the information necessary to prove a violation of art. 5 and 6 of this law, as well as art. 101 101 and 102 of the Treaty on the Functioning of the European (. In the case of an investigation procedure having as its object an economic concentration, the provisions of this Article relating to the consultation of the dossier shall be applicable to the associates and executives of the entities participating in the concentration the extent to which they justify a legitimate interest. (7) The documents, data and confidential information in the Competition Council file may be requested, as a rule, only once, after the communication of the investigation report according to the provisions of par. ((1). In the absence of new elements, successive requests for access to documents, data and confidential information cannot be formulated. + Article 46 (1) The Competition Council, in case of investigations triggered according to the provisions of art. 33, may decide, as appropriate: a) order an end to the established anticompetitive practices; b) have interim measures; c) accept commitments; d) to impose fines on undertakings or associations of undertakings under the conditions laid down in VI; e) make recommendations, impose conditions or other obligations on the parties. If the Competition Council decides according to the provisions of lett. a), may impose any behavioral or structural corrective measures that are proportionate to the violation committed and necessary for the effective cessation of the violation. Structural corrective measures will be imposed when there is no equally effective corrective action measure or when an equally effective corrective action measure would be more onerous for the enterprise in question than an effective remedy. structural corrective measure. (2) The Competition Council may also decide that there are no grounds for intervening, when, on the basis of the information available to it, the conditions for a concerted understanding, decision or practice to be prohibited are not met. (3) The Competition Council, in fulfilling the attribution provided in art. 25 25 para. ((1) lit. e), may decide to withdraw the benefit of the exemption for agreements, decisions of associations of undertakings or concerted practices to which the provisions of one of the European Block Exemption Regulations apply, when in a the reason for such agreements, decisions or concerted practices shall produce effects which are incompatible with art. 101 101 para. ((3) of the Treaty on the Functioning of the European Union on the territory of Romania or on a part thereof which presents all the characteristics of a distinct geographical + Article 47 (1) Within 30 days from the receipt of the complete notification of an economic concentration operation, the Competition Council shall respond in writing, by an address, if it reaches the conclusion that the economic concentration operation does not falls under the present law. (2) Within 45 days of receipt of the complete notification of an economic concentration operation, the Competition Council will issue a decision of non-objection when it finds that although the notified economic concentration operation falls below the the incidence of the a) there are no serious doubts as to compatibility with a normal competitive environment; or b) the serious doubts regarding the compatibility with a normal competitive environment have been removed by the commitments proposed by the parties involved and accepted by the Competition Council. The competition authority may establish by decision conditions and obligations of a nature to ensure compliance by the parties concerned with the commitments they have made in order to achieve the compatibility of the concentration with a competitive environment. Normal. (3) Within 45 days from the receipt of the complete notification of an economic concentration operation, the Competition Council will decide to open an investigation, when it finds that the notified economic concentration operation falls under the incidence of this law, presents serious doubts regarding the compatibility with a normal competitive environment and they could not be removed according to the provisions of par. ((2) lit. b). (4) Within a maximum of 5 months from the receipt of the complete notification of an economic concentration operation for which the Competition Council decided to open an investigation due to serious doubts regarding its compatibility with an environment Normal competitive, Competition Council: a) will issue a decision declaring the economic concentration operation incompatible with the normal competitive environment, as it raises significant obstacles to effective competition on the Romanian market or on a substantial part of it, in particular following the creation or consolidation of a dominant position, according to the provisions of art. 11 11; b) will issue an authorization decision, if the economic concentration operation does not raise significant obstacles to effective competition on the Romanian market or on a substantial part of it, especially as a result of the creation or consolidation of a dominant positions, according to art. 11 11; c) issue a conditional authorization decision, establishing the obligations and/or conditions intended to ensure compliance by the parties involved with the commitments they have made in order to achieve the compatibility of the concentration with a normal competitive environment. (5) If the Competition Council does not take a decision within the deadlines provided in par. ((2)-(4), the notified economic concentration operation may take place. (6) If the notification of an economic concentration operation requires additions, the deadlines provided in par. ((1)-(4) shall begin to run from the date on which the parties provided the Competition Council with all the information requested in order to complete the notification. (7) The Competition Council will establish, by regulation, the categories of economic concentrations that may benefit from the simplified analysis procedure. (8) In the case of investigations and decisions adopted according to art. 25 25 para. ((1) lit. a) and b), regarding a possible violation of art. 13, when the investigated economic concentration operation is not notified, the Competition Council will consider and decide, in this context, on the compatibility of the operation with a normal competitive environment. (9) In situations where an operation to take control of enterprises or assets presents risks to national security, the Government, at the proposal of the Supreme Council of Defense of the Country, will issue a decision by which it be prohibited, in compliance with the European Commission's competence in this field. The Competition Council will inform the Supreme Council of Defense of the Country in relation to the economic concentration operations that are notified to it, likely to be analyzed from the point of view of national security. (10) If the Supreme Council of Defense of the Country communicates to the Competition Council that an operation of notified economic concentration is likely to present risks for national security, the deadlines provided in par. ((1)-(4) shall be suspended from the date of this communication. The suspension of the deadlines shall cease, as the case may be, on the date of communication to the Competition Council of the decision of the Supreme Court of Defense of the Country within the meaning of the prohibition of the operation in question, respectively National safety risks. (11) The authorities and state structures with competence in the field of national security may request the Competition Council any information and documents necessary to apply the provisions of par. ((9). Art. 34 34 para. ((1), art. 53, respectively of art. 54 54 shall apply accordingly. (12) If the Supreme Council of Defense of the Country, in the exercise of its duties, issues a decision in the sense of prohibiting the operation examined according to the provisions of par. (9), the procedure before the Competition Council ceases. Within 15 days from the date of communication of this decision, the Competition Council will inform the notifying party, through an address. + Article 48 (1) If the Competition Council finds that an economic concentration has already been implemented and that the concentration has been declared incompatible with the normal competitive environment, it, by decision, may: a) require the undertakings concerned to dissolve the merged entity, in particular by dissolving the merger or by divesting all acquired shares or assets, so as to restore the previously existing situation the implementation of the concentration. In cases where, by dissolving the resulting entity by concentration, it is not possible to restore the existing situation prior to the implementation of the concentration, the Competition Council may adopt any other appropriate measure to restore, in the extent possible, the previous situation; b) have any other appropriate measures to ensure that the undertakings concerned dissolve the concentration or take measures to restore the situation laid down in its decision. (2) The Competition Council may act according to par. ((1) lit. a) and b) and when it finds that an economic concentration has been implemented in violation of a condition imposed by a decision adopted according to the provisions of art. 47 47 para. ((4) lit. c). + Article 49 ((1) During the investigation procedure relating to the possible perpetration of an anti-competitive practice, the undertakings to which the investigation was launched may make proposals for commitments, in order to remove the situation which has led Initiate investigation. (2) When the Competition Council intends to accept the commitments proposed by the parties, it will publish a summary of the case and the essential content of the proposed commitments, on which interested parties may submit their comments within the deadline established by the competition authority. (3) By decision, the Competition Council confers binding force on undertakings proposed by undertakings, insofar as they are sufficient for the protection of competition and whether their performance leads to the removal of the situation which has determined Initiate investigation The decision of the Competition Council may be adopted for a fixed duration and may conclude, without hearing the parties concerned, that there are no longer grounds for the competition authority's action. (4) If the Competition Council finds that the commitments do not meet the conditions provided in par. ((3), it shall inform the undertakings in writing of the reasons for which the commitments have not been accepted and shall continue the investigation procedure. (5) In case of closing the investigation according to the provisions (3), the Competition Council may, on request or ex officio, reopen the investigation procedure, when: a) there is an essential change in any of the facts on which the decision was based; b) undertakings act contrary to their commitments; c) the decision was based on incomplete, inaccurate or misleading information provided by the parties. (6) Enterprises may make proposals for commitments also in the case of economic concentration operations in order to be compatible with a normal competitive environment, according to the provisions of art. 47. Provisions of para. ((2) and (4) shall apply accordingly. (7) The Competition Council will establish, by instructions, the conditions, criteria, deadlines and procedure for the acceptance and evaluation of the commitments proposed by the parties. + Article 50 (1) The Competition Council may impose any interim measure it considers necessary, before the issuance of a decision according to the provisions of art. 46, in case of urgency determined by the risk of serious and irreparable damage to competition, if it finds, at a first evaluation, the existence of facts of an anticompetitive nature expressly prohibited by law and which must be eliminated without delay. (. Before an interim measure is taken, the parties concerned may submit their views in writing. At the express request of the parties involved, the Competition Council will proceed to hear their arguments in Plen. (3) A decision adopted according to the provisions of paragraph ((1) shall apply for a fixed term, which may be renewed by the Competition Council to the extent necessary and appropriate. (4) The Competition Council may impose appropriate interim measures to restore or maintain effective competition conditions and where: a) the economic concentration was implemented in violation of the provisions of art. 13 13 para. ((6) and (8) and a decision on the compatibility of the concentration with a normal competitive environment has not yet been adopted; b) the economic concentration was implemented in violation of a condition or obligation imposed by a decision adopted according to the provisions of art. 47 47 para. ((2) lit. b) and para. ((4) lit. c); c) the economic concentration has already been implemented and a decision has been issued whereby the economic concentration operation was declared incompatible with the normal competitive environment, according to the provisions of art. 47 47 para. ((4) lit. a). (5) The Competition Council will establish, by instructions, the conditions, deadlines and procedure for the adoption of interim measures. + Article 51 (1) Decisions adopted by the Competition Council in application of the provisions of art. 8, 13, 25 para. ((5) lit. c), art. 46 and 47 shall be reasoned and communicated to the parties within a maximum of 120 days after deliberation. The decisions of the Competition Council can be appealed in administrative litigation to the Bucharest Court of Appeal, within 30 days of communication. (. The court may order, upon request, the suspension of the execution of the contested decision In case of fines, the suspension will be ordered only on condition of payment of a security established according to the provisions Law no. 207/2015 on the Fiscal Procedure Code, with subsequent amendments and completions, on budgetary claims. (3) The order on triggering an investigation, provided by law, can be attacked only with the decision finalizing the investigation.
+ Chapter VI Sanctions + Article 52 They are void of law any agreements or decisions prohibited by art. 5 and 6 of this law, as well as by art. 101 and 102 of the Treaty on the Functioning of the European Union, namely any commitments, conventions or contractual clauses relating to an anti-competitive practice, as well as any acts that violate the provisions of art. 8 8 of this law. + Article 53 It constitutes contraventions and is sanctioned with a fine of 0.1% to 1% of the total turnover in the financial year before sanctioning the following facts, committed with intent or negligently by enterprises or associations of enterprises: a) the provision of inaccurate, incomplete or misleading information in an application, a confirmation, a notification or an addition to it, according to the provisions of art. 13 13; b) the provision of inaccurate, incomplete or misleading information or incomplete documents or failure to provide the information and documents requested according to the provisions of art. 34 34 para. ((1) lit. a); c) the provision of inaccurate or misleading information, in response to a request made according to the provisions of art. 34 34 para. ((2) or on the occasion of the proceedings pursuant to art. 37 37; d) provision of information, documents, records and records in an incomplete form during inspections carried out according to the provisions of art. 38 38; e) refusal to submit to an inspection conducted according to the provisions of art. 38. + Article 54 (1) It constitutes contraventions and is sanctioned with a fine of 1,000 lei to 20,000 lei the facts of the central and local public administration authorities and institutions consisting of: a) provision with intent or negligence of inaccurate, incomplete or misleading information or incomplete documents or failure to provide the information and documents requested, according to the provisions of art. 34 34 para. ((1) lit. b); b) provision with intent or negligence of inaccurate or misleading information, in response to a request made according to the provisions of art. 34 34 para. ((2). (2) If, with intent or negligence, the failure to provide the requested information persists after the deadline set by the Competition Council, it may apply to the head of the institution or to the central or local public administration authority cominatory fine of up to 5,000 lei for each day of delay. + Article 55 (1) It constitutes contraventions and is sanctioned with a fine from 0.5% to 10% of the total turnover achieved in the financial year before sanctioning the following acts, committed with intent or negligently by enterprises or associations of Enterprises: a) violation of art. 5 and 6 of this law, as well as the provisions of art. 101 101 and 102 of the Treaty on the Functioning of the European b) the non-certification of an economic concentration, according to the provisions of 13 13 para. ((1) and (2), before its implementation, unless the provisions of art. 13 13 para. (7) or a derogation has been granted in accordance with art. 13 13 para. ((8); c) the realization of an economic concentration operation in violation of the provisions of 13 13 para. ((6)-(8); d) the implementation of an economic concentration operation, declared incompatible by a decision of the Competition Council, according to the provisions of art. 47 47 para. ((4) lit. a); e) failure to fulfill an obligation, a condition or a measure imposed by a decision taken according to the provisions of this law. (2) If the infringement committed by an association of undertakings concerns the activities of its members, the fine may not exceed 10% of the sum of the total business figures of each active member on the market affected by the infringement committed by the association. (3) As regards the contravention provided in par. ((1) lit. a), consisting in violation of art. 5 of this law, as well as the provisions of art. 101 of the Treaty on the Functioning of the European Union, the Competition Council will determine, by instructions, the conditions and criteria for the application of a clemency policy, which can go until graduation from pecuniary liability. + Article 56 (1) By exception to the provisions of art. 53 53 and art. 55 55 para. (1), if, in the financial year prior to the sanction, the undertaking has not registered the turnover or it cannot be determined, it will be taken into account the financial year in which the undertaking or association of enterprises recorded turnover, year immediately prior to the reference year for the calculation of turnover in order to apply the sanction. If even in the year before the reference year for the calculation of the turnover in order to apply the sanction the enterprise did not realize the turnover, the last turnover recorded by the enterprise will be taken into account. (2) By exception to the provisions of art. 53 53 and art. 55 55 para. ((1) of this Law and of art. 8 of Government Ordinance no. 2/2001 on the legal regime of contraventions, approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions, in the case of the company or association of start-ups, which did not register the turnover in the year before the sanction, it will be sanctioned with: a) fine from 10,000 lei to 1,000,000 lei, in case of contraventions provided in art. 53 53; b) fine from 15,000 lei to 2,500,000 lei, in case of contraventions provided in art. 55 55 para. ((1). + Article 57 (1) The individualization of sanctions provided in art. 53, 54, 55 and 56 are made taking into account the gravity and duration of the act. By instructions adopted by the Competition Council, the other elements are established according to which the individualization of sanctions is made, as well as the gradation on their tranches. (2) In the case of contraventions provided in art. 55 55 para. (1), if the undertaking expressly acknowledges, before the hearings, the commission of the anticompetitive act and, where appropriate, proposes remedies that lead to the removal of the causes of the infringement, the Competition Council may apply a reduction of the fine with a percentage of between 10% and 30% of the basic level determined according to the instructions adopted according to the provisions of par. ((1). In case of granting the reduction for the recognition of the act, the level of the fine will be diminished including when it is set at the minimum provided by law, without the fine imposed to be less than 0.2% of the turnover achieved in the financial year prior to sanction. (3) Reducing the amount of the fine under par. ((2) it is possible only on the basis of an express request made by the interested undertaking. The request will contain the clear and unequivocal recognition of the liability for the breach, as well as a statement of the maximum amount of the fine that the undertaking is willing to pay. In the decision of the Competition Council, the amount of the fine determined before the application of the provisions (2), as well as the amount of the fine resulting from the reduction granted for recognition. If the Competition Council does not accept the terms of the request addressed by the enterprise, no reduction of the fine will be granted and the recognition made will not be used as a probative element. ((4) If, prior to the communication of the investigation report, the undertaking submits a proposal on the wording of a recognition under the conditions of paragraph 1. (3), the Competition Council will be able to apply a simplified procedure, according to the instructions adopted by the authority. (5) The exercise by the company of the action for annulment of the decision of the Competition Council, regarding the aspects covered by the recognition, attracts the loss of the benefit provided in par. (2), regarding the reduction of the amount of the fine. At the request of the Competition Council, the court will settle the action for annulment removing the benefit of the reduction granted for recognition and will determine the fine (6) In cases involving parties benefiting from the application of the leniency policy, but are not absolved of pecuniary liability, the reduction of the amount of the fine as a result of recognition will be added to the reduction applied following the leniency procedure, not exceeding 60% of the level determined in accordance with the instructions on the individualisation of sanctions. (7) The Competition Council shall establish by instructions the specific procedure concerning the framework for the granting of favourable treatment to undertakings which acknowledge the commission of an anti-competitive act. + Article 58 If within 45 days from the notification of the decision taken by the Competition Council, according to the provisions of this law, the enterprise in question does not comply with the measures ordered, the Competition Council may apply the maximum fine provided for in art. 55 55 and 56. + Article 59 (1) The Competition Council may, by decision, oblige undertakings or associations of undertakings to pay fines, in the amount of up to 5% of the average daily turnover of the financial year before the sanction, for each day of delay, calculated from the date fixed by the decision, in order to determine them: a) to cease a violation of the provisions of art. 5 and 6 of this law, as well as the provisions of art. 101 101 and 102 of the Treaty on the Functioning of the European Union and to comply with the measures ordered by the decision to find b) to comply with a decision imposing interim measures, according to the provisions of art. 50 50; c) to comply with a commitment made mandatory by a decision, taken according to the provisions of art. 49 49 para. ((3); d) comply with the conditions and/or obligations imposed by a decision, taken according to the provisions of art. 47 47 para. ((2) lit. b) and para. ((4) lit. c); e) to provide completely and correctly the information and documents that were required according to the provisions of art. 34 34 para. ((1) lit. a); f) to submit to the inspection provided for in art. 38. (2) By exception to the provisions of par. ((1): a) if the turnover made in the financial year prior to the sanction cannot be determined, the average daily turnover of the financial year in which the enterprise or association of enterprises of the enterprise registered the turnover, year immediately prior to the reference year for the calculation of the turnover in order to apply the sanction; b) in the case of the enterprise or association of start-ups, which did not register the turnover in the year before the sanction, it will be sanctioned with a fine from 500 lei to 10,000 lei, in the case of para. ((1) lit. a)-d), respectively with a fine of 300 lei to 7,000 lei, in the case of para. ((1) lit. e) and f). + Article 60 (1) The contraventions provided for in this Law are found and sanctioned by the Competition Council in plenary, commissions or by competition inspectors. (2) Sanctions for the contraventions provided in art. 53 lit. d) and e) shall be applied by the competition inspectors. (3) Sanctions for the contraventions provided in art. 53 lit. a)-c), art. 54 54 and art. 55 55 para. ((1) lit. d) and e), as well as the cominatory fines provided for in art. 59 shall apply by the commissions of the Competition Council, by the same decision finding the commission of the contravention or the incidence of art. 59 59 para. ((1). (4) By exception to the provisions of par. (3), the finding and sanctioning of the contraventions provided by it will be made by the plenum of the Competition Council by decision, at the reasoned request of at least one member of the commission, formulated in cases with a high degree of complexity. (5) Sanctions for the contraventions provided in art. 55 55 para. ((1) lit. a)-c) shall be applied by the Plenum of the Competition Council or by the commission, as the case may be, by the same decision found to commit the respective contraventions. (6) Decisions taken under the conditions of par. (3)-(5) can be appealed to the Bucharest Court of Appeal, Administrative Litigation Section, within 30 days of communication. + Article 61 ((1) Contraventions provided for in art. 53 lit. d) and e) the provisions of Government Ordinance no. 2/2001 , approved with amendments and additions by Law no. 180/2002 ,, as amended and supplemented, except art. 5, 8, 28, 29, 32 and 34 of Government Ordinance no. 2/2001 , approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions. ((2) Minutes by which sanctions are applied, according to the provisions art. 60 60 para. (2) and Government Emergency Ordinance no. 77/2014 , approved with amendments and additions by Law no. 20/2015 , as amended, can be challenged at the District Court 1 Bucharest, within 15 days of communication. The judgment of the court can be appealed with appeal to the Bucharest Court-Administrative Litigation Section, within 15 days of communication. + Article 62 (1) The decisions issued by the Competition Council in the application of this law shall be communicated to the parties concerned by the Competition Council and shall be published in the Official Gazette of Romania, Part I, at the expense of the offender or the applicant, as the case may be, or on the website of the Competition Council. (. The publication of the decisions shall take account of the legitimate interests of the undertakings concerned so that the business secret is not disclosed. + Article 63 (1) The right of the Competition Council to apply contravention sanctions for violation of the provisions of this law shall be prescribed as follows: a) within 3 years, in case of committing one of the contraventions provided in art. 53 53 and 54; b) within 5 years, in the case of all other contraventions provided by this law. (2) The prescription of the right of the Competition Council to apply sanctions begins to run from the date of the infringement. In the case of infringements which are of continuity or repeatability, the prescription shall begin to run from the date of termination of the last act or the anti-competitive fact in question. + Article 64 (1) Any action taken by the Competition Council for the purpose of a preliminary examination or for the purpose of investigating a violation of the law shall interrupt the course of limitation periods provided for in art. 63. The interruption of the limitation period takes effect from the date of communication of the action taken by the Competition Council, made to at least one economic operator or an association of economic operators who participated in the commission violation of law (2) The actions that may be taken by the Competition Council and which interrupt the course of the limitation period include, mainly, the following: a) requests for information, in writing; b) Order of the President of the Competition Council to trigger an investigation; c) carrying out inspections; d) communication of the investigative report. (3) The interruption of the limitation period produces its effects to all economic operators or associations of economic operators who participated in the commission of violation of the law. (4) In case of interruption of the limitation period, a new term, with a similar duration, begins to run from the date on which the Competition Council undertook one of the actions mentioned in par. ((2). The limitation period will expire at the latest on the day on which the period equal to double the limitation period is fulfilled, applicable for the commission of the infringement in question, in the event that the Competition Council did not impose any of the the penalties provided for by this Act (5) The limitation period for the application of sanctions shall be suspended for the duration in which the decision of the Competition Council is pending before the courts. + Article 65 ((1) The fit of any person exercising the position of administrator, legal representative or who exercises in any other way management positions in an enterprise to conceive or organize, with intent, any of the practices prohibited according to Art. 5 5 para. (1) and which are not exempted according to the provisions of art. 5 5 para. (2) constitutes a crime and is punishable by imprisonment from 6 months to 5 years or with a fine and prohibition of some rights. (2) It is not punishable the person who, before the prosecution is started, denounces the prosecution bodies his participation in the commission of the crime provided in par. (1), thus allowing the identification and criminal liability of the other participants. (3) The person who committed the crime provided by par. (1), and during the criminal investigation denounces and facilitates the identification and criminal liability of other persons who committed this crime benefit from the reduction in half of the limits of the sentence provided by law. (4) The court orders the display or publication of the final judgment of conviction. + Article 66 (1) Independent of the sanctions applied according to the provisions of this law, the right to action of individuals and/or legal persons for the full compensation of the damage caused to them by an anti-competitive practice the provisions of this law or art. 101/or 102 of the Treaty on the Functioning of the European Union (2) If a good or service is purchased at an excessive price, it cannot be considered that no injury has occurred due to the fact that the good or service has been resold. (3) The undertaking that benefits from immunity to a fine shall not be jointly liable for damages caused by its participation in an anticompetitive practice prohibited in art. 5 of this law, as well as in art. 101 of the Treaty on the Functioning of the European Union, practised by the competition authority. (4) When there is a decision of the Competition Council, by which an anti-competitive practice is sanctioned, in the settlement of claims for compensation, the courts will be able to ask the Competition Council for the documents of the the file that was the basis for issuing the decision. To this end, by receiving these documents, the courts will ensure that the confidentiality of information representing business secrets as well as other information qualified as confidential is respected. (5) Natural or legal persons, who consider themselves prejudiced by an anti-competitive practice prohibited by this law, will be able to make an application for compensation within 2 years from the date on which the decision of the Council The competition, on which the action was based in the alternative, remained final or was maintained, in whole or in part, by a final court decision. (6) The legal action will be possible for consumers and by associations of protection of registered legal consumers, as well as by professional or employers ' associations for their members affected by a practice anticompetitive, on the basis of their duties and the powers received in this regard, as the case may be. (7) The Competition Council may submit observations to the national courts on matters concerning the application of the provisions of art. 5 and 6 of this law, as well as the provisions of art. 101 101 and 102 of the Treaty on the Functioning of the European Union, provided that Law no. 134/2010 on the Code of Civil Procedure, republished, as amended. (8) In all cases where national courts apply, directly, the provisions of art. 101 and 102 of the Treaty on the Functioning of the European Union, after the communication to the parties of the judgment which is likely to pursue an appeal, shall immediately transmit a copy of the judgment to the European Commission, by means of Competition Council. + Chapter VII Common and final provisions + Article 67 (1) The turnover provided for in art. 12 is the sum of the income made from the sales of products and/or services performed by the undertaking during the last financial year, from which the amounts due by way of tax obligations and the accounting value of the exports made directly or through the trustee, including intra-Community supplies. (2) When an economic concentration operation takes place in the manner provided for in art. 9 9 para. ((1) lit. b), by purchasing asset items, from the turnover established according to the provisions of par. (1) only the amount of the assets constituting the object of the transaction will be considered. (3) If, during a period of 2 years, two or more transactions of the kind provided in par. (2) take place between the same natural and/or legal persons, they are considered as a single operation of economic concentration, carried out at the date of the last transaction. + Article 68 The business figures provided for in this Law are replaced: a) for credit institutions and other financial institutions, with the amount of income, defined by instructions adopted by the Competition Council, after deduction of taxes and fees related directly to them; b) for insurance companies, with the amount of gross premiums collected or receivable, according to insurance contracts concluded by or on behalf of insurance companies, including premiums paid to reinsurers, after deduction of taxes and of the fees charged on the amount of the individual insurance premiums or their total volume, identified by the Competition Council by instructions. + Article 69 For the purpose of applying art. 12, but without contravening the provisions of art. 67 67 para. ((2) and (3), if any of the undertakings concerned with the application of the provisions of art. 12 is part of a group of enterprises, for its turnover, the cumulative turnover of that group will be taken into account, according to the consolidated annual financial statements. + Article 70 (1) The person who has exercised a function of public dignity or a specialized public office within the Competition Council, who wishes to exercise professional activity in the private sector, remunerated or not, within three years of the date of termination of the mandate or service relations, shall notify the Competition Council thereof, having previously requested the favourable opinion of the competition authority. If the activity to be carried out in the private sector is related to the economic field circumscribed to the activity exercised at the Competition Council by the person concerned during the last three years may be incompatible with the legitimate interests of the authority, the Competition Council may, taking into account the interest of the institution, either issue a negative opinion to the request addressed, or adopt a favourable opinion containing the obligation compliance with the exercise of any conditions it deems appropriate. (2) The opinion provided in par. (1) shall be communicated within 10 working days from the date of receipt of the notification, after consultation of the parity commission in the case of competition inspectors, respectively of the Consultative College of the Competition Council in the case of persons who have had Membership of the Competition Council. At the end of this period, the lack of an opinion is considered to constitute a tacit endorsement. (3) If the person who has exercised a function of public dignity or specialized public office does not request the opinion or does not comply with the opinion of the Competition Council, the authority may address the Administrative and fiscal of the Bucharest Tribunal, requesting, as appropriate, the following: a) obliging the person concerned to comply with the opinion; b) cessation of activities which are incompatible with the legitimate interest of the competition authority; c) obliging the person concerned to pay compensation for damages caused by non-solicitation or non-compliance with the opinion. (4) Upon termination of the mandate, respectively of the service relations, the person who exercised a function of public dignity or a specialized public office within the Competition Council has the obligation to give a declaration certifying that he made aware of the provisions of this article and undertakes to respect them. (5) The model of the request for requesting the opinion, the conditions for granting it, as well as the declaration provided in (4) will be established by instructions of the Competition Council. + Article 71 (1) The condition of the corresponding state of health for the occupation of a specific public office of competition inspector is attested on the basis of specialized medical examination and psychological testing, which is carried out in specialized units, at Requesting the Competition Council. The candidate declared psychologically and medically fit may participate in the competition. (2) The employees of the Competition Council have the obligation to present themselves annually to the specialized medical examination and psychological testing, carried out in specialized units, at the request of the institution, to attest to the corresponding state of health the exercise of specific tasks. Note
We reproduce below the provisions art. II of Government Emergency Ordinance no. 31/2015 ,, as well as provisions art. II of Law no. 347/2015 which are not incorporated into the republished form of Law no. 21/1996 and which continue to apply as own provisions of the amending acts:
"" Art. II. --From the date of entry into force of this emergency ordinance *), investigations triggered on the basis of art. 5 5 para. ((1) lit. f) and g) of the Competition Law no. 21/1996 , republished, with subsequent amendments and completions, shall be considered to be triggered on the basis of the general provisions of art. 5 5 para. (1), and investigations triggered on the basis of art. 6 6 para. ((1) lit. e) and f) of the same normative act shall be considered to be triggered on the basis of the general provisions of art. 6 6 para. ((1). '; Note
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* *) Government Emergency Ordinance no. 31/2015 was published in the Official Gazette of Romania, Part I, no. 474 474 of 30 June 2015.
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"" Art. II. -The regulations and instructions of the Competition Council necessary for the implementation of Competition law no. 21/1996 , republished, with subsequent amendments and completions, as amended and supplemented by this law, shall be issued within 45 days from the date of entry into force of this Law. " **) Note
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** **) Law no. 347/2015 was published in the Official Gazette of Romania, Part I, no. 973 973 of 29 December 2015.
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