August 2025 – On 30 July 2025, Romania enacted its first set of guidelines dealing with investment screening aspects (the “Guidelines”), generally codifying authorities’ practice so far and views on particular aspects. The Guidelines were adopted by the Romanian Competition Council (“RCC”), which hosts the secretariat of the Commission for the Screening of Foreign Direct Investment (the body entrusted with carrying out the screening of investments). The RCC is also entrusted with issuing the national security clearances for non-problematic cases.
A draft of the Guidelines was initially launched into public consultation by the RCC in mid-February 2025 and interested parties had until 11 March 2025 to provide feedback. The publication of the final version of the Guidelines after roughly 4.5 months speaks to the authorities’ intention of carefully reviewing the comments and recommendations received from the market, as well as assessing their potential impact if included in the secondary legislation.
The Guidelines have, therefore, partly incorporated some of the market feedback received and bring added value and clarity on some points compared to the initial draft published early this year.
Among the main aspects that the Guidelines touch upon, we would particularly note the following:
Calculation of the investment value – this has been, since the introduction of the new screening regime in April 2022, a point of uncertainty and debate.
As the law provides for a de minimis investment value threshold of EUR 2 million, how to determine the investment value for a deal has been very important to prospective investors and their counsel, as one of the few ways of potentially ruling out a filing obligation in Romania, given the very broad scope of the law in terms of sensitive sectors covered.
The RCC addressed several core aspects concerning investment value computation, as follows:
- Investment value is generally determined by the total funds provided by the investor, including payments, equity, assets, debt remission, and other contributions;
- For share acquisitions it is valued by the purchase price and/or capital provided. For capital increases without ownership transfer, the total contribution is considered;
- Multi-jurisdictional transactions: for investments in multiple jurisdictions where the Romania-related price is not individually specified, the value of the Romanian target undertaking or local assets should be determined based on party-provided valuations. If no valuation of the Romania-related consideration is provided, the total value of the transaction applies.
- Loans or financing agreements: the investment value will be the total loan or financing value, including the interest;
- No specified price: if a transaction does not involve a purchase price, the investment value will generally be assessed based on the market value of the equity or assets acquired, as per the acquirer’s valuation for the transaction. The acquirer's assessment is based on the market value, book value, or fiscal value – in this order, depending on which is available. Alternatively, valuation reports may be used to determine the value of the investment;
- Multi-stage investments: the investment value will be aggregated across all transactional stages;
- Payments subject to conditions: if the transaction involves payments affected by a term or a condition, but provided in the transactional interest, the investment value calculation will also include such suspended payments.
Filing exemptions – the RCC also clarified several cases where a notification is not required, in particular that:
- Mere passive sales to Romania alone would not typically trigger a filing obligation: this is in line with the authorities’ practice so far and derives from the Guidelines’ approach on multi-jurisdictional transactions where the investment value would only concern the Romanian target undertaking/local assets;
- No filing obligation for existing shareholders: increases in shareholding by existing shareholders do not generally trigger notification unless there is a change in control or management of the target;
- Loans/financing exclusion: loans and financing agreements provided by banks and/or authorised financial institutions during their normal course of business in Romania, subject to not acquiring any management or control rights or prerogatives in the borrower entities.
Timing and required documentation – the Guidelines also address several aspects impacting the filing documentation and process.
- When to file: the filing must be submitted with the authority upon finalising negotiations, to the extent the core aspects of the transaction have been agreed (g., object, parties involved, price, financing means, etc.);
- Required documentation: a support document reflecting the parties’ clear intention to conclude the transaction must also be provided (it could also be some preliminary term sheet or memorandum of understanding).
What to expect next now that the Guidelines are in place?
The Guidelines bring much needed clarity on certain particular aspects and will provide additional comfort to both investors and legal counsel in deciding not to go to the authorities for certain transactions or financing operations.
On the other hand, the Guidelines do not (and could not) touch upon the sensitive sectors’ definition under the screening regime, which remains equally broad as previously and which may not necessarily be subject to change in the near term.
Going forward, and in light of the recent enactment of the Guidelines, we could expect the following as regards the applicability of the Romanian investment screening regime:
- A steady and extensive number of filings yearly (comparable to the 471 screening cases finalised throughout 2024);
- Less leniency from the authorities in case of gun jumping (particularly for aspects now covered by the Guidelines) and potentially further guidelines to be put in place (g., on individualisation of fines, similarly to the RCC guidelines adopted for the individualisation of fines applicable for competition law breaches);
- More conditional clearances (adding to the single conditional approval case we had so far);
- More coordination with other EU screening authorities, particularly in case of multi-jurisdictional deals impacting multiple Member States.