I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY

Since 8 June 2010, the Romanian legal framework regarding private enforcement has been substantially modified. The existing legal framework set up by the Competition Act2 was amended and supplemented to reflect properly the provisions of the Directive 2014/104 on private enforcement3 by the Government Emergency Ordinance No. 39/20174 (New Rules).The New Rules also introduced a new provision that is not contained in the Directive: the payment of damages following a settlement procedure is qualified as a mitigating circumstance by the national competition authority (Competition Council or Council) when individual sanctions are imposed for competition law infringements.

With the purpose of facilitating the reparation of harm caused by competition law infringements, the New Rules set up a clear, more detailed legal framework for private enforcement of the competition law, clarifying and providing supplementary guidance on disclosure procedures, passing-on defences and other procedural issues.

Currently, private enforcement tools remain relatively underused, as public enforcement still prevails. Under the updated legal framework, we expect to see private antitrust litigation in Romania increase.

To date, the national courts have dealt with only two private litigation cases on antitrust matters (i.e., stand-alone actions).5 In both cases, the first instance court stated that the claimants did not prove 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,6 and obliged the defendant to pay the plaintiff approximately €930,000 as indemnification; this decision was upheld by the High Court of Cassation and Justice.7

II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT

The Competition Act prohibits:

  1. 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
  2. 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 business activity or consumers.8

The national basis for private competition law litigation is provided in the New Rules, the Competition Act and the Council Regulation on the analysis and solving of complaints regarding breaches of Articles 5, 6 and 9 of the Competition Act and Articles 101 and 102 of the TFEU9 (Regulation). The specific validity conditions for the relevant legal actions and applicable procedural rules are supplemented by the Romanian Civil Code (Civil Code)10 and the Romanian Civil Procedural Code (CPC).11

Both Article 3 of the New Rules and Article 66 of the Competition Act provide the general framework for private enforcement under the Competition Act, stating that both legal and natural persons harmed as a result of anticompetitive practices (i.e., breaching national or European rules – Articles 101 and 102 of the TFEU) are entitled to seek relief in court.

The New Rules transposed the already existing principles attached to tort actions:

  1. any person responsible for any conduct (practice, act or deed) that caused damage to another person has the obligation to repair the damage;
  2. if the damage was caused by more than one person, they will be held jointly liable;
  3. legal persons may also be held liable for their representatives’ infringements; and
  4. the losses caused by the infringement are to be recovered in full, including the effective loss (damnum emergens), lost profits (lucrum cessans) and interest: indeed, the New Rules state that damages are awarded according to the principle of full reparation of the harm suffered.

According to Article 3 of the New Rules, as also developed in Article 10 of the Regulation, 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).

According to the New Rules, claims may be filed both before (stand-alone actions) and after (follow-on actions) the issuance of a sanctioning decision by the Council.

For follow-on claims, the New Rules expressly establish a presumption of the existence of an infringement where a definitive decision has established such infringement. One specific distinction is made here: while the definitive decisions issued by the Competition Council, a national court or the European Commission represent conclusive evidence, sanctioning decisions issued by other competition authorities or definitive decisions issued by other national courts than those where the action for damages is introduced represent only rebuttable presumptions of competition law violation.

Under the New Rules, the exclusive subject matter 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, as well as territorial jurisdiction, belong to the Bucharest Tribunal and on appeal to the Bucharest Court of Appeal.

To be compensated for damage, the victim of an anticompetitive practice will have to prove that all of the following conditions triggering tort liability are met:

  1. an infringement of national or EU competition rules has occurred;
  2. the defendant’s fault, regardless of its form (negligence, wilfulness);
  3. the damage caused to the claimant; and
  4. the link between the infringement and the damage caused to the claimant.

In the case of stand-alone actions, the burden of proof for an infringement of the competition legislation and the harm caused to a person lies with the plaintiff. In contrast, in follow-on actions, the infringement of the competition legislation that has been established by a definitive decision of the Competition Council, a national court or the European Commission no longer needs to be proved, as it constitutes conclusive evidence. If the decision is issued by a competition authority or a court from a different state than that where the claim is brought, however, the decision will only represent a rebuttable presumption of the infringement. Therefore, in cases where a definitive decision is issued, the plaintiff does not have to demonstrate the existence of the infringement but only that a definitive decision truly exists (i.e., he or she did not challenge the decision). Afterwards, the plaintiff will only have to demonstrate points (b) to (d). When the competition authority sanctions various parties within the same decision, and only some parties challenge it, the decision is deemed to be definitive against the parties who did not challenge it.12

In addition, the New Rules state that the establishment of a cartel creates a rebuttable presumption of the existence of harm suffered by the plaintiff. Thus, in this case the burden of proof is shifted, and the defendant has to demonstrate that no harm was caused.

According to the New Rules, in both stand-alone and follow-on actions damage claims must be brought within five years starting from when the infringement has ceased; and from when the plaintiff knew or should have known of the behaviour and the fact that it constitutes an infringement of competition law, the damage and the person responsible for it. Before, a distinction existed between stand-alone and follow-on actions. Indeed, general civil procedure rules for stand-alone actions provided that the limitation period was five years starting from the date when the damage was known or was reasonably expected to have been known by the plaintiff. For follow-on actions, the statute of limitation was different, namely actions were to be brought within two years as of the date when the Council’s sanctioning decision became final.

The New Rules provide that 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 New Rules also provide that the time limit will elapse 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.

III EXTRATERRITORIALITY

The Competition Act is clear on its extraterritorial application 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 these 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.13 In all cases, the Council imposed the fine directly on the foreign undertakings.

In practice, although the Council has the power to apply Romanian competition law to foreign undertakings, obtaining evidence from them was a challenge. The Council’s efforts to obtain cooperation14 from the competition authorities of countries where the parties originated have been thwarted because the cooperation conditions are not met when infringements affect only Romania. The Council, therefore, must seek information from 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 sanctioned foreign undertakings can eventually be forced to pay a fine imposed on them.15 The same issues are likely to cause uncertainty in connection with private enforcement of competition law involving a foreign undertaking.

IV STANDING

Claims of relief in courts are governed by Articles 3 and 14 of the New Rules, Article 66 of the Competition Act and Article 10 of the Regulation, under which both the persons directly and indirectly affected by an anticompetitive behaviour may bring a private antitrust action to seek compensation for any damage incurred due to a prohibited practice under the provisions of the Competition Act or of Articles 101 or 102 of the TFEU.

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 with the parties. If the parties do not request the intervention of such third parties and the judge considers that the case cannot be resolved without their participation, then 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 the national courts. In addition, Article 16 of the New Rules states that the Competition Council may assist the court with respect to the determination of the quantum of damages, if the court requests this assistance. 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.16

V THE PROCESS OF DISCOVERY

Before the entry into force of the New Rules, the legal framework was set up under general civil procedure rules that did not provide an extensive or specific discovery procedure. Having in mind its main objective (facilitating private enforcement of competition law), the New Rules have extended the scope of discovery and have set up specific conditions under which disclosure of evidence can be ordered by courts.

The New Rules clearly follow the principle of proportionality as the main condition under which disclosure of evidence can be ordered. To establish whether a disclosure claim is proportional, the court takes into consideration all parties’ legitimate interests. The New Rules provide expressly that avoidance of a damage payment is not a legitimate interest that would justify non-disclosure of evidence. The New Rules also provide the measures and instruments for ensuring that the confidential nature of the information subject to the disclosure procedure is observed.

In addition, to ensure the effectiveness of court orders for disclosure, the New Rules provide sanctions related to the non-disclosure and destruction of evidence that apply to individuals, legal entities and even their legal representatives. Indeed, the court may sanction a defendant, a plaintiff, other third parties and their legal representatives with a fine ranging from 500 to 5000 lei for individuals, and from 0.1 to 1 per cent of the turnover realised in the year preceding the sanctioning for corporations. The New Rules mention specifically the deeds that may be sanctioned:

  1. failure or refusal to comply with the disclosure order;
  2. destruction of relevant evidence;
  3. failure or refusal to comply with the obligations imposed with respect to the protection of confidential information; and
  4. breaches of the limits on the use of evidence provided in the New Rules.17
i General rules regarding evidence disclosure

As previously mentioned, the principle of proportionality governs the disclosure procedure regardless of the moment at which it takes places (i.e., before or during the action for damages).

Under the New Rules, when a plaintiff provides a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, the courts can order the defendant or a third party to disclose relevant evidence that lies in their control. Likewise, the court, if requested by a defendant, can order a plaintiff to produce relevant evidence. The criteria set out by the New Rules for assessing the proportionality of the disclosure include, inter alia, the extent to which the claim or defence reasonably justifies the disclosure of evidence, the scope and cost of disclosure, and the confidential character of the information requested to be disclosed.

To ensure the protection of the confidential nature of the disclosed information, the court may use one or more of the following measures:

  1. removing the sensitive information from the document disclosed;
  2. holding hearings without a public presence;
  3. limiting the number of persons that may have access to the evidence to appointed experts and legal representatives of the parties;
  4. issuing expert appraisals to ensure the protection of confidential information; and
  5. taking any other measures provided by law to ensure the protection of confidential information.

In addition, note that under the general civil procedure rules, the court may reject a request for evidence disclosure if the documents could expose personal issues regarding a person’s dignity or personal life, if producing the evidence would violate the legal duty to keep the document secret, or if such disclosure could trigger criminal prosecution against the party, its spouse or its relatives or in-laws until the third degree.18

ii Specific rules applicable to disclosure of evidence included in the Competition Council’s file

The New Rules also established the legal framework of claims of disclosure of evidence contained in the Council’s file. Besides the general rules described above, specific rules apply.

When assessing the proportionality of the claim, the court will take into consideration whether the evidence requested is specific, and is not a mere request to gain access to the file; whether the party requesting disclosure is doing so in relation to an action for damage before the court; and the need to safeguard the effectiveness of the public enforcement of competition law. Importantly, the Competition Council can submit observations regarding the proportionality of the request for evidence disclosure.

Only when the court cannot obtain some proof from another party can it request that the Council provide evidence, including proof of the basis on which a sanctioning decision was issued. However, the court can order disclosure of evidence contained in the Council’s file only if the Council has already finalised its proceedings by issuing a decision or any other administrative act. In line with this principle, if one of the parties provides evidence contained in the Council’s file obtained exclusively through exercising his or her right to access to the file, such proof is deemed inadmissible if the Council has not yet finalised its investigation.

The court must ensure that confidential information and business secrets considered under the competition law are protected. However, the reasons under which the Council has 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.

Thus, the court can order disclosure, inter alia, of the following categories of proofs: observations submitted by the parties, investigation reports and written recognition statements of anticompetitive practices that were withdrawn.19 The New Rules also provide that the court cannot order the disclosure of certain categories of evidence: leniency statements and recognition statements. Nonetheless, the plaintiff can provide a reasoned request to obtain access to these documents, but only for the sole purpose of ensuring that their contents correspond to the definitions set by the New Rules. Indeed, these types of proof are deemed to be inadmissible, and thus cannot be used in action for damages.

VI USE OF EXPERTS

During 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, as they lack independence.

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 that support their allegations. 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 viewpoint of one or more specialists in such field. Interestingly, the courts have increasingly tended to appoint experts, both national and European specialists.

Under the general rules, the court may also order an appraisal of the damage 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 to obtain a specific opinion on competition aspects (e.g., relevant market definition).

VII CLASS ACTIONS

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.20

VIII CALCULATING DAMAGES

The New Rules now set a unitary legal framework regarding damage determination. The Rules have also brought some useful clarification regarding damage appraisal, providing that the court will evaluate the quantum of the damages awarded, ensuring that the burden and standard of proof necessary for damage appraisal does not render impossible or excessively difficult the right to full reparation. As in the past, the fines imposed by the competition authorities do not represent a criterion for settling damages in private enforcement claims.

The New Rules follow the general principles of tort law, including the main principle of full reparation of the harm suffered. In this respect, the New Rules state the damage caused by breaching competition law shall be fully repaired 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 actual damages incurred, any lost profits, as well as interest. Moreover, the Civil Code contains a provision that 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.

Punitive damages are not allowed under Romanian law. The CPC provides for the potential to recover attorneys’ fees. In general, legal costs are imposed on the losing party upon the request of the winning party. To qualify for recovery, damages have to be proven and they may not have been already recovered (e.g., under an insurance policy). Future damage, if certain to occur, can also be compensated. 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 for 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 would be used as a reference when computing compensation for a whole class of plaintiffs. In this manner, plaintiffs will have to show that they incurred damage without being required to quantify the exact value of the damage, which most of the time implies a costly analysis.21

IX PASS-ON DEFENCES

The New Rules include specific provisions on passing-on defences that changed the previous national provisions. Before, Article 66, Paragraph 2 of the Competition Act provided that ‘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’. This Article was removed as a consequence of the entry into force of the New Rules, which have clarified the regime of passing-on defences.

Indeed, Article 14 of the New Rules establishes the conditions under which an indirect buyer can file a claim for damages. The indirect buyer has to prove that the harm was passed on to him or her; more precisely, he or she must prove that the defendant has committed an infringement of the competition law; the infringement of the competition law has resulted in an overcharge for the direct purchaser of the defendant; and the indirect purchaser has purchased the goods or services that were the object of the infringement of the competition law, or has purchased goods or services derived from or containing them.

An indirect buyers can bring before the courts an action for damages, but only if he or she did not pass on the overcharged price generated by the competition law infringement. If he or she overcharged in his or her prices, the defendant can invoke the pass-on defence against him or her: in other words, the indirect claim is deemed to be ungrounded as he or she has already repaired the harm suffered. In such cases, damages actions might be introduced by the next indirect buyer. If all buyers have overcharged in their prices, then the one who is entitled to bring an action for damages will be the final consumer. In this scenario, the discovery procedure will likely be a reciprocal one involving all parties on the sale chain until the last buyer.

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. The New Rules establish a special regime for 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. The statute of limitations, both for stand-alone actions and for follow-on actions, starts running from the date where the plaintiff knew or should have known about the infringement, the damage and the identity of the infringer, and not before the anticompetitive practice has ceased.

The decision of the Council becomes final if the term during which the Council decision may be challenged expires and no interested party challenged it; or, after being challenged, the decision is upheld (totally or partially) or annulled and declared by the court as being final. Note that our national legislation does not make a distinction between the court actions through which a party challenges the existence of the anticompetitive deed itself, and the imposition of a penalty and the amount thereof. If no appeal is filed against the decision or the decision is upheld by the courts, the Council decision will have all the effects of a court judgment, including a 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.

XI PRIVILEGES

The Competition Act adopted most of the recommendations made by the European Commission in its White Paper on Damages actions for breach of the EC antitrust rules.22

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 with respect to the object of the investigation (before or after the initiation of investigation) may not be collected or used as evidence during the investigation procedure carried out by the Council. The New Rules have not removed this privilege as according to the Directive full effect must be granted to legal professional privilege.

In addition, according to the lawyers’ legislation, any professional attorney–client communication or correspondence, regardless of its form, is confidential. Such communications 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:

  1. 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
  2. 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 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. Settlement procedures include mediation and negotiation that arise during in transactions.

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 such the settlement without analysing the merits. Furthermore, the parties are able, at any time during a 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 New Rules regulate the effect of the settlement procedure on the quantification of damages when there are various infringers and only one is involved in the settlement procedure. In this case, the victim can claim only the part of the prejudice corresponding to the infringer that did not participate in the settlement procedure. The New Rules provide that the national court may suspend its proceedings for up to two years where the parties thereto are involved in consensual dispute resolution concerning the claim covered by the action for damages.

XIII ARBITRATION

The parties may agree for arbitration to be conducted by a permanent arbitration institution or even by a third party. The New Rules do not refer to arbitration separately from settlement procedures. Thus, the provisions regarding suspension of court proceedings and determination of the damages described at Section XII also apply to arbitration.

XIV INDEMNIFICATION AND CONTRIBUTION

The rule established by the Civil Code as well as by the New Rules is that the defaulting party must repair any damage 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. Before the entry into force of the New Rules, the successful applicants for leniency could not be held jointly and severally liable for their participation in anticompetitive practices. Under the New Rules, this exemption no longer exists: the company who benefited from full leniency can be held jointly liable towards its own indirect and direct suppliers and buyers, and other injured parties in cases where full compensation cannot be obtained from the other undertakings that were involved in the same infringement of the competition law. 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. When one of the companies has benefited from a fine exemption, its contribution cannot be higher than the prejudice suffered by its direct or indirect suppliers or buyers.

XV FUTURE DEVELOPMENTS AND OUTLOOK

As previously described, the New Rules have outlined the legal framework for private enforcement. In some areas, the New Rules only clarify and mention expressly the general principles that apply to actions for damages for competition law infringements (e.g., the principle of full reparation of the injury suffered). In other fields, the New Rules modified the applicable legislation, mainly regarding the discovery procedure. The implementation regarding the discovery procedure as set up by the New Rules raises two important issues:

  1. while the proportionality assessment must be conducted before ordering disclosure of evidence, the New Rules only provide some general guidelines that include ensuring the protection of confidential information. To fully ensure the protection of the confidential nature of the information subject to disclosure, precise and clear guidelines should be further developed; and
  2. the New Rules state that in assessing the proportionality of the request for disclosure, the judge will take into consideration the costs of the discovery procedure. It is likely that, taking into consideration the financial costs and the complexity of the discovery procedure, which could be important, the parties will try to negotiate and settle their dispute out of court.

1 Mihaela Ion is a partner, Laura Ambrozie is a senior associate and Vanessa Nistor is an associate at Popovici Nițu Stoica & Asociații.

2 Competition Act No. 21/1996.

3 Directive 2014/104 of 26 November 2014, L349/1.

4 Government Emergency Ordinance No. 39/2017, published in the Official Journal of Romania, Part 1,
No. 422 of 8 June 2017.

5 According to OECD Working Party No. 3 on Co-operation and Enforcement – ‘Relationship between public and private antitrust enforcement’ – Romania, 15 June 2015.

6 Court of Appeal of Bucharest, Decision No. 1701/2015 of 30 October 2015.

7 High Court of Cassation and Justice, Decision No. 1979/2016 of 23 November 2016.

8 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.

9 Approved by Council’s President Order No. 499/2010.

10 The current Civil Code entered into force on 1 October 2011.

11 The current Civil Procedural Code entered into force on 15 February 2013.

12 UK Supreme Court, Judgment of 9 April 2014, UKSC 24.

13 Council’s Decision No. 51/2011, Council’s Decision No. 99/2011, Council’s Decision No. 44/2013, Council’s Decision No. 58/2013.

14 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 Decision No. 99/2011 and Council Decision No. 44/2013.

15 According to OECD Peer Review on Competition Law and Policy in Romania issued in 2014.

16 Ibid.

17 Article 275, Romanian Criminal Code.

18 Article 294, Civil procedure code.

19 On this point, note that the New Rules mention ‘settlement submissions’. Under Romanian competition law, there are no settlement proceedings but only leniency and recognition procedures. According to the definition of settlement submissions provided by the New Rules, however, the notion of settlement submissions corresponds to the recognition procedure existing in Romania.

20 Article 29(f) of the Government Emergency Ordinance No. 80/2013.

21 The Council’s standpoint on quantification of harm suffered because of an infringement of Article 101 or Article 102 of the TFEU.

22 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52008DC0165&from=EN.