The newly adopted Government Emergency Ordinance No. 39/2017 (the "Ordinance") introduces significant changes to Romanian competition rules. For example, it implements the provisions on actions for damages resulting from competition law infringements, as regulated under Directive 2014/104/EU (the "Damages Directive") and sets out new provisions impacting the food/non-food retail sector, as well as the dawn-raid procedure and fines applicable by the Romanian Competition Council (the "RCC") to non-resident undertakings.
New applicable rules to actions for damages
(A) Full indemnification right; estimating damages
The new enactment sets out the right of any person (individual or legal entity) to seek and secure full indemnification, including effective loss, loss of profit and payment of related interest, but excluding unfair enrichment, in case of damages caused by infringements of Competition Law No. 21/1996, republished, as further amended and supplemented (the "Competition Law") and/or art. 101 or 102 of the Treaty on the Functioning of the European Union ("TFEU").
It also includes indications for setting the effective loss incurred at any level of the supply chain by reference to the so-called overprice (ie the difference between the price actually paid and the price that would have been paid if not for the competition infringement).
The competent court of jurisdiction may require the RCC to assist in the estimation of damages resulting from a competition infringement. Interestingly, the RCC itself may take into account that an undertaking may become liable to pay damages and therefore mitigate the fine ultimately applied to the undertaking with this factor.
Cartels are automatically presumed to generate damages.
A sanctioning decision of the RCC or the European Commission (the "EC"), as well as a final court award of the competent courts of jurisdiction, are automatically presumed as proofs of infringements and may represent the basis for actions for damages. A final decision issued in another EU Member State may be considered as proof of an infringement, unless proven otherwise, and only together with other relevant evidence.
(B) Joint liability rules / exceptions for SMEs and leniency applicants
As a rule, the right to a full indemnification provides the damaged party with the means to seek compensation from each of the jointly liable undertakings, up to full recovery of the effective damages.
If an SME caused the competition infringement, its liability is triggered towards (i) its direct and indirect buyers in case the SME had a market share of less than 5 % during the infringement and joint liability significantly affects its business (ie economic viability, full loss of assets) and towards (ii) other damaged parties in case full recovery cannot be obtained from other undertakings involved in the infringement. This exception does not apply if the SME had a leading role in the infringement or was previously involved in another infringement.
Likewise, leniency applicants are liable only to the extent of the damages caused to their direct and indirect buyers.
(C) Specific provisions on disclosure of evidence
A request for disclosure of evidence that is in the possession of the defendant (ie the undertaking in breach of the competition rules) or a third party may be admitted to the extent that (i) it is duly justified, relevant and proportionate against the legitimate interests of all parties, and (ii) it is limited to the most precise and relevant evidence (no general disclosure).
Fines may be applied for failure to provide evidence or for destroying evidence requested by the court, as well as for failure to comply with the measures ordered in court regarding confidentiality. These may range from RON 500 (approx. EUR 110) to RON 5,000 (approx. EUR 1,100) for individuals and 0.1 % to 1 % of the total turnover for undertakings.
Rules are stricter in relation to disclosure of evidence from the RCC file. Such evidence may be disclosed only to the extent it could not be obtained in another manner and provided that protection of business secrets and confidentiality is duly ensured. Leniency requests or settlement proposals are not subject to disclosure under any circumstances.
Actions for damages may be filed only with the Bucharest Tribunal and are subject to appeal with the Bucharest Court of Appeal and second appeal with the High Court of Cassation and Justice within a five-year limitation period.
New obligation for food/non-food retailers
The Competition Law is amended so as to include a specific obligation for supermarkets, hypermarkets, discounters and cash & carry stores. At the request of the RCC, all such entities must submit to the RCC the resale prices for the products they are trading for the purposes of market studies, analyses or price comparisons.