New regulations related to unfair competition and competition protection
OG 12/31st of July, 2014 modifying and amending Law no. 11/1991 regarding the prevention of unfair competition and of other acts in the competition protection domain (herein after referred to as the “Ordinance”).
I. Law no. 11/1991 regarding the prevention of unfair competition (herein after referred to as the “Law”) was modified mainly by the addition of the following provisions:
Article 1 of the Law was modified so it now incorporates three paragraphs, the regulator clearly providing at par. (3) thereof that the Law applies to the natural and legal persons, national or foreign, which perform unfair competition practices.
Article 11 of the Law was modified in order to show a more clear definition of the terms used by the Law, namely by clarifying the existing definitions and inserting new definitions of terms such as “fair competition”; “commercial practices”; “honest practices”; “commercial secret”; “legitimate holder of a commercial secret”; “organisation”; “consumer” and “market participant”.
Article 2 of the Law was modified and rephrased so it currently regulates at para. (1) that the Law does not only regulate the deeds that resulted in damages to a market participant but also to those which are prone to cause such damages in the future, and at para. (2) it regulates the forbidden unfair competition actions such as “the denigration of a competitor or its products”; “the co-optation of clientele of an organisation by a former employee/representative by using commercial secrets” and any other commercial practices that are in breach of honest commercial practices and of the main principle of good faith.
Art. 21 of the Law provides with the exclusive competence of the Council of Competition, stating with the regulations applicable to the main domains which are adjacent to the protection of fair commercial practices.
Art. 31 – Art. 34 were introduced, articles regulating the procedure by which the Competition Council may be addressed with notices regarding breaches in the competition law. The provisions of the new Art. 31 – Art. 34 shall enter into force in 30 days from the Ordinance being published in the Official Gazette of Romania (Art. 31) and in 60 days from its entering into force -09.08.2014 – (Art. 32).
Art. 4 was modified so it now states which are the punishable offences and the amount of the applicable fines.
Art. 81 was introduced by which a new legal entity is implemented, namely the Inter institutional Council which is comprised of the main regulating bodies of Romania with attributions adjacent to the competition domain. The Inter institutional Council shall annually draft a report regarding the status of implementation of the legislation on the prevention of unfair competition which shall be transmitted to the Government by the care of the Ministry of Public Finances.
II. The Competition Law no. 21/1996 (herein after referred to as the “Law”) was modified mainly by the addition of the following provisions:
Chapter IV “Competition Council” of the Law was modified by adding provisions set forth in order to achieve a more rational use of the resources of the Council for the performance of investigations.
Chapter V “Preliminary investigation and decision passing procedure” of the Law was modified so if by an investigation lodged ex officio by the Council it acknowledges that there are no evidence supporting a breach in the Law, then it shall close the investigation by order of the Chairman.
Please note that the aforementioned content represents a selection and our interpretation of the Ordinance. Please refer to the Ordinance for any misunderstanding or enquiry related to this brief presentation.