Yes, under Romanian law victims of anticompetitive conduct have the right to claim damages in court and any person responsible for infringing competition law has a legal obligation to repair the damage caused. Romania has fully implemented the provisions of the EU Damages Directive (2014/104/EU).
The principle of full compensation is expressly regulated whereby the victim can claim damages for the entire loss suffered (actual loss, loss of profit and interest), due to the anticompetitive conduct.
Damages claims may be filed either before (stand-alone actions) or after the RCC issues an infringement decision (follow-on actions). In both cases, the statute of limitation is five years, which starts as of the date the victim knew or should have known:
- the existence of the infringement;
- the damage suffered; and
- the identity of the infringer.
Representative actions for damages (class actions) may be filed on behalf of consumers by certain bodies with legal standing.
A victim of a competition law infringement may file a claim for damages with the Bucharest Tribunal, which has exclusive competence as first court of jurisdiction to settle damages claims. The decisions of the first court can be appealed before the Bucharest Court of Appeal and a second appeal against the latter decision can be lodged with the High Court of Cassation and Justice.
An infringement of competition law is deemed irrefutable if it is ascertained by a final decision of the RCC or of the European Commission, or if it is finally confirmed by court. Infringement decisions issued in other EU Member States represent the rebuttable presumption of the infringement of competition, which can be overturned.
Although to a large extent Romanian law mirrors the provisions of the EU Damages Directive, there are significant differences on the quantification of a loss:
- first, Romanian law provides for a rebuttable presumption whereby the infringement of competition law in the form of a cartel results in harm, consisting in a 20% increase in the price of goods or services covered by the cartel. If the infringer can demonstrate to the court’s satisfaction that the actual loss was less than 20%, rebutting the presumption, the burden of proof regarding the amount of damages caused by the cartel switches from the claimant to the infringer;
- second, Romanian law also provides for a rebuttable presumption whereby the abuse of a dominant position in the relevant market results in loss; the infringer can rebut this presumption by proving that no loss was incurred.
The law aims to ensure effectiveness of the right to full compensation, irrespective whether the victim is a direct or indirect purchaser. However, compensation for actual loss at any level of the supply chain will not exceed the damage in the form of overcharge caused at the respective level.
The law also provides for the joint liability of the cartel participants for the damage caused and victims can claim full compensation from any member of the cartel, irrespective of their capacity of direct or indirect purchasers, except for SMEs and leniency applicants where liability is limited according to the criteria set forth in the law.
To date, no damages claim has been brought in the pharmaceutical sector and the private enforcement of competition law remains limited in Romania. There has only been one final ruling by the judicial court on damages in a follow-up claim for damages brought against a Romanian state-owned company providing postal services which granted discriminatory rebates. One of the victims claimed damages consisting of the difference between the more favourable tariffs applied by the state-owned company to the victim’s competitors and the tariff granted to the victim in 2005–2009. The court awarded damages including actual loss and loss of profit amounting to approximately EUR 900,000. Another standalone action for damages is currently pending against one of the leading telecom operators in Romania for allegedly restricting a company’s access to the mobile network market.