RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q4/ROM/1
2 March 1999
(99-0794)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  French
REVIEW OF LEGISLATION ON ENFORCEMENT
ROMANIA1
The present document reproduces the introductory statement made by the delegation of
Romania, the questions put to it and the responses given in the review of legislation on enforcement at
the Council's meeting of 17-21 November 1997.2
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I. INTRODUCTORY STATEMENT
Japan has put questions to Romania on enforcement.  Before replying to these questions, in
conformity with the agreed working procedure, I should like to make some introductory remarks
concerning the review of enforcement and the rele vant regulations in Romania by the TRIPS Council.
Romania replied to the Check-List of Issues on Enforcement3 in the same spirit in which it
notified its intellectual property laws and regulations and it is participating in the review process
without prejudice to its right to utilize the transitional period for application of the TRIPS Agreement.
The replies to the Check-List provide an overview of the relevant elements concerning enforcement
contained in the general legislation (for example, the Civil Code, the Criminal Code, and the relevant
Codes of Procedure), and in the special legislation on certain types of rights (for example, copyright
and related rights, patents, industrial designs, topographies of integrated circuits).
The Romanian delegation believes that the information given in Romania's replies to the
Check-List meets the objective of transparency fixed in the TRIPS Agreement and at the same time
shows that the Agreement's requirements on respect for rights are already covered to a large extent in
Romania's legislation.  We are nevertheless aware that some elements are missing. This is the case,for example, for border measures;  the preparation of draft regulations is already well advanced and it
is hoped that the adoption procedure will be speedy so that these measures can be implemented before
the end of the transitional period allowed under the TRIPS Agreement.  In preparing these draft
regulations, Romania took into account the relevant requirements in the TRIPS Agreement and the
experience gained by certain Members, as well as the European Union.  Romania will notify theseregulations to the TRIPS Council as soon as they have been approved.  The same applies to other
intellectual property regulations that are currently before Parliament, for example, the new law on
trademarks and geographical indications.
                                                     
1 As regards laws and regulations relevant to the areas under review and notified by Romania under
Article 63.2 of this Agreement, reference is made to  documents IP/N/1/ROM/1 (A nnex II) and IP/N/6/ROM/1.
2  The minutes of this meeting are contained in document IP/C/M/16.
3  Document IP/N/6/ROM/1.IP/Q4/ROM/1
Page 2
The preparation of Romania's replies to the Check-List of Issues on Enforcement and to the
questions from Japan has been facilitated by the knowledge and expertise Romania has gained as a
result of the technical assistance programmes from which it has benefited in recent years.  The
Romanian Delegation did not take the floor when the developed countries and international
organizations submitted their reports on technical assistance under another item of the TRIPSCouncil's agenda, but we would like to seize the opportunity to thank them warmly.  The delegation of
Romania would like to express its particular gratitude to the United States of America, the
European Union and its member States for the technical assistance given to it in recent years in the
area of intellectual property.  We are confident that this technical assistance will continue and be
strengthened.
4
II. REPLIES TO QUESTIONS POSED BY JAPAN
1. Please indicate the "competent authorit ies" stipulated in Article 51 of the
TRIPS Agreement.
The legislation in effect does not contain any "special requirements related to border
measures", but a draft law on the responsibilities of the customs authorities for enforcing intellectual
property rights is being finalized.  This draft contains provisions that are in conformity with those in
the TRIPS Agreement and Council Regulation (EC) No. 3295/1994 of the European Communities.
2. Please explain whether "proceedings leading to a decision on the merits of the case"
stipulated in Article 55 of the TRIPS Agreement, are judicial or administrative.
See the reply to question 1.
3. Are there any ways other than  the application stipulated in Articles 51 and 52 of the
TRIPS Agreement (hereafter referred to as "the Application") which enable a right holder to
request the competent authorities to suspend th e release of the goods which infringe IPRs or
which are suspected to infringe IPRs?
See the reply to question 1.
4. Please explain what term your country regards as "a reasonable period within which the
competent authorities shall inform the applic ant whether or not they have accepted the
Application" stipulated in Article 52 of the TRIPS Agreement.
See the reply to question 1.
5. Please explain the term during which the application is effective.
See the reply to question 1.
6. Please explain whether a right holder is obliged to pay any fees to lodge the Application.
See the reply to question 1.
                                                     
4 The replies to the questions on enforcement of intellectual property rights do not include trademarks
and geographical indications because a new law on these aspects will enter into force shortly.IP/Q4/ROM/1
Page 3
7. Please indicate provisions of laws and or dinances which prescribe the "proceedings
leading to a decision on the merits of the case " stipulated in Article 55 of the TRIPS Agreement.
And please summarize their contents.
See the reply to question 1.
8. Please explain the specific procedure, if an y, to be applied to the goods which are not
evident whether or not they infringe IP Rs, in Article 55 of the TRIPS Agreement.
See the reply to question 1.
9. Please explain the responsibility that th e competent authorities and other related
authorities take to the right holders when they fail to suspend the release into free circulation of
goods which infringe IPRs with regard to the suspension based on the Application or the
Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
See the reply to question 1.
10. Please explain the responsibility that th e competent authorities and other related
authorities take to the right holders when they examine goods which infringe IPRs and
nevertheless release them into free circulation with regard to the su spension based on the
Application or the Ex Officio Action stipul ated in Article 58 of the TRIPS Agreement.
See the reply to question 1.
11. Please explain the responsibility that th e competent authorities and other related
authorities take to the importer s when they suspend the release into free circulation of goods
which do not infringe IPRs with regard to the suspension based on the Application or the Ex
Officio Action stipulated in Article 58 of the TRIPS Agreement.
See the reply to question 1.
12. Is the right holder informed of identities of the importers and consignors when the
competent authorities "suspend" the goods which infringe on IPRs or which are suspected to
infringe IPRs, as well as the case where the ri ght holder is informed of identities of the
importers and consignors stipulated in Article 57 of the TRIPS Agreement?
See the reply to question 1.
13. Please explain the measures to protect conf idential information in the course of the
inspection stipulated in Article 57 of the TRIPS Agreement.  And please indicate provisions of
laws and ordinances which prescribe such measures.
See the reply to question 1.
14. Please explain the procedures of detentions and seizures to be ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement
See the reply to question 1.
15. Please explain the procedures to appeal aga inst any decisions ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement.
See the reply to question 1.IP/Q4/ROM/1
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16. Please explain the basis for calculating the s ecurity or equivalent assurance stipulated in
Article 53 of the TRIPS Agreement that the co mpetent authorities may require an applicant
when they suspend the relea se into free circulation.
See the reply to question 1.
17. Please explain who shall pay the cost of detentions based on Article 51 of the TRIPS
Agreement or destruction stipulated in Article 59 of the TRIPS Agreement.
See the reply to question 1.
18. Please explain what kind of cases are regar ded as "the exceptional circumstances" in
which the competent authorities may allow re-exportation of counterfeit trademark goods
stipulated in Article 59 of the TRIPS Agreement.
See the reply to question 1.
19. Please indicate names of laws and ordinances and their provisions in which the
suspension of the release of goods which infringe  IPRs or which are suspected to infringe IPRs
is prescribed, as stipulated in Article 51 of the TRIPS Agreement.
See the reply to question 1.
20. Please indicate which IPRs are protected based on the Application by a right holder.
See the reply to question 1.
21. Please explain kinds and contents of documents which shall be provided by the applicant
to lodge the Application.
See the reply to question 1.
22. Please explain the remedies which the judicial authorities order regarding a copyright
and other related rights, patents, industrial designs, trademarks and layout-designs
(topographies) of integrated circuits, including injunctions, damages, expenses, destruction or
other disposal of infringing goods and ma terials/implements for their production.
See the reply to question 5 in the Check-List of Issues on Enforcement.5
23. Please explain whether the amount of dam ages which judicial authorities order the
person who infringes IPRs to pay the right holder is adequate compensation for the injury theright holder has suffered, and what criteria and the way for calculation to decide the amount for
compensation.
Under Article 999 of the Civil Code, a person who causes injury must provide full
compensation.  This means that the perpetrator of the injury must not only cover the actual damage
(damnum emergens ) but also the profits lost by the injured party ( lucrum cessans) , as a result of the
action that caused the injury.
According to judicial practice, the criterion for fixing the amount of damages is the extent of
the injury.  Damages are fixed by the judge in relation to the injury suffered by the victim and in the
light of the evidence presented.
                                                     
5 Document IP/N/6/ROM/1.IP/Q4/ROM/1
Page 5
24. Please explain whether the amount of dam ages which judicial authorities order the
person who infringes IPRs to pay the right holder includes investigations expense and
appropriate attorney's fees.
After the injury has been caused, the person whose rights have been infringed may request the
courts to order that the offender pay the costs of the case (legal stamp duties, lawyers' fees, the cost ofprocuring evidence).  According to Article 274 of the Code of Civil Procedure, the party which loses
the case will be obliged, if so requested, to pay the cost of the proceedings.
If costs have been requested, but the court fails to take a decision, the party in question may
request payment of the costs in a separate petition.
25. Please describe to what extent the amount of damages has been estimated by courts
since 1 January 1996.  Please explain whether th e amount of damages is adequate compensation
for the injury the right holder has suffered, and how such civil procedures are consistent with
Article 45 of the TRIPS Agreement.
(a) The judicial authorities do not have any statistical information concerning the
amount of damages during the period in question;
(b) The provisions of Article 45 of the TRIPS Agreement are covered by the existing
domestic laws and regulations.
See the replies to questions 23 and 24 above and Romania's reply to question 5.B in the
Check-List of Issues on Enforcement.
6
[Follow up question from Japan]
With respect to Romania's response to qu estion 25 from Japan and Romania's answer
to question 5 in the Checklist (IP/N/ROM/1) on damages for the infringement of IPR, pleasedescribe the way of calculating "the actual damage and the non-realized benefit of the injured
party".  And, please explain whether or not "the actual damage and the non-realized benefit of
the injured party" include the IPR holder's lost profits, infringer's profits from the unlawful
utilization of the IPR or reasonable royalty for utilization of the IPR.
Under Article 998 of the Civil Code, a person who causes injury must provide full
compensation.  This means that the perpetrator of the injury must not only cover the actual damage
(damnum emergens ) but also the profits lost by the injured party ( lucrum cessans) , as a result of the
action that caused the injury.
According to judicial practice, the criterion for fixing the amount of damages is the extent of
the injury.  Damages are fixed by the judge in relation to the injury suffered by the victim and in the
light of the evidence presented.
The calculation of the actual losses and non-realized benefits of the injured party is therefore
based on any type of evidence.
The Civil Code provides that:
− A party that makes a proposal to the court must provide evidence (Article 1169);
                                                     
6 Document IP/N/6/ROM/1.IP/Q4/ROM/1
Page 6
− the evidence must be in writing, there must be witnesses, presumptions and a
confession by the defendant (Article 1170).
The injury is estimated using any type of evidence and the actual prejudice suffered is
covered in the first place by the profits earned by the infringer who has unlawfully utilized intellectual
property rights;  if these profits do not cover the injury, the infringer is liable to the full extent of hisassets.
26. Please explain the kinds and amounts of penalties (imprisonment or fines) in criminal
cases.  Please also explain whether these penalties are consistent with Article 61 of the TRIPS
Agreement which requires provisions for a sufficient deterrent, consistently with the level of
penalties applied for crimes of a corresponding gravity.
Types of infringement of rights and respective penalties:
Patents
(1) Unlawful assumption of the status of inventor (Article 58 of Law No.64/1991);
Penalty:  term of imprisonment of six months to two years or a fine of lei 50,000 to
lei 100,000.
(2) The offence of infringement (Article 59 of Law No. 64/1991);
Penalty:  term of imprisonment of three months to two years or a fine of lei 50,000 to
lei 100,000;  confiscation of the counterfeit goods.
(3) The offence of disclosing an invention (Article 60 of Law No. 64/1991);
Penalty:  term of imprisonment of three months to two years or a fine of lei 50,000 to
lei 100,000.
Industrial designs
(1) Unlawful assumption of the status of crea tor of an industrial design (Article 41 of
Law No. 129/1992);
Penalty:  term of imprisonment of six months to two years or a fine.
(2) The offence of infringement (Article 42 of Law No. 129/1992):
Penalty:  term of imprisonment of six months to two years or a fine.
(3) The offence of disclosing an industrial design (Article 43 of Law No. 129/1992);
Penalty:  term of imprisonment of three months to two years or a fine.
According to Article 63.3 of the Criminal Code, where the law prescribes a fine without
determining the amount, as an alternative to a term of imprisonment exceeding one year, theminimum special amount is lei 350,000 and the maximum lei 30 million.IP/Q4/ROM/1
Page 7
Topographies of integrated circuits
The offence of infringement specified in Article 40 of Law No. 16/1995 is punished by a term
of imprisonment of three months to three years or a fine of lei 500,000 to lei 1 million.
Another penalty that may be applied is the confiscation of the counterfeit goods.
Copyright and related rights
Concerning copyright and related rights as well as the different types of infringement of these
rights, see the reply to question 21.A in the Ch eck-List of Issues on Enforcement. 7  See also
the reply to question 5.B in the same document.
As they are set out in the legislation in effect, the penalties are dissuasive (particularly the
alternative penalty of imprisonment).
The criteria used to adapt the penalty to the of fence are set out in the Criminal Code for all
offences, namely:  the extent of the social threat posed by the offence committed, the offender himself
and the circumstances that attenuate or increase criminal liability (Article 72.1 of the Criminal Code).
III. REPLIES TO QUESTIONS POSED BY SWITZERLAND
1. Please explain whether international treaties which contain detailed provisions
addressed to the (judicial) authorities and not to the State itself are considered as self-executing
in your system? If not, when there is a di vergency between the intellectual property
legislation/practices and the international agreement in your country, does the latter
automatically prevail? If not, please explain the means allowing your country to fulfil the
international obligations?  Please ci te the relevant texts or jurisprudence.
According to Article 11 of Romania's Constitution "the Romanian State is obliged to fulfill
scrupulously and in good faith the obligations incumbent upon it under treaties to which it is party.
Under the law, treaties ratified by Parliament form part of domestic law".
This means that the provisions of international treaties that Romania has signed have the same
legal status as domestic rules of law without it usually being necessary to incorporate them into
domestic law.
This principle is also set out in Article 63 of Law No. 105/1992 regulating relations under
private international law, according to which "copyright and the industrial property rights of foreign
natural and legal persons shall be protected in Romania in conformity with Romanian law and with
the international conventions to which Romania is party".
Conversely, if a treaty contains provisions that differ from domestic law or oblige the
signatory to adopt certain domestic regulations, it naturally becomes necessary to incorporate the
treaty's rules into the domestic legal structure.
2. Article 55 of the TRIPS Agreement provides that "… in appropriate cases, this time
limit (of ten days) may be extended by another ten working days".  Is such time extension
foreseen in your laws?  If yes, please cite the relevant provisions.  If not, please explain how an
applicant can avail himself of this possibility as provided by the TRIPS Agreement?
See Romania's reply to questions 15-19 in the Check-List of Issues on Enforcement.8
                                                     
7 Document IP/N/6/ROM/1.
8 Document IP/N/6/ROM/1.IP/Q4/ROM/1
Page 8
IV. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
1. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated-circuit layout design, and trade secret
enforcement for each of the years 1996 and 1997, including the number of cases filed;
injunctions issued;  infringing products seized ;  infringing equipment seized;  cases resolved
(including settlement);  and the amount of damages awarded.
At the moment there is no mechanism for the systematic collection of statistical data related
to the aspects mentioned in the question.
According to statistical information collected on an ad hoc basis, although it is not broken
down by type of intellectual property, the situation is the following:
Cases brought before
the courtsCases resolved Petitions admitted
1996 249 107 41
I – III quarters
1997206 60 16
2. Please provide statistical information related  to criminal enforcement in the area of
copyright piracy and trademark infringement fo r each of the years 1996 and 1997, including the
number of raids, prosecutions, convictions, and th e amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actu ally served or was suspended)
and any other information establishing that your criminal system operates effectively to detercopyright piracy and trademark counterfeiting.
The information given below only concerns copyright and was collected on an ad hoc basis as
there is no systematic collection mechanism, as al ready mentioned in the reply to the first follow-up
question from the United States.
The following statistical information has been provided by the authorities responsible for
applying the law, namely, the Ministry of Justice, the Ministry of the Interior – General Inspectorate
of Police, and the Romanian Copyright Office – the specialized Government body that has nationwideauthority for monitoring and controlling the application of the copyright law:
June 1996 –December 1997
Number of controls carried out 470
Proceedings brought 136
Amount of the fines lei 800 million
Due to the way in which they were collected, the statistics above may only be partial.  It is
intended to set up a mechanism for systematic collection, but special assistance from Membersinterested, including the necessary resources, would be welcome.IP/Q4/ROM/1
Page 9
3. With respect to Romania's answers to Check-List questions 15 to 199, please describe
the time-frame the Government of Romania exp ects for adoption of the bill described therein.
The intention is that the adoption process for the law on border measures should be as speedy
as possible so that the measures can be put in place before the expiry of the transitional period
allowed under the TRIPS Agreement.
                                                     
9 Document IP/N/6/ROM/1.IP/Q4/ROM/1
Page 10
ANNEX
Criminal Code
Article 63
[…]
"Where the law provides for a penalty in the form of a fine without determining the amount,
as an alternative to a term of imprisonment of up to one year, the minimum special amount of the fine
shall be lei 250,000 and the maximum lei 15,000,000, and where the law provides for a penalty in the
form of a fine as an alternative to a term of imprisonment exceeding one year, the special minimum
amount shall be lei  350,000 and the maximum lei 30,000,000."
Article 72
"When defining and applying penalties, the provisions in the general part of this Code, the
limits of the penalty fixed in the special part, the extent of the social threat posed by the offencecommitted, the offender himself and the circumstances that attenuate or increase his criminal liability
shall be taken into account."
[…]
Civil Code
Article 999
"A person shall be responsible not only for injury caused by his action, but also for injury
caused by his negligence or imprudence."
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