Even though the Romanian leniency programme is inspired by the EU model, it has many interesting unique aspects.
Legal framework and applicability of the leniency programme in the EU and Romania
The leniency programme applied by the EU Commission (Commission) is set out in the Commission notice1 on immunity from fines and reduction of fines in cartel cases (Commission Notice). The leniency programme applied by the Romanian Competition Authority (Competition Council) is set out in the Guidelines2 regarding the conditions and criteria for applying the leniency programme according to the provisions of art. 51 para. (2) of Competition Law no. 21/1996, republished (Romanian Guidelines).
The Commission Notice limits the applicability of leniency to horizontal agreements, generally known as cartels3, whereas the Romanian version of the leniency programme expressly provides that it is applicable to both horizontal and vertical agreements.
Restrictions of the leniency policy
The undertaking applying for leniency can benefit from immunity from fines irrespective of the infringement's national or EU effects. However, the immunity from fines is not applicable if the undertaking took steps to coerce other undertakings to join the cartel or to remain in it. In addition, a particularity of the Romanian Guidelines is that it specifically rules out the possibility of applying for leniency for any undertaking that initiated the horizontal/vertical agreement.
End of participation in the illegal agreement
The Commission Notice provides that the undertaking that applies for leniency must end immediately its involvement in the cartel, except for the scenario where the Commission considers it reasonably necessary that the undertaking continues such behaviour in order to preserve the integrity of the inspections. In the Romanian Guidelines, this provision is inverted: the undertaking must end its involvement in the horizontal/vertical agreement only if expressly instructed by the Competition Council to do so.
Procedural particularities
What if the undertaking does not qualify for immunity?
At any moment it becomes apparent to the Commission that immunity is not available or the applicant failed to meet the conditions for immunity, that undertaking has two options: to withdraw the evidence disclosed for the purposes of its immunity application, or to request a fine reduction.
The Romanian Guidelines refer to only one, final decision on the leniency application, not covering the possibility of the authority to inform the applicant that its request does not fulfil the conditions for immunity.
Withdrawing the leniency application
The Commission Notice has no provisions on the unilateral decision of an undertaking to withdraw its leniency application.
The Romanian Guidelines provide that, at any moment, the undertaking that has applied for leniency may inform the Competition Council that it no longer wishes to pursue its application. In this case, the applicant may withdraw the information and evidence provided to the Competition Council as part of the immunity request, or may request that these be considered for a possible fine reduction. Similar to the Commission's powers of investigation, the withdrawal does not prevent the Competition Council from using its powers to obtain information on the alleged horizontal/vertical agreement.
Leniency policy case law
The Commission has considerable experience on leniency with both immunity from fines (eg, Akzo - organic peroxides4, Bayer - synthetic rubber, ABB – gas insulated switchgear5, Bayer – chloroprene rubber6, Degussa – acrylic glass7) and reduction of fines (eg, Sasol – paraffin wax8, BASF and F. Hoffmann-La Roche – vitamins9) cases.
The Competition Council has had its leniency policy for quite some time but has applied it in just one case (ie, the Taxi cartel10 case). Even so, the Competition Council is proactive in alerting the participants on various markets about the benefits of applying for the leniency programme and encourages parties to come forward with evidences in order to disclose various hard-core cartels.
Quote: The Romanian leniency programme follows its EU correspondent and tries to bring new elements to it. However, in practice this has proven inefficient until now, considering the low success rate of the leniency applications.
Footnotes
[1] Official Journal of the European Union, C 298 of 8.12.2006, p. 17-22.
[2] Official Gazette of Romania, Part I, no. 610 of 7.09.2009.
[3] Cartels are agreements and/or concerted practices between two or more competitors aimed at coordinating their competitive behavior on the market and/or influencing the relevant parameters of competition through practices such as fixing of purchase or selling prices or sale quotas, the sharing of markets including bid-rigging, restrictions of imports or exports and/or anti-competitive actions against other competitors, Commission Notice para. (1)
[4] EC - IP/03/1700.
[5] EC - IP/07/80.
[6] EC - IP/07/1855.
[7] EC - IP/06/698.
[8] EC - IP/08/1434.
[9] EC - IP/01/1625.
[10] Decision no. 61 of 29.10.2010 of Competition Council.
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