Antitrust Litigation 2022 Comparisons

Legal Background

Romanian antitrust legislation is aligned with European Union rules. Illegal anti-competitive practices include cartels and abuse of dominant position. Anti-competitive practices are investigated and sanctioned by the Romanian Competition Council, an independent administrative authority. The Romanian Competition Council has always been very active, running several investigations in parallel every year. Highly regulated industries (eg, energy, telecommunications, insurance and pharmaceuticals) have seen the highest number of investigations. The Romanian Competition Council may issue fines of up to 10% of an undertaking's total turnover.

Procedural Rules

Investigations may be initiated either at the stage of the complaint by an undertaking harmed by illegal anti-competitive practices or ex officio. However, in practice, as complaints usually fail to meet the level of detail required by law, investigations are mostly opened ex officio by the Romanian Competition Council.

The decisions issued by the Romanian Competition Council may be challenged in court. Statistically, most of the decisions have been challenged, except those where a settlement had been reached and the undertaking had admitted to committing illegal anti-competitive practices.

Private Damages

An undertaking harmed by anti-competitive practices may seek the recovery of its losses. There are several legal avenues which may be pursued. The most common one would be a claim for liability in tort. Such claim may be filed directly in court and requires four cumulative conditions to be met:

• an illegal practice;
• damage;
• the fault of the defendant; and
• the causal link between the illegal practice and the damage.

Another legal avenue, which is more straightforward, is that of using the specific legislation meant to facilitate the enforcement of competition law. This is a new piece of legislation which has not been significantly tested in court yet, but is aligned with the EU Directive on private damages claims and with European trends that are expected to become the preferred approach.

Romanian antitrust policy priorities cover several key sectors.

For instance, public procurement tenders have been subject to increased scrutiny from the Romanian Competition Council. There is a concern that joint ventures created for the purpose of participating in public tenders might lead to exchange of information or market sharing. The Romanian Competition Council prepared specific guidelines on this topic to flag the need to comply with competition rules when participating in public tenders.

Another area of interest is big data technologies. The Romanian Competition Council initiated a study seeking to assess the benefits and risks of implementing big data technologies, their degree of implementation and their effects on the competitive environment.

Damage claims may be filed by any person who suffered harm caused by illegal anti-competitive practices. The illegality of the practice is assessed under Romanian competition law as well as the Treaty on the Functioning of the European Union (TFEU).

Romanian law recognises both follow-on and standalone damage claims.

Standalone claims have always been available as claims in tort. Tort liability, as governed by the Romanian Civil Code, allows persons who incurred loss to claim damages against the person who has committed the civil wrong (tortious act). However, in tort law, the burden of proof rests with the claimant. Therefore, the difficulty in meeting the standards of proof for tortious liability makes claims in tort unattractive for the injured party.

More recently, a specific legal framework transposing Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the EU member states and of the European Union, and aims to facilitate the burden of proof for the injured party.

However, the impact of the new legislation has not been significant so far. There are still only a few individual cases pending and no class actions yet.

The Romanian court system is organised in tiers comprising:

• local courts (dealing with low-value cases);
• tribunals (being the principal courts of first instance for the majority of court cases);
• courts of appeal (usually with appellate jurisdiction, but sometimes being courts of first instance for specific cases); and
• the High Court of Cassation and Justice (the court of last resort, which deals with appeals in cassation against lower courts' judgments).

Tribunals, courts of appeal and the High Court of Cassation and Justice comprise several divisions:

• civil law divisions;
• administrative and fiscal disputes divisions;
• labour divisions; and
• criminal law divisions. 

Litigation against decisions issued by the Romanian Competition Council is handled by the administrative and fiscal disputes division of the Bucharest Court of Appeal, the judgment of which may be further appealed to the administrative and fiscal disputes division of the High Court of Cassation and Justice. Judges appearing in these divisions have significant experience in disputes related to public institutions and bodies (such as the Romanian Competition Council).

Damage claims follow a different path. Such claims are settled by the civil law divisions of tribunals, with appeals before the civil law division of the courts of appeal, with a further appeal in cassation possible before the civil law division of the High Court of Cassation and Justice (the court of last resort). Judges appearing in civil law divisions are less experienced with antitrust legislation, but have much more experience with damage claims.

The Romanian Civil Procedure Code allocates jurisdiction for each type of case. However, whenever a claim is registered inappropriately before a court without jurisdiction, the file will be transferred to the court with jurisdiction.

The transfer of cases might also occur, in limited circumstances, to preserve impartiality of proceedings where there is a perceived conflict of interest or risk of bias of a specific court.

The national competition authority is the Romanian Competition Council, which has the powers to investigate and determine infringements of competition law and apply sanctions. However, its decisions may be challenged before the Bucharest Court of Appeal within 30 days of their communication.

A decision issued by the Romanian Competition Council that it is not challenged within the legal deadline or that is upheld by the courts of law becomes final (binding). From that moment on, the infringement is deemed to be conclusively established for the purposes of an action for damages subsequently brought before a civil court. For example, such decision will be binding over the civil court handling the damage claim. The same applies to the European Commission's antitrust decisions which are considered final (ie, which have not been challenged or which have been upheld by the EU courts).

When an infringement of competition law is ascertained by a final decision issued by the national competition authority of another member state of the European Union, Romanian courts will consider the existence of such infringement only as a rebuttable presumption (ie, the defendant has a right to prove the contrary).

In Romanian law, the common rule is that the claimant has the burden of proof. This is also valid for damage claims. The claimant has to prove beyond reasonable doubt the existence of the infringement and the quantum of the damages sought.

The claimant may use any type of evidence: documents, expert reports, witness statements and assumptions. Such legal assumptions are, for instance, that cartel infringements cause harm consisting in a 20% price increase of products or services targeted by the cartel, or that the abuse of dominant position causes harm; these assumptions are, however, rebuttable.

The claimant may also use the disclosure mechanism, provided that it is able to give reasonable details about the facts and evidence requested. Under such mechanism, the claimant might obtain a court order obliging the defendant, a third party or the Romanian Competition Council to disclose relevant evidence that lies in their control. The disclosure mechanism is not common in Romanian law and might therefore raise difficulties in practice.

The pass-on defence might be used in a damage claim, provided that the defendant is able to prove that whole or part of the overcharge resulting from the infringement of competition law was passed-on.

The assessment of evidence will be made by the court, and there are no specific rules in this regard. The court has full discretion in making the overall assessment.

Anti-competitive practices may cause harm to different players on the market – they may be the competitors of the infringer, the infringer's suppliers or its purchasers.

Considering that the overcharge may be passed down the purchasing chain, all the way to the end customer, there is a distinction within the law between direct and indirect purchasers (those which did not buy the product/service directly from the infringer, but from another purchaser on the chain). Under Romanian law, damage claims may be filed by either direct purchasers (provided that they did not pass on the overcharge) or indirect purchasers (to the extent the overcharge was passed on).

The indirect purchaser shall have the burden of proof that the overcharge applied by the infringer was passed-on by the direct purchaser.

Under Romanian law, court proceedings start as of the submission of the claim. The same rule applies to a damage claim. Once the damage claim is submitted, the court will initiate the civil trial.

The submission of a damage claim is not conditional upon the existence of a parallel investigation or decision of the national competition authority.

However, there have been cases where civil courts have stayed the proceedings in damage claims until the final settlement of parallel court proceedings regarding the annulment of the decision of the Romanian Competition Council.

The overall length of a civil trial depends on the complexity of the case and may vary between two and five years (sometimes exceeding this estimate). Court proceedings related to the claim for damages involve three levels of judicial review: first instance, appeal and appeal in cassation.

Parties also have the option to request a stay of court proceedings related to the claim for damages for a period of up to two years in cases where they are involved in alternative dispute resolution procedures with respect to the claim.

Under Romanian law, there is no specific legal framework for class/collective actions and there is no consolidated track record of class/collective actions. There have been class action attempts in consumer protection legislation, where several consumers filed a common claim against an undertaking, seeking to compel it to observe certain provisions of consumer protection legislation. A similar approach might be considered in class/collective actions for damages with respect to competition law infringements.

The Romanian competition act does include a general provision pursuant to which consumer protection associations (on behalf of consumers), trade associations and employers' associations may claim damages for breaches of competition law (on behalf of their members), and are entitled to act and to claim damages for harm caused as a result of breaches of competition law. Such actions would be based on the association's powers (as per its statutory acts) and the mandate received.

Specific legislation is expected to be implemented once Romania transposes Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC. It is expected that upon its implementation, an opt-in and opt-out mechanism will be considered under the legislation.

Consumer protection associations, trade associations and employers' associations, within the limits of their by-laws and mandates, may file damage claims for breaches of competition law (on behalf of their members). The legal framework does not include any specific provision with respect to class actions regarding the fulfilment of criteria by persons joining the class/collective action.

Class/collective actions may also be solved by a settlement agreed between the claimants and the defendant. Under Romanian law, a settlement may be reached outside the court or within the court proceedings via a final court decision.

The Romanian civil procedure allows only the ordinary course of proceedings. There are no “fast track” or “strike-out/summary” judgments available for damage claims.

The basic rule on jurisdiction is that Romanian courts of law have jurisdiction in each damage claim where the defendant has its main premises in Romania, where the infringement causing harm was committed in Romania, or where the harm occurred in Romania.

To the extent that there are international elements, the relevant international treaties or EU regulations will apply (ie, the Recast Brussels Regulation (EU 1215/2012) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Rome I Regulation (EC 593/2008), and Rome II Regulation (EC 864/2007) on the applicable law relating to contractual and non-contractual obligations).

The limitation period for initiating actions for damages is five years.

There are several legal provisions establishing when the limitation period starts to run and events that might trigger its suspension.

As a matter of principle, the limitation period shall begin to run after the end of the infringement, depending on the date when the claimant has, or is reasonably be expected to have, knowledge of the identity of the  infringer and of the harm it caused by the infringement.

The limitation period is suspended during the investigation carried out by the competent competition authorities.

The limitation period for bringing an action for damages is also suspended for those parties participating in alternative dispute resolution proceedings.

When the action brought against a small or medium-sized enterprise, or a beneficiary of immunity, because of the other infringer's ability to pay, the limitation period will start to run three years after the date on which the judgment declaring the bankruptcy of such other infringers has become final.

As per the general provisions, the court may order a person in possession of a document that is relevant for settling a case to submit it to the court file, to the extent that such a document is sufficiently identified by reference to its date, content, number, etc.

The specific procedure applicable in cases of claims for damages related to competition infringements is setting a precedent under Romanian civil procedure. Based on this specific procedure, the court can order the defendant, a third party or the Competition Council to disclose relevant evidence which lies in their control, subject to the claimant providing a reasonable justification of the facts and evidence requested and their relevance to the damage claim.

Pre-action or early disclosure is not regulated under the standard procedural rules. Access to evidence might also be considered without the specific disclosure procedure in the context of alternative dispute resolution procedures (eg, mediation).

The disclosure of evidence must be carried out by ensuring observance of legal professional privilege. Under Romanian law, the legal advice provided by external counsel is privileged.

Romanian law provides that leniency statements and settlement agreements are excluded from disclosure.

Moreover, to the extent that the leniency statements and settlement agreements are obtained through access to the file of a competition authority, such documents will not be allowed as evidence in damage claims.

Under Romanian law, there is no restriction in terms of the evidence admissible in a damage claim. Witness evidence may be used along with written documents and expert reports. Usually, witnesses are proposed by the parties and their presence is ensured by the party who proposed the witness. However, the parties are also allowed to request the court to summon the witness, in which case the witness must comply with the court's summons.

Where the claimant uses witnesses of facts, those witnesses will be heard orally before the court of law. The witness will report its knowledge of the situation and will then be questioned by the court as well as by the parties. Should there be any contradiction among different witnesses, they may be confronted.

Under Romanian law, there is no rule prioritising one type of evidence over another. The relevance of the witness testimonies will depend on the details they know and their overall credibility. Witness testimony will always be corroborated with other pieces of evidence.

Expert evidence is widely used in court litigation proceedings, particularly for determining the quantum of damages, but also in determining any other complex factual matters that require technical or professional expertise.

The expert report is submitted in written form. The expert may also be requested to provide oral explanations, after the submission of the expert report.

The parties are allowed to raise objections to the expert report and to request clarifications and supplements. Such clarifications are discussed in court. If the court approves the objections, the expert is ordered to supplement, clarify or remake the report, as the case may be. 

In practice, whenever there is an expert report, there are several rounds of objections and debates on its contents. Therefore, although the expert opinion is not binding on the court, the court will usually take it into consideration.

The common rule under Romanian tort law is that of full compensation. The same rule applies to harm caused by an infringement of competition law.

Full compensation aims at placing the person who has suffered harm in the position in which it would have been had the infringement of competition law not been committed. To this end, compensation shall include the actual loss and loss of profit, as well as the interest.

Compensation cannot lead to unjust enrichment and is not meant to punish the infringer. Punishment is ensured by the fine applied by the competition authority, if appropriate.

The “pass-on” defence is available in damage claims related to competition infringements. The defendant can argue that the overcharge was passed-on and that consequently the claimant did not incur damage.

The burden of proving that the overcharge was passed on shall be on the defendant. For this purpose, the defendant may use any type of evidence and may even require disclosure from the claimant or from third parties.

Under Romanian law, the full compensation principle entails that interest will be due. This also applies to damages arising from competition-related infringements.

The prevailing approach is that statutory penalty interest will accrue from the date the damage was caused.

The statutory penalty interest is set at the level of the reference interest rate established by the National Bank of Romania plus four percentage points.

The infringers are jointly and severally liable for the harm caused by their joint behaviour. This means that:

• any of the infringers may be compelled to individually compensate an injured party in full; and
• an injured party has the right to require compensation from any of the infringers until it has been fully compensated.

As an exception, SMEs are liable only to their own direct and indirect purchasers if they had a market share below 5% during the infringement and the joint liability rules would jeopardise their economic viability and cause their assets to lose all their value. In this case, however, SMEs can still be held liable to other injured parties only where full compensation cannot be obtained from the co-infringers. The limitation of an SME's liability is also excluded in cases where the SME has led the infringement or coerced other undertakings to participate, or has previously been found to have infringed competition law.

The immunity recipients will be liable jointly and severally only to their direct or indirect purchasers or providers. They might also be liable towards other injured parties where their co-infringers are not able compensate them.

Infringers may take action against any other participants to the infringement (“co-infringers”) in order to recover the contribution paid on their behalf. When exercising its right to recover, the infringer who paid will be entitled to consider each co-infringer's role in causing the harm resulting from the infringement.

The amount of the contribution of an infringer who was granted immunity from fines under a leniency programme cannot exceed the amount of the harm it caused to its own direct or indirect buyers or suppliers. This exception is not applicable when the competition infringement caused harm to parties other than the infringers' own direct or indirect purchasers or suppliers. In this particular case, the main rule will apply.

The general rules under the Civil Procedural Code allow for the court to order interim measures in urgent cases, for the preservation of a right that would be affected by delay, for the prevention of imminent and irreparable damage, and for the removal of obstacles that would arise in the event of an enforcement.

No specific injunctive relief measures are provided in relation to competition infringements. However, there is no reason that would prevent the use of general rules regulating injunctive relief, to the extent such relief is required, for example, in order to freeze the assets of the infringer or to preserve a specific piece of evidence.

The application for injunctive relief will usually be served to the infringer. However, there might be injunctions issued without summoning. In any case, the infringer will be able to appeal the injunction. The injunction order is always enforceable.

The applicant might be requested to submit security for losses potentially caused by the injunctive relief.

Means of alternative dispute resolution such as arbitration or mediation are available but not mandatory.

Romanian law provides certain incentives for pursuing alternative dispute resolution proceedings.

First of all, payment by the infringer of compensation to affected parties, pursuant to alternative dispute resolution proceedings, may constitute a mitigating factor reducing the amount of the fine applied by the Competition Council to said infringer.

Secondly, if court proceedings have been initiated and alternative dispute resolution proceedings take place in parallel, court proceedings may be suspended for up to two years.

Finally, settlement via alternative dispute resolution proceedings has effects on the “joint” character of the compensation obligation, which may be favourable to the infringer involved in that settlement, subject to the conditions detailed in the legislation.

No regulations are in place with respect to litigation funding, which is not common practice in Romania. However, there are no legal limitations that would prevent an agreement stipulating the funding of litigation.

General civil procedure provisions apply with respect to costs in court proceedings. The general rule is that the losing party bears the costs of the proceedings. Based on that rule, the losing party might be condemned to pay the costs incurred by the other party, including stamp fees and legal fees. Under Romanian law, there is no guarantee with respect to the ability to enforce the award on costs. There is no option for a party to apply for an order granting security for its costs.

Claims for damages related to competition infringements follow the general civil procedure rules involving a three-tier judicial review:

• first instance (the Bucharest Tribunal);
• appeal (the Bucharest Court of Appeal); and
• appeal in cassation (the High Court of Cassation and Justice).

The first-instance court and the appeal court will deal with the case in its entirety, both in terms of facts and law. On the contrary, at the level of the appeal in cassation, the court performs a limited review, which only verifies the correct application of substantive or procedural legal provisions by the appeal court. The High Court of Cassation and Justice cannot revisit or amend the facts of the case that were established by the lower courts.

The decisions issued on appeal are enforceable, even if an appeal in cassation is introduced. In the latter case, if the judgment in the appeal in cassation reverses the appeal decision, the enforcement acts will be reversed.