Answer ... Investigations may be commenced by the Romanian Competition Council either ex officio (if the council suspects that a cartel exists) or following a complaint submitted by an entity or individual that has suffered actual harm as a result of the infringement.
Romanian law sets out no minimum requirements regarding the information that may be used by the Romanian Competition Council to justify the commencement of an investigation ex officio. Moreover, the decision to commence an investigation is not subject to judicial review until after the investigation has been completed. As a result, the decision to start an investigation ex officio may appear to be entirely discretionary.
Answer ... The main investigatory powers of the Romanian Competition Council are as follows:
- the power to conduct dawn raids at the premises of undertakings suspected of cartel activity, as well as at the residence of managers and employees of such undertakings (although dawn raids must be approved in advance by the Bucharest Court of Appeals, we are not aware of any instance in which such approval has been denied); and
- the power to send written requests for information to the undertakings under investigation (compliance with these requests is mandatory for the recipient, unlike the European Commission’s simple requests for information).
Answer ... The Romanian Competition Council is part of the European Competition Network. As such, it can cooperate with the competition authorities of other EU member states and with the European Commission. Such cooperation is very rare in practice.
Answer ... The Romanian Competition Council may ask third parties (eg, competitors, clients and suppliers of the undertakings under investigation) for information regarding the market and the alleged anti-competitive conduct. Otherwise, there is no opportunity for such parties to participate in the investigation.
Answer ... Romanian antitrust legislation does not address the general rules of conduct that the Romanian Competition Council must observe in the course of the investigation. The Competition Law provides that the council should issue such rules of conduct, but as yet this has not happened. As a result, the general principles of administrative law that are applicable to all public servants also apply to the council’s antitrust enforcement activity.
Answer ... The target undertaking’s main obligation is to cooperate fully with the Romanian Competition Council, both during any dawn raid and upon receipt of a written request for information. Failure to submit to the dawn raid or to cooperate fully with inspectors during the dawn raid, and the provision of incorrect, incomplete or misleading responses to a request for information, may result in penalties of between 0.1% and 1% of the target undertaking’s total turnover in the previous financial year.
The target undertaking enjoys a right of defence, which encompasses the following key components:
- the right to be represented by a lawyer during the dawn raid and throughout the course of the investigation;
- the right to avoid self-incrimination;
- the right to submit a written response to the council’s statement of objections; and
- the right to participate in oral hearings if the council’s statement of objections recommends the application of fines.
Answer ... Communications between attorneys and undertakings are privileged and may not be viewed, copied or collected by Romanian Competition Council inspectors during dawn raids insofar as:
- such communications have been sent to or received from an external attorney (as opposed to in-house counsel);
- such communications relate to the matter under investigation; and
- the undertaking can show (without disclosing the contents of such communication) that the above conditions are met.
In case of disagreement between the undertaking and the inspectors as regards the privileged status of a particular document, the document will be sealed and the matter referred to the chairman of the council. If the chairman rules in the inspectors’ favour, the undertaking may challenge this decision in court. The document will be unsealed only if the court rejects the undertaking’s claim and the court decision has become final.
Answer ... The decision to issue a press release regarding the commencement of an investigation is made by the Romanian Competition Council at its sole discretion. There are no specific rules on confidentiality, other than the council’s obligation not to disclose any information that may amount to a business secret of one of the undertakings under investigation.