Last updated: 30 June 2017
Anti-competitive practices are incompatible with the functioning of the internal market of the European Union and are thus prohibited. Natural or legal persons that have incurred a damage caused by anti-competitive practices may take action against the perpetrator of the infringement of competition law, in order to claim full compensation for the damage.
A new legal instrument in the fight against anti-competitive practices has just been introduced in Romanian legislation, following the approval and entry into force - on 11 June 2017 - of Ordinance no. 39/2017, published in Official Journal no. 422/8 June 2017. This Ordinance transposes into national law Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union
The law, which also amends and supplements Competition Law no. 21/1996, aims to facilitate the implementation of compensation for victims of anti-competitive practices. The main provisions – beneficial for victims of anti-competitive practices – concern the assessment of the damage, the probative system and the prescription period.
Before presenting the changes brought by Ordinance no. 39/2017, we remind you that the main anti-competitive practices prohibited by EU law are agreements between undertakings and concerted practices (establishment of the price, production limitation or control, market sharing etc.) and the abuse of a dominant position (taxation of sales prices, application of unequal conditions to trading partners etc.). In this context, various natural or legal persons are often victims of these prohibited practices and incur damages.
CLEAR WAYS TO ASSESS THE PREJUDICE
According to Ordinance no. 39/2017, natural or legal persons who have suffered harm are entitled to full compensation, namely to compensation for the actual loss and loss of profit, plus interest and legal expenses. However, the full compensation principle cannot lead to unjust enrichment.
Furthermore, it should be noted that, where there are several perpetrators of the breach, the obligation to make full compensation for damage is incumbent on each of them, as liability is - as a general rule - joint and several.
SIMPLIFICATION OF THE PROBATIVE SYSTEM
Evidence is a very important element of claims for damages. However, competition law disputes often involve information asymmetry, to the detriment of the plaintiff. In most cases, the plaintiff does not have access to information that could prove the breach of anti-competitive rules, as this information is often included in documents belonging to the perpetrators of the violation or to the public authorities.
Thus, the Ordinance introduces measures to ensure equality in terms of proof. Ordinance no. 39/2017 provides that, in claims for damages, upon request of any plaintiff who has a solid justification, the Court may order disclosure by the defendant or the public authorities (including competition authorities, under certain conditions) of various relevant evidence. However, the limits of such disclosures must comply with the proportionality principle and must take into account the legitimate interests of all parties involved and of the third parties concerned.
Failure to comply with the disclosure obligations imposed by the Court entails fairly significant penalties (fines ranging from 500 lei to 5,000 lei for natural persons and between 0.1% and 1% of turnover for companies).
PRESCRIPTION DEADLINES
Unlike ordinary law (under which the prescription period is 3 years), the specific claim for damages and interest is time-barred after 5 years. This period begins when the breach of competition law ends and when the plaintiff knew or should have known cumulatively:
The national authority responsible for the enforcement of competition laws is the Competition Council.
The court competent for ruling over claims for damages and interest in connection with the violation of competition law by companies is the Bucharest Court.