A recently adopted ordinance implements EU rules governing action under national law for infringements of the competition law provisions and amends the current competition law

GEO 39/2017 establishes the right to claim full compensation in competent courts against any person that caused harm by an undertaking or association of undertakings in violation of the competition law. GEO 39/2017 applies to violations of Article 101 or 102 TFEU (“Treaty on the Functioning of the European Union”), to breaches of Article 101 or 102 TFEU, to breaches of national competition rules, or to breaches of Romanian competition law. The right to full compensation is expressly provided under GEO 39/2017. The victim of a breach of competition law can claim damages for the actual loss, any loss of profit, and the payment of interest.

GEO 39/2017 also grants the Bucharest Tribunal the competence to settle civil law claims brought for a breach of competition rules. The first court judgment can be appealed to the Bucharest Court of Appeal, and a judgement from the Bucharest Court of Appeal can be further appealed to the High Court of Cassation and Justice. The Bucharest Tribunal has the competence to decide on the compensation level to be awarded for the damages caused by the infringement of the competition law. However, the Romanian Competition Council may assist in determining the value of the damages upon the court’s request.

Under the provisions of GEO 39/2017, the court can order disclosure of evidence by the defendant or by third parties limited by an obligation of proportionality and the legitimate interests of the parties and any relevant third parties. The court must undertake effective measures to protect confidential information if it directs the disclosure of such information. If a party refuses to comply with the disclosure order of the court, destroys relevant evidence, fails or refuses to comply with the obligations imposed by the court to protect any confidential information or breaches the limits on the use of evidence provided by the GEO 39/2017, the court can sanction the party with fines between RON 500 and RON 5,000 for natural persons and between 0.1 and 1% of the turnover during the previous year for legal persons.

According to the new provisions, if multiple undertakings have violated the competition law through joint behaviour, the parties are jointly and severally liable for the damages caused. Thus, any violator may be required to compensate the injured party in full.

An infringement of competition law asserted by a final decision of the Romanian Competition Council, the European Commission, or by a court represents an irrefutable presumption as to the infringer’s culpability for the court. A final decision rendered in another Member State attests that a breach of competition law has occurred unless proven otherwise.

Actions for damages for infringement of competition law are subject to a statute of limitation of five years and this period does not start to run until the infringement has ceased and the claimant knows or should have known the existence of the practice and that it represents a violation of the competition norms. The fact that the violation caused damage to the claimant and the identity of the party guilty of the infringement must also be known for the statute to begin to run.

The substantial provisions of GEO 39/2017 are not retroactive. However, the procedural provisions of GEO 39/2017 apply to actions for damages for infringement of the competition norms filed after 26 December 2014.

GEO 39/2017 also introduces important amendments to Competition Law No. 21/1996 based on the practice of the Romanian Competition Council.

Under the provisions of GEO 39/2017, undertakings like supermarkets, hypermarkets, discounters, and cash & carry stores have an obligation to provide the Romanian Competition Council, upon its request with the sale prices for the products they sell to assist market research, analysis, or price comparison exercises performed by the Council. Failure to comply with this obligation will be sanctioned with a fine ranging from RON 20,000 to RON 50,000.

Among the relevant changes to Competition Law No. 21/1996 is a clarification of the turnover considered as the basis for fining foreign undertakings for breaches of merger control rules. To set the fine, the total turnover of a non-resident person is replaced with the sum of the following revenues:
-the turnover of each of the undertakings registered in Romania under the control of the infringer;
-the revenues generated in Romania by each of the non-resident undertakings under the control of the infringer, and
-any turnover generated in Romania by the infringer and accounted for in its individual financial statements.

Government Emergency Ordinance No. 39/2017 (GEO 39/2017) implements Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and the European Union. Also, GEO 39/2017 brings some important amendments to Competition Law No. 21/1996. GEO 29/2017 was published in the Official Gazette of Romania on 8 June 2017 and became effective the same day.

Stratulat Albulescu - Attorneys at law