Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Investigations are initiated by the Competition Council upon complaint from a natural or legal person directly affected by an alleged violation of Article 5(1) or Article 6 of the Act or, on its own motion if there is enough de jure and de facto evidence to do so.

A complaint can be lodged by a person showing direct and immediate interest. Upon receiving a complaint, the Council is to examine whe …

Complaints and investigations

Investigations are initiated by the Competition Council upon complaint from a natural or legal person directly affected by an alleged violation of Article 5(1) or Article 6 of the Act or, on its own motion if there is enough de jure and de facto evidence to do so.

A complaint can be lodged by a person showing direct and immediate interest. Upon receiving a complaint, the Council is to examine whether there is sufficient basis to start an investigation. If not, the Council must notify the complainant with a motivated rejection decision in writing within sixty days. The decision can appealed within thirty days of its notification before the Bucharest Court of Appeal.

Alternatively, if the Council opened up an investigation following a complaint which reveals little actual evidence, the Council may close it after hearing the parties if the complainer requests it. The Competition Council may prioritize cases and investigations on the basis of the rational use of the Council's resources, the impact on competition, the strategic interest of the economic sector at stake and consumers' interests. 

For each investigation, the President of the Competition Council nominates a rapporteur tasked with the drafting and notification of the Statement of Objections to the parties. 

During the investigations, the Council agents can take statements from individuals or legal persons through their legal representatives. Agents are furthered empowered to: 

- enter premises, grounds or vehicles of business use which belong to undertakings; 

- examine documents, account books, financial, accounting and commercial documents or other evidence; 

- request statements from representatives and employees and record or write down the answers; 

- seize or obtain copies from relevant documents as stated above; 

- apply seals on business locations or useable documents; 

- conduct dawn raids based on a prior judicial authorization; 

The judicial order (warrant) for unannounced inspections is to be granted by the President of the district court where the premises to be searched are located, or the President of the Bucharest Court of Appeal - for business premises. Inventory and sealing are done according to the provisions of the Code of Criminal Procedure. Government Ordinance No 39/2017 of 31 May 2017 on damages actions also amended Section 38 to specify that during unannounced raids, information stored or archived in an electronic environment may be fully copied and emailed, with the application of seals, and the information necessary for the investigation be seized in the presence of the representative of the enterprise. Such measures must be carried out on the basis of the order issued by the President of the Competition Council and the court order.

Since Ordinance 31/2015, undertakings may challenge the judicial decision granting the search warrant before the High Court of Cassation and Justice within 72 hours of its disclosure to their representatives. However, such appeals do not suspend the operation.

In addition, when applying Articles 101 and 102 TFEU, the Competition Council may exchange with the European Commission and with any other competition authority of a Member State or use as evidence any factual or legal elements including confidential information. The Competition Council may communicate information to another competition authority provided the latter uses it only for the enforcement of competition law and for the purpose for which it was collected by the Competition Council, protects the confidential nature of the information and only grants access to that information to third parties with the prior consent of the Competition Council.

Communications between the undertaking investigated and its external lawyers for the sole purpose of exercising the right of defense of the undertaking, i.e., after the opening of the administrative procedure or prior to the opening thereof where these communications relate to the subject-matter of the proceedings, cannot be removed or used as evidence during the proceedings before the Competition Council.

Following the investigation, the investigation report is presented to the Plenum of the Council and is communicated to the parties for them to respond by submitting observations within 30 days. 

Investigated parties and complainants are granted access to the Council's investigation file upon their written request. All documents and information collected during the investigation is therefore communicated, except: 

- internal documents and correspondence of the Council with other authorities; 

- information covered by trade secrets under the Council's determination; 

- other types of confidential information under the Council's determination as well; 

- comments of other parties on the investigation report. 

A refusal to give access can be challenged in court. Such action will suspend the procedure before the Council. 

Furthermore, a party to the proceeding can request a hearing to present oral testimony of their observations on the investigation report. After hearing the parties' responses to the report, the Competition Council issues its decision within 120 days following deliberations. 

In the alternative, the investigated parties can offer commitments so as to remove the situation leading to the investigations. If the Council decides to consider such commitments, it should publish a summary of the case and suggested commitments up for comments. Once accepted by the Council, commitments are binding upon the undertaking but not an admission of guilt.

Proceedings before the Competition Council

Once an investigation has been initiated, the Competition Council may impose interim measures before issuing a decision when it classifies a case of urgency. Urgency is determined by  risk of serious injury and irreparable damage to competition if the Council finds in the initial assessment the existence of anticompetitive acts prohibited by law which must be removed immediately. Prior to the adoption of interim measures, parties can request to be heard by the Plenum of the Council. 

Interim relief

Article 66 allows individuals and legal persons to obtain full compensation of the damage resulting from the infringement of competition law. The exercise of such actions has been facilitated by the transposition of EU Directive No 2014/104 of 26 November 2014 (the Damages Directive) in national law through Government Emergency Ordinance 170/2020 (GEO 170).

Full compensation includes actual loss, loss of profit, as well as the payment of interest. However, the application of those rules must not lead to overcompensation either by the infliction of punitive, multiple or other damages. Both direct and indirect purchasers, understood as purchasers from direct or subsequent purchasers of the infringer, have the right to bring a claim.

A final decision by the Romanian Competition Council, a Romanian court or the European Commission constitute undisputable proof of the infringement. The same finding made by the competition authority of another Member State will, unless proved to the contrary, establish that there has been an brought by the parties.

Regarding the disclosure of evidence, the Civil Procedure Code allows a broad range of acceptable proof such as documents, witness statements, confessions, expert evidence, presumptions. Under the GEO 170, claimants can ask the court to order the disclosure of relevant information where there is sufficient justification. The disclosure order must be proportionate, but may cover confidential information where appropriate measures to protect such information are taken.

The court can require disclosure of evidence from the Competition Council's file where it can not be obtained from another party or from a third party. Where a decision of the Competition Council has already sanctioned an anticompetitive practice, the court may ask the Competition Council to disclose the documents in the file on which the decision was based. Moreover, the court may order the disclosure of the following categories of evidence only after the Competition Council, by means of a decision or other administrative act, has concluded its proceedings: i) information which has been prepared by a natural or legal person specifically for the proceedings of the Competition Council; ii) information that the Competition Council has drafted and communicated to the parties during its proceedings; iii) withdrawn settlement submissions. Conversely, the court may not, at any time, order the disclosure of leniency statements or settlement submissions.

As to the quantification of harm, GEO 170 establishes a rebuttable presumption that cartels have led to a 20% increase in price. The defendant can raise the passing-on defense but bears the burden of proving it. Indirect purchasers benefit from a rebuttable presumption that the overcharge has been passed on to them. In addition, a rebuttable presumption of harm, although not quantified, is also created arising out of an abuse of dominance.

In accordance with the Damages Directive, the limitation period is 5 years from the termination of the infringement and knowledge by the claimant, of: i) the conduct adopted and the fact that it constitutes a breach of competition law; ii) the injury caused by the breach; and iii) the identity of the offender. The limitation period is suspended where the Competition Council carries out investigations or proceedings in respect of a breach of competition law to which the action for damages relates or during alternative dispute resolution negotiations.

Damages claims must be introduced before the civil law division of the Bucharest court. An appeal can be brought before the Bucharest Court of Appeal and further appeal is to be raised before the High Court of Cassation and Justice.

Global Competition Law

610. Complaints and investigations

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Les notions juridiques connexes

610. Complaints and investigations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise