• Overview of the Adopted Secondary Regulation to Moldova’s New and Europeanized Competition Law
  • August 5, 2014
  • Law Firm: Turcan Cazac Law Firm - Chisinau Office
  • Following the entry into force of the new Competition Law on 14 September 2012, the Competition Council initiated the process of adopting relevant secondary regulations that are to complete and enable the new legal framework to be functional. On 30 August 2013, the authority adopted several regulations in this regard.

    Regulation on the Evaluation of Anticompetitive Horizontal Agreements was approved by the Decision of the Competition Authority No. 14 on 30 August 2013 and came into effect on 13 September 2013.

    The Regulation partially transposes the EU legislation on horizontal agreements: specifically, the EU Regulation No. 1217/2010 regarding certain categories of research and development agreements and EU Regulation No. 1218/2010 regarding certain categories of specialization agreements, as well as the two Communications from the European Commission on the Guidelines on the application of Article 81(3) and 101 of the Treaty of 2004 and 2011 respectively.

    Overall, the new Regulation completes the Competition Law with further legal provisions regarding: (1) the identification and evaluation of cartels, considered the most detrimental form of anticompetitive agreements - agreements that have the object of restricting competition; (2) the identification and evaluation of anticompetitive agreements that have the effect of restricting competition; (3) the exception from the general prohibition of anticompetitive agreements for agreements that contribute to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits, and that do not impose restrictions that are not indispensable to the attainment of these objective and confer such undertakings the possibility of eliminating competition in respect to a substantial part of the concerned products; (4) the evaluation of research and development agreements and the special conditions for excepting such agreements from the general prohibition of anticompetitive agreements; (5) the evaluation of specialization agreements and the special conditions for excepting these agreements from the general prohibition of anticompetitive agreements.

    Regulation on the Evaluation of Anticompetitive Vertical Agreements was approved by the Decision of the Competition Authority No. 13 on 30 August 2013 and came into effect on 20 September 2013 when published in the Official Gazette.

    The Regulation transposes the EU legislation on vertical agreements: specifically, the EU Regulation No. 330/2010 on the application of Article 101(3) of the TFEU to categories of vertical agreements and concerted practices, as well as partially transposes the EU Guidelines No. 2010/C 130/01 on Vertical Restraints, the EU Guidelines No. 2004/C 101/08 on the application of Article 81(3) of the Treaty, and the Commission Notice of 18 December 1978 concerning its assessment of certain subcontracting agreements in relation to Article 85(1) of the EEC Treaty.

    The new Regulation provides further legal provisions in respect to anticompetitive vertical agreements. In particular, it further details on: (1) agreements of minor importance, agency agreements; sub-contracting agreements; (2) evaluation of anticompetitive vertical agreements, (3) exemption of anticompetitive vertical agreements that meet the cumulative criteria provided by Competition Law.

    What is more, the Regulation sets out a block exemption criterion for vertical agreements where the market share of the parties to the agreement is less that 30%, provided that the respective agreements contain no hard core restrictions and other legal conditions are also met.

    Regulation on Establishing a Dominant Position and Evaluation of the Abuse of Dominant Position was approved by the Decision of the Competition Authority No. 16 on 30 August 2013 and came into effect on 20 September 2013.

    The Regulation partially transposes the Communication from the European Commission No. 2009/C 45/02 on the Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings.  In particular, the Regulation brings in legal provisions regarding the evaluation of a dominant position on the market and the evaluation of the abuse of such dominant position, by detailing also on different forms of abuse, as provided by Competition Law.

    Regulation on the Evaluation of Anticompetitive Agreements on Transfer of Technologies was approved by the Decision of the Competition Authority No. 15 on 30 August 2013 and came into effect on 27 September 2013.

    The Regulation partially transposes EU Regulation No. 772/2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements, and Commission’s Notice No. 2004/C 101/02 on Guidelines on the application of Article 81 of the EC Treaty to technology transfer agreements.

    The Regulation provides the condition of exemption from the application of Competition Law for technology transfer agreements, provided that specific conditions, provided expressly by the Regulation, are met. Pursuant to the Regulation, technology transfer agreements generally refer to such IP agreements as patent licensing agreements, know-how licensing agreements, software copyright licensing agreements, etc.

    Regulation on Economic Concentrations was approved by the Decision of the Competition Authority No. 17 on 30 August 2013 and came into effect on 11 October 2013.

    The Regulation on economic concentrations partially transposes the EU Regulation No. 139/2004 on the control of concentrations between undertakings (the EU Merger Regulation), EU Regulation No. 802/2004 implementing the EU Merger Regulation, as well as Commission’s Notice No. 2005/C 56/04 on a simplified procedure for treatment of certain concentrations under the EU Merger Regulation, and Commission’s Consolidated Jurisdictional Notice No. 2008/C 95/01 under the EU Merger Regulation.

    Generally, the Regulation details on the concept of economic concentration, its thresholds, undertakings concerned, manner of calculation of the overall turnover of undertakings, the notifying parties, the criteria and procedure of evaluation of economic concentrations by the Competition Council, etc. Also, it provides the procedure of simplified notification for economic concentrations that do not raise serious competition issues. 

    Finally, the Regulation provides for a new Notification Form, as well as a Notification Form for Simplified Notifications.