On 8 June 2017, Emergency Government Ordinance no. 39 of 31 May 2017 (the ”EGO”) entered into force. The EGO transposes Directive 2014/104/EU on antitrust damages actions and allows individuals and entities to fully recover damages incurred due to breaches of antitrust rules, through legal action before national courts.
Previously, a victim of anti-competitive conduct could bring a claim for damages in a Romanian court based primarily on civil law rules. However, these legal provisions insufficiently addressed many of the complexities of antitrust claims (such as the pass-on defence, appropriate mechanisms for evaluating actual loss etc). This resulted in only one case being tried in Romania based on civil law - a follow-on action for damages relating to an abuse of dominance by the Romanian National Post.
The EGO includes detailed provisions regarding the procedure and substantive rules for damages claims, as well as significant amendments to Romanian Competition Law no. 21/1996 to ensure appropriate and effective enforcement of the new rules. Notable provisions include:
- victims’ entitlement to full recovery of damages suffered (including actual loss and loss of profit), interest, and litigation costs;
- regulations allowing claimants restricted access to documents and information in the investigation file (e.g. applications for leninency or the reduction of fines whereby the applicants fully acknowledge the anti-competitive conduct);
- a 5-year statute of limitation period applicable to damages claims. This starts to run after the anti-competitive conduct ceased and after the victim has knowledge of: (1) the anti-competitive conduct, (2) the fact that this constitutes a breach of competition law, (3) the loss incurred due to such breach, and (4) the identity of the offender;
- detailed explanations of the conditions in which the statute of limitation period may be suspended or restarted;
- identification of the Bucharest Tribunal as being competent to settle damages actions resulting from a breach of competition law, as well as the possibility to appeal the tribunal’s decisions to the Bucharest Court of Appeal and further to the High Court for Cassation and Justice.
The EGO, which amends and supplements Law no. 21/1996 on competition, was published in the Official Gazzette of Romania no. 422 of 8 June 2017.