No – Romanian competition law does not carve out a special regime for sustainability agreements, nor does it make reference to ESG measures as part of the analysis conducted by the Competition Council/national courts seized of competition law cases.

To the best of our knowledge, there is no ongoing legislative process announced, aiming to integrate ESG measures into the competition law analysis.

The Competition Council has provided (limited) guidance on the role of ESG in the assessment of the conduct of undertakings, albeit not in the context of merger control.

Accordingly, the Competition Council has issued:

1. Guidelines on the interpretation and application of Article 5 (2) of the Competition Law (national equivalent of Article 101 (3) TFEU) to co-investment agreements and to agreements on the shared use of electronic mobile communication networks. This instrument clarifies that environmental concerns may qualify as efficiency gains, and therefore lead to an exemption of the agreement from the prohibition of restrictive agreements. More specifically, the Competition Council held that the mitigating effects of the agreement on the environment may be considered when assessing whether the agreement contributes to improving the production/ distribution of goods or to promoting technical or economic progress.
2. The competition Compliance Handbook. Encourages undertakings to perform a self-assessment of their activities through the lenses of competition law. The Handbook has the purpose of helping undertakings identify and navigate competition law risks. While there is no mention of environmental or social considerations, the instrument has encouraged the adoption of compliance reports by undertakings, thus consolidating the “Governance” arm of ESG.

Yes – the Competition Council has issued guidance on compliance with competition rules of collaborations within associations of undertakings. Nonetheless, no reference is being made to ESG measures as a mitigating factor/ an element exempting the conduct from the competition regime.

While the Romanian competition regime does not lay down a special formal procedure allowing parties to submit specific questions pertaining to the compatibility of their envisioned ESG initiatives with competition law, the Competition Council is generally open to discussing with companies wishing to consult with the authority on various topics.

There is currently no methodology in place to quantify the ESG effects in cases of merger control or other competition law proceedings.

With regard to the assessment of restrictive agreements, the Romanian equivalent of Article 101 (3) TFEU largely mirrors the treaty provision. Accordingly, there is no language expressly prohibiting the Competition Council from weighing, as part of its analysis, ESG benefits against the anti-competitive effects of the agreement. Even so, with the exception of the relevant provision in the Guidelines on the interpretation and application of Article 5 (2) of the Competition Law to co-investment agreements and to agreements on the shared use of electronic mobile communication networks, the Competition Council has not been active on this topic.

With regard to merger control, the Romanian competition law is drafted in rather broad terms, as the criteria for evaluating merger notifications are determined by the Competition Council by way of regulations. Therefore, the competition agency has considerable leeway in adopting ESG measures as part of its analysis. To the present day, the Competition Council has opted not to divert from the more conventional criteria established at this level (the structure of the market, actual/ potential competition, the position of the parties on the market), making no mention of ESG measures as grounds for merger clearance.

To our knowledge, there is no administrative practice or case law specifically addressing ESG matters as grounds for clearing a merger/ exempting a restrictive agreement from the prohibition enshrined in Article 101 TFEU.

No – While the Romanian competition regime contains specific provisions concerning actions for damages/class actions, in light of the silence of the law as to sustainability considerations, there is no apparent link to ESG litigation.