Romania operates a national security review mechanism as part of its merger control regime under the Competition Law (No. 21/1996), empowering the Government, at the proposal of the Supreme Council of National Defence (CSAT), to prohibit an operation to take over the control of undertakings or assets which raises risks for the national security. In its Decision No. 73/2012, CSAT has set out sectors in which mergers could trigger such risks. However, the legal framework does not contain specific rules on foreign investment.
Between 15 September and 6 October 2020, the Romanian government held a public consultation on a draft Emergency Ordinance on Measures to Implement EU Regulation 452/2019 of the European Parliament and of the European Council of 19 March 2019 and a related amendment of the Competition Law. The draft Emergency Ordinance proposes, among other things, to create a new inter-ministerial commission to review inward foreign investment to safeguard Romania’s essential security interests and public order, establish new powers for the Prime Minister to authorise or prohibit proposed acquisitions based on the commission’s recommendations and develop a list of factors to determine whether a proposed acquisition is likely to affect adversely Romania’s essential security interests or public order.
On 14 April 2022, the Romanian Government adopted Emergency Ordinance no.46. This Ordinance seeks to implement the European Union Regulation 2019/452 establishing a framework for the screening of FDI into the Union. It modifies the existing investment screening regime hitherto governed by the Competition Law and the Decision of the Supreme Council of National Defense. Among others, this Ordinance introduces specific provisions regarding the authorisation by the Commission for the Examination of Foreign Direct Investments (CEFDI) of certain categories of investments that investors from outside the EU wish to implement in Romania.
On 28 October 2022, the Romanian Government adopted Decision 1326, which constitutes secondary legislation for the application of Emergency Ordinance no.46/2022. The decision approves a Regulation adopted on the same day that determines the composition, organisation and operation of the CEFDI.
"Article 1 Object and Scope
(1) This emergency ordinance establishes the legal and institutional framework necessary for the application of Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the examination of foreign direct investments in the Union, hereinafter referred to as the Regulation, in the purpose of protecting the essential interests of security and public order. [...]
[...]
Article 2 Definitions
For the purposes of this emergency ordinance, the terms and expressions below have the following meanings:
a) foreign investor:
1. natural person, who is not a citizen of a member state of the European Union, who has made or intends to make a direct foreign investment in Romania;
2. legal person, whose registered office is not in a member state of the European Union, which has made or intends to make a direct foreign investment in Romania;
3. legal entity, whose registered office is in a member state of the European Union, which has made or intends to make a direct foreign investment in Romania, in which control is directly or indirectly exercised by: a natural person who is not a citizen of a member state of the European Union, a legal person whose registered office is not in a member state of the European Union or another legal entity, without legal personality, organized under the laws of a non-member state of the European Union;
4. fiduciary administrator of an entity without legal personality that has made or intends to make a direct foreign investment in Romania or a person in a similar position, if he is not a citizen of the European Union, in the case of a natural person, or if it does not have its registered office in a member state of the European Union, in the case of a legal person, or if this entity was established under the laws of a state that is not a member state of the European Union;
b) foreign direct investment - investment of any nature carried out by a foreign investor with the aim of establishing or maintaining sustainable and direct links between the foreign investor and the targeted enterprise or a separate organizational unit of an enterprise, to whom these are made available funds or are to be made available to them for carrying out an economic activity in Romania, and which allow the foreign investor to exercise control over the administration of the enterprise.
A foreign direct investment is also made when there is a change in the ownership structure of a foreign legal person investor, if this change in relation to the legal person makes it possible to exercise control, directly or indirectly, by a:
1. natural person who is not a citizen of a member state of the European Union;
2. legal person whose registered office is not in a member state of the European Union or
3. another legal entity, without legal personality, organized under the laws of a state that is not a member of the European Union;
c) new investment - initial investment in tangible and intangible assets located in the same perimeter, related to the start of the activity of a new enterprise, the expansion of the capacity of an existing enterprise, the diversification of the production of an enterprise through products that were not previously manufactured, or a fundamental change in the general production process of an existing enterprise. The establishment of a new enterprise represents the creation of a new location for carrying out the activity for which funding is requested, technologically independent from other existing units. The expansion of the capacity of an existing enterprise is the increase of the production capacity in the existing location due to the existence of an unfulfilled demand.
d) control - defined according to the provisions of art. 9 para. (5) and (6) of the Competition Law no. 21/1996, republished , with subsequent amendments and additions;
e) enterprise - defined according to the provisions of art. 2 of Law no. 21/1996, republished , with subsequent amendments and additions;
f) The Commission for the Examination of Foreign Direct Investments, hereinafter referred to as the CEISD or the Commission - collegial body without legal personality, under the authority of the Government of Romania, whose duties are to examine foreign direct investments in accordance with the provisions of the Regulation and this emergency ordinance and issue opinions examination;
g) request for authorization of foreign direct investment - the request submitted by the persons referred to in letter a) at the CEISD, with the object of authorizing a foreign direct investment according to the provisions of art. 3 and 9 .
h) investor from the European Union:
1. natural person, who is a citizen of a member state of the European Union, who made or intends to make an investment in Romania;
2. legal person, whose registered office is in a member state of the European Union, which has made or intends to make an investment in Romania;
3. legal entity, whose registered office is in a member state of the European Union, which has made or intends to make an investment in Romania, in which control is directly or indirectly exercised by: a natural person who is a citizen of a member state of the European Union, a legal person whose registered office is in a member state of the European Union or another legal entity, without legal personality, organized under the laws of a state that is a member of the European Union;
4. fiduciary administrator of an entity without legal personality that has made or intends to make an investment in Romania or a person in a similar position, if he is a citizen of the European Union, in the case of a natural person, or if he is based social in a member state of the European Union, in the case of a legal entity, or if this entity was established under the laws of a state that is a member state of the European Union;
i) economic concentration - defined according to the provisions of art. 9 of Law no. 21/1996, republished , with subsequent amendments and additions.
Article 3 Foreign direct investment subject to authorization
(1) Foreign direct investments defined in art. are subject to CEISD examination and approval . 2 lit. b) and new investments defined in art. 2 lit. c) which:
a) have as their object the fields of activity provided for in art. 2 of the Decision of the Supreme Council of National Defense no. 73/2012 regarding the application of art . 46 para. (9) from the Competition Law no. 21/1996, republished , with subsequent amendments and additions, by reference to the criteria provided for in art. 4 of the Regulation; and
b) whose value exceeds the threshold of 2,000,000 euros, calculated at the exchange rate communicated by the National Bank of Romania valid for the last day of the financial year from the year before the operation was carried out.
(1^1) As an exception to the provisions of para. (1) , will be subject to the examination and approval of the CEISD and the notifications sent according to art. 47 para. (1) from Law no. 21/1996, republished , with subsequent amendments and additions, regardless of whether they are foreign investors or investors from the European Union, if they meet the conditions set out in para. (1) lit. a) and b).
(2) By way of exception to the provisions of para. (1) lit. b) , may be subject to the examination and approval of the CEISD, under the terms of this emergency ordinance, and foreign direct investments that do not exceed the threshold of 2,000,000 euros, if, by nature or its potential effects, in relation to the criteria provided for in art. 4 of the Regulation, may have an impact on security or public order or present risks to them.
(3) If a foreign direct investment made by a foreign investor results in a change in the effective control of an enterprise, within the meaning of the provisions of art. 9 para. (1) from Law no. 21/1996, republished , with subsequent amendments and additions, including the operations leading to the creation of joint ventures, as provided for in the Companies Law no. 31/1990, republished , with subsequent amendments and additions, and the scope of activity is limited to the areas established in art. 2 of the Decision of the Supreme Council of National Defense no. 73/2012, the foreign investor will submit an application for authorization under the terms of this emergency ordinance, regardless of whether or not it represents an economic concentration within the meaningLaw no. 21/1996, republished , with subsequent amendments and additions.
(4) If a foreign direct investment constitutes, at the same time, an economic concentration falling under the scope of Law no. 21/1996, republished , with subsequent amendments and additions, the foreign investor shall submit both an application for authorization under the terms of this emergency ordinance and a notification of an economic concentration within the meaning of Law no. 21/1996, republished , with subsequent amendments and additions. In this case, the procedure provided by Law no. 21/1996, republished , with subsequent amendments and additions, will be finalized depending on the decision regarding the resolution of the authorization request issued in accordance with the provisions of this emergency ordinance.
(5) The manner of establishing the value of the investment will be provided by instructions of the Competition Council.
[...]
Article 8 Cooperation mechanism regarding foreign direct investment
CEISD, through its secretariat, ensures compliance with the provisions provided for in art. 6 and 7 of the Regulation regarding the cooperation mechanism with the member states of the European Union and with the European Commission regarding foreign direct investments.[...]" (Emergency Ordinance No. 46 46/2022, Official Gazzette No. 379, 18 April 2022, Articles 1, 2, 3 and 8 [google translation])
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"Article 47 [...]
(9) In situations where an operation to take control of certain enterprises or assets poses risks to national security, the Government, on the proposal of the Supreme Council of National Defense, shall issue a decision prohibiting it, in compliance with competence of the European Commission in this field. The Competition Council will inform the Supreme Council of National Defense about the economic concentration operations that are notified to it, which can be analyzed from the point of view of national security. [...]" (Competition Law (No. 21 of 10 April 1996; republished in OG No. 153 of 29 February 2016), last amended by Emergency Ordinance No. 23 of 31 March 2021, Article 47 [google translation]) 
Emergency Ordinance No. 46 46/2022, Official Gazzette No. 379, 18 April 2022, Articles 1, 2, 3 and 8
Regulation of 28 October 2022, of Organization and Operation of the Commission for the examination of Foreign Direct Investments
Decision no. 1326 of October 28, 2022 regarding the approval of the Regulation on the organization and operation of the Commission for the examination of foreign direct investments
Competition Law (No. 21 of 10 April 1996; republished in OG No. 153 of 29 February 2016), last amended by Emergency Ordinance No. 23 of 31 March 2021, Article 47
Supreme Council of National Defence Decision No. 73 (27 September 2012)
[<a href="https://legislatie.just.ro/Public/DetaliiDocument/254239">Ordinance</a>],[<a href="https://legislatie.just.ro/Public/DetaliiDocumentAfis/261256">Regulation</a>],[<a href="https://legislatie.just.ro/Public/DetaliiDocument/261255">Decision Approval of Regulation</a>],[<a href="http://legislatie.just.ro/Public/DetaliiDocument/8005 ">Law</a>],[<a href="https://csat.presidency.ro/files/documente/Hotararea_CSAT_73_(2012).pdf">Decision</a>],[<a href="http://www.consiliulconcurentei.ro/wp-content/uploads/2020/09/Proiect-de-OUG-FDI_-dezbatere-publica-15-sept-003.pdf">Ordinance</a>]