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Abstract

The development of market competition and limitation of monopolistic activities have been declared as one of the major principles of the national economic policy even prior to the declaration of independence in 1991 and official recognition of the Republic of Moldova as a sovereign state in 1992. The urgent government measures preceding the adoption of the first competition law have ordered state authorities not to permit the undertakings with dominant position: (1) to limit or to suspend production of goods, including their withholding from the market in order to maintain the demand and provoke price increases; (2) to refuse the fulfilment of contracts for the provision of works or services when such undertakings have real possibility to fulfil the contracts; (3) to impose unfavourable contract terms or other conditions that are prejudicial to the interests of the trading party and are not related to the object of the contract (obligations to transfer raw materials, goods, residential buildings, apartments; unmotivated requests to transfer financial means, including foreign currency; or transfer of labour force).

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Notes

  1. 1.

    See Law No. 691 of 27 August 1991 concerning the Declaration of independence of the Republic of Moldova, published in the Official Gazette of the Parliament No. 11 of 27 August 1991.

  2. 2.

    See UN General Assembly Resolution A/RES/46/223 of 2 March 1992, Admission of the Republic of Moldova to membership in the United Nations.

  3. 3.

    See Government Decision No. 2 of 4 January 1991 concerning urgent measures for de-monopolization of the national economy of the Soviet Socialist Republic of Moldova, published in the Official Gazette of the Parliament No. 000 on 4 January 1991.

  4. 4.

    Government Decision No. 2 of 4 January 1991, para 2(1). During the transition period before the adoption of the first Competition Act, undertakings with market share exceeding 70% have been viewed as dominant while market shares between 35% and 70% have been assessed on case-by-case basis.

  5. 5.

    See Law No. 906 of 29 January 1992 concerning limitation of monopolistic activity and development of competition, published in the Official Gazette of the Parliament No. 2 of 1 March 1992.

  6. 6.

    The law provided that an undertaking with a market share less than 35% could not be considered dominant. 1992 Competition Act, Article 3(2).

  7. 7.

    1992 Competition Act, Article 3(1).

  8. 8.

    Government Decision No. 619 of 5 October 1993 concerning implementation of the Law concerning limitation of monopolistic activity and development of competition, published in Official Gazette of the Parliament No. 10 of 30 October 1993, Annex 3 Regulation concerning the procedure for examination of competition infringements, para 2.

  9. 9.

    Ministerul Economiei, http://www.mec.gov.md/. Accessed 22 March 2015.

  10. 10.

    1992 Competition Act, Article 13. See also Government Decision No. 619 of 5 October 1993, Annex 3.

  11. 11.

    See Government Decision No. 619 of 5 October 1993, Annex 2 Regulation concerning the state registry of the dominant undertakings on the markets of the Republic of Moldova.

  12. 12.

    1992 Competition Act, Article 9. See also Government Decision No. 619 of 5 October 1993, Annex 1 Regulation concerning examination of the notifications for creation and transformation of undertakings, undertakings with considerable foreign investments, and purchase of shareholdings in accordance with applicable law.

  13. 13.

    Law No. 1103 of 30 June 2000 concerning protection of competition, published in the Official Gazette of the Republic of Moldova No. 166–168 of 31 December 2000.

  14. 14.

    2000 Competition Act, Article 6.

  15. 15.

    2000 Competition Act, Article 6(a)-(i).

  16. 16.

    Agenţia Naţională pentru Protecţia Concurenţei, http://old.competition.md/. Accessed 22 March 2015.

  17. 17.

    Decision of the Parliament No 21 of 16 February 2007 concerning measures for the establishment of the National Agency for Protection of Competition, published in the Official Gazette of the Republic of Moldova No. 29 of 2 March 2007.

  18. 18.

    2000 Competition Act, Article 12(c).

  19. 19.

    2000 Competition Act, Article 18(1).

  20. 20.

    For the review of the NAPC’s decisional practice during the first year of enforcement of the 2000 Competition Act, see A. Svetlicinii, Enforcement of competition law in the Republic of Moldova: one year on, 29(9) ECLR 2008, pp. 532–539.

  21. 21.

    In 2009 the NAPC has established dominant position of the three airlines (Air Moldova, Moldavian Airlines and Tandem Aero) on the regulated routes operated by these companies on the basis of the code share agreements with foreign air carriers. See A. Svetlicinii, (Case Comment) Moldova: abuse of dominant position – air transport 31(1) ECLR 2010, N3–4.

  22. 22.

    See e.g. NAPC Decision No. 7 of 26 July 2007, published in the Official Gazette of the Republic of Moldova No. 112–116 on 3 August 2007; NAPC Decision No. 41 of 15 November 2007, published in the Official Gazette of the Republic of Moldova No. 188–191 on 7 December 2007; NAPC Decision No. 60 of 12 December 2007, published in the Official Gazette of the Republic of Moldova No. 14–15 on 22 January 2008.

  23. 23.

    See A. Svetlicinii, (Case Comment) Moldova: abuse of dominant position – heating services – dominance assessments, 30(7) ECLR 2009, N105–106.

  24. 24.

    See A. Svetlicinii, (Case Comment) Moldova: abuse of dominant position – thermal energy – natural gas – public regulation – exclusive licences – ex ante determination of dominance, 29(12) ECLR 2008, N195–196.

  25. 25.

    NAPC Decision No. AA-16-10/21 of 17 March 2011.

  26. 26.

    NAPC Decision No. DCC-49-09/79 of 24 March 2009.

  27. 27.

    Source of the data: NAPC Activity Report for 2007–2011. http://old.competition.md/reports/Raport2011.pdf. Accessed 22 March 2015.

  28. 28.

    2000 Competition Act, Article 6(f).

  29. 29.

    Institutul Național de Standardizare, http://www.standard.md/. Accessed 22 March 2015.

  30. 30.

    CC Decision No. ASR-10 of 3 April 2014. See A. Svetlicinii, (Case Comment) Moldova: abuse of dominant position – standards setting 35(10) ECLR 2014, N89–90.

  31. 31.

    See A. Svetlicinii, The Moldovan Competition Authority finds the existence of cartel on the market for international motor insurance (Green Card), 3 March 2009, e-Competitions Bulletin March 2009, Art. N° 25690.

  32. 32.

    Law No. 183 of 11 July 2012 on competition, published in the Official Gazette of the Republic of Moldova No. 193–197 of 14 September 2012.

  33. 33.

    See V. Mircea, The Republic of Moldova adopts a new competition law: A step into the right direction, 1 January 2013, e-Competitions Bulletin January 2013, Art. N° 51099.

  34. 34.

    2012 Competition Act, Article 4.

  35. 35.

    2012 Competition Act, Article 10(2). See also Regulation on establishing dominant position on the market and assessing the abuse of dominant position, approved by CC Decision No. 16 of 30 August 2013, published in the Official Gazette of the Republic of Moldova No. 206–211 of 20 September 2013 (hereafter referred as “Regulation”), para 35.

  36. 36.

    2012 Competition Act, Articles 10(4), 10(5). See also Regulation, para 14.

  37. 37.

    Consiliul Concurenței, http://www.competition.md/. Accessed 22 March 2015.

  38. 38.

    Regulation, para 13.

  39. 39.

    Regulation, para 36.

  40. 40.

    These criteria are neither exhaustive nor cumulative. Regulation, paras 40–41.

  41. 41.

    2012 Competition Act, Article 11. The original text in Romanian language reads as follows: “Este interzisă folosirea unei poziţii dominante pe piaţa relevantă în măsura în care aceasta poate afecta concurenţa sau leza interesele colective ale consumatorilor finali. Practicile abuzive pot consta în special în: a) impunerea, în mod direct sau indirect, a unor preţuri inechitabile de vînzare ori de cumpărare sau a altor condiţii inechitabile de tranzacţionare; b) limitarea producţiei, comercializării sau dezvoltării tehnologice în dezavantajul consumatorilor; c) aplicarea în raporturile cu partenerii comerciali a unor condiţii inegale la prestaţii echivalente, creînd în acest fel unora din ei un dezavantaj concurenţial; d) condiţionarea încheierii contractelor de acceptare de către partenerii comerciali a unor prestaţii suplimentare care, prin natura lor sau conform uzanţelor comerciale, nu au legătură cu obiectul acestor contracte; e) practicarea unor preţuri excesive sau a unor preţuri de ruinare în scopul înlăturării concurenţilor; f) refuzul neîntemeiat de a contracta cu anumiţi furnizori sau de a face livrări către anumiţi beneficiari; g) ruperea unei relaţii contractuale stabilite anterior pe piaţa relevantă pentru singurul motiv că partenerul refuză să se supună unor condiţii comerciale nejustificate.”

  42. 42.

    2012 Competition Act, Article 11(1).

  43. 43.

    2012 Competition Act, Article 11(5).

  44. 44.

    2012 Competition Act, Article 11(7).

  45. 45.

    2012 Competition Act, Article 11(8).

  46. 46.

    Regulation, paras 48–50.

  47. 47.

    2012 Competition Act, Article 11(1).

  48. 48.

    Regulation, para 45.

  49. 49.

    Regulation, para 4.

  50. 50.

    Regulation, para 2. The preamble of the Regulation mentions that it partially transposes the Communication from the Commission—Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, OJ C 45, 24.2.2009, p. 7–20. While the EU document indicates that it contains “the enforcement priorities that will guide the Commission’s action in applying Article 82 to exclusionary conduct by dominant undertakings,” the CC’s Regulation refers to the “priorities that will guide the Competition Council in applying the Article 11 of the Law No. 183 on competition.”

  51. 51.

    Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, OJ 2009 C 45, p. 7.

  52. 52.

    CC Decision No. APD-21 of 5 December 2013.

  53. 53.

    See A. Svetlicinii, The Moldovan Competition Authority finds no dumping practices in the bundled packages on the telecommunications market (IM Sun Communications), 5 December 2013, e-Competitions Bulletin December 2013, Art. N° 64855.

  54. 54.

    See A. Svetlicinii, (Case Comment) Moldova: abuse of dominant position – natural gas 29(10) ECLR 2008, N161.

  55. 55.

    See A. Svetlicinii, (Case Comment) Moldova: abuse of dominant position – taxi services 30(4) ECLR 2009, N51–52.

  56. 56.

    2012 Competition Act, Article 11(2).

  57. 57.

    Regulation paras 51–55.

  58. 58.

    Regulation, para 51.

  59. 59.

    Regulation, para 52.

  60. 60.

    Regulation, paras 83–97.

  61. 61.

    Regulation, para 84.

  62. 62.

    Regulation, para 89.

  63. 63.

    Regulation, para 91.

  64. 64.

    See A. Svetlicinii, The Moldovan Competition Authority investigates the pricing of post-paid mobile services by the incumbent operator (Moldtelecom), 6 March 2014, e-Competitions Bulletin March 2014, Art. N° 68484.

  65. 65.

    CC Decision No. APD-5 of 6 March 2014.

  66. 66.

    See A. Svetlicinii, (Case Comment) Moldova: abuse of dominant position – telecommunications 35(6) ECLR 2014, N50–51.

  67. 67.

    See A. Svetlicinii, (Case Comment) Moldova: abuse of dominant position – telecommunications 35(6) ECLR 2014, N47–48.

  68. 68.

    Regulation, para 90.

  69. 69.

    See A. Svetlicinii, The Moldovan Competition Authority investigates the alleged predatory pricing of mobile telecommunications services by the incumbent operator (Moldtelecom), 23 January 2014, e-Competitions Bulletin January 2014, Art. N° 68488.

  70. 70.

    In that case, the evolution of customer base demonstrated that Moldtelecom’s rivals were much more successful in attracting new customers than the incumbent. As a result, the CC concluded that in the absence of the dominant position and/or anti-competitive effects there was no evidence of an infringement of competition rules. CC Decision No. APD-3 of 23 January 2014.

  71. 71.

    Based on the annual turnover figures from the annual report published by the telecom regulator, the National Regulatory Agency for Electronic Communications and Information Technology (NRAECIT), in 2011 the market shares of the mobile telecom companies were as follows: Moldtelecom (3, 59%), Moldcell (25, 57%), Orange Moldova (70, 84%). Based on the number of customers the NRAECIT reported the following data for 2011: Moldtelecom (6, 07%), Moldcell (36, 61%), Orange Moldova (57, 32%).

  72. 72.

    See A. Svetlicinii (Case Comment) Moldova: abuse of dominant position – telecommunications 35(10) ECLR 2014, N87–88.

  73. 73.

    NAPC Decision No. 64 of 22 October 2009, published in the Official Gazette of the Republic of Moldova No. 163–164 of 13 November 2009.

  74. 74.

    NAPC Decision No. APD-9-11/53 of 13 May 2011. See A. Svetlicinii, The Moldovan Competition Authority finds excessive tariffs charged by the bus terminal operators for their ticketing services (Auto Terminals and Stations), 13 May 2011, e-Competitions Bulletin May 2011, Art. N° 37383.

  75. 75.

    2012 Competition Act, Article 11(2)(d), Regulation, paras 56–68.

  76. 76.

    Regulation, paras 69–82.

  77. 77.

    Regulation, paras 98–115.

  78. 78.

    Regulation, para 61.

  79. 79.

    Regulation, para 67.

  80. 80.

    Regulation, para 70.

  81. 81.

    Regulation, para 72.

  82. 82.

    Regulation, para 75.

  83. 83.

    Regulation, para 81.

  84. 84.

    Regulation, para 101.

  85. 85.

    Regulation, para 102.

  86. 86.

    Regulation, para 108.

  87. 87.

    Regulation, para 110.

  88. 88.

    The 2000 Competition Act required the NAPC to publish in the Official Gazette of the Republic of Moldova only its annual reports and decisions of general public interest. As a result, the NAPC exercised an administrative discretion to decide which infringement decisions should be published. See 2000 Competition Act, Annex, paras 27–28.

  89. 89.

    The 2012 Competition Act requires the CC to publish in the Official Gazette of the Republic of Moldova only its regulations, which is a type of secondary legislation of normative character. 2012 Competition Act, Article 45(6). The regulations concern the following: (a) organization and functioning of the CC; (b) organization, functioning and competences of the Council of Experts; (c) block exemption regulations for certain categories of agreements; (d) determination of dominant position and assessment of abuse of dominant position; (e) economic concentrations; (f) commitments; (g) implementation of the state aid regime. 2012 Competition Act, Article 46(6).

  90. 90.

    The annual reports of the NAPC and CC are available at http://old.competition.md/reports/index.php and http://www.competition.md/publications/rapoarte-anuale.html. Accessed 22 March 2015.

  91. 91.

    Based on: NAPC, the Activity Report for 2007–2011. http://old.competition.md/reports/Raport2011.pdf. Accessed 22 March 2015.

  92. 92.

    Based on: NAPC, the Activity Report for 2007–2011. http://old.competition.md/reports/Raport2011.pdf. Accessed 22 March 2015.

  93. 93.

    CC, the Activity Report for 2012–2013, p. 17.

    http://www.competition.md/uploads/rapoarte_anuale/Raportul-privind_activitatea_%20Consiliului-Concurentei_2012-2013.pdf. Accessed 22 March 2015.

  94. 94.

    Activity Report for 2012–2013, p. 18.

  95. 95.

    Activity Report for 2012–2013, p. 20.

  96. 96.

    CC Decisions Nos. APD-1 of 10 January 2014, APD-3 of 23 January 2014, APD-5 of 6 March 2014, APD-6 of 11 March 2014, APD-33 of 25 September 2014, APD-41 of 13 November 2014, APD-42 of 13 November 2014. http://competition.md/decizii/. Accessed 22 March 2015.

  97. 97.

    See A. Svetlicinii and M. Botta, Enforcement of Competition Rules in Regulated Industries: Abuse of Dominance Practices in the New EU Member States, Candidate Countries and Potential Candidates in J. Drexl and F. Di Porto (eds.) Competition Law as Regulation, Edward Elgar, 2015.

  98. 98.

    Curtea Supremă de Justiţie, http://despre.csj.md/. Accessed 22 March 2015. See Law No. 789 of 26 March 1993 concerning the Supreme Court of Justice, published in the Official Gazette of the Republic of Moldova No. 15–17 on 22 January 2013.

  99. 99.

    The interactive map of the courts of general jurisdictions is available at http://courts.justice.md/. Accessed 22 March 2015.

  100. 100.

    Law No. 154 of 6 July 1995 concerning judicial organization, published in the Official Gazette of the Republic of Moldova No. 15–17 on 22 January 2013.

  101. 101.

    2000 Competition Act, Annex “Statute of the National Agency for Protection of Competition”, Article 8.

  102. 102.

    2012 Competition Act, Articles 67–80.

  103. 103.

    2012 Competition Act, Articles 84–92.

  104. 104.

    See Law No. 793 of 10 February 2000 concerning administrative procedure, published in the Official Gazette of the Republic of Moldova (special edition) of 3 October 2006, Articles 8–10.

  105. 105.

    2012 Competition Act, Article 78.

  106. 106.

    2012 Competition Act, Article 79.

  107. 107.

    Law No. 1525 of 19 February 1998 on energy, published in the Official Gazette of the Republic of Moldova No. 50–51 of 4 June 1998, Articles 4(g) and 8(1)(a).

  108. 108.

    Agenţia Naţională pentru Reglementare în Energetică, http://www.anre.md/. Accessed 22 March 2015.

  109. 109.

    Law No. 1525 of 19 February 1998 on energy, Article 4 (2)(b).

  110. 110.

    Law No. 461 of 30 July 2001 concerning the market for petroleum products, published in the Official Gazette of the Republic of Moldova No. 76 of 22 April 2003, Article 1(1).

  111. 111.

    Law No. 123 of 23 December 2009 concerning natural gas, published in the Official Gazette of the Republic of Moldova No. 23–24 of 12 February 2010, Article 3(2)(c).

  112. 112.

    Law No. 123 of 23 December 2009 concerning electricity, published in the Official Gazette of the Republic of Moldova No. 23–24 of 12 February 2010, Article 3(2)(c).

  113. 113.

    Agenţia Naţională pentru Reglementare în Comunicaţii Electronice şi Tehnologia Informaţiei, http://www.anrceti.md/. Accessed 22 March 2015.

  114. 114.

    Law No. 241 of 15 November 2007 on electronic communications, published in the Official Gazette of the Republic of Moldova No. 51–54 of 14 March 2008, Article 7(2)(c).

  115. 115.

    NAPC Decision No. CNP-75/08/13 of 22 February 2011. See A. Svetlicinii, The Moldovan Competition Authority finds an exploitative abuse of dominant position in the invoicing practices of an electricity distributor (RED Union Fenosa), 22 February 2011, e-Competitions Bulletin February 2011, Art. N° 34942.

  116. 116.

    SCJ, case 3ra-1056/14 of 29 October 2014 Red Union Fenosa v Competition Council.

  117. 117.

    SCJ, case 3ra-748/13 of 29 May 2013 Red Union Fenosa v Competition Council. See also SCJ Case 3rh-7/14 of 15 January 2014 Red Union Fenosa v Competition Council.

  118. 118.

    SCJ, case 3ra-7/14 of 12 March 2014 Apă-Canal Chişinău v Competition Council. See also SCJ Case 3ra-1451/12 of 9 October 2013 Apă-Canal Chişinău v Competition Council.

  119. 119.

    2012 Competition Act, Articles 34(2), 34(4). See also Law No. 1525, Article 41(5). The Law on energy requires NERA to cooperate with the CC especially in relation to information exchange, which is necessary for the enforcement of competition rules.

  120. 120.

    See e.g. Law No. 123 of 23 December 2009 concerning natural gas, Article 21; Law No. 124 of 23 December 2009 concerning electricity, Article 21; Law No. 92 of 29 May 2014 concerning thermal energy and development of cogeneration, published in the Official Gazette of the Republic of Moldova No. 178–184 of 11 July 2014, Article 32.

  121. 121.

    See Law No. 241 of 15 November 2007 on electronic communications, Articles 51–57.

  122. 122.

    2012 Competition Act, Article 34(3).

  123. 123.

    2012 Competition Act, Article 34(5). See also A. Svetlicinii, New Competition Law of the Republic of Moldova: Prospects and Concerns, 6 Österreichische Zeitschrift für Kartellrecht (2013), pp. 201–218.

  124. 124.

    See Section 4 of the present report for the review of the CC’s practice in the telecommunications sector.

  125. 125.

    See press releases at http://competition.md/news/a-fost-semnat-acordul-de-cooperare-bilaterala-intre-c-c-si-anrceti.html and http://www.anrceti.md/news18072014_2. Accessed 22 March 2015.

  126. 126.

    See A. Svetlicinii, The Moldovan Competition Authority finds concerted practices on the market for retail of oil derivatives (Petroleum companies), 17 February 2011, e-Competitions Bulletin, Art. N° 36984.

  127. 127.

    See A. Svetlicinii, The Moldovan Supreme Court of Justices quashes two infringement decisions of the Competition Authority on concerted practices in the market for retail trade in oil derivatives for the lack of evidence (Petrom and Lukoil), 7 December 2011, e-Competitions Bulletin December 2011, Art. N° 44496.

  128. 128.

    See A. Svetlicinii, Enforcement of competition law in the Republic of Moldova: one year on 29(9) ECLR 2008, pp. 532–539.

  129. 129.

    For general information about the EU-funded projects in Moldova see the official website of the State Chancellery, Department for Coordination of Policies, External Assistance and Public Administration Reform at http://www.ncu.moldova.md/. Accessed 22 March 2015.

  130. 130.

    See Eugene Stuart and Abel Mateus, Competition Law and Policy: Law Approximation to EU Standards in the Republic of Moldova (IBF International Consulting, 2009), pp. 41, 97.

  131. 131.

    The Eastern Partnership represents the Eastern dimension of the European Neighbourhood Policy. It is a joint policy initiative launched at the Prague Summit in May 2009, which aims to deepen and strengthen relations between the European Union and its six Eastern neighbours: Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine. http://eeas.europa.eu/eastern/index_en.htm. Accessed 22 March 2015.

  132. 132.

    The Moldova-EU Association Agreement was signed in Brussels on 27 June 2014, ratified by the Parliament of the Republic of Moldova on 2 July 2014 and by the European Parliament on 13 November 2014. See Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, OJ 2014 L 260, p. 4.

  133. 133.

    In its 2013 progress report for Moldova the EU Commission noted that “The Competition Council has made considerable progress in adopting the secondary legislation necessary to implement competition law and state aid law.” Joint Staff Working Document Implementation of the European Neighbourhood Policy in the Republic of Moldova: Progress in 2013 and recommendations for action, 27 March 2014, SWD (2014) 93 final, p. 14.

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Svetlicinii, A. (2017). Moldova. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Abuse of Dominant Position and Globalization & Protection and Disclosure of Trade Secrets and Know-How. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-46891-4_9

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