Final foreign investment guidelines – a few observations

The Competition Council has adopted the long-awaited Guidelines on foreign investment notifications (“the Guidelines”)[1]. The final version follows the draft published by the Competition Council this spring, which we covered in detail here.

The Guidelines largely reflect the content of the draft; unfortunately, however, they do not clarify a number of aspects that have proven unclear in practice. Below, we have summarized in a table what the draft provided, what the Guidelines set out, and our comments - my two cents – on the additions.

Happy reading!

Draft	Guidelines	Our comments
Art. 1 – The purpose of these Guidelines is to provide guidance on the method of calculating the value of an investment, as well as on matters related to the submission of the notification and the notion of control under Government Emergency Ordinance No. 46/2022 on the measures for implementing Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union, as well as for amending and supplementing Competition Law No. 21/1996, with subsequent amendments and completions, hereinafter referred to as “GEO No. 46/2022.”	Art. 1 – (1) The purpose of these Guidelines is to provide guidance on the method of calculating the value of an investment, as well as on matters related to the submission of the notification and the notion of control provided for in Government Emergency Ordinance No. 46/2022 on the measures for implementing Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union, as well as for amending and supplementing Competition Law No. 21/1996, approved with amendments and completions by Law No. 164/2023, with subsequent amendments and completions, hereinafter referred to as “GEO No. 46/2022.”	-
	(2) The rules provided in these Guidelines are aligned with the other conditions established by GEO No. 46/2022 so that a foreign direct investment, a new investment, or an investment from the European Union is subject to review and approval by the Commission for the Examination of Foreign Direct Investments, hereinafter referred to as CEISD. [2]	-
Art. 2 – The threshold referred to in Article 3(1)(b) of GEO No. 46/2022, representing the value of the foreign direct investment, new investment, and investment from the European Union subject to review and approval by CEISD, is determined in accordance with the rules set out in this chapter.	Art. 2 - The threshold established in Article 3(1)(b) of GEO No. 46/2022, representing the value of a foreign direct investment, a new investment, and an investment from the European Union subject to review and approval by CEISD, is determined in accordance with the rules set out in this chapter.	-
Art. 3 – (1) The value of the investment is represented by the value of the funds made available by the investor. (2) Funds represent the total amount of all consideration that has been or will be provided in the context of the investment by or on behalf of the investor who is a party to the transaction, including payments by cashless payment instruments, tangible or intangible assets, shares or transfers of ownership, debt remission, offsets, services, or any other in-kind consideration.	Art. 3 – (1) The value of the investment is represented by the value of the funds made available by the investor. (2) Funds represent the total amount of all consideration that has been or will be provided, directly or indirectly, in the context of the investment by or on behalf of the investor who is a party to the transaction, including payments through cashless payment instruments, tangible or intangible assets, shares or transfers of ownership, debt remission, offsets, services, or any other in-kind consideration.	The Guidelines adopt the provisions of the draft verbatim. The wording is of a “cover all” type.
Art. 4 – (1) The value of the investment is determined as follows:	Art. 4 – (1) The value of the investment is determined as follows:
a) In the case of investments made through the acquisition of equity interests – representing shares or social parts – the value of the investment is determined by taking into account the price paid for the equity interests and/or the capital made available by the investor, as applicable.	a) In the case of investments made through the acquisition of equity interests – representing shares or company stakes – the value of the investment is determined by taking into account the price paid for the equity interests and/or the capital made available by the investor, as applicable;	The Guidelines retain the provisions from the Draft according to which, in the case of an investment made through the acquisition of shares or company stakes, the value of the investment is determined with reference to the price or the capital made available by the investor. The concept of “price” is clear. “Capital made available by the investor” could likely encompass a broader range, potentially including assets – for example, in a joint venture where the investor contributes real estate. We believe, however, that a clearer formulation would have been useful.
b) In the case of acquiring equity interests through a capital increase or any other form of contribution to the share capital, which does not involve the transfer of existing equity interests, the value of the investment consists of the total value of the contribution, including both the nominal value of the subscribed shares and the share premium.	b) In the case of acquiring equity interests through a capital increase or any other form of contribution to the share capital, which does not involve the transfer of existing equity interests, the value of the investment consists of the total value of the contribution made, including both the nominal value of the subscribed shares and the share premium, if applicable. For clarity, the scenario of acquiring equity interests through a capital increase or any other form of contribution to the share capital refers to a situation in which there is a change in the structure of shareholding or ownership, either through the entry of a new partner or shareholder, or through a change in control or management. In this regard, a capital infusion or any other form of contribution to the share capital made by an existing partner or shareholder without changing control or management does not constitute a foreign direct investment, nor an investment from the European Union, according to the provisions of GEO No. 46/2022.	The clarification that only a change in the ownership structure triggers the notification obligation is welcome. On the other hand, we believe that this clarification should also be nuanced to cover particular situations, such as when the investment must still be notified if the capital increase leads to a change in ownership, but the new partner/shareholder has the same UBO as the existing partners/shareholders (in other words, there is no real change in control). Reading the text, one can conclude that the notification obligation is not triggered solely by a change in control, but merely by a change in shareholding, without a real impact on the company’s control.
c) In all other cases of investments that do not involve the payment of a price, the value of the investment is determined as the market value of the acquired equity interests/assets, established based on the acquirer’s own valuations prepared for the purpose of the relevant transactions.	c) In all other cases of investments that do not involve the payment of a price, the value of the investment is determined as the market value of the acquired equity interests/assets, established based on the acquirer’s own valuations prepared for the purpose of the relevant transactions. The valuation prepared by the acquirer is determined based on the market value, the book value, or the value used for tax purposes, in that order, depending on the availability of each value, or valuation reports may be used to determine the value of the investment.	A welcome clarification.
2) If the acquisition of equity interests or assets is carried out in a mixed manner, by combining some of the methods provided in paragraph (1), the value of the investment is represented by the total invested capital, determined according to the rules applicable to each of the operations.	(2) If the acquisition of equity interests or assets is carried out in a mixed manner, by combining some of the methods provided in paragraph (1), the value of the investment is represented by the total invested capital, determined according to the rules applicable to each of the operations.	Ibid.
(3) In cases where the consideration consists of other assets, services, interests, or other in-kind consideration, their value is their fair market value on the date the parties submit the authorization request.	(3) In the event that the consideration consists of other assets, services, interests, or other in-kind contributions, their value is their fair market value on the date the parties submit the authorization request.	-
(4) In the event that the transaction consists of a loan or a financing agreement, the consideration includes the total value of the loan, including the accrued interest, or of a similar financing arrangement, made available or provided by the investor or the investor who is a party to the transaction.	(4) In the event that the transaction consists of a loan or a financing agreement, the consideration includes the total value of the loan, including the accrued interest, or of a similar financing arrangement, made available to the investor or provided by the investor or to the investor who is a party to the transaction. This provision does not apply to loans/financing granted by authorized financial institutions, such as banks or non-bank financial institutions, in the ordinary course of professional lending activity in Romania, under which they do not acquire any right of management or control over the borrowing entities.	Ibid.
(5) In the event that the transaction consists of or includes the conversion of a previously acquired equity interest by the investor who is a party to the transaction, the consideration includes what was paid by the investor or on their behalf to initially acquire the equity, in addition to any other consideration paid or to be paid in connection with the conversion.	(5) In the event that the transaction consists of or includes the conversion of a previously acquired equity interest by the investor who is a party to the transaction, the consideration includes the amount paid by the investor or on their behalf to initially acquire the equity, in addition to any other consideration paid or to be paid in connection with the conversion.	-
(6) In the event that the consideration includes securities traded on a stock exchange, the value is the closing price of the securities on the exchange where they are traded on the trading day immediately preceding the date of submission of the authorization request, or, if the securities were not traded on that day, the last published closing price.	(6) In the event that the consideration includes securities traded on a stock exchange, the value is the closing price of the securities on the exchange where they are traded on the trading day immediately preceding the date of submission of the authorization request, or, if the securities were not traded on that day, the last published closing price.	-
(7) In the event that an investment is made in multiple stages, the value of the investment is determined by the cumulative total of the values corresponding to each stage.	(7) If an investment is made in multiple stages, the value of the investment is determined by adding together the values corresponding to each stage.	-
(8) If the investment also involves assets or contributions subject to terms or conditions that, by their purpose, nature, or objective, are considered to be established for the purpose of carrying out the investment, the total value of the investment includes the value of these as well.	(8) If the investment also involves assets or contributions subject to terms or conditions that, by their purpose, nature, or objective, are considered to have been established for the purpose of carrying out the investment, the total value of the investment includes them. şi valoarea acestora.	Here, one could think of potential option rights. In this case, it would be useful to clarify beyond any doubt that the subsequent exercise of the option will no longer trigger a notification obligation.
(9) When an investment is part of a multi-jurisdictional transaction and the price allocated to the enterprise/assets in Romania is not separately identified, the value of the investment is determined based on valuations provided by the parties. Otherwise, the value of the investment will be considered to be the total value of the multi-jurisdictional transaction.	(9) When an investment is part of a multi-jurisdictional transaction and the price allocated to the enterprise/assets in Romania is not separately identified, for the purpose of determining the investment threshold referred to in art. 3(1)(b) of O.U.G. no. 46/2022, the valuations provided by the parties regarding the enterprise/assets registered or located in Romania are taken into account. If no price is allocated for the enterprise/assets in Romania or no valuations are provided by the parties regarding the enterprise/assets registered or located in Romania, the value of the investment will be considered to be the total value of the multi-jurisdictional transaction.	-
Art. 5 – In order to demonstrate the intention to carry out an investment, the parties must present a document, preliminary contract, contract, or any other agreement that unequivocally demonstrates the intention to make the foreign investment.	Art. 5 – In order to demonstrate the intention to carry out an investment, the parties must present a document, preliminary contract, contract, or any other agreement that unequivocally demonstrates the intention to make the foreign investment.	-
Art. 6 – The authorization request shall be submitted after the completion of negotiations, once the most important aspects of the transaction have been established, but before the investment is implemented. By way of example, without being exhaustive, the price, financing method, parties, and subject matter constitute important aspects of the transaction.	Art. 6 – The authorization request shall be submitted after the completion of negotiations, once the most important aspects of the transaction have been established, but before the investment is implemented. By way of example, without being exhaustive, the price, financing method, parties, and subject matter constitute important aspects of the transaction.	-
Art. 7 - (1) The notion of “control” refers to the concept of control as defined in art. 9 para. (5) and (6) of the Competition Law no. 21/1996, republished, with subsequent amendments and completions, and includes transactions leading to the creation of joint ventures, as provided in the Companies Law no. 31/1990, republished, with subsequent amendments and completions.	Art. 7 - (1) The term “control” refers to the concept of control as defined in art. 9 para. (5) and (6) of the Competition Law no. 21/1996, republished, with subsequent amendments and completions, and includes transactions leading to the creation of joint ventures, as provided in the Companies Law no. 31/1990, republished, with subsequent amendments and completions.	-
(2) For the concept of control, reference shall be made to Part B, Chapter II, Sections 1, 2, and 3 of the 2010 Competition Council Guidelines regarding the concepts of economic concentration, involved undertaking, full-functioning, and turnover.	(2) For the concept of control, reference shall be made to Part B, Chapter II, Sections 1, 2, and 3 of the 2010 Competition Council Guidelines regarding the concepts of economic concentration, involved undertaking, full-functioning, and turnover.	-
Art. 8 – These instructions shall be implemented by order of the President of the Competition Council and shall be published in the Official Gazette of Romania, Part I.	Art. 8 – These instructions shall be implemented by order of the President of the Competition Council and shall be published in the Official Gazette of Romania, Part I.	-

[1] The Guidelines issued pursuant to the provisions of Article 3(5) of Government Emergency Ordinance No. 46/2022 on the measures for implementing Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union, as well as for amending and supplementing Competition Law No. 21/1996, dated 22 July 2025, approved by Order No. 2112/2025 of the Competition Council, published in the Official Gazette, Part I, No. 707 of 30 July 2025.

[2] The letters in bold indicate the difference between the Guidelines and the Draft, i.e., newly added text.

Good cheese in a dog skin bag: contractual exclusivity fails without clear acceptance from other distributors

In Case C‑581/23, Beevers Kaas, [1] the exclusive distributor of Beemster cheese in Belgium, brought proceedings against the Albert Heijn companies for their alleged involvement, as third parties, in the infringement of an exclusive distribution agreement concluded with the Dutch producer Cono. Beevers Kaas claimed that Albert Heijn actively sold Beemster products in Belgium despite being aware of the existence of this agreement. The dispute raised the question of whether such exclusivity could benefit from the exemption provided under Article 4(b)(i)[2] of Commission Regulation (EU) No 330/2010[3] (the previous vertical block exemption regulation), in the absence of an explicit resale restriction imposed by Cono on other distributors.

The Court of Justice of the European Union held that, in order to benefit from the exemption provided by the Regulation, two cumulative conditions must be met: (i) the supplier must have invited its buyers (other distributors) not to carry out active sales in the exclusive territory allocated to another buyer, and (ii) those buyers must have accepted that obligation, either explicitly or tacitly. Such acceptance may be demonstrated through objective and consistent indications. The benefit of the exemption applies only for the period during which these conditions are fulfilled. According to the CJEU, the mere fact that other buyers do not carry out active sales in the exclusive territory is not sufficient to establish the existence of an “agreement” within the meaning of Article 101 TFEU. It is for the national court to assess these elements in fact.

Takeaways for drafting exclusive distribution agreements (in light of the CJEU ruling and the current vertical block exemption regulation (VBER) – Commission Regulation (EU) 2022/720)[4]:

• To benefit from the block exemption under the applicable VBER, the supplier and the exclusive distributor must ensure that the restriction on active sales into the exclusive territory or to protected customer groups is expressly and demonstrably accepted by the other authorised distributors. The passive conduct of those distributors (i.e., simply refraining from making active sales) is not sufficient to establish the existence of an agreement under Article 101 TFEU.

• This protective framework must be maintained throughout the entire duration of the exclusive distribution agreement in order for the exemption from the prohibition on restrictive agreements to remain applicable.

  
  

In practice, the emerging conclusion is that failure to meet the conditions established by the CJEU can lead to two major categories of risk: (i) incompatibility of the exclusive distribution structure with the requirements of the VBER, which may result in the agreement being classified as anticompetitive and subject to significant fines by competition authorities; and (ii) civil liability, since the failure to effectively protect the exclusive distributor’s rights may amount to a contractual breach by the supplier, potentially leading to the award of damages. Therefore, beyond careful drafting of contractual provisions, it is essential to establish a real and operational mechanism that ensures the effective enforcement of the exclusive distributor’s rights.

[1] C-581/23 Beevers Kaas BV v Albert Heijn België NV and Others 2025 ECLI:EU:C:2025:323 (CJEU, Second Chamber, 8 May 2025)

[2] Article 4(b)(i): “The exemption provided for in Article 2 shall not apply to vertical agreements which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object: (…)(b) the restriction of the territory into which, or of the customers to whom, a buyer party to the agreement, without prejudice to a restriction on its place of establishment, may sell the contract goods or services, except: (i) the restriction of active sales into the exclusive territory or to an exclusive customer group reserved to the supplier or allocated by the supplier to another buyer, where such a restriction does not limit sales by the customers of the buyer”.

[3] Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices, which expired on 31 May 2022.

[4] Commission Regulation (EU) 2022/720 of 10 May 2022 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices.

Easter Eggs... in the Spotlight of the Romanian Competition Council

Easter Eggs

As Romanians gear up for the Easter break, eggs are once again in high demand — but this year, eggs are drawing some other kind of attention. Earlier today, the Romanian Competition Council (RCC) issued a public warning[1] following statements made by egg producers who announced an expected price increase ahead of the holidays, citing various pressures such as cost constraints and the tax unpredictability in Romania.

While the reasons invoked may sound familiar, the RCC made it clear: such public declarations, especially when made collectively or through industry associations, can be considered facilitating practices under competition law. In other words, even without a formal agreement, these announcements may reduce uncertainty among competitors and amount to a concerted practice — a serious antitrust concern.

The RCC’s warning is a timely reminder for all market players: public price signalling can lead to investigations and fines, especially in periods of predictable demand spikes like Easter. Businesses, particularly in sectors with sensitive pricing and seasonal dynamics, should avoid any public communication that could be interpreted as coordinating with competitors.

Beyond eggs, the message is clear and widely applicable — from retailers to manufacturers in all industries. As the RCC reinforces its proactive stance, companies should ensure internal compliance protocols are robust and that communication — whether through press releases, interviews, or social media — does not cross the line into price coordination.

So this Easter, while consumers hunt for the best deals, the competition authority will be on the lookout too.

[1] The document may be found here: https://www.consiliulconcurentei.ro/wp-content/uploads/2025/03/Atentionare-mar-2025.pdfntent/uploads/2025/03/Atentionare-mar-2025.pdf