Following a public consultation procedure bringing together policy makers and industry representatives, on June 20, 2022, the Government Emergency Ordinance no. 84/2022 on preventing speculative actions and amending and supplementing certain normative acts (“GEO no. 84/2022”) was published in the Official Gazette of Romania.
This normative act may potentially impact in a significant manner the activity of all companies operating on the Romanian market, and even the activities performed by natural persons, as the case may be, irrespective of their specific industry or type of activity. Also, to note that the GEO amends both Government Ordinance no. 21/1992 on consumer protection (“Consumer Protection Act”) and Law no. 11/1991 on unfair competition (“Unfair Competition Law”).
One notable amendment in terms on unfair competition rules resides in introducing the concept of a superior bargaining position which is now qualified as an unfair and anti-competitive practice, without being conditioned by a dominant position held by an undertaking – presumed above a 40 percent market share.
The behaviour of a company that exploits its superior bargaining position toward other company with which the former has or had a commercial relationship where such exploitation is prone to cause the latter significant damage or to affect normal market competition, while also affecting the public interest and the proper functioning of the market, is now qualified as an unfair competition practice and may be sanctioned with fines up to RON 500.000 (approx. EUR 100,000), in case of infringers legal persons, and up to RON 11.000 (approx. EUR 2,200), in case of infringers natural persons.
Exemplificative actions or inactions through which un undertaking may exploit its superior bargaining position, as expressly provided by GEO no. 84/2022, include:
(i) the unjustified refusal to supply or acquire goods or services,
(ii) failure to observe the contractual clauses regarding the payment, the supply or the acquisition of products/services,
(iii) imposing unduly burdensome or discriminatory conditions considering the object of the agreement.
The new GEO provides for a set of cumulative criteria that will be considered by the Competition Council when analyzing whether an undertaking has been exploiting its superior bargaining position in breach of the applicable legal requirements.
In addition, it prohibits certain actions/inactions to be undertaken by a professional within a B2C relationship, as follows:
(i) setting unjustifiably high prices,
(ii) limiting production or sales, without a justified rationale,
(iii) gathering goods from the external or internal market for the purpose of creating a deficit within the national market and further resell at an unjustifiable higher price.
The actions/inactions presented above are regulated as speculative actions and are to fall under the general prohibition set forth by the law only when certain conditions are cumulatively met.
Read more about the speculative actions regulation and other aspects falling under the scope of GEO no. 84/2022 here (in Romanian only).