- Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
- Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
- What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?
- Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
- Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
- Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
- Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
- Are there legal developments on the horizon in relation to CCPs?
jurisdiction
1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
Yes. In 2020 the Romanian Competition Council (the “Romanian NCA”) published specific Guidelines on competition compliance programs.
The Romanian NCA issued these Guidelines based on prior experience over the years with compliance programs submitted by investigated companies, which the authority systemised into a guide of good practices. The Romanian NCA may offer a reduction of the fine for a competition law infringement of up to 10% of the basic level of the fine if the company submits evidence of a responsible and effective compliance programme.
Among the components of an effective compliance program, the Romanian NCA notes as follows:
- the subjects targeted by the compliance program, which should be persons empowered to take decisions on behalf of the company, but also key employees (such as those involved in sales and any employee who acts on behalf of the company);
- the clear, firm, public position of the company's management to comply with the rules competition;
- designation of a person or persons responsible for the company's compliance programme;
- effective information, appropriate training and awareness-raising measures on the need for compliance with competition rules;
- monitoring, auditing compliance and promptly informing of any suspicions regarding infringement of competition rules;
- creation of a system to evaluate and review the compliance plan with competition rules.
Additionally, promoting competition rules by preparing and disseminating compliance programmes at the level of the undertaking’s trading partners are a mitigating circumstance. If this action is assumed by the company and fulfilled at the latest until the adoption of the Decision by the Romanian NCA, or in a timeframe established in the Decision regarding the infringement, a supplementary reduction of the basic level of the fine, of up to 10%, may be granted by the Romanian NCA. This is because dissemination among business partners has a preventive role and public statements, as well as dissemination of CCPs further enforces the commitment of compliance in a business environment.
The Romanian NCA also published a guide together with the National Authority on Public Procurement (ANAP) on the scope and limitations of public procurement laws requiring exclusion of bidders from public procurement award procedures based on previous infringements of competition rules. Competition compliance program can be considered to prove rehabilitation of a company which has been previously sanctioned for anti-competitive conduct in order to participate in public tenders. Bidders can provide evidence supporting the effective implementation of competition law compliance programmes in accordance with Romanian NCA’s Guidelines on Competition Compliance, including measures on the prevention of cartel-type conduct and bid rigging.
2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
Yes. The Romanian NCA sanctioned 82 companies in the local paint market, with fines totalling EUR 2.7 million, following agreements among them in settling the selling prices. Four paint producers and their distributors agreed to set up the products’ selling prices and to split the distribution markets among them between 2004 and 2010. Some distribution contracts had provisions which restricted sales in other areas than the ones agreed with the producers. The Romanian NCA investigated the relationships between producers and their own distribution networks. Paint producer Policolor received the highest fine of EUR 340,000, followed by Deutek with EUR 112,000, Swarco Vicas with EUR 35,000, and National Paints Factories Company with EUR 23,000. Their distributors were fined with EUR 2.13 million. However, the Romanian NCA also considered that competition compliance programs of the companies involved was a mitigating factor in quantifying the fine and applied a 10% reduction in the value of the fine for 7 of the infringing companies. This decision is in line with Romanian NCA’s policy and more recent decisional practice.
In 2023, the Romanian NCA issued another decision where it retained as a mitigating factor the fact that several sanctioned companies implemented competition compliance programs internally, as well as in relation to its trading partners. For each of these aspects, the Romanian NCA applied a reduction in fines (which is confidential in the final Decision).
The RCC sanctioned Dataware Consulting, Kontron Services Romania and Tema Energy with fines totalling approximately 20.5 million lei (ca. EUR 4.1 million) for bid rigging in the tender organised by the Ministry of Internal Affairs (MIA) for the implementation of the centre for the provision of electronic services. The Romanian NCA found, following an investigation launched in 2021, that the Yes. The Romanian NCA sanctioned 82 companies in the local paint market, with fines totalling EUR 2.7 million, following agreements among them in settling the selling prices. Four paint producers and their distributors agreed to set up the products’ selling prices and to split the distribution markets among them between 2004 and 2010. Some distribution contracts had provisions which restricted sales in other areas than the ones agreed with the producers. The Romanian NCA investigated the relationships between producers and their own distribution networks. Paint producer Policolor received the highest fine of EUR 340,000, followed by Deutek with EUR 112,000, Swarco Vicas with EUR 35,000, and National Paints Factories Company with EUR 23,000. Their distributors were fined with EUR 2.13 million. However, the Romanian NCA also considered that competition compliance programs of the companies involved was a mitigating factor in quantifying the fine and applied a 10% reduction in the value of the fine for 7 of the infringing companies. This decision is in line with Romanian NCA’s policy and more recent decisional practice.
In 2023, the Romanian NCA issued another decision where it retained as a mitigating factor the fact that several sanctioned companies implemented competition compliance programs internally, as well as in relation to its trading partners. For each of these aspects, the Romanian NCA applied a reduction in fines (which is confidential in the final Decision).
The RCC sanctioned Dataware Consulting, Kontron Services Romania and Tema Energy with fines totalling approximately 20.5 million lei (ca. EUR 4.1 million) for bid rigging in the tender organised by the Ministry of Internal Affairs (MIA) for the implementation of the centre for the provision of electronic services. The Romanian NCA found, following an investigation launched in 2021, that the three companies coordinated their behaviour during the participation in the public tender for the design and execution of the project Hub Services (electronic service delivery center) at the level of the Ministry of Internal Affairs. Thus, the three companies exchanged competitively sensitive information about the intentions to participate in the tender and coordinated their commercial policies and strategies in order not to submit bids, to increase the budget allocated by the Ministry of Internal Affairs for the implementation of the project. In this case, MIA was the contracting authority that organised the tender and was not part of the anti-competitive cartel that took place between July 2020 and January 2021.
3. What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?
In its decisional practice, the Romanian NCA looks at whether (i) the competition compliance program actually exists and (ii) has been effectively implemented by the company before Romanian NCA’s deliberations in taking the decision to impose a fine. The Romanian NCA considers efforts made by the company in implementing the competition compliance program sufficient, however it will also look at results (e.g., whether the program was instrumental in the company reporting the conduct or whether it assisted the company in its efforts to cooperate with the Romanian NCA in the investigation). The focus of the Romanian NCA is on existing programs rather than future changes assumed by the companies.
4. Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
The role of managers and employees has not been individually assessed for the effectiveness of the compliance program in Romanian NCA’s decisional practice, although the Romanian NCA does consider in its Guidelines that the subject targeted by the compliance program is important when effectively implementing the program.
The Romanian NCA considers that a program will be effective when it leads to detection through use of compliance tools, of anti-competitive conduct. The compliance program becomes effective when it prevents a possible infringement, brings it to an end or leads to the infringement being reported before a competition authority. Thus, where the undertaking discovers an anti-competitive conduct for which it is responsible, the assessment of the effective implementation of the competition compliance program will consider when it ceased the practice or notified the competition authority with a request for recognition/clemency. The Romanian NCA will also consider the competition compliance program in the context where the infringing companies collaborate with the Romanian NCA in the investigation.
5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
Yes, the Romanian NCA can award a 10% reduction in the level of the fine and considers previous competition compliance programs a mitigating factor where these were effectively implemented and in a responsible manner.
The Romanian NCA rejected claims brought by companies where it considered that the respective companies did not provide sufficient evidence as to how and when the program was previously implemented.
6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
Yes. Public procurement laws require exclusion of bidders from public procurement award procedures based on previous infringements of competition rules. Competition compliance programs can be considered a means to prove rehabilitation of a company which has been previously sanctioned for anti-competitive conduct in order to participate in public tenders. Bidders can provide evidence supporting the effective implementation of competition law compliance programmes in accordance with Romanian NCA’s Guidelines on Competition Compliance, including measures on the prevention of cartel-type conduct and especially bid rigging.
7. Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
To help companies adopt a compliance approach, the Romanian NCA has also published two other guides, namely the „Guide on Compliance with Competition Rules by Business Associations” and the „Guide on Detection and Deterrence of Anti-competitive Practices in Public Procurement Procedures”, each addressing constant efforts of the Romanian NCA to ensure competition compliance and enforcement of competition law through prevention.
8. Are there legal developments on the horizon in relation to CCPs?
No. At present there are no future legal developments anticipated in relation to CCPs. However, the Romanian NCA is expected to continue its enforcement policy, prioritising scrutiny of CCPs for sanctioned companies in the process of individualisation of sanctions applied for competition infringements.