Newly enacted provisions clarifying how the Romanian Competition Council (the “RCC”) inspectors may review documents that could be covered by attorney-client privilege during unannounced inspections have entered into force. Law No. 111/2025 for the approval of Government Emergency Ordinance No. 99/2024 (the “Law No. 111/2025”) has amended Competition Law No. 21/1996 and other normative acts.
Key procedural changes
Under the latest amendments introduced by Law No. 111/2025, a company claiming attorney-client privilege for a document must offer the competition inspectors reasonable justification and supporting information without disclosing the document’s actual contents. To determine whether the privilege is valid, the inspectors may perform an immediate and limited check of the document’s external characteristics—its overall appearance, title, date, author, recipient, or subject line. This brief inspection is intended to confirm or refute the validity of the company’s arguments regarding confidentiality.
If, based on the company’s justifications and the observed external features, the inspectors conducting the dawn raid reach a definitive conclusion that the attorney-client privilege does not apply (i.e., there is a significant probability the document is not protected), they are authorized to seal and remove that document, in duplicate, for further review. The file is then referred to the President of the RCC, who decides whether the communication is indeed privileged.
Should the President reject the privilege claim, the company in question has 15 days from the date of notification to petition the administrative court to suspend the enforcement of the President’s decision. If the undertaking fails to file the suspension request within the 15-day deadline — or if the court ultimately rules against the request — the RCC may unseal the document and examine its contents in full.
Previous regime
Before the 2025 amendment, the procedure had already been revised in 2024 to correct the highly controversial version introduced by GEO 108/2023. Under the 2023 rules, if competition inspectors considered that the undertaking had not provided sufficient factual and legal arguments to justify the claim of attorney-client privilege, they were expressly entitled to read the content of the communication and make a copy of it. The 2024 revision eliminated this power: inspectors were no longer allowed to examine the content of documents claimed to be privileged. Where they could not reach a definitive conclusion and could not exclude the possibility that the communication was privileged, they were required to seal and remove the document in duplicate, with the final decision to be taken by the President of the Competition Council. However, the obligation remained for undertakings invoking attorney-client privilege to provide inspectors with an adequate justification and relevant supporting elements based on the arguments put forward, without disclosing the actual content of the communication.
CJEU case law draws a firmer line on privilege
While the new rules appear to introduce procedural safeguards, recent CJEU case law suggests that the RCC is moving in a different direction than the one established at EU level. Recent case law of the Court of Justice of the European Union further strengthens the scope of attorney–client confidentiality under Article 7 of the EU Charter of Fundamental Rights. In Orde van Vlaamse Balies (Case C-694/20), the Court clarified that this protection covers not only legal assistance linked to the right of defense, but also legal advice provided outside of contentious proceedings. It held that any interference with the confidentiality of lawyer–client communications constitutes a serious restriction of the rights under Article 7 of the EU Charter of Fundamental Rights and may only be justified in exceptional circumstances, subject to strict safeguards. This interpretation was reaffirmed and further extended in F SCS v Luxembourg (Case C-432/23), where the Court found that the same level of protection applies to legal advice in company law matters, including corporate structuring and investment transactions, even in the absence of criminal proceedings.
Legal and strategic implications for businesses
To effectively safeguard their rights under the revised procedure, companies must ensure they are operationally prepared for unannounced inspections where attorney–client communications may be at stake. This includes maintaining clear and consistent labeling of legal correspondence (including emails) and updating accordingly the internal dawn raid policies and trainings to account for the new aspects introduced by the law — including the possibility of immediate sealing and removal of the contested documents, the deadline for appealing in court the decision of the President of the Competition Council. In high-pressure inspection scenarios, the ability to identify privileged documents swiftly and to articulate their protected nature may prove critical in preventing irreversible access by competition inspectors to essential information.
