New legislative provisions regarding the agreements for the sale of goods5 January 2022
Significant changes to product compliance, commercial guarantees, and corrective measures will apply to sales agreements concluded between sellers and consumers from the 1st of January 2022. The Government Emergency Ordinance no. 140/2021 on certain aspects regarding the agreements for the sale of goods (“GEO no. 140/2021“) was published in the Official Gazette no. 1245 of 30 December 2021 and transposes into national law the provisions of the Directive (EU) 2019/771 on certain aspects relating to agreements for the sale of goods (the “Directive 2019/771“).
The main legislative novelties brought by GEO no. 140/2021 concern the following aspects:
1. Introduction and definition of notions and terms in the digital sphere
The notion of goods has been extended by including the goods with digital elements, which are defined as “any movable tangible object which incorporates or is interconnected with digital content or a digital service, so that, in the absence of that digital content or digital service, the good would not be able to fulfil its functions”. At the same time, in the content of GEO 140/2021 appears the notion of digital content and is represented by those “data produced and provided in digital format”.
2. Clearly drawing the scope of GEO 140/2021
According to the GEO 140/2021, its provisions apply to:
(i) sales agreements concluded between a consumer and a seller;
(ii) agreements for the supply of goods to be manufactured or produced (in the future); and
(iii) digital content or digital services which are incorporated into or interconnected with goods and which are supplied together with the goods covered by the sales agreement, whether the digital content or digital service in question is supplied by the seller or by a third party.
3. Establishing conformity requirements for goods
In order to comply with the sales agreement, GEO 140/2021 stipulates that the goods must meet both subjective compliance requirements and objective compliance requirements.
Subjectively, the goods must:
▸ comply with the description, type, quantity, and quality stipulated in the sales agreement;
▸ have the functionality, compatibility, interoperability, and other characteristics set out in the sales agreement;
▸ correspond to the particular purpose for which the consumer requests them;
▸ be delivered with all accessories and instructions, including installation, provided in the sales agreement; and
▸ be provided with updates in accordance with the provisions of the sales agreement.
From an objective point of view, the goods must:
▸ correspond to the purposes for which goods of the same type would normally be used;
▸ have the quality and correspond to the description of a sample or a model which the seller made available to the consumer before concluding the agreement;
▸ where appropriate, be supplied with the accessories, including packaging, installation instructions, or other instructions that the consumer can reasonably expect to receive; and
▸ respect the quantity and have the qualities and other characteristics, including in terms of durability, functionality, compatibility, and security, which are normal for goods of the same type and which the consumer can reasonably expect.
4. Commercial guarantees
The commercial guarantee is a legal obligation that falls on the guarantor (i.e., the seller or manufacturer of the goods) under the conditions set out in the commercial guarantee certificate and in the associated advertisements, available at the time or prior to the conclusion of the agreement.
► Sustainability guarantee
GEO 140/2021 provides that if a manufacturer offers the consumer a sustainability guarantee for certain goods for a certain period of time, the manufacturer is directly liable to the consumer, for the entire period covered by the durability guarantee, for the repair or replacement of the goods. At the same time, the manufacturer can offer the consumer more favourable conditions through the commercial sustainability guarantee certificate.
► The prevalence of more favourable commercial conditions for consumers
An important provision is that where the conditions set out in the commercial guarantee certificate are less favourable to the consumer than those set out in the associated advertisements, the commercial guarantee gives rise to a legal obligation under the conditions set out in the commercial guarantee advertisement.
GEO 140/2021 provides certain form and substantive requirements for the commercial guarantee certificate, respectively:
a) Form requirements:
▸it must be offered to the consumer on durable support, at the latest at the time of delivery of goods;
▸ it must be formulated in a simple and intelligible language;
▸ it must be drafted in the Romanian language, without excluding its presentation in other languages.
b) Substantive requirements. The certificate must contain the following elements:
▸ a clear statement indicating the consumer’s right to corrective measures against the seller, free of charge, in the event of non-conformity of the goods and that such measures are not affected by the commercial guarantee;
▸ the name and address of the guarantor and the procedure to be followed by the consumer in order to obtain the implementation of the commercial guarantee;
▸ an indication of the goods to which the commercial guarantee applies and the terms of the commercial guarantee.
5. Establishing express obligations on the seller in connection with the goods with digital elements
As a general rule, the seller is liable to the consumer for any lack of conformity that exists at the time of delivery of the goods and which is ascertained within two years of that date.
In particular, in the case of goods with digital elements, the seller must ensure that the consumer is informed of the updates and that updates are provided to him, including security updates, which are necessary to maintain the conformity of those goods, and according to the GEO 140/2021, the seller’s liability is divided according to two specific criteria.
6. The imperative character of the provisions contained in GEO 140/2021
It is expressly provided that the consumer cannot be bound by any agreement which, to his detriment, excludes the application of the provisions of GEO140/2021, derogates from them or, modifies their effects before the lack of conformity of the goods is brought to the seller’s notice by the consumer.
7. Corrective measures
GEO 140/2021 aims to provide a high level of protection to consumers, expressly providing in this regard the corrective measures that consumers can benefit from and how they can apply them, in case of non-conformity of goods with the agreement provisions. Thus, consumers are entitled to:
(i) bringing goods into conformity – by repair or replacement;
(ii) proportional price reduction, and
(iii) termination of the agreement.
An element of novelty is represented by the possibility for the consumers to opt for a certain corrective measure if the non-conformity of the goods is ascertained shortly after delivery, without exceeding 30 calendar days, GEO140/2021 providing at the same time the sanctions that can be applied in case of non-compliance with the provisions contained therein.