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How can companies react when a business partner takes advantage of a superior bargaining position?

September 2022

In an article focused on the mechanisms and remedies available to companies that may find themselves in contractual relations potentially characterized by an imbalance of commercial „forces”, Ana-Maria Baciu and Silvana Curteanu addressed these key discussion points that emerge from the recently published Government Emergency Ordinance no. 84/2022 on preventing speculative actions and amending supplementing certain normative acts (“GEO no. 84/2022).

Highlighted of their expert views include the following:

** Currently, the legislation in force defines the “superior bargaining position” as the situation in which a company is, provided certain market characteristics are met, in a position to favor the emergence of significant imbalances generated by factors such as

  • a specific structure of the production or distribution chain
  • vulnerability to external factors
  • perishability or seasonality
  • the specific relationship between the company and other enterprises operating in different markets.

Such relationship is evaluated based on cumulative criteria, expressly provided by law.

** At the same time, the law provides examples of actions or inactions that may represent abuse of the superior bargaining position.

** Companies that are or may be caused significant damage by such actions of their commercial partners can notify the Romanian Competition Council. In addition, this institution can investigate unfair competition practices ex officio, when there is a public interest consisting in affecting the proper functioning of the market.

Read the full article available HERE (Romanian version only).

Also, for further details on the topic, you may also read the previous article prepared by our team, titled: Consumer protection, speculative risk, unfair and anti-competitive practices – key concepts within B2B and B2C relationships are now subject to an extensive regulation in Romania, on the concepts introduced by the GEO no. 84/2022 that amends Government Ordinance no. 21/1992 on consumer protection (“Consumer Protection Act”) and Law no. 11/1991 on unfair competition (“Unfair Competition Law”). The article is available HERE.

For more on the topic, please contact Ana-Maria Baciu and Ana-Maria Corugă.

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