EY ROMANIA

  |  26.07.2016

Amendments to the Law no. 321 / 2009 on food products trading

The Law amending and supplementing the Law no. 321 / 2009 on food products trading (“Law 150 / 2016”) was published in the Official Gazette Part I on 15 July 2016 and will enter into force on 18 July 2016 (except for certain provisions expressly provided by law).

Scope of application and purpose of the norm

In its initial form, Law 150 / 2016 had some main objectives, as follows: (i) by limiting the work schedule of the supermarkets, it was meant to focus the Romanian consumer towards the family, activities into open air, culture; (ii) encouraging the national agricultural production, the creation of new jobs; (iii) increasing the quality of the local products so that they may compete with the imported products which are distributed by the supermarkets.
 

During the process of enacting this piece of legislation, the legislative project has suffered various amendments. Inter-alia, the amendment referring to the limiting of the work hours of the supermarkets was no longer kept under the final form of Law 150 /2016.


Most relevant provisions


Amendments regarding the services, costs, taxes that can be invoiced / re-invoiced between the supplier and the merchant

According to the new legal provisions, any merchant is forbidden to claim the invoice / re-invoice and to cash from the supplier any taxes and services.

 

The new regulation is a broader, more general one, which replaces a legal provision which used to provide in a more specific way that the merchant cannot claim and cash from the supplier: (i) the payment of the services that are not directly related to the sale operation; and (ii) the payment of the services related to the extension of the distribution network of the merchant, to the refurbishment of the sale areas of the merchant or to the operations and events related to the promotion of the merchant’s activity and image.


Failure to comply with this interdiction is sanctioned with fine from RON 100,000 to RON 150,000, provided that the provisions of the Competition Law no. 21 / 1996, as republished, does not apply; to the extent the breach is repeated the functioning authorization of the merchant may be suspended for a period of up to 6 months.


The repeal of the provisions regarding the listing and de-listing of products


Law 150 / 2016 repeals the legal provisions referring to the listing of the products (and implicitly the provisions regarding de-listing) which referred to the obligation undertaken by the merchant to offer for direct sale towards the consumer all the products offered by the supplier under the commercial agreement.


Amendments regarding the acceptance of the goods


According to Law 150 / 2016, the acceptance of the goods may be refused upon delivery and not within 24 hours from the delivery date as previously provided, otherwise the goods are considered accepted.


However, if the parties agree under the contract that the qualitative and quantitative acceptance of the goods will be made following delivery, according to Law 150 / 2016, the acceptance document must be submitted in written form to the supplier within maximum 24 hours as of the date the goods are made available to the merchant and not within 48 hours, as was previously provided. This legal provision does not apply to the fresh food products (as these are defined by Law 150 / 2016), in which case the qualitative and quantitative acceptance of the goods is done upon delivery.


Law 150 / 2016 has repealed the legal provisions according to which the term provided by law for the submission of the acceptance document (for the case in which the parties have agreed that the acceptance date will incur after the delivery) also applies to the delivery of the invoice.


Failure to comply with the legal provisions regulating the possibility of refusing the acceptance of the goods upon delivery, respectively, of submitting the acceptance document within maximum 24 hours from the date the goods are made available to the merchant (if the parties have agreed that the acceptance date will incur after the delivery) is sanctioned with fine from RON 50,000 to RON 100,000, provided that the provisions of the Competition Law no. 21 / 1996, as republished, does not apply.


Amendments regarding the payment obligation between the merchant and the food products supplier


Law 150 / 2016 introduces a maximum term within which the merchant may pay the supplier for the contracted and delivered goods, respectively 30 calendar days. By way of exception, this term may not exceed 7 calendar days for the fresh food products (as such are defined under Law 150 / 2016)


Failure to comply with these legal provisions is sanctioned with fine from RON 50,000 to RON 100,000, provided that the provisions of the Competition Law no. 21 / 1996, as republished, do not apply.


Providing for new special obligation for the merchants regarding the Romanian products


Inter alia, Law 150 / 2016 introduces the following obligations for the merchants:


 the obligation to provide for distinct display and sale areas for the Romanian products within the terms and conditions provided by the law.
Failure to comply with these legal provisions is sanctioned with fine from RON 50,000 to RON 100,000, provided that the provisions of the Competition Law no. 21/1996, as republished, do not apply.
 the obligation to acquire at least 51% of the total volume of displayed goods of meat, eggs, vegetables, fruits, honey, dairy products and bakery products, for each type of food product, from short food chain, as defined by the applicable law. The merchants having an annual net turnover or which have total assets of less than two millions euro, in RON equivalent, do not have to comply with this obligation.


The provisions regulating this obligation will enter into force within 6 months as of their publication in the Official Gazette.


Failure to comply with this obligation is sanctioned with fine from RON 100,000 to RON 150,000, provided that the provisions of the Competition Law no. 21 / 1996, as republished, do not apply.


The changes brought by Law 150 / 2016 may also trigger a series of tax implications with major impact on the participants in the commercial chain, both from the perspective of corporate income tax, as well as from a VAT perspective. These tax implications would have to be analyzed on a case-by-case basis, depending on the commercial arrangements in place between the merchants and their suppliers.

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