ROMANIA Law and Practice Contributed by: Manuela Guia, Otilia Vîlcu, Violeta Geru and Cristina Badea, GNP Guia Naghi & Partners
As a matter of applicable law, Romanian substantive law is expected to govern a competition damages claim relating to harm suffered on the Romanian mar - ket, consistent with the general EU conflict-of-laws rule that damages claims are governed by the law of the state whose market is or is likely to be, affected. Jurisdictional challenges by non-Romanian defend - ants have been a recurring feature of the leading Trucks Cartel litigations, with defendants unsuccess - fully arguing that the Romanian courts lacked general jurisdiction; in each case, the Bucharest Tribunal held that Article 7 (2) of Regulation No 1215/2012 conferred jurisdiction because the harmful event, namely the payment of an inflated price, occurred in Romania, a conclusion the appellate courts have not disturbed. Disclosure of evidence in Romanian competition dam - ages litigation is governed by GEO 170/2020, under which both claimants and defendants may request disclosure of relevant evidence from the other party or from third parties. A request must be supported by a reasoned justification, based on reasonably avail - able facts and evidence sufficient to render the claim for damages plausible and disclosure is limited to specified items or narrowly defined categories of evi - dence rather than general or speculative discovery. In assessing proportionality, courts consider how well the claim is supported by available evidence, the cost of disclosure (particularly for third parties) and whether the material sought is confidential. 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure Disclosure of the Competition Council’s own file is subject to a subsidiarity requirement, meaning it may only be ordered where the evidence cannot reason - ably be obtained from the parties or other third parties and courts have shown a degree of caution in this respect. Nonetheless, disclosure orders directed at the Council’s investigation file have been granted in practice, including in one telecom case, where the Bucharest Tribunal ordered disclosure of documents relevant to quantifying the claimants’ damages and in another case, where the court partially granted disclo - sure of specific evidence from the European Commis -
sion’s Trucks Cartel file. A party that fails to comply with a disclosure order or that destroys relevant evi - dence, may be fined and may also see the relevant fact treated by the court as proven against it. Where disclosure would expose confidential infor - mation, Romanian courts have a range of protective measures available under GEO 170/2020, including redacting sensitive passages from disclosed docu - ments, holding closed hearings, restricting access to the material to the parties’ lawyers and appointed experts and requiring that expert reports themselves be prepared in a manner that preserves confidentiality. Courts also frequently allow especially sensitive docu - ments to be filed in a special court registry accessible only to the judge and the parties, so that such mate - rial does not form part of the general case file, which under certain conditions would become available to third parties or the press. Separately, GEO No 25/2019 on the protection of trade secrets allows a party to seek similar protective measures, such as limiting access to hearings or to the recordings and transcripts of hearings, for infor - mation such as pricing policies, internal pricing meth - odologies, risk assessments and other non-public commercial data and courts may combine measures under both instruments where a disclosure request touches on both litigation-specific confidentiality and genuine trade secrets. 6.2 Legal Professional Privilege Legal professional privilege is protected in Romanian civil proceedings, including in private antitrust litiga - tion and courts have recognised that attorney-client privileged material cannot be compelled into disclo - sure even where it forms part of a competition author - ity’s investigation file. More broadly, the Civil Procedure Code permits courts to deny the production of documents if doing so would violate a legal duty of confidentiality or risk criminal prosecution for a party. As a result, legal advice privi - lege is among several established grounds for resist - ing disclosure. The protection of privilege operates alongside, but is analytically distinct from, the general restrictions
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