Everything about the new responsibilities of companies, for the protection of consumers

by Oana Strătulă

On June 11, 2014,
the Emergency Ordinance no. 34 was published in the Official Gazette. The Ordinance concerns the rights of consumers within the contracts concluded with professionals, as well as amending and completing certain normative acts1.

Adopting a new law on consumer protection was necessary for the transposition into national law of the European Parliament Directive 2011/83/EU and of the Council Directive from 25 October 2011 regarding the consumer rights, which EU countries have had the obligation to implement until December 13, 2013.

In the preamble of the Emergency Ordinance 34/2014, the legislator explains why it was necessary to proceed with the urgent adoption of the normative act that implements the Directive: in order to avoid the possibility of tripping an infringement procedure against Romania by the European Commission for not implementing into national law the provisions of the EU Directive, until 13 December 2013.

In other words, the urgency was justified by the Romanian authorities’ own negligence in fulfilling their obligations in due time. Thus, the authorities – after having the prospect of paying, as a penalty, a fixed minimum lump sum of 1.787 million euro, to which can be added delay penalties – have decided to get mobilized and to urge the  implementation of the Directive by adopting an emergency ordinance, thereby avoiding the regular legislative process.

To whom does the new regulation apply

The Emergency Ordinance 34/2014 shall apply to all contracts concluded by consumers with professionals, including the contracts for providing publicly available electronic communications service or services of access and connection to public electronic communications networks as well as of delivery of the terminal equipment  related to the service provision.

The Ordinance also applies to contracts for the supply of water, gas, electricity or heating energy, including those provided by public providers, to the extent that these utilities are provided on a contractual basis.

Professionals must ensure a that they will better inform the consumer in the pre-contractual stage

In order to respect the right of consumers to be completely, correctly and precisely informed  on the essential characteristics of products and services offered by professionals, The Ordinance 34/2014 imposes on the latter the obligation to provide consumers with a series of information in a visible, legible and understandable manner. Among the new specifications regarding the information of the consumer, compared with the previous regulation, we mention:
– within the information regarding the identity of the professional, the latter must make available to the consumer telephone number, fax number and electronic mail address to which he can be effectively reached, in order to allow the consumer to rapidly contact the professional and to communicate with him effectively;

– the existence and the conditions regarding the after-sales services and commercial guarantees, if applicable;

– the validity period of the contract or for a contract of indefinite duration or a contract that will be extended automatically, the conditions for terminating the contract and the applicable penalties, if any;

– any relevant interoperability of digital content with hardware and software components of which the professional has knowledge of or it is reasonably expected to be aware;

– the applicable compensations and the procedure for granting them, in the case of non-compliance with the agreed quality levels and other contract terms.

If the consumer invokes the professional’s failure to comply his obligation to inform, the burden of proof belongs to the latter, which will have to prove that he informed the consumer on all the aspects mentioned in the the new normative act.

Professionals must guarantee that they will comply the consumer’s right to withdraw from contracts concluded by distance or concluded away from business premises

According to the new regulation, the consumer benefits from a period of 14 days to withdraw from a distance contract or from a contract concluded away from business premises, without having to justify its decision to withdraw and without incurring other costs than those directly related to the return of the products. The period of 14 days to exercise the right of withdrawal shall begin from the date the contract was signed (for contracts for the provision of services) or from the date on which the consumer or a third party other than the carrier, which is indicated by the consumer, acquires the physical possession of the goods (for contracts for the sale of goods).

Within the general obligation to inform, in the case of distance contracts and in the case of those concluded away from business premises, the professional has the obligation to inform the consumer on the conditions, deadlines and procedures for exercising the right of withdrawal from the contract, as well as the model withdrawal form, presented in part B of the Annex to The Emergency Ordinance 34/2014.

The sanction for the non-compliance with the aforementioned obligation consists of extending the deadline in which the consumer has the right to withdraw from the contract. Thus, the consumer benefits from an additional 12 months, calculated from the end of the initial 14-day period of withdrawal.

In order to ensure a balance between the consumer’s right to withdraw from the contracts concluded remotely or away from business premises and the commercial interests of professionals, the new regulation states that a number of categories of contracts are exempted from the right to withdraw. Among these types of contracts, we mention:

– provision of goods or services whose price depends on fluctuations in the financial market which the professional can not control and which can occur during the period of withdrawal;

– the supply of products manufactured according  ​​to the consumer’s specifications or clearly personalized;

– the supply of products which are liable to deteriorate or expire rapidly;

– the contracts concluded during an auction;

– the supply of accommodation services, for any purpose other than residential, transport of goods, car rental, catering or leisure related services, if the contract provides a date or a specific period of execution.

The limitation and the transparency of costs incurred by consumers

The ordinance 34/2014 prohibits professionals to charge consumers with commissions for using a particular means of payment which exceed cost borne by the professional for the use of such methods of payment. Also, if a professional has a telephone line in order to be contacted by phone regarding the contract concluded, the consumer is not obliged to pay more than the basic price for contacting the professional.

The new regulation imposes on the professional the obligation that prior to concluding a contract with a consumer or prior to the consumer’s acceptance on the offer, that he will ask for the explicit consent of the consumer in regards to any additional payments compared to the previously established price for the main contractual obligation of the professional.

If the professional has not obtained the consumer’s express consent and rather has inferred it by using automatically included options which the consumer has to reject in order to avoid the additional payment, the consumer can claim the reimbursement for such payments.

1. This is a translation of the article published on July 1st, 2014, in Business24.ro. For the Romanian original text, please visit this link: http://www.business24.ro/legislatie/stiri-legislatie/totul-despre-noile-responsabilitati-ale-companiilor-pentru-protectia-consumatorilor-1546870