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Avand in vedere Hotararea CJUE in  Cauza C-586/14 Budișan, izvor de drept primar, in ordinea juridica nationala, cei care au platit incepand cu 2013 taxa de inmatriculare: “timbru de mediu” au sanse reale de a isi recupera banii platiti nejustificat, suma actualizata cu dobanda fiscala.Este obligatoriu sa se adreseze Instantei de judecata, neexistand posibilitatea legala pentru organul fiscal de a returna aceste sume pe cale administrativa. Pentru Asistenta si Reprezentare, nu ezitati sa ma contactati telefonic sau pe e-mail.

Having regard to the ECJ Case C-586/14 Budisan, directly applicable into the Romaniana legal order, citizens who paid the registration tax for cars starting with year 2013, unjustified: “timbru de mediu”, are more likely to get it back, the final sum to be reimbursed being updated with the fiscal interest. It is mandatory to submit their request to the competent Court, given that their so administrative procedure available for the Fiscal Authority to reimburse these debts. For the correspondent Legal Assistance and Representation, please do not hesitate to contact me, either via phone or e-mail.

Drepturile Procedurale in Dreptul Penal European (ro)

June 30th, 2015 | Posted by DUCA LL.M in EU Law | Romanian Law - (Comments Off)

In cursul lunii iunie a acestui an, am avut deosebita onoare de a aprofunda cunstiintele in materia drepturilor procedurale in procesul penal, la nivel european. Prilejul a fost ocazioinat de organizarea de catre Institul National de Magistratura, alaturi de Consiliul Superior al Magistraturii si alti parteneri externi a Seminarului Drepturi procedurale în dreptul penal al Uniunii Europene, in cadrul proiectului: JUST/2013/JPEN/AG/4496. Evenimentul s-a desfasurat exclusiv in limba engleza, pentru avocati fiind alocate doua locuri, la nivel national. Pentru ca importanta acestor drepturi nu poate fi contestata, evenimentul s-a bucurat de prezenta unor experti, unor magistrati, unor avocati, juristi care au identificat pentru fiecare participant al procesului penal, drepturile de care beneficiaza, sau ar trebui sa beneficieze, conform legislatiei europene, dar si in ce masura aceste norme sunt transpuse in mod veritabil in legisatia noastra, cu precadere, dar si in cea a altor state membre ale Uniunii Europene, e.g.: Spania, Italia Polonia sau Bulgaria, state ce au avut reprezentanti de seama la acest eveniment.

Vorbind de drepturi procedurale, ne referim la drepturile partilor in procesul penal, dar si la cele ale subiectilor procesuali principali (suspect, persoana vatamata), cat si a altor subiecti procesuali: martor, expert, interpret, agentul procedural, etc. Aceste drepturi procedurale, sunt expuse de norme europene, e.g. Directiva 2010/64/UE, Directiva 2013/48/UE (termen limita de transpunere: noiembrie 2016), Directiva 2012/13/UE, si transpuse in legislatia nationala, pentru a le putea da eficienta, devenind astfel izvor de drept primar. Astfel, in orice act intreprins de organul de cercetare penala, cat si in fata instantei, urmatoarele drepturi pot fi exercitate de catre particiantii la procesul penal: dreptul de a fi asistat de un avocat, dreptul la interpret, dreptul de a informa o a treia persoana privind lipsirea de libertate, dreptul de a nu declara, dreptul de a fi informat cu privire la fapta pentru care este cercetat, accesul la dosar si altele. De remarcat este ca in practica exista posibilitatea ca si alti subiecti procesuali sa fie asistati de avocat, de exemplu martorul!

Numeroasele spete, inclusiv procesul simulat (unde am interpretat rolul avocatului), in aria cooperarii judiciare in materie penala, au relevat si evidentiat importanta principiului recunoasterii reciproce, asa cum rezulta din art. 82 din Tratatul privind Functionare Uniunii Europene. Astfel toate instrumentele legale, initiale (Conventia din 1959 si cea din 2000, privind asistenta legala in materie penala), cat si cele ulterioare, e.g. Decizia Cadru privind Ordinul de Investigatie European 2014/41/JHA, au la baza acelasi criteriu de aplicabilitate, increderea reciproca. In consecinta, situatiile in care, spre exemplu un mandat european de arestare nu va fi executat, sunt expres si limitativ prevazute de lege, unul dintre cele mai des intalnite fiind legate de principiul „non bis in idem”. Ca orice regula, aceasta poarta si exceptii, astfel incat ceea ce la prima vedere pare a fi o incalcare a acestui pricipiu, poate defapt sa conduca spre o eroare. Pentru o corecta analiza, este indicat a privi catre art. 54 din Conventia de Implementare a Acordului Schengen, articolul 4 (1) din Protocolul 7 al Conventiei Europene a Drepturilor Omului dar si in Decizia Cadru privind Mandatul European de Arestare 2002/584/JHA, la articolul 3, alineat 2. Desigur, toate au in comun excepti autoritatii de lucru judecat, insa Curtea Europeana de la Luxembourg, , statueza diverse interpetari ale aplicabilitatii acestui principiu, e.g.: Cauza- 261/09 Mantello[1], Cauza C-396/11[2], C-399/11 Melloni[3], C-367/05 Kraijenbrink[4], C-150/05 Van Straaten[5], C-491/07 Turansky[6], analiza facandu-se de la caz la caz…

Orice activitate procedurala penala, de investigatie de exemplu, se naste din banuiala ca o infractiune a fost savarsita, iar suspectul/ inculpatul beneficiaza de prezumtia de nevinovatie, iar in acest cadru de activitate judiciara, drepturile conferite de lege sunt esentiale pentru aflarea adevarului.

Importanta principiului increderii reciproce este fara echivoc, insa poarta si exceptii, unele expres prevazute de lege, altele derivate din interpretarea principiului non bis in idem de catre instanta europeana/nationala. Desigur, ramane de vazut cum statele memebre ale Uniunii Europene vor intelege sa interpreteze normele indicate mai sus, pentru o cat mai buna cooperare judiciara in materie penala.

[1] http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62009CA0261

[2] http://curia.europa.eu/juris/liste.jsf?language=en&num=C-396/11

[3] http://curia.europa.eu/juris/liste.jsf?language=en&num=C-399/11

[4] http://curia.europa.eu/juris/liste.jsf?language=en&num=C-367/05

[5] http://curia.europa.eu/juris/liste.jsf?language=en&num=C-150/05

[6] http://curia.europa.eu/juris/liste.jsf?language=en&num=C-491/07

EU Citizens who exercise their right to free movement, by going in another Member State for the sole purpose of obtaining social assistance, not being economically active, may be excluded from certain social benefits, under EU Law- Judgement in Case- 333/2013, from November 2014, Elizabeta Dani, Florin Dani v. Jobcenter Leipzig.

In fact, two Romanian Nationals, Ms. Dano and her son Florin, referred a case to the Social Court- Leipzig, against Jobcenter Leipzig, related to the latter refusal to grant them benefits, i.e.: subsistence benefit (‘existenzsichernde Regelleistung’) and for her son, social allowance (‘Sozialgeld’), as well as a contribution to accommodation and heating costs. The ECJs’ response to that Court (which referred the matter for a preliminary ruling) was that nationals of EU Member States are entitled to claim equal treatment with nationals of the host Member State when their residence conditions are in accordance with the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. This means that, beside the fact under the Directive, the host Member State is not obliged to grant social assistance for the first there Months of residence, when an EU citizen is proven to be economically inactive (e.g.: not being trained in a profession, nonexistent previous work experience) he/she must have sufficient resources to provide for themselves (where the period of residence is longer than three months but less than five years). So that the scope of the Directive is to prevent such inactive EU citizens from taking advantage of the host Member States’ welfare system, for funding their means of subsistence. As a consequence, a Member State is entitled to refuse to grant social benefits to the aforementioned EU citizens. Inter alia, the Court points out that each individual case must be assessed on a case by case analysis, with no regard to the amount or nature of the benefits claimed. Finally, the Court ruled that when one doesn’t have sufficient resources for means of subsistence, the principle of non-discrimination on grounds of nationality is not to be relied on, given that a residence right cannot be claimed, according to the above mentioned Directive.

Comments:
Is the ruling fair? Could it be regarded as an impediment to the freedom of movement of persons? To which extent an EU citizen is entitled to claim social benefits, within the EU, according to the principle of equality and non-discrimination (on grounds of nationality)? To be noted, that despite the bluntness of the said Judgment, the Court also stated that a case by case analysis is required regardless of the amount and nature of the social benefit. It is a fact that no Member State wants to receive “parasites” (economically inactive EU citizens), but where can a Member State draw the line, without being in breach of EU Law, with respect to discrimination and equality values? It remains to be seen how Member States, as hosts, will apply this Judgment…

In conformitate cu Dreptul European, implicit cu cel romanesc, victimele infractiunilor sunt indreptatite la compensatie financiara, urmare a prejudiciului suferit in urma savarsirii infractiunii. Conditia esentiala pentru admisibilitatea unei astfel de cereri este sesizarea autoritatilor competente in termen de 60 de zile, in legatura cu savarsirea infractiunii. In plus, trebuie mentionat ca exista limitari cu privire la categoriile de infractiuni care dau nastere la dreptul victimei la compensatie financiara, i.e.:

          Tentativa la infractiunile de omor, omor calificat si omor deosebit de grav, vatamare  corporala grava, o infractiune intentionata care a avut ca urmare vatamarea corporala grava a victimei, viol, act sexual cu un minor, perversiune sexuala, traficul de persoane, terorism si orice alta infractiune intentionata comisa cu violenta.

        Cine poate cere compensatia financiara? Victima, sotul, copiii si persoanele aflat in intretinerea persoanelor decedate in urma savarsirii infractiunilor indicate mai sus.

        Conditiile de acordare a compensatiei financiare fac referire la nationaliatea victimei cumulat cu locul savarsirii infractiunii, e.g. cetean european (implicit roman) sau strain/ apatrid avand caliatea de victima a unei infractiuni, savarsite pe teritoriul Romananiei.

          In plus, daca sunteti cetatean roman, strain sau apatrid, victima a unei infractiuni intentionate comise cu violenta pe teritoriul unui stat membru al UE, sunteti indreptatit/a la compensatie financiara in conformite cu normele privind coperarea judiciara in materie penala.

        Pentru asistenta si reprezentare, folositi sectiunea contact pentru a discuta cazul in totala confidentialiate si cu deplina diligenta.

 

 

According to EU Law, Romanian Law included, victims of crime are entitled to financial compensation, as a consequence of the damages suffered from the offense. It is prerequisite to notify the competent Authorities regarding the criminal offense committed, within 60 days! Moreover there are restrictions imposed when it comes to rewarding the correspondent financial compensation, with regard to the categories of the criminal offense committed, i.e.:

          Attempted homicide, murder and manslaughter, serious injury, a felony which ended with deliberated body injury to the victim, rape, sexual intercourse with a minor, sexual perversion, human trafficking, terrorism and any other offense committed with deliberate violence.

        Who is entitled by law to claim the financial compensation? The Victim, His/ Her Spouse, Descendents of first degree (Children) and dependents of the deceased persons- victims.

        Conditions for granting financial compensation refer to the victims’ nationality cumulated with the actual place of the offense, e.g. European citizen (Romanian included) or foreigner / stateless person who is a victim of crimes committed in Romania.

In addition, if you are a Romanian citizen, foreigner or a stateless person, victim of a violent and deliberate crime committed on the territory of an EU Member State, you are also entitled / to financial compensation under the rules provided by the International Judicial Cooperation in Criminal Matters Area.

For assistance and representation, please use the contact section to discuss the case in complete confidentiality and in full diligence.

            Cei care au castigat in Instanta dreptul la restituirea taxei auto, au dreptul si la restituirea dobanzilor aferente., iar calculul acestora se realizeaza luandu-se in considerare momentul platii, nu momentul inceperii procedurii de recuperare, i.e. sesizarea Autoritatii Administrative si a Instantei de Judecata.:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62011CJ0565:EN:NOT

Aceasta Hotarare a Curtii de Justitie a Uniunii Europene privind conformitatea dreptului national Romanesc cu cel European, prin prisma articolului 6 TUE, raportat la principiile echivalentei, efectivitatii si proportionalitatii, vine pentru a sustine interesele legitime ale contribuabilului roman in fata Autoritatilor Fiscale, in ceea ce priveste dreptul de proprietate cu repunerea partilor in situatia anterioara, atunci cand este constatata o incalcare a Justitiei.

Ramane de vazut in ce directie se va indrepta practica Instantelor Romane in legatura cu taxa numita: “Timbru de Mediu”, care in fapt, le substituie pe cele anterioare, declarate discriminatorii si nelegale, de acceasi Instanta Europeana, i.e. CJUE, insa poarta o alta Justificare, cu atat mai mult cu cat chiar Comisia Europeana si Avocatul General au fost in asentimentul Reclamantei din Sibiu, in cazul mai sus indicat…

      Pentru asistenta si reprezentare juridica eficienta si in conditii rezonabile, adaptate fiecarei situatii in parte, in materia Dreptului European,sunteti invitati sa contactati Biroul, conform datelor din sectiunea Contact.

Starting September 1, 2012, all Romanian Legal Entities, must change their official name, from “commercial company” to “the Company” with the Trade Registry. Also, their Memorandum of Association, must be duly updated and registered with the Competent Authority.

The above Compliance requirement is the result of Law No. 76/2012, which will enter into force on September 1, 2012, i.e. Article 79, according to which, the deadline for the submission of the relevant files with the proper Trade Registry, is September 1, 2014.

Please fee free to contact Diana DUCA Law Office, for further details.

 

Incepand cu 1 Septembrie 2012, toate persoanele juridice romane trebuie sa isi schimbe denumirea oficiala, din “Societate Comerciala” in “Societatea”. De asemenea, Actul Constitutiv trebuie actualizat si inregistrat corespunzator la autoritatea competenta.

   Aceasta cerinta de conformitate este rezultatul Legii nr. 76/2012, care va intra in vigoare la 1 Septembrie 2012, i.e. Articolul 79, conform caruia, termenul limita pentru depunerea dosarelor relevante la Registrul Comertului competent, este 1 Septembrie, 2012.

   Sunteti invitati sa contactati Cabinet Diana DUCA, pentru mai multe detalii.

 

Applicable Legislation

•Primary Law: Art.101 and 102 TFEU.
•Secondary Law: Council Regulation 1/2003 applies to all air transport services, including on routes between the EU and third countries. The latter was achieved through the adoption of Council Regulation 411/2004 on 26 February 2004, (Official Journal L 68, 6.3.2004, p. 1-2).

Council Regulation (EC) No 487/2009 of 25 May 2009 on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector (Codified version) (Official Journal L 148, 11.6.2009).

•Commissions’ antitrust regulations specific to air transport have been gradually repealed and no such regulation is in force today. General antitrust regulations are however applicable.
•General notices and communications on antitrust are applicable., but not  to antitrust in the air transport sector.
Article 101 TFEU
•According to Article 1(1) of Regulation 1/2003 agreements which are caught by Article 101(1) and which do not satisfy the conditions of Article 101(3) are prohibited, no prior decision to that effect being required. According to Article 1(2) of the same Regulation agreements which are caught by Article 101(1) but which satisfy the conditions of Article 101(3) are not prohibited, no prior decision to that effect being required. Such agreements are valid and enforceable from the moment that the conditions of Article 81(3) are satisfied and for as long as that remains the case.
Article 101 (3)
•The application of the exception rule of Article 101(3) is subject to four cumulative conditions, two positive and two negative:
•(a) The agreement must contribute to improving the production or distribution of goods or contribute to promoting technical or economic progress,
•(b) Consumers must receive a fair share of the resulting benefits,
•(c) The restrictions must be indispensable to the attainment of these objectives, and finally
•(d) The agreement must not afford the parties the possibility of eliminating competition in respect of a substantial part of the products in question.
Article 102 TFUE
•Article 102 TFUE prohibits abuses of a dominant position. In accordance with the case-law, it is not in itself illegal for an undertaking to be in a dominant position and such a dominant undertaking is entitled to compete on the merits. However, the undertaking concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market. Article 102 is the legal basis for a crucial component of competition policy and applies to undertakings which hold a dominant position on one or more relevant markets. Such a position may be held by one undertaking (single dominance) or by two or more undertakings (collective dominance).
SSNIP Test
•Before deciding whether companies have significant market power which would justify government intervention, the test of Small but Significant and Non-transitory Increase in Price (SSNIP) is used to define the relevant market in a consistent way. It is an alternative to ad hoc determination of the relevant market by arguments about product similarity.
•The SSNIP test is crucial in competition law cases accusing abuse of dominance and in approving or blocking mergers. Competition regulating authorities and other actuators of anti-trust law intend to prevent market failure caused by cartel, oligopoly, monopoly, or other forms of market dominance.
Means of Compliance
•fines and periodic penalty payments;
•effective supervision;
•simplify administration.
Competent Authorities
•Article 101 (previously Article 81) of the new EU Treaty prohibits agreements and concerted practices between firms that distort competition within the Single Market. Fines of up to 10% of their worldwide turnover may be imposed on the guilty parties. The prohibition of cartels was already in the 1957 Treaty of Rome and the 10% cap has been introduced in 1962 by the first implementing Regulation for competition enforcement (Regulation No 17).
•All cartel decisions by the Commission may be appealed against before the General Court of the European Union and then before the European Court of Justice. They can, therefore, be closely scrutinised by these two courts, which are empowered to annul decisions in whole or in part and to reduce or increase fines, where this is deemed appropriate.
Leniency
•The Commission’s leniency policy encourages firms to provide the Commission with insider information on cartels. The first firm to do so is granted total immunity from fines. Other firms that follow suit may be granted a reduction in the amount of the fine. This policy is very effective in uncovering cartels but does not prevent the Commission from conducting investigations on its own initiative. The first leniency notice was adopted in 1996 and has since been revised and further refined in 2002 and 2006.
Settlement
•Settlement decisions are only foreseen in cartel cases. They are adopted pursuant to Articles 7 and 23 of Regulation (EC) Nº 1/2003, which are the standard legal basis for Commission Decisions acting against violations of Articles 81 and 82 EC. Therefore, settlement decisions establish the existence of an infringement, describing and proving all the relevant parameters thereof, require the termination of the infringement and impose a fine. They constitute a precedent valid to establish recidivism for subsequent similar infringements and preclude the adoption of another decision for the same facts and pursuant to the same legal basis by the Commission or any EU National Competition Authority.
•By introducing a settlement submission, the parties commit to follow the settlement procedure subject to the condition that the Commission Decision ultimately reflects the contents of the settlement submission and it does not impose a fine higher that the maximum fine indicated in it.
Commitment
•Commitment decisions are adopted on the basis of Article 9 of Regulation (EC) Nº 1/2003. They do not establish an infringement or impose a fine, but bring a suspect behaviour to an end by imposing on companies the commitments offered to meet the Commission concerns. Commitment decisions render the commitments legally binding and conclude that there are no longer grounds for action by the Commission. Therefore, they do not constitute precedents to establish recidivism for subsequent infringements. Commitment decisions are not appropriate in cartel cases.
Fines- Basic Amount
•The maximum fine for each firm is 10 % of its total turnover in the preceding business year (Regulation EC No 1/2003).
•The basic amount is calculated as a percentage of the value of the sales connected with the infringement, multiplied by the number of years the infringement has been taking place.
•The percentage of the value of sales is determined according to the gravity of the infringement (nature, combined market share of all the parties concerned, geographic scope, etc.) and may be as much as 30 %.
•The Commission then adds to this initial calculation a further amount that is applied to all cartel cases and, at the Commission’s discretion, to certain other types of infringement. This will be between 15 and 25 % of the value of annual sales, irrespective of the duration of the infringement.
Adjustments to the basic amount
•The basic amount may be adjusted by the Commission, downwards if it finds that there are mitigating circumstances, or upwards in the event of aggravating circumstances.
•Firms that commit similar infringements again will now be fined more heavily. The Commission will penalise re-offending, taking into account not only its own earlier decisions but also rulings by national authorities. Firms that re-offend could now face a 100 % increase in their fine for each subsequent infringement.
Inability to pay claims by cartel members
•The 2006 Fines Guidelines provide that in, exceptional cases, the Commission may, upon request, take account of an undertaking’s inability to pay. In assessing whether a company would risk going bankrupt as a result of the fine, among other things the Commission assesses a company’s financial situation on the basis of its financial statements from recent years but also including projections for the current and the two following years. The Commission looks at the company’s liquidity, solvency and other financial ratios that are commonly used to assess a company’s solidity or the lack thereof. It also assesses the company’s relations with banks and shareholders. In the recent bathroom fittings case, 10 companies claimed inability to pay. The claims of five companies were found to be justified and fine reductions were granted.

 

Concerted Practices

Scope and the Burden of Proof

 

This paper aims to identify the scope of Article 101 TFEU, in respect to concerted practices. When such a case arises, the key issue is the burden of proof. The titles under which the paper is structured are as follows:: 1.Introduction, A. Scope, B. Prisoners’ Dilemma; 2.Plausible Explanations; 3.Burden of Proof; 4.Aditional evidence on concentrations; 5.Conclusions.

                                               1.Introduction                                              

 

  1. A.     Scope

The term is used sometimes to refer to the whole of old Article 81 EC, now 101 TFEU, in contrast to unilateral practices which are caught by old Article 82 EC, now Article 102 TFEU; other times it is used to refer just to practices in contrast to contracts, i.e. explicit agreements. Here questions arise to the burden of proof.

Article 101 TFEU applies to agreements and coordinated practices. That is, Article 101 TFEU requires at least a concurrence of wills or a meeting of minds between the undertakings concerned. If the market conduct of an enterprise is not the result of either an agreement or at least a conscious common intention of coordination among competitors, Article 101 TFEU is not

applicable.

As the ECJ stated in ICI[1], Article 101 TFEU draws a distinction between the concept of “concerted practices” and the concepts of “agreements between undertakings” or “decisions by associations of undertakings”. As explained by the ECJ, the reference to concerted practices in Article 101 is intended to bring within the scope of the prohibition a form of coordination between undertakings which, without having reached the stage where an agreement properly so called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition.

The question therefore arises as to what extent, if any, parallel behaviour in an certain market is the result of a meeting of minds or whether, on the contrary, it is the result of the autonomous will of each undertaking? .

The ECJ stated in ICI that: “by its very nature, then, a concerted practice does not have all the elements of a contract but may inter alia arise out of coordination which becomes apparent from the behaviour of the participants”.

Therefore, concentration implies a form of cooperation that: (1) protects the undertakings concerned from the risks of competition; and (2) usually becomes apparent from the behaviour of the participants (for example, from parallel conduct with regard to their pricing policy).

 

                        B. Prisoners’ Dilemma or Game Theory.

According to game theory, if in a game the worst solution for each player is to ignore the behavior of the other players, since such behaviour will affect the outcome of the game, the players will end up cooperating. They will either decide from the very first moment that reaching an agreement is the most advantageous solution, or they will reach the conclusion that it is necessary to cooperate by trial and error. In such a case, the players will cooperate “as if” they had reached an agreement. For game theory it does not matter whether such cooperation is reached through an express agreement or by tacit cooperation (acting “as if” there was an agreement). What matters is whether the conditions of the game create the incentives for the players to cooperate.

The position of the ECJ in ICI must be read in light of the subsequent cases, and mainly in light of Woodpulp II. In Woodpulp II, the ECJ reformulated its previous statement in ICI. The ECJ again said that account must be taken “of the nature of the products, the size and the number of the undertakings and the volume of the market in question”, but with an important difference. The goal of such an analysis is no longer to establish what “the normal conditions of the market” are but to ascertain whether or not the parallel conduct can be explained otherwise than by concentration. Thus, the case law must be seen as an evolution whose outcome is clear. Parallelconduct is not prohibited, and it does not create a presumption iuris tantum of collusion. Nevertheless, parallel conduct can be considered sufficient proof of collusion if concentration is the only plausible explanation.

 

                                                2. Plausible explanations

The list of plausible explanations is not exhaustive, but to date, two main circumstances

have been considered to be plausible explanations for parallel behaviour: (1) price

leadership; and (2) market structure.

As said before, it is legitimate for economic operators to adapt themselves intelligently to the existing and anticipated conduct of their competitors[2].

Consequently, if there is a price leader in the market, competing undertakings could try to adapt themselves to the leader’s commercial policy. Such parallel pricing behavior in an oligopoly, for instance, producing homogeneous goods would not in itself amount to concentration within the meaning of Article 101 TFEU[3].

A price leader could be characterised as an economic operator which due, for example, to its market share, is able to act independently of its competitors, knowing that they would almost certainly follow suit (“dominant price leadership”). Another possibility is so-called “barometric price leadership”, where the firm taking the lead is not dominant but is widely accepted as the best performing operator in the sense of meeting demand and adapting to evolving market conditions (i.e. cost increases).

The conclusion could be quite different if additional evidence is adduced, such as evidence of contacts between undertakings on desirable price changes prior to the adoption of a new price, or of an exchange of information that reinforces such contacts. In any event, an agreement between competitors to follow or to choose a price leader will be regarded as concentration within the meaning of Article 101 TFEU.

Another possibility is that the very structure of the market leads to parallel conduct (in oligopolistic markets).

The ECJ has implicitly acknowledged that, in some markets (i.e oligopolistic), competitors are interdependent. Accordingly, in Woodpulp II the ECJ appointed a group of economic experts to examine the characteristics of the affected market during the period covered by the Commission’s contested decision. After examining the market in the relevant period, the experts concluded that the normal operation of the market was a more plausible explanation for the uniformity of prices than concentration[4]. The ECJ accepted this as a plausible explanation for the parallel conduct and upheld the applicants’ argument that the Commission had not sufficiently proved concentration within the meaning of Article 101 TFEU. It is worth noting that, in Woodpulp II the experts did not say that the normal operation of the market was the sole plausible explanation for the uniformity of prices. For the ECJ, it was enough that there were other explanations apart from collusion. Concentration thus cannot be inferred from the mere existence of parallel conduct.

 

                                                3. Burden of proof

To what extent, if any, the market characteristics amount to a concerted practice within the meaning of Article 101 TFEU?       The ECJ has acknowledged that, although each economic operator must determine its own commercial policy independently, it is legitimate for the economic operators to adapt themselves intelligently to the existing and anticipated conduct of their competitors[5]. However, if adapting intelligently to the existing and anticipated conduct of their competitors is legitimate, it is foreseeable that all the existing operators will adapt similar conduct, i.e. parallel conduct[6]. Such conduct could be easily read as an evidence of “coordination which becomes apparent from the behaviour of the participants”[7], mainly in oligopolistic markets.

The ECJ rightly acknowledged this, and ruled that parallel conduct as such is not caught by Article 101 TFEU and creates no presumption of collusion between the undertakings concerned.

–          Nevertheless, the Court’s case law seemed to provide for two  guidance of this substantive rule:

a)      First, in ICI the ECJ stated that, although parallel behaviour may not by itself be identified with a concerted practice, parallel conduct may amount to strong evidence of concentration if it leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market[8].

b)      Second, in Woodpulp II the ECJ ruled that parallel conduct cannot be regarded as proof of concentration unless concentration constitutes the only plausible explanation for such conduct.[9].

In spite of the fact that the language varies from one case to another, these two “exceptions” can be read as a single one: parallel conduct is not proof of concentration if the conduct of the enterprises can be explained by market conditions.

According to the case law of the ECJ, in order to establish that parallel behaviour is the result of concerted action, the evidence must be “sufficiently precise and coherent”[10]. In the light of the foregoing, in Woodpulp II Advocate General considered that this statement of the ECJ implied that it is necessary to establish a degree of certainty that goes beyond any reasonable doubt. He further added that, in “accordance with the principles governing the burden of proof, it is for the Commission to demonstrate that; the burden of proof cannot be shifted simply by a finding of parallel conduct[11]. Moreover, the Advocate General considered that, in any event, if a plausible alternative explanation is put forward by the parties, then concentration cannot be deemed to be established[12].

The position of Advocate General Darmon in Woodpulp II was quite clear: the burden of proof is always borne by the competition authority. Parallel conduct neithercreates a presumption of concentration nor shifts the burden of proof. In view of the conclusions of Advocate General Darmon, in Woodpulp II the ECJ ruled on this point as follows[13]:

“[70] Since the Commission has no documents which directly establish the existence of concentration between the producers concerned, it is necessary to ascertain whether the system of quarterly price announcements, the simultaneity or near-simultaneity of the price announcements and the parallelism of price announcements as found during the period from 1975 to 1981 constitute a firm, precise and consistent body of evidence of prior concentration.

[71] In determining the probative value of those different factors, it must be noted that parallel conduct cannot be regarded as furnishing proof of concentration unless concentration constitutes the only plausible explanation for such conduct. It is necessary to bear in mind that, although [Article 101] of the Treaty prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (see the judgment in Suiker Unie, cited above, paragraph 174).

[72] Accordingly, it is necessary in this case to ascertain whether the parallel conduct alleged by the Commission cannot, taking account of the nature of the products, the size and the number of the undertakings and the volume of the market in question, be explained otherwise than by concentration.”

The position of the ECJ seems, at first glance, to follow Advocate General Darmon. However, this may not be a realistic interpretation of the existing case law.

First, competition authorities reason, sometimes, in a quite different way: parallel conduct is either proof of concentration, or at least creates a presumption of collusion. No matter how the case law defines the principles governing the burden of the proof in these cases, a competition authority will presume the existence of concentration if there is parallel behaviour. It will then be a hard task for the defendants to find “sufficiently precise and coherent” evidence that concentration is not the only plausible explanation. It is neither practical nor realistic to expect competition authority officials to presume that there is no concentration when facing with parallel behaviour.

Second, Woodpulp II must be read in the light of the previous case law. Indeed, in CRAM and Rheinzink, the ECJ stated: “The Commission’s reasoning is based on the supposition that the facts established cannot be explained other than by concerted action by the two undertakings. Faced with such an argument, it is sufficient for the applicants to prove circumstances which cast the facts established by the Commission in a different light and which thus allow another explanation of the facts to be substituted for the one adopted by the contested Decision” (emphasis added).

This seems to be a much more practical approach. Competition authorities tend to presume that parallel conduct is the result of concentration if they see no clear evidence supporting an alternative explanation. It is then for the defendants to provide an alternative plausible explanation.

This does not mean that a competition authority must never look for alternative explanations. As an initial matter, a competition authority must also examine on its own initiative whether such an alternative explanation exists or not. However, if after a preliminary analysis the competition authority does not find a plausible alternative explanation, the burden of proof will shift to the defendants. It is then for the defendant undertakings to provide evidence which casts the facts established by the competition authority in a different light and which thus allows another explanation for those facts[14].

 

                                                4. Additional evidence of concentration

Nevertheless, the problem of the plausible explanation, the burden of proof or the structure of the market only arises if evidentiary support for the case is insufficient. Parallel conduct could be considered as proof of collusion if it can be connected with other evidence of collusion, in particular with facilitating practices or “plus factors”. These facilitating practices have been defined as activities that promote interdependent behaviour among competitors by reducing their uncertainty as to each other’s future action, or by diminishing their incentive to deviate from a coordinated strategy.

For instance, parallel conduct can be deemed to be proof of concentration if it is accompanied by evidence of any of the following:

Documents.

Taken together, a finding of parallel market conduct and documents which show that the practices were the result of concerted action are sufficient proof of concentration[15].

 

 

Contacts between competitors.

In its landmark Sugar case, the ECJ held that Article 101 TFEU strictly precludes any direct or indirect contact between operators that can influence the conduct on the market of an actual or potential competitor. In such a case, the defendants cannot explain the existence of the parallel conduct by the fact that they have adapted intelligently to the existing and anticipated

conduct of their competitors. Such contacts remove in advance the uncertainty as to the future conduct of the competitors, and thus protect the undertakings from the risks of competition.

These contacts could consist of, for example, meetings between competitors.

Disclosing to competitors the course of conduct that each undertaking

has decided to adopt (or contemplates adopting) on the market.

For example, announcements of price increases, together with parallel conduct, can be regarded as proof of concentration[16].

Exchange of Information.

Exchange of sensitive data can be considered proof of concentration, especially if the data are closely linked to the competitive conditions in respect of which the conduct of competitors is parallel.

Reciprocal supply agreements between competitors.

Reciprocal supply agreements between competitors could be regarded as proof of concentration, especially if, at the same time, the concerned undertakings refrain from supplying competitors’ clients[17].

Common board members.

Having representatives on the board of directors or any other management body of a competitor could be considered a device facilitating collusion.

Associations of enterprises.

If all (or the majority) of the undertakings investigated are members of an association of enterprises, this can be an element supporting an accusation of concentration by a competition authority.

Network of joint ventures coordinated by a parent company.

In the Optical fibers case, the Commission found that concentration in an oligopolistic market could result of a network of interrelated joint ventures with a common technology provider and a common parent company[18]..

The above non-exhaustive list of examples shows that, in the presence of parallel conduct, any device, practice or framework facilitating collusion can be considered sufficient supporting proof of concentration. In such cases, it is not enough for the defence merely to provide a plausible alternative explanation of the parallel conduct. The additional proof (exchange of information, documents, etc.) must also be rebutted.

Furthermore, it should be recalled that most of the facilitating practices can serve precompetitive as well as anticompetitive purposes. Therefore, the mere fact that some sort of facilitating practice exists should not alone lead to a conclusion of illicit collusion among the defendants.

 

                                                5. Conclusions

Since direct proof of illicit collusion is often difficult, when parallel behaviour is accompanied by facilitating practices, as a matter of practice, competition authorities tend to shift the burden of proof to defendant undertakings.

 

The key issue is to distinguish between situations in which strategic coordination implies some sort of illicit collusion and when it merely corresponds to spontaneous coordination resulting from the rational response of each member of the market to the perceived interdependencies.



[1] Case 48/69 Imperial Chemical Industries Ltd. v Commission [1972] ECR 619

[2] Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, Suiker Unie v Commission [1975] ECR 1663, para. 173-174.

[3] Commission Decision EEC/84/405 of 6 August 1984, Case IV/30.350 – zinc producer group, OJ L 220 [1984], pars. 75-76.

[4] Joined Cases -89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 A. Ahlström Osakeyhtiö e.a. (Woodpulp II) [1993] ECR I-1307, para. 75 and the following.

[5] Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie v Commission [1975] ECR 1663, para. 173-174

[6] Case 172/80 Gerhard Züchner v Bayerische Vereinsbank AG [1981] ECR 1981 para 14 and the following

[7] Case 48/69 Imperial Chemical Industries Ltd. (ICI) v Commission [1972] ECR 619, para. 65

[8]  Case 48/69 Imperial Chemical Industries Ltd. (ICI) v Commission [1972] ECRR 619, para. 66.

[9] Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, A.Ahlström Osakeyhtiö e.a. (Woodpulp II) [1993] ECR I-1307, para. 71.

[10] Joined Cases 29/83 and 30/83 Compagnie Royale Asturienne des Mines SA (CRAM) and Rheinzink GmbH v Commission [1984] ECR 1679, para. 20.

[11] Joined Cases -89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 A. Ahlström Osakeyhtiö e.a. (Woodpulp II) [1993] ECR I-1307

[12] Idem.

[13] See Opinion of Advocate General Darmon in Joined Cases -89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, A. Ahlström Osakeyhtiö e.a. (Woodpulp II) [1993] ECR I-1307,para. 96 and 196.

[14] See Joined Cases T-305/94, T-306/94, T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij NV, Elf Atochem SA, BASF AG, Shell International Chemical Company Ltd, DSM NV, DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst AG, Société artésienne de vinyle, Montedison SpA, Imperial Chemical Industries plc, Hüls AG and Enichem SpA v Commission (PVC II) [1999] ECR II-931, para. 728.

[15] Idem, para. 724-728.

[16] Case 48/69 Imperial Chemical Industries Ltd. (ICI) v Commission [1972] ECR 619, para. 83 and the following.

[17] Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, Suiker Unie v Commission [1975] ECR 1663, para. 173-174.

[18] Commission Decision EEC/86/405 of 14 July 1986, Case IV/30.320 – optical fibers,OJ L 236 [1986]

Pursuant to the Romanian Company Law (“RCL”), the transfer of shares in a limited liability company (“LLC”) towards a person not holding the quality of shareholder in the respective LLC has to be approved by the shareholders representing at least 75% of the share capital.

Following the amendments brought to RCL on 23 June 2010, the above mentioned transfer of shares is subject to a 30-day opposition period within which any prejudiced third party may file an opposition against the transfer and seek damages.

Thus, the registration of the transfer with the Trade Registry is to be performed in 2 stages.

In the first stage, the resolution of shareholders general assembly approving the transfer is submitted and published with the Romanian Official Gazette.

In the second stage, which may not occur earlier than either the expiry of the 30-day opposition period, in case no opposition has been filed, or the rejection by the competent court of law of the opposition filed by a third party, the transfer is registered with the Trade Registry and becomes opposable towards third parties.

Pursuant to these new provisions, the transfer of shares operates either upon the expiry date of the 30-day opposition period, in case no opposition has been filed, or upon the date when the decision of the court of law dismissing the opposition is communicated.

The Romanian Trade Registry has extended the application of the new provisions to transfers of participations in general partnerships and limited partnerships as well. Nevertheless, the new provisions are not applicable in case of joint-stock companies.

The above described provisions hinder the parties’ freedom in structuring share deals in limited liability companies, general partnerships and limited partnerships. Furthermore, they are contrary to the spirit of the amendments brought to RCL on 4 October 2010 by means of which the blocking effect of an opposition filed by a creditor in case of merger and spin-off was removed in order to encourage and stimulate the business and reorganization possibilities of a company (for further details on this matter please refer to our Newsletter Issue 1 on Corporate & Commercial Law in EMEIA).

From a practice perspective, different interpretations may be given to the existing legal text and several alternatives could be advanced in order for the parties to complete a share transfer in the conditions and within the time limit they are pursuing.