On 22 May 2025, the Plenum of the Competition Council, by Decision No. APR-13/20-14, found an infringement of Article 12 of the Competition Law by the National Agency for Energy Regulation (ANRE). The infringement consisted in the arbitrary application of the capacity factor in calculating the tariff for electricity generated from wind sources, as well as in the refusal to approve a separate tariff, distinct from the one previously approved, for new wind power installations. These actions, taken as a whole, resulted in a restriction of competition on the relevant market under investigation.

The investigation was initiated by Order of the Plenum No. 13 as of 4 June 2020. In the course of the investigation, it was found that, in 2017, ANRE approved a higher tariff for one undertaking as a result of applying a more favourable capacity factor compared to that used for other undertakings producing electricity from wind sources (20% vs 17%). This preferential treatment was maintained, including during the tariff approval process in 2018 (17% vs 25%).

Such actions resulted in a restriction of competition by negatively affecting at least one of its essential parameters, namely the price for the sale of electricity generated from wind renewable sources.

The Competition Council reiterates that the existence of a regulated market, with tariffs set by the regulatory authority, does not exclude the presence of competition. Even in circumstances where the legislation requires the mandatory purchase of the entire quantity of electricity generated from renewable sources at regulated tariffs, competition may still occur through operational efficiency, the ability to attract and utilize investments, the profitability of economic activity, and other non-price factors.

The Competition Council acknowledges the status of the National Agency for Energy Regulation (ANRE) as an independent regulatory authority, as well as the inadmissibility of any interference in its decision-making process. No institution, including the Competition Council, has the competence to intervene in the regulatory drafting process or in the decisions adopted by ANRE in the exercise of its legal powers.

At the same time, the decision-making independence of a regulator does not imply an unlimited margin of discretion. The exercise of powers by a regulatory authority must be based on the principles of transparency, predictability, and the uniform and fair application of regulations to all market participants. The regulations adopted by an independent regulator must be applied consistently by that regulator itself, in order to eliminate any risk of arbitrary decision-making. Consequently, when the same rules are applied differently to various market participants, such an approach must be based on objective and transparent criteria, accompanied by clear reasoning in both fact and law.

In the absence of such conditions, the actions of an independent regulator may restrict, prevent or distort competition, which constitutes an infringement of Article 12 of the Competition Law.

The Decision of the Plenum of the Competition Council may be challenged before the competent court within 30 days from the date of its notification.