Answer ... The Romanian cartel legislation mirrors Article 101 of the Treaty on the Functioning of the European Union (TFEU) and employs a broad definition of ‘cartel’. Accordingly, it prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition on the Romanian market. The content and contours of this definition were refined in 2017 when the EU Private Damages Directive was transposed into national law. Under this updated definition, a ‘cartel’ is an agreement or concerted practice between two or more competitors aimed at coordinating their competitive behaviour on the market or influencing the relevant parameters of competition through practices such as:
- the fixing or coordination of purchase or sale prices or other trading conditions, including in relation to IP rights;
- the allocation of production or sales quotas;
- the sharing of markets or customers, including bid-rigging;
- the restriction of imports or exports; or
- anti-competitive actions against other competitors.
Answer ... In line with Article 101 TFEU, Romanian law sets out the following examples of cartel behaviour:
- price fixing;
- output limitation;
- market sharing;
- application of dissimilar conditions to equivalent transactions with other trading parties (thereby placing them at a competitive disadvantage); and
- imposition of supplementary obligations which have no connection with the subject of a contract as conditions for its conclusion.
These are not distinct offences, but rather examples of cartel infringements. Accordingly, any other coordinated behaviour that falls within the scope of the general prohibition (ie, that has an anti-competitive object or effect) may be investigated by the Romanian Competition Councill and fines imposed accordingly.
Answer ... Liability under the cartel legislation is civil only (ie, administrative fines).
However, the managers of companies that are found guilty of cartel offences may be criminally liable. As such, directors, managers and legal representatives of undertakings who deliberately conceive of or organise a cartel may be punished with either:
- imprisonment for between six months and five years; or
- a fine of up to approximately €30,000.
Answer ... Only individuals may face criminal prosecution for breach of the cartel legislation.
Answer ... Foreign companies that breach the cartel legislation may be fined by the Romanian Competition Council. Companies (whether foreign or domestic) will not face criminal prosecution for cartel infringements.
Answer ... Yes. As long as the effects of a cartel arise in Romania, the undertakings involved may be fined by the Romanian Competition Council.
Answer ... Five years. However, the statute of limitations starts to run only once the infringement has terminated. In practice, this may result in the investigation of cartels more than five years after the date on which the undertakings entered into the anti-competitive agreement.
Further, any actions taken by the Romanian Competition Council for the purpose of investigating a cartel trigger the commencement of a new five-year period; however, this cannot exceed 10 years from the date on which the statute of limitations began to run.