Enforcement of the EU Competition Rules in Romania: Application of the ‘Effect on Trade’ Concept in the Enforcement Practice of the Romanian Competition Council

Posted by Social Science Research Network

The Actavis Inference: Theory and Practice–  Alexandr Svetlicinii (University of Macau)

Abstract: The decade of enforcement of EU competition rules under the decentralized enforcement system introduced by the Regulation 1/2003 has turned the national competition authorities (NCAs) into the primary enforcers of the Articles 101 and 102 TFEU. Despite the substantial number of investigations and infringement decisions reported within the European Competition Network, the enforcement record of individual NCAs displays substantial divergences in relation to the number of infringement decisions applying EU competition rules and the ratio of EU competition law cases in relation to the application of national competition rules. While the reasons for the divergence of the enforcement record across the EU are numerous, one of the factors that can have a decisive influence on the volume of EU competition law cases pursued by the NCAs is the application of the ‘effect on trade’ concept when determining the applicability of EU competition rules. In contrast to the enforcement record of the majority of ‘new’ Member States, Romanian NCA accumulated substantial experience in conducting the ‘effect on trade’ assessment when investigating potential antitrust infringements in the domestic markets. Present paper provides a critical overview of the enforcement practice of the Romanian Competition Council in this regard. While the paper was not intended as a comparative study, the incentives derived from the Romanian enforcement experience could serve as a point of reference for other EU jurisdictions, which display a diverging record in relation to the direct application of the EU competition rules by their NCAs.