Law no. 117/2015 approving Government Ordinance no. 12/2014 amending and supplementing Law no. 11/1991 regarding unfair competition and other acts in the field of competition brings a number of significant changes in relevant area, including tougher sanctions for those who carry out unfair competition practices.
With this occasion, we shall recall the definition of unfair competition, according to art. 2 para. (1) of Law no. 11/1991:
“Commercial practices of the Company which are contrary to fair practices and the general principle of good-faith are forms of unfair competition“.
Although at first glance it might be considered that only legal persons can carry out unfair competition practices, Law no. 117/2015 does not introduce the definition of a natural in Law no. 11/1991 by chance.
The hijacking of clientele performed by a natural person (“any current or former employee / representative of a company or any person who commits unfair competition practices“) is an offense punishable with fines ranging between 5,000 RON and 10,000 RON.
So, the new limits of the fines that sanction natural persons for hijacking of clientele are considerably higher than previous ones, which varied between 1,000 RON and 5,000 RON.
Fines for committing this same offenses by legal persons remain between 5,000 RON and 50,000 RON.
Other regulated unfair competition practices consist of “denigrating a competitor or its products / services, achieved by communication by a company or representative / employee or spreading false information about the activity of a competitor or its products that may harm its interests “and, in very general terms “any other commercial practices which are contrary to fair practices and the general principle of good-faith that cause or may cause damage to any market participants. “
Defaming competitors is an offense punishable with fines ranging between 5,000 RON and 50,000 RON, when the deed is committed by legal persons, while individuals are punishable with fines ranging between 5,000 RON and 10,000 RON.
A novelty brought by Law no. 117/2015 refers to the possibility of any person “who has a legitimate interest” to request the competent courts (the Court of Law from the jurisdiction where the deed of unfair competition has been committed or the Court of Law from the jurisdiction from the defendants’ headquarters) to order the defendant to cease and abstain from unfair competition practices against the plaintiff, to cover economic and moral damages suffered as a result of unfair competition practices, without having to go through any formalities before the Competition Council.
Thus, “in order to prevent imminent damage, following an emergency procedure, if, after a first assessment, unfair commercial practices are discovered, the competent courts may order their termination or prohibition until the settlement of the case” as provided by art. 7 paragraph. (3) of Law no. 11/1991, as amended by Law no. 117/2015.
Moreover, “if the court ordered the termination or prohibition of unfair competition practices and the court decision ordering the measure is final, the national competition authority shall, upon request from the person who filed the Summons, publish a statement on its webpage, which must include location and other identification data of the enterprise, the committed unfair competition practices and the measures taken by the court “.
Also, the court may order the publication of the court decision in a newspaper of wide circulation, at the expense of the person who has committed the unfair competition practices.
The last novelty introduced by Law no. 117/20015 provides that, following a request from the legitimate holder of a commercial secret, the court may order measures prohibiting the industrial/commercial exploitation of the products resulting from the illicit misappropriation of the commercial secret or the destruction of these products.
Therefore, the new legal dispositions concerning unfair competition establish more drastic sanctions for natural persons, as well provide new legal means for those who have suffered from unfair trade practices committed by competitors, in order to protect themselves against said practices and recover any damages.