Major Amendments To Competition Law As A Result Of The Private Damages Directive

Pursuant to Government Emergency Ordinance no. 39/2017, the private damages regime defined under Directive 2014/104/EU was formally transposed into the Romanian legal framework. The enactment of the act is a result of the European Commission actions of January 2017 when the European institution informed the Romanian authorities that it had started an infringement procedure for their failure to observe the implementation calendar of the private damages Directive.

1. Key elements related to private damages regime

   1. Scope of the law and competent court

      The Ordinance regulates the rights of any person to obtain the full recovery of the damage resulting from a breach of the competition rules. The full recovery of the damage includes the actual damage, the lost profit and the related interest. However, this should not result in an unfair profit for the victim of the breach.

      The private damages claim are to be settled by the Bucharest Tribunal with an appeal at the Bucharest Court of Appeals and higher appeal at the Highest Court of Cassation and Justice.

   2. Admission of evidence

      The competent court may allow the administration of evidence and oblige the defendant to provide specific evidence. The interest of an undertaking to avoid private damages claims may not be used to ensure protection of the information.

      In respect to the information and data existing in the competition authority's file, the court may request disclosure of the evidence in the file if such information could not be obtained otherwise. In case of a preexisting sanctioning decision, the court may request the documents on which the competition authority's decision was based on.

      The court may not request: (i) leniency claims and (ii) settlement proposals.

   3. Sanctioning regime

      The court may impose fines up to EUR 1,100 for natural persons and ranging between 0.1 and 1 % of the total turnover for legal persons for (i) not providing the documents requested by the court, (ii) destroying such evidence or (iii) not observing the conditions imposed by the court in respect to the confidential elements in the documents existing in the file.

      There is an irrefutable presumption in respect to a breach of competition rules in case of a final decision of the Competition Council, European Commission or of the competent courts.

      A final decision issued in another EU Member State attests, until proven otherwise, that there was a breach of competition rules and could be evaluated along with other...