By Sorin Strătulă, Managing Partner
Romanian legislation on consumer protection is split into two categories: general and specific.
General legislation in Romania
The general consumer protection legislation is represented by:
■ Law no. 296/2004 regarding the Consumer Code (further on referead to as the „Consumer Code”);
■ Government Ordinance no. 21/1992 regarding Consumer Protection (further on referred to as „GO 21/1992”).
Please find below a very brief presentation of the main obligations that enterprises have in dealing with consumers, in terms of the general legislation mentioned above.
a) obligation to respond for current and future damages caused by the defective products, as well as for damages that are the cumulative result of a defective product and an action or an omission of a third party;
b) obligation to introduce on the market safe products only and, if the normative acts so stipulate, the products must be tested and/or certified;
c) obligation to introduce on the market only products that meet the declared or the prescribed conditions;
d) obligation to stop deliveries or to withdraw from the market or from the consumers the products that have been verified by state authorities or by their own specialists, who have found lack of the prescribed or declared characteristics or that could affect consumers’ life, health or security, if such measure represents the single one that may lead to non-compliances elimination.
e) obligation to ensure, in the course of production, sanitary conditions in accordance with sanitary regulations.
f) obligation to inform the consumers – all enterprises have the obligation to provide the consumers with all information needed for them to express a valid consent at the conclusion of the contract, and in order to proper enforce the obligations assumed. Mainly, the manufacturers/importers must inform the consumers about the product name and / or trademark of the manufacturer, quantity and, where appropriate, the validity / date of minimum durability or deadline/durability, the average duration of use, the main technical and qualitative features, composition, additives used, possible risks foreseeable conditions of use, handling, transportation, storage, preservation or storage, contra-indications.
g) obligation to assure product safety and to offer genuine products; according to the Consumer Code, the import, manufacture, distribution and marketing of counterfeit or fake, dangerous or which can affect the life, health or safety of consumers are prohibited. Also, product packaging must ensure the integrity and protection of their quality.
Special legislation in Romania
Special legislation covers particular areas of consumer protection, among which we will very briefly present below the laws governing the:
■ protection of consumers against unfair terms of contracts with enterprises (according to Law 193/2000);
■ consumer protection in distance contracts and contracts negotiated away from business premises (according to GEO 34/2014);
■ guarantees for the conformity of products (according to Law no. 449/2003 on the sale of goods and associated guarantees – „Law 449/2003”);
■ fight against the unfair preactices of enterprises in relation with the consumers (according to Law 363/2007);
■ protection against misleading and comparative advertising (according to Law no. 158/2008 on the misleading and comparative advertising – „Law 158/2008”).
A summary of the main obligations of enterprises, in the particular fields of consumer protection, is presented herein below:
a) Any contract between professionals (enterprises) and consumers for the sale of goods or services shall include clear, unequivocal contractual terms, which do not require any special expertise or knowledge for their understanding.
Under Law 193/2000 a clause is regarded as unfair if it meets the following conditions:
– It was not negotiated directly with the consumer (a contractual term will be deemed not negotiated directly with the consumer if it was determined without giving the consumer the possibility to influence its nature, such as pre-formulated standard contracts or the general conditions of sale applied by enterprises on the relevant product or service market);
– By itself, or together with other provisions of the contract, shall, to the detriment of the consumer and contrary to the requirements of good faith, create a significant imbalance between the rights and obligations of the parties.
Unfair terms contained in the contract and found either personally or through authorized bodies in law will not take effect on the consumer, and the contract will be further on performed only with the consumer’s consent, to the extent that, upon removal of those clauses, the contract is still able to be performed.
Most recent regulation in the area of distance contracs and contracts concluded outside the business premises was established through the GEO 34/2014, which stipulates a series of additional particular obligations of enterprises, among which we mention:
b) Enterprises must provide complete information to consumers in the pre-contractual stage.
Besides the basic information to be provided and under general laws, in distance contracts and in those concluded away from business premises, the obligation to inform is extended.
Among the additional information to be provided in a clear, readable and understandable way, we mention, by example: telephone number, fax number and electronic mail address at which the enterprise can actually be contacted in order to enable consumers to quickly contact the economic agents and communicate with them effectively; existence and conditions of after sale service and commercial guarantees; duration of the contract or conditions of termination of the contract and applicable penalties; where there is a right of withdrawal, conditions, limits and procedures for exercising those rights etc.
c) Enterprises must ensure the consumers’ right to withdraw from these contracts
The consumers have a period of 14 days to withdraw from a distance contract or from a contract concluded away from business premises, without having to justify their decision to withdraw and without incurring any costs, other than the direct cost of returning the products.
d) Limitation and transparency of costs incurred by consumers.
GEO 34/2014 prohibits enterprises from charging fees on consumers, for using a specific means of payment, that exceed the actual cost the enterprise has to pay for the use of such methods of payment.
e) Guarantee for the conformity of products. The obligations around guaranteeing the conformity of products are regulated by Law no. 449/2003, according to which the seller is obliged to deliver consumer products that are in conformity with the sale purchase contract. In case of lack of conformity the consumer has the right to require the seller to repair or replace the product, free of charge, or to receive appropriate price reduction, or to ask for termination of the contract related to the respective product.
The guarantee is legally binding on the offeror, under the conditions specified in the warranty statements and the related advertising. Contractual clauses or other agreements reached between the seller and the consumer before the lack of conformity is known by the consumer and notified to the seller, that limits or removes, directly or indirectly, consumers rights provided by this Law, are null and void.
f) Fight against the unfair commercial practices of enterprises in relation with the consumers. Law 363/2007 aims at a better functioning of the market and at ensuring a high level of consumer protection, by regulating the commercial practices which may affect the economic interests of consumers.
Under Law 363/2007 a commercial practice is considered as unfair if:
– it is contrary to the requirements of professional diligence;
– it distorts, or it is likely to significantly distort, the economic behavior of the average consumer that is targeted by that practice, or of the average member of a group of consumers, when a commercial practice is addressed to a certain group of consumers.
g) Misleading and comparative advertising. The purpose of Law 158/2008 is to protect consumers against misleading advertising and to regulate the conditions under which comparative advertising is permitted.