# Annex B. Legislation screening by sector

Sector: Construction/Procurement

No.

No and title of Regulation

Article

Thematic category

Brief description of potential obstacles

Keyword

Policy maker’s objectives

Harm to competition

Recommendations

1

Law No. 50/1991 regarding authorisation of construction works execution

Art. 15 letter c)

Public procurement

A concession is an agreement according to which a natural or legal person can obtain a right to exploit a good owned by the state in exchange for a fee. Generally, under Law No. 50/1991, the conceding of land belonging to the state should be conducted through a public tender. However, in accordance with Art. 15 letter c) of Law No. 50/1991, no public tender procedure is required for concession of lands which are to be used by the concessionaire to build houses for young people under 35 years of age.

E.g. The municipality provides a concession of a piece of land to a constructor who builds houses and rents/sells them to young people under the age of 35. There is no tender procedure for the concession of the land to the constructor/real estate developer.

Discrimination

The objective of this provision resides in a social policy meant to encourage real estate developers to build houses which will subsequently be sold/rented to young people under the age of 35.

This provision is likely to create advantages for real estate developers building houses to be sold/rented to young people contrary to other real estate developers. Large and valuable areas can be leased to developers without any public tender procedure. There is a risk of discrimination, corruption, concession and under-pricing while providing no guarantee that real estate developers will pass on their cost-savings to the young people.

Abolish and introduce the tender procedure as indicated under Law No. 50/1991.

2

Law No. 50/1991 regarding authorisation of construction works execution

Art 15 letter e)

Public procurement

A concession is an agreement according to which a natural or legal person can obtain a right to exploit a good owned by the state in exchange for a fee. Generally, under Law No. 50/1991, the conceding of land belonging to the state should be conducted through a public tender. However, in accordance with Art. 15 e) of Law No. 50/1991 regarding authorisation for the execution of construction works, no public tender is applicable for leasing private terrain owned by public authorities, if they are to be used by the initial owner of a building for extending the existing building on nearby terrain.

E.g. An undertaking owning a building may ask for a concession on an adjacent land under the property of public authorities in the case where it plans on extending the existing construction. There is no tender procedure for the concession of the nearby terrain.

Public procurement

The objective of this provision is to allow an existing company to expand on nearby land.

An undertaking wanting to prevent a competitor from developing its business might buy/lease property around the land owned by the competitor and then concede the nearby terrain directly from the public authority. The public entity might concede the adjacent land at a lower price compared to the price which would have been paid in case a public procedure applied. There is also a certain risk of corruption.

1) Abolish and introduce the tender procedure as indicated under Law No. 50/1991. This avoids underpricing of the lease and granting of preferential rights.

2) Grant the owner of the existing building a special pre-emption right and the possibility of matching the best offer under the tender procedure. In this case, the new participant can win the tender only if a new participant is offering a higher price than the neighbour.

3

Law No. 50/1991 regarding authorisation of construction works execution

Art. 16

Public procurement

Information regarding tender procedures for terrain on the private property of the state/municipality is to be disclosed by the city hall only by publishing it at its headquarters and in two major newspapers 20 days prior to the procedure. No reference is made to the requirement to publish the information online or to use other means of communication.

Public procurement

Tender procedures are duly publicised at the time of enactment of the legal provision. However, traditional communication channels have changed, making newspapers and notice boards less used/relevant as communication channels.

Considering that currently the information is available only through local communication means, undertakings located outside the city may not have access to information and might not be aware of future tender procedures. Thus, the number of potential bidders might be reduced.

This provision should be amended in order to include other means of communication, including the online environment (including the city halls website, where possible).

4

Emergency Ordinance No. 84/18.09.2003 for the establishment of the National company for highways and roads in Romania – Joint stock company

Art. 12.1

Public procurement

Upon the execution of works contracts covering construction, rehabilitation, expansion or modernisation of roads (as well as the execution of addenda to such contracts), the general contractor must constitute a pledge in favour of its subcontractors or suppliers having as its object any amount due by the National Company for Highways and National Roads in Romania (CNADR) to the general contractor. The amounts to be recovered by subcontractors or suppliers consist of the value of their works/services provided to the general contractor. No other form of guarantee is allowed (such as a bank guarantee).

Public procurement

The objective of the provision is to protect subcontractors and suppliers from delivering works/goods for which they are not paid. The pledge established by the general contractor would confer on the subcontractors the same assurance as the general contractor receives. Considering that the payment due under the public agreement is carried out with public funds, setting a pledge in favour of the subcontractors over the sums owed by CNADR to the general contractor gives the subcontractors a reasonable certainty that in the end the general contractor will pay them.

This provision interferes with commercial contracts between general contractors and subcontractors who might in practice use different commercial measures in order to protect their interests. In addition, the measure of not allowing insurance policies is seen by the business community as excessive financial guarantees in certain cases.

Keep the principle of the provision as far as work of subcontractor is guaranteed. Additionally, the provison should be amended to allow all types of commercial guarantee instruments to be used in the commercial relationship between general constructors and their subcontractors.

5

Decision No. 1364/2001 for approving the methodological norms for the application of Government Ordinance No. 20/1994 on measures to mitigate the seismic risk of existing buildings

Art. 83 letter a) corroborated with Art. 112 letter a)

Public procurement

Intervention works on buildings with a seismic risk are carried out by state authorities based on a technical solution issued by a designer. During the public procurement procedure for drafting technical solutions, the criterion used is exclusively the criterion of the lowest price. Also, the same criterion is to be used during the public procedure for the acquisition of technical expertise concerning the buildings. Thus, the second criterion under the procurement legislation, the economically most advantageous bid, is automatically excluded.

Public procurement

Considering that the costs are supported from public resources, the state wanted to limit the financial effort of the contracting authority.

By automatically excluding the criterion of economically most advantageous tender (which is a derogation from framework legislation on public procurement) a disadvantage is created for operators having new technology, for example, and who would prefer this criterion. This is also likely to affect the quality of the performance, as the economic operators would look to using cheaper technologies in order to cut costs. Also, a cheaper technical solution might not be appropriate especially when it comes to seismic risk.

Amend to allow all criteria foreseen by the legislation in force.

6

Government Emergency Ordinance (GEO) No. 34/2006 on assigning public procurement contracts, public works concession contracts and service concession contracts

Art.3 letter k) and Art. 15

Public procurement

The special or exclusive right is the right arising from any form of authorisation granted under the law or through the issuance of administrative acts, by a competent public authority, with the purpose of reserving exploitation of public services to only one or to a limited number of undertakings, substantially affecting the ability of other to conduct such activity. The contracting authority has the possibility of awarding exclusive/special rights to exploit certain public services to an undertaking without applying any procurement procedure regulated by Government Emergency Ordinance 34/2006.

Special rights are currently granted to Regia Autonomă de Distribuţie a Energiei Termice, Regia Autonomă de Transport Bucureşti, Regia Autonomă Apă- Canal Timişoara, Compania Naţională de Transport al Energiei Electrice “Transelectrica” S.A, Compania Naţională Administraţia Porturilor, which are strategic decisions of the Romanian state. We have not identified any exclusive rights in the construction field.

Foreclosure

The provisions transposes Art. 3 and Art. 18 from Directive 2004/18/CE. Special or exclusive rights in the field of public services can be granted based on special normative acts, provided they are compatible with the treaty, and the selection of the economic operator is based on criteria established by these special normative acts which are authorised by the responsible authority.

Considering that we have not identified any application of these special rights in the construction field, no harm to competition has been identified.

No recommendation for change.

7

Emergency Ordinance No. 34/2006 on assigning public procurement contracts, public works concession contracts, and service concession contracts

Art. 12 index 1 par. 1 and par. 2

Public procurement

The general thresholds provided by GEO No. 34/2006 are:

i) For supply and servicing agreements below EUR 30 000 the contracting authority does not have an obligation to apply a public procedure; (for works agreements, the threshold is EUR 100 000).

ii) For supply and servicing agreements above EUR 30 000 and below EUR 130 000, the contracting authority has the obligation to apply a public procedure, including calls for tenders; (for works agreements, the range is between EUR 100 000and EUR 5 000 000).

iii) For supply and servicing agreements above EUR 130 000, the contracting authority has the obligation to apply a public procedure, excluding calls for tenders; (for works agreements, the threshold EUR 5 000 000).

As an exception from the above, the public procurement procedure is not applicable for “structures of the contracting authority functioning outside Romania” (including undertakings which qualify as contracting authorities because they are state owned) when the value of the public procurement agreement is lower than: a) for a supply agreement, EUR 130 000; b) for a servicing agreement, EUR 130 000; and c) for a works agreement, EUR 5 000 000.

GEO No. 34/2006 does not provide clear criteria to be applied by the “structures of the contracting authority functioning outside Romania” when awarding an agreement without applying a public tender, such as conditions to be met by the economic operators (i.e. qualification, reputation, experience, or guidelines for the contracting authorities to be followed when choosing the economic operator). GEO No. 34/2006 solely provides very general principles to be followed, such as non-discrimination, transparency, etc.

Discrimination

The exception is motivated by the difficulty of carrying out the procedure of requesting an offer outside national territory.

State owned companies qualify as contracting authorities under the national legislation even if their market activities are similar to other private undertakings. In situations when the object of the agreement concluded by a contracting authority located outside Romania (supply, service, works) is to be executed exclusively on the territory of Romania, this provision is likely to cause discrimination between economic operators in terms of costs and timeline. While the undertakings not having a subsidiary abroad are obliged to follow the procurement procedure under GEO NO. 34/2006 when exceeding the general thresholds (respectively 30,000 EUR for supply agreement and servicing agreement and 100,000 EUR for works agreement) or applying the procedure of request of offers, undertakings having a subsidiary abroad may purchase the work/services through that subsidiary, thus avoiding having to apply GEO No. 34/2006.

The procurement procedure governed by the Romanian piece of legislation should apply in all situations involving public money, including to contracting authorities located outside Romania, when the objective of the procedure is the acquisition of works and/or services to be delivered within Romania.

For example, a state-owned company which qualifies as the contracting authority requires the performance of services/works (which are carried out exclusively on the territory of Romania) through a subsidiary from another state. In such a case the procurement procedure under GEO 34/2006 is not applicable.

The procedure for performing works outside the territory of Romania is established at a national level and is not governed by the European directives. The same procedure is also provided in a similar manner in the new proposed public procurement legislation. While the current procedure governed by GEO NO. 34/2006 solely provides general principles to be followed when awarding contracts below the aforementioned thresholds, the new proposed public procurement legislation expressly states that below the thresholds (i.e., when the public procedures are not applicable), methodological norms (which have not been issued yet) will further establish rules covering general principles, such as transparency or equality.

8

Emergency Ordinance No. 34/2006 on assigning public procurement contracts, public works concession contracts, and service concession contracts

Art. 107 par. 2

Public procurement

For the competitive dialogue procedure, the timeframe in which the participants can elaborate and submit their final offer is set by mutual agreement of the parties (contracting authority and the selected participants from the first stage of the procedure), which is the same for all economic operators.

Competitive dialogue procedure is an exceptional procedure which is applied by the contracting authority if a tender procedure is not likely to be sufficient for awarding the agreement and if the agreement is by its nature very complex. This procedure contains three steps: a) publication of a participation notice and preselection of candidates following their application; b) open dialogue with each selected participant with respect to the technical solutions, the future agreement, etc.; c) submission of final offers and selecting the winning offer. This procedure is applied more often in technical areas which require issuance of technical solutions.

According to the newly proposed legislation in the field of public procurement, the contracting authority must simultaneously send to all selected candidates the invitation to submit the final offer (Article 88 para. 10 corroborated with Article 90 par. (5)). There is no mention of how the contracting authority sets such a term; the provision regarding the mutual agreement of the parties has been eliminated.

Discrimination

The provision is a transposition of Art. 29 from Directive No. 2004/18/EC. It is important to underline that according to Art. 106 of GEO No. 34/2006, during the procedure the authority must apply the equal treatment principle to all participants. This means the contracting authority does not have the right to offer information in a discriminatory manner which might create unfair advantages for some participants. The contracting authority has the possibility to set the deadline for submitting the final offers, taking into account the complexity of the identified solutions. The deadline is the same for all participants, thus ensuring the principle of non-discrimination. The purpose of this procedure is to obtain the best technical solution by allowing a certain degree of flexibility during negotiations.

There is no minimum time limit for the authority to respect when establishing the term for submitting the final offers, as the deadline is exclusively established through mutual agreement of the parties.

E.g., following the negotiations regarding the technical solutions, one economic operator may need additional time to elaborate the final offer while others may not. Thus, considering that the contracting authority negotiates with each selected participant, in practice, this may lead to discrimination and a lack of visibility among the participants. Considering that the mutual agreement of the participants was eliminated under the proposed new draft, the risk has been removed.

No recommendation for change, provided that the provision under the proposed draft is enacted as such.

9

Emergency Ordinance No. 34/2006 on assigning public procurement contracts, public works concession contracts, and service concession contracts

Art. 202 par. 1 index 1

Public procurement

GEO No. 34/2006 establishes that an offer is classified as having an unusually low price if the price contained in the offer is lower than 80%, excluding VAT (abnormally low tenders), of the estimated value of the agreement. In this case, the contracting authority has the obligation to request further information (including information with respect to prices, stocks, salary, organisation, etc.) and clarifications from the economic operator. Upon consultation with market operators, it is our understanding that in practice the contracting authorities do not challenge the justifications received from market participants and do not reject such low tenders.

According to the new proposed legislation in the field of public procurement, the contracting authority will reject abnormally low tenders only when the proof submitted by the economic operators does not justify the low price level/proposed costs, taking into consideration the clarifications offered during the investigation. However, the new legislation does not provide any criteria for rejection of a bid and there is no threshold provided under which the offer is presumed to be abnormally low (Directive 2014/24, similarly, does not provide such thresholds).

Foreclosure

This current practice of the contracting authorities may be the result of a lack of specific and objective criteria to justify rejection of an offer. Authorities might also fear a potential challenge by an economic operator against the rejection decision. The objective of the proposed recommendation is to allow contracting authorities to reject an offer due to a greatly underestimated price. Such offers are unlikely to cover the costs necessary and thus unlikely to be implemented in practice.

Considering that in practice the contracting authorities do not reject the justifications and are still awarding the project to the bidder offering the lowest price, this may facilitate price dumping. Companies may win with non-sustainable offers which cannot be implemented or will require amending of the contract at a later date.

Amend the legislation to provide the contracting authorities with clear criteria and examples of when to reject an offer based on a lack of justification for an abnormally low price.

10

Emergency Ordinance No. 34/2006 on assigning public procurement contracts, public works concession contracts, and services concession contracts

Art. 225 letter a)

Public procurement

The contracting authority may impose on the concessionaire the obligation to sub-contract 30% of the value of the concession agreement for public works to third parties. The legislation does not provide for the following clarifications: i) if the contracting authority may impose such an obligation in the situation where the company can perform the work itself and ii) if the company decides itself who will be the third party for the sub-contract work or services or whether such third parties are imposed by the contracting authority.

No similar provision has been identified in the newly proposed legislation in the field of public procurement.

Discrimination

The provision transposes Art. 60 from Directive 2004/18/EC. The objective of this provision is to allow small and medium-sized enterprises access to public works concession agreements.

The unclear wording of the legislation grants the contracting authority arbitrary power regarding the request for sub-contracting 30% of the value of the agreement. This may prejudice the economic operator who has the capabilities to provide the service or perform the work itself. Separately, in cases when the authority indicates who will be the third party, the economic authorities are not free to decide with respect to such a subcontractor. Upon discussions with market participants, we understand that there have been no situations where the contracting authorities have imposed a third party.

No recommendation for change, provided that the provision under the proposed draft is enacted as such.

11

Emergency Ordinance No. 34/2006 on assigning public procurement contracts, public works concession contracts, and services concession contracts

Art. 188 par. 1 a), 2 a) and 3 a)

Public procurement

For certain public procurement agreements, the contracting authority may request that economic operators submit proof of their prior professional experience in the last three years (for supply and service agreements) or in the last five years (for works agreements). The contracting authorises may request proof of professional experience as a participation condition considering the nature and complexity of the public agreement. The contracting authorities are free to decide whether to request proof of professional experience or not on a case-by-case basis.

Discrimination

The purpose of the provision is to ensure proper experience of the bidders and to diminish the risk of non-fulfilment or inappropriate execution of contract. The provision is in line with Annex XII of Directive 2014/24. According to the National Agency for Public Procurement (ANAP), they are currently working on drafting instructions regarding the requesting of proof of professional experience.

Discretionary power is granted to contracting authorities which are allowed to request proof of professional experience, on a case-by-case basis, depending on the complexity of public agreements. Due to a lack of any guidance when taking the decision whether to request proof of professional experience or not, the contracting authorities decide on a case-by-case basis when to apply the provisions. Therefore, contracting authorities might take different decisions in similar situations. This might qualify as a barrier to entry onto the market and leads to an unpredictable business environment for private investors.

Draft guidelines to give market participants and contracting authorities a sufficient level of predictability and transparency regarding situations in which the contracting authorities may require proof of professional experience.

12

Emergency Ordinance No. 34/2006 on assigning public procurement contracts, public works concession contracts, and services concession contracts

Art. 271 index 1 par. 1 and par. 4

Public procurement

To challenge the actions undertaken by the contracting authority under the awarding procedure, the plaintiff must pay an amount representing a guarantee of good conduct. The amount of the guarantee varies depending on the value of the public procurement agreement and can reach a maximum of EUR 100 000. This provision was deemed unconstitutional by the Romanian Constitutional Court in January 2015. Thus, in practice, the plaintiff has to pay the guarantee but the amount is reimbursed irrespective of the outcome of the challenge.

The new proposed legislation in the field of public procurement does not contain a similar provision regarding the guarantee. Any persons who consider themselves injured (irrespective of whether it is part of the tender procedure) can challenge the decisions of the contracting authorities. However, the appeals/complaints which are to be settled by the courts of law have a similar effect as stamp duty. The taxes are established according to the value of the public procurement agreement.

Limitation

The objective of the regulation is to avoid deferral of the tender procedure without just cause, to protect the contracting authority against any abusive appeals introduced, for example, by an economic operator only for the purpose of delaying the procedure, who was not selected/whose offer was deemed unacceptable. This guarantee was introduced to balance the contracting authority’s interest in carrying out the tender procedures within a reasonable timeframe and the protection of the third party’s rights affected by irregularities of the public procedures.

Despite the fact that the amount is reimbursed in the end, access to justice of any interested person is still affected, considering that the obligation to pay the guarantee is still incumbent upon the plaintiff.

No recommendation for change, provided that the provision under the proposed draft is enacted as such.

13

Emergency Ordinance No. 34/2006 on assigning public procurement contracts, public works concession contracts, and service concession contracts

Art. 122 c)

Public procurement

The contracting authority may allow the start of negotiations under the tender procedure without the prior publication of a participation notice in cases of extreme urgency, resulting from unforeseeable situations which cannot be a result of the misconduct of the contracting authority. Moreover, in cases of force majeure/duly justified cases, the contracting authority may order the beginning of the works/services in parallel with the initiation of the negotiation without the prior publication of a participation notice procedure (i.e., before the execution of the public procurement agreement).

The provision is similarly contained in the newly proposed public procurement legislation (Art. 104 par. 1 corroborated with par. 4 of the same article).

This provision has no significant effect in the construction field but more in the case of service agreements awarded by public authorities (e.g., awarding agreements in December for cleaning the streets of snow).

Discrimination

The objective of the regulation is to eliminate bureaucratic procedures/reduce waiting time in cases of extreme urgency resulting from unforeseeable situations which cannot be a result of the misconduct of the contracting authority. This is in line with Art. 32 of Directive 2014/24. There is a document published on the ANAP website regarding the general applicability of Art. 122 mentioned above, but it does not provide adequate instructions and concrete examples for contracting authorities and market participants as regards the application of these exceptional situations.

Considering that the notions of “extreme urgency” and “duly justified cases” are not properly defined in legislation, the contracting authorities have broad powers to decide, on a case-by-case basis, when to apply the exception (thus avoiding the publication of the participation notice). Upon discussions with market participants, it is our understanding that, in practice, the contracting authorities use the lack of definitions in order to avoid procurement even in cases where, in reality, the situation of requesting the application of the exception is not the result of an unforeseeable situation.

1. Define more clearly notions of “extreme urgency” and “duly justified cases” .

2. Draft guidelines with examples of what situations may be considered to be of “extreme urgency” or “duly justified cases”, based on European and national case law and practical experiences from the past. Ensure that such materials are published and accessible to all contracting authorities (including local ones) and are dully applied.

14

Emergency Ordinance No. 34/2006 on assigning public procurement contracts, public works concession contracts, and service concession contracts

Art. 75, 76 and 224

Public procurement

The public procurement legislation provides various deadlines for the publication of a participation notice, award notices, etc. in SEAP and in the Official Journal of the European Union. As regards the submission of offers, the legislation provides for a minimum of 20 days for calls for tenders or 52 days for an open procedure. In practice, those minimum deadlines are applied as fixed terms and are not extended.

The obligation to submit offers in 20 days for calls for tenders or 52 days for an open procedure was considered insufficient by the business community, and, in practice it may represent a potential impediment for economic operators in submitting sound offers, especially for undertakings participating in more complex projects or for small firms. In practice, it has been considered that the offers that are submitted within this timeframe are either of low quality or come from operators who might have had advance knowledge of the calls, leading to the suspicion that they might have been favoured by the contracting authority in question.

The newly proposed public procurement legislation establishes shorter minimum terms, in accordance with Directive 2014/24. For example, the minimum term for an open procedure was reduced to 35 days (compared to 52 days according to the legislation in force), a term which can be even shortened in certain instances by up to 20 days to a minimum of 15 days. Similarly, for the restrictive tender procedure, the minimum term for the receipt of tenders shall be 30 days

Discrimination/Corruption

The deadlines prescribed by the law are minimum periods to be respected by the contracting authority, which might be extended depending on the complexity of the contract and the time required for drawing up and submitting bids. According to ANAP, considering the multitude of public procedures undertaken annually and the particularities of each tender documentation, it is difficult to implement generally applicable rules to be considered when establishing the deadlines.

Since in practice the contracting authorities are using minimum terms as fixed ones, economic operators are impeded in submitting sound offers for more complex projects. This leaves room for discrimination and corruption. If the authorities used longer deadlines, in practice, more offers could be submitted.

Draft instructions giving practical examples for contracting authorities how deadlines should be set in accordance with the complexity of the contract and project.

from the date the invitation to the tender was sent, a term which can be even shortened in certain instances by up to 20 days to a minimum of 10 days (the current legislation provides a minimum term of 37 days for contracts over certain thresholds – for which the participation notice must be published in the Official Gazette of the European Union – and a minimum term of 20 days for contracts below certain thresholds – for which the participation notice is published in the national gazette – SEAP). For calls for tenders, the newly proposed legislation does not contain a similarly defined procedure, but rather a general provision stating that a simplified procedure will be applicable below certain thresholds, which are to be detailed in the methodological norms (it is not clear at this moment the minimum term for this new procedure replacing the former calls for a tender procedure).

15

Emergency Ordinance No. 18/2009 for increasing energy performance of housing blocks

Art. 15 from the Methodological Norms corroborated with Art. 122 i) from GEO 34/2006

Public procurement

The parties may conclude addenda to agreements for intervention works to enhance the performance of residential buildings constructed after 1990 and which are awarded under a tender procedure if the value of the addenda do not exceed the value of the initial agreement by more than 10%. This provision derogates from the general procurement procedure, according to which the public procurement agreement for additional works/services could be awarded to the initial winner if the value of the additional works does not exceed 20% of its initial value.

Discrimination

The objective of the provision is to cover costs for potential unidentified and imminent works. No official answer has been received from the authorities with respect to this derogation from the general public procurement legislation.

The derogation from the general public procurement legislation may lead to delays in executing the works.

Abolish and apply the general procurement procedure.

Sector: Construction

No.

No and title of Regulation

Article

Thematic category

Brief description of potential obstacles

Keyword

Policy maker’s objectives

Harm to competition

Recommendations

1

Law No. 50/1991 regarding authorisation for execution of construction works

Art. 9

The experts (architects or engineers) preparing technical documentation to be submitted for issuance of the building permit must have a degree recognised by the Romanian state. The recognition of a diploma is made according to a procedure of the Ministry of Education.

Discrimination

The objective is to ensure proper qualification of individuals and a homogenous approach of standards in the construction field. The legislation foresees all necessary mechanisms for the recognition of qualifications and professions. There is no procedure at the EU level for automatic recognition of diplomas.

Architects or engineers who have obtained a degree in another state and have not taken the required steps for recognising the diploma in Romania, are not allowed to directly provide services in Romania. This provision may potentially reduce the number of specialists active in the market; however, in practice, there are substantial providers for such services. Thus, the competition impact is very low.

No recommendation for

2

Law No. 50/1991 regarding authorisation for execution of construction works

Art. 11 par. 2

Different treatment for the same set of facts

As a general rule, the execution of construction works is possible exclusively after obtaining a building permit. Among the exceptions to this rule, construction works for placing stalls for distribution and trading of newspapers, books and flowers are exempted from the obligation to obtain a building permit. This exception is applied in cases where the stalls are affixed directly on the ground, without having foundations or platforms, and without being supplied with any public utilities except electricity.

Discrimination

The objective of this provision is to reduce the administrative burden for simple constructions having low complexity.

Limitation of categories of products that can be sold in stalls may potentially limit the development of businesses of market participants. They are i) those who already have the stalls are limited to trading only in newspapers, books and flowers and ii) those who are interested in street trading in products other than newspapers, books and flowers do not benefit from the exception, resulting in potentially higher costs for them compared to the “preferred traders”.

We recommend extending the exemption from the obligation to obtain a building permit for all stalls which are directly affixed to the ground, without foundations or platforms and that only need to be supplied with electricity. We recommend that each city issue a public policy with respect to street trading and conditions under which such businesses are permitted without a building permit.

First, the availability of spaces to be used for street trade should be up to each city hall. Second, each city hall should implement limits in order to ensure that the undertakings carrying out commercial activities on public land are not abusing this right. The legislation should provide, for example, the following types of limitations for a stall:

• It shall not lead to or cause congestion or blocking of pedestrian traffic on the sidewalk (establishing thus maximum sizes of the stall),

• The commercial activities would involve a short transaction period necessary for completing the sale or rendering the service,

• It shall not cause undue noise or offensive odours, etc.

3

Law No. 50/1991 regarding authorisation of construction works execution

Annex 1, section 2.5.2

The technical documentation submitted when requesting a building permit has to be verified by project verifiers. Project verifiers are experts, hired by the investor who plans to obtain a building permit, and who checks that the initial solution prepared by the experts (e.g. architects) observes the norms on quality of construction based on national standards. These project verifiers are authorised by MDRAP. Project verifiers who have obtained a degree in another state and have not taken the necessary steps for their diploma to be recognised, cannot directly offer services in Romania.

Discrimination

The objective is to ensure proper qualification of individuals and a homogenous approach of standards in the construction field. The legislation foresees all necessary mechanisms for the recognition of qualifications and professions. There is no procedure at the EU level for automatic recognition of diplomas.

Project verifiers who have obtained a degree in another state and have not taken the required steps needed for recognising the diploma in Romania, are not allowed to directly provide services in Romania. This provision may potentially reduce the number of specialists active in the market; however, since in practice there are substantial providers for such services, the competition impact is very low.

No recommendation for change.

4

Law No. 50/1991 regarding authorisation for execution of construction works

Annex 1, section 2.5.6

Among the documents that must be submitted when applying for a building permit, in certain situations there is also the neighbours’ approval, expressed in authentic form. Such situations include: i) erecting a new construction adjacent to another building or in the immediate neighbourhood, if there are necessary measures for protecting such adjacent/neighbouring buildings, ii) construction works which are necessary for changing the purpose of an existing building and iii) erecting new buildings having a different purpose than the surrounding buildings (e.g., erecting an office building where the surrounding buildings have a residential purpose).

Approval

The objective of the provision is to protect existing owners from potential abuses/discomfort caused by incompatibilities between the pre-existing and proposed function.

E.g., a building is raised to be used for concerts around a building used for personal purposes, office buildings or educational purposes (in general quiet activities).

The obligation to have the neighbours’ approval with respect to the purpose of a building raises a barrier to entry on the market for new developers. According to discussions held with the business community, such provisions sometimes lead to abuses in practice, such as neighbours requesting money for their approval or using it to keep competitors away.

Keep the obligation to request the neighbours’ approval in the cases described above. However, for those situations where the investor does not obtain the neighbours’ approval, he should still be able to apply for the building permit. It is then up to the local authority to decide, taking into account (but not being bound by) the neighbour’s opinion.

5

Law No. 50/1991 regarding authorisation for execution of construction works

Art. 1 par. 1

The law establishes the obligation of obtaining a building permit for any type of construction prior to commencement of works by the developer. The entire process of obtaining a building permit is bureaucratic as it involves submission of a significant amount of documentation, which also include documents released by other state authorities involved in the process.

Licence

The building permit is important for the safety of constructions; thus the objective is the proper use of the regulations/norms in the field. MDRAP mentioned that it is working to simplify the bureaucracy and to implement e-government systems for issuing planning certificates and building permits. However, there are several conditions to be fulfilled at the local level tin order to make the systems functional, such as the necessary IT resources and availability of sufficient human resources with the required abilities.

A bureaucratic process needs to be followed in order to obtain the building permit, creating an administrative burden.

The process of obtaining a building permit should be less bureaucratic by the use of the electronic means available and direct communication between the public authorities involved in the authorisation process.

6

Law No. 50/1991 regarding authorisation for execution of construction works

Art. 2 par. 2.1

The planning certificate is an informative document issued by the local public authorities ascertaining, among others, how land and existing constructions can be used in accordance with the current urbanistic plans and informing the applicant with respect to the approvals and notices necessary in view of obtaining the building permit. The issuance of a planning certificate is solely for information purposes and contains conditions that need to be met in terms of construction work, green space requirements and classification as a historical monument. The planning certificate will be used by the person/entity intending to erect a building in order to prepare the technical documentation on which he building permit will be based.

Licence

The objective of the planning certificate is to inform all those interested in the features of a certain piece of land/building; it represents a first step in the dialogue between the authorities, the investors and the civic community. MDRAP mentioned that it is working to simplify the bureaucracy and to implement e-government systems for issuing planning certificates and building permits. However, there are several conditions to be fulfilled at the local level tin order to make the systems functional, such as the necessary IT resources and availability of sufficient human resources with the required abilities.

No direct harm to competition has been identified as the planning certificate only summarises all form of restriction and does not create new ones and needs to be obtained by each natural/legal person who erects a construction; however, the planning certificate often means additional bureaucracy in the already complicated process of obtaining a building permit.

Option 1. The process for obtaining the planning certificate could be made less bureaucratic through the use of the electronic means available.

Option 2. The issuance of the planning certificate might be seen as a service provided by the public authority to the developers by informing them about the limits imposed under planning regulations. In such a case, obtaining a planning certificate should be an optional, not a mandatory step when requesting a building permit. However, in such a scenario the risk of non-issuance of the building permit is transferred to the applicant.

7

Law No. 50/1991 regarding authorisation for execution of construction works

Art. 8 par. 1

The legislation imposes the obligation of obtaining a demolition permit prior to any demolition, removal or dismantling, partial or total, of a construction. The constructions that are subject to a demolition permit are not clearly defined in this piece of legislation, as the lawmaker also included the installations annexed to constructions, a notion which is not explained in the law.

Licence

The demolition permit is important for the safety of constructions. The object of the provision is to discourage any kind of demolition works without the permit, by including in the notion of constructions a large category of assets.

The law does not specify what “installation annexes to constructions” means. This might triggers arbitrary application and discrimination in practice.

We recommend defining the installations annexes to construction, that are subject to a demolition permit, taking into account what affects the structural stability of buildings.

8

Law No. 50/1991 regarding authorisation for execution of construction works

Art. 37 par. 2

The reception of any work subject to a building permit is the last legal step in the execution of construction works, ascertaining that all the elements provided within the building permit were accomplished. The law establishes that, at the end of the construction work, the reception of works should be performed by a reception committee. Such a committee consists of at least five members and includes a representative of the investor, a representative of the local public authorities which issued the building permit, and other experts invited by the owner, one of whom may be from the SCI. The approval committee which concludes the approval protocol can only function in the presence of two-thirds of its members and all the members must be present physically at a meeting at the location of the construction.

Licence

The reception of work is important for the safety of constructions; thus the objective is the proper use of the regulations/norms in the field. Considering that the members of the reception committee have different specialities (structural engineer, plumber, architect, firefighter), it is SCI’s opinion that by having a physical meeting, the potential issues can be addressed in a more timely matter by combining solutions from each area of expertise rather than having each one of the members bring their separate conclusion.

The procedure for carrying out approval of constructions by requiring that various entities involved in the process give their consent only in a physical meeting, at the location of the construction, triggers delays in delivery of construction.

No recommendation for change.

9

Law No. 350/2001 on town and country planning and city planning

Art 37 par. 3

Unclear provision

A private investor may request a derogation from the planning regulations already approved for a respective area. If agreed, the public authority would issue a new zonal urbanistic plan based on an opportunity notice received from a specialised structure of the public authority. The opportunity notice is based on a technical document generally called an “opportunity study” submitted by the private investor and it is further approved by the mayor. The decision to issue the opportunity notice is based on the input given by a consultative technical commission. The technical commission i) has no clear criteria when giving any input and ii) it is not organised in the same manner in all localities.

Co-regulatory regime

We have not been able to identify the objective of this provision.

The consultative technical commission is not organised in the same manner in all counties and, as it uses no clear criteria when giving any input for changing urbanistic plans or not, this can lead to arbitrary advice in granting opportunity notices.

1) Legislation should be amended to ensure that the technical commissions have the same organisational structure in all localities.

2) There should be a checklist and clear elements should be taken into consideration by the consultative technical commission.

10

Law No. 350/2001 on town and country planning and city planning

Art. 36, Art 37

Conflict of interest

The legislation does not mention the duration of the mandate of the members of the consultative technical commission advising on the granting of opportunity notices necessary for the modification of planning regulations. According to the discussions held with the business community, those members can easily be changed in practice at the discretion of the local or county council. In addition, we have not identified an express time limit for releasing the opportunity notice.

Discrimination

It was not possible to identify the objective of the provision from the relevant piece of legislation.

The provision is too vague, creating a danger of appointing non-objective experts to the commission. Also, there is a danger of an overlong waiting time for the release of opportunity notices.

1) Legislation should be amended in order to ensure that the members of the commission are given a fixed-term mandate.

2) The legislation should be amended in order to foresee a legal time limit for releasing the opportunity notice.

11

Law No. 350/2001 on town and country planning and city planning

Art. 31.3

Opportunity notice

A private investor may request a derogation from the planning regulations already approved for a respective area. If agreed, the public authority would issue a new zonal urban plan based on an opportunity notice received from a specialised structure of the public authority. Under the new zonal urbanistic plan, the initial coefficient of terrain usage may be exceeded by a maximum of 20% of the previously approved plan. This limitation does not apply for terrains located in areas destined for economic activity such as industrial parks, technological parks, supermarkets, hypermarkets, commercial parks, service areas and other similar areas, in that these areas can exceed the threshold by more than 20 %. The notion of “similar areas” is not defined by any criteria.

Discrimination

The objective of this provision is to allow economic and industrial development of certain areas in accordance with economic interests. The provision also takes into consideration the fact that a general urbanistic plan cannot provide details on all relevant aspects or that it may not be updated.

Uneven application of the law is possible through different meanings given to the notion of “similar areas”; thus discrimination may take place between market participants.

Another issue that can lead to arbitrary decisions by the local authorities is the lack of a threshold for exceeding the coefficient of terrain usage for areas destined to have economic activity, such as industrial parks, technological parks, supermarkets, hypermarkets, commercial parks, service areas and other similar areas.

The legislation should be amended ensure that the technical commissions have the same organisational structure in all localities. Also, MDRAP should prepare a checklist and define clear elements used for establishing the opportunity of an investment.

In order to limit the uneven application of the law through different meanings given to the notion of “similar areas”, we recommend either to define the notion of “similar areas” or eliminate it from the exception. In all cases, the lawmaker should set a threshold for a usage coefficient for terrains located in areas destined for economic activity.

12

Law No. 350/2001 on town and country planning and city planning

Art 38

All planning documentation (be it requested by a person wishing to perform specific works or prepared by the city hall) used for issuing a building permit must be confirmed by specialists qualified in the field with a university degree and who have signatory rights. Such signatory rights are granted by the Romanian Register of Urbanists (autonomous public institution) which charges its members for each document signed by them depending on the type and size of the respective planning documentation.

Co-regulatory regime

The objective is to ensure proper qualification of individuals and a homogenous approach of standards in the urbanism field. The fee requested by the Romanian Register of Urbanists is considered to be an equitable payment for the signature right granted, since it fairly reflects the usage level of the signature right and the complexity of the works performed. According to MDRAP, according to a project undertaken by the General Secretary of the Romanian Government, this payment system has been qualified as good practice because the professionals who do not work are not charged in any manner.

The procedure adds costs for professionals in relation to the signature usage right. It is not clear why the members have to pay the fee for each signed document.

No recommendation for change.

13

Government Decision No. 525/1996 approving the general urbanism regulation

Art. 5-9 of Annex 1

In addition to obtaining a building permit, a developer who intends to raise buildings within forests, near water, in protected areas or in dangerous areas has to obtain a separate authorisation from the Ministries of Environment/Home Affairs/Agriculture/ Regional Development/ Culture.

Authorisation

The objective of the provision is to ensure agreement granted for the investment by all parties responsible for a certain domain and to ensure proper protection of the mentioned areas.

Excessive licensing may impede the development of the construction market.

No recommendation for change.

14

Government Decision No. 525/1996 approving the general urbanism regulation

Art. 20 of Annex 1

When obtaining a building permit for construction works in the protection area of the railway infrastructure, an approval has to be obtained from the national railway company (national railway infrastructure company “CFR SA”), a private company owned by the state.

Authorisation

CFR SA is a private company, state-owned, that manages the railway system. We assume that a proper delegation document exists for the attributions of managing railway systems.

Possible risk of abuse since an undertaking is granting authorisations to other undertakings. In case where CFR SA will be privatised in the future, the situation would arise when a private undertaking grants authorisation to another undertaking. The terms of issuing such approval by CFR SA should be contained in the specific regulation of CFR SA and not in this general piece of legislation.

Move the legal provision into a specific regulation of CFR SA.

15

Government Decision No. 525/1996 approving the general urbanism regulation

Art. 28 of Annex 1

Different treatment for the same set of facts

All utility networks in the area of the public roads inside the built up area of a town (intra muros) must be built underground. Exceptionally, electronic communication networks and the associated infrastructure can be built above ground, inside or outside the built up area (intra and extra muros) of the administrative units consisting of villages, communes and towns pertaining to cities and municipalities. The exception was introduced on 30 December 2014, motivated by the necessity of covering the white areas.

Discrimination

In the context of Europe 2020 and the Digital Agenda, the objective of the provision is to encourage the development of electronic communication networks in rural areas by reducing the cost of investment for such networks. Due to the economic aspects, such as density of population and GDP per capita, the communication network providers choose to only cover urban areas, thus leaving rural areas with no or poor access to communication networks. As access to digital networks is a political priority, populations in rural or remote areas must also be provided with access in order for it to become a universal service. Therefore, it is considered necessary to expand electronic communication networks as much and as fast as possible, while assuring optimised costs, specific to rural areas.

The exemption discriminates among communications networks and other utility networks. The utility market might be seen as a whole and all the utility providers might be seen as potential competitors on the same market as they all envisage providing all utility services in the future (however, the timeframe for collectively achieving such a goal cannot be assessed).

No recommendation for change.

16

Government Decision No. 525/1996 approving the general urbanism regulation

Art. 33 of Annex 1

Unclear provision/unguided discretion

When requesting a building permit for execution of construction works for a building that, by its purpose, requires parking places, the building permit can only be obtained if the parking places, in a minimum number mandatory by law, are placed outside the public areas (i.e. on private areas). Exceptionally, local public authorities can allow the building of parking places on public areas.

Two issues arise as regards this legal provision, respectively:

i) It is not clear under the legislation that it refers solely to new buildings. The legal provision might also be interpreted in the sense that the existence of a sufficient number of parking places is scrutinised by the authorities for an existing building each time a building permit is required for construction works to the respective buildings or when the owner changes its current purpose,

ii) The local authorities may use the public areas for granting parking places at their sole discretion.

Discrimination

The objective of the provision is to provide a solution to an existing problem, specifically the lack of sufficient parking places, by allowing public land to be used for the necessary parking places, subject to certain conditions.

The wording of the legal provision may lead to an arbitrary application of the law on a case-by-case basis, thus leading to heterogeneous practices across various cities or inside the same city.

On the one hand, it is not clear that the obligation to ensure parking places outside the public domain only applies to newly erected constructions. It seems to be at the sole discretion of local authorities from each city to decide to which type of construction such a requirement is applicable. If interpreted in the sense that the existence of parking places is also scrutinised by the authorities in each case when a building permit is required for construction works or when the owner changes its current purpose to a new one, the owners of existing buildings might be prevented from performing such works.

On the other hand, due to a lack of any clear objective criteria, one undertaking could receive the parking place in the public domain (in exchange for an amount to be paid below the real costs of building a parking space) in contrast to another who would need to invest significant funds in building their own parking place.

We recommend amending the legislation in the sense that the requirement to ensure parking places in order to obtain the building permit is applicable only when erecting new buildings. Furthermore, in order to avoid discretionary application, the possibility of granting parking places on public land should be limited solely to areas such as city centres, protected areas or areas in which the buildings have no direct access to roads. It remains to each city hall to establish which areas fall under the exception.

17

Government Decision No. 525/1996 approving the general urbanism regulation

Annex 1, section 1.3.7

Outdated legislation

It is forbidden to locate constructions used for services in industrial areas – except for services provided in buildings integrated with other purposes. Instead, buildings destined for service provision can only be built in central, commercial, residential or recreation areas. For example, within an industrial area, one could not build a car wash or a shop, or a canteen (which is not integrated in the other existing facilities) to serve the workers in the industrial area.

Discrimination

The objective of the regulation might be preserving the health of the labour force in service provision. Most probably the provision comes from the communist era of Romania when there should have been dedicated areas for each purpose.

Although industrial activities should not be carried out in residential or service areas, it is not clear why this should not be possible the other way around.

Amend legislation in order to allow service provision in industrial areas as long as specific health and safety regulations for each activity are observed.

18

Government Decision No. 525/1996 approving the general urbanism regulation

Annex 1, section 1.6.6

Outdated legislation

Professional schools can only be built within 1 000 m of housing areas and neighbourhoods.

Discrimination

The provision establishes a maximum distance to be travelled by students. The limitation seems excessive considering the fast expansion of cities and transport means available to the population.

Operators wanting to build a school outside a housing area are prevented from doing so.

Abolish.

19

Government Decision No. 525/1996 approving the general urbanism regulation

Annex 1, section 1.7.4

Outdated legislation

Specialised medical assistance for functional recovery, chronic diseases, psychiatric diseases and disabled persons should be located in out-of-town areas. The law does not differentiate between contagious and non-contagious chronic diseases such as cancer.

Discrimination

This restriction is destined to protect the health of citizens and to offer a proper environment for recovery, which is more easily achieved if the facility is located outside the urban area, with green areas. Most probably, the provision comes from the communist era in Romania when there should have been dedicated areas for each purpose.

This provision is likely to affect private investors providing specialised medical assistance, which may have to bear additional costs for assuring all required conditions outside city areas, where access to utilities is limited, in contrast to all other medical service providers located within the boundaries of a city. In addition, providers of services already located within the boundaries of a city are prevented from developing their business by also offering services for chronic diseases.

The national legislation should be amended in order to apply solely to contagious diseases, if they require medical isolation, or if specific medical equipment used in curing the disease presents a risk for the surrounding population.

20

Government Decision No. 1739/2006 approving the types of constructions for which a fire protection authorisation should be obtained

Art. 1

Different treatment for the same set of facts

A fire protection permit certifies the implementation of fire safety measures provided by the law. This permit is mandatory, as a functioning condition, for undertakings owning buildings who carry out their activity in these buildings. Buildings under a specific size (determined in consideration of the number of square metres of a building and type and the purpose of a building) do not need a fire protection permit.

Discrimination

Most probably, the lawmaker considered that small buildings are easy to evacuate.

This provision might create advantages for those enterprises owning small-size buildings.

Abolish the exception.

21

Government Decision No. 1364/1990 prohibiting the export of raw or semi-finished wood products

Art. 1

Outdated legislation

Since 1991, the export of timber and related products has been forbidden for all private agents, except companies or other entities under the Ministry of Resources and Industry (original name). Such entities are required to obtain a licence from the government. From discussions with the business community, such a limitation is no longer applied in practice and the export of timber is possible, in accordance with Art. 35 of the Treaty of Functioning of the European Union – prohibition of export bans or equivalent.

However, we have identified a draft of a law regulating the export ban with respect to wood which is currently under the legislative process of the Parliament. The proposed law mentions as objective the preservation of the Romanian woods. Also, the preamble of the proposed law specifies a limited applicability of the export ban for 5 years.

Monopoly

According to MDRAP, GD 1364/1990 does not appear to be currently applicable.

The provision qualifies as an export ban which triggers fragmentation of the market. Also, by granting the possibility to export solely to state-owned companies, a legal monopoly is created which has an impact on pricing. Even though it appears that this provision is not applied in practice, it might still confuse companies.

Abolish GD 1364/1990. In what regards the new proposal of law currently under legislative process, the lawmaker should consider the necessity of such a measure in the current context and the general policy of the state with respect to the preservation of woods and the environment.

22

Law No. 85/2003 on mines

Art. 11

Mines

Mining activities are forbidden on terrains with a special regime (with cultural or historical monuments, nature reserves, sanitary protection areas, etc.). Exceptions are allowed through a government decision and following the responsible authoritys opportunity assessment. The government decision is taken by all ministries responsible.

Discrimination

The objective is to allow mining activities when it concerns the national interest, even if usually mining activities would be forbidden on land with a special regime. The law provides for assessment by all authorities that have responsibilities and can express a point of view on the matter. A decision can be made with the agreement of all such authorities involved.

No harm to competition has been identified considering that the government decision is taken by all ministries involved.

No recommendation for change.

23

Law No. 85/2003 on mines

Art. 20

Mines

An exploitation licence can be granted for a maximum of 20 years and may be extended for consecutive periods of a maximum of five (5) years each, without a maximum number of prolongations being foreseen by the legislation.

Licence

The objective is to ensure continuity of investment. Mining requires large investments. The title holder of the licence who discovered the deposit of mineral resources carries out mining activities at his own risk and cost. If the discovery is very large it may require a long period of exploitation until the mineral resources are depleted.

Without having a maximum duration of time for the licence, other enterprises could be prevented from entering the market for an infinite time.

Amend the legislation in order to stipulate a maximum number of prolongations that can be granted.

24

Law No. 227/2015 regarding the Tax Code

Art. 474 (10)

Mines

The tax for issuing an authorisation for drilling and excavating is established by the competent local authority and may have any value between RON 0 and 15 per square metre occupied by the construction.

Authorisation

The objective of the provision is to allow local authorities to establish the value of the tax for issuing an authorisation for drilling and excavating, taking into account their local development policy. For example, if they want to attract investors, the local authorities could establish a lower tax rate.

Different decisions may be taken by different local authorities, leading to different costs for the companies requesting the authorisation, depending on the locality where the works are being developed.

No recommendation for change.

25

Emergency Ordinance No. 36/2001 regarding regulated prices and tariffs, confirmed by the Competition Office

Art. 1 corroborated with Annex

Mines

The maximum price for sand and rock products is imposed by law and adjusted yearly to the Consumer Price Index. Maximum prices are only set for raw materials and do not cover materials mixed with other products used in construction. There is currently a project on the parliament’s agenda to eliminate the maximum price for sand and rock.

Discrimination

The responsible authorities (Ministry of Public Finance) state that through the heterogeneous dispersion of the enterprises in the field, premises for local monopolies can occur. The authority also invokes that this category of products has a significant impact on the costs of public works, a reason why they want to have a maximum price.

The mere existence of a maximum price for rock and sand creates the risk of having all producers align to the maximum price, thus creating a horizontal effect. Moreover, sand and rock can and are traded on the commodities market, thus establishing a transparent price, in accordance with free market rules.

Abolish.

26

Law No. 85/2003 on mines

Art. 23

Mines

Mining activities may be carried out by Romanian companies, which are registered according to the law and are specialised and certified for performing mining operations. Also, foreign companies may be granted mining permits and licences. However, according to the law, within ninety (90) days of the date when the licence entered into effect, the foreign company, which obtained the right to perform mining activities, must set up and maintain a subsidiary in Romania for the whole duration of the concession.

Subsidiary

Foreign entities performing mining activities should open subsidiaries due to the fact that mining activities are large operations which are carried out in Romania and should be monitored on a daily basis. Also, proper communication between the state and the investor should be ensured. However, the interdiction is not justified from a fiscal point of view.

Additional administrative barriers are incurred for foreign undertakings when requesting a subsidiary.

Provision to be amended to allow any type of representation in Romania, not necessarily a subsidiary.

27

Order No. 202/2881/2348/2013 for approval of the Technical Instructions on implementation and monitoring measures set out in the environmental remediation plan, extractive waste management plan and environmental rehabilitation technical design, as well as the manner of operation of the financial guarantee for environmental rehabilitation of the environment affected by mining activities

Art. 6, 7, 8

Mines

All mining operations need to include, at the end of the mining process, activities for closure and post-closure (e.g., greening activities). In order to ensure that those obligations under the permit will be fulfilled, undertakings performing mining activities have to establish a financial guarantee which must be provided exclusively in the form of a bank deposit. No other form of guarantee is accepted, such as a bank letter of guarantee or an insurance policy. The amount of the guarantee shall be put into an account established by the National Agency for Mineral Resources.

Barrier to entry

In the case of prospecting, the impact is not significant. The duration of a prospecting permit or exploitation permit is limited.

Considering that only a bank deposit is accepted for performing the specific activities mentioned, and no other form of guarantee is accepted, a high volume of liquidities is blocked for those subject to this obligation. This is likely to discriminate against small companies.

Amend the legislation in order to allow all legal types of guarantees (bank deposit, guarantee letter, insurance policies, etc.), so as to allow small companies to also access the market.

28

Law No. 10/1995 regarding quality in construction

Art. 15

Laboratories for analysis and testing in the construction field should be authorised and accredited.

Professional certification

The authorisation of laboratories is very important for the safety of constructions and for the quality of the construction materials used.

The number of laboratories can be limited through the evaluation process. The limitation of service providers could decrease competition and, hence, raise prices for consumers; however, in practice there are substantial providers for such services, so the competition impact is very low.

No recommendation for change.

29

Government Decision No. 861/2009 approving the Methodological Norms for granting, use and control of annual amounts intended for the sustainable management of forests which are the private property of individuals and legal entities and the public and private property of the administrative-territorial units and for approving the procedure of the Forest Service and carrying out background checks

Art. 6

Forests

State aid is granted to owners of forests for the durable maintenance of property. This is subject to EC approval.

Possible state aid implications

The objective is to ensure the sustainable development of forest areas.

There are state-aid implications since the legislative act provides for the possibility of the state to finance the owners of forests.

No recommendation for change.

30

Law No. 10/1995 regarding quality in construction

Art. 20 par. 3

Different treatment for the same set of facts

The SCI is not entitled to control the observance of construction quality rules when residential constructions are built exclusively with a ground floor designed for a single family and household annexes located in rural areas and owned by individuals as well as temporary constructions which may be performed without a building permit. Observance of construction quality rules also involves certain obligations for companies active in the construction field (such as manufacturers or producers of building materials) with respect to the level of quality they should ensure. Depending on the location, certain rural areas in which quality in construction rules should be observed as a measure of protection for the population (such as rural areas exposed to earthquake risk) could be identified.

Discrimination

Lawmakers consider that small buildings are not complicated to build in terms of quality of construction, and the risk of demolition/earthquake is not too serious due to their limited surface. Moreover, according to MDRAP, small building design, including seismic design, is based on the technical requirements in force.

By establishing a different treatment towards enterprises active on the market, a framework for discrimination between companies on the market has been created. The consequences are not significant because of the location of buildings in rural areas or buildings which may be erected without a building permit.

No recommendation for change.

31

Order of Ministry for Regional Development and Public Administration (MDRAP) No. 1369/2014 approving the Procedure regarding state control of the quality of construction by controlling the entities involved in the execution process – indicative PCE 001

Art. 13

Plumbing works in specific areas, such as gas or electrical power and on historic monuments, may only be performed by personnel authorised by specific authorities (Romanian Energy Regulatory Authority, Ministry of Culture, etc.).

Barrier to entry

Considering that quality is very important for the safety of works, the objective is the proper use of the regulations/norms in the field. Separately, the objective is to ensure a homogenous approach of standards in the construction field.

There is a possible risk of market foreclosure through limitation of the number of enterprises on the market for performing plumbing works. However, in practice there are substantial providers for such services, so the competition impact is very low.

No recommendation for change.

32

Order No. 847/2014 of MDRAP approving the Procedure regarding state control with respect to the implementation of legal provisions regarding continuous and special monitoring of construction exploitation – indicative PCU 004

Art. 16 par. 2

Extensive control in the case of significant damages, extraordinary events or change of purpose of a construction may be performed only by certified experts (e.g. experts controlling fire events should be certified by the Inspectorate for Emergency Situations).

Barrier to entry

Considering that quality is very important for the safety of works, the objective is the proper use of the regulations/norms in the field. Separately, the objective is to ensure a homogenous approach of standards in the construction field.

There is a possible risk of market foreclosure through limitation of the number of enterprises on the market for performing controls in the case of significant damages. However, in practice there are substantial providers for such services, so the competition impact is very low.

No recommendation for change.

33

Law No. 10/1995 regarding quality in construction

Art. 13

The implementation of construction projects and observance of quality in construction rules should be checked by specialists different to those who were involved in the projects bearing the same qualification as the specialists who were involved in the projects (architects, structural engineers, etc.). The specialists are certified by MDRAP in accordance with GD 925/1995.

Professional certification

Quality is very important for the safety of constructions. Using the 4-eyes principle, this provision does not allow the expert who elaborated the project to also verify it, thus avoiding biased opinions.

No harm to competition as regards the number of competitors on the market has been identified, as in practice the number of market players (i.e., providers of this service) is large.

No recommendation for change.

34

Decision No. 925/1995 approving the regulation of verification and technical expertise of quality of projects, execution work and construction

Art. 23

Conflict of interest

The construction works should be verified by quality experts (in all construction phases: before starting works, during the process and at the end). The certificate of quality experts can be suspended/cancelled by MDRAP based on a report prepared by a group of three experts. One member of the group must be an expert recommended by a professional association active in the field.

Co-regulatory regime

Lawmakers established such a procedure due to their lack of experts in the construction field and considered that it is more convenient to base the suspension/cancellation decision on experts who are aware of the technical requirements.

Allowing a certificate of a market participant to be cancelled/suspended based on a report prepared by a competitor of the respective market participant, can lead to a conflict of interest between professional associations, establishes barriers to entry into the market or exclusion from the market and possible exchange of sensitive information.

The legislation should be amended by mentioning independency rules so as to avoid a possible conflict of interest. The issue could also be partially solved if the public authorities hire more independent experts (this would be a management decision, based on the available resources of the public authority).

35

Government Ordinance No. 20/1994 on measures to mitigate the seismic risk of existing buildings

Art. 4 corroborated with Art. 58 and Art 86 of the Norms

Conflict of interest

Intervention works to buildings with a seismic risk are carried out by state authorities based on a technical solution issued by a designer. Technical solutions are also reviewed by the National Commission for Seismic Risks, a technical body set up by the authority with the consultative role of analysing and giving advice. Members of the commission also include experts appointed by professional associations and employers’ union representatives in the field. Even though formally the state authorities are independent in making the final decision, it is likely that they follow the advice of the National Commission for Seismic Risks (as its members are the ones providing technical input and expertise).

Co-regulatory regime

Lawmakers established such a procedure due to their lack of experts in the construction field and considered that it is more convenient to base the decision on experts who are aware of the technical requirements. The commission of experts have only an advisory role to play in the decision making process, which is entirely in the hands and the responsibility of public authorities.

In general, the involvement of a professional association in the field is a good thing as it comes with their expertise. However, from a competition perspective, the fact that a competitor is involved in the procedure of authorising a market participant can lead, in practice and with help of public authorities, to i) a conflict of interest of the professional associations as these provisions create the framework for professional associations to get involved in possible anti-competitive practices and establish barriers to entry on the market or exclusion from the market, ii) a possible exchange of sensitive information and iii) administrative barriers due to a tendency to standardise interests/actions in cases where the members of private associations may influence the attitude of the public authorities and the legislation in their favour.

The legislation should be amended by mentioning independency rules so as to avoid a possible conflict of interest. The issue could also be partially solved if the public authorities hire more independent experts (this would be a management decision, based on the available resources of the public authority).

36

Law No. 372/2005 regarding energy performance of buildings

Art. 27 par. 1

Certification and energy audits for buildings are performed by energy auditors who are certified by MDRAP. There is no express recognition of EU certified auditors or inter-state provision of services.

Qualifications

The objective is to ensure proper qualification of individuals and a homogenous approach of standards in the construction field. Also, according to MDRAP, it has been taken into account that there is no unique methodology in this profession at the European level. Therefore, MDRAP follows the provisions of Law No. 200/2004 on the recognition of diplomas and professional qualifications for regulated professions in Romania.

By not offering the possibility of EU citizens/legal entities to be active directly in Romania, a discriminatory regime is implemented between Romanian nationals and non-Romanian nationals and the number of the auditors may be reduced with direct impact on competition for such services. However, in practice there are substantial providers for such services, so the competition impact is very low.

No recommendation for change.

37

Law No. 372/2005 regarding energy performance of buildings

Art. 31

Conflict of interest

Specialists appointed from professional associations in the construction field also participate in the checks carried out by the State Inspectorate in Construction in the field of energy performance of buildings.

Co-regulatory regime

Lawmakers established such a procedure due to their lack of experts in the construction field and considered that it is more convenient to base the decision on experts who are aware of the technical requirements.

In general, the involvement of a professional association in the field is a good thing as it comes with their expertise. However, from a competition perspective, the fact that a competitor is involved in the procedure of authorising a market participant can lead, in practice and with help of public authorities, to i) a conflict of interest of the professional associations as these provisions create the framework for professional associations to get involved in possible anti-competitive practices and establish barriers to entry on the market or exclusion from the market, ii) a possible exchange of sensitive information and iii) administrative barriers due to a tendency to standardise interests/actions in cases where the members of private associations may influence the attitude of the public authorities and the legislation in their favour.

The legislation should be amended by mentioning independency rules so as to avoid a possible conflict of interest. The issue could also be partially solved if the public authorities hire more independent experts (this would be a management decision, based on the available resources of the public authority).

38

Law No. 372/2005 regarding energy performance of buildings

Art.18 par. 1 and 2, heading X

Obtaining an energy certificate is mandatory for all buildings that are built, sold, rented or subject to major renovations. The cost of obtaining such a certificate depends on the surface area of the building. The certificate triggers no obligation in relation to the insulation of constructions and no recommendations in relation to energy performance. Obtaining the energy certificate is a requirement under Directive 2002/91/EC of the European Parliament and of the Council on the Energy Performance of Buildings.

Barrier to entry

The objective of the regulation is to collect data at a national level regarding energy efficiency of privately owned buildings, to raise awareness and make countries comparable.

As regards the content of such a certificate, as long as the existence of the certificate triggers no obligation in relation to the insulation of constructions, its issuance is a mere administrative burden and adds costs to transactions involving buildings.

The legislation should be amended in order to regulate the energy certificate and should contain practical recommendations for improving the energy performance of buildings, if this is practically possible.

39

Emergency Ordinance No. 18/2009 for increasing the energy performance of housing blocks

Art. 1 par. 3

Unclear provision/unguided discretion

In terms of aesthetics, the state must approve intervention works for housing flats located in the historic centres of localities, in the areas of protected historic monuments and/or protected areas. Aesthetic authorisation of works is made by the Ministry of Culture. There is no mention as to what “aesthetic” means or the rationale behind each decision.

Barrier to entry

Urbanism aspects are the basis of this regulation.

Possibility of abusive interpretation on a case-by-case basis which triggers discrimination between enterprises.

Option 1. Amend the legislation so that general principles/objective criteria are observed and detailed under the law in order to avoid discretionary decisions and uncertainty (for example whether to keep the same initial façade of the building).

Option 2. All decisions of the Ministry of Culture should be published for transparency purposes in order to avoid uncertainty with respect to each decision.

40

Emergency Ordinance No. 18/2009 for increasing the energy performance of housing blocks

Art. 3 par. 8

Conflict of interest

When approving local programmes for increasing the energy performance of housing blocks, technical committees collaborate with representatives of professional associations of energy auditors. There might arise a possible conflict of interest, as the energy auditors would subsequently be involved in the controlling procedure of SCI (based on provisions of Order No. 3152/2012 approving Control procedures regarding the unitary application of the legal provisions regarding energy performance of buildings and the control of the heating/air conditioning systems mentioned below).

Co-operation

The objective is to ensure sufficient technical expertise.

In general, the involvement of a professional association in the field is a good thing as it comes with their expertise. However, from a competition perspective, the fact that a competitor is involved in the procedure of authorising a market participant can lead, in practice and with help of public authorities, to i) a conflict of interest of the professional associations as these provisions create the framework for professional associations to get involved in possible anti-competitive practices and establish barriers to entry on the market or exclusion from the market, ii) a possible exchange of sensitive information and iii) administrative barriers due to a tendency to standardise interests/actions in cases where the members of private associations may influence the attitude of the public authorities and the legislation in their favour.

The legislation should be amended by mentioning independency rules so as to avoid possible conflict of interest. The issue could also be partially resolved if the public authorities hire more independent experts (this would be a management decision, based on the available resources of the public authority).

41

Order No. 3152/2012 approving Control procedures regarding the unitary application of the legal provisions regarding energy performance of buildings and the control of the heating/air conditioning systems

Art. 16

Conflict of interest

The professional associations of construction designers, plumbing engineers, energy auditors, architects and technical experts in air conditioning/heating systems will participate in the control procedure in the field of energy performance of buildings undertaken by the SCI. The participation will be established by collaboration protocols to be concluded with the SCI.

Self-regulation

The objective is to ensure sufficient technical expertise.

This may trigger possible exchanges of sensitive information between competitors and create uncertainty regarding the power of professional associations in the control procedure as the regulation does not expressly provide for their role in the control; it only states that they should attend the control.

The legislation should be amended by mentioning independency rules so as to avoid possible conflict of interest. The issue could also be partially resolved if the public authorities hire more independent experts (this would be a management decision, based on the available resources of the public authority).

42

Law No. 121/2014 regarding energy efficiency

Art. 9 par. 11

Operators who annually consume an amount of energy over 1 000 tonnes oil equivalent (toe) and who have implemented an energy and environment management system certified by an independent body according to relevant European or international standards do not need to carry out an energy audit every four years. This is an exception to the general rule establishing that all operators consuming a quantity of energy over 1 000 toe annually must proceed with an energy audit every four years.

Discrimination

Most probably such derogation comes from the fact that the respective operators have to implement a management system for energy, which appears to be a more complex procedure than the energy audit.

This obligation may discriminate among competing enterprises having the same size based on implementation of an energy and environment management system.

No recommendation for change.

43

Government Decision No. 525/2013 approving the general and specific duties, the organisational structure and the maximum number of posts, and the rating for fleet and fuel consumption of the State Construction Inspectorate (SCI)

Art. 3 par. IV

Conflict of interest

The SCI works with professional associations in order to develop expertise, research reports, find technical solutions and consolidate projects which are necessary when exercising its control activities.

Co-operation

The objective is to ensure sufficient technical expertise.

This provision emphasises the deep involvement of professional associations in the activity of the SCI, also corroborated by the other possibilities mentioned above. Professional associations are in an obvious conflict of interest. They may be consulted but they should stay clear of the decision making process, which must be entirely in the hands and the responsibility of public authorities.

The legislation should be amended by mentioning independency rules so as to avoid possible conflict of interest. The issue could also be partially resolved if the public authorities hire more independent experts (this would be a management decision, based on the available resources of the public authority).

44

Order No. 1369/2014 of MDRAP approving the Procedure regarding state control of the quality of constructions by controlling the entities involved in the execution process indicative PCE 001

Art. 11 par. 1 letter a) 2.

Unclear provision/unguided discretion

The SCI decides on the type of control applicable to each construction process during the execution phase, taking into account the complexity of the works (i.e., current control or random control). The legislation in force does not prescribe any criteria for the SCI when deciding to pursue random control.

Discrimination

The lawmaker allowed the SCI to decide on the type of control applicable to each construction process during the execution phase in order to efficiently use its resources and prioritise. According to the SCI, a “system procedure” could be implemented containing the criteria for the type of control (a “system procedure” provides general rules in comparison to an “operational procedure” which provides detailed criteria).

Due to lack of clear criteria when assessing the type of control applicable, the SCI might discriminate between competing undertakings on the market. There is only limited predictability for the subjects of the control activities. Those operators subject to random control need to allocate supplementary time resources for controls from SCI.

Implement a system procedure to be used by the SCI when assessing the complexity of the works and when to apply random control.

45

Order No. 848/2014 of MDRAP approving the Procedure regarding state control of the quality of constructions by controlling the entities involved in the design and execution process with respect to the organising and functioning of the quality management system - indicative PCS 003

Art. 6 par. 1

Unclear provision/unguided discretion

The SCI has the right to discretionarily decide on the type of control (verification of quality management system) applicable to each designer and contractor: current control or regular control).

Quality management systems in constructions ensure that the construction project is successful by making sure that activities have the necessary resources, that accurate information is channelled to the right people at the right time so that they can make the right decisions and by ensuring that technical activities are performed within accepted limits.

Discrimination

The lawmakers allowed the SCI to decide on the type of control (verification of quality management system) applicable to each designer and contractor in order to avoid overheads due to a lack of experts in the construction field. According to SCI, a “system procedure” could be implemented regarding the criteria for the type of control (a system procedure would provide with general rules rather than an “operational procedure”, which would provide with detailed criteria, inapplicable in this case).

Due to a lack of clear criteria when assessing the type of control applicable, the SCI might discriminate between competing undertakings on the market. There is only limited predictability for the subjects of the control activities. Those operators subject to random control need to allocate supplementary time resources for controls from SCI.

Implement a system procedure to be used by the SCI when assessing the complexity of the works and when to apply randon control.

46

Order No. 1370/2014 of MDRAP approving the Procedure regarding state control of the determining phases with respect to the mechanical strength and the stability of the construction, indicative PCF 002-2014

Art. 9 para. 3 d)

The SCI controls the projects in the critical intermediate stages of execution. The control is carried out on the basis of the programme proposed by the engineering designer and approved by the SCI. Afterwards the construction process may continue only after obtaining the approval of the SCI for each critical construction phase during a meeting in which representatives of the authority and of the engineering designer and developer should participate.

Barrier to entry

Lawmakers intended to identify any deviations from the technical regulations/legislation applicable in force and establish remedies/terms/responsibilities to address them. According to SCI, they will analyse the opportunity of allowing the various entities involved in the process to give their consent at different times, not necessarily in a physical meeting at the location of the construction.

Excessive approvals may impede the development of the construction market. In the absence of clear criteria and specific deadlines, there is a possibility of abuse and additional costs to investors.

In order to avoid delays on the delivery of the construction, assess the opportunity of allowing the various entities involved in the process to give their consent at different times, not necessarily in a physical meeting at the location of the construction.

47

Law No. 597/2001 regarding certain protection and authorisation measures of construction in the coastal areas of the Black Sea

Art. 6

Different treatment for the same set of facts

In the seaside resorts and the area of tourist beaches, it is prohibited to execute construction or maintenance works in between 15 May and 15 September. Starting in 2014, works within a project financed with non-reimbursable external funds, ongoing works, seasonal works, urgent works and works that do not affect tourist activities are exempt from the abovementioned prohibition, and therefore allowed.

There are several issues arising from this provision:

• The interdiction to carry out construction or maintenance works in coastal areas is applicable automatically, without a prior assessment of the execution period, location or risk of adverse health and safety of persons in each case.

• This limitation raises discriminatory conditions for undertakings having tourist resorts outside the interdiction zone (i.e., resorts in the mountains or in the historical sites) for which there is no such prohibition.

• The large number of exceptions may circumvent the application of the interdiction.

Discrimination

The objective of the provision is to keep construction works from interfering with tourism activity.

This limitation interferes with the business activity of undertakings due to the fact that the interdiction to carry out construction or maintenance works in coastal areas is applicable automatically, without a prior assessment. In addition, the legal provisions raise discriminatory conditions for market participants.

Separately, the large number of exceptions may circumvent the application of the interdiction.

Abolish article 6 of Law 597/2001.

48

Government Decision No. 766/1997 approving certain regulations regarding quality in construction

Entire act

Double/ unpublished legislation

There are two pieces of legislation in force with the same object of regulating the legal framework, main elements, methodology and organisation of technical approval in the construction field.

Order No. 1889/2004 approving certain procedures for technical approvals in the construction field has the same object as Annex 5 of GD 766/1997 (Regulation on the technical agreement for products, processes and equipment in construction); thus, dual pieces of legislation are applicable.

Barrier to entry

The two different pieces of legislation are not completely the same.

It is unclear for companies active in the field what legislation is in force.

Unify the entire legislation on the subject in a sole legislative act.

49

Government Decision No. 766/1997 approving certain regulations regarding quality of construction

Entire act

Double/ unpublished legislation

Annex 4 of Government Decision No. 766/1997 approving certain regulations regarding the quality of constructions regulate the same control activity as mentioned under Order No. 847/2014 approving the Procedure regarding control activities performed for enforcing the legal provisions related to the current and specialised monitoring of the serviceability of constructions. However, the control activity pertains to two different authorities, namely specialists of MDRAP and the SCI.

Barrier to entry

Each normative act regulates the control of a different author, namely the control of MDRAP and of the SCI.

It is unclear for companies active in the field what legislation is in force.

A sole control authority should be established. No double check should be allowed for the observance of the same obligations.

50

Order No. 2190/2004 approving the Regulation regarding European technical approval

Entire act

Double/ unpublished legislation

Two pieces of legislation are in force with the same objective of regulating the European technical agreement for construction products. Order 2190/2004 has the same objective as EU Regulation No. 305/2011 setting forth harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC. Therefore dual pieces of legislation are available.

Non-harmonised legislation

The domestic legislation stopped being applied once the European legislation came into force.

It is unclear for companies active in the field what legislation is in force.

Abolish.

51

Government Decision No. 622/2004 approving the conditions to introduce construction products on the national market

Entire act

Double/ unpublished legislation

Two pieces of legislation are in force with the same objective of regulating the harmonised technical approvals. GD 622/2004 has the same objective as European Regulation No. 305/2011 setting forth harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC. Therefore dual pieces of legislation are applicable in the field of harmonised technical approvals.

Non-harmonised legislation

Government Decision No. 622/2004 approving the conditions to introduce construction products on the national market implementing the Council Directive 89/106/EEC abolished through European Regulation No. 305/2011.

It is unclear for companies active in the field what legislation is in force.

Abolish the part of the legislation that is related to the harmonised technical approvals.

52

Order MDRAP No. 1269/2011 approving the Regulation regarding the organising and functioning of the Standing Technical Council for Construction (CTPC)

Art. 2 par. 3

Technical approval

The Permanent Technical Council for Constructions (CTPC) is a public supervisory body that i) authorises companies that develop the technical approvals to function and ii) approves the technical approvals issued by development companies in the case of non-harmonised building materials. CTPC works in technical commissions. The technical commissions are formed, among others, by specialists proposed by specialised private entities already authorised to issue technical approvals and/or members of professional associations, and employers’ unions in the construction field.

Self-regulation

Most probably, the lawmakers established such a procedure due to their lack of experts in the construction field and considered that it is more convenient to base the decision on experts who are aware of the technical requirements.

This may generate i) potential exchange of sensitive information between competitors (such as costs) and ii) potential barriers to entry for companies requesting technical approvals as a competitor is involved in the approval process.

The legislation should be amended by mentioning independency rules so as to avoid possible conflict of interest. The issue could also be partially resolved if the public authorities hire more independent experts (this would be a management decision, based on the available resources of the public authority).

53

Order No. 1269/2011 of MDRAP approving the Regulation regarding the organising and functioning of the Standing Technical Council for Construction (CTPC)

Art. 3 and Art. 6 and Art. 3 par. 1 of Government Decision No. 622/2004 approving the conditions to introduce construction products on the national market

Technical approval

The development of technical approvals is made by companies authorised by a council functioning under the authority of the CTPC. This technical council, which is able to decide on the authorisation of new entities as well as approvals for new products (and subsequently to give favourable notice to the technical approvals), is made up of representatives of already authorised certifying entities, among others.

Conflict of interest

Most probably, the lawmakers established such a procedure due to their lack of experts in the construction field and considered that it is more convenient to base the decision on experts who are aware of the technical requirements.

This triggers i) exchange of information between competitors ii) potential barriers to entry for companies requesting technical approvals as a competitor is involved in the approval process iii) the Regulation does not provide the criteria/procedure that the certifying entities should use to designate their representative to the Technical Council, which might be seen as a barrier to entry.

The legislation should be amended by mentioning independency rules so as to avoid possible conflict of interest. The issue could also be partially resolved if the public authorities hire more independent experts (this would be a management decision, based on the available resources of the public authority).

54

Order No. 1889/2004 approving procedures for technical approvals

Art. 3.2.2 of Annex No. 2 on procedure regarding the empowerment of the bodies which approve the request for technical certification

Technical approval

The companies seeking authorisation for the elaboration of technical approvals must be Romanian legal persons or associations of Romanian legal persons. There is no express recognition under the legislation of EU certified companies for elaboration of technical approvals.

Discrimination

The objective is to ensure proper qualification of individuals and the homogenous approach of standards in the construction field, based on the domestic climate and seismic conditions.

Individuals or foreign legal persons are excluded, thus creating discrimination between foreign citizens and Romanian citizens. This may trigger i) a barrier to entry ii) high risk of market foreclosure in an area which is anyway very specialised. The provision restricts suppliers’ choices and their incentives to compete.

No recommendation for change.

55

Order No. 1889/2004 approving procedures for technical approvals

Art. 10 par. 3, Art. 41 of Annex No. 1 on procedure regarding technical approvals

Technical approval

The prolongation or the amendment of technical approvals should be requested only of the entity who elaborated the initial technical approval (strict exceptions include: the issuing entity no longer exists, was suspended, etc.).

Barrier to entry

Most likely, the purpose of this provision was to ensure accountability between entities elaborating technical approvals.

This restriction affects competition between private companies authorized by CTPC to elaborate technical approvals because an undertaking intending to amend the initial technical approval or to prolong its duration is not free to choose the body that would make such amendments.

Abolish.

56

Order No. 1889/2004 approving procedures for technical approvals

Art. 29 par. 2, Art. 30 par. 4 of Annex No. 1 on procedure regarding technical approvals

Technical approval

Entities elaborating technical approvals may be suspended from functioning if during a 12-month period the CTPC rejects three technical approvals issued by them.

Discrimination

It is a matter of security as the entity has not been shown to be trustworthy.

The suspension of activity could qualify as an excessive sanction, likely to create unnecessary pressure on the market participant which bears contractual liability as well as the economic liability of a bad reputation.

No recommendation for change.

57

Order No. 1889/2004 approving procedures for technical approvals

Art. 31 of Annex No. 1 on the procedure regarding technical approvals

Technical approval

In case that the activity of an entity elaborating technical approvals is suspended, the CTPC may discretionarily distribute the contracts of the suspended entity to other entities elaborating technical approvals, if the producer (solicitor) cannot wait for the delay of the duration of the suspension of the activity (the duration of the suspension of the activity is three or six months). The law provides no criteria for CTPC’s allocation of the suspended entity’s contracts to other entities. The opinion of the undertaking requesting the elaboration is not requested.

Discrimination

It was not possible to identify the objective of the provision from the relevant piece of legislation.

Considering that the CTPC may discretionarily distribute the contracts to other entities issuing technical approvals, without criteria and without having to ask the producer, there is a risk of abuse and discrimination. Moreover, considering that representatives of elaborating bodies are members of the CTPC, the distribution of contracts may be dictated by the representatives’ private interest.

The company requesting the elaboration of technical approval should be consulted when the project is allocated to another entity. The final decision on the allocation should remain with the requesting entities, and not with CTPC.

58

Order No. 1889/2004 approving procedures for technical approvals

Art. 35 par. 1 of Annex No. 1 of the procedure regarding technical approvals

Technical approval

The validity of a technical approval is three years, but it may be extended by the CTPC to 5 years for certain products, services or equipment that are “safe” and “without risks”. The provision does not define those notions.

Discrimination

It was not possible to identify the objective of the provision from the relevant piece of legislation.

Possible risk of abuse and discrimination in practice due to unclear wording. There is no predictability among the enterprises with respect to the application of this legal provision.

The national legislation should be amended so that it clearly defines the notion of products, services or equipment “without risk” and the notion of “safe” products, services or equipment.

59

Order No. 1889/2004 approving procedures for technical approvals

Art. 5.7.2, Art. 6.6. of Annex II – pct. 6 of – procedure regarding the empowerment of the bodies that approve the request for technical certification

Technical approval

The number of previously issued technical approvals is a criterion taken into consideration by the CTPC in assessing the entity authorised to elaborate technical approvals for the purpose of prolonging/preserving the authorisation. The ministerial experts confirmed that such a criterion is used in practice but it is not possible to identify how much this counts when a decision is taken not to renew an authorisation.

Barrier to entry

The objective of the regulation is to ensure continuity of activity and maintenance of expertise. This is a matter of trust in the market, as they have not been entrusted with any services.

This provision creates an unjustified barrier to entry for newly authorised entities or for small ones.

Option 1. Abolish.

Option 2. Amend the legislation by mentioning that such information is required solely for statistical purposes.

60

Order No. 2142/2013 approving Procedures for designating the technical assessment bodies for construction products

Art. 6 par. 3

Technical approval

Technical Assessment Bodies (TAB) are private entities notified to and designated by MDRP in order to elaborate a European technical approval in the case of harmonised building materials. The duration of the appointment of the TABs by the MDRP is not always unlimited. There are no criteria to assess when the appointment would be limited.

Discrimination

It was not possible to identify the objective of the provision from the relevant piece of legislation.

Risk of discrimination and abuse, as the CTPC may discretionarily decide when to grant an unlimited designation (significant lower cost as the designation procedure involves several stages of preparation and audit).

Option 1. Legislation should stipulate the cases where the appointment is limited in time.

Option 2. The word “generally” should be eliminated from the text of the legal provision, so that any appointment is granted for an unlimited period of time.

61

Order No. 2141/2013 approving Procedures for designating the entities performing the assessment and verification of constancy of performance of construction products

Art. 22 par. 2 Art. 17 l

Technical approval

In the case of revocation of designation for verification of the performance of construction products, the entities that perform the assessment and verification of constancy of performance of construction products are prohibited from requesting designation for a future period of five years. This sanction is applied when the designation is revoked for specific situations such as not allowing inspections by the SCI and non-observance of its attributions under European Regulation 305/2011.

Discrimination

The five year sanctioning period is equal to the period of validity of the accreditation cycle.

Risk of discrimination and abuse as this provision may limit the number of entities designated to perform the assessment and verification of constancy of performance of construction products. Such a severe sanction for a future period of five years should be justified.

Responsible authorities should assess whether this sanction applies solely for severe infringements and decide if there is a chance of reducing the sanction, if this is the case.

62

Order No. 607/2005 of Ministry of Internal Affairs approving the control methodology regarding the monitoring of the market of construction products designed to protect constructions against fire

Art. 19

Outdated legislation

The State Authority for Emergency Situations has the competency for solving unfair competition complaints.

Foreclosure

It was not possible to identify the objective of the provision from the relevant piece of legislation.

This may breach the Romanian Competition Council’s exclusive competence in this area. A secondary norm cannot infringe a law that has superior legal force such as Law 21/1996, which provides the attributions of the Romanian Competition Council and Law 11/1990 regarding unfair competition. The existence of such legal provisions may create uncertainty regarding the state authorities’ competency in solving competition issues among market participants. The Competition Council is also best placed to decide on such cases.

Abolish and refer to general competition law.

63

Law No. 278/2013 on industrial emissions

Art. 14 para. 4 and 5

Environmental legislation

BAT conclusions (“best available techniques conclusions”), as defined by Directive 2010/75, means the best available techniques, their description, information to assess their applicability, the emission levels associated with the best available techniques, associated monitoring, associated consumption levels and, where appropriate, relevant site remediation measures for certain fields involving industrial emissions. BAT conclusions introduce a minimum binding standard for EU Member States. According to Directive 2010/75, the Member States maintain the right to impose more restrictive conditions in which case the Member State must establish rules under which the competent authority may set such stricter conditions. Romanian Law No. 2792013 provides the possibility of the competent authority imposing authorisation conditions in the field of industrial emissions more restrictive than those applicable at the European level, but fails to provide categories of express cases when the competent authority may impose such restrictive conditions. Thus, it seems that authorities have unguided discretion to decide.

Barrier to entry

It was not possible to identify the objective of the provision from the relevant piece of legislation.

Risk of market foreclosure and discrimination among market participants due to a lack of clear situations when the competent authority may impose authorisation conditions more restrictive than the conditions resulting from BAT conclusions.

The national legislation should provide objective and transparent criteria for determining the situations in which the competent authority may impose authorisation conditions more restrictive than the conditions resulting from BAT conclusions.

64

Law No. 278/2013 on industrial emissions

Art. 25 para. 1

Environmental legislation

The national law provides that any interested third party, having a legitimate interest to do so, may appeal in court the decisions, omissions, or any other acts of the competent authority in the field of industrial emissions. However, the law fails to define legitimate interest in the field of public emissions.

Barrier to entry

Considering that there is a wide range of measures which can be contested by the public, resulting in delays in the authorisation process, Directive 2010/75 provided expressly that EU Member States must establish what constitutes a sufficient interest and breach of a right in this field, consistently with the objective of giving the public concerned wide access to justice.

Failing to establish specific examples of what constitutes a legitimate interest of a third party in the field of industrial emissions gives the authority, and the relevant courts of law a discretionary right, to appreciate the legitimacy of such potential claims of third parties.

Clear guidelines with examples should be implemented at the national level, stating when a third party has a legitimate interest in challenging a decision in the industrial emissions field.

65

Law No. 104/2011 on ambient air quality

Art. 57 para. 3

Environmental legislation

In the areas where emissions in the air for certain pollutants exceed the provision, the environmental authority will impose more restrictive emission limits for those pollutants, based on studies assessing their environmental impact.

Discrimination

It was not possible to identify the objective of the provision from the relevant piece of legislation.

The wording of this provision is unclear with two possible interpretations. One would be that the more restrictive conditions are imposed only to new pollutants. Another possible interpretation would be that more restrictive conditions may also be imposed on old pollutants.

The national legislation should be amended, in order to clarify how and to what type of pollutants the restriction applies.

66

Order No. 863/2002 on the approval of methodological guidelines applicable to the framework procedure for evaluating environmental impact

Guideline, tables No. 2 and 3

Environmental legislation

After the economic operator submits certain data and information regarding its project to the environmental authority, the competent authority must decide whether the project will go to the evaluation procedure or not. In order to take such a decision, the authority fills in a control list consisting of questions based on the data provided by the economic operator. The possible answers for the economic operator are “Yes”, “No”, “Not applicable” or “Unclear”. Then, the authority decides if the project must go to the evaluation procedure or not. The legislation does not provide clear criteria to be followed by the authority when taking such a decision. Order No. 863/2002 establishes that even a single “Yes” answer in the control list could trigger the decision to submit the project for further evaluation.

Discrimination

It was not possible to identify the objective of the provision from the relevant piece of legislation.

Risk of discrimination and abuse by the authority when deciding which project to further evaluate due to lack of criteria and thresholds for evaluation. Considering that the evaluation procedure involves time and costs for economic operators, the authorities must apply a more objective guideline in the screening stage.

Option 1. Draft guidelines which include criteria to be used by the authorities when deciding which project to further evaluate

Option 2. Publish decisions of the authority on the website in order to bring transparency and predictability for the enterprises active on the market.

67

Order No. 290/2000 regarding the technical acceptance of products and/or services for use in activities of building, upgrading, repair and maintenance of rail infrastructure and rolling stock for rail and metro

Art. 2

The Romanian railway authority (AFER) issues a railway technical approval for building materials made from processed/mixed construction materials needed to achieve specific activities or processes when building, modernising or maintenance of the railway infrastructure and rolling stock.

Authorisation

The objective is to ensure safety of railway networks also through the use of proper materials.

The provision of quality approvals by AFER leads to additional costs and effort for producers.

No recommendation for change.

68

Legislation that has not been published

Entire act

Double/ unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or in the case where it has been published, it is not generally available, except upon payment of a separate fee: Order No. 2360/2013 approving the technical regulation “Technical specification on products for construction. Key features, levels and performance classes” indicator ST 051-2013.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

69

Legislation that has not been published

Entire act

Double/ unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or in the case where it has been published, it is not generally available, except upon payment of a separate fee: Order No. 615/2003 approving the technical regulation “Regulation regarding the organisation and conduct of traffic surveys, origin, destination. Preparing data for processing” (revision DD 506 – 1988), indicator DD 506 – 2001.

Moreover, according to a list published by MDRAP on its website containing the technical enactments in force as of 1 January 2016 (the list was revised on 9 February 2016), the abovementioned regulation, identified as DD 506 – 2001, was replaced by another regulation (with the indicator DD 506-2015), in accordance with Decision No. 155/02.12.2015 of CNADNR. Neither the decision nor the new regulation were published in the Official Gazette of Romania, but only in a construction bulletin.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

70

Legislation that has not been published

Entire act

Double/ unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or in the case where it has been published, it is not generally available, but one needs to pay a separate fee in order to obtain it: MTCT Order No. 622/2003 approving department Regulation on extra-urban highways design, code PD 162/2002.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

71

Legislation that has not been published

Entire act

Double/ unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or, where it has been published it is not generally available, and payment of a separate fee is required to obtain it: Order No. 479/2003 approving the technical regulation “Guide on achieving cement concrete pavement with chippings of limestone nature” (Revision CD 170-1988), indicator CD 170-2003.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

72

Legislation that has not been published

Entire act

Double/ unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or in the case where it has been published, it is not generally available, but one needs to pay a separate fee in order to obtain it: Order No. 618/2003 approving the technical regulation “Regulation on road concrete with added fly ash” (revision CD 147-1985), indicator CD 147 – 2002.

Moreover, according to a list published by MDRAP on its website containing the technical enactments in force as of 1 January 2016 (the list was revised on 9 February 2016), the abovementioned regulation having the identification CD 147 – 2002 appears to be replaced by another regulation (with the indicator CD 147-2013), in accordance with the decision No. 1.282/12.09.2013 of CNADNR. It is unclear whether the new regulation actually abolished the old one, as we could not identify the regulation identified as CD 147 – 2002 in the list published by the Ministry.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

73

Legislation that has not been published

Entire act

Double/ unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or in the case where it has been published, it is not generally available, but one needs to pay a separate fee in order to obtain it: Order No. 605/2003 approving the technical regulation “Regulation on design conditions and execution technology of asphalt coating works” (revision CD 16 – 1978), indicator CD 16 – 2000.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

74

Legislation that has not been published

Entire act

Double/unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania or, where it has been published, it is not generally available, but a separate fee is required to obtain it: Order No. 606/2003 approving the technical regulation “Regulation on design and execution of double reverse bituminous treatments on coatings with hydraulic binders ” (Revision CD 16-1978), indicator PD 216 – 2001.

Moreover, according to a list published by MDRAP on its website containing the technical enactments, in force as of 1 January 2016 (the list was revised on 9 February 2016), the abovementioned regulation identified as PD 216 – 2001 was replaced by another regulation (with the indicator PD 216-2008), in accordance with Decision No. 21/13.01.2009 of CNADNR. Neither the decision nor the new regulation were published in the Official Gazette of Romania, but only in a construction bulletin.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

75

Legislation that has not been published

Entire act

Double/unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or in the case where it has been published, it is not generally available, but one needs to pay a separate fee in order to obtain it: Order No. 613/2003 approving the technical regulation “Regulation on the performance at hot temperature of bituminous clothing for the bridge path” (revision AND 546 – 1999), indicator AND 546 – 2002.

Moreover, according to a list published by MDRAP on its website containing the technical enactments in force as of 1 January 2016 (the list was revised on 9 February 2016), the abovementioned regulation identified as AND 546 – 2002 was replaced by another regulation (with the indicator AND 546-2013), in accordance with Decision No. 1.278/11.09.2013 of CNADNR. Neither the decision nor the new regulation were published in the Official Gazette of Romania, but only in a construction bulletin.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

76

Legislation that has not been published

Entire act

Double/unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania or, where it has been published, it is not generally available, but a separate fee is required to obtain it: Order No. 614/2003 approving the technical regulation “Regulation regarding the technical conditions and testing methodology of cationic over stabilized bituminous emulsions”, indicator AND 581 – 2002.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

77

Legislation that has not been published

Entire act

Double/unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or in the case where it has been published, it is not generally available, but one needs to pay a separate fee in order to obtain it: Order No. 302/2003 approving the technical regulation "Regulation regarding the design of floors made of corrugated sheets – concrete”, indicator N.E. 020-03.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

78

Legislation that has not been published

Entire act

Double/unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or in the case where it has been published, it is not generally available, but one needs to pay a separate fee in order to obtain it: Order No. 304/2003 approving the technical regulation”Regulation regarding calculation and composition of wood resistance structures located in seismic areas”, (addendum P 100), Indicator N.E. 019-03.

Moreover, following our check in the list published by MDRAP on its website containing the technical enactments in force as of 1 January 2016 (the list was revised on 9 February 2016), we could not identify the regulation having the indicator N.E. 019-03 (neither as being in force or abolished).

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

79

Legislation that has not been published

Entire act

Double/ unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania, or in the case where it has been published, it is not generally available, but one needs to pay a separate fee in order to obtain it: Order No. 303/2003 approving the technical regulation “Regulation on design of wood constructions”, (revision NP 005-96)”, indicator N.E. 018-03.

Moreover, following our check in the list published by MDRAP on its website containing the technical enactments in force as of 1 January 2016 (the list was revised on 9 February 2016), we could not identify the regulation having the indicator N.E. 018-03 (neither as being in force or abolished).

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

80

Legislation that has not been published

Entire act

Double/ unpublished legislation

We have identified the following piece of legislation which is not published in the Official Gazette of Romania or, where it has been published, it is not generally available, but a separate fee is required to obtain it: Order No. 903/2003 approving the technical regulation “Guide regarding performance criteria of quality requirements according to Law No. 10/1995 on constructions’ quality, for electrical installations in buildings”, indicator GT-059-03.

Lack of transparency/barrier to entry

All these technical normative documents have a large number pages, so publication in the Official Gazette would be excessive in terms of cost. The technical regulations approved by ministerial orders may be used as legal documents only if published in the Official Gazette.

The legislation in force is unclear for companies active in the field and it may create uncertainty for enterprises willing to enter the market.

Publish such normative materials additionally on the dedicated websites in order to make the information available to all market participants.

Sector: Transport Horizontal Legislation

No.

No and title of Regulation

Article

Thematic category

Brief description of potential obstacles

Keyword

Policy maker’s objectives

Harm to competition

Recommendations

1

Ordinance No. 8/2013 on the medical and psychological examination of the personnel involved in transport safety and for amendment of the Law No. 95/2006 on healthcare reform and Order No. 1262/10.10.2013 on approval of the norms from 10 October 2013 on the procedure of acceptance of medical and/or psychological units as a means to examine transport personnel with duties in transport safety.

Art. 12

Framework legislation

In order to do the health check and to issue the medical certificate and physiological evaluation of the personnel involved in transport safety, an approval certificate is needed for the specialised medical or psychological units. The approval authority is the Ministry of Transport. The medical units and the psychological units as well have to meet several mandatory requirements, such as the ownership of the necessary equipment needed to carry out medical investigations.

Authorisation

The criteria which must be fulfilled by the medical and/or psychological units are stipulated in the Order No. 1262/2013. The Ministry of Transport’s (MoT) approval seems to be justified by the objective of the legal provision (public security and transport safety), so the criteria must be fulfilled. The criteria are clear and non-discriminatory, except the one referring to the obligation of the medical units to prove ownership over the necessary equipment for carrying out medical investigations that seems to be excessive. There is no justification for the medical units not to be allowed to rent or lease equipment when they are about to perform examination of the personnel involved in transport safety activities.

According to the information posted on the Web page of MoT, there are about 25 psychological units and 16 medical units.

The provision reduces the number of players and raises administrative costs. The medical and psychological examination of the personnel involved in transport safety can be performed only by the specialised medical and/or psychological units which have certificates of approval issued by the Ministry of Transport. The medical and psychological units have to be the owners of the necessary equipment needed to carry out medical investigations in order to obtain the above mentioned certificate. As the equipment can be quite expensive – e.g., about EUR 50 000 for an ultrasound machine, such high costs represent a barrier to entry into the market.

Modify the provision: The requirement for the medical units to be the owners of the equipment should be modified – medical units should also have the right to use rented or leased equipment.

2

Law No. 86/2006 on the Customs Code of Romania

Art. 31 para. 5

Framework legislation

Any person may appoint a representative when dealing with the customs authority, to draw up the documents and to perform formalities laid down by customs regulations. The representative shall be established in Romania.

”Customs representative” means any person appointed by another person to carry out the acts and formalities required under the customs legislation in his or her dealings with customs authorities.

Discrimination

This provision could be justified by the fact that the customs representative shall have an established office inland, so it can be easily checked by the Romanian authorities. Also, the restriction is justified for fiscal reasons resulting from the nature of the customs representative activity.

Still, notice should be taken of the fact that the Union Customs Code (UCC) was adopted on 9 October 2013, as Regulation (EU) No. 952/2013 states.

It entered into force on 30 October 2013 but its substantive provisions will apply starting on 1 May 2016. The Regulation is binding in its entirety and directly applicable in all Member States, including Romania.

According to article No.18 of the Regulation, customs representative shall be established within the customs territory of the Union and a customs representative who complies with the criteria laid down in the Regulation shall be entitled to provide such services in a Member State other than the one where he or she is established.

This provision seems to discriminate against operators who do not have an established office in Romania.

Abolish: the requirement for a customs representative to be established in Romania should be removed and replaced by the counterpart provision of the Regulation No. 952/2013 laying down the Union Customs Code.

3

Law No. 86/2006 on the Customs Code of Romania

Art. 32 para. 1

Framework legislation

The Customs Authority grants the status of authorised economic operator only to undertakings established in Romania.

Customs authorities shall, on the basis of recognition of the status of an authorised economic operator for customs simplification and provided that the requirements related to a specific type of simplification in the customs legislation are fulfilled, authorise the operator to benefit from that simplification. Customs authorities shall not re-examine those criteria which have already been examined when granting the status of an authorised economic operator.

Discrimination

This provision could be justified by the fact that the customs representative shall have an established office inland, so it can be easily checked by the Romanian authorities. Also, the restriction is justified for fiscal reasons resulting from the nature of the customs representative activity.

Still, notice should be taken of the fact that the Union Customs Code (UCC) was adopted on 9 October 2013, as Regulation (EU) No. 952/2013l.

It entered into force on 30 October 2013 but its substantive provisions will apply starting on 1 May 2016. The Regulation is binding in its entirety and directly applicable in all Member States, including Romania.

According to article 38 of the Regulation

in order to obtain the status of authorised economic operator, the operator shall be established within the customs territory of the Union. The status of the authorised economic operator shall consist in the following types of authorisations:

a) that of an authorised economic operator for customs simplifications; or b) that of an authorised economic operator for security and safety.

Subject to the provision of the Regulation, the status of authorised economic operator shall be recognised by the customs authorities in all Member States (para. 4). Customs authorities shall not re-examine those criteria which have already been examined when granting the status of authorised economic operator (para. 5).

This provision seems to discriminate against operators who do not have an established office in Romania.

Abolish: the requirement for a authorised economic operator to be established in Romania should be removed and replaced by the counterpart provision of the Regulation No. 952/2013 laying down the Union Customs Code.

4

Law No. 86/2006 on the Customs Code of Romania

Art. 87 para. 2

Framework legislation

The customs declaration should be done by a declarant established in Romania. “Declarant” means the person lodging a customs declaration, a temporary storage declaration, an entry summary declaration, an exit summary declaration, a re-export declaration or a re-export notification in his or her own name or the person in whose name such a declaration or notification is lodged.

Discrimination

This provision may be justified by the fact that the person who makes the declaration shall have an established office in the country, so that it can be checked by the authorities. Also, the restriction may be justified for fiscal reasons.

Still, notice should be taken of the fact that the Union Customs Code was adopted on 9 October 2013 as Regulation (EU) No. 952/2013.

It entered into force on 30 October 2013 but its substantive provisions will apply starting on 1 May 2016. The Regulation is binding in its entirety and directly applicable in all Member States, including Romania. According to article 170 para. 2 of the Regulation, the declarant shall be established in the customs territory of the Union.

This provision seems to discriminate against operators who do not have an established office in Romania.

Abolish: the requirement for a declarant to be established in Romania should be removed and replaced by the counterpart provision of the Regulation No. 952/2013 laying down the Union Customs Code.

5

Law No. 86/2006 on the Customs Code of Romania

Art. 116 para. 3 lit. a, b

Framework legislation

Within a transit procedure, there is a so-called “main debtor” who is the holder of the transit procedure and the one responsible for ensuring payment of the customs duties for goods in transit. The main debtor has to provide a single or a global warranty for the payment of customs duties. A global warranty covers several transit operations and is permitted to be used only subject to Customs Authority authorisation. Such an authorisation is issued only if the main debtor meets the following requirements: (i) established in Romania, (ii) a frequent user of the transit system or having the capacity to pay and (iii) has not committed serious or repeat offenses against customs rules (as Article 116 (3) of the Customs Code stipulates).

Discrimination

This provision may be justified by the fact that the person who is responsible for providing the warranty for the payment of customs debts shall have an established office inland, so it should be easily checked by the Romanian authorities.

Still, notice should be taken of the fact that the Union Customs Code was adopted on 9 October 2013 as Regulation (EU) No. 952/2013.

It entered into force on 30 October 2013 but its substantive provisions will apply starting on 1 May 2016. The EU Regulation is binding in its entirety and directly applicable in all Member States, including Romania.

According to Article No. 95 of the Regulation the authorisation shall be granted only to guarantors who are established in the customs territory of the Union.

This provision seems to discriminate against operators who do not have an established office in Romania.

Abolish: the requirement for a guarantor to be established in Romania should be removed and replaced by the counterpart provision of the Regulation No. 952/2013 laying down the Union Customs Code.

6

Law No. 86/2006 on the Customs Code of Romania

Art. 121 para. 3

Framework legislation

The management of a customs’ warehouse is subject to an authorisation issued by the Customs Authority. The authorisation is granted only to persons established in Romania.

Customs warehousing allows the owner to hold imported Non-Community goods in the Community and choose when to pay the duty or re-exports the goods.

Discrimination

This provision may be justified by the fact that the person who fulfils the declaration shall have an established office inland, to be easily checked by the Romanian authorities. Also, the restriction may be justified for fiscal reasons.

Under customs’ warehousing procedure, imported goods are stored under customs’ control in a designated place (a customs warehouse), without payment of import duties and taxes.

Still, notice should be taken of the fact that the Union Customs Code was adopted on 9 October 2013 as Regulation (EU) No. 952/2013.

It entered into force on 30 October 2013 but its substantive provisions will apply starting on 1 May 2016. The EU Regulation is binding in its entirety and directly applicable in all Member States, including Romania.

According to Article 211, para. (3) of the EU Regulation, the authorisation for the activity of storage, which shall comprise customs warehousing, shall be granted only to persons who are established in the customs territory of the Union.

This provision seems to discriminate against operators who do not have an established office in Romania.

Abolish: the requirement to be established in Romania in order to carry out the management of a customs warehouse should be removed and replaced by the counterpart provision of the Regulation No. 952/2013 laying down the Union Customs Code.

7

Law No. 86/2006 on the Customs Code of Romania

Art. 137 lit. a

Framework legislation

Authorisation for performing active processing operations is granted only to persons established in Romania. Processing operations means any of the following

a) the working of goods, including erecting or assembling them or fitting them to other goods;

b) the processing of goods;

c) the repair of goods, including restoring them and putting them in order;

d) the use of goods which are not to be found in the processed products, but which allow or facilitate the production of those products, even if they are entirely or partially used up in the process.

The active processing operations are performed in Romania.

Discrimination

This provision may be justified by the fact that the active processing operations imply an economic activity which is operated in Romania. Thus, the undertaking which performs this activity shall have an established office inland, so it can be checked by the customs authorities. Also, the restriction is justified for fiscal reasons.

Still, notice should be taken of the fact that the Union Customs Code was adopted on 9 October 2013 as Regulation (EU) No. 952/2013.

It entered into force on 30 October 2013 but its substantive provisions will apply starting on 1 May 2016. The EU Regulation is binding in its entirety and directly applicable in all Member States, including Romania.

According to article. 210 (d) and article 211 para. (3) of the EU Regulation authorisation for the activity of processing, which shall comprise inward and outward processing, shall be granted only to persons who are established in the customs territory of the Union.

This provision seems to discriminate against operators who do not have an established office in Romania.

Abolish: the requirement to be established in Romania in order to carry out processing, which shall comprise inward and outward processing should be removed and replaced by the counterpart provision of the Regulation No. 952/2013 laying down the Union Customs Code.

8

Law No. 86/2006 on the Customs Code of Romania

Art. 153 lit. a

Framework legislation

The authorisation for processing products under customs control is granted only to persons established in Romania. The definition of “processed products”/“processing operations” is provided by Article No. 5 of EU Regulation No. 952/2013 (coming into force on 1 May 2016).

Thus, “processed products” means goods placed under a processing procedure which have undergone processing operations. “Processing operations” means any of the following: a) the working of goods, including erecting or assembling them or fitting them to other goods; b) the processing of goods; c) the destruction of goods; d) the repair of goods, including restoring them and putting them in order; e) the use of goods which are not to be found in the processed products, but which allow or facilitate the production of those products, even if they are entirely or partially used up in the process (production accessories).

Discrimination

This provision may be justified by the fact that the processing under the customs control implies an economic activity which is operated in Romania. Thus, the operator who performs this activity shall have an established office in the country, so that it can be checked by the authorities. Also, the restriction may be justified for fiscal reasons.

Still, notice should be taken of the fact that the Union Customs Code was adopted on 9 October 2013 as Regulation (EU) No. 952/2013.

It entered into force on 30 October 2013 but its substantive provisions will apply starting on 1 May 2016. The EU Regulation is binding in its entirety and directly applicable in all Member States, including Romania.

According to recital (50) of the Regulation, the inward processing suspension procedure should be merged with processing under customs control, so that the latter no longer exists as such. According to article 210 (d) and article 211 para. (3) of the EU Regulation the authorisation for inward processing shall be granted only to persons who are established in the customs territory of the Union.

This provision seems to discriminate against operators who do not have an established office in Romania.

Abolish: the requirement to be established in Romania in order to carry out inward processing should be removed and replaced by the counterpart provision of the Regulation No. 952/2013 laying down the Union Customs Code.

9

Law No. 86/2006 on the Customs Code of Romania

Art. 168 lit. a

Framework legislation

The authorisation for performing outward processing operations is granted only to persons established in Romania. Processing operations means any of the following:

a) the working of goods, including erecting or assembling them or fitting them to other goods;

b) the processing of goods;

c) the repair of goods, including restoring them and putting them in order;

d) the use of goods which are not to be found in the processed products, but which allow or facilitate the production of those products, even if they are entirely or partially used up in the process.

The outward processing operations are performed outside Romania.

Outward processing procedure allows community goods to be temporary exported from the Community customs territory in order to undergo improvement processing operations and that the products resulted from the improvement to be released for free circulation with total or partial relief from import duties.

Discrimination

This provision may be justified by the fact that the processing under customs control implies an economic activity which is operated in Romania. Thus, the operator who performs this activity shall have an established office in the country, so that it can be checked by the authorities. Also, the restriction may be justified by fiscal reasons. Under the outward processing procedure goods may be temporarily exported from the customs territory of Romania in order to undergo processing operations. The processed products resulting from those goods may be released for free circulation with total or partial relief from import duty upon application by the holder of the authorisation or any other person established in the customs territory provided that that person has obtained the consent of the holder of the authorisation and the conditions of the authorisation are fulfilled.

Still, notice should be taken of the fact that the Union Customs Code was adopted on 9 October 2013 as Regulation (EU) No. 952/2013.

It entered into force on 30 October 2013 but its substantive provisions will apply starting on 1 May 2016. The EU Regulation is binding in its entirety and directly applicable in all Member States, including Romania.

According to article 210 (d) and article 211 para. (3) of the Regulation the authorisation for outward processing shall be granted only to persons who are established in the customs territory of the Union.

This provision seems to discriminate against operators who do not have an established office in Romania.

Abolish: the requirement to be established in Romania in order to carry out outward processing should be removed and replaced by the counterpart provision of the Regulation No. 952/2013 laying down the Union Customs Code.

10

Decision No. 707/2006 for approval of the Implementing regulation of the Customs Code of Romania, as further amended and supplemented

Art. 563 from the Regulation

Framework legislation

The customs agent must be a Romanian legal person.

Discrimination

This provision is justified by the fact that the customs agent shall have an established office inland, so it can be checked by authorities. Also, the restriction is justified for fiscal reasons resulting from the nature of the customs agent activity.

Still, notice should be taken of the fact that the Union Customs Code was adopted on 9 October 2013 as Regulation (EU) No. 952/2013.

It entered into force on 30 October 2013 but its substantive provisions will apply starting on 1 May 2016. The EU Regulation is binding in its entirety and directly applicable in all Member States, including Romania.

The regulation does not contain any provision regarding “customer agent” the term closest in meaning is “representative”. According to article 18 of the Regulation, the customs representative shall be established within the customs territory of the Union and a customs representative who complies with the criteria laid down in the Regulation shall be entitled to provide such services in a Member State other than the one where he or she is established.

This provision seems to discriminate against foreign operators.

Abolish: the requirement to be established in Romania in order to carry out outward processing should be removed and replaced by the counterpart provision of the Regulation No. 952/2013 laying down the Union Customs Code.

No.

No and title of Regulation

Article

Thematic category

Brief description of the potential obstacle

Keyword

Policy maker’s objective

Harm to competition

Recommendations

1

Order of the Ministry of Transport (MoT) No. 980/2011 approving the Methodological Norms on the application of the provisions regarding the organisation and performance of road transport and related activities established by Government Ordinance (GO) No. 27/2011 on road transport, as further amended and supplemented

Art. 3 from the Norms

Road transport for hire or reward can be performed only by authorised road transport operators. They must be registered with the Romanian Road Authority. This provision applies only to transport operators established in Romania.

Authorisation/registration

This provision complies with Articles 10, 11 and 16 of EC Regulation No. 1071/2009. All Member States apply the same requirement to transport operators established in their country. The scope of this provision is to enable law enforcers to verify compliance of the transport operators with public policy objectives such as safety, civil liability and prevention of fraud and crimes.

The requirements to obtain an authorisation and to register with the Romanian Road Authority create an entry barrier which reduces the number of operators.

No recommendation.

2

MoT No. 980/2011 (same as above)

Art. 8 from the Norms

In order to obtain registration in the road freight transport Electronic National Register and the transport licence (Community licence), an undertaking must fulfil the following requirements:

a) have an effective and stable establishment in Romania; b) be of good repute; c) have appropriate financial standing; and d) have the required professional competence.

Licence

These requirements are in line with Art. 3 of EC Regulation No. 1071/2009. They are reasonable and enable verification of compliance by road hauliers with legislation related to road transport. Also, they try to prevent socio-economic damages by, for example, refusing a licence to operators who lack professional qualification concerning road safety.

The requirements to register and obtain a licence create an entry barrier which reduces the number of hauliers available in the market.

No recommendation.

3

MoT No. 980/2011 (same as above)

Art. 9 from the Norms

To obtain a transport licence, companies must have a registered seat in Romania, where they maintain all records related to their activity. Vehicles must be registered in Romania and be subject to technical inspection in an operating centre established in Romania. It is applied only to hauliers established in Romania.

These requirements are in line with Art. 5 of EC Regulation No. 1071/2009. They are reasonable and enable verification of compliance by road hauliers with legislation related to road transport, since there is no European Electronic Register concerning road transport operators and their vehicles which can be accessed by Romanian law enforcers.

The requirements to have a registered seat in Romania and to use only vehicles registered and inspected in Romania, in order to obtain a transport licence, may prevent acquisition of vehicles from abroad and the provision of inspection services by foreign operators. These requirements may also increase costs for hauliers since they are forced to comply with the national requirements.

No recommendation.

4

MoT No. 980/2011 (same as above)

Art. 10 from the Norms

One of the requirements needed to obtain a transport licence is to have good repute. The State Inspectorate for Road Transport Control (ISCTR) is in charge of enforcing this requirement.

The requirement of good repute is in line with Art. 6 of EC Regulation No. 1071/2009. The Romanian rules on good reputation may be enforced only against drivers registered in Romania. The ISCTR enforcement procedure is established in a document entitled “Ediţia I, Revizia 0 – Cod PO 89” recorded with the ISCTR No. 2508/30.01.2014 and refers to an internal administrative procedure which does not need to be published. Infringements of good repute are recorded in a local database and should be reported in the ERRU database (Europe-wide system). Decisions taken by the ISCTR concerning good reputation may be appealed before administrative courts.

The requirement of good repute is in line with Art. 6 of EC Regulation No. 1071/2009. However, ISCTR enforcement procedure verifying compliance with the good repute requirement is not published.

Make provision clearer: The ISCTR procedure related to compliance with good repute by transport operators shall be published to enable monitoring of the ISCTR exercise of power and enable operators with the ability to present their view before a potentially negative decision is taken.

5

MoT No. 980/2011 (same as above)

Art.14 from the Norms

To obtain a transport licence, undertakings shall have appropriate financial standing. They shall demonstrate, on the basis of annual accounts certified by an auditor or a duly accredited person, that, every year, they have at their disposal capital and reserves totalling at least EUR 9 000, when only one vehicle is used, and EUR 5 000 for each additional vehicle used. Also, undertakings can demonstrate their financial standing by means of a certificate such as a bank guarantee or insurance from one or more banks or other financial institutions, including insurance companies.

Licence

The provision is in line with Art. 7 of EC Regulation No. 1071/2009. The capital requirement or bank guarantee is reasonable if compared with the total costs of a truck, approximately EUR 200 000. This capital may be used, for example, to cover liabilities incurred by transport operators.

The financial standing requirements in order to obtain a Community transport licence may represent a barrier to entry into the market for those operators who cannot afford them.

No recommendation.

6

MoT No. 980/2011 (same as above)

Art.15 from the Norms

In order to obtain a transport licence, undertakings must have the required professional competence. In this respect, undertakings shall appoint a transport manager who has a certificate of competence, fulfils the requirement regarding good repute, permanently leads the transport activities of the undertaking, is an employee/director/owner/shareholder or manager of the undertaking. Also, the transport manager must reside in the European Union. A natural person can be a transport manager in only one single undertaking.

This restriction could be explained for reasons related to the quality of the transport manager services, since in the case that the transport manager works for several separate undertakings, he may not always be available to brief drivers, e.g. about the characteristics of the goods transported or over which route to choose to avoid delays or additional charges. The requirements of the Romanian legislation are in line with European Regulation No. 1071/2009, but the obligation of the transport manager to lead only one single undertaking is more stringent.

Thus, according to Art. 4 of European Regulation No. 1071/2009, transport managers can either be direct employees or persons so closely linked to the business that they have a real, direct connection with the operator. They can also be independent third parties, such as transport consultants, in the case that the operator does not have a transport manager with a genuine link to the undertaking. As per Art. 4 para. (2), a transport manager without a genuine link to the undertaking may serve up to four separate transport operators, as long as their combined fleet does not exceed 50 vehicles. The European Regulation provides that Member States may decide to lower the number of undertakings and/or the size of the total fleet of vehicles which the manager may manage.

However, even if the Member States can determine the maximum number of transport operators led by a manager, the Romanian provision makes no link to the total combined fleet of operators, which seems to be the relevant criterion to pursue the EU policy objective.

The obligation to be a transport manager in only one single undertaking could make it more difficult for transport managers to expand their business by covering more than one undertaking. If such a restriction is lifted, the costs of hiring transport managers for a single undertaking may become lower, whereas earnings of transport managers may become higher.

We recommend modifying the relevant Romanian legislation by inserting the provision from the EU legislation: Based on Art. 4 EC Regulation No. 1071/2009, transport managers may serve up to 4 separate transport operators as long as their combined fleet does not exceed 50 vehicles. More restrictive provisions are not justified, notably due to the fact that Romanian freight hauliers generally have small fleets.

7

MoT No. 980/2011 (same as above)

Art. 17 from the Norms

Undertakings may operate road transport services for their own account only after registration with the Romanian Road Authority and the issuance of a certificate of own-account transport. Requirements for engagement in the occupation of own-account road transport are as follows:

The undertaking and transport manager shall be of good repute and the transport manager shall have the required professional competence. This provision only applies to transport operators established in Romania. Further, it applies only to vehicles whose overall weighting load exceeds 3.5 tonnes.

This restriction is justified for reasons of public safety. Vehicles with load exceeding 3.5 tonnes may be used to cover very long distances and to carry all kinds of goods including dangerous goods. Requesting compliance with good repute and professional competence is done in order to verify the compliance of transport operators with public policy objectives such as preventing bankruptcy, infringements related to commercial law, drug traffic, etc. or ensuring compliance with labour remuneration rules with respect to staff (see Art. 6 EC Regulation No. 1071/2009).

The requirement to register with RRA and to obtain a licence creates an entry barrier which reduces the number of own-account hauliers.

No recommendation.

8

Government Ordinance (GO) No. 27/2011 on road transport, as further amended and supplemented

Art.11

Undertakings performing road transport for hire or reward are exempted from the application of the licensing requirements if they are exclusively engaged in national transport operations having only a minor impact on the transport market because of: a) the nature of the goods carried; or b) the short distances involved. Such an exemption is granted to all vehicles with an authorised maximum gross tonnage not exceeding 3.5 tonnes.

Discrimination

According to EC Regulation No. 1071/2009, EU Member States have discretion about which regime to choose for vehicles whose gross maximum tonnage does not exceed 3.5 tonnes. This exemption may be justified by the fact that transport operations listed in this article have only a minor impact on the transport market. Furthermore, vehicles whose maximum gross tonnage do not exceed 3.5 tonnes are only used to cover short distances.

This provision may favour one or more operators vis-à-vis others. It creates additional costs and an administrative burden for those who may not benefit from this exemption.

No recommendation: No such licences are required by EU legislation and no complaints are known from those operators under the obligation to get such a licence, against the excepted ones. Also, information obtained through research, indicates that in some European countries the relevant provisions are the same. Thus, for example, in the UK, operators do not need a licence if they carry out road freight transport using vehicles that have an authorised maximum gross tonnage under 3.5 tonnes.

9

GO No. 27/2011 on road transport, as further amended and supplemented

Art. 19

Undertakings performing own-account road transport may be exempted from the application of the provisions related to obtaining a certificate of own-account transport and the provisions related to registration with the Romanian Road Authority if they are exclusively engaged in national transport operations having only a minor impact on the transport market because of: a) the nature of the goods carried; or b) the short distances involved. Such an exemption is granted to all vehicles having an authorised maximum gross tonnage not exceeding 3.5 tonnes.

Discrimination

EC Regulation No. 1071/2009 does not cover own-account transport. Thus, EU Member States enjoy discretion on how to regulate this type of transport at national level. This exemption is justified by the fact that transport operations listed in this article are carried out for the own interest of the undertaking and have only a minor impact on the transport market. Furthermore, vehicles whose maximum gross tonnage does not exceed 3.5 tonnes are used only to cover short distances.

This provision may favour one or more operators vis-à-vis others. It creates additional costs and administrative burden for those who may not benefit from this exemption.

No recommendation: No such licences are required by EU legislation, nor are any complaints known from those operators under the obligation to get such a licence, against the excepted ones. Also, information obtained through research indicates that in some European countries the relevant provisions are the same. Thus, for example, in the UK, operators do not need a licence if they carry out road freight transport using vehicles that have an authorised maximum gross tonnage under 3.5 tonnes.

10

GO No. 27/2011 on road transport, as further amended and supplemented

Art. 25

National and international road transport for hire or reward can be carried out only with vehicles registered in Romania. This provision applies only to undertakings established in Romania.

Discrimination

The provision is in line with Art. 5 of EC Regulation No. 1071/2009.

The restriction is reasonable given that a transport operator needs to use a vehicle that is registered in an EU Member State in order to enable inspection of its record. Also, there is no European electronic database, accessible by law enforcers, related to the record of vehicles used for freight transport. The absence of a European electronic database makes a compelling case for the registration of vehicles in the country where the transport operator is established.

These requirements may prevent hauliers to buy cheaper vehicles from abroad as they face the extra burden of mandatory registration with ARR.

No recommendation.

11

Law No. 92 of 10 April 2007 on local public transport services

Art.1 para.(4), Art 17 para. (1)

Public authorities shall consult representatives of trade associations in order to establish the strategies regarding local public transport, ways of functioning of this service and for elaborating and approving local norms and regulations.

Consultation

Public authorities consult representatives of trade associations in order to gain from their experience and take appropriate decisions to ensure the good quality of public transport services for consumers.

These provisions may facilitate exchange of sensitive commercial information among competing undertakings which may lead to collusive behaviour in the market.

No recommendation.

12

Law No. 51 of 8 March 2006 on public utility services

Art. 14 para. (4) in conjunction with Art. 17 para. (1), para. 4 & para. (5)

The Regulatory Authority of Public Transport Community Services – ANRSC – shall consult professional associations of road transport operators and authorised carriers in order to operate its competences. Professional associations of road transport operators and authorised carriers appoint representatives in the Consultative Council which is part of ANRSC.

Consultation

Public authorities consult representatives of trade associations in order to gain from their experience and take appropriate decisions to ensure the good quality of public transport services for consumers.

These provisions may facilitate exchange of sensitive commercial information among competing undertakings which may lead to collusive behaviour in the market.

No recommendation.

13

Law No. 265/2008 of 7 November 2008 on the management of traffic safety on road infrastructure and Order No. 358 of 4 May 2012 on the approval of Guidelines related to measures to improve traffic safety on road infrastructure, implementing Directive No. 2008/96 /EC on road infrastructure safety management

Art.11 para. (2) and para. (3) from Law and 13 para. (1) and (2) from Order

Auditors/inspectors of road safety are professional individuals in charge of verifying road construction projects from a safety point of view. They also periodically verify existing road infrastructure. The appointment of auditors/inspectors of road safety is made for territorial areas and gives preference to individuals residing in those areas or close to those areas where the auditor/inspector needs to be appointed.

Discrimination/Entry barriers

This restriction may be necessary in order to make the deployment of auditors/inspectors more efficient.

These provisions create an entry barrier which may be unnecessary (reduces the number of operators) or discriminatory (favours one or more operators vis-à-vis others).

Abolish: appointment of auditors/inspectors of road safety should not be linked to the domicile of the auditor/inspector.

14

Law No. 92 of 10 April 2007 relating to local public transport services

Art. 1

Only authorised transport operators may operate local public transport of goods.

Authorisation

This authorisation may be necessary in order for public authorities to have a record of all public transport operators. Indeed, public authorities have exclusive competence in relation to the establishment, organisation, co-ordination and financing of local public transport.

The requirement to obtain an authorisation creates an entry barrier which reduces the number of operators.

No recommendation.

15

GO No. 27/2011 on road transport, as further amended and supplemented

Art. 49

National own-account road transport can be carried out only by vehicles registered in Romania. This provision applies only to undertakings established in Romania.

Discrimination

The registration requirement is justified in order to subject vehicles to regular inspections. Absence of a European electronic database for vehicles that can be accessed by law enforcers makes a compelling case for registration at national level.

The registration requirement may increase costs for hauliers established in Romania which are forced to register vehicles acquired abroad even when those vehicles are used for transport in their own interest.

No recommendation.

16

MoT No. 181/2008 on the approval of Regulations concerning the conditions for installation, repair and verification of tachographs and speed limitation devices, as well as for the authorisation of the economic operators carrying out such activities – RNTR 8

Art. 24 lit. (m)

Those authorised to carry out the activity of installation, repair and/or verification of tachographs and speed limit devices must use only spare parts provided by the manufacturer of tachographs and speed limit devices or by the supplier appointed by the manufacturer.

Exclusivity

There is no official recital for this particular provision. The objective of the provision is to ensure road safety. A speed limitation device is the equipment used to limit the top speed of a vehicle. A tachograph is a device intended for installation in road vehicles to display, record, print, store and output automatically or semi-automatically details of the movement, including the speed of such vehicles, and details of certain periods of activity of their drivers. A tachograph, moreover, provides vital information to road traffic inspection regarding the transport operators’ compliance with the regulations, mainly their observance of working hours and possible overwork in road transport. Strict adherence to these regulations is stressed as a crucial factor in road safety and accident prevention. Taking into consideration the importance of these devices for road safety, it is mandatory to eliminate every possibility of their manipulation by the operators. If the market for spare parts were to be opened, there would be huge possibilities for manipulation of these devices. Moreover, even if the tachograph spare parts aftermarket were opened, its impact on competition and on the transport operators’ costs would be reduced as tachographs generally have a longer life span than that of the trucks and the spare parts for the tachographs aftermarket volume would be small.

This obligation is likely to foreclose other producers of these spare parts. It may also raise costs for operators.

No recommendation: Even though this restriction is likely to foreclose other producers of spare parts for tachographs and speed limit devices, and also raises costs for freight hauliers, its purpose is to promote road safety and the restriction is proportional to the objective served.

17

GO No. 43/1997 on the road regime, as further amended and supplemented

Art. 411 para. (1)

Managers of national roads apply tariffs additional to the RO vignette for authorising access to the national road network, for vehicles registered in a foreign country, not member of the EU. These tariffs are established during bilateral agreements between Romania and third countries.

Discrimination

This restriction is justified for reasons of public interest. During bilateral talks with third countries, Romania negotiates these additional tariffs together with the number of authorisations which are granted to third-country hauliers, taking into consideration the interests of Romanian hauliers.

This provision authorises Romania to charge differential tariffs to third-country hauliers as opposed to Romanian and EU hauliers. It may therefore lead to discriminatory treatment of third-country hauliers.

No recommendation.

18

MoT No. 1513/2014 for approving the methodological norms on the allocation and use of ECMT permits for international cargo road transport in the year 2015

Art. 10 para 2 lit. (d).

The allocation of CEMT authorisations is carried out by the CEMT Commission. The CEMT Commission includes among others, two representatives of unions and professional freight transport associations. CEMT authorisations are limited in number. The procedure for the allocation of CEMT authorisations is not included in a law but only in orders which are renewed every year. The allocation of CEMT licences is done within the OECD. The allocation of CEMT authorisations refers to international freight transport with countries which are not EU Member States.

Information exchange/Decision

The limited number of CEMT licences is established at international level by the International Transport Forum thus, this issue is outside the scope of this project.

The Romanian allocation system is fair, transparent and non-discriminatory. Licences are allocated in accordance with an algorithm. Any transport operator may participate as an observer of the allocation process. The allocation criteria are subject to regular changes and do not necessarily need to be included in a law.

Allocation of CEMT authorisations may discriminate against some hauliers vis-à-vis others. The methodology established for the allocation of CEMT authorisations may be subject to regular changes given that it is not included in a law. The current system may lead to legal uncertainty. It may also lead to an exchange of strategic information among hauliers such as those related to vehicle fleets, etc.

No recommendation.

19

GO No. 27/2011 on road transport, as further amended and supplemented

Art. 73 para. (1)

Transport operators are obliged to display on vehicles a plate containing information related to the dimensions and maximum weight authorised for the vehicle.

The total cost generated by the obligation to display such a plate on vehicles is approximately EUR 60/vehicle. If the vehicle has a trailer and/or a semi-trailer, it is necessary to have a plate for each, besides the plate for the vehicle (the vehicle, trailer and semi-trailer are measured separately), thus multiplying the EUR 60 charge for each additional trailer or semi-trailer. Approximately EUR 50 of this sum corresponds to the fee charged by the Romanian Automotive Register for measuring the vehicle’s dimensions. The balance corresponds to the price of the plate.

General levy

In Romania as well as in Europe, heavy goods vehicles must comply with certain rules on weights and dimensions for road safety reasons and to avoid damaging roads, bridges and tunnels. These rules are established by European Directive No. 96/53 and Romanian legislation. The obligation to display a plate is required by law enforcers in order to verify the compliance of the transport operators with the abovementioned legal provisions. Art. 6 of Directive No. 96/53/EC authorises Romania to opt for a regulatory system whereby information related to the vehicle dimensions and maximum weight can result also from a document issued by the competent authorities of the Member State in which the vehicle is registered or put into circulation.

The requirement to display on vehicles a plate containing information related to the dimension and maximum weight authorised for the vehicle may lead to a rise of costs for national operators compared to foreign operators.

We recommend repealing this provision: The objective of the provision to verify the compliance of the transport operators with the rules on weights and dimensions can be achieved through documentation such as the vehicle identity card or the periodical technical inspection certificate, which should be carried by the vehicle driver. The vehicle identity card is the single document through which the vehicle is registered and put into circulation. It is issued by the Romanian Automotive Register and contains

the same headings and information as that appearing on the plate (the manufacturer’s name, identification number, dimensions and weights of the vehicle). The transport operator should keep the original vehicle identity card or a certified copy of it in case the operator is not the owner of the vehicle (for instance, in the case of a lease). The periodical technical inspection certificate is issued automatically and free of charge by the Romanian Automotive Register or by a body authorised by the Romanian Automotive Register to carry out periodical technical inspection. It is issued after the performance of the mandatory technical inspection that can also include measuring the vehicles. The periodical technical inspection certificate does not currently contain the information referring to the vehicle’s dimensions and weight, but it can be inserted by the issuer. Both the vehicle identity card and the periodical technical inspection certificate should also be kept for trailers and semi-trailers. Carrying an identity card

or a periodical technical inspection certificate by the vehicle driver would be in line with EU legislation regarding the vehicle’s dimensions and maximum weight.

20

Emergency Government Ordinance (EGO) No. 195/2002 regarding traffic on public roads, as further amended and supplemented

Art. 122

Only operators authorised by MoT are able to carry out the following activities:

• periodic technical inspections of vehicles:

• training of drivers for vehicles and agricultural/forestry tractors and trams;

• repairing, adjusting, reconstructing and dismantling of vehicles

Authorisation

The first two authorisation requirements are reasonable. The first one is necessary to ensure public safety and is in accordance with EU legislation (Directive No. 2009/40/CE). The second one is necessary to ensure the quality of the training course and, thus public safety, and it is in accordance with EU legislation (Directive No. 2003/59/CE).

Regarding the last indent, the requirement to obtain an authorisation in order to carry out the activity of repairing, adjusting, reconstructing and dismantling of vehicles is based on national legislation and not on EU legislation. There is no official recital for this particular provision. However, the objective of the provision seems to be public safety on roads, since garages need infrastructure, technical equipment, knowledgeable personnel, etc.

Legal frameworks from other European countries such as France, the UK and Spain, do not require an authorisation in order to run a vehicle repair garage.

In France, starting up a garage is subject to proving the professional qualifications of the person who leads the activity of the operator. Such a person must possess a certificate of professional competence, a certificate of professional studies, a degree or the equivalent of a degree issued by a national directory of professional certifications, or have three years of relevant experience working in the European Economic Area.

The authorisation requirement reduces the number of operators and raises administrative costs.

No recommendation: The purpose of the first two restrictions is to ensure public safety and quality of the training course. Thus, the restrictions seem proportional to the objective served. Moreover, they are in accordance with EU law.

Abolish the last intent: The appropriate quality of the repairs carried out by the garages could be ensured by requiring the manager of the garage to possess a certificate of professional studies or a degree issued (for instance by the RAR) in case the manager does not have a certificate of professional studies. Also, the employees directly involved in repairing, adjusting, reconstructing and dismantling vehicles should have a certificate of professional studies.

Also, French legislation establishes the obligation of the garages to be registered in the National Register of Professions. In order to be enrolled in the abovementioned register, the manager of the garage must have attended a preparatory course that can be organised by the regional Chambers of Craft.

For the registration, the manager of the garage must lodge the following documents: i) a statement of intent for creating the garage, ii) a statement concerning the criminal record of the manager iii) the certificate granted by the Chamber of Craft, attesting the passing of the preparatory course, iv) a copy of the identity card of the manager.

In the UK, it seems that there is no obligation for the manager of a garage or for the employees directly involved in repairing vehicles to pass an exam or to have a diploma in order to prove their professional qualification. For the customers to be convinced when checking if a garage is reputable, garages join a trade association with codes of practice that have been approved by the Trading Standards Institute or a trading standards approved scheme such as “Buy With Confidence”. The membership inspection regime to which garages voluntarily submit ensures they are monitored in terms of their premises, equipment, technical training, customer care and operation of the code of practice and to their individual ability to quickly remedy any problem, as it arises, to their customers’ satisfaction.

Moreover, the policymakers’ objective – public safety on roads – is supposed to be achieved through periodic technical inspection. According to G O No. 81/2000 all vehicles and trailers must be inspected at regular intervals by the Romanian Automotive Registry or by bodies authorised by the Romanian Automotive Registry. The Ordinance provides a basis for checking that vehicles throughout Romania are in a roadworthy condition and meet the same safety standards as when they were first registered.

Therefore, no authorisation should be required for the garage to operate. Instead, the garage should be checked by the Romanian Automotive Registry in order to prove that its manager possess a certificate of professional studies or a degree issued by the Romanian Automotive Registry and its employees have certificates of professional studies.

21

GO No. 43/1997 on the road regime, as further amended and supplemented

Art. 58

MoT and the Ministry of Regional Development and Public Administration (MRDPA) develop regulations mandatory for natural and judicial persons who own roads open to public traffic. Both institutions should respect regulations regarding the autonomy of local government and ownership.

Co-regulatory regime

CNDNAR states that there is no co-regulatory regime given that MoT manages the national road whereas MRDPA manages regional and municipal road.

Overlapping of competence between several institutions may lead to legal uncertainty and increase administrative costs for operators.

No recommendation.

21

MoT No. 733/2013 for the approval of norms regarding driving schools and driving school instructors

Art. 2

Only operators authorised by MoT can carry out training in the road transport sector.

Authorisation

This authorisation is reasonable and aims at ensuring proper training based on the accomplishment of experience as well as fulfilment of safety standards.

The requirement to obtain an authorisation creates an entry barrier which reduces the number of operators.

No recommendation.

23

MoT No. 640/2007 for the approval of Norms regarding training and professional attestation of drivers for the carriage of dangerous goods by road, with further amendments

Art. 1 para. (2)

Only operators authorised by MoT can carry out the activity of training and further training of the personnel operating in the field of road freight transport of dangerous goods.

Authorisation

The authorisation is reasonable to ensure the quality of the training course. The conditions that shall be fulfilled by operators are reasonable and refer to their good repute, material resources and professional competence.

The requirements to obtain an authorisation create an entry barrier which reduces the number of operators.

No recommendation

24

MoT No. 597/2003 on the approval of Norms establishing the conditions for obtaining the professional attestation by drivers carrying out road haulage with vehicles whose maximum authorised tonnage exceeds 3.5 tonnes, etc.

Art. 4 para. (2) from the Norms

Only operators authorised by MoT can carry out the activity of training of personnel operating in the field of road transport with vehicles whose maximum authorised gross tonnage exceeds 3.5 tonnes,etc. Romania currently gives different training modules to transport operators of vehicles which do not exceed 3.5 tonnes from those which exceed 3.5 tonnes. The former modules do not include training on how to carry dangerous goods.

Authorisation

The authorisation is reasonable to ensure the quality of the training course. The conditions that shall be fulfilled by operators are reasonable and refer to their good repute, material resources and professional competence.

The requirements to obtain an authorisation create an entry barrier which reduces the number of operators.

No recommendation.

25

MoT No. 42/2006 on the conditions for the initial and continuous professional training of certain categories of drivers, as further amended

Art. 5 para. (2)

Only operators authorised by MoT can carry out the activity of training and further training of the personnel operating in the field of road transport.

Authorisation

The authorisation is based on point 5 of Annex 1 of Directive No. 2003/59/EC. It ensures quality of training.

The requirements to obtain an authorisation create an entry barrier which reduces the number of operators.

No recommendation.

26

MoT No. 761/1999 on the designation, training and professional attestation of persons who permanently and effectively lead road transport activities, etc.

Art. 3 para. (2)

Only operators authorised by MoT can carry out the designation, training and attestation of persons who permanently and effectively lead road transport activities.

Authorisation

This authorisation is in line with Art. 8 (4) and (5) of EC Regulation No. 1071/2009. It ensures quality of training.

The requirements to obtain an authorisation create an entry barrier which reduces the number of operators.

No recommendation.

27

Government Decision No. 470/2014 for the approval of Norms regarding the origin, movement and sale of timber materials, storage regime of timber materials and regime of the round timber processing plants, as well as of measures for the implementation of Regulation (EU) No. 995/2010 laying down obligations for operators who place timber and timber products on the market

Art. 9 para. (1) of Norms

The waybills for the transport of wood materials are to be printed only by the Imprimeria Nationala SA – a State-owned company. In order to purchase these waybills, operators must provide to Imprimeria Nationala some documents, including a certificate issued by the Regional Forest Guard attesting the right of the operator to trade wood. Drivers need to have with them the waybills when transporting wood materials. The waybills for the transport of the wood materials are documents under special regime, provided with specific security elements. They are printed in blocks with 150 sheets, consisting of 50 sets of three sheets each, carbonless copy paper, with the security elements applied on the first copy. The characteristics of the security elements contained in the waybills are established on the basis of a protocol with the Imprimeria Natională. The characteristics of the security elements are not public. An Integrated Informational System of Tracking Wood Materials (SUMAL) was established for the tracking of the traceability of timber harvested from the woods and for providing statistical information.

Exclusive rights/limitation of number of suppliers

The objective of the provision is to prevent illegal deforestation and smuggling of Romanian wood.

This provision sets up a monopoly over the printing forms of waybills related to wood. It may therefore lead to higher costs for operators who sell and transport wood material and are required to purchase the waybills.

Modify provision: We recommend opening the market. The monopoly position held by Imprimeria Națională on printing waybills market is unable to lead to the achievement of the policymakers’ objective, namely to prevent illegal deforestation and smuggling of Romanian wood. Instead, this monopoly leads to higher costs for the operators that transport wood material. Even if the Romanian legislation should further provide the obligation to obtain specific waybills for transport of wood material, Romania must liberalise the provision of the printing service to all companies aiming to carry out such activity. Also, the waybills do not need to be printed with security elements as the unique code generated by the application SUMAL attests to the legal origin of the transported timber.

The waybill is issued by the operator which sells and transport wood material at the transport origin point. The operator has to upload the standardised information in the application SUMAL, online or using any electronic terminal that runs this application, which necessarily must exist at the transport origin point. The information uploaded refers among others to the series and number of the waybill for the transport of the wood materials, the point of unloading of the timber, the vehicle registration number, the species, type and volume of the timber. After receiving the information, SUMAL generates a unique code, as well as the date, hour, minute and second of the registration. The law requires writing in the waybill the unique code generated by SUMAL. Also, the unique code, as well as the date, hour, minute and second of the registration are recorded in the Register of input-output wood materials kept by the operator. The unique code attests the legal origin of the transported timber.

28

Government Decision No. 470/2014 (same as above)

Art. 21 from the Norms

The record of incoming-outgoing wood material is to be printed only by the Imprimeria Nationala SA – a State-owned company. In order to purchase this record, transport operators must provide to Imprimeria Nationala some documents, including a certificate issued by the Regional Forest Guard attesting the right of the operator to trade wood. Operators need to hold the record of incoming-outgoing wood material at their headquarters. The Registers of input-output wood materials are documents under special regime that are printed in blocks of 100 sheets. The legal provisions do not stipulate whether the registers contain security elements.

Exclusive rights/limitation of number of suppliers

The objective of the provision is to prevent illegal deforestation and smuggling of Romanian wood.

This provision sets up a monopoly over the printing forms of waybills related to wood. It may therefore lead to higher costs for operators who sell and transport wood material and are required to purchase the waybills.

Modify provision: We recommend opening the market. The monopoly position held by Imprimeria Națională on printing waybills cannot achieve the policymakers’ objective, namely to prevent illegal deforestation and smuggling of Romanian wood. Instead, this monopoly leads to higher costs for the operators who transport wood material. Even if Romanian legislation should further provide the obligation to obtain specific waybills for transport of wood material, Romania must liberalise the provision of the printing service to all companies aiming to perform such activity. Also, the waybills do not need to be printed with security elements as the unique code generated by the application SUMAL attests the legal origin of the transported timber.

29

Order of the Minister of Economy (OME) No. 971/2014 for the approval of the list of bodies designated to issue the agreement certificates and the certificates of conformity with the prototype according to the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR), etc.

Annex to Order

Only one undertaking, named IPROCHIM, is on the list of bodies designated to issue certificates of conformity with respect to superstructures fitted on vehicles transporting dangerous goods as well as packaging of dangerous goods. The main shareholder of IPROCHIM is the Ministry of Economy with 72.99% of shares.

The Order of the Minister of Economy, Trade and Business Environment (MoE) No. 2737/2012 on the procedure related to the appointment of institutions performing checks on superstructure built on top of vehicles transporting dangerous goods as well as packaging sets the conditions which must be fulfilled by operators in order to carry out the activity of checking on superstructures built on top of vehicles transporting dangerous goods as well as packaging applicable to the freight transport of such goods. Among these conditions there are the following: operators should be registered with the National Trade Registry and have their headquarters in Romania.

As of today, only one operator has been authorised to carry out this activity, IPROCHIM.

The Ministry of Economy is the authority which authorises bodies designated to issue certificates of conformity.

Authorisation

Actual conflict of interest leads to higher costs for transport operators who shall obtain a certificate of conformity with respect to superstructures fitted on vehicles transporting dangerous goods as well as packaging of dangerous goods.

No recommendation: the conditions for authorising the performance of this activity set in MoE Order No. 2737/2012 are clear. Moreover, those operators whose application was rejected may always appeal the rejection decision before a competent court.

30

GO No. 43/1997 on the road regime, as further amended and supplemented

Art. 21 para. (5)

The manager of a national road (e.g. the municipal council) which crosses a municipality can impose taxes in addition to those established by the Government (RO vignette). Payment of this additional tax is normally done directly at the municipality by the truck driver.

Co-regulatory regime

The main objective of local taxes is to regulate local traffic and to avoid congestion in municipalities. Also, taxes are aimed at ensuring infrastructure investment and maintenance and thus a high level of road quality and safety providing drivers with an appropriate network of national, county and local roads.

Additional taxes may increase the costs of operators. According to the industry, these taxes are not levied in a transparent manner and may lead to uncertainty and discrimination of some operators vis-à-vis others.

Make legal provisions more transparent and the tax payment system more efficient: We do not recommend abolishing the local road taxes. However, we recommend that the Romanian government should introduce an appropriate legal framework in order to ensure the transparency and efficiency of the

payment system for local road taxes. Local authorities should also find a way to ensure transparency of the tax requirements, notably by making the application of these taxes more transparent for hauliers. County and local councils need to publish these charges and make them easily accessible since they are likely to apply not only to local operators, but also to operators coming from other regions of Romania, as well as from abroad. In particular, the information related to local taxes should also be made available in English, in order to ensure easy access for foreign operators.

To guarantee transparency of local taxes, a good measure might be to publish all road taxes on the websites of the Ministry of Transport, and Ministry of Regional Development and Public Administration. Also, an online payment system of taxes might be introduced through a new legal framework. An efficient payment system might involve payment with mobile phones and/or through wireless devices, as, for example, is currently implemented

in cities such as London and Milan – but also in Romania, e.g. for the toll bridge at the Fetești-Cernavodă station on the A2 București- Consţanta highway, introduced by Emergency Government Ordinance No. 8/2015. There, the enforcement of tax payment is achieved through a closed-circuit television (CCTV) system, which records the plate of each vehicle entering and exiting the city centre perimeter.

31

MoT No. 42/2006 on the conditions for the initial and continuous professional training of certain categories of drivers, as further amended

Art. 1 para. (1) and para. (2)

In order to carry out the activity of road transport of goods, drivers must obtain a certificate of professional competence and a certificate showing a continuing professional qualification.

Certification

The provision is in line with Art. 6 and 7 of Directive No. 2003/59/EC on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers.

This certification is reasonable to ensure public safety.

The certification requirement may represent a barrier to entry into the marketplace.

No recommendation.

32

MoT No. 1214/2015 on the approval of norms establishing the conditions for obtaining a professional attestation by road transport staff.

Art. 1 from the Norms (Annex No. 5)

In order to carry out the activity of road transport of goods with vehicles exceeding an applicable length or weight limits, so-called abnormal load transport, drivers must obtain a certificate of professional competence.

Certification/Discrimination

There is no official recital for this particular provision. However, it seems that the objective of the provision is to ensure public safety on the roads. This provision is based on national legislation and is not established in accordance with EU law.

The professional certificate for abnormal load transport affects drivers and operators, causing less flexibility in replacing the drivers for these types of transport. For instance, an operator needs a driver with an additional certificate in order to transport goods with abnormal vehicles. Also, the provision increases the administrative burden of road transport operators. Moreover, the provision applies only to the drivers who carry out transport operations with vehicles registered in Romania. Therefore, besides the additional cost and administrative burden, it discriminates in favour of foreign transport operators with drivers operating vehicles registered in other countries.

Abolish: Romania seems to be the only EU country requiring an abnormal load transport certificate. Professional qualification can be addressed by considering the training undertaken for the issuance of the certificate certifying the initial qualification.

33

MoT No. 980/2011 approving the Methodological Norms on the application of the provisions regarding the organisation and performance of road transport and related activities established by the Government Ordinance No. 27/2011 on road transport, as further amended and supplemented

Art. 20 from the Norms

Road transport operators must obtain a copy of the transport licence (Community licence) for each vehicle of their fleet, which must be renewed annually, although the road freight transport licence issued to transport operators has a validity for a period of 10 years. The copy of the Licence cannot be transferred, i.e. it applies only to one registered vehicle. In accordance with the Order No. 2156/2005, a copy costs 260 lei/year, approximately Euro 60. A copy of the Community licence must be carried on the vehicle on all journeys and must be presented to any enforcement official on request. Each copy has the registration number of the vehicle and cannot be used for any other vehicle of the same transport operator’s fleet.

Authorisation

The imposition of such an obligation may be justified in order to permit ISCTR inspectors to verify the compliance of transport operators with the provisions regarding authorisation.

Information obtained through research indicates that in some European countries the validity of the copy of the Community licence is the same as the validity of the licence. For example, in Estonia, a copy of the licence is issued for 10 years if the applicant does not require it for a shorter period, and not for longer than the term of validity of the Community licence (10 years). In the UK and Spain the Community licence is issued for a five year period, as well as the copy of the Community licence, and it is not specific to one vehicle – it does not contain the vehicle registration number. Also, in Spain a copy costs EUR 5.99 for five years.

The requirements to obtain a copy of the licence is in line with Art. 4 of EC Regulation No. 1072/2009. However, the fact that the copy costs approximately EUR 60/vehicle/year and that it applies to only one registered vehicle (i.e. it cannot be used for others vehicles which are part of the operator’s fleet) increases costs for hauliers established in Romania.

Make provision clearer: The obligation to carry a copy of the transport operator’s licence does not need to be subject to such high costs. There is no need to impose annual renewal, where the licence is issued for a 10-year period. Further, there is no reason to impose the vehicle’s specific copies, since different vehicles may belong to the same licence owner.

The licence and the copy, should be issued at the same time and it shall be made available for the same period as the duration of the licence to which it refers, i.e. 10 years. The costs of the licence should be re-evaluated.

Sector: Rail transport

No.

No and title of regulation

Article

Thematic category

Brief description of potential obstacles

Keyword

Policy Maker’s Objective

Harm to competition

Recommendation

1

Government Decision No. 1696/2006 approving the Regulation on railway infrastructure capacity allocation

Art. 4

Railway freight transport

MoT may grant special rights to CFR SA, the infrastructure administrator, with respect to capacity allocation where it is indispensable to ensure good execution of public railway transport services or for the efficient use of the infrastructure. The Government Decision states that the conditions to obtain these special rights will be established under Ministerial Order. However, the referenced Ministerial Order has never been published. This provision is likely to be at odds with Art. 7(1) and (2) of the Rail Recast Directive No. 2012/34; these European provisions require independence of the essential functions of an infrastructure manager from its service operating activities.

Special rights discrimination

This provision is meant to transpose ARt. 5 Directive No. 95/19/EC and aims at ensuring adequate public services or efficient use of infrastructure capacity. There is no official justification for not publishing the Order mentioned in Art. 4 para. 2.

The conditions for the exercise of these special rights are unclear. CFR SA may take undue advantage of these special rights to favour CFR Marfă, which is under the same ownership of CFR SA, over CFR Marfă competitors.

Make provision clearer: the provision should be redrafted clarifying i) what these special rights are and ii) in which instances they can be triggered by the infrastructure manager to allocate capacity. The Order of the Ministry of Transport settling the conditions for granting CFR SA special rights to allocate public rail way infrastructure should also be published in the Official Gazette.

2

Government Decision No. 1696/2006 approving the Regulation on railway infrastructure capacity allocation

Art. 7 para. 2

Railway freight transport

Requests of infrastructure capacity allocation will be subject to a financial and technical analysis by CFR SA. CFR SA has the right to reject a route allocation requested by railway operators when statistics related to freight transport operating on that route show a use of under 20% compared to the timetable in force. The right and the threshold as such are also mentioned in CFR SA Network Statement – Art.7(1)(b) of Annex XV.

Restriction discrimination

This provision transposes art. 27(2) of Directive No. 2001/14/CE, which states that the railway infrastructure manager is entitled to optimise the use of infrastructure and may terminate a route allocation in case of under-performance of a railways operator’s utilisation rate compared to the operational plan. This provision therefore enables CFR SA to make efficient and optimal use of its infrastructure capacity. This provision effectively deals with minimising sub-optimal use of capacity and is legitimate if it is spelled out in the Network Statement. Similar provisions exist across the EU.

This provision is unclear. Any refusal to access the railway infrastructure by CFR SA may represent a serious limitation to market entry, unless objectively justified. Further, CFR SA may try to favour CFR Marfa over its competitors given that these two companies, although separate, belong to the same holding group under MoT.

Make provision clearer: Railway undertakings must be provided with guidelines, which should be included both in the Regulation on Railway Infrastructure Capacity Allocation and in CFR SA Network Statement, describing with detail i) instances that can be accounted to trigger the 20% under-performance threshold by the infrastructure manager as well as ii) instances which fall outside the application of this threshold since they cannot be placed under the responsibility of the railway operator. These instances should also be quantified to the greatest possible extent in order to facilitate calculation of the under-utilisation rate by railway enterprises. These clarifications must be reflected in the information to be presented by the railway enterprise in its operational timetable plan.

3

Order No. 290/2000 of Ministry of Transport on technical acceptance of products/services for use in building activities, modernisation, maintenance and repair of railway infrastructure and rolling stock for rail and metro

Art. 1 para. 1 & para. 2

Railway freight transport

Only authorised enterprises are allowed to provide products and services to be used for building, modernising, maintaining and repairing the railway infrastructure and rolling stock. The authorisation is issued by the National Rail Transport Authority (AFER).

Authorisation

This authorisation is justified for safety reasons. This is a common requirement across the EU and the authorisation conditions are reasonable. There is no shortage of suppliers for these products and services given that every enterprise which has fulfilled the authorisation conditions has received an authorisation from AFER. However, a new piece of legislation is to be issued as some provisions (other than Art. 1 para 1&2) are not in line with Romanian transport legislation transposing EU Directives.

This regulatory entry barrier may unnecessarily reduce the number of operators and raise administrative costs. Further, it may discriminate against one or more operators vis-à-vis others.

No recommendation.

4

Order of Ministry of Transport No. 535/2007 on the approval of procedures related to granting the licence and safety certificate necessary to carry out rail transport services in Romania

Art. 1 para. 3

Railway freight transport

A transport licence and a safety certificate are needed to carry out railway services. The conditions for obtaining the licence and the safety certificate can be found in Annex 1 and 2 of the MoT. They mainly refer to honourability, financial capacity, professional competence and civil liability coverage. Rejections may be challenged in court under Art. 28.

Authorisation

All the required conditions are in line with Articles 4(3) and (5) of Directive No. 95/18/CE on the licensing of railway enterprises as well as with Articles 2(1), (8) and (10) of Directive No. 2004/49/CE on the safety of EC railways. These are common requirements across the EU.

This regulatory entry barrier may unnecessarily reduce the number of operators and raise administrative costs. Further, it may discriminate against one or more operators vis-à-vis others.

No recommendation.

5

Government Ordinance No. 89/2003 – on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, with further amendments

Art. 5 para. 1

Railway freight transport

Annex 2 recital 2 sets the services to which access must be granted by the infrastructure administrator. These include access to a power supply system, fuel supply, freight terminals, etc. The infrastructure administrator can reject a request for access to the facilities mentioned in Annex 2 of the GO if there are alternative options in the marketplace. These “alternative options” are not specified.

Exclusive rights discrimination

The provision transposes Art. 5 of Directive No. 2001/14/CE and is justified for reasons of efficient allocation of capacity.

This provision is unclear. It may be used by the infrastructure administrator CFR SA to favour CFR Marfă over its competitors.

Make provision clearer: A definition of “viable alternative” is necessary to provide further guidance to railway undertakings. This definition should be made available in the Network Statement, in accordance with Art. 27 and Annex IV of Directive No. 2012/34. Such a definition can be found, for example, in Section 2.23 et seq. of the UK Guidance on Appeals to Office of Rail Regulation under the Railways Infrastructure.

6

Order of Ministry of Transport No. 340/1999 on the approval of rules for granting authorisations to railways stations which are in operation or for building, repairing or modernising such stations

Art. 2 para. 1

Railway freight transport

Owners of railway stations must obtain an authorisation which proves that the station fulfils the technical conditions required to ensure safety of railway transport. This authorisation is issued by AFER. The conditions required for the authorisation are stipulated in the Annex of the Order. They refer mainly to technical issues and training of employees.

Authorisation

This authorisation is in line with the provisions of Directive No. 2004/18/CE on the licensing of railway enterprises as well as with Directive No. 2004/49/CE on safety on the Community’s railways. The provision enables a public authority to verify that the working station belonging to rail operators has the minimum facilities required for operating public transport.

This regulatory entry barrier may unnecessarily reduce the number of operators and raise administrative costs. Further, it may discriminate against one or more operators vis-à-vis others.

No recommendation.

7

Order of Ministry of Transport No. 410/1999 concerning the authorisation for testing and certifying railway products used in construction activities, modernisation, operation, maintenance and repair of rail infrastructure and rolling stock, railway and subway

Art. 1 & Art. 6, Art. 4 align 2 of Annex 1 of Order No. 410/1999

Railway freight transport

In order to verify and monitor rail transport safety, the testing of railway products shall be done by authorised laboratories. The authorisation is issued by AFER. The conditions to be met so that the authorisation can granted are supposed to be mentioned in the Annexes of Order No. 410/1999. However, these annexes are not published but can be requested from AFER.

Authorisation

Guidance on how to obtain an authorisation can be found on the AFER website. This authorisation is a common requirement across EU countries.

This lack of transparency may lead to unclear conditions for operators and raise administrative costs.

Make regulatory framework more transparent: Annexes of Order No. 410/1999 must be published in order to make all the authorisation requirements known to interested operators. To this extent, they should be published both in the Official Gazette and on the AFER website.

8

Order of Ministry of Transport No. 410/1999 concerning the authorisation for testing and certifying railway products used in construction activities, modernisation, operation, maintenance and repair of rail infrastructure and rolling stock, railway and subway

Annex 1 Art. 4 (2)

Railway freight transport

In order to ensure safety of rail transport, testing of railway products shall be done only by authorised laboratories. The authorisation is issued by AFER for a 10-year period and is subject to a mandatory renewal every two years, at the end of which authorised independent testing laboratories need to show their ability to fulfil all the authorisation requirements once again.

Authorisation

This authorisation is a common requirement across EU countries justified for safety reasons. However, the two-year renewal is not standard practice in EU Member States. Art. 10 of EC Regulation No. 402/2013 establishing common safety standards for testing railway products allows Member States to establish an authorisation renewal not exceeding five years.

The two-year mandatory renewal represents an unnecessary administrative burden for independent testing laboratories, as other EU countries (e.g. Italy) require renewal after 5 years. This unnecessary regulatory burden reduces the incentive for independent testing laboratories to invest resources for entering into or staying in the business, since there is a risk that their authorisation will not be renewed at the end of the two year period.

Create appropriate legal framework: the renewal should be extended to cover a period not to exceed 5 years, in line with Art. 10 EC Regulation 402/2013. Introducing a longer renewal period may increase market entry and create more appetite for investment as well as for competition with respect to prices and quality of rail product testing services.

9

Order of Ministry of Transport No. 410/1999 concerning the authorisation for testing and certifying railway products used in construction activities, modernisation, operation, maintenance and repair of rail infrastructure and rolling stock, railway and subway

Annex 1 Art. 5 and Art. 6

Railway freight transport

The conditions to be met in order to obtain the authorisation for testing and certifying railway products are set in Annexes No. 1-3. Requests can be submitted only by undertakings having Romanian legal personality.

Authorisation discrimination

There is no justification for requesting enterprises to have Romanian legal personality. However, CFR SA claims there is no discrimination.

Competitors with a legal entity registered abroad may be kept out of the market.

Amendment: the legal requirement should be for the operators to be registered in the EU, ensuring alignment with the Single European Rail Area objectives and the provisions of the Technical Pillar of the Fourth Rail Package.

10

Emergency Government Ordinance No. 12/1998 on freight railway transport and on the reorganisation of the Romanian National Railways Company

Art. 1 para. 9

Railway freight transport

In order to operate as a railway transport operator, the company must have Romanian legal personality and needs to obtain a licence. This licence is issued by MoT. The conditions to be met for the licence are stipulated in Art. 2 and in MoT No. 535/2007, as modified by Order No. 884/2011 and Order No. 1502/2014.

Licence/discrimination

With respect to the licence requirement, the conditions to be met are in line with the provisions of Articles 4-9 of Directive 2004/18/CE on the licensing of railway enterprises as well as with Articles 1 and 8 of Directive No. 2004/49/CE on the safety of EC railways. Paragraph 2.2.2. of the Romanian Network Statement provides that there should be no discrimination against foreign operators. However, CFR SA claims there is no discrimination.

This provision may discriminate against foreign companies.

Amendment: the legal requirement should be for the operators to be registered in the EU, ensuring alignment with the Single European Rail Area objectives and the provisions of the Technical Pillar of the Fourth Railway Package, mainly the ones concerning the new requirements of the vertical integrated undertakings (VIU) (the proposal COM (2013) 29 for a Directive to amend Directive No. 2012/34/EU, the new Art. 7 as stipulated within the proposal).

11

Emergency Government Ordinance No. 12/1998 on freight railway transport and on the reorganisation of the Romanian National Railways Company

Art. 9

Railway freight transport

This provision grants exclusive rights to CFR SA to manage the national public railway infrastructure. The concession to CFR SA is granted for 49 years.

Concession

Granting exclusive rights to an infrastructure manager is in line with Art. 7 of Directive No. 2012/34/CE. The monopoly regime which this concession grants is still very common across the EU and its duration is not unreasonable if compared with other EU countries (e.g. Italy, where the concession to the infrastructure manager, RFI, is granted for 60 years). CFR SA is a 100% state-owned company and the 49-year term is the maximum term stipulated in Romanian law regarding the granting of concessions for public services.

CFR SA may establish more advantageous conditions for CFR Marfa over its competitors, since it may grant the latter better terms for accessing its infrastructure or providing its essential services.

No recommendation.

12

Emergency Government Ordinance No. 12/1998 on freight railway transport and on the reorganisation of the Romanian National Railways Company

Art. 18(3)

Railway freight transport

Access to infrastructure and services provided in terminals and ports linked to the railway infrastructure can be restricted when there are “viable alternatives” in the marketplace. There is no definition of these “viable alternatives”.

Concession

There is no justification for the lack of definition by CFR SA of what are these “viable alternatives” which may be used as grounds for refusing access to its infrastructure.

The infrastructure administrator may deter competition by rejecting access requests to essential services without an objective justification.

Make provision clearer: CFR SA must provide a comprehensive definition of what these “viable alternatives” are that may justify a refusal to access its infrastructure. This definition should be included in the Romanian Network Statement, in accordance with Art. 27 and Annex IV of Directive 2012/34.

13

Government Decision No. 643/2011 approving the Rental Conditions by the National Railway Company “CFR” SA of some parts of the non-interoperable railway infrastructure, as well as their management

Annex 1 Art. 15 para. 3

Railway freight transport

CRF SA, the railway infrastructure administrator, has the right to rent parts of the infrastructure which are not inter-operable to private operators, selected through public tender. The provisions of the rental contract are not negotiable. The rental contract must stipulate as mandatory several clauses provided in Art. 15(1) letter b) f. Private operators are permitted to negotiate only the precise moment when they are effectively taking over the infrastructure as well as the assets and/or activities that will be taken over.

Barrier to entry

It is common across EU countries to have general standard terms applying to all contracts concluded by railway infrastructure managers with railway operators. Generally these terms are non-negotiable. Further, CFR Marfa obtains access to the CFR SA infrastructure in accordance with conditions which are similar to those applied to other private operators.

It is unclear which issues are not negotiable. CFR SA may use its discretion to favour CFR Marfa over its competitors by granting it more favourable treatment over standard terms.

No recommendation.

14

Government Ordinance No. 7/2005 on approval of the Regulation over railway transport in Romania

Art. 4 para 5 and art. 51 para. 2 of the Regulation, Annex of GO

Railway freight transport

Foreign operators may rent their transport vehicles and loading devices on the basis of tariffs customarily used in international traffic. These rental tariffs are called RIV and are established in an international agreement called COTIF to which Romania is party. National railway operators apply RIV tariffs every time their rent wagons belonging to foreign railway operators transporting freight are to be delivered in Romania. In these instances, the national railway operator will charge its customers the RIV tariff (which the national operator reimburses to the foreign owner of the wagon) + an extra charge, which is the object of negotiation with the freight customer. Although Art. 4 of this Regulation stipulates for every transport operator the obligation of publishing its RIV + extra tariffs, CFR Marfă is de facto the only operator which does so. The information published by CFR Marfa concerning its rental tariffs of foreign wagons may well act as a focal point in an oligopolistic market such as the Romanian freight railway market, favouring tacit collusion among market players.

Discrimination

The restriction imposing RIV charges is established in an international agreement to which Romania is bound. It has primacy over Romanian law. RIV tariffs are set to a relatively high-margin level in order to push the national railway operator to give the rented wagon back to the foreign railway operator with the shortest possible delay. On the other hand, the obligation for CFR Marfa to publish its additional rental charges concerning foreign wagons makes no sense also to CFR and puts CFR at a disadvantage vis-à-vis all the other operators who do not publish such tariffs.

The effect of this provision is two-fold: i) it establishes RIV as a fix charge to be reimbursed always to the foreign owners of a wagon; ii) it increases market transparency providing a focal point for the price freight railway transport operators intend to charge their customers. Thus, on the one hand it introduces unnecessary rigidity in the prices charged for renting foreign wagons. On the other hand, it introduces unnecessary transparency in a market with oligopolistic characteristics which may favour tacit collusion among existing players.

Abolish: With respect to freight transport, national railway operators should not be under an obligation to publish their RIV + extra charge tariffs.

15

Government Decision No. 581/1998 on setting up the National Railway Company “CFR SA”

Annex No. 1 Art. 19 (o)

Railway freight transport

CFR SA provides access to several essential services including, for example, freight terminals. Access tariffs for such services are established unilaterally by CFR SA and could give rise to some form of discrimination against operators competing with its affiliated company, CFR Marfă. Furthermore, ownership of some of these CFR SA terminals was transferred to CFR Marfă. Access to these terminals by competing operators may be either foreclosed or subject to unfair terms.

Discrimination

CFR SA tariffs are the same for every transport operator. CFR Marfa is free to choose with whom it wants to do business.

CFR SA may use this provision to confer on CFR Marfa an undue advantage over its competitors. CFR Marfa may refuse access to its terminals and discriminate against its competitors.

Make provision clearer: CFR SA shall publish guidelines explaining the methodology it uses to calculate its tariffs, notably with reference to the costs related to each of its essential services. If terminal ownership by CFR Marfa continues and as long as CFR Marfa is a state-owned company, CFR Marfa shall be under the same obligation of CFR SA with respect to the terms applicable for accessing its terminals by competing railway operators. Notably, both CFR SA and CFR Marfa need to provide fair, transparent and non-discriminatory conditions for accessing their terminals (so called FRAND terms). Compliance with FRAND terms must be ensured by an independent regulatory body.

16

Order of Ministry of Transport No. 443/2011 on the approval of Norms concerning the authorisation for the functioning of a newly build or modernised industrial railway

Art. 5

Railway freight transport

In order to build or modernise an industrial railway, an authorisation has to be obtained from the Romanian National Safety Authority, an administrative body within AFER and MoT.

Authorisation

This provision is in line with Articles 1 and 2 of Directive No. 2004/49/CE related to the safety of EC railways. This is a common requirement across the EU.

The authorisation requirement may prevent access to the marketplace by other economic operators.

No recommendation.

17

Regenerative braking

Railway freight transport

Romania lacks the legal framework for introducing regenerative braking by railway operators. Regenerative braking leads to energy consumption savings and is already installed in the locomotives of most railway operators. The infrastructure of the European Transport Network Corridors of Romania has already been modernised to allow regenerative braking. The current state of play puts operators having locomotives capable of generating this form of energy saving at a competitive disadvantage vis-à-vis other railway operators.

Discrimination

Introduction of regenerative braking requires dedicated rules concerning electricity pricing, infrastructure financing (dedicated storage facilities are necessary) and access conditions. Thus, before introducing this form of braking, the existing regulatory framework, assets and infrastructure system need to be adjusted.

The non-introduction of this form of braking discriminates against those operators who have this technology already installed in their locomotives. For these operators, the non-introduction of this form of braking increases electricity costs.

Create appropriate legal framework: Compensation for regenerative braking energy should be introduced in Romanian Law on Energy no 123/2014, due to its ability to save energy consumption for railway freight transport. All metered train operators should pay for net energy consumption after taking into account the regenerated energy. This should lead to changes to the existing infrastructure and acquisition of new locomotives. A good example of a legal framework for regenerative braking discounts is in the UK, namely Art. 8 of Traction Electricity Rules issued by the Office of Rail Regulation.

Sector: Maritime and inland waterways

No.

No and title of regulation

Article

Thematic category

Brief description of the potential obstacle

Keyword

Policy maker’s objective

Harm to competition

Recommendations

1

Order of Ministry of Transport (MoT) No. 547/2014 concerning the authorisation of economic operators for the operation of shipping related activities – security service piloting ships into and out of ports, between the piers of the same port and inland waterways

Art. 1

Sea and coastal freight water transport

Vessel piloting services can be provided only by authorised economic operators under NACE Code 5222.

Authorisation

The authorisation requirement is necessary for safety reasons and is applied in all EU Member States.

The authorisation requirement restricts market access of economic operators.

No recommendation.

2

Order of MoT No. 547/2014 concerning the authorisation of economic operators for the operation of shipping related activities – security service piloting ships into and out of ports, between the piers of the same port and inland waterways

Art. 2

Sea and coastal freight water transport

Port authorities and/or authorities managing maritime canals may operate piloting services without an authorisation, unlike private operators for whom authorisation is mandatory.

Discrimination

Port authorities are obliged by law to provide piloting services. Port authorities have the possibility of providing piloting services either directly according to the current law or outsourcing them to private operators.

Competition may be distorted if in a port area the pilotage of vessels is conducted by both private operators and port authorities (state operators) because only state operators can carry out the activity without obtaining authorisation. This may confer on state operators an unfair competitive advantage.

Create appropriate legal framework: Port authorities (state operators) and private operators shall not be subject to different legal and administrative regimes when performing the same services in competition. Piloting services may therefore either be operated by the port authority or they can be outsourced. When outsourced, the contracts shall be granted through a tendering process subject to fair and non-discriminatory terms.

3

Order of MoT No. 547/2014 concerning the authorisation of economic operators for the operation of shipping related activities – security service piloting ships into and out of ports, between the piers of the same port and inland waterways

Annex 1 Art. 1

Sea and coastal freight water transport

To be authorised, piloting service providers should have a minimum number of pilots per port.

Order No. 547/2014 requires companies to have a minimum number of 8 pilots in Consţanta, 4 pilots in Midia and 2 in Mangalia. However, port authorities unilaterally establish general terms and conditions for the provision of piloting services, contradicting the letter of this order. For example, for the ports of Consţanta, Mangalia and Midia, the port authority requires companies to have at least 21 pilots servicing these three ports. The port authority has cancelled an agreement with four piloting companies which according to RCC share all their revenues, without giving any consideration to which of them has actually delivered the services.

Authorisation

Minimum number of pilots is justified by the fact that piloting services should be regularly provided 24 hours a day, 7 days a week.

The minimum number of pilots may restrict market access or preserve the status quo, limiting the business of smaller firms.

Create appropriate legal framework:Piloting services shall not be granted through direct entrustment but instead they should be tendered based on fair and non-discriminatory terms to guarantee competition for the market. Abolish the provision: The law should not impose a minimum number of pilots per port but should instead guarantee a minimum service level (e.g. maximum ship waiting time for pilots to be on board).

4

Government Ordinance No. 42/1997 on civil navigation

Art. 12

Sea and coastal freight water transport

Professional training for the seafarers may be provided by CERONAV (Romanian Maritime Training Centre) or trainers accredited by MoT. The accreditation requirements are not specified in the text of the law.

Authorisation

The accreditation criteria can be found in Order No. 1354/2007 and aim at reasonably ensuring safety and professional competences.

The lack of criteria for accreditation leaves wide discretion to CERONAV or the Ministry of Transport and may lead to possible discrimination of certain trainers vis-à-vis others.

No recommendation.

5

Government Ordinance No. 42/1997 on civil navigation

Art. 25 and Art. 26

Sea and coastal freight water transport

The Romanian Naval Authority (ANR) or any other institution with whom the ANR has concluded an agreement are responsible for issuing certificates of compliance with the technical rules related to shipbuilding. The criteria for appointing such institutions in charge of issuing certificates of compliance are unclear. Further, under EC Regulation No. 391/2009, once appointed by ANR, these accreditation bodies must be ratified by the European Commission (EC). However, ANR is under no obligation to conclude agreements with those accreditation bodies which have been recognised by the EC.

Authorisation

The provision is in line with EC Regulation 391/2009. The authorisation is aimed at complying with technical requirements.

In the absence of clear criteria for the appointment of such institutions, the ANR, which is owned by MoT, may distort competition by regulating access to the marketplace, foreclosing entry of new competitors as well as charging supra-competitive fees for its services.

Create new legal framework:The criteria for the appointment of institutions in charge of issuing certificates of compliance with shipbuilding rules must be published in the law and should be fair and non-discriminatory. The ANR must be under an obligation to conclude agreements with accreditation bodies recognised by the EC in accordance with EC Regulation no. 391/2009.

6

Order of MoT No. 548/2014 concerning the authorisation of economic operators for the operation of shipping related activities – security service towage for manoeuvring ships in ports

Art. 1

Sea and coastal freight water transport

Safety towing services in ports can be provided only by authorised operators holding NACE 5222 Code. The conditions under which such authorisation may be obtained are not clearly set out in the text of the Order.

Authorisation

The provision does not represent a restriction, the conditions for authorisation can be found in Annex 1 of Order No. 548/2014. This restriction is justified for reasons of compliance with safety standards.

The lack of clarity over the conditions under which the authorisation can be obtained may deter market access of economic operators and thus distort competition.

No recommendation.

7

Order of MoT No. 548/2014 concerning the authorisation of economic operators for the operation of shipping related activities – security service towage for manoeuvring ships in ports

Art. 2, para. 4

Sea and coastal freight water transport

Port authorities which are state-owned operators can carry out towage activity without having an authorisation, unlike private operators for whom authorisation is required.

Discrimination

The port authorities are obliged by law to provide towing services. Port authorities can provide these services directly or can grant them to private operators.

Competition may be distorted if towage is conducted in a port area by both private operators and port authorities (state operators) because state operators can carry out the activity without obtaining authorisation. This may confer on state operators an unfair competitive advantage.

Create appropriate legal framework: Port authorities (state operators) and private operators shall not be subject to different legal and administrative regimes when performing the same services in competition. Towing services may therefore either be operated by the port authority or they can be outsourced. When outsourced, the contracts shall be granted through a tendering process subject to fair and non-discriminatory terms.

8

Order of MoT No. 548/2014 concerning the authorisation of economic operators for the operation of shipping related activities – security service towage for manoeuvring ships in ports

Annex 1

Sea and coastal freight water transport

Issuing an authorisation for towing services is subject to several criteria including safety certificates concerning the ship and its equipment issued by the ANR. In order to have this authorisation an operator needs to have a minimum number of tugboats, depending on the length of the ship and its maximum gross tonnage. For example, the law requires at least one tugboat with a hook traction strength of minimum 5 tonnes for towing ships up to 120 metres long and 1 000 tonnes; 4 tugboats for towing ships over 250 metres, etc.

Although Order No. 548/2014 is in force, port authorities unilaterally establish general terms and conditions for the provision of towing services in their ports, contradicting the letter of this order. For example, for the ports of Consţanta, Mangalia and Midia, the port authority requires companies to have at least 17 towing vessels servicing these three ports. It currently has concluded a contract only with one single company, which is a joint venture formed among the previous three largest towing operators in the marketplace.

Authorisation

The minimum number of towage vessels is requested in accordance with the specific characteristics of each port in order to ensure the safety of navigation.

The minimum number of tugboats may limits competition by restricting access to the market for some players and preserve the status quo.

Create appropriate legal framework: Towing services shall not be granted through direct entrustment but instead they should be tendered based on fair and non-discriminatory terms to guarantee competition for the market. Abolish the provision: Instead of regulating the number of tugboats per port, MoT should regulate the minimum service level (e.g. the maximum length of time a ship would need to wait for a tugboat).

9

Government Ordinance No. 22/1999 on the management of ports and waterways, the usage of freight water transport infrastructures belonging to public ownership and the development of freight water transport activities in ports and inland waterways

Art. 19 para. 3

Sea and coastal freight water transport

All economic operators that provide shipping activities are subject to authorisation by the ANR, except for the port administration and operators which carry out such activities in their own interest.

Discrimination

The lack of authorisation for shipping activities carried out by the ANR and the other port authorities but also by private operators who undertake these activities on their own account is justified by the fact that they do not provide these services for third parties.

The law establishes a differential treatment for public and private operators as well as more favourable conditions for operators engaged in shipping activities in their own interest.

No recommendation.

10

Decree No. 298/1948 of the Ministry of Foreign Affair for the ratification of the Convention regarding the Regime of Navigation on the Danube signed in Belgrade on 18 August 1948 along with its two Annexes and the Supplementary Protocol (Belgrade Convention)

Art. 41

Sea and coastal freight water transport

Discounts over port services tariffs given by port authorities to ship-owners are not regarded as discriminatory if they are in accordance with customary industry use and are proportionate to the volume of services rendered or the nature of the cargo.

Permissive legislation

The Belgrade Convention regarding the Regime of Navigation on the Danube stipulates that “the amounts that will be paid for services rendered shall be established without any discrimination. The advantages granted by commercial usage, with the volume of work and the nature of the goods shall not be regarded as discrimination”. The Belgrade Convention prevails over Romanian legislation.

This provision may be applied in a discriminatory manner, favouring one or more operators vis-à-vis the others.

No recommendation.

11

Government Ordinance No. 22/1999 on the management of ports and waterways, the usage of freight water transport infrastructures belonging to public ownership and the development of freight water transport activities in ports and inland waterways

Art.50 and Art. 52

Sea and Costal freight water transport

Tariffs for using port infrastructure lack transparency.

Discrimination

Economic operators authorised in this field pay the same price for using the infrastructure.

The application by port authorities of this provision may lead to differential tariff treatment and discrimination among operators.

Create appropriate legal framework:Port authorities should set their charges based on a transparent methodology which must be cost-oriented and/or by comparison with other ports. Furthermore, the port authorities' autonomy in setting charges should be balanced by the ability to review these charges, given to an independent regulator having the mandate to ensure that competition among port operators is promoted.

12

Government Ordinance No. 22/1999 on the management of ports and waterways, the usage of freight water transport infrastructures belonging to public ownership and the development of freight water transport activities in ports and inland waterways

Art. 51

Sea and coastal freight water transport

Piloting services in and out of Sulina, Tulcea, Galați and Brăila ports must be provided by the Regia Autonoma “Administraţia Fluvială a Dunării de Jos” – AFDJ, (Galați Lower Danube River Administration – public undertaking entrusted with special tasks and rights), by pilots authorised by AFDJ or with whom AFDJ has concluded a framework contract or by concession agreements.

Authorisation Exclusive rights

The provision complies with Art. 31 and Art. 33 of the Belgrade Convention of 1948, ratified by Romania by Decree No. 298/1948.

The coexistence of these two forms of pilotage service provision to vessels, i.e. by port administration and by third parties (either by pilots authorised by port administration under a contract for services concluded or by concession agreement) is likely to distort competition.

AFDJ may abuse its exclusive rights granted by the law in order to organise the piloting and harbour manoeuvres. As AFDJ is the gate keeper, it may reduce the number of authorised operators and their incentive to compete against AFDJ services.

Establish conflict of interest regulation:The port authority must not act as both regulator and service provider in the same port. Piloting services shall either be offered by the port authority or outsourced to private companies.If outsourced, the right to provide piloting services shall be tendered based on fair and non-discriminatory terms in order to promote competition for the market.

13

Government Ordinance No. 22/1999 on the management of ports and waterways, the usage of freight water transport infrastructures belonging to public ownership and the development of freight water transport activities in ports and inland waterways

Art. 36 and Art. 37

Sea and coastal freight water transport & fluvial freight water transport

Port tariffs lack transparency. Romanian-flagged vessels may benefit from large discounts compared to foreign-registered vessels. For example, the price list regarding pilotage services available on the Port Administration website states that pilotage tariffs will be reduced by 50% for ships registered in Romanian maritime ports.

Exclusive rights Restricts the geographic flow of goods

The authorised economic operators are paying the same price for using the infrastructure.

The lack of transparency in the calculation of port charges may lead to large-scale abuses by port authorities. Discounts granted to Romanian flagged vessels are in sharp contrast with the principle of non-discrimination based on the grounds of nationality established by EU law. We are aware that, for example, in the port of Consţanta vessels pay very high charges which do not exist in other ports.

Create appropriate legal framework: Port authorities should set their charges based on a transparent methodology which must be cost-oriented and/or in comparison with other ports. Furthermore, the port authorities' autonomy in setting charges should be balanced by the ability to review these charges given to an independent regulator, having the mandate to ensure that competition among port operators is promoted.

14

Government Decision No. 83/2003 on authorising commercial companies which provide services of selection and placement of seafarers and inland waterway vessels flying the Romanian or foreign flag, and the establishment of financial security measures in case of withdrawal outside of Romania

Art. 2, para. 3 lit. f) from the Annex

Sea and coastal freight water transport

Those operators who wish to act as agents of seafarers must receive an authorisation to do business. In order to receive such authorisation it must show that it has already concluded a contract or a pre-contractual agreement with a shipowner. This is chicken-and-egg situation because it is also difficult to get a contract with a shipowner without being a recognised agency.

Authorisation

The requirement is necessary to protect seafarers from bankruptcy or liability.

The requirement of having concluded a contract or a pre-contractual agreement with a shipowner may discourage new entrants in the marketplace by those agents who have the required professional competence to act as seafarers’ crewing agents but do not have a contract or a pre-contractual agreement with a shipowner.

Abolish:There is no match between the authorisation requirement and the policy objective since shipowners may always cause liability to seafarers even if these have been employed through an authorised crewing agent.

15

Order of MoT No. 1447/2008 on technical requirements for inland waterways

Art.7

Sea and coastal freight water transport

The ANR can grant derogations from the application of all or part of the provisions of the Order to certain categories of inland waterway vessels, depending on vessel capacity.

Authorisation

This provision complies with Art. 7 of Directive No. 2006/87/EC establishing technical requirements for inland waterway vessels. The Directive enables the Member State to grant derogations to certain categories of vessel, but the Romanian law transposing the Directive does not specify any criteria to be met in order to obtain derogation.

The derogation may grant preferential treatment to some operators vis-à-vis others.

Make provision clearer:The law must expressly state the criteria of this Order that a market operator needs to fulfil in order to be granted a derogation from the provisions of this Order.

16

Order of MoT No. 37/2014 concerning the authorisation of economic operators to carry out public transport of passengers and/or goods by inland waterways

Art. 2 Annex 1

Sea and Costal freight water transport

The ANR shall establish minimum technical requirements for providing authorisation to freight transport on inland waterway canals.

Authorisation

These technical requirements have been laid out in Order No. 1447/2008 of the Ministry of Transport, with subsequent amendments, which transposes Directive No. 2006/87/EC. This restriction is justified for safety reasons.

The authorisation requirements may prevent market access by economic operators.

No recommendation.

17

Order of MoTNo. 250/2011 on the compliance by Romania with its State flag obligations

Art. 3 (1)

Sea and Costal freight water transport

Before authorising the use of the Romanian flag, the ANR may take “all necessary measures” to ensure that the ship respects safety provisions established under the applicable international provisions.

Authorisation

These provisions are in line with Art. 4 of EU Directive No. 2009/21/EC regarding state flag obligations for vessels.

The ANR enjoys unnecessary discretion when carrying out this task. This discretion may lead to abuse of power and place some market operators at a competitive disadvantage vis-à-vis others.

Make provision clearer: The law must expressly indicate the activities that the ANR is entitled to implement in order to verify compliance with safety rules by vessels.

18

Order of MoT No. 249/2011 on the inspection, technical supervision and certification of maritime vessels under the Romanian flag and carrying out international voyages

Art. 4 (3)

Sea and coastal freight water transport

The ANR may limit the number of contracts authorising operators to provide technical inspection and surveillance activities for ships flying the Romanian flag.

Barrier to entry

This provision transposes Art. 4 from EU Directive No. 2009/15/CE and is justified to ensure safety and quality of services, but the limitation of the number of authorisations to be issued is not a mandatory requirement.

This provision may act as an unnecessary entry barrier, reducing the number of operators or raising costs. It may also discriminate among shipowners.

Abolish: There should not be any limitation on the number of authorised operators which may provide technical inspection and surveillance activities for ships travelling under the Romanian flag. Make provision clearer: The criteria required in order to become an authorised body shall be published in order to increase transparency.

19

Order of MoT No. 249/2011 on the inspection, technical supervision and certification of maritime vessels under the Romanian flag and carrying out international voyages

Art. 6 (1)

Sea and Costal freight water transport

The ANR may suspend or terminate the execution of the special mandate contract concluded with a recognised authorised organisation in charge of inspecting vessels even if this organisation regularly meets the minimum criteria established for such activity under Annex I of EC Regulation No. 391/2009.

Restriction in number of suppliers

The provision transposes Directive No. 2009/15/CE.

The law does not state expressly in which instances the ANR may suspend or terminate the mandate of an organisation authorised to provide inspection services on Romanian-flagged vessels. The Romanian provision imposes requirements, but without specifying them and that may lead to lack of transparency, predictability and possible abuses by the ANR.

Make provision clearer: The law must specify the instances where the ANR is entitled to suspend or terminate the mandate of an organisation authorised to provide inspection services on Romanian-flagged vessels.

20

Order of MoT No. 251/2011 on establishing the commissions for the coordination of maritime and inland waterway vessel movement in Galaţi, Brăila and Tulcea ports

Art. 5

Sea and Costal freight water transport

Exclusive rights

This provision is not related to ANR competencies. This exclusive right is justified in order to ensure a more efficient use of port logistics.

Other railway operators may be disadvantaged by the fact that the timetable for loading and unloading rail wagons in the ports mentioned is established by CFR Marfă, their competitor.

Abolish: The provision should be abolished and the timetable for loading and unloading rail wagons should be established by committees co-ordinating the movement of maritime and inland waterway vessels and ships in the ports of Gala?i, Br?ila and Tulcea so that all rail freight operators transporting goods in these ports may benefit from equivalent and non-discriminatory conditions.

21

Government Decision No. 1105/2007 approving the Methodological Norms for enforcement of the provisions of Appendix VI to the International Convention for the Prevention of Pollution from Ships MARPOL 1973/1978

Art. 49 and Art. 50

Sea and coastal freight water transport

If an authority included in the MARPOL list establishes that inadequate fuel has been supplied from Romania, the ANR may, before suspending or withdrawing its authorisation, warn the supplier to adopt remedies in order to bring the fuel to the required standard.

Standards for product quality

The warning measure was not intended to be a form of preferential treatment for bunkering companies. Warning is administered depending on the gravity of the situation and is done for the purpose of gradually remedying the damage produced by the bunkering company.

This provision may provide a more advantageous treatment for bunkering companies and seems to grant the ANR unnecessary discretion on whether a company may be sanctioned for supplying inadequate fuel.

Amend the provision: Art. 50 para. 2 should be amended in order to clearly establish the instances in which a warning is a measure proportional and adequate to be taken, as well as the instances that require the suspension or withdrawal of the company's authorisation, as the current provision may lead to a discretionary use of power by the ANR.

22

Order of MoT No. 1894/2002 on the approval of the guidelines on State control for ships flying the Romanian flag

Annex

Sea and Costal freight water transport

The rules concerning the development of the control activity of Romanian-flagged vessels are not published and access is restricted.

Lack of transparency

These rules are published in MO 750 bis/2014.

This provision grants unguided discretion to the ANR which may lead to discriminatory treatment of operators and abuse of power by the ANR.

No recommendation.

23

Order of MoT No. 558/2003 on the replacement of the appendix to the Order of MoT No. 1894/2002 on the approval of the guidelines on the State control on ships flying the Romanian flag

Annex

Sea and Costal freight water transport

The rules concerning the development of the control activity of Romanian flagged vessels are not published and access is restricted.

Lack of transparency

These rules are published in MO 750 bis/2014.

This provision grants unguided discretion to the ANR which may lead to discriminatory treatment of operators and abuse of power by the ANR.

No recommendation.

24

Order of MoT No. 288/1999 on the approval of the technical guidelines on maritime constructions

Annex

Sea and coastal freight water transport

The technical standards for shipbuilding are not published and access is restricted.

Lack of transparency

These technical standards are published on the ANR website (http://portal.rna.ro/Pagini/Legisla%C8%9Bie/Certificare-tehnica-nave.aspx).

This provision may lead to discriminatory treatment of operators and abuse of power by the competent authority.

No recommendation.

25

Decision No. 492/2003 on the organisation and functioning of the Lower Danube River Administration A.A. Galați

Art. 5

Sea and coastal freight water transport

Although the legislation establishes the obligation for AFDJ to ensure navigable conditions of the Danube, often it does not fulfil this task. Thus, the circulation of vessels on the Danube is hampered, especially in periods when its water level is low.

AFDJ Galaţi operates as an autonomous administration under the MoT and serves as a waterways authority on the Romanian sector of the Danube.

Poor quality of infrastructure

Dredging the Danube is difficult because most of this river belongs to both Romania and Bulgaria. Port authorities do dredge their ports in order to respect the depth indicated in safety threshold rules established by the ANR. The ANR is also responsible for granting derogations over safety issues related to the navigation of the Danube.

Navigational conditions on the Danube vary from one period to another, depending on weather conditions particularly due to dry seasons. If the Danube is not dredged, competition may be distorted. A low depth sailing line favours ships with low draft over those with higher draft.

Create appropriate legal framework:MoT must provide an enforcement system, including sanctions, against failure to dredge the Danube by the designated authority.

Sector: Food

No.

No and title of Regulation

Article

Thematic category

Brief description of potential obstacles

Keyword

Policy maker’s objectives

Harm to competition

Recommendations

1

Law No. 312/2003 on the production and use of vegetables

Art. 9, Art. 10 par. 2 and Art. 11

Food processing framework legislation

Selling of vegetables, melons and mushrooms in traditional markets, street markets or markets organised on special occasions triggers the following consequences: i) small producers are not obliged to comply with the rules on classification of products in accordance with commercial standards and ii) small producers, natural persons, are not required to issue invoices for the products sold (instead, they use a trading booklet). Notions of small producer, traditional market and street market are different from the terms used by Law No. 145/2014 for establishing measures to regulate the market sale of agricultural products.

Discrimination

Law No. 145/2014 for establishing measures to regulate the market of agricultural products is a recent piece of legislation and most probably the law maker did not make reference to the old legislation in force.

Lack of corroboration between two pieces of legislation and usage of different notions for similar aspects, in practice, triggers uncertainty among producers/traders. While we have no issues with respect to exempting small producers from some obligations in order to avoid excessive burdens on their part, lack of definition of the terms “small producer”, “traditional markets”, “street markets” might lead to arbitrary and possibly abusive interpretation in practice.

Ensure a unitary regulation of these notions and amend Law No. 312/2003 on the production and use of vegetables in order to use the same wording as under Law No. 145/2014 for establishing measures to regulate the market of agricultural products.

2

Law No. 491/2003 on medicinal and aromatic plants and hive products

Art. 3 par. 5

Food processing framework legislation

The legal provision contains a drafting error and makes reference to an article which does not relate to the subject matter i.e. Art. 695 instead of Art. 699 of Law No. 95/2006 regarding health system reform.

Barrier to entry

The correct reference has not been updated after republishing of Law No. 95/2006 regarding health system reform.

Economic operators are unable to identify the applicable legal provisions.

Amend the legislation and make the correct reference to Art. 699 of Law No. 95/2006 regarding health system reform.

3

Emergency Ordinance No. 97/2001 on regulating the production, circulation and marketing of food

Art. 7

Food hygiene

Foodstuffs may only be produced/ processed/ stored/ transported and sold by staff with specific qualifications, meaning “sufficient” knowledge of public health, food hygiene, work hygiene, attested by a certificate issued after completion of a training course and passing of an exam (e.g. the cost of the training course and the exam fee is approximately EUR 20 while the duration could be up to 17 hours). The course should be repeated every three years.

Upon discussions with MADR, it appears that the domestic legislation has the same provisions as various CE Regulations (such as CE Regulation 1333/2008, CE Regulation 853/2004, CE Regulation 1881/2006).

Excessive measure

The policy maker’s objective is to protect public safety, as there are persons coming in contact with food products and who might risk contaminating the products they handle. Moreover, the official recital received from the authorities states that Emergency Ordinance No. 97/2001 on regulating the production, circulation and marketing of food should be entirely abolished since it represents domestic legislation that was not expressly abolished after entry into force of EC Regulations which are directly applicable in Romania as of 1 January 2007. For example, the definition of food additives foreseen by the considered domestic piece of legislation is also to be found in EC Regulation 1333/2008, the definition of foodstuffs of animal origin is also foreseen by EC Regulation 853/2004.

Having all staff trained and accredited significantly increases the costs for the employers and also limits the employment market. The impact is with respect to those traders who are not dividing people based on attributions and thus have to train all personnel. The text does not differentiate between staff working with packaged/non-packaged foodstuffs – i.e. the same requirements apply to those coming into direct contact with packaged and non-packaged foodstuffs, for those involved in the food processing chain and for those merely transporting the foodstuffs.

Abolish provisions which are double regulated. For employees not coming in direct contact with the unpackaged foodstuffs, the conditions should be abolished. Maintain the obligation to follow public health, food hygiene, work hygiene training courses only for employees coming in direct contact with the unpackaged foodstuffs. For that purpose, clearly define activities which do not involve direct contact with foodstuffs (e.g. transportation, storage and sales personnel).

4

Government Decision No. 924/2005 on the approval of the general rules for food hygiene

Entire act

Food hygiene

Upon discussions with MADR, it appears that the domestic legislation has the same objective as Regulation (EC) No. 852/2004 regarding food hygiene, thus dual pieces of legislation are applicable. The EU Regulation is directly applicable in Romania and, as such, there is no need for transposition into the domestic legislation.

Dual regulation

Domestic legislation was not expressly abolished after entrance in force of EC Regulation No. 852/2004 which is directly applicable in Romania as of 1 January 2007.

It is unclear for companies active in the field what legislation is in force.

Abolish provisions which are redundant in light of EU legislation. The abolishment of the provisions which are double regulated shall not interfere with the possibility of having a code of conduct for market participants.

5

Government Decision No. 1156/2013 approving sanitary veterinary actions included in the Programme for surveillance, prevention, control and eradication of animal diseases, of those transmissible from animals to humans, animal and environmental protection, identification and registration of bovines, swine, sheep, goats and equines, of the actions stipulated in the Program for food safety supervision and control, and related charges

Chapter II, Section 1, par. 3

Food processing framework legislation

The veterinary testing of animal feed is mandatory; non-compliance with such an obligation being sanctioned with a fine. Costs for sampling, transport and analysis of probes for veterinary tests are borne by the Sanitary Veterinary and Food Safety National Authority (ANSVSA) for locally produced animal feed, but the same cost for imported animal feed is borne by the importer.

Discrimination

The policy maker’s objective is to encourage use of animal feed coming from domestic producers.

Producers of animal feed from EU Member States are at a disadvantage compared to domestic producers as Romanian farmers are more inclined to opt for domestic animal feed given the exemption from paying the testing costs (e.g. farmers are more inclined to use domestic animal feed as the costs for the veterinary testing are borne by the ANSVSA while for imported animal feed, the testing costs are borne by the farmers themselves). There are possible state aid implications for the farmers who use domestic animal feed.

Option 1. Amend the legislation to have equal treatment for all animal feed produced in EU Member States and sold to Romanian farmers, thus the government would also pay for the imported animal feed.

Option 2. Abolish the provision, thus making all operators pay the tax.

6

Order No. 43/2003 for approval of Sanitary veterinary norms regarding the criteria applicable for meat producing enterprises that do not have an industrial structure or production capacity

Entire act

Food hygiene

Upon discussions with MADR, it appears that the order contains provisions which have the same objective as EU legislation on hygiene and safety of foodstuffs which is directly applicable in Romania, namely EC Regulation 178/2002, EC Reg. 852/2004, EC Reg. 853/2004, EC Reg. 2073/2005 which provide the microbiologic criteria for the foodstuffs, as well as for sampling for laboratory analysis. The official controls carried out in the food processing sector are regulated by EC Regulation 882/2004. The EU Regulation is directly applicable in Romania and as such, there is no need for transposition into domestic legislation.

Dual regulation

Domestic legislation was not expressly abolished after entry into force of EC Regulation No. 852/2004 which is directly applicable in Romania as of 1 January 2007.

It is unclear for companies active in the field what legislation is in force.

Abolish provisions which are double regulated.

7

Order No. 43/2003 for approval of Sanitary veterinary norms regarding the criteria applicable for meat producing enterprises that do not have an industrial structure or production capacity

Art. 1

Food hygiene

Enterprises producing less than 7.5 tonnes of meat per week or 1 tonne of fatty liver per week shall benefit from derogations in Art. 9 par. 1 and 2 of Sanitary veterinary norms regarding health conditions for production and commercialisation of meat products and other animal products, approved by Order No. 322/2003, issued by the Ministry for Agriculture and Rural Development. However, the norms including the derogations referred to in the legal provision have been abrogated and we have not been able to identify any equivalent derogations in the legal provisions in force. It is our understanding that currently, such derogations do not apply in practice.

Furthermore, ANSVSA is currently the regulating authority in the sanitary-veterinary field and not the Ministry for Agriculture and Rural Development, as stated in the Order.

Barrier to entry

The Order was issued prior to Romania’s accession to the EU and it has not been subsequently amended.

Considering that such derogations are not applicable in practice and reference is made to a normative act which has been abolished, the mere existence of a legal provision mentioning a derogation creates uncertainty among market participants. Abolishing the derogation does not interfere with the factual situation on the market as it is not currently applicable.

Abolish.

8

Order No. 91/2005 approving the Sanitary veterinary norm laying down the rules applicable to regular checks on the general state of hygiene, carried out by facility operators, in accordance with the Sanitary veterinary norm on health conditions for production and marketing of fresh meat, approved by Order No. 401/2002, and with the Sanitary veterinary norm on health problems regulating the production and marketing of fresh poultry meat, approved by Order No. 402/2002

Entire act

Food hygiene

Upon discussions with MADR, it appears that the Order contains provisions which have the same objective as EU legislation on hygiene and safety of foodstuffs which is directly applicable in Romania, namely EC Regulation 178/2002, EC Reg. 852/2004, EC Reg. 853/2004, EC Reg. 2073/2005 which provide the microbiologic criteria for the foodstuffs, as well as for sampling for laboratory analysis. The official controls carried out in the food processing sector are regulated by EC Regulation 882/2004.The EU Regulation is directly applicable in Romania and as such, there is no need for transposition into the domestic legislation.

Dual regulation

Domestic legislation was not expressly abolished after entrance in force of EC regulations which are directly applicable in Romania as of 1 January 2007.

It is unclear for companies active in the field what legislation is in force.

Abolish provisions which are double regulated.

9

Order No. 91/2005 approving the Sanitary veterinary norm laying down the rules applicable to regular checks on the general state of hygiene, carried out by facility operators, in accordance with the Sanitary veterinary norm on health conditions for production and marketing of fresh meat, approved by Order No. 401/2002, and with the Sanitary veterinary norm on health problems regulating the production and marketing of fresh poultry meat, approved by Order No. 402/2002

Annex I, Art. I par. 2

Food hygiene

The frequency of testing in factories of low production and factories without continuous activity may be lower, as decided by the official veterinary doctor. There is no definition for factories of low production.

Discrimination

Some exceptions are necessary in order to avoid excessive burdens in case of factories of low production.

Establishing what factories have low production with the veterinary doctor without establishing clear directions may lead, in practice, to arbitrary decisions.

Abolish as indicated under point above but assess the possibility of keeping such an exemption under another piece of legislation, if this is the state decision.

10

Order No. 203/2006 on the approval of the Sanitary veterinary norm laying down special conditions for the marketing of aquaculture animals species and their products deemed not susceptible to certain diseases

Annex 2 letter g)

Aquaculture animals

A transport document must be obtained for the transportation of aquaculture animals (any aquatic animal at all stages of its life, including eggs and gametes grown in a farm or in a shellfish farming area) and their products. With the exception of naval transport, the document for all other types of transport is valid for a fixed 10-day time period. In case of naval transport, the validity period is extended over the navigation period.

Geographical division of market

The order transposes the provisions of EC Decision 2003/390/CE which under letter g) Annex II establishes the same validity term of 10 days for the transport permit, with the exception of naval transport for which the validity term is prolonged for the duration of the transport.

Discrimination with regard to the validity period of the transport document favours naval transport for long distances in case of international transports. This is detrimental to all other types of transports. Considering that storage conditions may be implemented which ensure adequate preservation of aquaculture animals and their products, the discrimination seems arbitrary and unjust.

No recommendation for change.

11

Order No. 78/2003 approving the Sanitary veterinary norm regarding exceptions to the Sanitary veterinary norm on health conditions governing the production and marketing of meat products and of other animal origin food products used for certain products containing other foodstuffs and only a small percentage of meat or meat products

Entire act

Products of animal origin

Upon discussions with MADR, it appears that the Order contains provisions which have the same objective as EU legislation on hygiene and safety of foodstuffs which is directly applicable in Romania, namely EC Reg.178/2002, EC Reg. 852/2004, EC Reg. 853/2004, EC Reg. 2073/2005 etc. The EU Regulation is directly applicable in Romania and as such, there is no need for transposition into domestic legislation.

Dual regulation

Domestic legislation was not expressly abolished after entry into force of EC Regulations which are directly applicable in Romania as of 1 January 2007.

It is unclear for companies active in the field what legislation is in force.

Abolish provisions which are double regulated.

12

Order No. 78/2003 approving the Sanitary veterinary norm regarding exceptions to the Sanitary veterinary norm on health conditions governing the production and marketing of meat products and of other animal origin food products used for certain products containing other foodstuffs and only a small percentage of meat or meat products

Art. 1 and Art. 2

Products of animal origin

Products containing meat ingredients up to 10% are granted exceptions regarding the sanitary veterinary authorisation conditions applicable to enterprises producing and commercialising meat products. The conditions under which the exception is granted are contained in Order No. 322/2003 which has been abolished. In their place new norms have been adopted for transposition of EU Directive No. 2002/99/EC.

Barrier to entry

The Order was issued prior to Romania’s accession to the EU and it has not been subsequently amended.

It is unclear for the economic operators what legislation is applicable, considering the abolishment of Order No. 322/2003.

Abolish as indicated under point 11 above.

13

Ministerial Order No. 100/2004 approving the Sanitary veterinary norm laying down the additional conditions on the sanitary veterinary control of fishery products, crustaceans, molluscs, gastropods and batrachians for direct marketing to the final consumer or for food processing for human consumption

Art. 5

Fish products

The sale of fishery products i) outside of built and authorised areas or ii) in the same units or specially designated spaces together with other animal or vegetable products is prohibited.

Barrier to entry

The policy maker’s objective is to ensure no contamination between food products takes place. Due to the high risk of perishability, keeping separate flows from other foods, as well as minimum standards on marketing are essential to protect public health.

The prohibitions may represent barriers to entry on the market as they entail higher costs for commercialising fish products than for other types of food products. The interdiction is not justified as regards the packaged products which do not present a risk of contamination.

The interdiction should be eliminated as regards the packaged products as long as risks of contamination are not present.

14

Emergency Ordinance No. 23/2008 regarding fishing and aquaculture

Art. 41, Art. 2 point 22 and Art. 64 h)

Fish products

The first sale of fish products on the national territory can only take place through authorised centres of first sale (private enterprises within which natural persons or companies, authorised for commercialisation of fish products, purchase the fish products and issue a sale note containing the quantity purchased and the purchase price), approved by Order of the Ministry of Agriculture and Rural Development. The purchasers of the fish products or the manager of the authorised centre must report all sales notes monthly to the National Agency for Fishing and Aquaculture.

Although the legal provision makes reference to the Ministry of Agriculture and Rural Development, the public authority responsible in the field is ANSVSA. The authority is under the control of the Ministry of Agriculture and Rural Development.

Price fixing

This provision is in line with the requirements of the Common Fisheries Policy approved by Council and Parliament effective from 1 January 2014. This states that the first sale must take place at the first sale centres authorised by the competent authorities. This provision aims at tackling illegal, unregulated and unreported (IUU) fishing practices.

The trading of fish products might be limited.

No recommendation for change.

15

Order No. 420/2008 establishing State Inspection Powers for the Technical Control of Vegetable and Fruit Production and Use

Art. 6 par. 3

Fruit and vegetables

State Inspection of Technical Control in Production and Trade of fruit and vegetables (subordinated to the Ministry of Agriculture and Rural Development), in charge of controlling quality standards, may establish a “simplified” control scheme for those traders dealing with fruit and vegetable exports if they meet a set of requirements, including offering “sufficient” guarantees of a constant and high rate of conformity. There is no clear indication to what a simplified control scheme means. However, upon discussions with MADR it is our understanding that it should be read as a “self-control” procedure as it is regulated under Order 390/2009 establishing the licensing methodology for self-control of the operators in the fruit and vegetable sector.

Discrimination

The lawmaker aimed to ensure the possibility of allocating a different level of resources for controlling activity by the merchant, based on their prior compliance with imposed standards. The provision is in line with Art. 6 of EU Reg. 852/2004 and Art. 31 of EU Reg. 882/2004.

In practice, the legal provision may leave room for abuses and corruption as it does not clearly indicate what the terms “high conformity rate”, “sufficient guarantees” or “simplified control scheme” mean. Lack of corroboration between this piece of legislation and Order 390/2009 establishing the licensing methodology for self-control of operators in the fruit and vegetable sector creates uncertainty among undertakings.

Amend the legislation in order to clearly link it with Order 390/2009, when the simplified control scheme applies and to stipulate criteria for establishing sufficient means in terms of the conformity rate.

16

Law No. 297/2013 on establishing contractual relations in the milk and milk products sector, as well as acknowledgement of milk and milk products manufacturing organisations

Art. 3

Raw milk

For the first sale of raw milk for collection, storage, processing and packaging, the seller and the buyer must sign a contract with a mandatory duration of 6 months. The mandatory 6-month duration may be waived with the consent of the seller.

Limitation of options

The minimum 6-month period of a contract is in accordance with the provisions of EC Reg. 1308/2013, Art. 148 para. (4) that stipulates this minimum term. The necessity for this minimum 6-month period comes from the inferior and dependent position that farmers have vis-à-vis the first buyers of milk.

The provision was introduced to balance the asymmetry of bargaining power between farmers and processors, because milk is perishable and it cannot be stored.

The buyer in the first sale of raw milk is forced by the legal provisions to sign a contract valid for 6 months. Due to such provisions, the buyer cannot freely change the provider of raw milk unless he obtains the consent of the producer. However, the duration of the agreement in itself does not guarantee any placement of orders by the buyers unless quantities have been agreed under the agreement.

No recommendation for change.

17

Order No. 721/2009 on the approval of the Measures plan to improve the quality of raw cow’s milk

Art. 1

Raw milk

For ensuring an appropriate quality of raw milk for commercialisation, economic operators active in the production, collection and processing of milk must fulfill certain obligations for compliance with quality and safety standards provided by Regulation (EC) No. 853/2004. Producers of milk are not held to the same standards are allowed to sell small quantities of raw milk to consumers without observing such obligations. Separately, the term “small quantities” of raw milk is not defined in the legislation.

As mentioned under EC Regulation 853/2004, Community rules should not apply where small quantities of primary products or of certain types of meat are supplied directly by the food business operator producing them for the final consumer or to a local retail establishment, a case where public health should be protected through national law.

Discrimination

Small producers were exempted from some obligations in order to avoid excessive burdens from their side.

Moreover, according to ANSVSA Order 111/2008, small producers selling small quantities of milk directly to final consumers have to be registered with the state authorities in order to perform this activity. The same piece of legislation foresees all obligations and standards that have to be respected by the small producers and it defines what small quantities of milk refer to.

In the absence of a clear definition, there could be a technical problem in determining what quantities may be seen as small quantities that are not proportionate or justified. The lack of proportionality may limit certain suppliers from providing their products and create barriers to entry.

Make reference to the provisions of Order No. 111/2008 enacted by ANSVSA which define the notion of small quantities.

18

Order No. 1186/2014 approving the technical implementation norms for the Methodological Norms for enforcement of Law No. 297/2013 on establishing contractual relations in the milk and milk products sector, as well as acknowledgement of milk and milk products manufacturing organisations approved by G.D. No. 441/2014 on specific conditions to be met by manufacturing organisations from the milk and milk product/producer organisation associations in contractual relations, as well as the technical criteria for their acknowledgment for negotiation purposes, provided by (EU) Reg. 1308/2013 of the European Parliament and Council of 16 December 2013 establishing a common organisation of agricultural product markets and repealing EEC Reg. No. 922/72, EEC 234/79, EC 1037/2001 and EC 1234/2007

Art. 2 par. 4 c)

Dairy products

Voting rights in a producers’ organisation are determined proportionately to the contribution of each producer to the organisation’s production. However, members of a producers’ organisation are prohibited from controlling more than 49% of all voting rights in the organisation. It is not mentioned under the legislation how often this information is exchanged, most probably the statute of each organisation regulates how often/ when such an exchange of information occurs.

Discrimination/excessive restriction

The policy maker’s objective was to prohibit the control of a producers’ organisation by a single undertaking, as in such a case the purpose of protecting the interests of all the members of the organisation may be undermined.

When assessing collectively the voting rights in order to determine the contribution of each member, in practice, the provision might trigger exchanges of sensitive information between milk producers with respect to their production capabilities.

Option 1. Amend the legislation so as to be used in calculation solely historical data concerning the previous year.

Option 2. The voting might be done based on thresholds established by the associations.

19

Government Decision No. 699/2009 establishing the measures contained in common market organisation in the grain sector

Art. 10 par. 4

Grain mill products, starches and starch products

Grain warehouse operators must ensure grain is stored by the Payment and Agriculture Intervention Agency (PAIA) following an intervention on the grain market, with a wire transfer, a bank letter guarantee in favour of PAIA for 200% of the value of the grain, or an insurance policy for the value of the grain.

Barrier to entry

The intention was to ensure that the PAIA would be able to recover all its losses if the grain stored deteriorated or was destroyed. The official stand is that the value of the warranty is a reasonable one for Romania to make up for the losses incurred. The arguments taken into consideration by the authorities when establishing this level of guarantee are:

a) The price of the grain eligible for the intervention measure has fluctuated in the last 10 years between 80% of the intervention price up to values of almost 3 times higher than the same intervention price;

b) The high stock value of the grain and the high risks of quantitative or qualitative losses during storage;

c) The lack of experience in implementing intervention measures and the fact that in Romania, traditionally, technological losses higher than the 0.2% accepted by EU legislation;

d) The fact that the value of the lost cereals is set in accordance with Annex X and XI of EC Reg. 884/2006 (5% is added to the current market value);

e) The value of the lost grain is reimbursed to the European Commission or it is diminished from the value that the Member State is entitled to receive;

Moreover, the grain house operators subject to this provision must undergo a procurement procedure and adhere to a contract. Hence, it is not a mandatory provision for all warehouse operators.

Taking into account that grain warehouses generally have large and very large capacities, the condition of submitting a guarantee of 200% of the value of the goods in storage involves extremely high costs and may severely limit access to the market for new economic operators. There is no explanation why the insurance policy may be concluded for the value of the grain but other guarantees need to equal the value of 200 % of the quantity.

Assess the opportunity to decrease the value of the guarantee from 200 % so as not to constitute a barrier to entry on the market.

20

Order No. 392/2013 establishing the conditions to be met by business operators marketing bakery products in Romania and Order No. 976/1998 approving the Hygiene Norms concerning the production, processing, storage, preservation, transport and marketing of food

Order No. 392/2013 – Art. 8 Order No. 976/1998 – Art. 50 par. 6

Bakery products

Bakery products must be sold in specially designated areas of the stores and must be distinctly separated from other food products. Moreover, as regards bread, any area designated for sale should be a minimum of 10 m2. The legislation does not differentiate between packaged and unpackaged bakery products. The provision might be too strict considering that other products, from which contamination might come, are generally packaged and as such, contamination is highly unlikely.

Barrier to entry

The policy maker’s objective was to safeguard public health, avoiding contamination of bakery products, which are regularly sold without packaging, from other food or chemical products.

Requiring bakery products to be sold in specially designated areas with a predetermined minimum area size, may create barriers for operators which sell bakery products as well as discrimination between producers of bakery products and producers of other food products. Operators which sell bakery products might be disadvantaged by imposing the obligation to arrange a special area for commercialisation of bakery products. Producers of other food products might be disadvantaged in comparison with producers of bakery products by granting bakery products special status among food products due to their distinct marketing.

Amend the legislation so as to abolish the minimum size of 10m2 of the specially designated area for sale of bakery products.

21

Order No. 392/2013 establishing the conditions to be met by business operators marketing bakery products in Romania and Order No. 976/1998 approving the Hygiene Norms concerning the production, processing, storage, preservation, transport and marketing of food

Art. 9

Bakery products

Compliance with rules on bakery products is verified by the National Authority for Consumer Protection, while compliance of observance of rules on bread is verified by inspectors from Public Health Directorates.

Barrier to entry

We were not able to identify the objective of such a provision.

With respect to the verification of compliance with the legal provisions, two different authorities with such competence may create confusion for market participants.

A sole control authority should be decided, no double check should be allowed for the observance of the same obligations.

22

Order No. 358/2003 approving the Norms on quality and sanitation parameters for the production, import, quality control, marketing and use of simple concentrated fodder, combined feed additives, pre-mixes, energetic substances, minerals and special fodder

Art. 33

Mixed fodders

In order to be able to operate the production of fodder, the producers must have a manufacturing licence. This licence is issued by the General Directorate for Agriculture and Food Industry in the county where they are based. However there is no deadline specified for the approval of the application. It is our understanding that in practice, the general administrative deadline is used (i.e. 30-day term), during which the public authorities should respond to any petition.

Unclear legal provision

The Ministry of Agriculture and Rural Development has not received any complaints as to delays for issuing the licence in 30 days.

The manufacturing licence is mandatory for a fodder producer in order to operate. Not having a deadline for approving applications might generate abusive behaviour from the issuing authority, thereby creating a barrier to entry into the market for new operators.

Amend the legislation and stipulate a maximum period during which the producer’s application would be analysed and the licence would be issued.

23

Law No.101/2014 on regulatory measures for the storage of edible seeds and their storage certificate regime

Art. 4 par. 2, Art. 6 par. 1

Warehousing

Operators running facilities for storage of edible seeds must obtain a licence in order to obtain deposit certificates useful in obtaining further bank loans. The licence is granted by the competent ministry at the proposal of a commission composed of 15 members (4 members designated by the ministry and 11 members designated by industry associations and the commodities exchanges), which verifies the reports and documentation regarding the technical and financial conditions for the issuance of the licence.

Licence

The Commission also has other attributions such as approving the average price of edible grains on the market, designating administrators of the deposits, etc. To cover such a large sector as well as for transparency reasons, the Commission is made up of representatives of stakeholders across the sector (producers, storage providers, sellers, processors, stock exchange markets, ANSVSA, etc).

This provision may trigger i) exchanges of information between competitors ii) potential barriers to entry on the market as a competitor is involved in the approval process and iii) administrative barriers due to a tendency of standardisation of interests/actions in cases where the same associations are dictating their own interests. In addition, a commission formed of 15 members seems to be too much for issuance of a licence.

The legislation should be amended to avoid possible conflicts of interest, for example, by authorising the Ministry to issue the deposit licences or by ensuring that the majority of Commission members are appointed by the Ministry.

24

Law No.101/2014 on regulatory measures for the storage of edible seeds and their storage certificate regime

Art. 14 par. 3

Warehousing

Entities operating storage facilities for edible seeds must ensure the publication and update of the deposit fees used at every deposit location.

Disclosure

Publishing the fees ensures transparency and allows those interested to choose the preferred storage facility. In addition, publication of such a fee protects farmers against local market power.

Publication of fees for deposit may favour alignment between operators of deposits of edible seeds and as a consequence distort the fees determined by the market.

No recommendation for change.

25

Law No. 150/2004 on safety of aliments and food for animals

Entire act

Food and animal food safety

The law transposes Regulation (EC) No. 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. Thus, two pieces of legislation are applicable, with the same objective. The EU Regulation is directly applicable in Romania and as such, there is no need for transposition into domestic legislation.

Barrier to entry

Law 150/2004 partially transposes EC Reg. 178/2002 and was issued to set the legal framework for setting up the competent authority in the field of food safety (ANSVSA) and to establish that this authority is the liaison institution for the Food Safety European Authority.

It is unclear for companies active in the field what legislation is in force.

Abolish provisions which are double regulated.

26

Order No. 113/2008 on the approval of Instructions for the organisation and performance of official control activity in manufacturing, processing, storage, transport, exploitation and marketing facilities food products and sub-products of non-animal origin

Art. 8, Art. 9, Art.14

Products of non-animal origin

The Sanitary Veterinary and Food Safety Department (ANSVSA) is responsible for the controls related to sanitary veterinary authorisations. ANSVSA charges the economic operators for the official controlling activity, thus generating extra budgetary income used for covering the costs of ANSVSA related to the controlling activity performed. There is no provision referring to the possibility of carrying out the controls with another laboratory. The Order is in force until December 2016.

Controls

The applicable control procedure is in line with EU Regulation No. 882/2004. The general principle stated in the EU regulation when referring to coverage of costs for official controls is that the Member States must ensure financial resources through any means they consider necessary, including taxation or fees, as mentioned in align. (32) of the Regulation preamble. The objective of the provisions is the safety of the foodstuffs and the general health of the population. The objective of the request for fees in exchange for mandatory controls is to ensure a sufficient workforce across all regions of the country and also to ensure coverage of costs for lab tests.

The law establishes a cost borne by the economic operator for a mandatory control that, under normal circumstance, the operator might not have requested.

No recommendation for change.

27

Order No. 57/2010 approving the Sanitary veterinary norm regarding the sanitary veterinary licensing of facilities for the production, storage, transport and/or distribution of products of animal origin

Annex- Norm Art.3, Art. 4

Products of animal origin

The law establishes the obligation to obtain a sanitary veterinary licence from ANSVSA for facilities for the production, storage, transport and/or distribution of products of animal origin. Following the licensing process, the licensed units are subject to controls.

An undertaking amongst those that are the objective of the norm, in order to be operational, must obtain from ANSVSA:

* a statement of conformity before being built (for new facilities)

* a conditional licence

* a licence to be able to operate intra-community

* a regular licence (after the conditional one) valid as long as the sanitary veterinary regulations are observed.

Each time a licence is requested, the company must submit similar documents to the same authority and pay a fee.

Licence

The licences mentioned are foreseen by EU legislation, namely Art. 31 of EU Reg. No. 882/2004. According to discussions held with MADR, local sanitary-veterinary authorities have received instructions from ANSVSA for clarifying the content and the application of Order No. 57/2010.

Moreover, national guides of good practice can be developed according to Art. 8 of EC Regulation 852/2004. When these national guides are developed, according to the same article, they are developed and disseminated by food business sectors in consultation with representatives of parties whose interests may be substantially affected, as defined by the regulation. National guides are developed under the aegis of a national standards institute. Member States shall forward to the Commission national guides. The Commission shall set up and run a registration system for such guides and make it available to Member States. These guides are to be found in the Register for National Guides to Good Practice together with other guides issued by the EC – http://ec.europa.eu/food/food/biosafety/hygienelegislation/good_practice_en.htm.

The law is ambiguous regarding the procedure for obtaining a sanitary-veterinary licence. The law refers to different types of sanitary veterinary licences that may be issued by the ANSVSA, and it is not clear which should be obtained first, which second, which is optional (if any). The lack of clarity may leave room for different interpretations. Also, it is not clear whether the conditional licence and the licence to be able to operate intra-community can be combined, or whether they are alternatives.

Publish on ANSVSA`s web-page the instructions sent to the local sanitary-veterinary authorities meant to clarify the content and the application of Order No. 57/2010 for economic operators. Eliminate requests for documents previously requested/issued by ANSVSA.

28

Order No. 57/2010 approving the Sanitary veterinary norm regarding the sanitary veterinary licensing of facilities for the production, storage, transport and/or distribution of products of animal origin

Annex – Norm –Art. 3 par. 4-6

Products of animal origin

Before building any of the facilities mentioned by the Norm, a formal, written statement of conformity needs to be obtained from ANSVSA. Conformity with sanitary veterinary legislation is sought with regard to the planned location of the facility, the activities to take place in the facility, the building plan of the facilities, workflows, equipment and machinery. No deadline is set for granting/denying such approval.

In practice the same deadline is applied as the one provided under Art. 6 of the same piece of legislation which states that the authorisation request will be settled 15 working days from the date of registration of the request).

Licence

No policy maker objective has been identified. According to the discussions held with MADR, instructions have been sent to the local sanitary-veterinary authorities regarding the application of Order No. 57/2010.

No deadline is set for granting/denying the written statement of conformity for new facilities which might lead to various time limits for various companies and a discriminatory approach.

Amend legislation in order to make it clear that the request for a written statement of conformity must be settled by the authority in the term provided for responding to the authorisation request.

29

Order No. 57/2010 approving the Sanitary veterinary norm regarding the sanitary veterinary licensing of facilities for the production, storage, transport and/or distribution of animal origin products

Annex – Norm –Art. 3 par.7

Products of animal origin

Any modifications to the initial approved technological workflow of the facilities mentioned by the Norm must be further approved by ANSVSA. No time limit is set for granting/denying such approval.

In practice the same deadline is applied as the one provided under Art. 6 of the same piece of legislation which states that the authorisation request will be settled 15 working days from the date of registration of the request).

Licence

No policy maker objective has been identified.

No deadline is set for granting/denying the approval of modifications to the workflow which might lead to various time limits for various companies and a discriminatory approach.

Amend legislation in order to make it clear that the request for granting/denying approval of modifications to the workflow must be settled by the authority in the terms provided for settling the authorisation request.

30

Order No. 64/2007 approving the Sanitary veterinary norm regarding the organisation and performance of the official sanitary veterinary control activities carried out by specialised personnel in facilities producing animal origin foodstuffs

Annex. 2. Art. 2

Fees

The service provision contract template used by ANSVSA when performing sanitary veterinary control specifies as the date of end of contract 31 December 2007.

Tariffs

The end date is prolonged yearly through an order of ANSVSA but the legal provision was not updated.

Economic operators are unable to identify the applicable legal provisions.

Update the template in Annex No. 2 so as to allow parties to fill in the end date of the contract or to fix the term in number of months so as to avoid yearly modification of Order 64/2007.

31

Order No. 35/2011 on the approval of the Minimum operating conditions of small capacity slaughterhouses

Art. 3, par. 2 b)

Slaughter-house

If animals are to be transported more than 50 km before reaching the slaughtering unit, small slaughterhouses must hold, as minimum equipment, a paddock.

Restrictions

The objective of the provision is to avoid the presence of hormones in the processed meat due to anxiety of the animals being slaughtered. Also, the provision is in line with EU regulations in the field and with the international food safety standards of Codex Alimentarius. The Code of hygienic practice for meat, Chapter 6.2 mentions that holding of animals should take into consideration their physiological condition which should not be compromised, e.g., animals should be adequately rested and not overcrowded and protected from weather where necessary.

Furthermore, the Order was drafted based on the exceptions permitted under Art. 10, pt. 4b) of EC Regulation 853/2004, destined to encourage small slaughterhouses. The order establishes the minimum conditions a small slaughterhouse should fulfill, taking into consideration that they benefit from certain exceptions regarding space and equipment (exceptions from Annex III of EC Reg. 853/2004).

The provision seems to discourage new competitors on the slaughterhouses market by establishing a standard that creates a disadvantage for small businesses at the beginning of their activity.

No recommendation for change.

32

Order No. 34/2008 approving the Sanitary veterinary and food safety norm for granting exemptions to facilities producing foodstuffs with traditional characteristics according to the requirements of the European Parliament and Council Regulation No. 852/2004/EC on the hygiene of foodstuffs, and laying down the procedure for granting exemptions and sanitary veterinary registration, and for food safety from facilities producing foodstuffs with traditional characteristics

Art. 9 par. 3 Norms

In case traditional production units “repeatedly” fail to meet the requirements established by the norms, they are removed from the list of authorised production units. The term “repeatedly” is not defined.

According to MADR Order 690/2004, Art. 2 a traditional product is one obtained from traditional raw materials, has a traditional composition or a traditional production/ processing method and it can clearly be distinguished from other similar products.

Exemptions

The Order was drafted based on the exceptions allowed by Art. 7 of EC Regulation 2074/2005 for the units producing traditional foodstuffs. The exceptions refer to certain requirements regulated under Annex II of EC Reg. 852/2004. The provisions under Art. 9 (3) were set based on Art. 54 of EC Reg. 882/2004. The Order was referred to and accepted by the European Commission.

The provision leaves room for different interpretations of the word “repeatedly”, which might lead to discriminatory approaches.

No recommendation for change.

33

Order No. 34/2008 approving the Sanitary veterinary and food safety norm for granting exemptions to facilities producing foodstuffs with traditional characteristics according to the requirements of the European Parliament and Council Regulation No. 852/2004/EC on the hygiene of foodstuffs, and laying down the procedure for granting exemptions and sanitary veterinary registration, and for food safety from facilities producing foodstuffs with traditional characteristics

Art. 12, Art. 13 Norms

The law foresees a list of minimum hygiene requirements for facilities producing foodstuffs with traditional characteristics in general. Specifically, hygiene requirements for sheepfolds are lighter.

For example, in the case of sheepfolds, working staff does not have to disinfect their hands, as washing is considered enough. Sheepfolds do not have to have a separate area or a closed cabinet for storing sanitary materials and/or protection equipment.

Exemptions

The provision is in line with EU Regulation 852/2004. Exceptions to certain requests of Annex II of EC Regulation 852/2004 need to be approved by the local sanitary veterinary authorities.

The legal provision seems to establish standards that offer advantages to sheepfolds compared to other type of facilities.

No recommendation for change.

34

Order No. 34/2008 approving the Sanitary veterinary and food safety norm for granting exemptions to facilities producing foodstuffs with traditional characteristics according to the requirements of the European Parliament and Council Regulation No. 852/2004/EC on the hygiene of foodstuffs, and laying down the procedure for granting exemptions and sanitary veterinary registration, and for food safety of facilities producing foodstuffs with traditional characteristics

Art. 12 (n), Art. 13 (l)

In case of facilities producing foodstuffs with traditional characteristics and that are requesting derogations from the general health and safety framework, personnel in charge of preparing and handling raw materials and food products have to show proof that they are in good health by presenting a medical certificate. The law does not elaborate on how often the document must be submitted, nor does it mention what are the measures to be taken if the personnel have health issues. The law does not stipulate whether work health and safety legislation is applicable or if more strict rules are applicable. However, all these requirements are stipulated under EU regulation 852/2004.

Exemptions

The provision is in line with EU Regulation 852/2004 (Annex 1, Art. 4, letter E stipulates the obligation to ensure that staff handling any type of foodstuffs in primary production are in good health). The objective of the provision is to ensure safety of foodstuffs in the production chain.

More provisions regarding the hygiene and health of staff handling foodstuffs are foreseen in Chapter VIII, Annex II of the same regulation.

The representatives of the Public Health Departments are responsible for applying the legislation elaborated by the Ministry of Health regarding staff hygiene and health. Moreover, undertakings in the food sector have the obligation to prepare and implement specific procedures regarding the hygiene and health of the staff. These procedures are verified by the local sanitary-veterinary authorities and their implementation is supervised by official veterinarians.Lack of conformity with the procedures is sanctioned by the local bodies of ANSVSA (local sanitary-veterinary authorities).

No harm to competition has been identified. However, the legal provision establishes unclear and incomplete standards, thus leaving room for discriminatory approach between competitors.

No recommendation to change.

35

Order No. 976/1998 approving the Hygiene norms concerning the production, processing, storage, preservation, transport and marketing of food

Entire act

Food processing framework legislation

After discussions with MADR, it appears that the domestic legislation has the same objective as Regulation (EC) No. 852/2004 regarding food hygiene, thus dual pieces of legislation are applicable. The EU Regulation is directly applicable in Romania and as such, there is no need for transposition into domestic legislation.

Dual regulation

Domestic legislation was not expressly abolished after entrance into force of EC Regulation No. 852/2004 which is directly applicable in Romania as of 1 January 2007.

It is unclear for companies active in the field what legislation is in force.

Abolish provisions which are double regulated.

36

Order No. 976/1998 approving the Hygiene norms concerning the production, processing, storage, preservation, transport and marketing of food

Art. 17

Food processing framework legislation

Public catering units and production units with high risks for consumers may hire only qualified personnel. However, clear criteria for determining units with high risks for consumers are not defined. Minimum criteria for personnel of public catering units and production units is established in Annexes I & II of EC Regulation No. 852/2004.

Unclear legal provision

The lawmaker did not have to define notions under obsolete legislation.

Since the provision does not set standard criteria for determining the rate of risk for food production units and/or catering units by sector, it is hard for these units to self-determine their level of risk. Also it is difficult for those units to establish, before entering the market, their cash flow and working capital needs concerning future personnel costs.

Abolish as indicated under point 35 above.

37

Order No. 976/1998 approving the Hygiene norms concerning the production, processing, storage, preservation, transport and marketing of food

Art. 19

Food processing framework legislation

Food industry units must request an authorisation when increasing a production plan over the normal capacity of the unit. With this authorisation, the sanitary authorities can establish special clauses. It is not defined by the law what the special clauses are and what they refer to. The procedure to be applied when increasing the production plan over the normal capacity of the unit is covered by Art. 6 of EC Regulation No. 852/2004.

Unclear legal provision

The lawmaker did not have to define notions under obsolete legislation.

Since the legal provision does not include details on the types of special clauses that are applicable in this situation, one may assume that they might be favourable for some competitors while being restrictive to others.

Abolish as indicated under point 35 above.

38

Order No. 976/1998 approving the Hygiene norms concerning the production, processing, storage, preservation, transport and marketing of food

Art. 31 par. 3

Food processing framework legislation

Depending on the type of catering unit, annexes must exist to the actual kitchen. Cold dishes must be prepared in a separate room (salads, mayonnaise, products with gelatine, sandwiches, and cold appetizers), completely separated from the actual kitchen. Provisions regarding the cold chain of foodstuffs also appear under chapter IX of EC Regulation No. 852/2004.

Unreasonable restriction

The lawmaker did not have to define notions under obsolete legislation.

The provision could limit the possibility for some catering units to offer a certain type of product, cold dishes in this case, in case the space does not meet this standard, aiming to promote certain types of suppliers that are more likely to meet this standard. Also this standard may significantly raise the investment costs of location.

Abolish as indicated under point 35 above.

39

Order No. 976/1998 approving the Hygiene norms concerning the production, processing, storage, preservation, transport and marketing of food

Art. 37 f)

Food processing framework legislation

Duck eggs are not to be used in public catering units. We have not identified such a recommendation under a piece of legislation applicable at the EU level. However, it appears that such a interdiction in using duck eggs is also applied in other EU countries (e.g. the United Kingdom and Ireland) due to the high risk of salmonella and the perishable nature of the foodstuff..

Unreasonable restriction

Duck eggs have a high risk of salmonella and a perishable nature.

The provision may limit the ability of duck-egg suppliers to provide their goods to the catering market.

Abolish as indicated under point 35 above and assess whether to keep the interdiction under a different piece of legislation.

40

Order No. 976/1998 approving the Hygiene norms concerning the production, processing, storage, preservation, transport and marketing of food

Art. 38 (d)

Food processing framework legislation

In case there is only one room for storing perishable and non-perishable raw materials, it is required that the supply of perishable goods (meat and dairy products especially) in catering units does not exceed the quantity needed to cover supply needs for one operating day. Provisions regarding the cold chain of foodstuffs also appear under chapter IX of EC Regulation No. 852/2004.

Unreasonable restriction

The lawmaker did not have to define notions under obsolete legislation.

The provision may generate additional supply costs for the catering units. On the other hand, it may limit the ability of suppliers of perishable goods to provide their goods on the catering market.

Abolish as indicated under point 35 above.

41

Order No. 976/1998 approving the Hygiene Norms concerning the production, processing, storage, preservation, transport and marketing of food

Art. 62

Food hygiene

Selling of unwrapped ice cream in case of small fixed vendors is allowed only indoors.

Unreasonable restriction

Safety perspective

The provision limits the ability of a certain type of ice cream vendor to sell their products.

Abolish as indicated under point 35 above and assess whether to keep the interdiction under a different piece of legislation if this is necessary from a safety perspective.

42

Order No. 321/2004 approving the Norm on the nature, content, production, quality, packaging, labelling, marking, storage and transport of canned fruit mixtures

Norm, Annex 1, Art 2 -3

Standards

When preparing canned fruit mixtures, only 5 named fruits can be used. The law also indicates which ones may be left out if only 4 fruits are used.

Unreasonable restriction

The provision is in line with international food safety standards of Codex Alimentarius- Codex standard for canned fruit cocktail Codex Stan 78-1981.

Prevents the economic operators who produce canned fruit mixtures from using recipes that contain other types of fruits than those mentioned in the norm, thus limiting innovation and offerings of different products for which there might be a market segment.

No recommendation for change.

43

Order No. 321/2004 approving the Norm on the nature, content, production, quality, packaging, labelling, marking, storage and transport of canned fruit mixtures

Norm, Annex 2, Table 1

Standards

The norm establishes set proportions of the fruits a producer may use in his canned fruit mixture recipe.

Unreasonable restriction

The provision is in line with the international food safety standards Codex Alimentarius- Codex standard for canned fruit cocktail Codex Stan 78-1981.

Prevents the economic operators who produce canned fruit mixtures from using recipes that contain different proportions of fruits than the ones mentioned in the Norm, thus limiting innovation and restricting product offerings.

No recommendation for change.

44

Order No. 321/2004 approving the Norm on the nature, content, production, quality, packaging, labelling, marking, storage and transport of canned fruit mixtures

Norm, Annex 4, Table 3

Standards

Standards are set for the dimensions and types of fruit cuts allowed in canned fruit mixtures.

Unreasonable restriction

The provision is in line with the international food safety standards of Codex Alimentarius- Codex standard for canned fruit cocktail Codex Stan 78-1981.

Prevents the economic operators who produce canned fruit mixtures from using different cuts (shape or size), thus limiting innovation and restricting product offerings.

No recommendation for change.

45

Order No. 242/2008 on the distortion of surplus sugar stocks for use in animal feed

Art. 3 par. 2

Sugar

Only sugar intended for animal feed is eligible for a denaturing/distortion process. Distortion of sugar refers to the process of transforming sugar in animal feed through different mixtures, in different proportions, as set by the legislation. According to Romanian legislation, a minimum quantity of 10 metric tonnes of white sugar may be distorted per day in a single location.

In accordance with the Act of Accession to the EU of Romania, quantities of stocks of sugar or isoglucose exceeding the normal carry-over stock had to be eliminated from the market by 30 April 2008 at the latest, including through distortion for use in animal feed.

Currently, the licensed sugar producers do not have surplus stocks according to data held by the Ministry.

Following the 2006 reform of the sugar regime that introduced changes to the Union sugar sector, Regulation (EU) No 1308/2013 is now applicable for the sugar market, establishing the sugar quotas for each country.

Obsolete provision

According to Art. 19-21 of EC Regulation 100/1972, the minimum quantity to be denatured per day in any one place shall be 20 metric tonnes. However, Member States may fix another minimum quantity.

Even if currently no surplus stocks appear to be held by the producers, in case such surplus stocks should appear, the provision should be in force.

Considering that it is not applied in practice for surplus sugar stocks, the mere existence of legal requirements creates uncertainty among market participants.

No recommendation for change.

46

Order No. 109/2010 approving the Sanitary veterinary norm on the sanitary veterinary licensing/registration of facilities involved in farm feed and means of transport of farm feed

Art. 14 par. 8 b)

Farm feed

Facilities involved in farm feed and means of transport of farm feed cannot operate unless they are authorised/registered with the competent local health and veterinary authority. The competent local health and veterinary authority can lift the granted authorisation/registration when “on several occasions”, breach of legal provisions is reported and if the facility continues not to offer “proper safeguards” with regards to future production.

The list of authorised units is available on the ANSVSA website (www.ansvsa.ro/?pag=814)

Unclear legal provision

The lawmaker aims to insure that the authorisation/registration is, at all times, based on compliance with all legal provisions and quality standards. Upon discussions with ANSVSA it is our understanding that ANSVSA is currently drafting an Order to modify /complete/abolish parts of Order 109/2010, in order to clarify certain issues which, in the current version, may leave room for interpretation.

The legal provision establishes unclear and incomplete conditions for lifting authorisation, thus making it difficult for competitors to comply and leaving room for discrimination.

Amend the legislation so that it clearly defines phrases such as: “on several occasions”, “proper safeguards”.

47

Order No. 145/2007 on approval of the Norm for food safety which sets out the conditions in case of import-export operations, transit and intra-community trade of non-animal food products subject to the supervision and control of food safety

Art. 9 par. 1 c)

Taxation

In case of food products of non-animal origin, the authorities can perform laboratory analyses to verify compliance with the feed and food law. In such cases, in practice, importation is delayed at the border by sanitary veterinary controls. During the laboratory analysis for verification of compliance with the feed and food law, the products are kept at the border in refrigerator trucks until the issuance of the laboratory results (between 3 and 7 days). This involves significant costs for the undertaking in relation to rental of the trucks, salary of the driver, fuel used, etc. In other EU Member States the products are released from customs immediately after sampling. Operators are avoiding Romania borders when entering into EU through other Member States (e.g. Bulgaria) to reduce transportation time and costs.

Excise duties

The domestic legislation is in line with EU legislation. Also, there is no mention under Order 145/2007 in the sense that the transports are held at the border until the finalisation of the analysis. However, this is the practice of the authorities which do not issue the necessary documents.

The practice of holding transports at the border until the finalisation of the laboratory analysis whereas in other Member States the transports are released immediately after sampling distorts the patterns of trade within the common European market as economic operators avoid Romanian borders and pass through neighbouring countries instead. The economic operators are adding significant costs due to this practice which could be reduced in cases where they could deposit the products in their own warehouses until the issuance of laboratory results.

Guidelines should be issued in order to ensure that the authorities are applying the legal provisions and are not keeping trucks at the borders without justification.