Transposition of the Omnibus Directive into Romanian Law
EMERGENCY ORDINANCE No 58/2022 and Decision No. 686/2022 transpose the provisions of EU Directive 2161/2019 amending Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU as regards better enforcement and modernisation of EU consumer protection rules (“Omnibus Directive”), the European legislative act which aims to improve and modernise the European legal framework for consumer protection in relation to professionals, also known as the EU legislative package “New Deal for Consumers”.
The Emergency Ordinance (OUG) no.58/2022 for the amendment and completion of some normative acts in the field of consumer protection was published in the Official Gazette (Part I) no.456 of 6 May 2022. The normative act entered into force on 28 May 2022.
The Government Decision (HG) no.686/2022 for the modification and completion of the Government Decision no.947/2000 on the way of indicating the prices of products offered for sale to consumers was published in the Official Gazette (Part I) no. 520 of 26 May 2022. The Act entered into force on 28 May 2022, with the exception of a small number of provisions which will enter into force on 5 June 2022.
EMERGENCY ORDINANCE no.58/2022 amends and supplements the following normative acts:
- Law no.193/2000 on unfair terms in contracts concluded between professionals and consumers (“Law no. 193/2000”);
- Law No 363/2007 on combating unfair practices of traders in relation to consumers and harmonising regulations with European consumer protection legislation (“Law No 363/2007”);
- Emergency Ordinance No 34/2014 on consumer rights in contracts concluded with professionals (“EMERGENCY ORDINANCE No 34/2014”).
Decision 686/2022 amends and supplements Decision No 947/2000 on the manner of indicating the prices of products offered for sale to consumers (“HG No 947/2000”).
1. Main amendments provided for by the EMERGENCY ORDINANCE No.58/2022:
· Amendments to the law on unfair terms:
A first law amended by EMERGENCY ORDINANCE 58/2022 is Law 193/2000 – unfair terms – which was last amended in 2014.
As the fines imposed on those who introduce unfair terms in contracts have been quite low (between 200 and 1,000 lei), from 28 May the amount of the fines has increased considerably, as provided for in the ordinance:
- punctually, for introducing unfair clauses in the contract (which is forbidden by law), fines between 20.000 and 100.000 lei;
- for large-scale breaches of unfair terms, fines of between 2-5% of turnover; if there is no information available on turnover, then the fine will be between €200,000 and €2 million.
A new fine is that for failure to comply with measures made final by court decisions – between 5,000 and 200,000 lei.
It is important to mention that the Executive has expressly specified that the provisions on half payment of fines within 15 days will not apply to these fines. Therefore, the amounts of the fines under the Unfair Contract Terms Act will not be reduced by the prompt payment of these fines by professionals.
Also, some illustrative and indicative criteria have been introduced in the law which are taken into account for the application of penalties:
- a) the nature, seriousness, extent and duration of the infringement;
- b) any action taken by professionals to mitigate or repair the harm suffered by consumers;
- c) any previous infringements committed by professionals, which must be recorded in the commercial record of the National Authority for Consumer Protection;
- d) the financial benefits gained or losses avoided by the trader as a result of the breach, if relevant data are available;
- e) penalties imposed on traders for the same breach in other Member States of the European Union in cross-border cases where information on such penalties is available through the mechanism provided for in Articles 11-25 of Regulation (EU) 2017/2.394;
- f) any other aggravating or mitigating factor applicable to the circumstances of the case.
According to the EMERGENCY ORDINANCE 58/2022, by derogation from the provisions of the Civil Code governing the statute of limitations, the filing of an action to establish the existence of unfair terms is imprescriptible”. And the enforcement courts will be obliged to examine ex officio or at the consumer’s request the potential unfairness of contractual terms. In this case, the enforcement challenge will also be imprescriptible.
The court is obliged to examine the unfairness of a contractual term ex officio as soon as it has the necessary legal and factual elements at its disposal. When it considers that such a term is unfair, the court does not enforce it, unless the consumer objects.
Moreover, the trader will be obliged to amend all contracts in execution if the court finds unfair terms in the contract, and to publish on its website the final court decisions.
These judgments will also be published on the ANPC website (with the concealment of personal data, of course) so that all those interested can be aware of them
· False or unverified reviews, misleading commercial practices:
Main amendments and additions to Law no.363/2007:
- the notion of “product” expressly includes digital services and digital content.
- “Hierarchy” – defined as the relative visibility conferred to products as presented, organised or communicated by the trader, regardless of the technological means used for such presentation, organisation or communication;
- ‘online marketplace’ – defined as a service using software, including a website or a particular part of a website or an application operated by or on behalf of the trader, which enables consumers to enter into distance contracts with other traders or consumers.
By EMERGENCY ORDINANCE 58/2022, new categories of misleading commercial practices were added:
- Providing results in response to an online search performed by a consumer, without clearly mentioning the existence of any paid advertising or any specific payment to ensure a higher ranking of products within the search results;
- Resale of tickets to consumers if the merchant purchased them using automated means to circumvent any imposed limitation on the number of tickets a person may purchase or any other rule applicable to the purchase of tickets;
- Claiming that reviews of a product are from consumers who have actually used or purchased the product, without taking reasonable and proportionate steps to verify that such reviews are from those consumers;
- Presenting or instructing another legal or natural person to present false reviews or recommendations as coming from consumers or misrepresenting consumer reviews or recommendations on social media platforms to promote certain products.
As it clarifies the rules on misleading marketing practices for products with a double quality standard, the rule thus explicitly states that a commercial practice involving the marketing of a product as being identical to the same product marketed in several other EU Member States, where the two products have significantly different composition or characteristics, unless this is justified by legitimate and objective factors substantiated by conclusive documentation, and which thereby causes or is likely to cause the average consumer to take a transactional decision that he or she would not have taken otherwise, is a misleading commercial practice which competent authorities should assess and address on a case-by-case basis.
Example of such legitimate and objective factors:
- national legal requirements,
- availability or seasonality of raw materials,
- voluntary strategies to improve access to healthy and nutritious food,
- the trader’s right to offer goods of the same brand in packaging of different weight or volume in different geographical markets.
In situations such as those mentioned above, traders must provide consumers with information on these situations in a way that allows them to access information on the differentiation of goods as a result of legitimate and objective factors, so that this differentiation can be identified by consumers.
– Law 363/2007 on combating incorrect practices of traders in relation to consumers and harmonization of regulations with European legislation on consumer protection;
– EMERGENCY ORDINANCE 58/2022 for the modification and completion of some normative acts in the field of consumer protection;
– HG 686/2022 for the modification and completion of the Government Decision no. 797/2000 regarding the way of indicating the prices of the products offered to consumers for sale;
– EMERGENCY ORDINANCE 34/2014 on consumer rights in contracts concluded with professionals, as well as for amending and supplementing certain normative acts.