The Emergency Ordinance no. 58/2022 amending some normative acts in the field of consumer protection (“GEO no. 58/2022“) was published on 6 May 2022 in the Official Gazette no. 456, which, among other things, obliges traders to sell on the Romanian market products similar to those sold in the West.
The GEO no. 58/2022 transposes into national law the Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending the Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules, known as the Omnibus Directive.
Which normative acts are to be amended?
The transposition was made by amending three existing normative acts: Law no. 193/2000 on unfair terms in consumer agreements concluded between sellers and consumers, Law no. 363/2007 on combating unfair trade practices in dealing with vendors and harmonization of regulations with European legislation on consumer protection, Emergency Ordinance no. 34/2014 regarding consumers’ rights under agreements concluded with professionals and amending and supplementing some normative acts.
One of the key changes introduced by GEO no. 58/2022 is the extension of the protection provided to consumers by the existing legal framework to digital services/digital content. In this respect, is to be mentioned the extension of the regulations ensuring consumers’ rights in agreements with professionals also to cases where the digital service is provided by the professional in exchange for the consumer’s personal data, such as cloud storage, social media platforms and email accounts (the new regulations also cover how the professional uses the personal data provided).
Thus, consumers of digital services who pay with their personal data will have more extensive rights specific to classic consumers, such as the right to pre-contractual information, the right to withdraw from the contract within 14 days, etc.
Another consumer protection measure approved by GEO no. 58/2022 aims to eliminate the double quality standard for products marketed in Romania that are claimed to be identical to products marketed in other Member States. Thus, traders will no longer be able to sell products in Romania of lower quality than those marketed in the West, claiming that they are identical.
Differences in the composition or specific characteristics of products marketed in Romania will have to be justified by legitimate and objective factors, including national legal requirements, availability or seasonality of raw materials, voluntary strategies to improve access to healthy and nutritious food, and the right of the trader to offer goods of the same brand in packaging of different weight or volume on different geographical markets.
GEO no. 58/2022 also imposes new transparency standards on traders. They will be obliged, for example, to specify for the products offered on online marketplaces whether or not the third party offering the products is a trader (if the goods do not come from a professional, the contract concluded does not benefit from the protection of the legal regulations in force on consumer protection) and to present direct and easily accessible general information on the main parameters for determining the hierarchy of the offer presented to consumers following their searches.
The trader will also be required to provide consumers with mandatory access to all product reviews, indicating whether and how the trader guarantees that the published reviews come from consumers who have actually used or purchased the product. Furthermore, the trader is obliged to inform the consumer that the price has been personalised based on an automated decision-making process.
GEO no. 58/2022 also extends the list of commercial practices considered unfair in all circumstances by adding 4 new deeds:
- 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;
- The resale of tickets to consumers if the trader has 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 come from consumers who have actually used or purchased the product, without taking reasonable and proportionate steps to verify that those reviews come from those consumers;
- Presenting or commissioning 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.
More severe sanctions
In addition to the usual sanctions which will also become more severe, GEO no. 58/2022 guarantees consumers affected by unfair commercial practices the right to remedies such as:
- replacement, price reduction or termination of the contract and refund of the value of the product or service;
- compensation for the damage suffered;
- direct replacement of the product if defects are found within 30 days of purchase of the product or service.
Furthermore, it clarifies the scope of the orders issued by the President of the National Authority for Consumer Protection ordering the cessation of unfair commercial practices, which have effect on all premises/working points of traders. Once the fines have been imposed, the oficer may propose as an additional sanction the suspension of the activity until the measures ordered by the President of the National Authority for Consumer Protection have been carried out.
An aggravating factor is also introduced, whereby the minimum and maximum limits of the penalties provided for are doubled in cases where the unfair commercial practices committed affect more than 100 consumers, in which case fines of up to Ron 200,000 may be imposed.
It also increases the fine limits for unfair terms in consumer contracts. Whereas until now there was a risk that professionals would be penalised with small fines of up to Ron 1,000, with the amendments introduced by GEO no. 58/2022, they will risk being penalised with fines of between Ron 20,000 and Ron 100,000, in addition to the removal of unfair terms from contracts currently being executed and the cessation of their use for the future. Moreover, by way of derogation from the provisions of common law, drafting of an action for a declaration of the existence of unfair terms will not be time-barred.
Moreover, GEO no. 58/2022 also establishes penalties ranging from 0.1% to 4% of the annual turnover of the professional on the territory of Romania for large-scale infringements (e.g., any act or omission contrary to EU law which has harmed, is harming or is likely to harm the collective interests of consumers in at least two Member States) and for large-scale infringements with a specific Union dimension (infringement which has harmed, is harming or is likely to harm the collective interests of consumers in at least three Member States). If the turnover is not known, a fine of up to EUR 2 million may be imposed.
Since when the new measures apply?
GEO no. 58/2022 entered into force on 28 May 2022 and will bring a welcoming balance between the interests of consumers and traders, especially in the online environment.