Opinion of the Advocate General — ECLI:EU:C:2020:639
Date: 2020-09-03
Language of the case: Romanian
Subject matter: Competition;Agreements, decisions and concerted practices;Principles, objectives and tasks of the Treaties;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary  C-308/19 — 1 
Case C-308/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
15 April 2019 
Referring court:  
Înalta Curte de Casație și Justiție (Romania) 
Date of the decision to refer:  
14 February 2019 
Appellant:  
Consiliul Concurenței 
Respondent: 
Whiteland Import Export SRL 
  
Subject matter of the main proceedings 
Appeal lodged by the Consiliul Concurenței (Competition Authority, Romania) 
with the Înalta Curte de Casație și Justiție — Secția de contencios administrativ și 
fiscal (High Court of Cassation and Justice — Chamber for administrative and tax 
matters, Romania) against the civil judgment of the Curtea de Apel București 
(Court of Appeal, Bucharest, Romania) which upheld the administrative action 
brought by Whiteland Import Export SRL and annulled Decision No 13 of 
14 April 2014 of the Competition Authority in so far as concerned that company. 
Subject matter and legal basis of the request for a preliminary ruling 
An interpretation of Articles 4(3) TEU and 101 TFEU is requested pursuant to 
Article 267 TFEU in order to establish the conformity with those provisions of 
national legislation under which only the formal action of initiating an 
investigation into an anti-competitive practice, and not subsequent actions in the 
course of that procedure, constitutes an action interrupting the limitation period. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-308/19 
 
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Question referred 
Must Articles 4(3) TEU and 101 TFEU be interpreted as requiring the courts of 
the Member States to interpret the provisions of national law governing the time-
limit on the Competition Authority’s right to impose administrative penalties in 
accordance with provisions of Article 25(3) of Regulation (EC) No 1/2003 and as 
precluding the interpretation of a provision of national law as meaning that an 
action interrupting the limitation period means only the formal action of initiating 
the investigation into an anti-competitive practice, without the subsequent actions 
taken for the purpose of such investigation falling within the same scope of the 
actions interrupting the limitation period? 
Provisions of EU law relied on 
Article 4(3) TEU and Article 101(1) TFEU 
Article 25 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the 
implementation of the rules on competition laid down in Articles 81 and 82 of the 
Treaty 
Provisions of national law cited 
Legea concurenței nr. 21/1996 (Law No 21/1996 on competition) republished in 
the Monitorul Oficial, Part I, No 742 of 16 August 2005, Article 5(1) and 
Articles 58 and 59, in the version in force at the material time. Furthermore, those 
provisions are reproduced in the version in force at the time the contested decision 
was issued and taken into account by the Court of Appeal, which became, 
following the amendment of the law and its republication in the Monitorul Oficial 
al României, Part I, No 240 of 3 April 2014, Article 5(1) and Articles 61 and 62, 
and in the current version in force after the decision of the Court of Appeal, in 
which they have become Article 5(1) and Articles 63 and 64, following the 
amendment of the law and its republication in the Monitorul Oficial al României, 
Part I, No 153 of 29 February 2016. The cited Article 5 lays down, inter alia, a 
prohibition on agreements between undertakings having the object or effect of 
restricting, hindering or distorting competition on the Romanian market, in 
particular those which directly or indirectly fix a sale or purchase price. The 
Competition Authority’s right to impose penalties for matters such as those 
alleged against the respondent is limited, under Article 58 (which became 
Article 61 and is now 63), paragraph 1, subparagraph (b), to five years which, 
under paragraph 2 of that article, starts to run from the date of the final anti-
competitive action or matter in question. Article 59 (which became Article 62) 
provided, essentially, that any action taken by the Competition Authority for the 
purpose of a preliminary examination or for the purpose of initiating an 
investigation into a specific infringement of the law interrupted the limitation 
period; such actions include in particular requests for information, the order to 
initiate an investigation and the initiation of legal proceedings. That article, which 
WHITELAND 
 
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has become, in the current version of the law, Article 64, now stipulates that ‘any 
action taken by the Competition Authority for the purpose of a preliminary 
examination or investigation of an infringement of the law shall interrupt the 
limitation period’; these actions shall include, mainly, requests for information, 
the order to open an investigation, the conduct of inspections and the 
communication of the investigation reports. 
Brief outline of the facts and the main proceedings 
1 On 7 September 2009, the Competition Authority initiated, of its own motion, 
four investigations into the market for the retail sale of food products vis-à-vis 
several companies, including the respondent Whiteland Import Export SRL. 
2 On 12 August 2014, the Competition Authority communicated the investigation 
report to the respondent and the hearings before the Authority in plenary session 
were held on 23 October 2014. On 9 December 2014, the Competition Authority 
approved, as part of its deliberations, the draft ruling and, by Decision No 13 of 
14 April 2015, found that the respondent, together with several undertakings, had 
concluded anti-competitive agreements to distort or hinder competition on the 
market by setting the sale/resale price for suppliers’ products in breach of 
Article 5(1) of Law No 21/1996 on competition and Article 101(1) TFEU, and 
imposed on them a fine of 324 484 Romanian lei (RON), amounting to 0.55% of 
the turnover in 2013. 
3 The respondent brought an action against that decision with the Curtea de Apel 
București — Secția a VIII - a de contencios administrativ și fiscal (Court of 
Appeal, Bucharest — Eighth Chamber for administrative and tax matters), 
claiming that the decision should be annulled in so far as it was concerned. The 
appellant raised primarily, together with other pleas concerning illegality which 
were not examined by the Court of Appeal, the plea relating to the time-limit on 
the right to impose the penalty.  
4 By judgment of 19 January 2016, the Court of Appeal ruled that the Competition 
Authority’s right to impose administrative penalties is time-barred and ordered the 
annulment of Competition Authority Decision No 13 of 14 April 2015 in so far as 
it concerns the appellant and freed it from payment of the fine. 
5 That court considered that the five-year limitation period laid down in 
Article 61(1)(b) of Law No 21/1996 on competition started to run from 15 July 
2009, the date on which, according to the Competition Authority’s findings, the 
final anti-competitive action was carried out by the appellant, and that that period 
was interrupted on 7 September 2009 by the order to initiate the investigation, 
thus starting a new five-year period. 
6 The Court of Appeal considered that Article 62(1) of Law No 21/1996 on 
competition, under which ‘any action taken by the Competition Authority for the 
purpose of a preliminary examination or for the purpose of initiating an 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-308/19 
 
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investigation into a specific infringement of the law’ is to have the effect of 
interrupting the limitation period, should be interpreted strictly and the actions 
listed by way of example in paragraph 2 of that provision can be interpreted solely 
as supplementing and supporting paragraph 1, and cannot be dissociated from the 
statutory definition which the legislature places on cases of interruption. 
Consequently, no such effect of interrupting the limitation period was attached to 
the Competition Authority’s actions following the initiation of the investigation.  
7 The Court of Appeal considered that Article 25 of Regulation (EC) No 1/2003 is 
not applicable since it concerns only cases in which the Commission initiates an 
investigation. 
8 That court found that the limitation period expired on 7 September 2014 so that 
the appellant’s right to impose penalties was time-barred at the time of the 
deliberation of 9 December 2014 and the adoption of the decision of 14 April 
2015. 
9 Since the Court of Appeal wrongly assumed that the date of the final anti-
competitive action carried out by Whiteland Import Export SRL was 15 July 2009 
rather than 31 December 2009, and misinterpreted the provisions on the 
interruption of the limitation period laid down Law No 21/1996, the Competition 
Authority lodged an appeal against the judgment of the Court of Appeal with the 
referring court. 
The essential arguments of the parties to the main proceedings 
10 In the view of the Competition Authority, actions which interrupt the limitation 
period are any procedural measures taken to investigate the infringement so that 
the order to initiate an investigation is not the final action which interrupts the 
limitation period. The expression ‘for the purpose of initiating an investigation’ 
contained in Article 62(1) of the law cannot be construed as referring solely to the 
issue of the order to initiate an investigation since what is meant is a genuine 
investigation into infringements of the law and the actions which interrupt the 
limitation period set out in Article 62(2) of the law are listed by way of example 
and not exhaustively; evidence to this effect is the use in Article 62(2) of the 
expression ‘mainly’ which precedes the relevant list.  
11 Therefore, the interpretation that the order to initiate the investigation constitutes 
the final action when interrupting the limitation period entails a non-uniform 
application of the relevant provisions of national and EU law. If the European 
Commission had itself investigated the infringement in question of Article 10 
TFEU, the cases of interruption of the limitation period would have been applied 
pursuant to Article 25 of Regulation (EC) No 1/2003, under which the actions 
interrupting the limitation period are those taken for the purposes of establishing 
the infringement. 
WHITELAND 
 
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12 Therefore the Competition Authority asked the national court to submit a request 
for a preliminary ruling to the Court of Justice, which is admissible since the 
attainment of the objectives of the treaty requires that the provisions of EU law be 
applied effectively and with identical effects throughout the territory of the 
European Union. 
13 In its view, the interpretation which the Court of Appeal places on the provisions 
of national law concerning the time-limit on the right to apply penalties relating to 
competition prevents EU law from having practical effect. 
14 Furthermore, it maintains that a reference to the Court of Justice for a preliminary 
ruling is useful since, following Decision No 13 of 14 April 2015, ten cases have 
been brought before the Court of Appeal, Bucharest, in five of which it was found 
that the right to apply the sanction is time-barred, whilst in the other five the 
decision under appeal has been upheld. 
15 Whiteland Import Export SRL considers that Article 25 of Regulation (EC) 
No 1/2003 applies only in the case of penalties imposed by the Commission under 
Articles 101 and 102 TFEU, and not in the case of penalties imposed by national 
competition authorities. Consequently, the request for a preliminary ruling to the 
Court of Justice must be rejected since it concerns the interpretation of certain 
provisions of national law and not EU law. Furthermore, those provisions of 
national law are not rules of substantive law which can be the subject of any 
harmonisation at EU level, but rather rules of procedural law which fall 
exclusively within the scope of national law.  
16 In the view of the respondent, the absence in Regulation No 1/2003 of penalties 
for the application by a national competition authority of Article 101 TFUE is a 
practical expression of the principle of procedural autonomy of the Member 
States. 
17 As regards penalties, it is not currently necessary to align the provisions of 
national law with those of EU law since competition authorities act solely 
pursuant to the rules available in domestic legislation.  
Succinct presentation of the reasons for the request for a preliminary ruling 
18 The referring court notes that in ruling on the application it will have to give a 
final judgment which is not, under national law, subject to any appeal. 
19 That court considers that in examining the application it will have to establish 
definitively whether, in the present case, Articles 61 and 62 of Law No 21/1996 
on competition apply to the effect set out by the Court of Appeal, that is to say 
that any action taken by the Competition Authority for the purpose of a 
preliminary examination or for the purpose of initiating an investigation into a 
specific infringement of the law interrupts the limitation period laid down in 
Article 61, or whether those articles must be applied, also in the light of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-308/19 
 
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interpretation of Articles 4(3) TEU and 101(1) TFEU, in an manner consistent 
with Article 25(3) of Regulation (EC) No 1/2003, under which the limitation 
period is interrupted by any action carried out for the purpose of the investigation 
or proceedings in respect of an infringement. 
20 Regulation (EC) No 1/2003 does not explicitly govern limitation periods as 
regards the application of penalties by the Member States’ competition authorities 
in connection with the investigations that they carry out, or the interruption of 
those periods; it is only with regard to the interruption of limitation periods falling 
within the competences of the Commission that Article 25(3) provides that any 
action taken by the competition authority of a Member State for the purpose of the 
investigation or proceedings in respect of an infringement is to interrupt the 
limitation period. 
21 On the one hand, the referring court notes that, in those circumstances, it can be 
argued that, under the principle of procedural autonomy, the Member States are 
free to regulate certain aspects associated with limitation periods in the application 
of penalties by national competition authorities. 
22 On the other, having cited in succession Article 4(3) TEU, recitals 1, 8 and 11 of 
Regulation No 1/2003, paragraphs 20 to 22 of the judgment of the Court of Justice 
of 11 June 2009, X, C-429/07, Article 35(1) of Regulation No 1/2003 and 
points 19 to 24 of the judgment of the Court of Justice of 14 June 2011, 
Pfleiderer, C-360/09, the referring court concludes that the procedural rules laid 
down by the Member States must not undermine the objective of Regulation 
No 1/2003, which is to ensure the effective application of Articles 101 and 102 
TFEU by the competition authorities and that the mechanisms for cooperation 
between the Commission, national competition authorities and the national courts 
are covered by the general principle of sincere cooperation. 
23 The referring court notes that Articles 61 and 62 (ex 58 and 59) in question were 
incorporated into Law No 21/1996 by Ordonanța de urgență a Guvernului nr. 
121/2003 (Government Emergency Order No 121/2003) for the purpose, as set out 
in the preamble thereto, of implementing the Community acquis relating to 
competition and for the provisional conclusion of the negotiations on the chapter 
on competition policy. However, as regards interruption of the limitation period, 
those articles provided that such interruption is to be effected as a result of any 
action of the Competition Authority for the purpose of a preliminary inspection or 
initiating an investigation, despite the fact that the rules of EU law refer to any 
action taken by the Commission or by the competition authority of a Member 
State for the purpose of the investigation or proceedings in respect of an 
infringement. 
24 In that context, the referring court observes that following the decision under 
appeal Articles 61 and 62 in question were amended by Ordonanța de urgență a 
Guvernului nr. 31/2015 (Government Emergency Order No 31 of 2015) and at 
present the latter of those articles, which in the meantime has become Article 64 
WHITELAND 
 
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of the law, stipulates that ‘any action taken by the Competition Authority for the 
purpose of a preliminary examination or investigation of an infringement of the 
law shall interrupt the limitation period’. The explanatory memorandum to that 
order stated that the amendments were necessary since ‘it was necessary, as a 
matter of urgency, to lay down, at national level, a legal framework that ensured 
full compliance with the Competition Agency’s obligations vis-à-vis the European 
Commission and the national authorities’ obligations under Council Regulation 
(EC) No 1/2003’, whilst as regards the amendments and the supplements made to 
Articles 61 and 62 noted that their ‘role is to avoid confusion as to the time-limit 
on the right to act and the Competition Authority’s right to impose penalties’. 
25 The issue of interpretation of the provisions of national law on interruption of the 
limitation period in conformity with the provisions of Regulation (EC) No 1/2003 
as regards the competences of the Commission is all the more important since, 
under Article 11(6) of Regulation (EC) No 1/2003, the initiation by the 
Commission of proceedings for the adoption of a decision is to relieve the 
competition authorities of the Member States of their competence to apply 
Articles 101 and 102 of the Treaty even if a competition authority of a Member 
State is already acting on a case and, under Article 25(3) of that regulation, any 
action taken by the Commission or by the competition authority of a Member 
State for the purpose of the investigation or proceedings in respect of an 
infringement is to interrupt the limitation period for the imposition by the 
Commission of fines or periodic penalty payments. 
26 The strict interpretation adopted by the Court of Appeal could lead to non-uniform 
application of the provisions on competition depending on whether the 
investigation was initiated by the Commission or by the national competition 
authority. 
27 Recalling the non-uniform practice of the courts ruling on the merits in this regard 
and finding that the conditions laid down in Article 267 TFEU and the case-law of 
the Court of Justice on the requirements for making a reference for a preliminary 
ruling are fulfilled, the High Court of Cassation and Justice notes that the question 
must be asked whether the national court may interpret national legislation 
literally or whether it is obliged under Article 4(3) TEU, where the competition 
authority applies a penalty under Article 101 TFEU, to place on national law a 
broader meaning than that which arises from the terms used by the legislature; an 
interpretation which is in conformity with Article 25(3) of Regulation (EC) 
No 1/2003.