I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY
The basis for private enforcement of competition law in Romania is Act No. 21/1996 (the Competition Act). Currently, the Competition Act is primarily enforced by the Romanian Competition Council (the Council). Even after the major amendments to the competition legal framework in 2011 and continuous attempts of the Council and other public authorities to increase awareness among consumers, there is still not much private antitrust litigation in Romania, mainly because consumers harmed by anticompetitive practices are still reluctant to file such actions.
In fact, the national courts have dealt with only two private litigation cases on antitrust matters (i.e., stand-alone actions).2 In both cases the first instance court stated that the claimants did not prove the breaches of the Competition Act and the actions were dismissed for being ungrounded. Currently, one of the cases is pending before the High Court of Cassation and Justice. In the other case, the Bucharest Court of Appeal allowed the appeal and obliged the defendant to pay the plaintiff approximately €930,000 as indemnification, but this decision can be further appealed before the High Court of Cassation and Justice.
The past few years have not brought any significant amendments to domestic legislation on private enforcement of competition. Nevertheless, based on the proposed new piece of legislation, the Directive3 is expected to substantially amend our national legal framework.
II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT
The Competition Act prohibits:
- a any express or tacit agreement between undertakings or associations of undertakings, any decisions taken by the associations of undertakings and any concerted practices that have as subject matter or effect the restriction, prevention or distortion of competition on the Romanian market or on part of it; and
- b the abusive use of a dominant position held by one or more undertakings on the Romanian market or on a substantial part of it that, by way of anticompetitive deeds, may harm the business activity or consumers.4
The national basis for private competition law litigation is represented by the Competition Act and the Council Regulation on the analysis of and solving complaints regarding the breach of Articles 5, 6 and 9 of the Competition Act and Articles 101 and 102 of the TFEU5 (the Regulation).
Article 66 provides the general framework for the private enforcement of the Competition Act, stating that both legal and natural persons harmed as a result of anticompetitive practices are entitled to seek relief in court. This principle is further developed in Article 10 of the Regulation,6 which states that claims for damages may be filed by persons affected by an anticompetitive behaviour both directly and indirectly (for instance, persons who purchase goods and services from directly affected persons).
Regarding the date on which these claims may be filed, according to the Regulation, claims may be filed both before (stand-alone actions) and after the issuance of a sanctioning decision by the Council (follow-on actions). The Competition Act does not expressly provide that the follow-on actions may be based on a European Commission decision.
While, based on the prioritisation principle, the Council may decide which of the matters submitted is more urgent and important, the courts have the obligation to rule on all matters submitted to them. In particular, the courts can rule on the validity or voidance of agreements and have exclusive subject matter jurisdiction over the awarding of damages to individuals in cases of violations of Articles 5 and 6 of the Competition Act and Articles 101 and 102 of the TFEU.
The courts can award damages for losses caused by the infringement of the above-mentioned articles and can order protective actions and award costs of private competition litigation; they can also rule on matters concerning payment or fulfilment of contractual obligations on the basis of an agreement reviewed under Article 5 of the Competition Act and Article 101 of the TFEU.
The competition legislation also establishes the deadline for filing claims for follow-on actions, the removal of the joint and several liability of companies that enjoyed immunity from fines and the courts’ right to request from the Council the investigation file based on which the sanctioning decision was issued.
According to the CPC’s general rules, jurisdiction will belong to first-tier courts (local courts) or second-tier courts (district courts), depending on the value of the claim. More precisely, where the value exceeds 200,000 lei, the district court will be competent and lower values go to the local courts.
As regards territorial jurisdiction, lawsuits should be filed with the local courts corresponding to the defendant’s address or main place of business, or the place where the damage was caused or where the anticompetitive practice took place. Moreover, we must consider the provisions of Council Regulation (EC) No. 44/2001 (on jurisdiction, the recognition and enforcement of judgments in civil and commercial law) under which claimants can bring an action in the courts of the state where the defendants are domiciled or in the courts of the state where the harmful event occurred.
Private competition law actions have the nature of tort actions, being subject to the following principles:
- a any person responsible for any conduct (practice, act or deed) that caused damage to another person has the obligation to repair the damage;
- b if the damage was caused by more than one person, they will be held jointly liable; legal persons may also be held liable for their representatives’ infringements; and
- c the losses caused by the infringement are to be recovered in full, including the effective loss (damnum emergens), lost profits (lucrum cessans) and expenses incurred for avoiding or limiting the prejudice.
In order to be compensated for the damage, the victim of an illegal conduct (including anticompetitive practices) will have to prove that all of the following conditions triggering tort liability are met:
- a an infringement has occurred (including an act or practice prohibited by the national or EU competition rules);
- b the defendant’s fault, regardless of its form (negligence, wilfulness);
- c the damage caused to the claimant; and
- d the link between the infringement and the damage caused to the claimant.
In case of stand-alone actions, the burden of proof for the infringement of the competition legislation and the harm caused to a person lies with the plaintiff. On the other hand, with respect to follow-on actions, the infringement of the competition legislation which has been established by a definitive decision of the competition authority no longer needs to be proved. This distinction has also been adopted by the new Directive, which establishes that finding of an infringement by a competition authority or court should not be subject to litigation in a subsequent damages action. Moreover, if the claim is brought in the same state where the authority or court made the finding, such finding will be full proof of an infringement. Therefore, where a definitive decision of the competition authority states that an infringement has occurred, the first condition is met and the claimant only has to demonstrate points (b) to (d).
According to the general limitation rules, damage claims must be brought within three years in case of stand-alone actions, starting from when the plaintiff knew or should have known of both the damage and the person responsible for it. For follow-on actions, the statute of limitation is different, namely actions must be brought within two years ‘as of the date when the Council’s sanctioning decision becomes final’. Given that the Council commonly sanctions more undertakings through one decision, there are discussions regarding the commencement of the limitation period. The Council’s decision may become final for each undertaking at different times depending on whether the undertaking challenges the decision in court or files for appeal and according to the duration of each court proceeding corresponding to each undertaking.
The Competition Act is clear on its extraterritoriality effects, applying to anticompetitive acts and practices committed by Romanian or foreign undertakings in Romania, or committed abroad but having effects in Romania; therefore, nationality or location has no relevance as long as the infringement has effects in Romania. Based on the aforementioned principles, the Council has issued a series of decisions sanctioning foreign undertakings for having breached the provisions of the Competition Act and of the TFEU.9 In all cases, the Council imposed the fine directly on the foreign undertakings.
In practice, although the Council has the power to apply the Romanian competition law to foreign undertakings, obtaining evidence from them was a challenge. The Council’s efforts to obtain cooperation10 from the competition authorities from the countries where the parties originated were thwarted because the cooperation conditions are not met when the infringements affect only Romania. The Council, therefore, must seek information from the defendants through diplomatic channels, sending them requests for information through the Romanian Foreign Ministry and the Ministry’s foreign counterparts. A serious question remains as to whether the sanctioned foreign undertakings can eventually be forced to pay the fine imposed on them.11 The same issues are likely to cause uncertainty in connection with private enforcement of competition law involving a foreign undertaking.
The claim of relief in courts is governed by Article 66 of the Competition Act and Article 10 of the Regulation, according to which both the persons directly and indirectly affected by an anticompetitive behaviour may bring a private antitrust action in order to seek compensation for any damages incurred due to a prohibited practice according to the provisions of the Competition Act or of Articles 101 or 102 of the TFEU.
In 2010 and 2011, amendments of the Competition Act provided the Council the role of amicus curiae, giving it the power to issue observations to courts in particular in cases where national and European competition rules are applied. These observations may be issued by the Council ex officio or at the courts’ requests.
Third parties, either natural or legal persons, may intervene in a case in accordance with the CPC if they can prove an interest. Furthermore, if the judge considers that it is necessary to involve third parties in the case, he or she will bring up this issue to the parties. In case the parties do not request the intervention of such third parties and the judge considers that the case cannot be solved without their participation, he or she will dismiss the case without giving any ruling on the substance.
The Competition Act expressly provides the Council’s right to intervene in competition cases before national courts. Nevertheless, the Council lacks the tools to gather information about pending cases. Oddly, domestic legislation obliges national courts to report cases involving European competition law to the Council (which forwards the information to the European Commission), but it does not provide for an equivalent obligation to inform the Council about cases involving Romanian competition law.12
V THE PROCESS OF DISCOVERY
Under the Romanian legal system, unless otherwise provided by law, evidence is submitted by the parties in courts under strict judicial control. The evidence may be also exchanged between them by lawyers, including legal counsel, if agreed by the parties, in a fast-track procedure within a recommended legal time limit of six months, depending on the complexity of the case.
The CPC provides that if a document necessary to the proceeding is in a party’s possession and cannot be brought before the court because it is too costly, there are too many documents or they too sizeable, a judge, who shall assist the parties while examining the documents, can be delegated at the scene (however, this is a very rare practice).
As a rule, all evidence must be submitted before the facts of the case are discussed. By way of exception, evidence can also be produced before trial if there is risk of its loss or if future difficulties might arise in relation to its submission and under the condition that the occurrence of such risk is proven. The task of providing evidence of the damages incurred is difficult considering the substantial lack of investigative powers of the Romanian courts. Among the relevant discovery means are the appointment of experts or specialists, interrogatory, witnesses, requests for information to the public authorities (including the Council) in order to obtain official documents and information related to the case and other written documents submitted by the involved parties.
The need for disclosure of information or documents (in possession of one of the parties, an authority or a third party) will be assessed and decided by the court on a case-by-case basis, considering the confidential nature of certain documents. Documents and information that were granted a confidential nature during the administrative procedure should be considered as such by the court when ruling on a claim for damages. Moreover, the disclosing party is entitled to refuse such disclosure if the documents could expose personal issues or if such disclosure could trigger criminal prosecution against the party, its spouse or its relatives or in-laws until the third degree. According to the Competition Act and the relevant secondary national legislation, the court vested with a follow-on action may ask the Council to grant access to the documents that the latter relied on when issuing the sanctioning decision. Of course, the court shall be bound to ensure that the confidentiality of business secrets and other confidential information contained in such documents is not breached. The reasons based on which the Council granted confidentiality for certain documents or information may not subsist in the litigation phase (i.e., financial data, information regarding costs or prices) if they are qualified by the court as historical data, and the Council may be bound to disclose the documents or information in question.
If the opposing party refuses to disclose the requested document without justification, or it can be proved that the respective party has destroyed it, the court may consider the facts and allegations for which such document was requested as proven, fine the party or even consider such action a criminal offence under the Romanian Criminal Code.13
Upon request by one of the parties, the court may order a third party to produce documents on condition that the relevant documents are in the third party’s possession. The third party may refuse to produce documents on the same grounds that would entitle a witness to refuse to make a witness statement (i.e., specific personal reasons, risk of self-incrimination, risk of incriminating a close relative, risk of subsequent public prosecution, etc.).
VI USE OF EXPERTS
During the hearings at the administrative stage, the President of the Council may appoint experts whenever their presence is deemed necessary in the case under investigation. However, the members of the Competition Council Plenum may not be appointed as experts or arbitrators by the parties, the court or any other institution.
In court actions, in the absence of relevant case law and specific legal provisions, it should be determined how and what type of experts will be used in private competition law litigation. The CPC provides general principles that allow judges to request the opinion of one or more experts in the relevant field and one or all of the parties to produce experts’ reports or opinions in order to support their allegations in court. Nevertheless, to date, there have been no certified experts officially acknowledged in the competition field. Therefore, we have to rely once again on general principles provided by the CPC that state that, in domains that are strictly specialised, and where there are no authorised ex officio experts or experts requested by any of the parties, the judge may request the point of view of one or more personalities or specialists in such field.
As per the general rules, the court may also order an appraisal of the damages, in which experts appointed by the parties may also participate. Experts’ or specialists’ opinions are not binding, meaning that the court will consider them together with all other evidence. In addition, the court has the right to refer a case to the Council in order to obtain a specific opinion on competition aspects (e.g., relevant market definition).
VII CLASS ACTIONS
Since 2011, the Competition Act expressly regulates the rights of specified bodies (i.e., registered consumer protection associations and professional or employers’ associations having these powers within their statutes or being mandated in this respect by their members) to bring representative damages actions on behalf of consumers. The regulator seems to have chosen the opt-in system for collective damages claims based on the Competition Act. Class actions are exempted from the obligation to pay stamp duty.14
VIII CALCULATING DAMAGES
The Competition Act does not contain any specific provisions on how damages caused by infringing competition laws are to be determined. It is hoped that the legislator will clarify the matter when implementing the Directive. However, the fines imposed by the competition authorities do not represent a criterion for settling damages in private enforcement claims.
Based on the foregoing, the general rules governing the tort regime apply. One of the main principles of tort law is the full reparation of damage by removing all damaging consequences of the illegal conduct so as to put the victim in the situation it would have been in prior to the infringement. In line with this principle, the victim is entitled to recover both the effective damage incurred, any lost profits and the expenses incurred for avoiding or limiting the prejudice. Moreover, the Civil Code contains a provision according to which if the illegal deed caused the loss of an opportunity to obtain an advantage or to avoid damage, the victim shall be entitled to recover the incurred damages. In such cases the indemnification shall be established proportionally with the likelihood to obtain the advantage or to avoid the damage, bearing in mind the circumstances and the actual situation of the victim. The Directive sets out the same principle, stating that a person may request both the reparation of the actual damages incurred, any lost profits, as well as interest. Hopefully, this aspect will be clarified when implementing the Directive, as the Civil Code does not mention interest as a way of compensating the damage occurred.
Punitive damages are not allowed under Romanian law. The CPC provides for the general possibility of recovering attorneys’ fees. In general, legal costs are incumbent on the losing party upon the request of the winning party. The CPC details what legal costs are included (judicial stamp fees, attorneys’ and experts’ fees, amounts due to witnesses and, if the case may be, transport and accommodation expenses for witnesses and experts, as well as any other costs necessary for the process). To qualify for recovery, damages have to be able to be proven and they should not have been already recovered (e.g., based on an insurance policy). Future damages, if certain to occur, can also give rise to compensation. Moreover, the victim may also request penalties for delay calculated as from the date when the judgment became final up to the date of the actual payment of the damages.
In practice, the reference date for calculating the value of damages is still uncertain. Some court decisions take into consideration the value available when the actual damage was caused, while others consider the prices applicable at the time of the court decision awarding damages.
The Council proposed that in the case of class actions, a representative consumer should be found and the principles applying to him or her should apply to a broader range of plaintiffs, including undertakings subject to exclusionary practices. Thus, the damage incurred by this consumer shall be used as a reference when computing compensation for a whole class of plaintiffs. In this manner, plaintiffs shall have to show that they incurred damages, without being required to quantify the exact value of the damages, which most of the time implies a costly analysis.15
IX PASS-ON DEFENCES
The Competition Act includes specific provisions on passing on overcharges, which may be altered with the implementation of the Directive. Now, according to Article 66, Paragraph 2 of the Competition Act, ‘If an asset or a service is purchased at an excessive price, it cannot be considered that no damage was caused due to the fact that the respective good or asset was resold.’
It appears that there is no legal impediment preventing an indirect buyer from filing a claim for damages on grounds that the overcharges were passed on down the distribution chain, thus damaging the buyer.
At first view, Article 66 prevents the defendants from arguing that the claimant did not suffer a loss because the products or the services were sold. The courts have not yet ruled on this issue. It is to be further clarified whether the law has indeed introduced a total ban on the defendants’ invoking of the passing-on defence or not.
X FOLLOW-ON LITIGATION
Private actions do not need to rely on a prior finding of an infringement by the Council or the European Commission.16 The Competition Act establishes a special regime regarding follow-on actions. In such cases, since liability arises from the prior infringement decision, the burden on the claimant in such cases is to establish that they have suffered loss as a result of the infringement. As previously mentioned, the two-year term in which interested persons may introduce court action starts from the date when the Council’s sanctioning decision becomes final. The decision of the Council becomes final if (1) the term during which the Council decision may be challenged expires and no interested party challenged it; or (2) after being challenged, the decision is upheld (totally or partially) or annulled and declared by the court as being final. It is worth mentioning that our national legislation does not make a distinction between the court actions through which one challenges (1) the existence of the anticompetitive deed itself; and (2) the imposition of a penalty and the amount thereof. In case no appeal is filed against the decision or in case the decision is upheld by the courts, the Council decision will enjoy all the effects of a court judgment, including the res judicata effect. The res judicata effect establishes a legal presumption that is twofold: on the one hand, the losing party will not be able to re-examine the right in another dispute and, on the other, the winning party can avail itself of the recognised right in another dispute.
The Competition Act took over most of the recommendations made by the European Commission in its White Paper on Damages actions for breach of the EC antitrust rules.17 As such, when ruling on follow-on claims for damages, the courts may request the Council to provide the documents used for issuing the decision. After receiving such documents, the courts must ensure that any information considered as a business secret, as well as other information qualified as sensitive, is kept confidential, even if it is not clear by what means.
The Competition Act expressly acknowledges the privilege of confidentiality between the lawyer and the client, stating that communications between the undertaking or association and their lawyers (belonging to a bar association, not legal counsel) made exclusively for the purpose of exercising the right of defence (before or after the initiation of investigation) may not be collected or used as evidence during the investigation procedure carried out by the Council.
In addition, according to the lawyers’ legislation, any professional attorney–client communication or correspondence, regardless of its form, is confidential.
They cannot be used as evidence in court and cannot be stripped of their confidential nature. This privilege is acknowledged by civil as well as by criminal and administrative courts.
The information and documents contained in the Council’s investigation file are also protected by the Council’s confidentiality obligation. The following are deemed confidential:
- a business secrets (technical or financial information relating to the know-how of an undertaking, costs evaluation methods, production processes and secrets, supply sources, manufactured and sold quantities, market shares, lists of customers and distributors, marketing plans, cost and price structures, sale strategy); and
- b other confidential information (such as information communicated by third parties about the respective undertakings that could exert a significant economic and commercial pressure on competitors or commercial partners, customers or suppliers) that may cause the access to the file to be totally or partly restricted.
XII SETTLEMENT PROCEDURES
Given the nature of claims for damages, parties are allowed to use settlement negotiations either before or even during litigation proceedings.
The parties may agree upon the value of the damages and methods of reparation. If the parties settle their dispute, the court cannot be called to rule on such legal action; the court accepts as such the settlement without analysing the merits. Furthermore, the parties are able, at any time during the trial, even without being summoned, to go to court and request a judgment acknowledging their settlement. Such settlement must be submitted in writing to the court, which will include it in the operative part of the judgment.
The parties may agree for arbitration to be conducted by a permanent arbitration institution or even by a third party. However, no practice has been yet developed with regard to the private enforcement of competition, neither by the ordinary courts nor by arbitration tribunals.
The parties, natural or legal persons, may voluntarily refer their dispute to mediation, including after filing a lawsuit in court. In such cases, legally the parties are bound to prove that they have participated in the informative meeting regarding the mediation’s advantages. In 2014, the Romanian Constitutional Court ruled that the sanction is unconstitutional and its application has been suspended starting 25 June 2014. We are still expecting amendments that clarify the legal regime of the mediation procedure.
XIV INDEMNIFICATION AND CONTRIBUTION
The rule established by the Civil Code is that the defaulting party must repair any damages caused to another party. Where an infringing act may be attributed to more than one party, they should be held jointly liable towards the victim, who may initiate legal proceedings against any of them for the full amount of the damages. Excepted are the successful applicants for leniency, which cannot be held jointly and severally liable for their participation in anticompetitive practices prohibited by Article 5 of the Competition Act or by Article 101 of the TFEU. In a strict interpretation of the law, only the defendants having benefited from full leniency are exempted from joint and several liability, not the defendants who only benefited from a reduction of the fine according to the leniency procedure or the mitigating circumstance of recognising the deed. As regards the infringing parties, the division of liability should be made on a pro rata basis according to the seriousness of each party’s fault.
XV FUTURE DEVELOPMENTS AND OUTLOOK
The Competition Act is in line with the material aspects of EU competition law and encourages private competition enforcement.
Nevertheless, the new Directive is expected to substantially amend our national legal framework. On 29 July 2016 the Council took the first step in implementing the Directive and launched a public consultation on the proposed implementing measures.18
As the proposed law published on the Council’s website mirrors the text of the Directive and does not introduces new rules we have highlighted below only some of the specific provisions introduced by it.
i Disclosure of evidence and penalties
Based on the draft law, the measures introduced in order to protect the confidentiality regime of the information to be disclosed includes but are not limited to blacking out the confidential parts of documents, organising secret hearings and limiting the number of persons authorised to have access to the evidence.
In order to implement Article 8(1) of the Directive the draft law introduces the right of the courts to apply fines between 1,000 and 4,000 lei.
ii Limitation periods
Considering Article 10 of the Directive, the draft law provides that (1) the limitation period is five years; (2) the limitation period shall start when the breach has stopped and the claimant knows or can reasonably be expected to know of the behaviour and the fact that constitutes an infringement, the fact that the infringement caused harm and the identity of the infringer; and (3) the limitation period will be suspended for the period of the administrative measures taken by the competition authority in view of opening an investigation or for the period when the investigation is ongoing. The draft law also provides that the time limit will not elapse before one year after the infringement decision becomes final or after the proceedings are otherwise terminated. Moreover, the limitation period will not start or will be suspended for the duration of the consensual dispute resolution process.
Compared with other states (such as Spain), the new proposed draft provides that (1) only the national antitrust infringement decisions shall be considered to establish irrefutably the existence of an infringement of competition law; and (2) a final decision taken in another Member State is to be considered only as prima facie evidence and shall be assessed by the court along with all the other evidence brought by the parties. As the national legislation does not include the term ‘prima facie evidence’, it would have been useful for the draft law to define it.
iii Quantification of harm
The courts are empowered to estimate the amount of harm for the cases brought before them. The Competition Council may assist the court with respect to the determination of the quantum of damages, if the court requests this assistance.
The national court empowered to resolve actions for damages is the Bucharest Tribunal – civil section.
Based on the draft law, no stamp duty is to apply to these actions for damages.
All the other rules of the Directive (with respect to disclosure, the right of full compensation, indirect purchases claims, joint and several liability, etc.) are practically copied by the proposed draft law.
1 Silviu Stoica is a partner, Mihaela Ion is a managing associate and Laura (Bercaru) Ambrozie is a senior associate at Popovici Niţu Stoica & Asociaţii.
2 According to OECD’s Working Party No. 3 on Co-operation and Enforcement – ‘Relationship between public and private antitrust enforcement’ – Romania, 15 June 2015.
3 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 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 Text with EEA relevance as it was published in Official Journal No. L 349 of 5 December 2014.
4 In accordance with the provisions of Article 6(3) of the Competition Act, it is presumed, until proven otherwise, that one or several undertakings are in a dominant position if the accumulated market share on the relevant market, registered for the analysed period, is over 40 per cent.
5 Approved by Council’s President Order No. 499/2010.
6 The courts are also competent to defend the rights of natural and legal persons regarding complaints resulting from the violation of Articles 5 and 6 of the Competition Act and Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Considering European Commission recommendations, the Competition Council encourages claims filed by persons affected by anticompetitive actions and behaviours, in view of rectifying the suffered damages. The courts may decide upon the validity or nullity of the concluded agreements and solely may grant compensations to natural and legal persons if Articles 5 and 6 of the Competition Act and Articles 101 and 102 of the TFEU are infringed. In order to ensure the complete effectiveness of the rules in competition matters, any person may request compensations for the prejudices caused by an agreement or behaviour likely to distort the competition.
7 The current Civil Code entered into force on 1 October 2011.
8 The current Civil Procedural Code entered into force on 15 February 2013.
9 Council’s Decision No. 51/2011, Council’s Decision No. 99/2011, Council’s Decision No. 44/2013, Council’s Decision No. 58/2013.
10 The OECD Peer-Review on Competition law and policy in Romania issued in 2014 expressly mentions only the Council’s gathering of evidence in the investigations finalised through Council’s Decision No. 99/2011 and Council’s Decision No. 44/2013.
11 According to OECD Peer-Review on Competition Law and Policy in Romania issued in 2014.
12 According to OECD Peer-Review on Competition Law and Policy in Romania issued in 2014.
13 The current Criminal Code entered into force on 1 February 2014.
14 Article 29(f) of the Government Emergency Ordinance No. 80/2013.
15 The Council’s standpoint on quantification of harm suffered because of an infringement of Article 101 or Article 102 of the TFEU.
16 For further information regarding this issue please refer to Section II, supra.