A look back at 2022 in terms of antitrust and what to expect in 2023

Authors: Cătălin Suliman, Silviu Vasile (Filip & Company)

In 2022, the Romanian competition authority focused on closing important investigations, recorded the highest number of cleared mergers in recent history and set the legislative framework for new directions of action and analysis.

In 2023 we are at a turning point. Changes within the competition authority will determine the authority’s future course of action. The Competition Council can remain a strong market watchdog, which will translate into a higher number of new investigations and analyses, as well as rigorous control of anti-competitive deeds. This scenario will require an even more active involvement in promoting competition rules, maintaining institutional expertise and attracting specialised human resources.

Expectations for 2023 also include ensuring a consistent application of the competition authority’s new powers, in particular in the digital area, food retail and unfair competition. It is also vital that the authority provides clarity to the business environment on merger control proceedings and its role in analysing foreign direct investments.

In terms of opportunities, the competition authority could identify ways to attract economic operators to cooperate in stopping certain illegal behaviour, either by continuing to develop the leniency programme or by applying significant reductions with respect to penalties for those entities that cooperate with the competition authority and contribute to improving the competitive environment.

Finally, we anticipate that the competition authority will continue its investigations in key sectors of the Romanian economy.

• Antitrust investigations. New powers for the Competition Council

In 2022, the competition authority focused on finalising investigations that spanned over several years, with the total amount of fines imposed indicating a reduction in its sanctioning activity. A particular focus was placed on scenarios where infringing parties chose to settle the case.

Although the competition authority’s activity report shows that a high number of new investigations have been launched (16), in fact, the number of ongoing investigations is at a lower level than during the pre-pandemic period.

In 2023, we can expect to have a twofold phenomenon: i) a number of important, older investigations will be completed (potentially targeted areas being IT&C, building materials, consumer goods, auctions) and ii) new investigations will be opened in key areas of the economy (e.g., energy, pharma, food retail, consumer services, manufacturing).

In terms of timing, the competition authority could use the first part of the year to finalise some existing analyses and then step up its efforts in the area of new investigations. An important factor at this point is also human resources, as the authority is at a point where it needs to attract (legal, technical and economic) expertise to support a higher number of simultaneous analyses. For this, the competition authority will need to identify the most effective ways to attract human resources, including from the private sector.

Moreover, the authority’s success will be determined by how it manages to respond to market complaints and enquiries. Periods of economic insecurity (particularly as a result of tariff increases, inflation, the emergence of certain solvency and payment issues, etc.) can be expected to increase the number of commercial disputes and lead to an increase in complaints and referrals to the authority.

In terms of new inquiries and analyses, we anticipate that the key areas of the economy to be targeted will be, particularly, the energy sector (covering its various branches), the pharmaceutical sector, the food segment, key services, as well as the area of public tenders for new development projects (especially as a result of the intensified implementation of the National Recovery and Resilience Plan –  NRRP).

We anticipate that the Competition Council will intensify its activity with respect to its new control powers. Thus, some investigations into possible abuses of the higher negotiation power can be expected in relation to unfair competition. Similarly, in the food retail sector, analyses on the implementation of the new rules are expected, including specific investigations on the relationship between large food chains and suppliers with reduced bargaining power.

• Sector inquiries

2022 was a very active year in terms of sector inquiries. Nearly 40% of current sector inquiries were launched in 2022, with this mechanism helping the competition authority to identify possible risk areas and trigger targeted investigations. The main sectors targeted were the pharmaceutical sector (marketing and promotion of non-prescription medicines and food supplements), the automotive sector, including the ride sharing segment, the construction industry (in particular with respect to the maintenance and repair segments) or financial services.

In 2023, we expect these market inquiries to continue, as such may have a purely local flavour or may even be inspired by analyses carried out by other competition authorities in the region or by the European Commission.

Sectors with an impact on the population (electricity, natural gas, fuel, medicines and healthcare, banking, e-commerce, transport services) will remain under the authority’s scrutiny in 2023. Anticipated cost increases in these market segments will prompt close attention from the competition authority, in particular as to verify and prevent the occurrence of coordinated practices beyond the limits allowed by the competition legislation.

• Sanctions

The sanctioning system applicable in Romania in competition matters allows for sanctions of up to 10% of the total turnover achieved in the year preceding the sanctioning. There has been an increase in the proposed basic amount of the fines, which has led to an increase in the number of settlements in recent years. It is very important that the process of determining the fines be balanced to avoid them becoming an indirect form of pressure on the business environment and thus a mechanism for limiting access to the courts of law.

Looking at the 2022 level of fines, this is relatively low compared to other years (although the total amount of fines remains significant, at over EUR 36 million).

To the extent that the authority continues to increase fines, the number of competition litigation cases is likely to increase, especially if the evidence presented is not sufficient to support a significant penalty. A disproportionate increase in the percentage of fines imposed on companies under investigation, especially in cases where the allegations are unclear or the evidence is unsatisfactory, is a dangerous and irreversible process, which will seriously affect the markets where such sanctions are applied (e.g., some companies will be forced out of the market or face serious difficulties as a result of the sanctions).

Although in 2021 small steps were taken in terms of identifying ways of resolving the investigated cases without imposing fines (e.g., by accepting commitments or actions), in 2022 that process was not continued. The competition authority should explore such alternative mechanisms to fines in the current economic context, given that, in many cases, the significant penalties that would be imposed on certain companies will end up being borne by the end customer and recovered through price increases.

• Merger control

From a merger control perspective, 2022 was intense, with 94 transactions analysed, the highest number in the last 16 years. The number of transactions analysed by the Competition Council is expected to decrease in 2023, as the M&A market is influenced by external factors such as the global recessionary trend, rising inflation and energy prices or the conflict in Ukraine.

The competition authority has shown willingness to engage in dialogue with stakeholders and we hope this will continue in 2023. One very important area where the competition authority’s expertise plays a key role is in the analysis of foreign investments. While the foreign investment control is of strategic importance, it should not create a bottleneck in the merger clearance process.

• Dawn raids

More dawn raids will take place if the competition authority decides to launch new investigations. Although the number of dawn raids is difficult to estimate, this will certainly increase compared to 2022, and we expect that dawn raids will remain the main means by which the competition authority collects evidence. At the same time, the competition authority will likely continue to develop its available tools for dawn raids, such as the forensic procedures or the inspection of personal equipment.

• Appeals against Competition Council’s decisions

It is important to note that there is a tendency for the courts to overturn some of the competition authority’s decisions, which is a normal phenomenon that will bring real benefits to competition investigations and, at the same time, more predictability in this area – with the competition authority having to focus more on ensuring that the necessary standard of proof is met.

Given that a significant part of investigations in 2022 were settled, we anticipate a decrease in the number of court cases on the short term. However, key decisions are expected with respect to (i) the manner in which the courts analyse the setting of fines by reference to the principle of proportionality and (ii) the analysis of the standard of proof in certain cases closed by the Competition Council a few years ago.