Introduction |
Consumer
protection was not exactly a concept that flourished during fifty years
of Romanian communism, so it was no surprise that protecting consumers
from unscrupulous merchants was not perceived as a high priority in the
early ‘90’s by Romania’s early governments. Law no. 12/1990 regarding
the protection of people against illicit commercial activities provided
sanctions only for a few illicit commercial activities. However, two
years later, as shoddy and dangerous products poured onto the market
from all over the world, causing injury and financial damage to
Romanians, the government moved to enact Government Ordinance no. 21
regarding consumer protection (hereinafter “GO 21”), which became
the first legal act to provide for a real shield for consumers against
the unfair practices of some merchants.
Although GO 21 was an important accomplishment, its provisions were
still not tough enough to provide for the hard-hitting consumer
protection that Romania’s newly emerging market required. Consequently,
other legislative instruments in the field came into force, such as: the
Consumption Code (hereinafter the “Consumption Code”), Law no.
363/2007 on combating unfair commercial practices between businesses and
consumers (hereinafter “Law 363”), as well as several other regulations
concerning: consumer contracts negotiated away from business premises,
protection of consumers in the execution and performance of distance
contracts (contracts concluded between parties in different locations
by the use of alternative means of communication such as the Internet)
and unfair terms in consumers contracts. |
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Consumers’ Fundamental Rights |
Since 1992, the competent authority in the consumer protection field has
been the National Authority for Consumer Protection (hereinafter “ANPC”),
which has territorial offices throughout the country. The ANPC
coordinates and carries out the strategy and policy of the Romanian
government with regard to the enforcement of consumer protection in
Romania, preventing and combating the practices that jeopardize
consumers’ life, health, safety or economic interests.
While the ANPC is the central authority in the consumer protection
field, GO 21 provides for the possibility to incorporate into the
protection framework certain specified nongovernmental organizations to
protect consumers’ rights and legal interests. These consumer
associations may develop and implement projects for consumer education
and information, and represent consumer interests in consultative bodies
organized at the central and local level. They may also commence actions
before competent courts in order to defend consumers’ legitimate rights
and interests.
Associations for consumer protection can be organized both at the
national level and at the local level. They are non-governmental
not-for-profit organizations, registered according to the specific law
in the area, having as sole purpose the defense of the rights and
legitimate interests of their members or of consumers in general.
GO 21 provides consumers with the following fundamental rights:
- to be protected against the risks of purchasing a product or a
service that can jeopardize life, health or safety or which can
affect their rights or legitimate interests;
- to be fully and precisely informed on the essential
characteristics of products and services so that they may take the
most appropriate decisions;
to have access to markets which provide and ensure a wide range of quality
products and services;
to receive damages for injuries generated by the lack of quality
products and services, using, to this end, the means prescribed by
law; and
- to organize themselves in associations to defend
consumer interests.
Moreover, there are certain legal rights that consumers enjoy which must
be adhered to by merchants at the time of the execution of consumer
contracts, such as:
- consumers’ freedom to take decisions, which means that
consumers are free to decide whether they want to conclude a
contract or not, while, in turn, merchants are prohibited from
imposing abusive contractual clauses into consumer contracts;
- a consumer contract must include clear and precise
provisions regarding the quality of products and services,
warranties, price or credit conditions and interest payments;
- consumers must be relieved of any obligations to pay
for products and services which have not been sought and accepted;
- consumers are entitled to receive damages for injuries
caused by products or services which do not comply with the
contractual terms;
- the price for products or services must be previously
established and it can be modified only based upon the consumer’s
consent; and
- consumers can notify consumer protection associations
and appropriate government bodies of the infringement of their legal
rights and interests as consumers and propose measures in order to
improve the quality of products and services.
Agreements between consumers and merchants must not include abusive
clauses. A clause is considered abusive if it has not been negotiated
with the consumer and if it creates an imbalance between the parties’
rights and obligations.
In case of an infringement of the quality of the product or service
described in a contract, consumers are entitled to require the seller to
remedy or replace free of charge the product or service, and claim
damages for deficiencies found within the warranty term. After the
expiration of this term, consumers may still seek to have products with
hidden defects that became apparent within the medium duration of use of
the products, be repaired or be replaced. The term medium duration of
use means that period of time within which long lasting products have to
maintain their functional characteristics. The merchant must perform all
necessary acts in order to make the product functional again, to replace
products or to remedy services within the warranty period. The
reimbursement of the price paid or the replacement of the purchased
product or remedy of the service performed is undertaken by the merchant
immediately after establishing the impossibility of using it in
situations where the malfunction is not due to the consumer. In addition
to the repair or replacement of defective products or services, the
consumer is also entitled to damages in accordance with the contractual
provisions or legal decisions.
There are certain specific legal requirements that any product or
service must accomplish, and merchants are required to comply with all
of them. In that respect, a product or service must be in accordance
with the description on its label and it must comply with all
qualitative requirements. Informing consumers of all the characteristics
of the products or services represents another essential obligation for
the manufacturer and the merchant.
The 2007 Consumption Code provides certain obligations for merchants
such as:
- to place on the market only safe products and services;
- to behave fairly in all consumer relations; and
- not to engage in unfair commercial practices.
In addition, the following acts are also forbidden: the import,
fabrication, distribution and commercialization of unsafe, false or
counterfeit products or products which can detrimentally affect
consumers’ life, health or safety; as well as conditioning a product’s
sale to consumers on the purchase of other products; or any forced sale.
The Consumption Code also provides two new rights for consumers - the
right to refuse to execute consumer contracts containing abusive
provisions; and the right to use all of the enforcement rights provided
by law. Sellers who fail to comply with the Consumption Code will be
sanctioned by the competent authorities. |
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Unfair Practices |
Law
363 became effective at the beginning of 2008. It includes new
provisions to combat unfair commercial practices between traders and
consumers and modifies a series of previous laws. Pursuant to Law 363, a
consumer is defined as any natural person or group of natural persons
organized in associations who perform activities other than commercial,
industrial, manufacturing, artisan or liberal ones. Such liberal
activities include the ones performed by lawyers, doctors or
translators.
Commercial practices developed by sellers in relation to consumers
(hereinafter “commercial practices”) mean any commercial act, omission,
behavior, measure or presentation, including advertising and sales,
performed by such traders with regard to the promotion, sale or supply
of a product or service to consumers.
An average consumer is defined as a person who is reasonably
well-informed, attentive and prudent according to prevalent social,
cultural and linguistic factors. A commercial practice is considered
unfair if it is contrary to accepted trade practices in that particular
field. Furthermore, a commercial practice is considered unfair if it has
a detrimental influence on the commercial behavior of the average
consumer with regard to a particular purchase, such practices being
always assessed from the average consumer’s point of view.
According to Law 363, unfair commercial practices are grouped into two
categories: fraudulent practices and aggressive practices. |
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Fraudulent Commercial Practices |
Fraudulent commercial practices could be actions or omissions designed
to defraud the consumer. A commercial practice could be considered
fraudulent when it contains false or misleading information, or it is
able to mislead the average consumer in their determinations regarding a
specific transaction. Such false information could involve references
to:
- the existence or the nature of the product;
- the fundamental characteristics of the product such as the production
date or the composition of a product;
- the price or the method by which it has been established; or
- the scope and content of consumers’ rights.
Moreover, a commercial practice is considered a fraudulent activity if
it has the ability to influence the decision of an average consumer to
engage in a transaction. Basically, it causes the consumer to take
actions he would not have taken were he to have been provided with all
the information regarding the transaction from the beginning. The
fraudulent activity creates confusion with regard to different products
existing on the market, thus wrongfully influencing the choices of a
consumer.
A fraudulent omission becomes an unfair trade practice when the seller
fails to transmit or communicate to an average consumer the essential
information regarding a specific product, a fact that the average
consumer needs in order to determine whether to engage in a transaction
and which fact, if known, would cause such consumer not to proceed with
the matter. Also, there is a fraudulent omission when a merchant hides
fundamental information or offers such information in an unclear,
indiscernible or equivocal way.
Law 363 requires that sale offers must contain the essential information
that the consumer needs in order to make an informed decision to
purchase a product or service. This information must include, amongst
other things, the main characteristics of the product, the
identification information of the seller, the price, and the method of
payment. The law also provides that the legal provisions regarding
commercial presentations or advertisements also present such essential
information. A list of such required representations is set forth in
Annex 2 of Law 363. |
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Aggressive Commercial Practices |
A commercial practice is considered aggressive if it restricts or is
able to restrict in a significant way the freedom of choice or the
behavior of the average consumer regarding a specific product using
pressure in order to get the consumer to perform a transaction.
The elements that help to determine if a practice is aggressive are:
- the time, place, nature and/or the term of a practice;
- if the merchant is engaged in abusive speech or conduct, or if he
threatened the consumer;
- the exploitation by the seller of a special condition which affects
the rationality of consumer; or
- any onerous or disproportionate obstacle, not provided for in the
contract, imposed by the seller. |
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Conclusion |
The consumer protection field has passed through gradual transformations
culminating in Law 363/2007. Today, consumers in Romania can rely upon
similar protections of law afforded to consumers in any EU country.
Romanians can rightfully expect that the competent authorities will
sanction merchants who fail to respect the rules set forth in the
nation’s consumer protection legislation. In the field of consumer
protection, Romania has reached a fair legislative balance between the
rights of consumers and the needs of the marketplace. |
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Editors Note: It is our policy not to mention our clients by name in
The Romanian Digest™ or discuss their business unless it is a matter of
public record and our clients approve. The information herein is correct
to the best of our knowledge and belief at press time. Specific advice
should be sought from us, however, before investment or other decisions
are made.
Copyright 2008 Rubin Meyer Doru & Trandafir, societate civila de avocati.
All rights reserved. No part of The Romanian Digest™ may be reproduced,
reused or redistributed in any form without prior written permission
from the publisher.
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