Getting the Deal Through: Dominance 2011

The abusive behaviour of dominant firms is prohibited by article 6 of the Romanian Competition Law No. 21/1996 (RCL) and article 102 of the Treaty on the Functioning of the European Union (TFEU). Article 6 expressly prohibits the abusive use of a dominant position held by one or more undertakings on the Romanian market or on a substantial part of it.

The attempts of a non-dominant player to gain market shares through an aggressive M&A strategy would normally be subject to merger control and censured, if necessary, within this context. Under the RCL, article 12, the Romanian Competition Council (RCC) may prohibit the economic concentrations that lead or might lead to a significant restriction of effective competition by creating or strengthening a dominant position. The authority has, however, made limited use of this provision, preferring to impose remedies on the merging parties.

The Romanian legislature states as primary objectives of the antitrust law the protection and growth of competition on the market and the support of consumers’ welfare. The RCC’s practice showed an increased focus on consumers. In one relatively recent case, a couple of cable TV operators were found to be abusive for not complying with the contracts concluded with their subscribers.

The RCL provides no sanctions for the unilateral conduct of nondominant companies. Beyond the level of dominance and independent of antitrust control, certain commercial practices of non-dominant players (sale at loss, tying sale, etc) could be fined in a ‘softer’ manner, by the consumers’ protection offices or fiscal authorities under separate enactments.

Network industries such as telecommunications, postal services, energy, and railway transport are regulated by specific rules to facilitate market liberalisation and ensure a competitive environment. These specific rules are directly applied by the relevant sector regulatory bodies. Nevertheless, topics concerning access to infrastructure or other anti-competitive practices of the incumbent operators in the specific sectors could also be dealt with by the RCC under the general rules on abuse of dominant position.

To read the entire article, please download the .pdf attached.