Private Litigation

Last verified on Wednesday 15th July 2020

Private Litigation: Romania

Paul George Buta, Manuela Lupeanu and Diana Gruiescu

Musat & Asociatii

Effect of public proceedings

1. What is your country’s primary competition authority?

Romania

The Competition Council is the autonomous administrative authority primarily responsible for the enforcement of national and European competition law in Romania. In a limited number of cases, sector regulators may have certain competition-related prerogatives.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

2. Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?

Romania

The Competition Council has wide investigatory powers in identifying and analysing anticompetitive practices, including:

  • requesting information and documents from undertakings, associations of undertakings and public authorities (under penalty of fines for non-compliance);
  • carrying out on-the-spot inspections; and
  • unannounced inspections (dawn raids), based on the order of the president of the Competition Council and the Bucharest Court of Appeals’ authorisation, searching any private residence or business premises and seizing any documents, on whatever media format, falling within the scope of the court authorisation.

The proceedings that the Competition Council can bring are of an administrative nature. However, based on a previous form of the Competition Law No. 21/1996, the Competition Council had the power to notify the relevant criminal law investigation bodies in connection with the intentional commission of a criminal offence. The respective criminal offence consists in intentionally devising or organising an anticompetitive practice prohibited by Article 5(1) of the Competition Law No. 21/1996 (explicit or tacit agreements between undertakings, decisions by associations of undertakings or concerted practices) by a manager, legal representative or a person exercising in any other form a management position. This criminal offence is also regulated by the current version of the law, but the Competition Council’s procedural role seems to be diminished. However, de facto, the competition authority can still notify the criminal prosecutors of such an infringement of the competition law.

A collaboration protocol is in force between the Competition Council and the National Anticorruption Directorate. The aim of the protocol is to create a cooperation framework that ensures the mutual support and exchange of information needed to carry out investigations or actions of the two authorities.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

3. Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?

Romania

Yes, private antitrust claims can proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

4. Is there any mechanism for staying a stand-alone private claim while a related public investigation or proceeding (or an appeal) is pending?

Romania

There is no mechanism for staying a private claim while a related public investigation is pending. If the competition authority takes action for the purpose of the investigation or its proceedings in respect of an infringement of competition law to which the action for damages relates, the limitation period for bringing the action for damages is suspended. The suspension ends one year after the infringement decision has become final or after the proceedings are otherwise terminated.

Pursuant to Article 17 of Government Emergency Ordinance No. 39/2017 on actions for damages for infringement of the competition law provisions, transposing the Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on antitrust damage actions (GEO No. 39/2017), the competent courts may suspend a private damages claim for a period of maximum two years if the parties to the respective proceedings are involved in an alternative dispute resolution process.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

5. Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers’ decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?

Romania

The finding of an infringement of competition law by a final decision of the Competition Council, the European Commission or review court is irrefutable proof of the existence of the infringement before the national courts vested with the settlement of the claim for damages, whereas the finding of an infringement by a final decision of another national competition authority or a court decision in another Member State is a prima facie evidence of the infringement before the national courts in follow-on private antitrust cases and can be assessed along with other evidence.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

6. Do immunity or leniency applicants in competition investigations receive any beneficial treatment in follow-on private antitrust cases?

Romania

GEO no. 39/2017 provides two main advantages for leniency applicants. Thus, in private antitrust claims, the national court cannot order a party or third party to disclose leniency statements or settlement submissions included in the competition authority’s file.

With respect to the joint and several liability of an immunity recipient, pursuant to Article 11(4) of GEO no. 39/2017, such an immunity recipient is jointly and severally liable to its direct or indirect purchasers or providers, and to other injured parties only where full compensation cannot be obtained from the other undertakings that were involved in the same infringement of competition law.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

7. Can plaintiffs obtain access to competition authority or prosecutors’ files or the documents the authorities collected during their investigations? How accessible is information prepared for or during public proceedings by the authority or commissioned by third parties?

Romania

Access to the competition authority’s file can be granted to plaintiffs in private actions for damages only when such information can only be obtained by accessing the competition authority’s file, and not from any other party, only to the extent that the request is proportionate and there is adequate confidentiality protection. Access to information that was prepared by a party in the course of the proceedings of a competition authority (such as replies to requests for information); information that was prepared by a competition authority in the course of its proceedings and sent to the parties to those proceedings; and settlement submissions that have been withdrawn, can be disclosed only after the completion of the investigation. Leniency statements or settlement submissions cannot be accessed by plaintiffs at any time.

Other evidence included in the authority’s file (but not the internal documents of the competition authority or its correspondence with the European Commission or other competition authorities) can be disclosed at any time during or after the investigation, subject to the general conditions mentioned above.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

8. Is information submitted by leniency applicants shielded from subsequent disclosure to private claimants?

Romania

Yes, information submitted by leniency applicants is shielded from disclosure (please see question 7).

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

9. Is information submitted in a cartel settlement protected from disclosure?

Romania

Yes, information submitted in a cartel settlement is shielded from disclosure (See question 7).

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

10. How is confidential information or commercially sensitive information submitted by third parties in an investigation treated in private antitrust damages claims?

Romania

The Competition Council ensures the protection of confidential information or commercially sensitive information submitted by third parties by preparing a non-confidential version of the file if that version is not provided by the third party. Moreover, in private damages claims, the court may order disclosure of evidence containing confidential information only subject to effective protection of such confidentiality (e.g., by concealing the confidential information and trade secrets).

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

Commencing a private antitrust action

11. On what grounds does a private antitrust cause of action arise?

Romania

Private antitrust actions can arise from any prohibited anticompetitive practice according to the provisions of Competition Law No. 21/1996 and Articles 101 and 102 of the Treaty on the Functioning of the European Union.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

12. What forms of monetary relief may private claimants seek?

Romania

Any private claimant is entitled to full monetary compensation for the harm caused by the infringement of competition law. Compensation sought includes the actual loss, the loss of profit and the payment of interest.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

13. What forms of non-monetary relief may private claimants seek?

Romania

In private antitrust claims other than private damages claims, non-monetary relief that could be sought includes an order for the termination of the anticompetitive act complained of and also structural or behavioural remedies meant to address the plaintiff’s damage incurred as a result of the anticompetitive act complained of.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

14. Who has standing to bring claims?

Romania

Any natural person and private or public legal entity that has suffered harm caused by an infringement of competition law can bring a direct antitrust claim. Theoretically, claims for compensation could also be brought by consumer protection and professional associations on behalf of their members, where the latter were affected by such anticompetitive behaviour, subject to such acts being allowed by their statutes or the organisations receiving proper mandate from their members.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

15. In what fora can private antitrust claims be brought in your country?

Romania

Under Romanian legislation, private damages claims can be brought before the Bucharest Tribunal, civil law division (sitting as court of first instance), Bucharest Court of Appeal (on appeal), the High Court of Cassation and Justice (on further appeal). Direct antitrust claims could (depending on the heads of claim) also be brought before the district court at the respondent’s headquarters (as a court of first instance), with a first appeal lying with the Tribunal and a further appeal with the Court of Appeal.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

16. What are the jurisdictional rules? If more than one forum has jurisdiction, what is the process for determining where the claims are heard?

Romania

Private damages claims can be brought in specialist forums determined by subject-matter and territorial jurisdiction. Thus, pursuant to Article 4 of GEO no. 39/2019, only the Bucharest Tribunal, civil law division, has jurisdiction over private antitrust claims as court of first instance. In accordance with the principle of the double degree of jurisdiction, the Bucharest Court of Appeal has appellate jurisdiction and the High Court of Cassation and Justice can hear a final appeal. Other private antitrust claims can be brought before the court with subject-matter jurisdiction (depending on the head of claim; in most such claims this would be the district court) at the headquarters of the respondent. Where the court first seized declines jurisdiction in favour of another court, it is only where the latter also declines jurisdiction that a negative conflict on jurisdiction arises, with the common superior court finally deciding which court will hear the case. A positive conflict on jurisdiction would arise where two different courts seized of the same matter both retain jurisdiction. In this case as well it is the superior court common to both courts having retained jurisdiction that decides which court will hear the case at first instance.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

17. Can claims be brought based on foreign law? If so how does the court determine what law applies to the claim?

Romania

Yes, claims can be brought based on foreign law. The court determines the applicable law based on Article 6(3) of Regulation (EC) No. 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations (Rome II) and on Romanian international private law provisions.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

18. Give details of any preliminary requirement for starting a claim. Must plaintiffs post security or pay a filing fee? How is service of claim affected?

Romania

A filing fee determined proportionally with the amount in dispute must be paid by the plaintiff in order to initiate court proceedings. The fee ranges from a minimum of €4.50 to a maximum of €1,400 plus 1 per cent of the sum claimed in excess of €250,000. The service of claim is usually performed by court administrative services.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

19. What is the limitation period for private antitrust claims?

Romania

In accordance with Article 10 of GEO no. 39/2019, the limitation period for private damages claims is five years. The limitation period for other private antitrust claims is the general limitation period provided by civil law for the specific head of claim envisaged by the plaintiff (three years), with some types of claims not being time-barred (such as claims for declaratory judgments and claims for the annulment of anticompetitive agreements).

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

20. Are those time limits procedural or part of the substantive law? What is the effect of their expiry?

Romania

Under Romanian law, the limitation period is part of the substantive law. The effect of the expiry of the limitation period is that the court must dismiss the claim if the defendant raises the objection of limitation. The court cannot make an ex officio application of the limitation rule.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

21. When does the limitation period start to run?

Romania

The limitation period of five years will only start to run when the infringement of competition law ceased and when the claimant knew or could reasonably be expected to have known of the behaviour that amounts to an infringement of competition law, that the infringement caused him or her harm and the identity of the infringer.

In addition, the limitation period does not start to run if the competition authority takes action for the purpose of the investigation or its proceedings in respect of an infringement of competition law to which the action for damages relates.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

22. What, if anything, can suspend the running of the limitation period?

Romania

The running of the five-year limitation period is suspended if the competition authority takes action for the purpose of the investigation or its proceedings in respect of an infringement of competition law to which the action for damages relates. The suspension ends one year after the infringement decision becomes final or after the proceedings are otherwise terminated.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

23. What pleading standards must the plaintiff meet to start a stand-alone or follow-on claim?

Romania

To start a claim, the plaintiff must:

  • identify and provide certain information about the parties (place of residence, address for service of process, personal or tax identification number, bank accounts, etc.);
  • identify the lawyer or representative of the plaintiff;
  • identify the subject matter of the proceedings;
  • quantify the harm (including the method of calculation);
  • describe the facts and legal grounds for action;
  • describe the evidence on which it relies (see question 5); and
  • sign the claim.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

24. Is interim relief available? What must plaintiffs show for the court to grant interim relief?

Romania

An interim measure may be ordered by the court, where a prima facie evaluation favours the plaintiff, under the preliminary injunction procedure. In this case the relevant provisions require that all measures taken must be provisional (at most until an award on the merits of the case); there must be urgency either for preserving a right that would be damaged by delay, or preventing imminent damage that would not be reparable; and the interim measure cannot deal with the substantive merits of the case.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

25. What options does the defendant have in responding to the claims and seeking early resolution of the case (eg, answer, counterclaim, motion to dismiss, summary judgment)?

Romania

In seeking early resolution of the case, the defendant can submit a statement of defence requesting partial or full dismissal of the claim and may file counterclaims. The defendant can use a wide range of procedural defences (e.g., challenging the court’s jurisdiction) and can also defend the claim on the merits (disputing the existence of the infringement – in stand-alone actions, the existence and extent of the damage – including the passing-on defence, expiry of time limitations, etc.). While the Romanian Civil Procedure Code does not provide for a parallel track for early dismissal of the case, the law does provide that, after the conclusion of the written phase of the proceedings (claim, answer to claim, counterclaim (if applicable), response of plaintiff to the answer to the claim, answer of plaintiff to counterclaim (if applicable), and answer of respondent to plaintiff’s answer to the counterclaim (if applicable)), and before discussing the evidence to be administered, the court must rule on the exceptions (if any) raised by the defendant. Such exceptions do generally deal with such matters as normally dealt with in motions to dismiss or requests for summary judgment, such as: lack of payment of the filing fee, jurisdiction, existence of a prior parallel identical claim, res judicata, limitation period, nullity of claim, lack of standing, etc.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

Disclosure/discovery

26. What types of disclosure/discovery are available? Describe any limitations and the courts' usual practice in ordering disclosure/ discovery.

Romania

Disclosure or discovery may include production of documents, depositions, interrogatories, etc. In ordering disclosure or discovery, the court must take into consideration the legitimate interests of all parties and third parties concerned and must maintain a balance between the claimant’s right to compensation and the protection of confidential information. In addition, the court must order the disclosure of evidence circumscribed as precisely and as narrowly as possible. With respect to confidential information and trade secrets, such evidence can be disclosed if the court considers it relevant to the action for damages and the court has at its disposal effective measures to protect such information. Information contained in leniency statements and settlement submissions cannot be disclosed. Witnesses and interrogatories proposed must be indicated in the claim. The parties may also ask the court to demand that various third parties provide information pertinent to the case, but the decision on whether to and what information to ask is under the discretion of the court.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

27. How do the courts treat confidential information that might be required to be disclosed or that is responsive to a discovery proceeding? Is such information treated differently for trial?

Romania

The national court can adopt effective measures in order to protect confidential information, such as redacting confidential information and trade secrets, conducting hearings in private chambers, restricting the persons allowed to see the evidence and instructing experts to produce summaries of the information in an aggregated or otherwise non-confidential form.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

28. What protection, if any, do your courts grant attorney–client communications or attorney materials? Are any other forms of privilege recognised?

Romania

Attorney–client communications are privileged and confidential. These communications can be disclosed only with the client’s consent.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

Trial

29. Describe the trial process.

Romania

Proceedings before court are oral (although the first phase of the proceedings consists of the parties exchanging the written claims and answers to such) and generally conducted in public. After the submission by the parties of written statements of claim and of defence (and of other written submissions such as the reply to the statement of defence), the courts decide on procedural objections raised in the written and oral pleadings of the parties. The next steps of the trial are the taking of evidence, oral pleadings of the parties with respect to the main factual and legal arguments, filing of written closing arguments and the judgment of the court, which is subject to appeal.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

30. How is evidence given or admitted at trial?

Romania

Both the claimant and the defendant can propose evidence through their opening written submissions and oral pleadings (at a later stage of the trial) in certain cases. The general means of evidence are the hearing of the parties, the examination of witnesses, opinions by experts, documentary evidence, etc. As a limitation, the court will only admit evidence that is lawful, relevant and useful.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

31. Are experts used in private antitrust litigation in your country? If so, what types of experts, how are they used, and by whom are they chosen or appointed?

Romania

Yes, experts such as economists, accountants and industry specialists are regularly used in antitrust proceedings before the court. The experts are appointed by the court and are chosen from the official list of certified court experts. Where no such experts exist, the court may ask for an opinion to be delivered (in writing) by a specialist in the field. The parties can also engage experts who need to be approved by the court to assist the court expert in these proceedings. The expert provides a report but the court is not bound by the findings of the expert. The filing by the parties of reports of experts or specialists specifically commissioned by them do not qualify as expert reports, under procedural law, but have the same evidentiary value as writs filed by the parties in support of their arguments.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

32. What must private claimants prove to obtain a final judgment in their favour?

Romania

A distinction must be made between stand-alone actions and follow-on actions. On the one hand, in stand-alone actions the claimant must prove the infringement of competition law, the harm suffered and the causal link between the harm and the defendant’s conduct. On the other hand, in follow-on actions claimants must prove only the harm suffered and the causal link as the infringement of competition law is irrefutably presumed owing to the finding of the violation in the final decision of the competition authority. Cartel infringements are presumed to cause harm, but the presumption can be rebutted by the defendant.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

33. Are there any defences unique to private antitrust litigation (eg, Noerr-Pennington defence, passing-on defence)? If so, which party bears the burden of proving these defences?

Romania

Pursuant to Article 13 of GEO no. 39/2017, the defendant can use the passing-on defence. The burden of proving that the overcharge resulting from the infringement was passed on is on the defendant who can request disclosure of relevant information from the claimant or from third parties. While the passing-on defence (if successful) can shield the defendant from direct damages (equal to the value of the overcharge at the plaintiff’s level in the supply chain), it does not shield the defendant from indirect damages such as profit lost by the plaintiff due to the overcharge that was passed-on.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

34. How long do private antitrust cases usually last (not counting appeals)?

Romania

The duration of such proceedings greatly varies depending on the heads of claim, the procedural objections raised, the quantity and type of evidence allowed by the court, and the schedule and backlog of the court. At first instance the duration of proceedings can usually fall within the range of five to six months, to 18 to 24 months.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

35. Who is the decision-maker at trial?

Romania

The judgment at first instance is rendered by a single judge; in the appeal phase by a panel of two judges; and in the final appeal by a panel of three judges.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

Damages, costs and funding

36. What is the evidentiary burden on plaintiffs to quantify the damages?

Romania

The burden of proving the existence and the amount of the harm is borne by the plaintiff but when a quantification of harm is practically impossible or excessively difficult due to the high standard of proof required, the court is empowered to quantify the harm. The court can also request the assistance of the Competition Council with respect to the quantification of damages. Moreover, the court may also estimate the amount of passing-on of the overcharge.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

37. How are damages calculated?

Romania

There are no express legal provisions establishing a particular method of calculation of damages. The court enjoys some discretion as to the calculation of damages, but must ensure (subject to the plaintiff demanding this) that all damage (actual loss, lost profits and interest on such sums) be covered by the damages awarded. Usually, the court will take into account the expert report on the calculation of damages, though the court is not bound by the expert’s findings.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

38. Does your country recognise joint and several liabilities for private antitrust claims?

Romania

Yes, GEO no. 39/2017 provides for the joint and several liability of undertakings having infringed competition law (Article 11 of GEO no. 39/2017).

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

39. Can a defendant seek contribution or indemnity from other defendants, including leniency applicants, or third parties? Does the law make a clear distinction between contribution and indemnity in antitrust cases?

Romania

A defendant can seek a contribution from other infringers (but not an indemnity, which is not provided for in GEO no. 39/2017) proportional to the relative responsibility of the harm caused by each infringer. The amount of contribution of a leniency applicant cannot exceed the amount of the harm it caused to its own direct or indirect purchasers or providers; and is determined in the light of its relative responsibility for the harm, if the infringement caused harm to injured parties other than its direct or indirect purchasers or providers.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

40. Can prevailing parties recover attorneys’ and court fees and other costs? How are costs calculated?

Romania

Yes, prevailing parties can request and recover all or part of attorneys’ and court fees and other costs (filing fee, experts and specialists’ costs, travel and accommodation costs for witnesses, etc.). The recoverable costs are calculated on the basis of the proof of costs provided by the prevailing party. The court can, either at the request of the other party or on its own motion, reduce the attorneys’ fees included in the recoverable costs when the fees are disproportionate to the value and complexity of the case, and the activity performed by the attorney, by taking into consideration the specific circumstances of the case.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

41. Are there circumstances where a party’s liability to pay costs or ability to recover costs may be limited?

Romania

The defendant who acknowledges the plaintiff’s claims at the first hearing for which the parties were legally summoned cannot be compelled to pay costs, provided that he or she was not formally notified of the obligation to the plaintiff before the trial. Moreover, where the claim is granted only in part, costs may be awarded only to the extent that the claim is granted, and costs awarded to the parties may be set-off (in whole or in part).

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

42. May attorneys act for claimants on a contingency or conditional fee basis? How are such fees calculated?

Romania

Attorneys may act for claimants on hourly or fixed fees proportional to the nature and complexity of the case, to which a success fee may be additionally agreed. Attorney fees may not be calculated exclusively as a percentage of the gain to the client (contingency fees or quota litis agreement).

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

43. Is litigation funding lawful in your country? May plaintiffs sell their claims to third parties?

Romania

Litigation funding by a third party is neither regulated nor prohibited by the law. However, a system of legal aid is in place for parties that cannot afford the litigation costs. The sale of claims to third parties is allowed under Romanian law.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

44. May defendants insure themselves against the risk of private antitrust claims? Is after-the-event insurance available for antitrust claims?

Romania

Yes, insurance against such risks is possible, even though there are no specific products covering risk of private antitrust claims generally available.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

Appeal

45. Is there a right to appeal or is permission required?

Romania

There is a right to appeal. No permission is required to file an appeal against first instance decisions in private antitrust claims.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

46. Who hears appeals? Is further appeal possible?

Romania

For private damages claims appeals are heard by the Bucharest Court of Appeal. A further appeal is available and is heard by the High Court of Cassation and Justice (see question 15).

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

47. What are the grounds for appeal against a decision of a private enforcement action?

Romania

The appeal against a decision of a private enforcement action can be based on errors in the fact and law, whereas the further appeal is limited to errors in law.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

Collective, representative and class actions

48. Does your country have a collective, representative or class action process in private antitrust cases? How common are they?

Romania

Pursuant to Article 37 of the Civil Procedure Code, a legal entity, organisation, institution or authority that has no personal direct interest can bring a collective action before the courts in order to protect the rights and interests of persons in special situations, or a group or general interest. Another type of claim is provided for in Article 66(6) of Competition Law No. 21/1996, which states that damages claims can also be brought by consumer associations on behalf of consumers and by professional or employers’ associations on behalf of their members, affected by an anticompetitive practice, based on their purpose as evidenced by their statutes and the mandate received in this regard. Such action can be brought as a stand-alone claim, as well as a follow-on claim.

No private antitrust class action has been identified as pending before the Romanian courts at this time.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

49. Who can bring these claims? Can consumer associations bring claims on behalf of consumers? Can trade or professional associations bring claims on behalf of their members?

Romania

Under national competition law, such actions can be brought by consumer associations on behalf of consumers and by professional or employers’ associations on behalf of their members affected by an anticompetitive practice, where such organisations’ statutes provide for such possibility or where they have received a mandate to such effect.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

50. What is the standard for establishing a class or group?

Romania

The Romanian competition law does not provide for any other specific conditions for bringing such claims before the courts. However, according to the European Commission’s Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law, a group is established when at least two natural or legal persons have been harmed in a mass harm situation.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

51. Are there any other threshold criteria that have to be met?

Romania

The national law does not provide for any threshold criteria to be met.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

52. How are damages or assessed in these types of actions?

Romania

In collective actions, the damages would be assessed in respect of each participating plaintiff, while in representative claims damages would be assessed in respect of each consumer or member of the professional or employers’ association. Since there is no special provision to derogate from the general rule, damages would be assessed in the same manner as in individual claims.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

53. Describe the process for settling these claims, including how damages or settlement amounts are apportioned and distributed.

Romania

Since there is no class action per se, collective settlement of these claims would consist of a sum of individual settlements with some of, or each, of the parties affected.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

54. Does your country recognise any form of collective settlement in the absence of such claims being made? If so, how are such settlements given force and can such arrangements cover parties from outside the jurisdiction?

Romania

No, Romanian law does not provide for a mechanism for collective settlement.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

55. Can a competition authority impose mandatory redress schemes or allow voluntary redress schemes?

Romania

The Competition Council cannot impose mandatory redress schemes or allow voluntary redress schemes. The authority can reduce the amount of an administrative fine imposed if an infringer has adopted measures to redress the harm caused.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

Arbitration and ADR

56. Are private antitrust disputes arbitrable under the laws of your country?

Romania

Yes, private antitrust claims may be subject to arbitration under Romanian law. 

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

57. Will courts generally enforce an agreement to arbitrate an antitrust dispute? What are the exceptions?

Romania

Under Romanian law, there is no provision prohibiting alternative dispute resolution of private antitrust claims.

Pursuant to Article 554 of the Civil Procedure Code, if an agreement to arbitrate is brought before the court, the court does not have jurisdiction to hear the dispute unless the defendant has already advanced arguments on the substance of the case without any reservation based on the arbitration agreement; the arbitration agreement is manifestly void or inapplicable; and the arbitral tribunal cannot be constituted for obvious reasons attributable to the defendant.

The court vested with an action for damages can stay its proceedings for up to two years where the parties thereto are involved in arbitration proceedings concerning the claim covered by that action for damages (Article 17 (1) of GEO no. 39/2017).

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

58. Will courts compel or recommend mediation or other forms of alternative dispute resolution before proceeding with a trial? What role do courts have in ADR procedures?

Romania

Alternative dispute resolution is preferred to trial proceedings. The court cannot compel mediation or other forms of alternative dispute resolution, but may recommend such resolution throughout the trial proceedings.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

Advocacy

59. Describe any notable attempts by policymakers to increase knowledge of private competition law and to facilitate the pursuit of private antitrust claims?

Romania

The Competition Council does sometimes mention private damages claims in its decisions and has tried familiarising people with such. There were no other efforts that we know of in this respect.

Answer contributed by Paul George Buta, Manuela Lupeanu and Diana Gruiescu

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