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Thursday, March 14, 2013

The Guidelines on the Petitioning Activities have been published

The guidelines on the petitioning activities have been published on the website of the Romanian Competition Council - see 

The Romanian Competition Council approved, in January, its first guidelines regarding the application of the competition rules issued after the amendments to the Competition Law made in 2011 introduced expressly the possibility to use this instrument for enhancing competition compliance and helping the undertakings assesing their market behavior.  The Romanian Competition Council issued such guidelines before, since 2008, on an occasional basis.

Please note that, according to the Romanian Competition Law, the guidelines do not represent binding legal norms but they highligt the previous case-law and the approach of the Romanian Competition Council in respect of a certain behavior or practice.  The guidelines correspond to the best practices notices issued by the European Commission, which means also they do not impose any specific conduct on the undertakings but allow these to have a better self-assesment of their actions in the market and ensure compliance with the competition rules.
The new guidelines  cover the activities performed jointly by several undertakings or associations of the undertakings (such as business associations) in order to defend the interests of the respective undertakings in front of the public authorities. 
In Romania, article 51 of the Romanian Constitution provides the right of any individuals or legal persons to petition the public authorities, according to their interests.  The article 51 provides specifically, in its second paragraph that ” Legally established organizations have the right to address petitions exclusively in the name of the entities they represent”.  
Based on the provisions from the Constitution, on the European Commission Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements and on the case-law of the Romanian Competition Council (RCC admitted as defenses legitimate petitioning activities in two cases brought before it in 2011 and 2012), the communication which was approved offers the following main guidelines:
§  The conformity of the petitioning activity with the competition rules shall be evaluated based on i) the purpose followed by the participating undertakings and ii) the extent to which an exchange of commercial information was permitted during the petitioning, taking into account the nature of the information exchanged.
§  Regarding the purpose, the undertakings should not be involved in petitioning actions aimed at raising the costs of the competitors (and, eventually, the costs borne by the consumers) or in raising or reinforcing entry barriers into the market.
§  Whenever several undertakings organize a collective protest against the decisions taken by a public authority, such protests should be made in such a way as to avoid affecting other undertakings or the consumers. Such actions should be limited and proportionate with the action or the measure which ignited the protest and its consequences on the respective undertakings and the market. 
In order to evaluate the legitimacy of a collective protest by several undertakings or business associations, the Romanian Competition Council will apply its own test – the extent to which the action or measure which is the object of the protest may be, prima facie, contrary to article 9 of the Romanian Competition Law (which forbids actions by public authorities which limit, impede or distort the competition, such as creating limits to the freedom of trade or discriminating conditions for the undertakings). 
The underlying ideas of these first guidelines of the Romanian Competition Council is that the undertakings should be allowed to act jointly in order to defend their common interests, similarly to the right to collective protests recognized to the employees but, on the other hand, such rights must not be used in a way which would go counter the competition rules and which might affect the consumers.