COVID-19. Criminal liability in competition matter

Once the OMS declared the pandemic and Romania entered in the third scenario, companies started to take urgent measures so that they can make it through this delicate situation without being too affected by it.

Inevitable, the state of emergency is creating dysfunctionalities in the business branch. Alongside the individual generalized panic, these aspects can lead to embracing new ,,hot” decisions, whose purpose is to save the situation in the short term. However, in the medium and long term, the risk for these decisions to ,,translate” as attracting responsibility of those involved, even as a criminal matter, is extremely high.

Under this context, the Competition Council has mentioned very clearly that in the following period of time, it will closely watch the behaviour of every organization when it comes to anti competitive practices, having the ,,Whistleblowing Centre” platform available at any time for this exact purpose. So, as it is provided by the press release available on the Council’s webpage, the recommended measures, in accordance with those established by the CNSSU, are limited.

One of the major problems that the society has to deal with at the current time is the unjustified growth of the price on some basic products, including those ones which improve the safety of hygiene or preventing people from getting infected with coronavirus.

This aspect is a generalized one and it has already reached the table of the organs authorized worldwide( raising the price of protective masks, sanitized napkins etc)

Italy and Poland have already started an investigation on this matter and the United Kingdom has announced drastic measures against those who violate the antitrust rules.

Moreover, the authorized bodies in France have fined the Apple organization with no less than 1,1 billion euros for alleged anti competitive doings, which were supposedly done over ten years ago, says a statement of the firm. However, we must not forget that this fine comes under the context under which all of the UE states have announced that they will take drastic measures against those who violate the antitrust rules.

Besides the unjustified growth of the prices, the situations that will be strongly surveillanced, as it is shown in the Council’s  press release, are: elimination of competitors from the market,  the exchange of sensitive information( prices, comercial politics etc), trying to exclude the competition from  the market, the abuse of a dominant position.

So, as it is provided by the Penal Code, the legal entity is being responsible for the crimes done in order to accomplish their business’ main goal, in his interest or in his name.

Another significant aspect mentions that the criminal liability of the legal person does not exclude the criminal liability of the natural person who contributed to committing the same act( ex: legal or conventional representatives).

From the criminal law point of view, certainly, for a doing to be considered as a crime it is necessary to accomplish  the cumulative fulfillment of certain conditions that have to be reported in concrete terms, both from a technical point of view, respectively of the constitutive elements of the offense, as well as from the point of view of the context, respectively of the justified and / or imputability clauses. Noteworthy is the fact that the criminal complaint can be made by the Competition Council, but also ex officio, in case the criminal investigation bodies find out that an offense has been committed, as stipulated in art. 292 of the Criminal Procedure Code.