New draft Government Emergency Ordinance regarding consumer protection: ANPC waives the application of fines computed as a percentage of the turnover, introduces the civil sanctions record and other amendments of impact

On September 6, 2019, the National Authority for Consumer Protection (ANPC) has published on the authority’s official website the updated version of the draft Government Emergency Ordinance amending and supplementing certain normative acts related to consumer protection (the “Draft”). The Draft was initially published on January 14, 2019.

The amendments proposed by the new Draft mainly concern the following:

• The obligation to inform the consumer is also extended to the importer, distributor and seller. Thus, the above mentioned persons will be required, in addition to the manufacturer to state the name of the product, corporate name and/or brand of the manufacturer, quantity and, if applicable, shelf life/date of minimum durability or time limit for intake/date of minimum durability, average duration, main technical and qualitative features, composition, additives used, possible foreseeable risks, method of use, handling, transport, storage, conservation or keeping, contraindications;
• Economic operators will be required to reply to all consumer claims within a maximum 48 hours, as of their receipt;
• It is introduced the civil sanctions record, a document which contains information regarding the violations to the legal provisions in the field of consumer protection made by economic operators. Civil violations that affect the consumer's economic interests are recorded in the civil sanctions record for a period of 3 years, and those that affect the life and security of the consumers, for a period of 5 years;
• The economic operators are required to reimburse the damages suffered by consumers, including the quantifiable collateral damages;
• Persons empowered to ascertain the contraventions and to apply the sanctions provided by the law will be able to determine together with the sanction and the remedial measures, the amount of damages that will be refunded to the consumer;
• Alongside with principal sanctions, remedial measures or the restitution of the value of the services will be imposed for the entire portfolio of consumers affected by the ascertained contravention;
• The competent courts may, in certain cases, as a result of the notification of the ANPC representatives, forbid the company and the director to carry out the activities provided in the NACE Code for which the civil sanction was imposed, for a period of up to 3 years;
• In the case that a court of law ascertains the existence of an abusive clause, the court will require the economic operator to modify all pre-formulated standard agreements, to be used during their professional activity and to undertake not to insert such clauses in future pre-formulated standard agreements.

In addition, the court of law may also impose the full reimbursement to consumers of the amounts charged based on an abusive clause;

• The final court decision that solves a declaratory action in finding an abusive clause constitutes an enforceable title also for the consumers who directly benefit from its effects;
• The Draft provides the possibility of ANPC to request the cessation at national level of the incorrect commercial practice at the level of all working points of the economic operator.