General introduction to the legislative framework for private antitrust enforcement
The Competition Act prohibits:
- any express or tacit agreement between undertakings or associations of undertakings, any decisions taken by associations of undertakings and any concerted practices that have as their object or effect the restriction, prevention or distortion of competition on the Romanian market or on part of it; and
- the abusive use of a dominant position held by one or more undertakings on the Romanian market or on a substantial part of it that, by way of anticompetitive deeds, may harm competition.
Article 3 of the New Rules and Article 66 of the Competition Act state that both legal and natural persons, as well as associations, harmed directly or indirectly as a result of anticompetitive practices are entitled to seek relief in court. It is expressly provided in the New Rules that such claims may be brought based of both infringements of the national or European rules (Articles 101 and 102 of the TFEU).
The New Rules transposed the following already existing principles:
- any person responsible for any conduct (practice, act or deed) that caused damage to another person has the obligation to repair the damage;
- if the damage was caused by more than one person, they will be held jointly liable;
- legal persons may also be held liable for their representatives' infringements;
- the losses caused by the infringement are to be recovered in full, including the effective loss (damnum emergens), lost profits (lucrum cessans) and interest: indeed, the New Rules state that damages are awarded according to the principle of full reparation of the harm suffered; and
- claims may be filed both before (stand-alone actions) and after (follow-on actions) the issuance of a sanctioning decision by the Council.
As mentioned above, the New Rules have also amended substantially the existing legal framework as follows.
For follow-on claims, the New Rules establish a presumption of the existence of an infringement in cases where a final decision has established such infringement. One specific distinction is made here: while definitive decisions issued by the Competition Council, a national court or the European Commission represent conclusive evidence, sanctioning decisions issued by other competition authorities or definitive decisions issued by other national courts than those where the action for damages is introduced represent only rebuttable presumptions of competition law violations.
The exclusive subject matter over the award of damages to individuals, as well as territorial jurisdiction, vests with the Bucharest Tribunal, and on appeal with the Bucharest Court of Appeal.
The establishment of a cartel creates a rebuttable presumption of the existence of harm suffered by the plaintiff. Thus, in this case the burden of proof is shifted, and the defendant has to demonstrate that no harm was caused.
In both stand-alone and follow-on actions, damage claims must be brought within five years starting from when the infringement has ceased; and from when the plaintiff knew, or should have known, of the behaviour and the fact that it constitutes an infringement of competition law, the damage and the person responsible for it. If the victim of a competition law infringement submits a complaint to the Competition Council, the statute of limitations will start running, as it will be considered that when it submitted the complaint, the plaintiff knew of the infringement.
A distinction previously existed between stand-alone and follow-on actions. Indeed, the general civil procedure rules for stand-alone actions provided that the limitation period was five years starting from the date when the damage was known or was reasonably expected to have been known by the plaintiff. For follow-on actions, the statute of limitations was different: namely, actions were to be brought within two years as of the date when the Council's sanctioning decision became final.
Thus, for infringements that were committed before the entry into force of the New Rules, once two years have elapsed following a Competition Council decision becoming final, private enforcement claims can no longer be introduced as such claims are time-barred.
The limitation period will be suspended for the period of the administrative measures taken by the competition authority from the opening of an investigation and for the duration of the investigation. In addition, the time limit elapses one year after an infringement decision becomes final or after the proceedings are otherwise terminated. Moreover, the limitation period does not start or is suspended for the duration of any consensual dispute resolution process.
Specific rules governing the disclosure procedure have been adopted by the New Rules. We have detailed these provisions in Section V.
To be compensated for damage, the victim of an anticompetitive practice will have to prove that all of the following conditions triggering tort liability are met:
- an infringement of national or EU competition rules has occurred;
- the defendant's fault, regardless of its form (negligence, wilfulness);
- the damage caused to the claimant; and
- the link between the infringement and the damage caused to the claimant.
In the case of stand-alone actions, the burden of proof for an infringement of the competition legislation and the harm caused to a person lies with the plaintiff. In contrast, in follow-on actions, as final decisions of the Competition Council, a national court or the European Commission constitute conclusive evidence, the infringement no longer needs to be proved by the plaintiff. Therefore, in cases where a final decision has been issued, the plaintiff has to prove only that a final decision truly exists (i.e., he or she did not challenge the decision). Afterwards, the plaintiff will only have to demonstrate points (b) to (d) above.