Last updated: 3 March 2022
New rules regarding contracts for the supply of digital content / services have been adopted by Government Emergency Ordinance no. 141/2021, in force as of January 9, 2022.
The Ordinance is aimed at ensuring high level of consumer protection in the field of the supply of goods with digital content or digital services. It also removes a number of contract law barriers that hindered cross-border trade, thus contributing to the growth of the digital single market.
Consumer protection is also aimed at by the GEO no. 140/2021 entered into force on January 1, 2022, repealing Law no. 449/2003 on the sale of products and related guarantees.
Scope of the GEO 141/2021
The Ordinance applies to contracts for the supply of digital content / services, for which the consumer pays or undertakes to pay a price, and contracts for the provision of services for the development of digital content / service, based on the instructions of the consumer.
In practice, consumers’ signing of contracts with professionals for software development, creation of content for social networks, etc. became very usual.
Assessment criteria. How to determine whether or not digital content is compliant ?
Under the law, the provider is considered to have fulfilled his obligation to provide digital content / service when the content / service or any other appropriate means allowing access or download of the digital content / service becomes available or accessible to the consumer or to a physical or virtual equipment chosen by the latter.
The provider must observe certain subjective and objective requirements.
The subjective requirements relate to:
- the description, quantity, quality, compatibility, functionality and other characteristics provided by the parties in the sales contract ;
- the specific purpose for which the consumer is ordering the digital content good/service, which is to be conveyed to the provider at the latest when the contract is concluded ;
- the supply of all accessories, including installation and assistance, in accordance with the sales contract ; and
- the supply of the good / service with all the updates provided for in the contract.
The provider must also comply with the objective compliance requirements provided for the digital good/service. These objective requirements are established and assessed against the standards that a consumer can reasonably expect, which are standards for goods with digital content / digital services of the same type.
These requirements, evaluated objectively, may relate to purpose, quality, quantity, accessories, updates, etc. of digital content/service. In any case, the digital content / service must be provided in its most recent version available at the time of the conclusion of the contract, unless otherwise agreed by the parties.
Contractual remedies in case of incompliance
The Ordinance extends the period within which the non-compliance of a good with digital content or a digital service can be discovered by the consumer: this period can go up to 5 years, or even the entire duration of the contract, depending on whether the digital content is provided on a one-time or continuous basis. This provision has a direct impact on the provider's liability.
In addition, the Ordinance imposes on the professional several obligations to inform the consumer, under penalty of accountability, on a case-by-case assessment basis.
Where there is incompliance, the consumer has the right to have his digital content brought into conformity. If this is not possible or disproportionate, he may benefit from a price reduction or termination of the contract.
The remedies available to the consumer are progressive, the spirit of the law being that any potential incompliance is first and foremost corrected by the professional and that the termination of the contract only occurs as a last resort.
In the specific case of interim payments for the supply of digital content / service, the consumer has the right to suspend one of the payments, provided that this payment is not linked to digital content / service which has already been supplied by the provider and which is in line with what was expected.
In practice, the parties sometimes plan to carry out a digital project in stages, with intermediate deliveries and an overall price to be paid in instalments. In this situation, if the consumer finds that part of the project does not comply with what was agreed, he can suspend his payments. This suspension could also be justified by the general provisions of the Civil Code, but the procedure is expressly authorized and detailed by the Ordinance no. 141/2021 applicable to this type of contract.
In the event of termination of the contract, the provider must reimburse the consumer for all sums paid under the contract. The provider must reimburse without undue delay and, in any event, within 14 days of the date on which the provider is informed of the consumer's decision to invoke the price reduction or the termination of the contract.
The Ordinance comes with a right of recourse for the consumer against any third party, other than the professional with whom he concluded the contract and who provides or undertakes to provide the digital content or the digital service, in order to bring this content / service into conformity with the provisions of the contract.
Commercial guarantees
The provider provides the consumer, on a durable medium, a commercial guarantee certificate no later than the time of delivery of the goods with digital content. The commercial guarantee, granted voluntarily by the guarantor, gives rise to legal obligations for the latter and contains the following information: a clear declaration indicating that the legal obligation concerning the professional's responsibility for the compliance of the digital content is not affected by the commercial guarantee, the name and address of the guarantor, the procedure that the consumer must follow to benefit from the commercial guarantee, an indication of the digital content and/or digital services to which the guarantee applies, the terms of the commercial guarantee.
Another novelty brought by the GEO no 141/2021, the scope of the guarantee is also established by reference to the advertisements associated with the product / service, available at the time or before the conclusion of the contract, and no longer only by reference to the certificate of warranty, which again leads to greater liability for the provider.
Penalties
If the provider fails to put in place corrective measures in the event of non-provision of the digital content or service, to reimburse the consumer for all amounts due in the event of termination of the contract or to comply with the reimbursement deadline, the National Consumer Protection Authority (NCPA) may apply a fine between 2,000 and 50,000 Lei, depending on the violations acknowledged and the applicable legal provisions (the GEO no. 141 and the GEO no. 140 of 2021).
Once the fine has been applied, the NCPA can order that the good or the digital content / service is brought to compliance, or the repayment of its value, as the case may be.
Conclusion
In the field of consumer rights, the new regulations are in line with European requirements and the digital transition more and more present in all activity fields. In the future, it will be interesting to follow jurisprudence related to consumer complaints on the conformity of goods with digital content and digital services.