Implementation of Antitrust Damages Directive: Romanian Experience

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In Romania, the transposition of the Antitrust Damages Directive involved key steps such as consultations, legal amendments, and drafting a new Act on Antitrust Damages Actions. The process also included decisions to adopt a new Act on Damages Claims for competition law breaches, addressing issues like disclosure of evidence, leniency statements, joint and several liability, SME derogation, and immunity recipient derogation. Public consultations and cooperation with relevant authorities were crucial in this process.

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Directive on Antitrust Damages Implementation -Romanian experience - Anca Atomi, competition inspector Legal Department Romanian Competition Council Belgrad -7 april 2017

Transposition of the Directive Transposition of the Directive First steps (consultations administration bodies) preparations to implement the Directive and meetings between relevant Legal form different options Legal amendments of the existing laws Amendments and completion of the Competition Act Drafting a new Act on Antitrust Damages Actions * In Romania damages claims are regulated in different legal acts: Civil Procedural Code and Competition Act. 07/04/2017 2

Transposition of the Directive Transposition of the Directive Decision to draft and adopt a completely new Act on Damages Claims for the breach of competition rules Apply the same rules to damages actions for infringements of purely national competition law The RCC prepared the Draft Law cooperation with Ministry of Justice and Ministry of Foreign Affairs Meetings with the lawyers and the judges dealing with damages claim cases Public consultation on the Draft Law 07/04/2017 3

Transposition of the Directive Transposition of the Directive Main issues Main issues Disclosure of evidence COMPETITION ACT Leniency statement can also concern vertical agreements (price fixing, market sharing) DIRECTIVE rules on non disclosability of blacklist documents [Art. 6 (6) to 6(8)]: A leniency statement can only concern cartels scope of leniency program in Romania New ACT blacklist includes leniency statements only on cartels. 07/04/2017 4

Transposition of the Directive Transposition of the Directive Main issues Main issues Joint and several liability Directive Competition Act SME derogation (no provisions in the national law) Immunity recipient derogation (no joint and several liability in the Competition Act) Transposition Act full compensation always prevails 07/04/2017 5

Transposition of the Directive Transposition of the Directive Main issues Main issues Binding effect of final national decisions Infringement found: by European Commission/ RCC= irrefutable proof of that infringement to the Romanian Courts; by a NCA of another MS = prima facie proof of that infringement to the Romanian Courts. 07/04/2017 6

Transposition of the Directive Transposition of the Directive Main issues Main issues Time limits for bringing actions for damages Competition Act 2 years (infringement decision has become final or otherwise terminated) no provisions regarding consensual dispute resolution process/ stand alone cases New provisions: 5 years - suspended investigation of the competition authority (max. 2 years) consensual dispute resolution process 07/04/2017 7

Future challenges Future challenges Implementation of the law in practice; Very few cases in the commercial courts encourage claims; Quantification of damages in competition cases and passing on overcharges = a challenge for the judges. 07/04/2017 8