ROMANIA Law and Practice Contributed by: Luiza Ionescu, Andreea Paraschiv, Amanda Csaki and Cezara Mitea, Stratulat Albulescu Attorneys at Law
8. Disclosure 8.1 Making a Bid Public The timing of the public announcement depends on the type of offer. For voluntary offers, the bidder must first submit a pre- liminary offer announcement to the FSA for approval. Only after receiving FSA approval may the bidder pub- lish this announcement and notify the target company and the regulated market. The bidder must then sub- mit the complete offer documentation to the FSA for approval within 30 calendar days from the publication of the preliminary announcement. For mandatory takeover offers, the bidder is required to launch a bid as soon as possible, but no later than two months after exceeding the 33% voting rights threshold. The bidder must prepare, obtain FSA approval for, and formally publish the offer within this period. 8.2 Prospectus Requirements The bidder must provide a prospectus in the case of an offer where securities are being issued as consid- eration. The securities offered must be admitted to trading on an EU-regulated market; this does not need to be the BVB, as passporting is permitted. 8.3 Producing Financial Statements For cash offers, the bidder is not generally required to publish full financial statements. The key disclosure relates to the source and availability of funds, evi- denced through the “certain funds’’ documentation. On the other hand, for stock-for-stock offers, full financial statements of the bidder are part of the pro- spectus, enabling target shareholders to assess the value of the offered securities. Financial statements for issuers listed on Romanian regulated markets must comply with IFRS as adopted by the EU. 8.4 Disclosure of Transaction Documents The tender offer document – and, in the case of a stock-for-stock offer, the prospectus – must be filed with and approved by the FSA prior to launch. In addi-
capacity, customer and supplier lists, or commercial and pricing strategies – must be handled with height- ened caution. Such information should only be shared through a “clean team” mechanism, based on a robust NDA, and only to the extent strictly necessary for the evaluation of the transaction. Wherever possible, data should be aggregated, anonymised, or historical (typi- cally older than one year) to reduce competition law risks. After signing and before closing, the target may share limited additional information, preferably in aggregat- ed form. If the transaction requires clearance from the Romanian Competition Council or the foreign direct investment screening authority, sensitive information must not be exchanged directly before obtaining such clearance; instead, any necessary exchange should occur exclusively through the clean team. Although there are no specific legal or regulatory prohibitions on the disclosure of personal data in the context of due diligence reviews, the target and other disclosing entities are expected to limit such disclo- sure strictly to personal data that is necessary and rel- evant for the purpose of conducting an adequate due diligence exercise. Personal data of a sensitive nature, as defined under Article 9 (1) of the GDPR, as well as any information subject to professional secrecy obli- gations (for example, banking or client-confidential information), should not be disclosed. Where disclo- sure is based on the legitimate interests of the par- ties involved, the disclosing entity should undertake a legitimate interest assessment to ensure that the processing is proportionate and that data subjects’ rights are adequately protected. In all cases, a case- by-case assessment must be carried out to determine the appropriateness and necessity of disclosing each category of personal data. 7.2 Restrictions While there are no blanket prohibitions on due dili- gence in Romanian E&I M&A, disclosure is heavily regulated. In addition to the aforementioned general competition law limits, energy sector companies must observe other sector-specific restrictions, includ- ing but not limited to ANRE licensing confidential- ity, national security obligations, and rules governing access to critical infrastructure or concession data.
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