JUDGMENT OF THE COURT (Second Chamber)

21 January 2021 ( *1 )

(Reference for a preliminary ruling – Competition – Penalties imposed by the national competition authority – Limitation period – Actions interrupting the limitation period – National legislation precluding, after the initiation of an investigation, the possibility that subsequent action for the purpose of proceedings or investigation may interrupt the new limitation period – Principle that national law must be interpreted in conformity with EU law – Regulation (EC) No 1/2003 – Article 25(3) – Scope – Article 4(3) TEU – Article 101 TFEU – Principle of effectiveness)

In Case C‑308/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), made by decision of 14 February 2019, received at the Court on 15 April 2019, in the proceedings

Consiliul Concurenţei

v

Whiteland Import Export SRL,

THE COURT (Second Chamber),

composed of A. Arabadjiev (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Second Chamber, A. Kumin, T. von Danwitz and P.G. Xuereb, Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–

the Consiliul Concurenţei, by B. Chiriţoiu, C. Butacu, I. Dăsculţu and C. Pântea, acting as Agents,

–

Whiteland Import Export SRL, by D. Schroeder, Rechtsanwalt,

–

the Romanian Government, initially by C.‑R. Canţăr, O.-C. Ichim and A. Rotăreanu, and subsequently by E. Gane, O.-C. Ichim and A. Rotăreanu, acting as Agents,

–

the Luxembourg Government, initially by T. Uri and C. Schiltz, and subsequently by T. Uri, acting as Agents,

–

the European Commission, by G. Meessen and I. Rogalski, acting as Agents,

–

the EFTA Surveillance Authority, by C. Simpson, I.O. Vilhjálmsdóttir and C. Zatschler, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 September 2020,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 4(3) TEU, Article 101 TFEU and Article 25(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] ( OJ 2003 L 1, p. 1 ).

2The request has been made in proceedings between the Consiliul Concurenței (Competition Authority, Romania) and Whiteland Import Export SRL (‘Whiteland’) concerning a decision imposing a fine on Whiteland for infringement of the rules of competition law.

Legal context

EU law

3Article 23 of Regulation No 1/2003 provides that the European Commission may impose fines on undertakings and associations of undertakings for infringements of EU competition law. For its part, Article 24 of that regulation authorises the Commission to order periodic penalty payments in particular in order to compel those undertakings and associations of undertakings to put an end to infringements of that kind.

4Article 25(1) and (3) of that regulation provides:

‘1. The powers conferred on the Commission by Articles 23 and 24 shall be subject to the following limitation periods:

(a)

three years in the case of infringements of provisions concerning requests for information or the conduct of inspections;

(b)

five years in the case of all other infringements.

…

3. 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 shall interrupt the limitation period for the imposition of fines or periodic penalty payments. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which has participated in the infringement. Actions which interrupt the running of the period shall include in particular the following:

(a)

written requests for information by the Commission or by the competition authority of a Member State;

(b)

written authorisations to conduct inspections issued to its officials by the Commission or by the competition authority of a Member State;

(c)

the initiation of proceedings by the Commission or by the competition authority of a Member State;

(d)

notification of the statement of objections of the Commission or of the competition authority of a Member State.’

5Under Article 35(1) of Regulation No 1/2003:

‘The Member States shall designate the competition authority or authorities responsible for the application of Articles [101 and 102 TFEU] in such a way that the provisions of this regulation are effectively complied with. The measures necessary to empower those authorities to apply those Articles shall be taken before 1 May 2004. The authorities designated may include courts.’

Romanian law

6Article 5(1) of Legea concurenței nr. 21/1996 (Law on Competition No 21/1996) of 10 April 1996 ( Monitorul Oficial al României , Part I, No 88 of 30 April 1996), in the version prior to the entry into force of the Ordonanţa de urgenţă a Guvernuluii nr. 31/2015 (Government Emergency Order No 31/2015) (‘the Law on competition’), provides:

‘The following shall be prohibited: all agreements between undertakings, all decisions by associations of undertakings and all concerted practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition in the Romanian market or a part thereof, in particular those which:

(a)

directly or indirectly fix purchase or selling prices or any other trading conditions;

…’

7Article 61 of that law provides:

‘(1) The right of the Competition Authority to impose administrative penalties for the infringement of the provisions of this law is subject to the following limitation periods:

(a)

three years for the infringements referred to in Articles 51 and 52;

(b)

five years for the other infringements provided for herein.

(2) The limitation period for the adoption of measures by the Competition Authority shall begin to run on the day on which the infringement ceases. In the case of continuing or repeated infringements, time shall begin to run on the day on which the final anticompetitive action or conduct in question ceases.’

8Article 62 of the Law on competition provides:

‘(1) Any action taken by the Competition Authority for the purpose of the preliminary examination or for the purpose of initiating an investigation into any infringement of the law shall interrupt the limitation periods provided for in Article 61. The interruption of the limitation period shall take effect on the day on which the measure adopted by the Competition Authority is notified to at least one economic operator or to an association of economic operators which participated in the infringement.

(2) The measures which may be taken by the Competition Authority and which interrupt the limitation period are mainly as follows:

(a)

written requests for information;

(b)

the decision of the President of the Competition Authority to initiate an investigation;

(c)

the initiation of legal proceedings.

(3) The interruption of the limitation period shall apply for all economic operators or associations of economic operators which participated in the infringement.

(4) In the event of interruption of the limitation period, a new limitation period of a similar duration shall begin to run on the day on which the Competition Authority adopts one of the measures referred to in paragraph 2. The limitation period shall expire at the latest on the day on which a period equal to twice the limitation period applicable to the infringement in question has elapsed without the Competition Authority having imposed one of the penalties provided for in this law.’

9Article 64 of Law No 21/1996 on competition, in the version resulting from Government Emergency Order No 31/2015 (‘the amended Law on competition’), which replaced Article 62 of the Law on Competition, provides:

‘(1) Any action taken by the Competition Authority for the purpose of a preliminary examination or for the prosecution of an infringement of the law shall interrupt the limitation periods provided for in Article 63 [ex Article 61]. The interruption of the limitation period shall take effect on the day on which the measure adopted by the Competition Authority is notified to at least one economic operator or to an association of economic operators which participated in the infringement.

(2) Measures which may be taken by the Competition Authority which interrupt the limitation period are mainly the following:

(a)

written requests for information;

(b)

the decision of the President of the Competition Authority to initiate an investigation;

(c)

the conduct of inspections;

(d)

the communication of the investigation report.

(3) The interruption of the limitation period shall apply to all economic operators or associations of economic operators which participated in the infringement.

(4) In the event of interruption of the limitation period, a new limitation period of a similar duration shall begin to run on the day on which the Competition Authority adopts one of the measures referred to in paragraph 2. The limitation period shall expire at the latest on the day on which a period equal to twice the limitation period applicable to the infringement in question has elapsed without the Competition Authority having imposed one of the penalties provided for in this law.

(5) The limitation period for the imposition of penalties shall be suspended for as long as the decision of the Competition Authority is the subject of proceedings before a court.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

10By decision of 7 September 2009, the Competition Authority on its own initiative commenced investigations on the retail food market against several economic operators and their suppliers, including Whiteland, in order to ascertain whether those undertakings had infringed the rules of competition law. On 18 July 2012, those various investigations were joined.

11On 12 August 2014, the Competition Authority communicated its investigation report to Whiteland. On 23 October 2014, hearings were held before that authority sitting in plenary session.

12On 9 December 2014, following its deliberation, the Competition Authority drew up the minutes for the decision finding that the undertakings under investigation had infringed the rules of national competition law and Article 101 TFEU. They were accused of having concluded anticompetitive agreements between 2006 and 2009 aimed at distorting and impeding competition on the relevant market, by fixing the selling and resale price of the suppliers’ products.

13By Decision No 13 of 14 April 2015, the Competition Authority imposed fines on those undertakings (‘Decision 13/2015)’. The fine imposed on Whiteland was set at 2324484 Romanian lei (RON) (approximately EUR 513000), representing 0.55% of its turnover in 2013.

14Whiteland brought an action for annulment of Decision 13/2015 before the Curtea de Apel București (Court of Appeal, Bucharest, Romania), in so far as that decision concerned it.

15In support of its action, Whiteland argued, inter alia, that the Competition Authority’s power to impose a penalty on it was subject to the five-year limitation period referred to in Article 61(1) of the Law on competition and that, in the present case, the limitation period had expired when that national authority adopted Decision 13/2015.

16By judgment of 19 January 2016, the Curtea de Apel București (Court of Appeal, Bucharest) upheld Whiteland’s action and annulled Decision 13/2015 in so far as it concerned that company.

17After finding that the limitation period had started to run on 15 July 2009, the date on which the infringement of which Whiteland was accused had ended, that court held that the decision of 7 September 2009 to initiate the investigation had interrupted the limitation period and, therefore, caused a new limitation period to start to run, expiring on 7 September 2014, with the result the limitation period had expired when, on 14 April 2015, the Competition Authority adopted Decision 13/2015.

18The Curtea de Apel București (Court of Appeal, Bucharest) rejected the Competition Authority’s argument that the anticompetitive agreement involving Whiteland had been extended by means of an addendum until 31 December 2009, in particular because, in Decision 13/2015, the Competition Authority itself had stated that the last anticompetitive act committed by Whiteland dated back to 15 July 2009.

19Lastly, that court stated that, under a strict interpretation of the national rules governing limitation periods, the measures taken by the Competition Authority after the decision to initiate the investigation were not capable of interrupting the new limitation period and, therefore, that decision is the last action of that authority which is capable of interrupting that period. In that regard, Article 25(3) of Regulation No 1/2003 applies only to the Commission and does not govern limitation periods for the imposition of fines by national competition authorities.

20On 19 January 2016, the Competition Authority brought an appeal before the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) against the judgment of the Curtea de Apel București (Court of Appeal, Bucharest).

21The Competition Authority explained, in essence, that, contrary to what the Curtea de Apel București (Court of Appeal, Bucharest) held, any procedural step taken for the purpose of proceedings in respect of an infringement has the effect of interrupting the limitation period. In addition, the interpretation that the decision to initiate an investigation is the final action interrupting the limitation period would lead to a non-uniform application of national competition law and the competition rules of EU law since, unlike the Law on competition, Article 25(3) of Regulation 1/2003 provides that the actions interrupting the limitation period are, inter alia, those taken for the purpose of proceedings in respect of an infringement.

22As a preliminary point, the referring court observes that although the amended Law on competition now provides that any measure taken by the Competition Authority for the purpose of a preliminary examination or for the prosecution of an infringement of competition law interrupts the limitation periods, the law applicable ratione temporis to the main proceedings is the Law on competition.

23In those circumstances, that court is uncertain whether the strict interpretation of the Law on competition, as adopted by the Curtea de Apel București (Court of Appeal, Bucharest), according to which only measures taken by the Competition Authority for the purposes of a preliminary examination or the initiation of an investigation interrupts the limitation period, is compatible with Article 4(3) TEU, Article 101 TFEU and the principle of effectiveness, and whether such a strict interpretation of that national law does not lead to a non-uniform application of the provisions of competition law.

24In that regard, the referring court notes that there are two lines of case-law at national level, the first favouring a strict interpretation of the national rules governing limitation periods and the second a more flexible interpretation of those rules.

25According to the first of those two lines of case-law, Article 25 of Regulation No 1/2003 concerns only the power conferred on the Commission to impose penalties for infringements of the rules of EU competition law and, consequently, is not applicable to the Competition Authority. By contrast, according to the second line of case-law, there should be a correlation between Article 25 of Regulation No 1/2003 and the rules of national law on limitation, in view of the need for consistency between the rules of EU law and national rules, in particular where the national provisions on limitation periods transpose the EU acquis in the field of competition.

26The referring court infers from this that it must ascertain, definitively, whether the strict interpretation of Articles 61 and 62 of the Law on competition, adopted by the Curtea de Apel București (Court of Appeal, Bucharest), must be accepted or whether it is appropriate, in the light of Article 4(3) TEU and Article 101(1) TFEU, that the national provisions should be interpreted more broadly and in accordance with the requirements of EU law.

27In that context, the referring court observes that Regulation No 1/2003 does not govern limitation periods for the imposition of fines by national competition authorities and that, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the procedural rules governing actions for safeguarding rights which individuals derive from EU law.

28However, the referring court notes that national legislation should not prejudice the effective application of Articles 101 and 102 TFEU by the national competition authorities.

29In those circumstances the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘Must Articles 4(3) TEU and 101 TFEU be interpreted as:

(1)

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 the provisions of Article 25(3) of Regulation No 1/2003, and

(2)

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 anticompetitive practice, without the subsequent actions taken for the purpose of such investigation falling within the same scope of the actions interrupting the limitation period?’

Consideration of the questions referred

The first question

32Consequently, the possible relevance to the present preliminary ruling proceedings of Article 25(3) of Regulation No 1/2003 – according to which 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 of fines or periodic penalty payments – depends entirely on whether that provision is applicable to the factual situation in the main proceedings.

33It must, therefore, be found that by its first question the referring court asks, in essence, whether EU law must be interpreted as meaning that national courts are required to apply Article 25(3) of Regulation No 1/2003 to the time-barring of a national competition authority’s powers to impose penalties for infringements of EU competition law.

34In that regard, according to settled case-law, in interpreting a provision of EU law, where its wording does not expressly delimit the provision’s scope, as is true of Article 25(3) of Regulation No 1/2003 in the present case, account must be taken of the context of the provision and the objectives pursued by the rules of which it forms part (see, to that effect, judgment of 14 May 2020, Országos Idegenrendézeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU , EU:C:2020:367 , paragraph 113 ).

35As regards the context of which Article 25(3) of Regulation No 1/2003 forms part, it should be borne in mind that Article 25(1) of that regulation makes the Commission’s power to impose fines and periodic penalty payments for infringements of the competition rules subject to a five-year limitation period (see, to that effect, judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P , EU:C:2011:191 , paragraph 166 ).

36Since the wording of Article 25(1) of Regulation No 1/2003 refers exclusively to the powers conferred on the Commission by Articles 23 and 24 of that regulation, and since those articles govern only the powers available to the Commission in relation to penalties, it does not follow from the context of which Article 25(3) of that regulation forms part that Article 25(3) is applicable to national competition authorities.

37In addition, as the Advocate General observed in points 50 and 51 of his Opinion, in the decentralised system for the application of the rules of EU competition law, in which national competition authorities directly apply those rules, the determination of the limitation rules for the imposition of penalties by those authorities is a matter for Member States, subject to compliance with the principles of equivalence and effectiveness. In that context, those authorities are subject to the national rules on limitation, with the result that it is not necessary, in principle, to apply to them the limitation rules laid down at EU level and applicable to the Commission.

38As regards the purpose of Article 25(3) of Regulation No 1/2003, it should be noted that the object of Article 25 of that regulation is to introduce rules governing the time limits within which the Commission is entitled, without undermining the fundamental requirement of legal certainty, to impose fines and periodic penalty payments on undertakings which are the subject of procedures for the application of the EU competition rules.

39In those circumstances, it must be held that Article 25(3) of Regulation No 1/2003 does not lay down limitation rules relating to the national competition authorities’ powers to impose penalties.

40In the present case, the main proceedings concern the limitation rules applicable to such a national competition authority vested with the power to impose penalties in the event of an infringement, inter alia, of the rules of EU competition law, with the result that Article 25(3) of Regulation No 1/2003 is not applicable to that case.

41In the light of the foregoing considerations, the answer to the first question is that EU law must be interpreted as meaning that national courts are not required to apply Article 25(3) of Regulation No 1/2003 to the time-barring of a national competition authority’s powers to impose penalties for infringements of EU competition law.

The second question

42By its second question, the referring court asks, in essence, whether Article 4(3) TEU and Article 101 TFEU, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation, as interpreted by the national courts having jurisdiction, according to which the decision to initiate an investigation, adopted by the national competition authority, concerning an infringement of EU competition law rules, is the final action of that authority which may have the effect of interrupting the limitation period relating to its power to impose penalties and excludes any subsequent action, for the purpose of proceedings or the investigation, from interrupting that period.

43It should be noted at the outset that neither the FEU Treaty provisions on competition nor, as is apparent from the answer to the first question referred for a ruling, the provisions of Regulation No 1/2003, lay down limitation rules in relation to the imposition of penalties by national competition authorities, whether under EU law or their national law.

44Moreover, Article 35(1) of Regulation No 1/2003 expressly states that it is for each Member State to take the measures necessary to empower the national competition authorities to apply Articles 101 and 102 TFEU.

47In addition, it should be noted that, under Article 4(3) TEU, Member States are obliged not to detract, by means of national legislation, from the full and uniform application of EU law; nor may they introduce or maintain in force measures which may render ineffective the competition rules applicable to undertakings (see, to that effect, judgment of 19 March 1992, Batista Morais, C‑60/91 , EU:C:1992:140 , paragraph 11 and the case-law cited).

48That being so, it is compatible with EU law to lay down reasonable time limits for the imposition of penalties by national competition authorities in the interests of legal certainty, which protects both the undertakings concerned and those authorities. Such time limits are not liable to make it in practice impossible or excessively difficult to apply EU law (see, by analogy, judgment of 17 November 2016, Stadt Wiener Neustadt, C‑348/15 , EU:C:2016:882 , paragraph 41 ).

49Thus, national rules laying down limitation periods must be devised in such a way as to strike a balance between, on the one hand, the objectives of providing legal certainty and ensuring that cases are dealt with within a reasonable time as general principles of EU law and, on the other, the effective and efficient application of Articles 101 and 102 TFEU, in order to safeguard the public interest in preventing the operation of the internal market being distorted by agreements or practices harmful to competition.

50In order to determine whether national rules on limitation strike such a balance, all elements of those rules must be taken into consideration (see, by analogy, judgment of 28 March 2019, Cogeco Communications, C‑637/17 , EU:C:2019:263 , paragraph 45 ), which may include, inter alia, the date from which the limitation period begins to run, the duration of that period and the rules for suspending or interrupting it.

52Consequently, national legislation laying down the date from which the limitation period starts to run, the duration of that period and the rules for suspending or interrupting it must be adapted to the specific features of competition law and the objectives of applying the rules of that law by the persons concerned, so as not to prejudice the full effectiveness of the EU competition law rules (see, by analogy, judgment of 28 March 2019, Cogeco Communications, C‑637/17 , EU:C:2019:263 , paragraph 47 ).

54In the present case, the national legislation at issue in the main proceedings provides that the limitation period for penalties for infringements of competition law is five years, that that period runs from the day on which the infringement ceased, that it may be interrupted by certain actions of the national competition authority and that the limitation period is to expire at the latest on the day on which a period equal to twice the limitation period applicable to the infringement has elapsed without a penalty having been imposed.

55In addition, it is apparent from the order for reference that, according to a strict interpretation of the national rules governing limitation periods at the material time – adopted in some of the national case-law, and in particular by the Curtea de Apel București (Court of Appeal, Bucharest) in the context of the main proceedings – the decision to initiate an investigation for the purpose of proceedings or investigation in respect of an infringement of the rules of competition law is the final action of the national competition authority which may have the effect of interrupting the limitation period relating to its power to impose penalties; none of the actions subsequently taken for the purpose of the investigation or proceedings in respect of the infringement can interrupt that period, even if the taking of such forms of action would constitute an important stage in the investigation and show that authority’s willingness to prosecute the infringement.

57It is for the national court, in the light of the principle of effectiveness, to determine whether the interpretation of the national limitation rules at issue in the main proceedings, referred to in paragraph 55 above, presents, in the light of all elements of the national limitation rules at issue in the main proceedings, a systemic risk that acts constituting infringements of EU competition law may go unpunished.

58If that should prove to be the case, it would in principle be for the referring court, without waiting until the national legislation at issue is amended by legislation or by any other constitutional procedure, to give full effect to the obligations referred to in paragraph 47 above by interpreting that legislation so far as at all possible in the light of EU law, and particularly the rules of EU competition law, as interpreted by the Court in particular in paragraph 56 above, or, as necessary, by disapplying that legislation (see, see, by analogy, judgment of 5 June 2018, Kolev and Others, C‑612/15 , EU:C:2018:392 , paragraph 66 , and the case-law cited).

59In the present case, although the amended Law on competition now provides that any measure taken by the Competition Authority for the purposes of a preliminary examination or proceedings in respect of an infringement of competition law interrupts the limitation periods, it is apparent from the order for reference that that law is not applicable r atione temporis to the main proceedings and that they remain subject to the Law on competition.

63The question whether a national provision must be disapplied in so far as it conflicts with EU law arises only if no interpretation of that provision in conformity with EU law proves possible (judgment of 7 August 2018, Smith, C‑122/17 , EU:C:2018:631 , paragraph 41 ).

64However, in the present case, it is apparent from the order for reference that such an interpretation appears possible, which it is, however, for the referring court ultimately to ascertain. Since, as has been pointed out in paragraph 24 above, that court itself has stated that there were two lines of case-law at national level, the first favouring a strict interpretation of the national rules governing limitation periods and the second a flexible interpretation of those rules, it follows that that court has a sufficiently broad discretion as regards the interpretation which it may give to the national provisions at issue in the main proceedings.

65In the light of the foregoing considerations, the answer to the second question is that Article 4(3) TEU and Article 101 TFEU, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation, as interpreted by the national courts having jurisdiction, according to which the decision to initiate an investigation, adopted by the national competition authority, concerning an infringement of EU competition law rules, is the final action of that authority which may have the effect of interrupting the limitation period relating to its power to impose penalties and excludes any subsequent action, for the purpose of proceedings or investigation, from interrupting that period, where it becomes apparent, having regard to all elements of the limitation rules at issue, that such an exclusion presents a systemic risk that acts constituting such infringements may go unpunished, which it is for the referring court to verify.

Costs

66Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

1.EU law must be interpreted as meaning that national courts are not required to apply Article 25(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] to the time-barring of a national competition authority’s powers to impose penalties for infringements of EU competition law.

2.Article 4(3) TEU and Article 101 TFEU, read in the light of the principle of effectiveness, must be interpreted as precluding national legislation, as interpreted by the national courts having jurisdiction, according to which the decision to initiate an investigation, adopted by the national competition authority, concerning an infringement of EU competition law rules, is the final action of that authority which may have the effect of interrupting the limitation period relating to its power to impose penalties and excludes any subsequent action, for the purpose of proceedings or investigation, from interrupting that period, where it becomes apparent, having regard to all elements of the limitation rules at issue, that such an exclusion presents a systemic risk that acts constituting such infringements may go unpunished, which it is for the referring court to verify.

[Signatures]

( *1 ) Language of the case: Romanian.