Enforcement fiche for RomaniaB a c k
|I. ADMINISTRATIVE ENFORCEMENT|
|Which administrative mechanisms are available to enforce the UCP Directive?||
In Romania, the Directive is implemented by the Law No. 363/2007 on fighting against unfair practices of traders in relation to the consumers and on the harmonization of regulations with the European legislation on consumer protection. Additionally, a number of provisions with respect to misleading advertising are found in Law No. 158/2008 on misleading and comparative advertising. The general enforcement of the Romanian legislation on unfair practices is handled by the National Authority for Consumer Protection (NACP) (in Romanian: Autoritatea Nationala pentru Protectia Consumatorului), which is a specialised authority in the central administration, under Government authority and co-ordinated by the Ministry of Economy, Trade and the Business Environment. The NACP acts also as a regulating body with respect to consumer protection, proactively enforces the legislation on unfair practices, and is also competent for receiving administrative complaints. The general website of the NACP can be found at http://www.anpc.gov.ro/anpc/index.php
|Who can file administrative complaints?||
The NACP allows administrative complaints to be filed by any natural person or organization with a legitimate interest. Competitors can inform the NACP with respect to unfair practices.
|Do any specific procedural requirements apply to filing administrative complaints?||
There is no template administrative complaint available. The claimant can transmit its complaint in writing to the NACP either via e-mail, post or personal submission to one of the territorial offices of the NACP (one for each county). Anonymous claims cannot be taken into consideration.
|Do the administrative authorities have an obligation to investigate the complaint?||
According to the Romanian legislation, all complaints duly filed with a public authority must be registered, investigated and analyzed under all aspects and solved within 30 days.
|Are there any specific requirements regarding the provision of evidence to the competent authorities?||
The Law implementing the UCP Directive does not contain such requirement. However, as per the general rules applicable to petitions, the claimant must provide evidence to substantiate his claim and is also required to provide supporting documents at the NACP's request. Absent such substantiating documents, the complaint will be classified as lacking information.
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?||
The Law implementing the UCP Directive provides only that a court action aimed at enforcing the provision of such Law can be filed, which means that a general claim for civil damages can be filed before the competent civil courts. In addition, under the general civil procedural rules, an action for cease-and-desist can be filed.
|Who can start a court action?||
The court action can be initiated by any person or organization that proves a legitimate interest.
|Can court actions be initiated by competitors?||
The Law implementing the UCP Directive does not cover this aspect. Based on general civil procedural rules, a competitor must prove its direct and legitimate interest in order to initiate a cease-and-desist procedure or a procedure for civil damages.
|Can the case be handled through an accelerated procedure?||
If it is deemed necessary and taking into account all involved interests, in particular the public interest, the court can decide urgently, even without evidence of loss or effective damage or the trader's intent or negligence: (i) cease and desist of unfair practices; (ii) prohibition of unfair practices even if such practices have not yet been carried out, but are imminent; or (iii) send to the National Audiovisual Council of the identification data of the legal or moral person involved in making misleading advertising
|Are there any specific requirements regarding the provision of evidence to the court?||
There is no specific legal provision in this respect in the Law implementing the UCP Directive. The general rules of evidence under the Romanian legislation are applicable. According to the Law implementing the UCP Directive the traders should provide evidence regarding the corectness of the claims regarding the commercial practice and to submit to the court documents proving the claims.
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?||
The sanction that results from a cease-and-desist procedure is the cessation of the alleged infringement. The court can also order the publication of its judgment. Furthermore the competent civil court can award damages in the framework of a claim for civil damages based on the Romanian Civil Code. These damages, however, should rather be interpreted as indemnifying measure than as sanctions.
|What are the possible criminal sanctions for the infringement of the UCP provisions?||
There are no criminal sanctions provided for the infringement of the UCP provisions.
|What are the possible administrative sanctions for the infringement of the UCP provisions?||
The following infringements constitute administrative offences and are sanctioned with fines accordingly: (i) the use of unlawful practices - RON 5,000 (approx. EUR 1,100) to RON 50,000 (approx. EUR 11,300); (ii) failure to comply with an Order issued by the NACP with respect to the enforcement of the UCP provisions - RON 10,000 (approx. EUR 2,300) to RON 100,000 (approx. EUR 22,700). As a complementary sanction, the ascertaining agent can suspend the trader's activity until the unfair practice ceases.
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?||
There is no specific legal provision in this respect in the Law implementing the UCP Directive. Misleading and aggressive commercial practices can be terminated by initiating a cease and desist procedure. If this procedure is initiated by a competitor who is not a party to the individual transaction with the consumer, the individual transaction will not be affected by a cease and desist decision, since a judicial decision only produces effects between the parties to the procedure. Nevertheless, a procedure can also be initiated under the general rules by the consumer who contemplates that the contract is void because he has concluded the contract with a mistaken consent. He will thus allege that this mistaken consent originates from inter alia error, fraud or violence. If a competent court concludes that the vendor has conducted an aggressive or misleading commercial practices, the consumer will be able to prove the origin of his mistaken consent and thus his contract will be declared void.
|How can consumers get redress/compensation (e.g. through collective actions)?||
Organizations representing consumers interests may file a request with the NACP or with competent courts. However, the decisions/ judgments issued in such circumstances are only applicable in the case at hand, and thus, cannot be relied upon by other third parties (e.g. consumer who might also have been affected by the sanctioned practice). Even in such case, damages are awarded on a individual basis.
The general effect of judgments has been recognized solely in connection with abusive clauses under Law 193/2000 on abusive clauses (implementing Directive 93/13/CEE), according to which the judgments rendered in a collective action have general extended effects (i.e. they may be invoked by consumers, even if not party in the initial litigation)
However, the possibility of organizations to file actions on behalf of consumers does not affect their individual rights. From a procedural standpoint, it is possible for more plaintiffs to file a common court action if the object of such action is a common obligation or if the plaintiffs' rights and obligations have the same cause. Nevertheless, their claims must be individual and the court will award such claims individually. Consumers have the possibility of filing a claim for civil damages, even when they did not initiate a cease-and-desist procedure. Such claim for damages is subject to the general rules of Romanian tort law, which provide that an infringement of a legal provision that causes a prejudice to someone constitutes a fault that can lead to damages, if a causal link with the loss is demonstrated.
|Can the administrative authorities or the courts require the publication of their decisions?||
Both the courts and the NACP can require the publication of their decisions in a widely-circulated newspaper.
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?||
An example of such self-regulatory enforcement system is the National Audio-Visual Council (in Romanian: Consiliul National al Audiovizualului). The NAVC is an independent regulatory body under Parliamentary control which regulates the field of commercial practices in mass-media. The NAVC ascertains and sanctions the use of unfair commercial practices in mass-media.
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?||
While the Government Decision on the organization and functioning of the NACP provides that one of the NACP's attributes is to "support the founding of mediating services with respect to consumer protection", so far such mediating services have not been created.