In recent years, technological developments have led to a growing market for goods incorporating digital content or digital services, so a wide-ranging action has been launched in the European Union to ensure a high level of consumer protection and to increase legal certainty regarding the rules applicable to agreements for the sale of such products. Thus, on 09.01.2022, the Emergency Ordinance no. 141/2021  regarding the contracts for the provision of digital content and digital services (hereinafter referred to as “GEO no. 141/2021”). This regulation contributes to the faster growth of the digital single market for the benefit of both consumers and businesses and removes the main obstacles to the law of contracts that stand in the way of cross-border trade. Basically, these rules will reduce the uncertainty faced by businesses and consumers due to the complexity of the legal framework, so consumers will enjoy greater protection when shopping online.

Also, considering the need for a more specific regulation regarding the protection measures offered to consumers, starting with January 1, 2022, we have in force the Emergency Ordinance no. 140/2021  regarding the contracts for the sale of goods (hereinafter referred to as “GEO no. 141.2021”) which repealed Law 449/2003 on the sale of products and the guarantees associated with them.

These normative acts aim both at establishing a legal framework regarding the sales contracts concluded between sellers and consumers, and the harmonization at the level of  the European Union of the specific, essential and mandatory contractual rights of the consumers within the Union.

The new legislative changes provide that the goods or digital services must meet certain subjective requirements in order to comply with the contract concluded with the consumer. Thus,  the requested subjective conditions that must be taken into account, are:

1. respect the description, type, quantity and quality and have the functionality, compatibility, interoperability and other characteristics provided in the sales contract;
2. correspond to the special purpose for which the consumer requests them, a purpose which the consumer brought to the notice of the seller at the latest at the time of concluding the sales contract and which the seller has accepted;
3. are delivered with all the accessories and all the instructions, including the installation, provided in the sales contract;
4. are provided with updates according to the provisions of the sales contract.

Regarding to objective compliance requirements, both legislation acts stipulate that in addition to complying with the subjective requirements (mentioned above), the goods or the digital services must cumulatively meet several objective conditions, for example: they correspond to the purposes for which goods or digital services of the same type would normally be used; are normally delivered with accessories, including packaging, installation instructions or other instructions that the consumer can reasonably expect to receive, etc.

Regarding the seller’s liability, the aforementioned legislative acts provide different deadlines, respectively:

1. For the supply of goods (GEO no. 141/2021): the term in which the seller is liable to the consumer for any non-compliance is 2 (two) years from the date of delivery.
2. For the provision of services / digital content (GEO no. 140/2021): the term in which the seller is liable to the consumer for any non-compliance is 5 (five) years from the date of provision of the service / digital content.

Regarding the corrective measures in case of non-compliance, consumers have the right to benefit from the following measures (applicable to the products covered by both emergency ordinances):

1. bringing in conformity the goods or the digital services/content (within 15 calendar days from the moment that the seller was informed by the consumer about the non-compliance);
2. proportional price reduction;
3. termination of the contract (with the consequence of reimbursing the consumer all amounts paid under the contract);

Regarding the commercial guarantee, we mention the fact that this guarantee is granted voluntarily by the guarantor, and once granted, it becomes legally binding. Practically, any commercial guarantee gives rise to a legal obligation for the guarantor under the conditions established in the commercial guarantee certificate and in the associated advertisements, available at the moment or before the conclusion of the contract.

If the conditions set out in the commercial guarantee certificate are less advantageous to the consumer than those set out in the associated advertisements, the conditions set out in the commercial guarantee advertising prevail.

In terms of sanctions, non-compliance with the provisions of both emergency ordinances constitutes contraventions, and the competence belongs to A.N.P.C.

The fines that  A.N.P.C. may apply are between 2000 lei and 50,000 lei depending on the violations found and the applicable legal provisions (GEO no. 141/2021 or GEO no. 140/2021). Along with the application of the contravention, the ascertaining agent may order the bringing in conformity of the good or the content/digital service or the return of the equivalent value, as the case may be.