The Romanian Competition Council is assessing, (at the request of the Romanian energy regulator ANRE): (i) the manner by which energy prices are established on the centralized market (OPCOM); (ii) OPCOM's activities generally in the month of January 2017; and (iii) two transactions between yet-unidentified parties in particular. The energy price for the day ahead market ("PZU") for the first week of January was between 184.7 lei / Mhw and 279.6 lei/Mhw, and thereafter rose to 509.2 lei Mhw on 28th of January, with certain suspicious transactions appearing to have been concluded at higher-than-normal prices.
If the preliminary research suggests that the evolution of the price may be traced to anticompetitive conduct by either public or private entities, the Competition Council may launch a full investigation in order to determine the reasons for this price evolution. An investigation may entail dawn raids, requests for information and, if a finding of infringement is made, significant fines.
As such, please find below the main steps to be taken and general principles to be observed in the event of a dawn raid:
- notify your external counsel immediately upon the arrival of the competition inspectors at your premises and require the inspectors to wait for the arrival of the external counsel (up to 20 minutes);
- check that the documentation of the competition inspectors (Investigation order and dawn raid order from the Chairman of the Competition Council, judicial authorisation from the Bucharest Court of Appeals) is in order;
- ensure that the competition inspectors are allowed access to the premises and to any records or documents, irrespective of the manner in which those are stored (paper, hard disks, memory sticks etc.);
- instruct your IT specialist to be available and assist with the accessing of any email accounts / printing of any documents;
- ensure that any documents taken are connected and limited to the object matter of the investigation;
- ensure that the competition inspectors do not take any documents protected by the attorney - client privilege;
- have company representatives physically shadow the competition inspectors during the dawn raid;
- ensure that you retain two additional copies of each document taken – one for the Company, one for the external counsel; and
- make sure to read carefully and sign the dawn raid minutes, which should include any remarks on your behalf.
Taking into account the potential risks entailed by a Competition Council investigation, it may also be advisable to carry out an internal audit regarding the conduct of your company on OPCOM, in particular, but not limited to the questionable period in January 2017 in order to determine whether or not there are any causes for concern.