Collective claims – regulated for the first time in the Romanian legislation

On 1 October 2013 the provisions of Law no. 193/2000 regarding the unfair terms in consumer contracts (“Law no. 193/2000”) which regulates for the first time in Romanian legislation the procedural mechanism for collective claims against sellers of goods or suppliers of services who concluded contracts which include unfair terms.
Initially these amendments were supposed to enter into force together with the new Romanian Civil Procedure Code on 15 February 2013. However, due to the reluctance of several significant Romanian market players, especially from the banking industry segment, among other factors, the effective date of Law no. 193/2000 was postponed several times - first by the Romanian Government until the 1 July 2013 and later on by the Romanian Parliament until 1 October 2013.

Characteristics of collective claims for removing unfair terms from consumer contracts

The revised version of Law no. 193/2000 confers the exclusive right to file a claim against sellers of goods or suppliers of services, so-called “professionals”, who use unfair terms in their consumer contracts to the National Authority for Consumer Protection (“NACP”) and to the representative consumer protection associations. Essentially, filing this type of claim seeks to protect the interests of a group of consumers prejudiced by any unfair terms included in a professional’s standard contract usually entered into by consumers.
Additionally, according to the revised wording of Law no. 193/2000, the consumer protection associations (arguably excluding the NACP), may take legal action against professionals using unfair terms in standard contracts in order to obtain a court decision ordering the latter to cease the future use of such contracts.

If the court in charge of such a claim, deems that the contract comprises unfair terms which are damaging to the consumers, it can order the professional (i) to modify all of its on-going contracts containing unfair terms by removing such unfair terms from the contract, and (ii) to remove the unfair terms from the standard contracts that the professional uses on a regular basis as part of its business activity. Notably, the removal of the unfair terms from all on-going contracts and from the professional’s standard contracts, besides being a protective measure for all present and future consumers that contracted or might contract with the particular professional, has also a punitive effect as it sanctions the professional for using unfair terms in its standard contracts.

A judicial decision rendered as a result of a collective claim, which orders the removal of unfair terms from all the standard contracts of a certain professional, will only have limited effects as it will only affect the contractual relationship between the sued professional and the consumers who entered into the relevant contracts with that professional. This means that other professionals who use the exact same unfair terms in their standard contracts will not be affected by any judicial decision not issued against them directly and may continue to use such unfair terms until then.

Furthermore, the court will also order a fine of no more than RON 1,000 (approximately EUR 227) to the professional found to have used unfair provisions in its contracts with consumers.

The provisions of Law no. 193/2000 regarding collective claims do not affect the consumer’s right to seek the removal of unfair terms by means of individual claims.

Although the said legal provisions are on the immediate verge of entering into force, too many questions arise, especially regarding the manner in which the court decision rendered within a collective claim trial will be implemented in practice. We anticipate that the implications of the new regulations are expected to have significant effects in many industries and the importance of these provisions cannot be denied, as they offer an enhanced protection to consumers in their contractual relationships with professionals.