New provisions on online markets:
Several amendments were also made in the EMERGENCY ORDINANCE no.34/2014 on distance contracts, digital goods and services.
For example, additional specific information requirements for contracts concluded on online markets, the right of withdrawal in the case of certain service contracts, aspects that will ensure a uniformity of consumer rights online with those who physically buy goods and services.
According to the new provisions, online marketplace = any service using software, including a website or part of a website or an application operated by or on behalf of a trader, which allows consumers to enter into distance contracts with other traders or consumers.
Thus, in the EMERGENCY ORDINANCE No 34/2014 new categories of information considered essential for products offered on online marketplaces have been introduced, information that must be made available pre-contractually:
– information whether the third party offering the products is a trader or not, based on the declaration of that third party to the online marketplace provider;
– all product reviews, indicating whether and how it guarantees that the published reviews come from consumers who have actually used or purchased the product;
– where consumers are offered the possibility to search for products offered by different traders or consumers on the basis of a search in the form of keywords, phrases or other input data, regardless of where the transactions are ultimately concluded, general information, made available in a specific section of the online interface which is directly and easily accessible from the page where the search results are presented, is considered essential, on the main parameters for establishing the hierarchy of products presented to the consumer as a result of the search performed and on the relative importance of these parameters, in relation to other parameters, representing general criteria or processes or any specific signals incorporated in the algorithms or in any other adjustment or downgrading mechanisms used in connection with the hierarchy of results; these provisions do not apply to providers of online search engines.
Under EMERGENCY ORDINANCE 58/2022, consumers affected by unfair commercial practices are entitled to remedies to eliminate all effects of those unfair practices, free of charge, as follows:
- replacement, price reduction or termination of the contract and refund of the value of the product or service, as appropriate;
- compensation for the damage suffered by the consumer;
- if defects are found within the first 30 days of purchase of the product or service, the replacement is ordered directly.
- The following illustrative circumstances are taken into account in determining the remedies provided for above:
- the seriousness and nature of the unfair commercial practice;
- the damage suffered by the consumer.
The remedies set out above do not preclude the application of other remedies available to consumers, such as EMERGENCY ORDINANCE No 140/2021 on certain aspects of contracts for the sale of goods and EMERGENCY ORDINANCE No 141/2021 on certain aspects of contracts for the supply of digital content and digital services.
Tougher sanctioning regime:
A much tougher penalty regime has been introduced for traders’ use of unfair commercial practices.
According to Article 15 of Law 363/2007, amended by URGENT ORDER 58/2022, the use of unfair commercial practices by traders is prohibited, constitutes an offence and is sanctioned as follows:
a) with a fine from 10.000 lei to 100.000 lei, for the use of unfair commercial practices defined in Article 4 paragraph (1) and (2);
b) with a fine from 20.000 lei to 100.000 lei, for the use of misleading commercial practices defined in article 6 and 7, as well as for the use of any of the practices listed in annex no. 1 under paragraph “Misleading commercial practices”;
c) with a fine from 20.000 lei to 100.000 lei, for failure to comply with the obligation of traders to inform consumers in an easy way about the differentiation of goods as a result of legitimate and objective factors, according to Article 61;
d) with a fine from 10.000 lei to 100.000 lei, for the use of aggressive commercial practices defined in Article 8 and 9, as well as for the use of any of the practices listed in Annex no. 1 under the paragraph “Aggressive commercial practices”.
In the case of the use by traders of unfair commercial practices affecting a number of more than 100 consumers, the minimum and maximum limits of the above sanctions are doubled.
Failure to comply with the measures ordered by the order or decision provided for in Article 12 paragraph (1) shall be sanctioned with a fine of 50,000 lei to 100,000 lei.
According to the National Authority for Consumer Protection may order measures according to this law, by order issued by the head of the National Authority for Consumer Protection or by decision issued by the heads of the units with legal personality subordinated to the National Authority for Consumer Protection.
The infringements provided for by Law 363/2007 are established upon notification of consumers, of associations which, according to the law, have a legitimate interest or ex officio, by the authorized representatives of the National Authority for Consumer Protection.
(5) Together with the application of the fine, the official may propose in the control document, as a complementary sanction, the suspension of the provision of services, goods or activities until the unfair commercial practice ceases or until the measures ordered according to Article 13 are carried out.
According to Article 13, to the extent deemed necessary, taking into account all the interests involved and, in particular, the public interest, the competent courts or the National Authority for Consumer Protection shall order, in an emergency procedure, even without proof of actual loss or damage or of the trader’s intent or negligence, one of the following measures:
- a) the cessation or establishment of appropriate legal procedures for the cessation of unfair trading practices;
- b) the prohibition or establishment of appropriate legal procedures for the cessation of unfair commercial practices, even if they have not yet been put into practice but are imminent;
- c) the transmission by the National Audiovisual Council, within 5 working days of receipt of the request, of the identification data of the natural or legal persons involved in the audiovisual advertising considered to be an unfair commercial practice, as well as a copy of the broadcast advertising material.
If, in order to eliminate the effects of the unfair commercial practices, their cessation or prohibition has been ordered and the court decision ordering this measure has become final and irrevocable or the order or the decision issued according to Article 12 paragraph (1) has not been appealed according to Article 12 paragraph (3), the court which issued the final and irrevocable decision, namely the National Authority for Consumer Protection, may request:
- a) its publication, in whole or in part, in the form it deems appropriate;
- b) the publication of a corrective communication. The corrective notice must include the trader’s registered office and other identification data, the unfair practice committed, the date on which it was committed and the measures ordered.
2. Amendments provided for by GOVERNMENT DECISION 686/2022:
GOVERNMENTAL DECISION 686/2022 introduces a new article in GOVERNMENTAL DECISION 947/2000 on the way of indicating the prices of products offered for sale to consumers regarding information for consumers on price reductions.
Any price reduction notification must clearly indicate the price previously applied by the trader. The previous price is the lowest price charged by the trader during the last 30 days before the date of application of the price reduction.
In addition, national regulatory options have been introduced for goods that are likely to deteriorate or perish quickly (especially food), continuous price reductions and goods that have been on the market for less than 30 days.
Thus, in the case of goods that are likely to deteriorate or expire rapidly (in particular food), the previous price is the lowest price charged by the trader during the last 10 days before the date of application of the price reduction, and for goods on the market for less than 30 days, the previous price is the lowest price charged by the trader since the product was placed on the market before the date of application of the price reduction. In addition, if the price reduction is gradually increased during the last 30 days, the previous price is considered to be the undiscounted price before the first application of the price reduction.
The above provisions also apply in the case of outlet sales establishments.
At the same time, by GOVERNMENT DECISION 686/2022, additional measures were established for products sold as outlets. For this type of sale, more detailed provisions on consumer information on price reductions have been introduced.
By GOVERNMENT DECISION 686/2022, outlet sales were defined as sales in sales structures where products bearing the manufacturer’s brand are sold and meet one of the following conditions:
- products that are part of collections from previous seasons
- products that are surplus production or end-of-line products or second quality products;
- products which are part of experimental product lines;
- products returned and/or stock surpluses cancelled;
- products in used and resealed condition, marketed at a reduced price;
- products with minor defects, expressly indicated to this effect in the trader’s offer, with written information to the consumer.
Where outlet outlets compare sales prices with the manufacturer’s factory outlet price or catalogue price or other equivalent reference price, they shall provide in writing clear, legible and easily identifiable information on the reference price used for the comparison.
If the product has not been displayed for sale within the last 30 days in outlet outlets, the manufacturer’s factory outlet price or catalogue price, as evidenced by documentation from the manufacturer/seller, shall be the lower price.
Legal basis:
– 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;
– GOVERNMENT DECISION 686/2022 for the modification and completion of the Government Decision no. 497/2000 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.