marți, iunie 17


marți, iunie 17

Title IV of the Constitution of Romania is dedicated to the economy and finances of Romania, art. 134, paragraph 1 declaring: “the economy of Romania is a market economy, based on free initiative and competition”. This new version of the text underlines the important role of the free initiative, as well as the place or the environment it works in – the competitional economy. The next paragraph presents the way the legislator understands the responsibilities of the state the latest having the role to assure, among other things, the freedom of trade, the protection of the loyal competition, the creation of the frame adequate for the valorisation of all the factors of production, all these creating the premises of the economic freedom, as fundamental right established by art. 45 of the Constitution. 1

The state’s deliberated manipulation of a certain number of means in order to attain a certain aim, is known under the name of economical policy. 2 In order to concretise, when it is spoken about the state, it is advisable to keep in mind the complex ensemble of public authorities and institutions, with attributions in different domains, comprising in extent the legislative and executive power, at the central level as well as at the local one. In the present case, the Parliament settled the domain of competition, creating, in the same time, an autonomous administrative authority – the Council of Competition – and another one subordinated to the Government, the Office of Competition.

In the literature of speciality it was discussed a lot if it is necessary or not for the state to interfere in economy in order to regulate the market mechanisms and about the concrete way of manifestation of its interference. There are two conceptions situated on extreme positions, characterized by the fact that they are, in the same measure, utopian. We are speaking about the theory of the “invisible hand” of the market, that can be found between the principles of the capitalism and the plan economy, specific for socialism.

In the first one of the cases, economy adjusts itself, this procedure being synthesized by the syntagm “laissez faire, laissez passer, le monde va de lui même”. To this effect, the economic must be excluded from the state’s sphere of activity, because the economic organisms are governed by their own laws, in conditions of free competition and free initiative. 3 The key-question from the economic point of view “ How much and how must I produce?”, finds its answer and it is directed by the market’s invisible hand 4.

But this conception is not spared of critics. This theoretic type of economy may leave space to the creation of monopole, that, protected by the competition can maintain a high price, much more over the costs of production of a good or service, encouraging in this way the speculation5.

The planned economy is on the diametrically opposite position, economy in which the extremely important role of the free initiative is diminished, the economic agents being subdued by the central decisions.

The economic decision belongs to the central authority, the economy becoming, in this way, unipolar. All the decisions can be found in the centralized plan, and their accomplishment is compulsory, using, for this purpose, the state apparatus. The state sustains the economical relations between the subjects of the economy with vertical relations of administrative type, that, through their nature, exclude the idea of market and automatically the one of competition, not finding their purpose. The danger of this form of economy resides in the fact that, in its case, the state goes beyond its natural competence and arrives to adopt some measures with negative character, whose effects couldn’t be controlled anymore. This idea also finds itself in the main critics brought to this system, namely the fact that the invisible hand of the state that is politicised through its nature and, as a result, it is not protected by the danger of corruption, unlike the invisible hand of the market, that, being an impersonal mechanism, can’t be corrupted 6.

In the modern economic conditions, especially after having learnt the lesson given by the great economic crisis between the years 1929 and 1933, the self regulation of economy and its planning aren’t possible anymore. That is why, the two theories are considered to be utopian. Nowadays they mingle. For instance, even in the situation of a market economy, a form of intervention of the state in economy is accepted in unanimity, namely the institution of some special forms of control and surveillance of the activities of the financial – banking institutions or the legislative activity, through which the private property and the competition are protected7.

The economic policy of a state, without being judged from the political point of view, is characterized through an equilibrium that proves to be very delicate and sensible, situation that imposes the decision concerning the necessity to interfere or not to do it. This equilibrium differs from state to state and can’t be reproduced, the conditions determining it being very complex and private.

According to the constitutional text, the economy of Romania is a market economy. We understand by that a complex mechanism of coordinating people, activities and firms through a system of markets and prices. 8 One of its important features is the fact that it is motivated and led by the competition that is based on the free initiative of the economic agents.

We can’t speak about competition without making reference to “its place of display”, namely the market. It is a particular mechanism of coordination of the producers and consumers’ intentions (plans) and actions concerning some goods9. Because it is an interaction mechanism, the market can function only in the conditions of a high degree of freedom of the people in their economic activity. More specifically, the market is the meeting place of the offer representing the quantity of an X – product that an economic agent is willing to offer for sale and of the demand representing the quantity of merchandise that the consumers are willing to buy. We may speak about market in the real sense of the world, when the offer, the demand and the price are freely constituted.

The activity of production has as final step the satisfaction of the consummation need, so it is oriented in accordance with the demand manifested on the market. When more producers lead their activity towards the satisfaction of the same segment of demand, the phenomenon of competition appears.

The competition is considered to be a process extremely important, characteristic for the market economy, through which the firms are constrained to become efficient and to offer a large range of products or services at the lowest prices, manifesting themselves in an open confrontation and using different strategies and adequate actions, having as purpose the improvement of their position on the market.10

Because of the “stake of the game” there are cases when the competition misstates. That is why, it is accepted in unanimity the idea according to which the state must raise a legislative background in order to protect this phenomenon of the market. But, the idea according to which this one should refrain from deregulating it is accepted, at the same extent, the market respecting its verdict, in one way or another11.

The regulations from the field of the law are meant to assure, on one side, the free exercise of the competition and, on the other way, to sanction the illicit understandings or the unlawful agreements that disturb the competitional mechanism12.

So, there is a difference between the legislation concerning the unfaithful competition that assures the competition phenomenon and obliges all the participants to adapt themselves to the same rules and between the antitrust regulation that helps to the conservation and maintenance of the competition’s freedom, fighting off the obstacles in commerce and the abuses of the economic power.

Loyal competition and disloyal competition

The loyal competition was defined as the competition taking place in a legal environment, between the economic agents, based on the perfecting of the own activity13. This legal environment was given by the Law nr. 21/1996, with further completions and modifications, whose purpose is the maintenance and the stimulation of the competition and of a normal competitional environment in order to promote the consumers’ interests (art. 1 from the above mentioned law).14

The loyal competition exists when the sellers use the non-discriminating “fight” instruments in the conditions of this freedom on the market, in the respect of all the regulations given to the seller – buyer relationship. 15

Not a few times the competition misstates and this is the way in which an anti-competitional behaviour appears. The disloyal agreements are sanctioned in most of the countries by special laws, this also being the case of the law nr. 11/1991 concerning the disloyal competition. 16 So, by this law, it constitutes disloyal competition any act or fact against fair usance in the industrial activity and trade with goods, of execution of works, as well as of services’ carrying out17 .

The most frequent disloyal practices refer to the disparagement of the competitioners, introducing in circulation wrong affirmations concerning their activity, to the corruption of the competitioners’ staff, to the economic spying or to the advantages’ acquiring, as a result of the confusion that can be created between the own activity and the one of the competitioners, this one being known under the name of parasitic competition. The enumeration of the disloyal activities is the object of art.4 and 5 of the Law of the disloyal competition.

The economic theory also appreciates that the violation of the law, especially of the fiscal ones and the obtaining, on this base, of some lower costs and, as a result, the possibility to practice lower prices compared to other producers, is also a form of disloyal competition, called illicit or fraudulent. The practice of some small prices, sacrificing the own profit, is considered disloyal competition, known under the name of dumping18.

The disparagement represents any communication having as object a false affirmation concerning a competitioner and that might have a negative effect on his commercial prosperous business, intending, in this way, to tempt new clients, through wrong information. It always implies a direct attack against a certain economic agent. The target mustn’t be absolutely named, being sufficient an easy identification by the consumer. The effective protection against discrediting is independent from any proof of an effective damage or intention19 . This action is a contravention, in the sense of art.4, letter e of the Law of disloyal competition.

We understand by confusion, the act of disloyal competition that consists of the credible dissimulation of the own market activity of the author under the appearance of the distinctive signs of the affected competitioner or of a group of concurents20. This is usually done by creating similitudes with the firm, the emblem or the wrappings, by selling some goods with false mentions, and others21. The test for the basic type of confusion is to see if the similar mark resembles to the protected mark, so that it can produce confusion for a substantial number of usual consumers, regarding the commercial source of the goods or services.

So, art. 5 letter a of the mentioned law establishes that the use of a firm, invention, mark, geographical indication, model or industrial drawing, of an emblem or wrapping, capable to produce confusion with those legitimately used by another trader, is infringement of the law22.

The confusion, as well as the disparagement, as facts of competition, present a disloyal character if, besides the specific conditions they also fulfil the demand to be credible for the clients in cause. The credibility supposes a great diversity of material elements, but also a psychic element, being necessary that in the client’s mind an error of appreciation is possible, concerning the injured economic agent23.

Unlawful agreements

By unlawful agreements the competition law understands any expressed or tacit agreements between economic agents, any decisions of association or concerted practices between them, that may have as object the restriction, impediment or misrepresentation of the competition.

It can be done, for instance, by the concerted establishment of prices, by the limitation of the production control, by the dividing of the display markets, the limitation or impediment of the access on the market of other economic agents (art.5 paragraph 1 of the Law of Competition).

The generic term of agreements aims only at the agreements and practices whose object or effect could be unlawful. There is no limitation of the contract modalities of fulfilment, so they may be verbal, public or secret, being enough that the economic agents express their will in a determined way24. For instance, the agreement concerning the repartition and delimitation of the transportation lines between partners (also called pool agreement), each of them reserving the exclusivity to explore the established direction, excluding those who don’t take part in.

The enterprises associations’ decisions are considered to be acts of collective will emanated by the competent organ of the group suspected of unlawful behaviour. They may take different forms, as directives, rules, circular letters25.

The concerted practices represent o form of coordination between enterprises that willingly replace the risks of the competition with a practical cooperation between them. They don’t have all the elements of a contract, but they may inter alia come out of a coordination that may be recognized by the parallel behaviour of the participants. They suppose the reunion of some specific objective and subjective elements and, in the same time, of a negative condition26.

The Council of the Competition is the one that pronounces itself in a decision concerning the exception of some individual cases of agreements, decisions of association or concerted practices, only if the conditions stipulated by the Law of Competition, in art.2, are cumulatively accomplished, as, for instance, the one referring to the prevailing of the positive effects on the negative ones or the first of them are enough to compensate the reduction of the produced competition.

Once again, the Council of Competition regulated, through the Regulation concerning the application of art.5, paragraph 2 of the Law of Competition nr. 21/1996 a new form of unlawful competition, namely the vertical agreements27. We understand by that any agreement or concerted practice agreed to between two or many economic agents, each of them operating to fulfil the respective agreement, on different levels of the production-distribution chain, referring to the conditions in which the parts can, for instance, sell or buy28. we may register here the agreements as the exclusive distribution, the territorial exclusivity or the exclusivity of the mark.

In order to apply correctly the law, the Council of Competition proposes, for the evaluation of the economic agents’ actions, the indicator of the market quota. If the participants at the agreement detain a market quota greater than 30%, it is presumed that this one can’t, generally, entail advantages that might compensate the unlawful effects they may produce on the competition29.

Economic concentration

According to the law of the competition, we understand by that, any juridical act, no matter the form, that operates the transfer of the estate or of the use on the whole or on a part of the goods, the rights or the obligations of an economic agent, or has as object or effect to allow to an economic agent or to a group of economic agents to exercise, directly or indirectly, a determined influence on one or many economic agents (art.11).

Any economic concentration, when the implied economic agents sum up a turnover greater than 10 billion lei, must be the subject of the Council of Competition’s control, in order to be authorized. The sanction for not respecting this imperative obligation is the absolute nullity of the concentration. For the omission of the notification, fines are applied and the modifications appeared in the societies implied in an unauthorized economic concentration can’t be registered in the Trade Registrar, so being non-opposable for third parties30.

Many solutions might be offered for the economic concentration: it is allowed, it may be authorized through a decision of non-objection, when it is found out that positive effects prevail on its negative ones, or when the negative effects don’t exist. It may be decided the starting of an investigation, when the economic concentration presents doubts concerning the pre-eminence of the positive effects on the negative ones31.

The mostly used way to realize a concentration is the fusion, through merger as well as through absorbtion32. The French Law knows, as structure of enterprises concentrations, the groups of economic interests and for the British or American Law , the traditional modality is the trust33.

The legislation in force assimilated a new form of patrimonial association endowed with juridical personality, respectively the group of economic interest, through the adoption of the Law nr. 161/2003 concerning some measures for assuring the transparency in the exercise of the public dignities, of the public functions and in the business environment, corruption’s prevention and sanctioning34.

This regulation inspires itself, first, from the model offered by the French Commercial Code, where this form of association was regulated in order to allow to the enterprisers to adapt themselves to the evolution of a market in expansion, organizing and exploiting in common some activities35.

The group of economic interest represents an association between two or many physical or juridical persons, constituted for a determined period of time, in order to facilitate or develop the economic activity of its members, as well as for the improvement of the respective activities results. GIE is a juridical person with patrimonial purpose, that can have the quality of a trader or non-trader (art. 118 paragraph 1 and 2 of the Law nr. 161/2003).

Some general features come out of the legal definition. GIE is a legal entity, as in the case of the commercial partnerships, the legislator regarding the group of economic interest as a convention, an association, as well as a juridical person. It has a patrimonial purpose and can be constituted on the association of two or many physical or juridical persons (but not more than 20, according to art.118 paragraph 3 of the Law nr. 161/2003). The activity of the group has an auxiliary character, it should be reported to the economic activity of its members and should have only an accessory character towards this one (art.118, paragraph 4 of the law)36.

It has been experimented the opinion on which the Romanian legislator conferred the group of economic interests a conceptual and functional ambivalence, that allows it to place itself in the civil sphere as well as in the commercial one37. So, according to the law, GIE may have the quality of a trader, as well as the one of a non-trader. Unlike the rest of the situations, when art.7 conferred the quality of tradesman to those exercising trade activities with professional title, the law qualifies this juridical person as tradesman, exclusively after the object of activity registered in the constitutive paper (art. 122 paragraph 1 letter d of the law). More than that, even the groups that don’t have the quality of traders will be registered in the Trade Register.

GIE is constituted through an act signed by all the founding members, drawn in authentic form (art. 120 paragraph 1 of the law)38. The law allows the constitution of groups of economic interest, through capital contribution, as well as without it (art. 121). In any case, this type of juridical person can’t aim at obtaining any profit. But if this one is obtained, it is distributed with title of dividends to the members of the group of economic interests39.

In order to get juridical personality, GIE must solicit the registration in the Trade Register, by registering a demand accompanied by the constitutive paper, the proof that the payment was done to the capital, acts concerning the property on the contributions in nature, the proof of the seat and the declaration of honorability of the founders at the Trade Register Office, in whose territorial circumscription the group has its seat (art. 125 paragraph 2 and art. 127 of the Law nr. 161/2003). Publicity is also requested, through the obligation instituted by law to publish the constitutive paper in the Official Monitor, altogether with the mentions referring to the registration code of the group, the date and the place of its registration (art. 129 of the Law nr. 161/2003).

An opinion has been expressed according to which the Romanian legislator chose to create the juridical institution of the GIE in the internal law, on the purpose of giving substance to the associations representing, in fact, the aim of the regulation, respectively the European groups of economic interest - GEIE40 . Between the two juridical persons there are some differences. The first one is the fact that GEIE may constitute itself not only for a determined period of time, but also for a non-determined one. The members of this kind of group can be only juridical persons having their seat and the main leading and administrating headquarter of its statutory activity on the territory of a state from the European Union, as well as physical persons developing industrial, commerce, domestic or agricultural activities, or who offer professional services, or of any other kind, on the territory of a state member of the EU. The maximum number of GEIE members is not limited, the law imposing its constitution from at least 2 members, juridical or physical persons, having their seat or developing the activity on the territory of two different states of the European Union41.


In the field of the competition, the base and secondary legislations are harmonized with the similar European legislation, existing an advanced degree of compatibility concerning the way of treating and regulating the agreements, the concerted practices and the control of the economic concentrations. The compatibility between the communitarian legislation and the Romanian one is also reflected in the brought – to – day Monitoring Report (screening), transmitted by the Commission of the European Union at the beginning of March 2000. As a general rule, the legislation concerning the competition that deals with the unlawful agreements and the economic concentrations follow, as it was appreciated in the last Evaluation Report of Progresses Registered by Romania, the line of the Community’s legislation: art. 81 and art. 82 of the Treaty from Amsterdam (including the Regulation 17/1962 concerning the application of these articles) are reflected in the Law of competition; the CEE Regulations 4064/1989 and 3384/1994 concerning the economic concentrations are taken by the Regulation concerning the authorization of the economic concentrations, adopted by the Council of Competition. There have been adopted, in the same time, the Regulation concerning the exception on categories of agreements, decisions or concerted practices; the Regulation of organizing, functioning and procedure of the Council of Competition; Instructions concerning the calculation of the turnover and Instructions for the market’s definition42.

The dynamic context of the Romanian economy evolution obliges to a permanent evaluation of the necessity of adaptation of these normative acts – for instance inflation or depreciation of the national currency needs a re-evaluation of the minimal steps in the case of the economic concentrations’ notification and in the case of the exceptions from the legal stipulations, in the case of the agreement between enterprises or of the concerted practices.

1 For details, see Gh.Glavan, Noile drepturi fundamentale. Accessul la cultură şi libertatea economica (The New Fundamental Rights. Access to Culture and Economic Freedom), in A.U.B., nr. 1/2004, p. 34-36

2 I. Ignat, I. Pohoata, N. Clipa, G. Lutac, Economie politică (Political Economy), Economica Publishing House, Bucharest 1998, p. 441

3 I. Ignat, ş.a (and others), op.cit., (Cited Works), p. 442

4 The market appears as an ensemble of means of communication, through which the sellers and the buyers inform one another about what they dispose of and respectively about what they need and the prices asked and proposed for drawing transactions. There is the „place”of meeting the request and the offer for a certain good or for a certain service. The level or the expensiveness of the price established in these conditions is what guides the producers and orient their activity. For details, D.Popescu, Economie politică(Political Economy), Continent Publishing House, 2000, p.17

5 See M.Didier, Economia: regulile jocului (The Economy: the Rules of the Game), Humanitas Publishing House, Bucharest, 1998, p.79-81

6 For developing, L.Balcerowicz, Libertate şi dezvoltare. Economia pieţei libere (Liberty and development. The Economy of the Free Market), Company „Astfel”, Bucharest, 2001, p.142

7 Ibidem (The same), p.159

8 D.Popescu, op.cit., (cited works), p.13

9 L.Balcerowicz, op.cit (cited works), p. 144-146

10 The strategy of the firm consists in the creation of a „shield” to prevent any threaten of the firm, namely the profit. That is because the competition permanently erodes the profit and the firm has to adapt to the market in order to exploit all the ways of the profit. The economic theory turned into concrete some of these programs. The first of them is known under the name of strategy of the concerted effort, when the firm aims at the concentration of its efforts on particular customers or particular product, or any other particular region. Another strategy is the one of the differentiation, consisting in the creation of the ensemble product – mark – image – service that is perceived by the client as „unique” for the respective category of goods. The third type is the strategy of the global domination through costs, that means doing the same thing as the competitioners, but at invincible prices, eliminating them in this way. (M.Didier, op.cit., (cited works), p.74-75)

11 Concerning this aspect, it should be seen the Decision nr. 446 from 25.11.2003 of C.S.J. concerning the exception of non-constitionality of the stipulations of art. 1 paragraph 1 and 4 of the Law nr. 254/2002 regarding some measures for raising the private activity of the commercial societies with state integral or partial capital having in administration agricultural lots, public or private property of the state, modified and completed through the O.U.G. nr. 209/2002, referring to the fact that, through the same law, at different paragraphs, the legislator institutes a discriminatory treatment under the aspect of the facilities he offered, between commercial societies with integral or partial state capital that are to become private. The jurisprudence archives from the official site of the Ministry of Justice: http://mj/superlex.nsf

12 See I.Bacanu, Libera concurenţă în perioada de tranziţie spre economia de piaţă (The Free Competition in the Period of Transition towards the Market Economy), in Dreptul, nr. 9-12/1990 and O. Cojocaru, Consideraţii asupra legii privind combaterea concurenţei neloiale (Considerations on the Law regarding the Fight against the Disloyal Competition), in Dreptul, nr. 7-8/1991.

13 For details V.Balaure and collaborators, Marketing (Marketing), Uranus Publishing House, Bucharest, 2003, p.113

14 It was modified and completed through the Law nr. 538/2004 concerning the modification and completing of the Law of competition nr. 21/1996 and the Order nr. 510/2004 concerning the modification of the value level stipulated by art. 8 paragraph 1 of the Law of Competition, with further modification and completions.

15 D. Popescu, op.cit., (cited works), p.75

16 It was modified and completed by the Law nr. 298/2001 for the modification and completion of the Law nr.11/1991 concerning the fighting of the unfaithful competition, published in M.O. nr. 313 from the 12-th of June 2001

17 The same normative act explains the understanding of the term „contrary to fair usance”, as the disloyal use of the commercial secrets of an economic agent through practices as the unilateral non-execution of the contract or the use of some disloyal procedures, the abuse of confidence, etc. being able to affect the position of the competitioners on the market (art.1¹ of the Law nr. 11/1991)

18 See V.Balaure…, op.cit., ( cited works), p. 114

19 See WIPO, Introducere în proprietatea intelectuală (Introduction in the Intellectual Property), Rosetti Publishing House, Bucharest, p. 241-243

20 See O.Capatana, Dreptul concurenţei comerciale. Concurenţa neloială pe piaţa internă şi internaţională (Law of the Commercial Competition. Disloyal Competition on the Internal an International Market), Lumina Lex Publishing House, Bucharest, 1996, p.16

21 Concerning the confusion regarding the indications, concerning the product’s forms, see WIPO, op.cit., (cited works), p.231-236

22 For the forms of responsibility for disloyal competition, see Y.Eminescu, Concurenţa neleală. Drept român şi comparat (Disloyal Competition. Romanian and Compared Law), LuminaLex Publishing House, Bucharest, 1995, p.29-39

23 O.Capatana, op.cit., (cited works), p.17

24 It is essential to express their common intention to behave on the market in the sense of the agreement concerning the restriction of the competition. See O.Manolache, Regimul juridic al concurenţei în dreptul comunitar(The Juridical Regime of the Competition in the Communitarian Law), All Publishing House, Bucharest 1997, p. 12-14

25 See O.Capatana, Dreptul concurenţei comerciale. Concurenţa patologică. Monopolismul (Law of Commercial Competition. Pathological Competition. Monopolism.) Lumina Lex Publishing House, Bucharest 1993, p.43-44

26 From the objective point of view it is requested the existence, at a certain moment, of a parallel and similar behavior of the economic agents, having the reservation that the objective element, isolately considered, is not, through itself, an unlawful agreement. Subjectively it is necessary for this parallel behavior to be observed willingly, so to be deliberate. The negative condition is the inexistence of a proper agreement, as basement of the analogue behavior. For details, O.Capatana, Consimţământul participanţilor la înţelegerile monopoliste (The Consent of the Participants to the Monopolist Agreements), in R.D.C. nr. 3/1993, p. 33-53

27 Through the Order nr. 68 from 05.04.2004 concerning the application of the regulations of the Council of Competition elaborated based on the Law of the Competition nr. 21/1996, with further modifications and completions.

28 For the sanctioning of the unfaithful agreements done under the form of vertical agreements, see Decision nr. 1571/26.04.2000 of C.S.J. in The Judicial Courier, nr. 2/2002 and Decision nr. 955/15.04.1998 of C.S.J. in The Judicial Courier, nr.1/2002

29 In the same sense, for instance, EU fined Microsoft for unfaithful agreements and that was done in the conditions of a perfectly competitive market. The strategy of Bill Gates company is to introduce in the Windows package, preinstalled by the computers’ producers, new and new applications. Because of those, MS is accused of abuse on his dominant position on the market of the operation systems, in order to extend on adjacent markets and to steal the clients of the competitioners. More than that, MS refused to furnish an interoperation code for Windows in order to allow the use, in the same computer network, of an alternative operating system. None of the counter-measures of the regulating authorities in matter of competition could stop the MS offensive. The judicial decision to divide Microsoft was annulled as excessive. The processes intended by Sun Microsystems had no echo. The obligation imposed by MS to offer a Windows package without the browser Explorer, in order to leave the market the choice to express itself, failed lamentably, because, with no exception, the computers’ producers preferred the alternative package, with browser included. In the magazine Capital, nr. 15/April 2004

30 The Law of Competition establishes some criteria function of which it is appreciated the compatibility of an economical concentration with the normal competitional environment, establishing also the conditions to be fulfilled, in a cumulative way, in order to realize this compatibility when such an operation could raise doubts concerning the positive effects it might have on the competioners (art. 13 and 14). For details concerning the control exercised by the Council of Competition, see The Civil Sentence nr. 1695 / 29.11.2000 of the Court of Appeal Bucharest, in Judicial Courier nr. 2/2002, p.101/105

31 See C.Gheorghe, Commercial Societies. The Will of the Associates and the Social Will, All Beck Publishing House, Bucharest 2003, p.255-256

32 The economic theory considers that there are different forms through which an economic concentration is realized. One of them represents the economic concentration in the form of the active acquisition, when they serve to the carrying out of a certain activity and the society that transmitted them can’t carry out this activity or does it at an insignificant level. The second one concerns the concentration in the form of the society concentrative in common, when the new company manifests itself as an entity with its own juridical and economical life, differing from the one of the firms that created it and doesn’t coordinate their competitional behavior. The third one is represented by the form of getting the unique control through the acquisition of the major package of actions, when the acquiring society gets the right to exercise a determinant influence on the acquired one. See V.Balaure…,op.cit.,( cited works), p.116-117 and, in the same time, for examples of each of the forms of economic concentration and for the way the Council of Competition agrees or not with the respective juridical operations, see the magazine Capital, nr. 47/the 25-th of November 1999

33 For developments O.Ungureanu, C.Jugastru, Drept civil. Persoanele (Civil Law. The Persons), Print House Rosetti, Bucharest, 2003, p.326-330

34 C.Gheorghe, op.cit., ( cited works,) p.295

35 See I.Schiau, Grupurile de interes economic (Groups of Economic Interest), in Dreptul, nr.4/2003, p. 69

36 For details E.Carcei, Constituirea grupurilor de innteres economic-GIE (Constitution of the Groups of Economic Interest – GIE), in R.D.C., nr. 9/2003, p.59

37 For a complete debate on the ambivalent character of the GIE, see I.Schiau, Groups…, in Dreptul, nr.4/2003, p.72

38 The contract of society should fulfill all the conditions of validation stipulated by art.948 Code Civil, as well as the condition of the authentic form ad validitatem. It was characterized as a solemn, plurilateral, onerous, commutative contract, when the group of economic interest is constituted through the contribution of capital, the extent of the contribution obligations and its nature being already known at the date of the contract. It may have a commercial character or a civil one, function of the object of activity registered. For details E.Carcei, Constitution… in R.D.C. nr. 9/2003, p.60

39 Concerning the functioning of the GIE, see E.Carcei, Funcţionarea şi modificarea grupurilor de interes economic (Functioning and Modification of the Groups of Economic Interest), in R.D.C. nr. 12/2003, p.53-80

40 Because Romania isn’t yet a member of the European Union, European groups of economic interest can’t be validly constituted on its territory (but only their subsidiaries and branches), because they must be compulsory situated on the land of the EU. For details see C.Gheorghe, opcit., (cited works), p.295

41 For details of these differences as well as for underlining the resemblances between the two juridical persons, see I.Schiau, Groups…, in Dreptul, nr. 4/2003, p.77-78

42 See Documentul de poziţie al României. Capitolul 6- concurenţa şi ajutorul de stat (The Document of Position of Romania. Chapter 6 – The Competition and the Help of the State), from the official site of the Ministry of Internal Affairs of Romania,

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