Last updated: 18 February 2016
The Government has recently passed Ordinance no. 9/2016 (published in Official Journal no. 66 of January 29, 2016 and enforceable as of February 28) for the amendment of Law no. 449/2003 on the product sale and related guarantees, in order to ensure a better protection of consumer rights, as well as to clarify certain aspect which were misinterpreted by sellers and consumers. The amendments brought by the
said Ordinance are briefly presented to you below.
THE DIFFERENCE BETWEEN THE LEGAL GUARANTEE AND THE COMMERCIAL GUARANTEE
Ordinance no. 9/2016 makes a distinction between the “legal warranty” and the “commercial warranty” that sellers have to provide. This distinction was already provided by Directive no. 2011/83/EU of the European Parliament and of the Council, but it was not reflected clearly by Law no. 449/2003.
Therefore, the legal guarantee is a minimum guarantee provided by the law so as to protect consumers’ interests and supposes the seller’s obligation to repair or replace the purchased product free of charge or to refund the price to the purchaser if the product is non-compliant (if the product does not comply with the conditions provided in the guarantee statement or in the relevant advertising). Consequently, consumers do not have to bear any cost (return fees, price refund fees etc.) if he/she exerts his/her right to withdraw.
On the other hand, the commercial guarantee is a contractual guarantee undertaken by the seller in relation to consumers, free of charge. If the purchased product is non-compliant, the commercial guarantee entitles the purchaser to the reimbursement of the price or to have his/her product repaired or replaced, if such product does not comply with the conditions set out in the guarantee statement or in the relevant advertising.
As for the commercial guarantee, Ordinance no. 9/2016 introduced the notion of “guarantee certificate”, set out more ambiguously by the former law. The guarantee certificate is a document filled-in by the seller with data regarding the product, the guarantee period, the average life duration, the seller’s coordinates, including it address. This document must expressly provide that the rights conferred to consumers by the law (legal rights) are not affected by the commercial guarantee.
If they do not offer a commercial guarantee, sellers have to provide the consumer with a document certifying the latter’s legal rights (namely the two-year guarantee period, which begins when the products is received, the fact that he/she can report product non-compliance etc.).
RULES APPLICABLE TO DURABLE GOODS
According to the abovementioned Ordinance, durable goods are complex products, consisting of parts and sub-assemblies, designed and built to be used on medium-term and which can be subject to repairs or maintenance.
Such goods must be accompanied by a guarantee certificate issued under a commercial guarantee and, if specified by the current regulations, by a statement of conformity, as well as by a technical handbook and instructions for use and operation.
If durable goods replace defective products during the guarantee period, they will benefit from a new guarantee period, which begins to run when the product is replaced.