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Ordinance no. 130 of 08/31/2000 Legal regime of distance contracts

Issued by: Government
Official Journal no. 431 of 09/02/2000

 

On the basis of the procedures of art. 1 07 paragraphs (1) and (3) of the Constitution of Romania and arts. 1 letter R item 5 of Law 125/2000 on the capacity of the Government to issue ordinances,

The Romanian Government adopts the present ordinance

 

CHAPTER I – General procedures


Art. 1.
The present ordinance regulates the conditions for the conclusion and execution of distance contracts between suppliers providing products or services and consumers.

Art. 2.
(1) For the purposes of this ordinance, the following terms are defined as follows:
a) “distance contract” – the product or service provision contract concluded between a supplier and a consumer, within a selling system organised by the supplier, who uses exclusively, before and after concluding the respective contract, one or more means of distance communication;
b) “consumer” – any natural person acquiring, using or consuming products or benefiting of services, outside his professional activity, on the basis of a contract concluded with a supplier, under the conditions of this ordinance;
c) ”supplier” – any natural or legal person, who, in contracts covered by this ordinance, acts within his professional activity;
d) “means of distance communication” – any means that can be used to conclude a contract between a supplier and a consumer without the simultaneous physical presence of the two parties;
e) “operator of a means of communication” – any natural or legal person whose professional activity involves making one or more means of distance communication available to suppliers.
(2) The means of distance communication are mentioned in the annex, which is integrant part of this ordinance.

Art. 3.
(1) In due time, prior to the conclusion of the distance contract, the supplier must inform the consumer, correctly and completely, upon the following:
a) the identity of the supplier and, in the case of contracts requiring payment in advance, his address;
b) the main characteristics of the goods or services;
c) the retail price of the goods or services;
d) delivery costs, where appropriate;
e) the arrangements for payment, delivery or performance;
(f) the existence of a right of withdrawal, except in the cases referred to in this ordinance;
(g) the cost of using the means of distance communication, where it is calculated other than at the basic rate;
(h) the period for which the offer or the price remains valid;
(i) where appropriate, the minimum duration of the contract in the case of contracts for the supply of products or services to be performed permanently or recurrently.
(2) The information referred to in art. 3 paragraph (1), the commercial purpose of which must be made clear, shall be provided in a clear and comprehensible manner in any way appropriate to the means of distance communication used, with due regard, in particular, to the principles of good faith in commercial transactions, and the principles governing the protection of those who are unable, pursuant to the legislation of the Member States, to give their consent, such as minors.
3. In the case of telephone communications, the identity of the supplier and the commercial purpose of the call shall be made explicitly clear at the beginning of any conversation with the consumer.

Art. 4.
(1) The consumer must receive from the supplier in good time during the performance of the contract, in writing or on another durable medium available and accessible to him the following:

a) confirmation of the information referred to in Article 3 (1) (a) to (f), unless the information has already been given in the form stipulated at paragraph (1), prior to conclusion of the contract;
b) the conditions and procedures for exercising the unilateral right of withdrawal, in cases provided for by this ordinance in the form of the following term: "The consumer has the right to notify in writing the supplier that it renounces the purchasing, without penalties or without invoking a reason, within 10 working days since the receipt of the product and in case of services form the conclusion of the contract”, written in bold letters. In case this term is omitted, the product or service is considered as supplied without order from the consumer, according to the provisions of art. 14;
c) the geographical address of the place of business of the supplier to which the consumer may address any complaints;
d) information on after-sales services and guarantees which exist;
e) the conclusion for unilaterally cancelling the contract, where it is of unspecified duration or a duration exceeding one year;
(2) The provisions of paragraph (1) letter a), b), d) and e) shall not apply to services which are performed through the use of a means of distance communication, where they are supplied on only one occasion and are invoiced by the operator of the means of distance communication.

Art. 5.
If the parties have not agreed otherwise, the moment of the distance contract conclusion is the moment the supplier receives the order.

Art. 6.
The provisions of this ordinance do not apply for:
a) contracts regarding investment services, insurance or reinsurance services, bank services, operations related to the pension fund, stock market operations;
b) contracts concluded by means of automated distributors or automated trade shops;
c) contracts concluded by means of public telephones;
d) contracts concluded for building and selling real estates or which refer to other rights related to real estate, except for renting contracts;
e) contracts concluded during auction selling;
f) e-commerce.


CHAPTER II – Right of unilateral withdrawal


Art. 7.
(1) The consumer has the right to withdraw from a distance contract, within 10 working days, without penalties or without invoking any reason. The only costs born by the consumer are the direct expenses for returning the products. The 10-day term starts:
a) for products, since their receipt by the consumer, if the provisions of art. 4 have been observed;
b) for services, starting with the day of the contract conclusion or after, since the day the obligations in art. 4 have been fulfilled, provided the delay does not exceed 90 days.
(2) In case the supplier omitted to send the consumer the information mentioned in art. 4, the term for the withdrawal from the contract is 90 days and starts:
a) for products, from the date of their receipt by the consumer;
b) for services, from the date of the contract conclusion.
(3) If during the 90 days the information in art. 4 are not supplied to the consumer, the 10 working days term for the withdrawal from the contract starts that very moment.

Art. 8.
Where the right of withdrawal has been exercised by the consumer, the supplier shall be obliged to reimburse the sums paid by the consumer free of charge. Such reimbursement must be carried out within 30 days since the date of withdrawal.

Art. 9.
In case, for the product or service making the object of the distance contract, the supplier credits the consumer, directly or on the basis of an agreement concluded by the supplier with a third party, with the withdrawal from the distance contract the credit contract ceases also, without penalties for the consumer.

Art. 10.
The consumer cannot withdraw from the following types of contracts, except for the cases when the parties agreed otherwise:
a) service provision contracts the execution of which started, with the agreement of the consumer, before the 10 working day term mentioned at art. 7, paragraph (1);
b) product on the fluctuations of the financial market rates that cannot be controlled by the supplier;

b) contracts for the supply of products made to the consumer's specifications or clearly personalized or which, by reason of their nature, cannot be returned or are liable to deteriorate or expire rapidly,
d) contracts for the supply of audio or video recordings or computer software which were unsealed by the consumer;
e) contracts for the supply of newspapers, periodicals and magazines;
f) contracts for gaming and lottery services.


CHAPITER III – Performance of distance contracts


Art. 11.
(1) Unless the parties have agreed otherwise, the supplier must execute the order within a maximum of 30 days from the day following that on which the consumer forwarded his order to the supplier.
(2) Where a supplier fails to perform his side of the contract on the grounds that the goods or services ordered are unavailable, the consumer must be informed of this situation and must be able to obtain a refund of any sums he has paid as soon as possible and in any case within 30 days.
(3) The supplier may provide the consumer with products or services of equivalent quality and price provided that this possibility was provided for prior to the conclusion of the contract or in the contract so that the consumer may be informed of this possibility in a clear and comprehensible manner. The cost of returning the goods following exercise of the right of withdrawal shall, in this case, be borne by the supplier, and the consumer must be informed of this. In such cases the supply of goods or services may not be deemed to constitute supply without order within the meaning of Art 14.

Art. 12.
The provisions of arts. 3-4, arts. 7-1 0 and art. 11 paragraph (1) do not apply to contracts regarding:
a) selling of food products, drinks or current household products supplied regularly by the supplier to the consumer’s residence or working place;
b) accommodation, transport, catering, recreation services when the supplier is bound by contract to perform at a precise date or within a specific period; exceptionally, in case of recreation activities in open air, the supplier can preserve the right not to observe the provisions of art. 1, paragraph (2), under specific circumstances.

Art. 13.

In the event of fraudulent use of a consumer’s credit card for the payment of a distance contract price, the consumer has the right to ask for the annulment of the payment. The consumer is to be re-credited with the sums paid or have them returned according to the specific regulations for such payment systems.

Art. 14.

It is prohibited to supply products or services to a consumer without their being ordered by the consumer beforehand, where such supply involves a demand for payment,
in case of supplies for which there is no prior order, the consumer is exempted from the provision of any consideration, the absence of a response not constituting consent.


CHAPITER IV - Restrictions on the use of certain means of distance communication

Art. 15.
Use by a supplier of the following means requires the prior consent of the consumer:
a) automated calling system without human intervention (automatic calling machine),
b) facsimile machine (fax).

Art. 16.
Means of distance communication, other than those referred to in art. 15, which allow individual communications may be used only where there is no clear objection from the consumer.
.


CAPITOLUL V - Sanctions


Art. 17.
The non-compliance with the provisions of arts. 8 and 11 regarding the non-observance of the reimbursement term is considered as a contravention and sanctioned with a fine from 5.000.000 lei to 20.000.000 lei, unless is was performed under such conditions that according to the criminal law, it is a criminal offence.

Art. 18.
The sanctioned mentioned in art. 17 can be applied to legal persons also.

Art. 19.
The minimum and maximum limits of the fines mentioned in art. 17 will be up-dated by Government decision, in terms of the inflation index.

Art. 20.
The empowered representatives of the Consumer Protection Office find the contraventions and apply the sanctions stipulated by art. 17, at the consumer’s claim or ex-officio.

Art. 21.
The contraventions stipulated by art. 17 are subject to the provisions of Law 32/1968 on establishing and sanctioning contraventions, with the later modifications, except for arts. 25-27.


CAPITOLUL VI - Final provisions


Art. 22.
Supplying products and services under the conditions of this ordinance is also subject to G.O. 21/1992 on consumer protection, re-published, with the later modifications.

Art. 23.
In case of dispute, the task to prove the obligations provided by art. 4, to observe the terms and to obtain the consumer’s agreement, stipulated by art. 5, to art. 11 paragraph. (1) and art. 15, belongs to the supplier..

Art. 24.
This ordinance will be in force within 30 days from the date it is published in the Official Journal of Romania, Part I.

 

ANNEX A

 

LIST
Of the distance communication means


a) un-addressed flier;
b) addressed flier;
c) standard letter;
d) published advertising with order ticket;
e) catalogue;
f) human intervention telephone call;
g) automated calling system without human intervention (automatic calling machine, audio-text),
h) radio;
i) videophone (telephone with image);
j) video-text (micro-computer, TV screen with key board or touch screen);
k) e-mail;
l) tele-copying machine (fax);
m) television (tele-shopping).

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