UNFAIR COMMERCIAL PRACTICES: NEW RULES

UNFAIR COMMERCIAL PRACTICES: NEW RULES

At present, trader’s unfair practices towards consumers are sanctioned in Romania by Law no. 363/2007, transposing Directive no. 2005/29/EC of the European Parliament and of the Council. In response to the European Commission’s comments regarding the correct transposition of the abovementioned Directive, the Parliament has recently passed Law no. 33/2015 (Official Journal no. 170 of March 11, 2015). This law brings forth new criteria for determining an unfair commercial practice and increases the amount of the fines applicable to traders if they resort to such practices. These amendments are presented to you briefly hereinafter.

MISLEADING COMMERCIAL PRACTICES

Law no. 363/2007 lists several practices deemed misleading in any circumstances, such as: a trader pretends to have signed a code of conduct that it has not signed, displaying a quality certificate or label without obtaining the necessary permit, falsely declaring that a product or a service is only available for a very short period of time or that such product will only be available on particular terms for a very short period of time etc.

Before Law no. 33/2015 was passed, the law did not distinguish between fines applicable to misleading or aggressive commercial practices, although both these practices are considered unfair commercial practices. In accordance with Law no. 363/2007, unfair commercial practices were sanctioned by a fine between 5,000 Lei and 50,000 Lei.

From now on, misleading commercial practices are punished by a fine between 5,000 and 100,000 Lei (the maximum amount was doubled).

As for the amendments related to the criteria for deeming an action as an aggressive commercial practice, in accordance with the new rules, the implementation and promotion of pyramid scheme is considered an aggressive commercial practice only if consumers provide a counter benefit in exchange for the possibility to receive an amount of money – the amount coming from the entry of new consumers in the system rather than from the sale or consumption of products.

AGGRESSIVE COMMERCIAL PRACTICES

According to Law no. 363/2007 commercial practices are deemed aggressive if they are intended to give the consumer the impression that he will not be able to leave the premises of the trader before a contract is concluded, repeated visits to the consumer’s residence despite the latter’s request for the trader to leave his premises, repeated and unwanted telephone calls, fax, e-mails or any other means of telecommunication, explicitly informing consumers that if they do not purchase a product or a service the trader’s employment or livelihood are put at risk.

In accordance with Law no. 33/2015, aggressive practices are sanctioned by a fine between 2,000 Lei and 100,000 Lei.

Under the former regulations, traders giving consumers the impression that they had already won or that they would win a prize or any other equivalent benefit if they paid an certain amount of money were considered guilty of aggressive practices. Therefore, such practice was considered aggressive only if the prize subject to the obligation to pay an amount of money.

From now on, a practice is deemed aggressive only based on the simple fact that a consumer has to take a certain action in order to claim the prize or the equivalent benefit while being conditioned by the payment of an amount of money. Furthermore, as ruled by the EU Court of Justice in Case no. C-428/11: „It is also irrelevant that the trader offers the consumer a number of methods by which he may claim the prize, at least one of which is free of charge, if, according to one or more of the proposed methods, the consumer would incur a cost in order to obtain information on the prize or how to acquire it.”