Major Developments of the Romanian Legislation in 2007

Martie 2008

SALANS

While most legislative improvements aiming at implementing the acquis communautaire had already been enacted during the previous years to the accession date, as a condition for accession, there was still much to accomplish in 2007, Romania’s first year in the European Union. The focus of the legislative activity in 2007 was on changing/improving the previously enacted laws, rather than on adoption of completely new ones, both in order to continue the implementation of the EU legislation, and to facilitate the EU integration. Last but not least, the political fight triggered specific legislative moves, as in any democratic parliamentary exercise.

First, one should note that no constitutional amendments were adopted in 2007. Public debates were periodically initiated to discuss potential constitutional changes for a better demarcation between the President and Primeminister powers, but no practical finality followed, not even a draft change of the current Constitution. In exchange, the Constitutional Court of Romania had several occasions to make very important decisions on interpreting the current Constitution and the powers of the main actors of the executive power, as well as on the constitutionality of certain political-sensitive laws.

Second, in 2007 there were no major or “field” laws and regulations to be enacted, such as a new law on environment, one on competition or public law regulations regarding the status of public services or public employees. Most of such area regulations had been adopted previously, consequently the main concern was the real enforcement of the existing legal framework or, in certain parts, its change. We shall address the main changes field by field in an organized attempt to review 2007 as a legal year in Romania.

 

Commercial legislation

New amendments to Law No. 31/1990 on commercial companies (corporations) came into force by enactment of Government Emergency Ordinance No. 82/2007. These amendments have supplemented the extensive reform undertook in 2006 in the Romanian corporate law, clarified some of the newly introduced provisions and instituted additional incompatibilities for corporation’s officers who committed serious economic offences. The changes brought by Government Emergency Ordinance No. 82/2007 do not contain a new or spectacular reform in the Romanian corporate law, they rather represent a sum of technical provisions meant to refine the regulation adopted in 2006, and also to correct a number of errors ascertained to have occurred on the occasion of the previous change. In addition, it was necessary to clarify the status of the directors of the corporations, who cannot be directors and employees at the same time, and also to offer to the companies more time to implement certain new corporate principles which had been introduced in the previous year.

Government Emergency Ordinance No. 119/2007 on deterring the late payments in commercial obligations instituted new judicial proceedings for recovery of clear and mature commercial obligations that have not been paid by the debtor. The new ordinance provides additional rules on establishing the date when payment of interest starts to run as well as specific procedural rules allowing a very rapid recovery of such commercial debts. Thus, in case when the term for payment has not been agreed between the parties, interest starts to run 30 days after the date of receiving the invoice or receiving the merchandise or certification of its quality or quantity, as the case may be. The procedure to obtain a court order compelling the payment is very fast and the court decision issued in first instance may be challenged only by an expedite action for annulment. The overall procedure must not exceed 90 days and in case the creditor looses on this special type of procedure, it may refer the case by the ordinary court proceedings.

 

Consumer protection laws

Extensive additions and amendments to the consumer protections laws were adopted by Law No. 363/2007 on the fight against unfair practices of merchants toward consumers and the harmonization of the related regulations with the European legislation on consumer protection. The law defines the unfair practices of merchants as either misleading practices or aggressive practices and contains two lists of specific actions or omissions that are qualified as misleading or aggressive, none of them being exhaustive, as well as a separate list of legal rules applicable in the area of advertising and commercial communication. Examples of misleading practices are: display of a certificate or quality mark without having such certificate or quality mark, presentation of the rights of the consumer as a distinct feature of the merchant’s offer, affirming that a product may generate income by gambling, description of a product as bearing “no costs” while in fact such costs have to be paid by the consumer. Aggressive practices may consists in visits to the dwelling of the consumer, insistent requests by fax, mail, e-mail or telephone, including an advertising of an urging addressed to children to buy products or to convince their parents to purchase them.

Enforcement of the rules regarding the prohibition of such unfair practices is left to a special governmental body, the National Authority for Consumer Protection, as well as to the courts of law. The sanctions for unfair practices consist in significant fines, civil damages and suspension of the activity of the merchant up to the cease of the unfair commercial practice.

Law No. 363/2007 is implementing European Parliament and European Council Directives 2005/29/CE on unfair practices of the enterprises on the internal market toward the consumers and changes of other directives on the same subject. In addition, Law No. 363/2007 brings “on the spot” amendments to no less than thirteen other laws and ordinances related to the consumer protection, such as to the rules on consumer protection at the execution and performance of contracts at distance, including contracts for financial services, sale of packages of tourist services, abusive clauses in contracts between merchants and consumers, sale of goods and the corresponding warranties, general safety of products as well as other rules in the area of consumer protection. Law No. 363/2007 should bring the Romanian legislation in line with most recent EU legislation on this area, which had been previously well developed in Romania, but needed this additional input.

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