Change of an era: GEO 58/2022 and important changes in the consumer protection field transposing Omnibus Directive
The consumer protection legislation is witnessing a series of developments with strong implications over the industry. As your trusted business adviser, DLA Piper Romania has established a dedicated Consumer Protection practice team to tend to your everyday legal needs. This is a brief update regarding the recent changes to help you align with the new legal provisions.
Very recently, the Romanian Government adopted a Government Emergency Ordinance no 58/2022 for the transposition of OMNIBUS Directive (EU Directive 2019/2161) (GEO). The GEO was published in the Official Gazette of Romania on 6 May 2022 and will enter into force on 28 May 2022.
The main key points to be considered under this GEO:
- Entry into force: 28 May 2022 and secondary legislation is expected to be issued to detail the procedural aspects. There is no extensive transition period aimed to ensure the implementation of the new regime.
- Scope: GEO amends various legislation including Law 193/2000 on unfair terms in consumer contracts, Law 363/2007 on unfair commercial practices, GEO 34/2014 on consumer rights in contracts concluded with traders.
- The purpose of these amendments is to promote stricter regulations and sanctions to ensure greater protection for consumers.
- Amendment of the sanctioning regime. An important aspect in this regulation is represented by sanctions – higher fines in the field of consumer protection and more focus on repetitive behaviour. The limits of the fixed minimum and maximum sanctions are considerably increased, up to 4% of turnover for large-scale/ widespread infringements in the EU, but also ancillary sanctions and remedial measures for the benefit of consumers. In some cases, there are no facilities for the swift payment of the fine.
- New unfair commercial practices are regulated in order to sanction dual quality issues of products. It is set as an express misleading practice – any activity of trading a good on the territory of Romania, as being identical with goods traded in other Member States, even though those goods have a composition or characteristics significantly different, unless justified by legitimate and objective factors proven with conclusive documents.
- In the case of an activity of trading a good on the territory of Romania, as being identical to a good traded in other Member States, although that good has a composition or significantly different characteristics, justified by legitimate and objective factors, including national legal requirements, availability or seasonal nature of raw materials, voluntary strategies aimed at improving access to healthy and nutritious food as well as the right of the trader to offer goods of the same brand in packaging of a different weight or volume in different geographic markets, traders have an obligation to make available to consumers information on these situations, in a way that allows them access to them, regarding the differentiation of goods as a result of legitimate and objective factors, so that this differentiation can be identified by consumers.
- GEO also sets new rules regarding false reviews, hidden advertising on online searches, the assertion that product reviews come from consumers who have actually used / purchased the product (without taking reasonable and proportionate measures to verify that these reviews come from those consumers), the presentation or assignment of another legal or natural person with the presentation of false reviews or recommendations as coming from consumers or the misleading presentation of reviews or recommendations by consumers on social communication platforms to promote certain products (applicable e.g. in social media) etc.
- More consumer information obligations. Additional information and transparency obligations for online marketplaces, information on the main parameters for establishing the hierarchy of offers presented to the consumer as a result of the search performed etc.
- Extend protection to digital goods, digital services, correlation of existing legislation, but also those for which consumers do not pay, but provide personal data (e.g. cloud storage, social media platforms and email accounts).
- Custom price. For distance or off-premises contracts, a new obligation to inform that the price has been customized based on an automated decision-making process, if applicable.
- Right of withdrawal. Extended to 30 days (from 14 days) in some cases of direct, aggressive marketing, unsolicited visits to consumers' homes or trips organized by a trader with the purpose or effect of promoting or selling products.
- Communication with consumers. Traders may communicate with consumers in a variety of ways, including email, text message, or chat box, with the obligation to ensure the preservation on a durable medium of such communications, of any written correspondence, including the date and time of such correspondence (e.g. especially communications by AI chat box).
- Abusive clauses. Changes on actions against unfair terms in pre-formulated contracts, including remedies and more transparency on types of unfair terms for the benefit of the entire portfolio of relevant consumers.
- More prerogatives in favour of the National Authority for Consumer Protection (abbreviated in Romanian language ANPC). ANPC can notify the court in case it observes abusive clauses in pre-formulated contracts and the court may order the operator to (i) cease utilization of the abusive clauses for the future, (ii) eliminate abusive clauses in ongoing agreements and (iii) publish the court decision on its website.
- Court actions for (i) declaration of abusive clauses, as (ii) against execution based on abusive clauses are now imprescriptible.
- The Court now has the obligation to analyse on its own initiative the abusive character of a clause as soon as it has factual and legal elements at its disposal and shall not apply such clause if the Court considers it abusive, except if the consumer opposes.
- Other procedural rules in favour of consumers.
- Administrative sanctions record. The notion of administrative sanctions record is established for the registration of the repeated violations of the consumer rights, which will be kept by ANPC.
- Several prerogatives in favour of ANPC for sanctioning, verifying and monitoring traders and protecting consumers.
- Three years statute of limitation. Statute of limitation for applying sanctions by ANPC is now 3 years.
- Measures applied by ANPC for cessation of unfair commercial practices will have effects on all premises / working units of the trader.
- ANPC may continue to apply other measures: suspension of the provision of services, of the supply of goods or activity until the cessation of the unfair commercial practice or until the fulfilment of the ordered measures.
- New criteria for applying the sanctions are considered (non-exhaustive) (e.g. the nature and seriousness, amplitude and duration of the breach, measures taken for mitigating or repairing the damages, remedy measures for consumers).
- In addition, consumers affected by unfair commercial practices have the right to remedial measures to eliminate all the effects of those unfair practices, free of charge (some of the measures may be ordered also by ANPC): replacement, price reduction, termination of contract, refund, compensation for damage etc.
We hope the above is useful. Should you have any specific questions or need particular input, please do not hesitate to contact the author.