Romania managed to implement on a last minute in December 2021 two EU directives pertaining to the sale of goods. The first directive dealt with “classical” goods[1] (including goods which incorporated minimal digital elements, i.e. mobile phones and smart TV), while the second one was connected with so-called digital goods/ products[2] (i.e. apps, games, e-books). Unfortunately the implementation regulations (EO No. 140 and 141/2021) were prepared on a short notice and are partly incomprehensible and contradictory.

Nevertheless, companies selling all kinds of goods must try to adapt their commercial terms and conditions as soon as possible in order to comply with the regulations.

Conformity of goods

Since “classical” goods now often include digital elements, the definition of conformity has been clarified. Based on the new regulations, the seller undertakes an update obligation ensuring the functionality and IT security of the goods. Any technical limitation is to be indicated clearly in order to avoid possible claims from unsatisfied consumers.

Warranty period

The initial discussions were to extend the warranty period from 2 to 5 years, which was unrealistic. The adopted regulations for classical goods did not take over such proposition, hence the warranty period remains of 2 years (1 year for second-hand goods). A possible confusion exists for goods with digital elements sold together with a continuous supply of the digital content or the digital service. Deviating from the EU-directives, the warranty for the digital part is shorter.

For digital products the warranty period is, however longer (5 years); it is still unclear whether this is just a mistake taken over from the initial discussions or was meant on purpose.

Burden of proof

The new regulations establish a one-year-presumption in favor of the consumer as regards the existence of a certain defect already upon purchase. The seller bears the burden to prove otherwise.

Conclusion

Many questions appear in connection with the Romanian last-minute-implementation of the EU directives. We expect further amendments in the near future, but some companies are bound to make now a difficult risk assessment when adapting their commercial conditions.

Please find more detailed information under: https://stalfort.ro/wp-content/uploads/2022/01/20220127_RO_Higher_consumer_protection_in_connection_with_the_sale_of_goods.pdf

[1] Directive for the sale of goods, namely Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC.

[2] Digital Content Directive, namely Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services.