The Romanian Competition Council is assessing, (at the request
of the Romanian energy regulator ANRE): (i) the manner by which
energy prices are established on the centralized market (OPCOM);
(ii) OPCOM's activities generally in the month of January 2017;
and (iii) two transactions between yet-unidentified parties in
particular. The energy price for the day ahead market
("PZU") for the first week of January was between 184.7
lei / Mhw and 279.6 lei/Mhw, and thereafter rose to 509.2 lei Mhw
on 28th of January, with certain suspicious transactions appearing
to have been concluded at higher-than-normal prices.
If the preliminary research suggests that the evolution of the
price may be traced to anticompetitive conduct by either public or
private entities, the Competition Council may launch a full
investigation in order to determine the reasons for this price
evolution. An investigation may entail dawn raids, requests for
information and, if a finding of infringement is made, significant
As such, please find below the main steps to be taken and
general principles to be observed in the event of a dawn raid:
notify your external counsel immediately upon the arrival of
the competition inspectors at your premises and require the
inspectors to wait for the arrival of the external counsel (up to
check that the documentation of the competition inspectors
(Investigation order and dawn raid order from the Chairman of the
Competition Council, judicial authorisation from the Bucharest
Court of Appeals) is in order;
ensure that the competition inspectors are allowed access to
the premises and to any records or documents, irrespective of the
manner in which those are stored (paper, hard disks, memory sticks
instruct your IT specialist to be available and assist with the
accessing of any email accounts / printing of any documents;
ensure that any documents taken are connected and limited to
the object matter of the investigation;
ensure that the competition inspectors do not take any
documents protected by the attorney - client privilege;
have company representatives physically shadow the competition
inspectors during the dawn raid;
ensure that you retain two additional copies of each document
taken – one for the Company, one for the external counsel;
make sure to read carefully and sign the dawn raid minutes,
which should include any remarks on your behalf.
Taking into account the potential risks entailed by a
Competition Council investigation, it may also be advisable to
carry out an internal audit regarding the conduct of your company
on OPCOM, in particular, but not limited to the questionable period
in January 2017 in order to determine whether or not there are any
causes for concern.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Any person who claims to be the victim of anti-competitive practices and wishes to seek compensation for the prejudice they consider to have suffered must prove before the civil courts that the three conditions of third party liability under general laws –negligence, competitive harm, and direct causal link– have been met.
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