This country-specific Q&A provides an overview to competition litigation laws and regulations that may occur in Romania.
This Q&A is part of the global guide to Competition Litigation. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/competition-litigation/
What types of conduct and causes of action can be relied upon as the basis of a competition damages claim?
Broadly, according to Romanian law, in particular Emergency Government Ordinance no. 39/2017 regulating damages claims in case of competition law infringements (EGO 39), any person having incurred a damage from an infringement of competition law by an undertaking or by an association of undertakings can exercise the right to claim full compensation for that harm from that undertaking or association. Thus, the competition damages claim is a remedy destined to cover a wide array of conducts.
An “infringement of competition law” means an infringement of Article 101 (i.e., agreements between undertakings, decisions by associations of undertakings or concerted practices which may affect trade between the member states of the European Union and which have as their object or effect the prevention, restriction or distortion of competition within the internal market) or Article 102 (i.e., abuse by one or more undertakings holding a dominant position within the internal market or in a substantial part of it in so far as it may affect the trade between the member states of the European Union) of the Treaty on the Functioning of the European Union (TFEU) or of the national competition law equivalent provisions (i.e., the provisions of the Competition Law No. 21/1996 having similar objectives to those of articles 101 and 102 of TFEU).
Therefore, damages claims can be brought in relation to anticompetitive agreements/concerted practices of: (i) directly or indirectly fixing the purchase or selling price or any other trading conditions; (ii) limiting or controlling production, markets, technical development or investment; (iii) sharing markets or sources of supply; (iv) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (v) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
As regards dominance abuse, the conduct may refer to: (i) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (ii) limiting production, markets or technical development to the prejudice of consumers; (iii) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (iv) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
The form of liability is tort, which under general Romanian Civil code rules requires proof by the claimant of (i) an unlawful act, (ii) the existence and quantum of a damage (iii) a link between the unlawful act and the damage and (iv) fault.
What is required (e.g. in terms of procedural formalities and standard of pleading) in order to commence a competition damages claim?
There are no specific procedural formalities governing commencement of a competition damages claim, aside from the general formalities characterising any Court claims (e.g., lodging of the written submission with the competent Court, payment of the stamp duty, providing identification details of the parties etc.).
Also, there is no specific standard of pleading. However, since the competent Court of first instance is the Tribunal (see question 6), only a fully-qualified lawyer may plead before the Court. By way of context, under Romanian law, trainee lawyers may only plead before ordinary (first level) courthouses; upon completion of a two-year traineeship and attendance of a qualification exam, a trainee lawyer becomes a fully-qualified lawyer and may thus plead before Tribunals and Courts of Appeal. Additional professional experience is warranted to plead before the Supreme Court and the Constitutional Court (e.g., five-year experience as a fully qualified lawyer).
What remedies are available to claimants in competition damages claims?
Anyone having suffered harm from an infringement of competition law may seek full reparation of the alleged prejudice.
By way of principle, such full reparation is meant to place the person who suffered the prejudice in the position in which that person would have been had the infringement of competition law not been committed. It shall therefore cover the right to compensation for actual loss and for loss of profit, plus the payment of interest. However, full compensation may not lead to over-compensation, whether by means of punitive, multiple damages or otherwise.
What is the measure of damages? To what extent is joint and several liability recognised in competition damages claims? Are there any exceptions (e.g. for leniency applicants)?
As a general rule, undertakings having infringed competition law through joint behaviour are jointly and severally liable for the harm caused. Each of these undertakings is bound to provide full compensation for the harm, the injured party having the right to bring a claim for the full amount against any of the participants to the infringement, at its choice.
There are, however, a series of exceptions.
SMEs. A first exception refers to small or a medium-sized enterprise (SME) which under certain conditions (i.e., reduced market presence – below 5% throughout the infringement period, and jeopardy to their economic viability) is only liable (i) to its own direct or indirect purchasers, and (ii) to other injured parties, only when full compensation cannot be obtained from the other infringing undertakings. The exception is not applicable when the SME has either (i) coerced other undertakings to participate in the infringement, or (ii) the SME is a repeated offender of competition law.
Immunity recipients. A second exception refers to immunity recipients. An immunity recipient may only be held jointly and severally liable: (i) to its direct or indirect purchasers or suppliers, and (ii) to other injured parties, only where full compensation cannot be obtained from the other participating undertakings.
Thereafter, an infringer which has paid the full damage to a claimant may redress against the other infringers, pro rata to their relative responsibility for the harm caused by the infringement. The contribution of an immunity recipient shall not exceed the harm it caused to its own direct or indirect clients or suppliers.
If the infringement caused harm to injured parties other than the direct or indirect clients or suppliers of the infringers, the amount of any contribution from an immunity recipient to other infringers shall be determined in light of its relative responsibility.
 - Within the meaning set forth by the Commission Recommendation 2003/361/EC.
What are the relevant limitation periods for competition damages claims? How can they be suspended or interrupted?
The limitation period for a competition damage claim is five (5) years. Such term shall not begin to lapse prior to the infringement having ceased and the plaintiff having known, or been reasonably expected to know:
(i) the behaviour and the fact that it constitutes an infringement of competition law;
(ii) the fact that the infringement generated a prejudice; and
(iii) the identity of the infringer.
The limitation period does not commence or, if it already commenced, it shall be suspended if a competition authority takes investigative action in that regard. The suspension shall end one (1) year after an infringement decision has become final or after the proceedings are otherwise terminated.
If one of the infringers is either an SME or an immunity recipient (see question 4) and the plaintiff cannot recover the damages from the other undertakings involved in the same infringement due to the latter’s bankruptcy, the limitation period against an SME or an immunity recipient is three (3) years as of the date of issuance of a final bankruptcy decision or otherwise termination of the proceedings.
Aside from the specific suspension situations mentioned above, under Romanian law, the following suspension hypotheses are also noteworthy:
(i) throughout the negotiations held in order to amiably solve the dispute, but only if such negotiations have started within the last six (6) months of the limitation period; and
(ii) if the harmed person is subject to a force majeure case which impedes it to take action, as long as such impediment exists, but only provided that the force majeure case occurred within the last six (6) months prior to expiry of the limitation period.
Also, apart from the specific interruption situations mentioned above, the limitation period is generally interrupted by:
(i) the infringer’s recognition as to the harmed person’s claim; and
(ii) commencement of litigation by the harmed person.
Which local courts and/or tribunals deal with competition damages claims?
The court having jurisdiction over competition damages claims – as a Court of first instance – is the Bucharest Tribunal. The decision of the Bucharest Tribunal may be challenged via appeal (in Romanian, apel) before the Bucharest Court of Appeal, while the decisions of the latter may in turn be challenged via higher appeal (in Romanian, recurs) before the High Court of Cassation and Justice.
How does the court determine whether it has jurisdiction over a competition damages claim?
In order to rule on its own jurisdiction over the case, the court shall proceed to a summary prima faciae examination of the merits: it will determine whether, broadly, the claim appears to be a request for reparation of a prejudice generated by a breach substantially presenting the features of a competition law infringement.
Should there already be a sanctioning decision issued by a competition authority on such infringement, a high level review of the nexus between the sanctioned infringement and the infringement alleged by the plaintiff shall be performed.
How does the court determine what law will apply to the competition damages claim? What is the applicable standard of proof?
The court will determine the applicable law based on a conflict of laws assessment.
Procedural law. Procedure wise, article 4(1) of Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters sets out the general rule whereby persons domiciled in a member state of the European Union shall, whatever their nationality, be sued before the courts of that member state. Several exceptions are however applicable: for example, article 7(2) of the Regulation (EU) No. 1215/2012, according to which: “A person domiciled in a Member State may be sued in another Member State: (…) (2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.” This is based on the existence of a particularly close connecting factor between a dispute and courts, other than that of the place where the defendant is domiciled, which justifies the jurisdiction of those courts for reasons relating to the sound administration of justice and the efficient conduct of proceedings. Similar provisions exist in the Romanian Civil procedure code.
Therefore, as most competition damages claims are based on tort liability, the courts for the place where the damage occurred also have jurisdiction.
Substantive law. Substantive law wise, Article 6 (3) of Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations (Rome II) provides that: “The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected.”
As such, a Romanian based injured party may have solid arguments to bring its case before a Romanian court and to argue that substantive Romanian law is applicable to the merits of the case (on the grounds that it arises from a competition infringement impacting the Romanian market), regardless of the nationality of the defendant.
Standard of proof. No detailed rules as to the standard of proof are provided under Romanian law for competition damages claims. Therefore, the general civil procedure rules on evidence shall apply. Ultimately, the relevance and pertinence of the evidence will be assessed by the court, which will examine their probative value globally.
However, EGO 39 does regulate a series of presumptions meant to facilitate the claimant’s effective access to justice. Thus, where there is already an infringement decision of a competition authority, the existence of the unlawful act (i.e. the first condition of tort liability) is presumed (see question 9). Moreover, in case of cartels, EGO 39 institutes a (rebuttable) existence of presumption, but without indicating a quantum.
Last, but not least, according to EGO 39, the Court has the power to estimate the amount of the damage, ensuring that neither the burden of proof, nor the standard of evidence required to quantify the prejudice make it virtually impossible or excessively difficult to exercise the right to full compensation. These provisions, which are still to be tested in practice, depart from the traditional Romanian civil liability principles according to which both the existence of the damage and its quantum must be certain, albeit a partial reform of this conception was already anticipated through the new Romanian Civil code of 2011, which also gave judges more freedom in determining losses.
In any event, it is to be expected that courts will rely heavily on economist expert reports in order to “estimate” the alleged losses.
To what extent are local courts bound by the infringement decisions of (domestic or foreign) competition authorities?
An infringement of competition law found by a final decision of either the Romanian Competition Council (the RCC), the European Commission, or a Romanian court is deemed to be irrefutably established for the purposes of competition damages cases brought before Romanian courts.
A final decision of either a national competition authority or a court of law issued in another member state – brought before a Romanian court in a competition damages case – has the legal value of a rebuttable presumption as to the existence of the alleged infringement; as such, it may be assessed along with any other evidence adduced by the parties, and rebutted by the defendant.
To what extent can a private damages action proceed while related public enforcement action is pending? Is there a procedure permitting enforcers to stay a private action while the public enforcement action is pending?
Competition damages claims are stayed for as long as the corresponding public enforcement action is pending.
If a competition authority takes investigative action against a suspected infringement, the limitation period corresponding to the competition damage claim does not begin to lapse, or, if it has commenced, it is suspended.
What, if any, mechanisms are available to aggregate competition damages claims (e.g. class actions, assignment/claims vehicles, or consolidation)? What, if any, threshold criteria have to be met?
Under Romanian law, there are no provisions regarding specific mechanisms for the aggregation of competition damages claims, but there are no regulations impeding such mechanisms either.
As such, under the general civil law rules, plaintiffs are at liberty to (i) bring a common claim, if they have the same cause of action or there is strong connection between their rights (ii) assign their litigious rights, or (iii) file a motion for the joining-in of their claim to another similar claim (which will be granted if the court deems that a close connection between the cases warrants it).
No threshold criteria are imposed for such procedural instruments (see questions 19 and 20).
Are there any defences (e.g. pass on) which are unique to competition damages cases? Which party bears the burden of proof?
The defendant in a competition damages claim can raise the pass on defence (i.e., the fact that the plaintiff passed the alleged overcharge resulting from the infringement in whole or in part to its own direct or indirect customers). The burden of proof rests with the defendant, who may reasonably request disclosure of evidence from the plaintiff or third parties to this effect.
The rule is further adapted for indirect customers. Where the existence/ quantum of a claim depends on whether/ to what extent an overcharge was passed on to the plaintiff (i.e., an indirect customer) – given the economic theory that price increases are passed on down the supply chain – the burden of proof of such passing-on rests with the plaintiff, who may reasonably require disclosure of evidence from the defendant or from third parties.
However, passing-on shall be deemed proven by the indirect customer if the latter proves that:
(i) the defendant has committed an infringement of competition law;
(ii) the infringement of competition law has resulted in an overcharge for the direct purchaser of the defendant; and
(iii) the indirect purchaser has purchased the goods or services that were the object of the infringement of competition law or has purchased goods or services derived from or containing them.
This above is inapplicable if the defendant can prove that the overcharge was not (fully or partially) passed on to the indirect purchaser.
Is expert evidence permitted in competition litigation, and, if so, how is it used? Is the expert appointed by the court or the parties and what duties do they owe?
Yes. Generally, expert examination may be relied on in order to clarify certain factual circumstances. Experts are particularly instrumental in competition damages cases for the valuation of the prejudice.
Upon request of either party (or even ex officio), the court shall appoint an expert to analyse the matter and draft an expert report; in more complex matters, a panel of three experts may be appointed.
If necessary, the court may request that the expert report be performed by a specialised institute. The court will appoint the expert by random appointment from the official list of professionals qualified to sit as experts in court cases; the list is ordered by areas of professional expertise (e.g., accountancy, engineering, construction, valuation etc.).
Currently, there are no competition damages valuation experts on the list published by the Ministry of Justice. Therefore, the court has the option to appoint an expert in valuation/ economics. Alternatively, the party requesting the expert report may argue that, since no expert on the official list is qualified in the specific field of competition damages claims, a reputed specialist outside of the list should be nominated, which is permissible under the Civil procedure code. Such expert may be either Romanian or foreign.
Aside from the court appointed expert(s), each party may appoint a party expert assisting them in the expert report drafting phase. The party experts may ask questions, raise talking points, provide the court expert with materials and clarifications and, if the case, draft a dissenting expert report.
The expert report phase will be based on the expert objectives proposed by the party requesting this evidence, in the form approved by the court – in essence, these objectives are the questions that the court expert would have to answer. Aside from document examination, the expert report drafting phase may entail prior on-site meetings, asset examination, in order for the expert to be able to form an opinion on the factual aspects of the case.
If the court considers that the expert report requires clarifications or additions or if there is a contradiction between the opinions of the experts, the court, ex officio or upon request of a party, may ask the experts to provide clarifications/ amendments. Also, for well-grounded reasons, the court may decide ex officio or upon the request of either party, that a new expert report is prepared by a different expert.
Describe the trial process. Who is the decision-maker at trial? How is evidence dealt with? Is it written or oral, and what are the rules on cross-examination?
Broadly, a competition damages trial before a Romanian court shall observe the general procedure set forth by the Romanian civil procedure code.
Decision-making. Romania has a continental law system, thus the decision-maker at trial is the court – i.e., one judge in first instance competition damages cases, a panel of two judges in the appeal, and a panel of three judges in higher appeal.
Process phases. Largely, the trial will entail the following phases:
(a) The written phase. The plaintiff files a written statement of claim, presenting inter alia its (i) factual and legal reasoning, and (ii) supporting evidence. The statement of claim undergoes an administrative examination of compliance with the formal judicial requisites (e.g., stamp duty payment, indication of the defendants’ summoning address etc.); should it be the case, the plaintiff is given a term for the remedial of such errors. Upon being served the statement of claim, the defendant has 25 days to respond by statement of defence; then, conversely, the plaintiff may respond by an answer to the statement of defence, within 10 days of service of the statement of defence. Once the statement of defence is received, a first hearing is set by the judge.
(b) The court phase. The court phase entails (i) resolution of preliminary requests and procedural pleas (e.g., lack of jurisdiction of the Romanian courts, lack of active standing etc.), (ii) evidence examination and, thereafter, (ii) oral debates on the merits.
(c) The deliberation phase. The judge, upon hearing the concluding remarks of the parties, issues its ruling over the case. The actual reasoning of the ruling is drafted and served on the parties in the following months (i.e., approximately four-six months, or even more in complex cases) after the issuing of the ruling.
Evidence. Evidence is both written (e.g., documents, expert reports, specialist opinions), or oral (e.g., witness testimonies, cross-examination).
The evidence must be provided either by the parties, considering special timing requirements or it can be requested by the court ex officio (pursuant to its active role). Upon reasoned request of a plaintiff (containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages), the court may compel the defendant or a third party to disclose relevant evidence in their possession; conversely, the court may, upon request of the defendant, compel the plaintiff or a third party to disclose relevant evidence (see also question 21).
Cross-examination. Under Romanian law, cross-examination may be requested by (i) any of the parties or (ii) ex officio by the judge. The cross-examination procedure differs depending on whether it refers to (i) a natural person or (ii) a legal entity. In the case of a natural person, the judge will address direct questions to the cross-examined party orally, in the hearing; the parties may also suggest questions. With respect to legal entities, cross-examination is a written procedure: the cross-examination questions proposed by the plaintiff must be filed with the statement of claim (and by the defendant, with the statement of defence) and will be answered in writing by the representatives of such legal entity.
In both cases, as a general rule, the cross-examination questions must refer to facts personally known/ witnessed by the addressee. A refusal to answer may, according to the circumstances, be deemed by the court as an implied recognition of the facts alleged by the opposing party.
How long does it typically take from commencing proceedings to get to trial? Is there an appeal process? How many levels of appeal are possible?
Under Romanian law, the trial commences with the submission of the written statement of claim by the plaintiff. Then the written phase of the trial commences (see question 14 let. (a) Written phase). Once the statement of defence is received, a first hearing is set by the judge and the oral phase of the trial commences. In practice, it takes around three-four months from the submission of the statement of claim for the written phase to be completed and a first hearing to be set.
The decision issued by the court of first instance may be challenged. There are two appeal levels available: an appeal and a higher appeal (see question 6).
Do leniency recipients receive any benefit in the damages litigation context?
Yes. Broadly, leniency recipients benefit from more favourable terms as regards the joint and several liability (see question 4). Also, documents drafted in the context of leniency proceedings have a special disclosure regime in the context of competition damages claims (see question 21).
How does the court approach the assessment of loss in competition damages cases? Are “umbrella effects” recognised? Is any particular economic methodology favoured by the court? How is interest calculated?
As anticipated, the general principle in competition damages cases is full reparation of the incurred harm, which should place a person having suffered harm in the position in which that person would have been had the infringement not been committed.
General. The Court has the power to estimate the amount of the alleged damage, ensuring that neither the burden of proof nor the standard of proof necessary to quantify the prejudice make it practically impossible or excessively difficult to exercise the right to full compensation. Cartel-type infringements are presumed to have caused a damage: the presumption is rebuttable, the alleged infringer having the possibility to rebut it.
Upon request of the Court, the Romanian Competition Council may assist for the purposes of determining the quantum of the damages, if the latter deems such assistance adequate.
Under Romanian, compensation may cover both actual loss (damnum emergens) and loss of profit (lucrum cessans). In addition, interest may be awarded at a rate which is set at the reference interest rate plus four (4) percentage points. The reference interest rate is set by the National Bank of Romania.
Apart from the aforementioned rules, there is little to none national guidance in quantum assessment in competition damages cases; given the novelty of the legislation, its provisions are still largely untested in practice. In the only damages claim resolved through a final court decision so far, namely the case in which the Romanian Post was obliged to compensate the damage suffered by a client as a result of an abusive discrimination practice by the former, the Bucharest Court of Appeal simply awarded the claimant the amount equal to the additional discount obtained by another (favoured) client of the defendant.
Absent national guidance and caselaw, we expect Romanian courts will refer to the European Commission guidelines – i.e., (i) the 2013 “Practical Guide on quantifying harm in actions for damages based on breaches of article 101 or 102 of the Treaty on the Functioning of the European Union” (the Practical Guide) and (ii) the “Guidelines for national courts on how to estimate the share of overcharge which was passed on to the direct purchaser” (the Overcharge Guidelines).
Can a defendant seek contribution or indemnity from other defendants? On what basis is liability allocated between defendants?
The undertakings which have infringed competition law through joint behaviour are jointly and severally liable for the harm caused by such infringement
An infringer having compensated the full prejudice may in its turn recover from the other participants their corresponding share of the prejudice; the concrete amounts shall be determined in the light of their relative responsibility for the harm caused by the infringement (,i>see also question 4).
In determining the amount a co-infringer may recover from the other participants to the infringement, account shall be taken of the damages already paid by such co-infringer via alternative dispute resolution means.
In what circumstances, if any, can a competition damages claim be disposed of (in whole or in part) without a full trial?
There are various methods whereby a claim may be disposed of without undergoing a full trial: (i) court or out of court settlement, (ii) waiver of the claim, or (iii) waiver of the substantive right itself.
Settlement. Following a consensual settlement, the claim of the settling injured party is reduced by the settling co-infringer's share of the harm that the infringement of competition law inflicted upon the injured party. Any remaining claim of the settling injured party shall be brought only against non-settling co-infringers. Non-settling co-infringers shall not be permitted to recover contribution for the remaining claim from the settling co-infringer.
By way of exception, where the non-settling co-infringers are unable to pay the damages corresponding to the remaining claim, the settling injured party may bring the remaining claim against the settling co-infringer. However, the applicability of such exception may be expressly excluded via the consensual settlement.
Waiver of the claim/ the substantive right. Additionally, according to the Romanian Civil Procedure Code, a plaintiff may also:
(i) waive the judgement by withdrawing its statement of claim: in such case, the trial ends without a ruling on the merits, but – within the limitation period – an identical claim can be filed; if made on or after the first hearing, such waiver is also subject to the consent of the defendant; or
(ii) waive the substantive right altogether: the trial ends by a ruling rejecting the claim; such waiver is not subject to the consent of the defendant.
What, if any, mechanism is available for the collective settlement of competition damages claims? Can such settlements include parties outside of the jurisdiction?
Under Romanian law there is no special mechanism governing the collective settlement of competition damages claims. At the same time, there is no legal impediment against either (i) collective settlement, or more in particular, (ii) collective settlement including parties outside of the jurisdiction.
Thus, such mechanisms could in principle be enacted in practice.
What procedures, if any, are available to protect confidential or proprietary information disclosed during the court process? What are the rules for disclosure of documents (including documents from the competition authority file or from other third parties)? Are there any exceptions (e.g. on grounds of privilege or confidentiality, or in respect of leniency or settlement materials)?
Document disclosure. In competition damages cases, upon request of a claimant who has presented a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, the court may to order the defendant or a third party to disclose relevant evidence which lies in their control. Also, upon request of the defendant, the court can order the claimant or a third party to disclose relevant evidence.
The court can order the disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible, on the basis of reasonably available facts in the reasoned justification.
The court limits the disclosure of evidence to what is proportionate. In assessing proportionality, the court shall consider the legitimate interests of all parties and third parties concerned, especially: (i) the extent to which the claim or defence is supported by available facts and evidence justifying the request to disclose evidence; (ii) the scope and costs of disclosure, especially for any third parties concerned (including preventing non-specific searches for information which is unlikely to be of relevance for the parties in the procedure); (iii) whether the evidence contains confidential information, especially concerning any third parties, and what arrangements are in place for protecting such confidential information.
The interest of undertakings to avoid competition damages claims is not deemed an interest warranting protection.
Third parties from whom disclosure is sought are provided with an opportunity to be heard before the court orders disclosure. The court gives full effect to applicable legal professional privilege when ordering evidence disclosure.
Confidentiality protection. The court has the power to order disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts. The court can also adopt special protection mechanisms to safeguard the confidentiality of such information: (i) redaction of sensitive paragraphs; (ii) holding non-public hearings; (iii) limitation of the access to the sensitive information; (iv) ensuring the expert reports are drafted observing information confidentiality; and (v) any other measures imposed by law in order to ensure the disclosed information confidentiality.
Disclosure of evidence included in the file of the competition authority. The general rule is that the court can order the disclosure of evidence included in the file of the competition authority. When the competition authority issues a fining decision, the court will be able to request to the competition authority the documents of the investigation file on which the decision was based in the settlement of claims for compensation. To this end, by receiving these documents, the court will ensure observance of confidentiality of business secrets and other classified information.
The court may order the disclosure of the following categories of evidence only after a competition authority, by adopting a decision or otherwise, has closed its proceedings:
(i) information prepared by a party in the proceedings before a competition authority specifically;
(ii) information that the competition authority has drafted and sent to the parties in the course of its proceedings; or
(iii) withdrawn settlement submissions.
Disclosure of leniency or settlement submissions. It should be noted that, for the purpose of actions for damages, Romanian courts cannot order a party or a third party to disclose any of the following categories of evidence: (i) leniency statements and (ii) settlement submissions. That being said, a plaintiff may present a reasoned request that the court accesses the evidence referred to in above for the sole purpose of ensuring that their contents correspond to the substantial definitions of such proceedings (i.e., leniency and settlement) mentioned in EGO 39. In that assessment, the court may request assistance only from the competition authority.
Can litigation costs (e.g. legal, expert and court fees) be recovered from the other party? If so, how are costs calculated, and are there any circumstances in which costs recovery can be limited?
Under Romanian law, the litigation costs broadly consist of stamp duty, legal fees, and other evidence production related fees (e.g., expert/ specialists fees, disbursements for the witnesses heard during the trial etc.).
The defaulting party will be ordered by the court to pay the litigation costs, based on the grounded request of the winning party; such request shall be accompanied by documentary evidence of the claimed costs.
Upon request or ex officio, the court may reduce the legal fees (i.e., the opposing party lawyer’s fees) when they are assessed to be disproportionate to the specifics of the case; clearly, such reduction does not impact the lawyer-client financial understanding. In practice, courts often grant only partially legal fees costs to the winning party.
Are third parties permitted to fund competition litigation? If so, are there any restrictions on this, and can third party funders be made liable for the other party’s costs? Are lawyers permitted to act on a contingency or conditional fee basis?
Litigation funding in general is still a very pristine terrain in Romania. There are no specific rules governing the matter under Romanian law. However, there are no regulations impeding it either. Broadly, cost liability for third party funders should follow the generic cost allocation provisions described above (see question 22).
As to legal fees, under Romanian legislation, lawyers are not permitted to act solely on a contingency or success fee basis; however, these are permitted if coupled with a fixed amount fee. Therefore. often, in practice, mandates are assumed on a retainer plus success fee basis; the success fee is often expressed as a percentage of the recovered amount (or saved amount, as the case may be).
What, in your opinion, are the main obstacles to litigating competition damages claims?
Romania is yet to gather consistent practical experience in terms of competition damages cases. This may also be due to a cultural paradigm, in a country where reaching an amicable understanding was always preferred to going to court, as part of an unwritten moral code. However, recent legislative developments, such as EGO 39 transposing the Private Damages Directive may change things. The cultural patterns are also evolving and a large wave of (consumer) litigation against financial institutions (in the context of the financial crisis) in the past years has shown that Romanians’ litigious appetite is steadily increasing.
Technically, the damages valuation part seems to be trickiest part. It remains to be seen how the Romanian judges will address the “estimation” possibility that EGO 39 recently granted them against their traditional civil law education that required the claimant proving a “certain” quantum of the damage.
Another notable impediment for the potential plaintiffs is related to costs, especially the stamp duty, which is computed ad valorem, as a percentage of the claimed amount (exceeding 1%) and must be paid upfront and, of course, the cost of lawyers and economists.
What, in your opinion, are likely to be the most significant developments affecting competition litigation in the next five years?
While local experience in competition damages cases may be limited, there is surely a growing interest for this topic.
The most relevant (public) precedent is a 2015 successful damages claim: around RON 4.2 million (approximately EUR 880,000) in damages were awarded in a claim brought by an insolvent company, Mailers Serv, against the Romanian Post by the Bucharest Court of Appeal. The judgment was later upheld by the High Court of Cassation and Justice, in November 2016.
The case was a follow-on damages claim brought by one of the companies that the competition authority found to have been discriminated by the Romanian Post in a 2010 fining decision for abuse of dominant position. In the particular case, the authority fined the Romanian Post with RON 103 million (approx. EUR 23 million).
More recently, several follow-on damages claims were filled before Romanian courts based on a sanctioning decision of the European Commission. Some lawyers are now overtly promoting such claims. Moreover, the President of the RCC publicly declared on repeated occasions that the implementation of the Damages Directive could also represent an effective means for public authorities to claim damages for the harm incurred following breaches of competition law.
Thus, a rise in the number of competition damages cases is to be expected, especially since the competition authority became more active over the past years, focusing on large cartel and dominance investigations, which are the types of infringements that are most likely to give rise to damages claims. By way of example, a total of 16 investigations were commenced in 2018, out of which 13 refer to potential cartels or dominance abuses.