Disloyal commercial competition and the jurisdictional responsibility in theRomanian and EU law
system
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Studies and scientific researches Edition: Economics, no. 13 (2008)
DISLOYAL COMMERCIAL COMPETITION AND THE JURISDICTIONAL
RESPONSIBILITY IN THE ROMANIAN AND E.U. LAW SYSTEM
Ţuţuianu Ion, Lecturer PhD
UNIVERSITY OF BACĂU
Abstract:
The esential element of market economy is competition. Foresights of comercial competition
are also included in the treaties made with third party states, which are not part of the EU. Besides
that, Romania has taken over several firm obligations regarding competitional policies, even by
common European agreement on the 1st of February 1993. In this agreement, the progressive
elimination of discrimination between romanian economical agents and commons is being provided
for, in matters of supplying and distribution conditions of merchandise. This is one of the few
things solved regarding this chapter.
For the existence of a functional
market economy, an undistorted
competitional environment remains the main
condition, beside the freedom for mobility of
merchandise, persons, services and capital.
Respecting the standards of the competition
ensures economical progress, protection of
consumer interests and enables competition of
products and services.”1
Any contrary action towards honest
usability in industrial activity and
commercializing of products, procedure of
work or performing services is by definition
called non-legal commercial competition2,
being in contradiction with the honest
competition, being understood as the
unconfined battle between businessmen,
fought with honest ways - meaning to use
those rules which although lead towards the
elimination of a merchant from the market,
are based on legal methods that offer
advantages in price, quality, modernity or
utility for commercial clients.3
The Romanian law system stipulates
this aspect of jurisdictional responsibility for
neglecting the rules and principles of honest
competition way before adhering to the
European Union. In 1968 the Romanian
government has ratified the Convention of
Paris for industrial property protection from
the 20th of March 1883 and revised in
1 See Aurelia Cotutiu-Georgeta Valeria Sabau,
2 Legea nr. 11/1991art.2
3 See O. Manolache, Regimul juridic al concurentei in
dreptul comunitar, editura ALL, Bucuresti, 1997.
Stockholm 19674. This one is better known
under the name of The Union Convention of
Paris (Conventia de Uniune de la Paris). The
state of Romania has adhered to the
Convention of Paris in October the 6th 1920,
the ratification being done on March the 13th
1924. The ratification made in 1968 was the
result of the revision of the 1967 convention,
by respecting the rule of ratification for each
amendment that was to come. Another
important international contract in this matter
is The General Agreement on Tariffs and
Trade (GATT) signed at Geneva 1947 and
entered into force on the 1st of January 1948.
The aim of this agreement is basically to
regulate the dumping and the subventions for
export trade. The regulations of the GATT
where completed by adopting the Anti-
dumping Code, with a last amendment at
Geneva, 12th of April 1979. The Romanian
government became a member of the GATT
agreement in 1972 and ratified it in 1972. The
Anti-dumping Code was ratified in 1980.
Furthermore we have to state that on the 12th
of April 1979 there has also been signed the
Anti-subvention and counterbalance measures
Code5, but which Romania did not sign,
taking into account the political and
economical system during that time.
4 Decretul nr. 1177/1968, in Buletinul Oficial nr. 1 din
6 ianuarie 1969 – decree nr 1177/1968, in Official
Journal nr. 1 from January the 6th 1969
5
Titus Prescure, Curs de dreptul concurentei
comerciale, Editura Rosetti, 2004, p. 33-34; Aurelia
Cotutiu-Georgeta Valeria Sabau, op. cit. p. 58-60
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But the Romanian constitution also
stipulates the government’s obligation
towards providing protection of loyal
competition.6 The 1991 Constitution
stipulated that “Romania’s economy is a
market economy”7, and the Constitution from
1993 maintains the same concept but under
the following formula:
“1. Romania’s economy is a market
economy, based on free initiative and
competition.
2. The government has to provide:
a) freedom of trade, protection of loyal
competition, the making of a favorable
environment for developing the factors of
production;
b) protecting national interests in
economical, financial and currency related
activities;
c) stimulation of national scientific and
technological research, of art and copy
right protection;
d) exploitation of natural resources, in
agreement with national interest;
e) rebuilding and protecting the
environment, as well as maintaining the
ecological balance;
f) creating the necessary conditions for a
better living;
g) setting in progress of regional
development policies in agreement with
the objectives of the European Union”.
Because the negotiations for Romania’s
adhering to the European Union where
already going on, the constitutional
specification became mandatory, taking into
6 Art. 135, alin.2, lit. a
7 Art. 134 of the 1991 Constitution had the following
content:
1. Romania’s economy is a market economy
2. The government had to provide for:
a. Freedom of trade, protection of loyal
competition, the making of a favorable
environment for developing the factors of
production.
b. Protecting national interests in economical,
financial and currency related activities;
c. Stimulation of national scientific research;
d. Rebuilding and protecting the
environment, as well as maintaining the
ecological balance;
e. Creating the necessary conditions for a
better living.
account the European integration at the end of
article nr. 135.
Comparing to what was used to be
constitutional term of Romanian economy
under the communist regime, the 1991
constitution clearly stated the splitting from
the centralized and statist economy system,
the way the communist constitutions from
19488 and 19659 where mentioning, and the
2003 constitution made an important step
towards consolidating the vision of free
economy in agreement with the economy
policies of the European Union.
It was exactly the Union Convention
from Paris that in art.1 forces the member
countries towards repression of disloyal
8 The first communist constitution stated in art. 5: “the
national economy of the People’s Republic of Romania
includes three social and economic formations: the
socialist formation, the small productions of
merchandise and the private-capitalist formation. Art.
6. The basis of the social and economical socialist
formation is the socialist property over the production
ways, which either embodies the shape of the states
property (common wealth of the people), or the shape
of the cooperative-collectivist property (the collective
farm property or the co-operative farmer
organizations).
In the national economy system exploitation of human
beings by human being is liquidated.
The socialist system, to whom the lead in the national
economy of the Peoples Republic of Romania belongs,
is the basis for the development of the country on the
way of socialism. The state of people’s democracy,
proclaiming the construction of socialism as it’s main
duty, continuously enforces and spreads the socialist
formation, and provides the uninterrupted growth of
material well being, cultural level of working class
people. Art. 13. The economical life of the People’s
Republic of Romania develops according to the
governments plan of national economy, in the interest
of building socialism, uninterrupted growth of material
and cultural well being of working class people,
enforcement of the national independency of the
country and defending ability. Art 14. In the People’s
Republic of Romania, external commerce is a state
monopoly”.
9 The second communist constitution stated the same
concepts, with a more emphasized formulation. Art. 5.
“The national economy of Romania is a socialist
economy, based on socialist property over the means of
production.
In The Peoples Republic of Romania, exploitation of
human beings by human being is forever cancelled and
the socialist principle of repartition by quantity and
quality of labor is being carried out instead.
Labor is an honorable duty for every citizen of the
country.”
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competition and towards providing effective
protection for the citizens, against disloyal
competition, stating in art. 10 and a half § 2
that market economy is a general function of
the state, and an act of disloyal competition
means any act within industrial or commercial
matter done without honest ways.
The convention foresees an obligation
towards member countries “to provide the
citizens of the union an effective protection
against disloyal competition” and to forbid
through internal measures any deeds that may
disrepute the industry, products, industrial or
commercial activity of a competitor, false
statements that can disrepute the
industry/enterprise, the products, the
industrial or commercial activity of a
competitor, as well as the indications or
statements which could be, by being used in
practice for commerce, susceptible to
confusing the public mass regarding the
origin, way of fabrication, characteristics,
abilities or quantity of goods. Therefore, the
member state of the Convention is obliged to
legally regulate the elimination of disloyal
competition, as well as whatever may distort
it from it’s licit purpose. (art. 10 and a half §
1).
Other countries have also
implemented regulations concerning disloyal
competition. In Germany for instance, where
the old civil code was regulating the
responsibility for damage, came up a special
law in 1896 for repressing disloyal
competition, in 1909 coming a new one, this
time for fighting disloyal competition. This
law received amendments in 1965 and 1969,
and on the 1st of March 1992 it has been
legislated for being spread in the whole
country.10 It was exactly in the first article
where the German law stated that “anyone
who may carry out an act of dishonest
competition during commercial interactions,
can be forced to end those and pay for
damage.”
France and Italy do not have a special
law regarding disloyal competition. Judgment
of such acts in these countries is being done
according to the common right towards
misdemeanor liability on civil level, to which
10 Yolanda Eminescu, Concurenţa neleală. Drept român
şi comparat, Ed. Lumina Lex, Bucureşti, 1995, p. 4
the stipulations of penal law, as well as
various dispositions concerning objects of
industrial property. Neither England does
have any special law against disloyal
competition. Such acts are being judged by
the penal law, and in the contrary, norms
regarding liability for illicit acts are being
applied.11
Starting with the political and
economical changes in east-European
countries through the fall of communist
regimes, it had been imposed that on this side
of the continent there should also be new
regulations regarding competition, meaning
that those countries’ statist economy should
also accommodate to free market economy.
Poland was the first post-communist country
to adopt a law concerning monopoly practice
on the 24th of February 1990, being inspired
from the German legislation. In Hungary, on
the 5th of December 1990, the law concerning
interdiction of disloyal commercial deeds
appeared, which replaced the communist law
from 1984, and Bulgaria has adopted the law
regarding protection of competition on the 2nd
of March 1991, which clearly aimed at the
disloyal competition. Czechoslovakia also
adopted in 1991 the law concerning the
protection of economical competition, and the
commercial code was completed.12
Romania used to have a tradition
regarding the legislation of dishonest
competition, which had only been interrupted
by the communist legislation. The first norms
that could serve as a support towards liability
concerning the commercial competition right,
where stated in the civil Code from 1865, art.
99813, considered to be the foundation of
civil misdemeanor liability, as a liability of
common right. In agreement with the
statements of this article, misdemeanors and
quasi-misdemeanors regarding commercial
competition where sanctioned and the damage
was solved, as to the specific misdemeanor
regulations. It has been stated about this
11 Ibidem, p. 5-17
12 Ibidem, p. 17
13 Any deed of a person that may cause prejudice to
another, forces the one who made the mistake to fix it.
This was only the translation of art. 1382 from the
French civil Code: „Tout fait quelconque de l’homme,
qui cause a autrui un dommage, oblige celui par la
faute duquel il est arrivé, a la réparer ».
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doctrinarian system that it “has the
shortcoming that it had to apply, with an
extensive interpretation, the general rules of
the liabilities born through misdemeanor and
quasi-misdemeanor, the practice of
competition as a phenomenon with
economical preponderancy, to which its
particularities are not reducible to the
jurisdictional treatment that occurs to the civil
illicit deeds.14 This legislation though, was to
be enriched on this subject matter in 1984, by
the law for itinerant commerce, in 1932 with
the disloyal competition law, which had
confusion and indication of false origin as a
primary act of disloyal competition, and in
1937 with the decree for regulation and
control over the cartels, through which
measures of origin where being regulated,
dedicated to stop monopoly agreements.15
Starting with the political and
economical changes from 1989, constitutional
and legislative measures where being imposed
in this subject matter as well, meant to direct
the free competition intercourses towards
normality and honesty. This is how normative
documents were made main and usual in
commercial competition’s area. Law no.
12/1990 pointing towards the protection of
the population against illicit commercial
activity, law that was republished in 1991
modified and completed. Law no. 15/1990
regarding state’s economic unities
reorganizations as autonomous entities and
commercial corporations; Law no. 26/1990
regarding commerce’s register with ulterior
changes and add-inns; Law no.31/1990
regarding commercial corporations with
ulterior changes and fill-inns. Law no.
11/1991 regarding the disproof of unfair
competition, modified through Law 298/2001;
Law no.64/1991 regarding invention license.
Law no. 129/1992 regarding industrial drafts
and draw’s protection; the Government’s
Ordinance no.228/1992 regarding the
protection of national producers and the intern
market of disloyal competition that results
from the import of some products at a
dumping or subsidized price as well as the
14 Octavian Căpăţână, Dreptul concurenţei comerciale.
Concurenţa onestă, Editura Lumina Lex, Bucureşti,
1992, p. 30
15 Ibidem, p.31
export at lower price than the one on the
internal market, as well as the commune
Commands of the Finance and Commerce’s
Departments no. 127/1992 and no.128/1992
emitted in the application of the
Government’s Ordinance no. 228/1992, Law
no. 21/1996 regarding competition modified
through Government’s Emergency Orderly
no. 121/2003 approved its self through low
no. 184/2004; Law no. 31/1996 regarding
state’s monopoly; Law 84/1998 referring to
brand’s and geographic indications Law no.
143/1999 regarding public assistance
modified and completed through Law no.
603/2003; Law no. 148/2000 regarding
advertising modified and completed through
Law no. 283/2002.
It must be mentioned that the
presented normative paper’s list that contains
targets regarding commercial competition is
complete and finally in that number of
normative papers that regard settlements in
competition’s area is on the increase,
especially that our country has engaged to
adopt normative paper packets that will make
it compatible with the European Union’s
directive and legislation regarding the
competition area. It must be mentioned that
not all the normative papers that contain
targets regarding competition’s settlements
refer exclusively to this problem, but the
targets are dispersed in more normative
papers that have as the central goal other
subjects than competition 16.
In Romania the intern justice paper
that clears the dumping and export’s subsidies
problems is the Government’s Ordinance
no.228/1992 regarding the protection of
national products and the intern market of
the unfair competition resulted from the
import of products at a dumping or subsidies
price as well as the export at prices lower
than on the internal market, paper that clears:
repressing measures of the unfair competition
at the export and import as well as
safeguarding measures of the national
interests regarding the import of subsidies
products, dumping prices, than measures to
prevent the complains from the countries
where Romania exports products regarding
16 Titus Prescure, op. cit., p. 32
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dumping prices as well as the contravention
sanctions that can be applied for the
commitment of disloyal competition’s facts.
The same paper was creating the Import and
Export Supervise Department that has a
department for other dumping taxes,
compensatory taxes and safeguarding
measures, and a Prices department.
According to the Constitution’s
statements, the multilateral conventions had
became intern right that Romania had adhered
or ratified in competition’s area as the
European Agreement by Romania’s
association at the European Community and
associated states ratified it through Law no.
20/1993. The interim agreement referring to
commerce and facts was related with the
commerce between Romania, the European
Economic Community and the Coal and
steel’s Economic Community ratified through
low no. 16/1993 as well as the Agreement
between the states members of the Free
Exchange European Association (FEEA) and
Romania, ratified through low no. 19/199317.
The aim of anti dumping laws is to
protect the national industries from the effect
of lower than normal value prices for import.
The main substation of the necessity of anti-
dumping settlement is that the foreign
producers can use selling at high prices on the
international protected markets to
counterpoise small prices made exports
against other market’s competition although
this practice is considered against the
competition and is sanctioned by Law no.
21/1996. The anti-dumping settlements follow
to avert this danger by establishing an
accessory tax for the imports in the dumping
regime at the price difference between the
export price and the natural value of the
product18.
If the Romanian’s economical politics
legislation including the commercial
competition has agreed with the European’s
Union legislation in the area or is considered
to harmonize this legislation, all is in
concordance with the constitutional
conditions regarding the integration into the
European Union from article 148: “1 The
adhesion of Romania at the organic
17 Octavian Căpăţână, op. cit. p. 27-28
18 Titus Prescure, op. cit. p. 131-132
conventions of the European Union, with the
aim of transferring some attributions to the
common institutions as well as exert with the
other member states of the competences stated
into this convention, it’s made through the
law adopted into the common conference of
the Deputy Chamber and the Senate with a
majority of 2/3 from all the deputies and
senators. 2. Pursuant the adhesion the
foresights of the constitutive conventions of
the European Union as well as other common
settlements having an imperative character are
preferential towards the contrary stipulations
from the internal law system to comply with
all of the adhesion conditions. The statements
of paragraph 1 and 2 are applied adequate for
the reviewed papers of the organic
conventions of the European Union as well.
The Parliament, Romania’s President,
the Government and the Judiciary guarantee
the fulfillment of the obligations that result
from the foresights of the adhesion
convention and paragraph’s 1 and 2. 5. The
Government passes on to the two Chambers
of the Parliament the drafts of the imperative
papers before this are submitted to be
approved by the European Union’s
institutions.’’
Although Romania’s Constitution
forecasted these things since 2003 it’s known
that the talks of Romania’s adhesion of the
European Union were advanced but not
final19 and the law system was already
adapted to the European adhesion, Romania
legislatively acting like a common country. It
must be remembered that the Convention for
establishing an European constitution
concluded between the member states
Government’s conference officials from
October 26, 2004 although it’s ratification
through referendum or congressmen votes
was difficult, it had Section 5, rules regarding
competition (art. III, 161-166)20, Subsection
2, Helps given by member states (art.III, 167-
169)21.
Rules of the common Convention
regarding competition are a corollary of the
common stipulations referring to free
19 To look at Tratatul privind aderarea României la
Uniunea Europeană, Editura All Beck, Bucureşti 2005
20 Ibidem, p. 454-456
21 Ibidem, p. 456-458
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circulation of products so the aim of the
stipulations is to assure a free competition
that promotes free circulation of products and
stop restriction regarding common market’s
functioning that can affect the commerce
between member states, general inters of
corporations and consumers. Rules regarding
competition are original in the stipulations
that refers at the accomplishment of an
internal market characterized by removing
obstacles in free circulation of products,
persons, jobs and capitals between member
states, a regime that guarantees the integrity
of competition, approachment of national
legislation necessary for the well function of
the common market. The members of the
European Union have the obligation, in the
making of the common objectives, that their
action for setting the economical rules should
adapt to the principle of an open market
economy in which competition is free. Any
norms aiming to stop, restrict or denaturate
competition, may result in a malfunctioning
common market or creating discontinuation in
the intra-common relationships that are
conceived and adapted towards satisfying a
market economy. If the European Union finds
that a difference between the settled
agreements through law, rules or
administrative action from a member state
misrepresents the terms of competition in the
common market and that misrepresentation
has to be eliminated, proceeding by
consulting the member states, and if this
consultation is not closed by an agreement of
elimination of the respective
misrepresentation, the Council of the
European Union decides for the necessary
directives, and the Comission, joined by the
Council of the European Union can take any
measure present in the European Union
Treaty.22
The main content of the commercial
competition in the European Union can be
found in Title VI. Common Norms
concerning competition, fiscality and
approach of legislation (chapter 1.Rules of
competition, art. 81-89) of the Treaty
22 Also see Octavian Manolache, Drept comunitar,
ediţia a IV-a, Editura All Beck, p. 296-398
establishing the European Community.23
Article 81 of the Treaty declares interdicted as
incompatible with the common market all the
agreements between enterprises, decisions
made between asociates of enterprises and
concentrated actions that may affect
commerce between states and that result in
stopping, restriction or distortion of
competition within the common market,
especially those that: directly or indirectly
settle the selling or buying prices or any other
commercial conditions; limit or control
production, market technical evolution or
investments; spread the markets or supplying
sources; apply some different conditions to
equivalent transactions with other commercial
partners, this way placeing them in a
competitional disadvantage; make agreements
upon contracts depending on the acceptance
from the other part of some extra obligations,
which throught their nature, or by commercial
habits, don’t have anything to do with such
contracts. The following paragraph stipulates
that any agreements or decisions forbidden by
the first paragraph have zero rights to exist.
Same goes for paragraph 3, that declares the
statements from the first paragraph as
inaplicable in the following cases: to any
agreement, agreement category or enterprise;
to any concentrated actions or category of
concentrated actions, that contributes to
perfection of production, distribution of goods
or to promovation of technical and
23 The actual text is in fact the strengthened text of the
Treaty establishing the Economic European
Community, signed in Rome, 25th of March 1957, set
into force on 1st January 1958. The treaty was amended
by the Single European Act , 17-28 of February 1986,
through the Treaty concerning the European Union at
Maastricht on the 7th of February 1992, by the Treaty
from Amsterdam 2nd of October 1997, as well as by the
Nisa Treaty from the 26th of February 2001, that
amends the Treaty concerning the European Union, the
institutive treaties of the European Communities and
certain auxiliary acts. See the Romanian text of the
Treaty establishing the European Union in “Documente
de bază ale Comunităţii şi Uniunii Europene, ediţia a
II-a coordonată de Valentin Constantin, Polirom, 2002,
p. 17- 148” off the Treaty concerning the European
Union (the Maastricht Treaty), p. 153-194, and of the
Amsterdam Treaty, p. 197-199, as well as the internal
Regulation of the European Unionn Council from the
31st May 1999, p. 203-216, of the internal Regulation
of the European Community Comission from the 29th
of November 2000, p. 219-228.
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122
economical progress, as long as an equitable
part of the resulting benefits will be allocated
to the consumers, and which: don’t force the
related enterprises any restrictions that are not
esential to creating objectives; that don’t give
such enterprises the option to eliminate
competition regarding a substantial part of the
discussed products.
From the analysis of the mentioned
article it can be concluded that stopping,
restriction or distortion of the competition, a
necessary condition of the commerce
affection from the member states, and not an
effect, especially because the ways of the
agreements, decisions or actions are indicated.
Therefore, as a result, the rule is one of the
development of some fair jurisdictional
relationships within the commercial circuit.
The vast majority of the agreements,
decisions or actions don’t tend to restrict
competition, without even being necessary to
apply the mentioned exceptions.
For antisocial deeds stated within the
legislation of competition, contraventional
liability has been implemented, beside the
patrimonial liability, through Law no.
11/1991, Government’s Ordinance nr. 2/2001
and Law no. 268/2002. The disluyal
competition offence results in penal liability
for the perpetrator, to whom, beside the
special dispositions, can be applied the
disopsitions of the penal procedure Code.
Penal and contraventional liability for the
same deed are excluded, yet can civil action
in disloyal competition coexist with
administrative and penal liability.
References:
[1] Prescure T., Curs de dreptul concurenţei comerciale, Editura Rosetti, 2004;
[2] ManolacheO., Manolache O., Regimul juridic al concurenţei în dreptul comunitar, Editura
ALL, Bucureşti, 1997;
[3] Eminescu Y., Concurenţa neleală. Drept român şi comparat, Ed. Lumina Lex, Bucureşti,
1995;
[4] Cotuţiu A, Sabău G.V., Drept român şi comunitar al concurenţei;
[5] Vasilescu B., Concurenţa neloială sancţionată de Legea nr.11/1991, în Revista de drept
comercial, nr.10/2007.