Government Emergency Ordinance no. 108/2023 amending and supplementing Competition Law no. 21/1996 (“Competition Law”), as well as other normative acts (“GEO 108/2023”), was published in the Official Gazette on December 6, 2023 with certain provisions entering into force within 30 days after the publication.
GEO 108/2023 is a long overdue (since 2021) transposition into national legislation of Directive (EU) 2019/1 of the European Parliament and of the Council of December 11, 2018, concerning the provision of tools to competition authorities in the Member States to make them more effective in enforcing the law and ensuring the proper functioning of the internal market (“ECN+ Directive”).
Exception to individual liability principle during computation of fines
When determining the maximum amount of a fine, the worldwide turnover of all natural persons and legal entities forming a single economic entity may be taken into account, as defined and applied in the European Union’s legal interpretations.
Those individuals within the economic entity share personal and joint liability with other legal entities in the same economic entity for paying the fine imposed due to the committed violation.
The enforcement of the fine may commence with priority over assets in Romania owned by the responsible economic entity, and this enforcement process is not contingent on the entity’s insolvency declaration during the initial stages of enforcement.
As an exception from the usual principle of individual liability, the Competition Council will apply the criteria of economic continuity and legal continuity, in line with the definitions provided in the jurisprudence of the Court of Justice of the European Union
Fines for providing false or misleading information or obstructing dawn raids may now be applied between 0.1% of the total revenues achieved in Romania and 1% of the total worldwide turnover achieved in the year prior to the sanction being applied. These sanctions now also apply (i) for providing misleading information during announced inspections, (ii) if the representative of an undertaking does not partake in the interview requested by the RCC, and (iii) other conduits provided by law (e.g., breaking of seals, refusing to submit to a newly introduced dawn raid following the government’s request for a case study, etc.).
Undertakings now have the opportunity of acknowledging the above-mentioned breaches, provided in Art. 53 of the Competition Law, in exchange for a 10%–30% reduction of the fine (the overall fine cannot be less than 0.04% of total Romanian turnover in the year prior to the fine being applied).
The latest provisions also address the computation of fines imposed on associations of undertakings.
New provisions on leniency and immunity to fines for undertakings and their representatives
The Competition Law now incorporates leniency-related provisions, a departure from the previous practice where such rules were exclusively outlined in secondary legislation enacted by the Competition Council.
In the context of administrative and non-criminal judicial procedures related to involvement in anti-competitive practices, current and former directors, managers, and staff members of an undertaking seeking immunity from fines are not penalized by the Competition Council if they meet the conditions specified in Art. 23 (a) to (c) of the ECN+ Directive.
It is important to emphasize that this immunity does not affect the right of victims, who have suffered harm due to a competition law violation, to pursue full compensation.
Additionally, individuals currently, or formerly, in the roles of directors, managers, and staff members applying for leniency with the Competition Council may also be eligible for immunity or, at the very least, mitigating circumstances under criminal law.
The extent of these benefits is contingent on factors such as cooperation with both the Competition Council and the criminal authorities. This coverage applies to criminal liability under the Competition Law for actively planning or organizing cartels, as well as criminal liability under the Romanian Criminal Code for involvement in bid rigging.
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