Editur acreditat de CNCSIS Adresa nr.1615 din 29 mai 2002
Refereni tiinifici: Prof. dr. Nicolae VOICULESCU Conf. univ. dr. Carmen Adriana GHEORGHE
ISBN 978-973-598-892-0
ACKNOWLEDGEMENT: This book is supported by the Sectoral Operational Programme Human Resources Development (SOP HRD), financed from the European Social Fund and by the Romanian Government under project number POSDRU/89/1.5/S/59323.
3 TABLE OF CONTENTS Fundamental theoretical elements related to the juridical regulation of the consumer protection in Romania ....................................................... 6
Chapter I. Law and its functions the role of the law in the juridical consumer protection in Romania .................................................................. 7 1. General law notion ....................................................................................... 7 2. Civil law and commercial law. General notions .......................................... 8 3. Civil juridical norm and commercial law juridical norm ........................... 17
Chapter II. The normative document regarding the juridical consumer protection in Romania ................................................................ 21 1. The law sources which are the normative documents of the juridical consumer protection in Romania .................................................................... 21 2. Formal juridical sources of the juridical consumer protection in Romania ......................................................................................................... 22 2.1. Sources of internal system of law ............................................... 22 2.2. European sources of law.............................................................. 27 3. Informal juridical sources of the juridical consumer protection in Romania ......................................................................................................... 28
Chapter III. Application and interpretation of the consumer protection law in Romania .......................................................................... 32 1. Application of law ...................................................................................... 32 1.1. Application of the consumer protection law in time ................... 32 1.2. Applying the consumer protection law in space ......................... 35 1.3. Application of the consumer protection law to persons .............. 35 2. Interpretation of the law ............................................................................. 36
Chapter IV. Civil and commercial aspects of the juridical relation between the consumer and the trader in Romania ................................... 42 1. The terms of civil juridical relation and commercial law juridical relation ............................................................................................................ 42 2. Structure of the juridical relation between the consumer and the trader ... 47 2.1. Parties of the juridical relation .................................................... 47 2.2.1. Traders, general characters ................................................ 50 2.1.2. Consumers ......................................................................... 56 2.2. Content of juridical relation ........................................................ 61 2.3. Object of the juridical relation .................................................... 63
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Chapter V. Civil and commercial aspects regarding the juridical act concluded between the consumer and the trader ...................................... 71 1. Notion and classification of the civil juridical act and the commercial juridical act ..................................................................................................... 71 2. Conditions of the juridical act .................................................................... 82 2.1. Capacity to perfect a juridical act ................................................ 83 2.2. Consent ........................................................................................ 85 2.3. Object of the civil juridical act and of the juridical act concluded by the consumer ................................................................ 87 2.4. Cause of the juridical act ............................................................. 92
Chapter VI. Administrative law issues related to legal documents issued by public authorities with responsibilities for consumer juridical protection ....................................................................................... 94 1. J uridical norms regulating the activity of consumer protection public authorities ....................................................................................................... 94 2. J uridical relations whose subjects are consumer protection public authorities ....................................................................................................... 97 3. Documents issued/adopted by administrative authorities in the consumer protection field ............................................................................... 99
Juridical and economic analysis of the consumer protection legislation in Romania ................................................................................ 101
Chapter VII. The legislation regarding the protection of the consumers of food ecological products in Romania ................................ 102 1. The food ecological products ................................................................... 102 2. Legal analysis of the harmonization of the Romanian legislation with the community legislation in the field of ecological food labeling ..... 105
Chapter VIII. The legislation regarding the ecological label applied to the non-food products and services in Romania, element of consumer protection ................................................................................... 113 1. The non-food ecological products and ecological services ...................... 113 2. The juridical analysis of harmonizing the Romanian legislation with the community legislationin the field of the ecological label applied to the non-food ecological products ................................................ 115
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Chapter IX. Risks and implications of the genetically modified products in the consumer protection field ............................................... 124 1. Risks for the health of the consumers of genetically modified organisms ..................................................................................................... 124 2. Harmonising the Romanian legislation related to the genetically modified organisms to the community legislation ....................................... 130
Chapter X. The legislation regarding the protection of the banking services consumers, expression of the corporate social responsibility ............................................................................................... 155 1. General aspects regarding the corporate social responsibility ................. 155 2. The relation between the banking commercialcompanies in Romania and the corporate social responsibility ......................................................... 156
Contribution of authors is as follows: Prof. PhD. Cristinel Murzea: Chapters I, III, V, VI. Postdoctoral Researcher PhD. Laura Murean: Chapters II, IV, VII, VIII. Ec. PhD. Cristian Poincu: Chapters V, IX, X.
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Fundamental theoretical elements related to the juridical regulation of the consumer protection in Romania
7 CHAPTER I LAW AND ITS FUNCTIONS THE ROLE OF THE LAW IN THE JURIDICAL CONSUMER PROTECTION IN ROMANIA 1. General law notion Law has emerged once the first human community forms have appeared. At first, law rules have not been distinguished from moral rules or religious rules. Even the creators of the Roman law have confused the religious norms (fas) with the juridical norms (jus); the juridical norm had the power and the authority of religion. The person who broke a juridical rule came into conflict with the supreme force; the sanction for such an action was the death punishment. 1
The juridical literature in Romania 2 defines law as a totality of rules provided and guaranteed by the state, which are meant to organize and discipline the human behavior in its main social relations, in an environment where liberties coexist, and the essential human rights and social justice are protected. The rules issued (elaborated) by the state are named juridical norms. The juridical norms are guaranteed by implementing sanctions (included in the juridical norm), if that juridical norm is broken. The implementation is made by the state, by means of the public authority which has competence on a certain territory.
1 Murzea C.: Noiuni de drept civil. (Notions regarding civil law) Editura EMA, Braov. 2000, p. 3. 2 Popa N.: Teoria general a dreptului. (General theory on law) Editura Actami, Bucureti. 1994, p. 91.
8 2. Civil law and commercial law. General notions The state is an absolute reality because it does not acknowledge any higher authority. The state exercises its attributions on a certain territory. The state organises the law on this certain territory and for the people living there. Each state thus legislates on its own territory. Certain law norms are applied only to the respective states in their internal relations, reunited norms of internal law. Other norms are applied to different states coming in contact in the international area (the norms are applied to the states as such, or to the subjects of several states when they come into contact), forming the external or international law. 1
The national law system (similarly as the international law system) is divided into public law system and private law system. 2
Figure no. 1
The public law system deals with the constitution of the state, the public powers, and the relations between the state and citizens, in general. Namely, the public law system regulates the public order, and considers the
1 Djuvara M.: Teoria general a dreptului drept raional, izvoare i drept pozitiv. (The general theory of law rational law, sources and positive law) Editura All, Bucureti, 1995, p. 43. 2 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, p. 3. International law system Public law system Private law system
Commercial law system Law system National law system Public law system Private law system Civil law system
9 organization and activity of the state and public powers constituted within the state, and also the juridical relations established between government and citizens. 1
Private law deals with the private peoples acts, which are related only to their private interests. In other words, private law system deals with the private juridical order, regulating and protecting the individual private social relations, established between private natural persons and legal persons. 2
The private law system mainly includes: the civil law, commercial law, family law, etc. There are authors 3 who divide the private law system into only two main branches: civil law and commercial law. The difference between the civil law system and the commercial law system consists in the fact that the commercial law is applied only to those juridical operations which have either an object that law considers to be commercial (in considering the object), or those operations in which traders participate (in considering the parties, their profession). 4 Thus, the civil law norms would be applicable to those acts or facts which either do not have an object considered by the law to be commercial, or neither of the operation parties is a trader. 5
The civil law system is the most important branch of the private law system. The domain of the civil law system includes those acts which can be performed by any citizen, irrespective of their profession. The civil law system is the general private law system because it governs the most important juridical relations and acts of the private persons. All other private
1 Guillien V. R.: Droit public et droit prive. Melanges Brethe de la Gressaye, 1967, pp. 311 et seq. 2 Micescu I.: Curs de drept civil. (Civil law course) Editura All Beck, Bucureti. 2000, p. 59. 3 Georgescu I. L.: Drept comercial romn. (Romanian commercial law) Vol. 1, Editura All Beck, Bucureti. 2002, p. 5. 4 Finescu I. N.: Curs de drept comercial. (Commercial law course) Vol 1, Editat de Al. Th Doivescu, Bucureti. 1929, p. 7. 5 Bodu S.: Drept comercial completat cu noiunile fundamentale de drept civil. (Commercial Law completed with fundamental notions of civil law) Editura Rosetti. Bucureti, 2005, pp. 17-18.
10 law branches only deal with certain special juridical relations, being special private law systems. It can be stated that the civil law system is the basis of the private law system. The civil law system is the common law in the private law system. This means that it dominates the entire private law system, i.e. whenever no dispositions are available, the civil law shall be applied. 1
The civil law term can have three different meanings. 2 The commercial law can also have three different meanings: First of all, the civil law or commercial law designates a law branch of the Romanian law system, i.e. the totality (ensemble) of the juridical norms in that field. Second of all, the civil law or commercial law evokes that possibility (prerogative) acknowledged by the law to the holder of that right (called active subject) by virtue of which he can ask for a proper behavior to his right from the passive subject, and when needed he can resort to the coercive force of the state for the protection of his right. In this respect, right means a power of the individual (called subjective right). This power from certain people implies submission from others.
Purchase of a product
The right of the consumer to the guarantee for the purchased product The obligation of the trader to offer a guarantee for the sold product
Figure no. 2
1 Djuvara M.: Teoria general a dreptului drept raional, izvoare i drept pozitiv. (The general theory of law rational law, sources and positive law) Editura All, Bucureti, 1995, p. 84. 2 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 1 et seq. Right of subject 1 of the juridical relation Obligation of subject 2 of the juridical relation
11 In the example shown in figure 2, the right of the consumer (subject 1) to a guarantee for the purchased product tallies with the obligation of the trader (subject 2) to offer a guarantee for the sold product, based on the sale and purchase contract concluded between the consumer and the trader. This contract establishes the power of the consumer regarding the guarantee of the purchased product and the submission from the trader. Thirdly, the civil law or the commercial law designates a branch of the juridical science, science which has as an object the civil or commercial rights of the natural and legal persons (subject matter). The Romanian civil law system was defined in the juridical literature 1 to be that branch which regulates patrimonial and non-patrimonial juridical relations established between natural and legal persons, who are juridically equal. In order to understand the definition of the civil law system, the patrimonial and non-patrimonial juridical relations must be defined. The juridical relation whose content can be evaluated in money is patrimonial, and the juridical relation whose content cannot be evaluated in money is non- patrimonial. An example of patrimonial juridical relation: the juridical relation whose juridical source is a sale and purchase contract. An example of non-patrimonial juridical relation: the juridical relation related to the right to a name (for the natural person), or to the right to a denomination (for the legal person). Although the commercial law only includes patrimonial relations, because the trader mainly focuses on obtaining a profit, we consider that the consumer protection institution includes patrimonial relations but also
1 Beleiu G.: Drept civil romn. (Romanian civil law) Editura ansa SRL, Bucureti. 1993, pp. 25 et seq.
12 personal non-patrimonial relations, taking into account the social nature of this law branch. The consumer protection institution is that juridical institution which regulates patrimonial and non-patrimonial relations established between natural and legal persons which are juridically equal. An example of a non-patrimonial relation belonging to the legal institution of the consumer protection is the relation containing the consumers right to food safety. The consumer is legally 1 defined as any natural person or group of natural persons organized in joint ventures, buying, acquiring, using, or consuming products which are outside their professional or commercial activity. The consumer is the subject of a commercial law relation with a mixed nature because the second subject of this relation is a trader. The civil law subjects develop civil juridical relations. The civil law subjects are: the natural person (civil law individual subject) and the legal person (civil law collective subject). The juridical position of the civil law subjects is of juridical equality, neither of the parts is subject to the other. Similarly, as in the case of the commercial law relation, or the relation in whom a consumer is involved, the juridical position of the subjects is of equality. The commercial law system has emerged from a deep need to adapt the law rules to the needs of trade development and blossoming, as an historical act of emancipation and protest against the civil law system and the old traditions which stayed in the way of the trade development. 2
1 Legea nr. 449 din 12.11.2003 privind vnzarea produselor i garaniile asociate acestora (Law no. 449 of 12.11.2003 on selling products and their guarantees), art. 2, lit. a. 2 Schiau I.: Curs de drept comercial. (Commercial law course) Editura Rosetti, Bucureti. 2004, p. 28.
13 The trade notion is used with several meanings 1 : Etymologically, the trade term originates in the Latin word commercium that means with goods (cum and merx). Trade would consist, according to this meaning, in a series of operations involving goods. Economically, trade is defined to be an activity whose purpose is the exchange and circulation of goods from manufacturers to consumers. Thus, trade would include all operations performed from the moment when the goods are manufactured, put into circulation, until the goods get to the consumers. These operations are made by the traders, who are named merchants, who are economic agents different from goods manufacturers. This is the most common meaning for trade notion, and most widespread. From this perspective, the commercial law system would be defined as all the juridical norms regarding the interposition and circulation of the goods from the manufacturers to the consumers. J uridically, the trade notion has a broader content than the trade notion defined in the economical sense. Trade includes more than the goods interposition and circulation operations, performed by the traders, but also the goods manufacturing operations, performed by the manufacturers, together with the execution of works and service provision, performed by the contractors, i.e. the service providers or in general the entrepreneurs.
1 Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-a revizuit i adugit. Editura Universul Juridic, Bucureti. 2007, p. 7.
14 In that context, the commercial law system is defined by juridical doctrine 1 as the totality of the juridical norms which regulates the commercial activity, i.e. goods manufacturing and circulation (distribution), works execution and service provision. The commercial law system has also been defined as a law branch which includes all the juridical norms belonging to the private juridical relations, which derive from the performance of juridical acts, facts and operations, considered as commercial facts by the law, as well as juridical relations in which traders participate. The Romanian legislators option for one or another system establishes the object of the commercial law system. According to the classical meaning of the commercial law system, there are two systems which allow the establishment of the commercial law systems domain: A subjective system according to which the commercial law has as an object the juridical norms used by traders. According to this system, the commercial law system is perceived as a professional law system, which is applied to all persons who have the trader position (quality). An objective system according to which the commercial law system includes the juridical norms applicable to the trade (juridical acts, facts and operations, considered by the law as commercial), irrespective of the person who commits them.
1 Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-a revizuit i adugit. Editura Universul Juridic, Bucureti. 2007, p. 9.
15 According to this system, the norms of the Romanian commercial law system are applied to a category of juridical acts, facts and operations (commercial facts), not to a category of persons (traders). 1
The Romanian Commercial Code, in force on this date, is governed by the objective system. Art. 3 of the Commercial Code establishes the juridical acts, facts and operations considered commercial facts by law, to which the Commercial Code is applied, regardless of the fact that the person who commit them is a trader or not. Thus, in Romania, the law relations between traders and consumers are commercial law relations. The vastness of the community legislation and Romanian legislation regarding the consumer protection, subject of the commercial relations, suggests a special attention given to the commercial goods and services, both at community, and internal levels. However, although the legislation is rich, the problem rising from the doctoral marketing research performed and called Ethics and social responsibility in the marketing field analyses the problematic effectiveness of the activity performed by the public institutions dealing with the consumer protection in Romania. The juridical norms of the commercial law system, as well as the juridical norms of the civil law system, are included in the private law system. So, they concern the business acts (iure gestionis), not the power acts (iure imperii). Regarding the autonomy of the commercial law system to the civil law system, it must be mentioned that at the beginning of the XIXth century, the needs to develop the trade, and implicitly, to defend the interests of the
1 Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-a revizuit i adugit. Editura Universul Juridic, Bucureti. 2007, pp. 8-9, 13-16.
16 traders have led to the acknowledgement and promulgation of the commercial law, as a special law system as compared to the civil law system. The autonomy of the commercial law system is imposed by the following commercial conditions: The frequency and celerity of the commercial transactions need simple rules, with no formalism, as well as great freedom for the trader in preparing the juridical acts. The non-trader concludes juridical acts fairly rare, having necessary time for legal protection measures. The trader, on the contrary, frequently concludes juridical acts, and the rapidity of concluding them is for him a condition of success (time is money). As he is more prepared for such an activity, the trader must have a larger liberty in movement, using simple forms for concluding his juridical relations (telephone, telex, fax or even verbal agreements), and benefiting from the possibility to prove his juridical acts by using all juridical instruments. The role of the commercial transactions in achieving the interests of the traders implies a better punctuality in executing the obligations taken upon them. The interconnection of the juridical relations in which the traders participate imposes a strict compliance with the contractual obligations. In order to achieve this, the commercial law system has certain means, e.g. interests juridical flow. The commercial law system is the most alive part of the private law system; it is a laboratory for experimenting with juridical solutions, in order for them to be adapted to the requirements of the economic life. These solutions can also be regulated in the civil law system only if these solutions prove to be good for the traders.
17 The juridical institution of the consumer protection combines elements of the commercial law, civil law and elements with a particular nature. The norms of the civil law are generally applied to the consumer, although he is a subject of the commercial law juridical relation. In the field of the juridical consumer protection institution, a special legislation has been adopted in Romania particularly regulating the protection of the Romanian consumer. To the extent to which this special legislation is not sufficient to regulate a relation between the consumer and the trader, the commercial juridical norms or the civil juridical norms shall be applied (as the civil law is the common law in the private field). 3. Civil juridical norm and commercial law juridical norm The juridical norm was defined in the juridical literature in Romania 1 as a general behaviour stipulation which can be enforced, if necessary, by the state force of compulsion. We consider that the general theoretical aspects regarding the civil juridical norm can be extended also in the case of the commercial law norm, or the consumer protection norm. The juridical norm of the consumer protection has characteristic features: It is obligatory, the persons who break a juridical norm are punished. Ii is general, a juridical norm is applied to all natural persons (consumers) or legal persons (traders) who are aimed at. It is permanent, the juridical norm is applied to a series of undetermined or similar situations or cases, since it comes into force until it is cancelled.
1 Poenaru E.: Drept civil. Teoria general. Persoanele. (Civil law. General theory. The subjects) Editura Dacia Europa Nova, Lugoj. 2001, pp. 20 et seq.
18 It is adopted (issued) by the public authority which is invested with the promulgation power. It is sanctioned by the public force, not by the private force, i.e. nobody, no consumer, can make justice to himself.
Figure no. 3
From the perspective of their structure, the commercial law norms are made up of: a. Hypothesis: shows the circumstances under which the respective norm is applied. b. Disposition: defines the legal behaviour imposed by the law norms, indicating what is imposed, allowed or forbidden by the law. c. Sanction: shows effects of breaking the disposition. Obligatory General Permanent Punished by the public force Characteristic features of the juridical norm Adopted by the public authority which is invested in this respect
19
The commercial law juridical norms can be classified according to the civil norm model.
Figure no. 4
1. According to the prescribed behavior, the consumers protection norms are divided into: A. Imperative norms: impose o the subjects the obligation to perform an action, or to refrain from doing something. The imperative norms are divided into: A.1. Oneratives norms: impose an action; A.2. Prohibitive norms: impose inaction. According to behaviour disposition According to application domain Iimperative norms Disposition norms General norms Juridical norms Oneratives norms Prohibitive norms Permissive norms Suppletive norms Special norms
20 B. Dispositive norms: allow the derogation from the provisions included. The dispositive norms are divided into: B.1. Permissive norms: allow certain behaviour for juridical subjects; B.2. Suppletive norms: establish a particular behaviour which becomes obligatory when the juridical subjects have not established otherwise). 2. According to application domain, the consumer protection norms are divided into: A. General norms: are applicable to all social relations or to certain branches of law. B. Special norms: are applicable only to certain categories of relations within this branch of law.
21 CHAPTER II THE NORMATIVE DOCUMENT REGARDING THE JURIDICAL CONSUMER PROTECTION IN ROMANIA 1. The law sources which are the normative documents of the juridical consumer protection in Romania The law system sources which are the normative documents of the juridical consumer protection in Romania include the civil law sources, commercial law sources, and specific sources of the juridical institution of the consumer protection. The civil law source is defined 1 as a specific expression form of the civil law system norms. It can be said that the law source which is the normative document of the juridical consumer protection in Romania is a specific expression form of the consumer protection system norms. The civil law system norm is defined as the general and abstract rule which regulates the subjects behavior in their civil juridical relations. So, the consumer protection juridical norm can be defined as a general and abstract rule which regulates, mainly, the behavior of the consumers and traders, subjects of these juridical relations, but also the relations established between these and the public authorities operating in the consumer protection field.
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 22, 6.
22 The juridical source notion may have two meanings 1 : A first meaning of the juridical source (material meaning) is related to the material conditions of existence which generate the norms of this branch. A second meaning for the juridical source (formal meaning) is related to the specific expression forms of the juridical norms. The formal meaning of the juridical source notion must not be confused with the individual juridical relation sources notion. The juridical sources are related to the juridical/normative acts, which are adopted by the three state-constituted powers. The individual juridical relation sources also refer to the juridical (individual) acts and facts. 2. Formal juridical sources of the juridical consumer protection in Romania The formal juridical sources of the juridical consumer protection in Romania can be internal mainly adopted by the Romanian Parliament, and European adopted by the European Union authorities. 2.1. Sources of internal system of law The internal law sources of the juridical consumer protection institution in Romania are the normative documents adopted by the administrative authorities having such prerogatives.
1 Beleiu G.: Drept civil romn. (Romanian civil law) Editura ansa SRL, Bucureti. 1993, pp. 43 et seq.
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Laws (in a strict meaning)
These are the normative acts adopted by state legislative authority (the Romanian Parliament). The laws adopted by Romanian Parliament can be classified into three categories: Constitutional laws: which contain, first of all, the Romanian Constitution (the fundamental law which stipulates the principles of the state organization, citizens fundamental rights and obligations, general norms referring to the most important civil law system institutions, common to the commercial law system - juridical and natural persons, the property right general norms referring to the commercial law institutions the organizational principles of the economic activities, etc.) Organic laws: which develop and describe in detail the principles included in the Constitution. Ordinary Laws: which include all the other laws adopted by the Romanian Parliament, and promulgated (by decree) by the president. The Romanian Constitution includes o series of juridical norms with implications in the field of the juridical consumer protection. Art. 31, regarding the right to information, establishes at alignment (2) the fact that The public authorities, according to their competences, are obliged to provide the correct information of the citizens on public matters and issues of personal interest. This text, which has a general nature, also concerns the obligation of the public authorities operating in the consumer protection field to educate and inform the consumers.
24 Art. 34 related to the protection of health establish the fact that The right to health protection is guaranteed. The state is obliged to take action in order to provide hygiene and public health. These constitutional stipulations also concern the consumers right to food or non-food safety. The products purchased by the consumer, either food or non-food, must not affect the consumers health, or endanger his life. Codes play an important part among the ordinary laws (for example: Civil Code, Commercial Code, Consumption Code, Civil Procedure Code, etc.) which group and systematize in one legislative body all (or a many as possible) regulations applicable in a particular activity field usually (indicated in the code name). The Commercial Code is the main regulation of the commercial activity. It includes juridical norms which regulate the fundamental commercial law system institutions: commerce facts, traders, commercial obligations, etc. 1 A few juridical norms - included in the Commercial Code - regulate particular institutions of the commercial law system (commerce facts, traders quality, commission contract, etc.). Certain norms included in Commercial Code are derogations from the Civil Code rules (favor terms, etc.). Other Commercial Code norms regulate the Civil Code institutions, adapting them to the commercial activity needs (sale and purchase contract, mandate contract). The Consumption Code has as an object the regulation of the juridical relations between traders and consumers related to the purchase of products and services, including financial services, providing the proper framework for the access to products and services, their complete and correct information on their essential features, protection and provision of legitimate rights and
1 Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-a revizuit i adugit. Editura Universul Juridic, Bucureti. 2007, pp. 19 et seq.
25 interests of the consumers against abusive practices, their participation in the fundamentation and decision-making which concerns them as consumers. The most important laws are: Law no. 30 of 1991 regarding commercial companies, republished in 2004, Law no. 296 of 28 J une 2004 regarding the Consumption Code, republished in 2008, Law no. 449 of 2003 regarding product sale and product guarantee, republished in 2008.
Decrees and Law-Decrees
The most important Decrees and Law-Decrees, which are applicable to the field of juridical consumer protection in Romania, are: Decree no. 31 of 1954 regarding natural and juridical persons, Decree no. 167 of 1958 regarding the extinctive prescription.
Government Decisions and Ordinances
The Government Decisions and Ordinances are normative acts adopted by the Government. In exceptional cases, the Government can adopt Emergency Ordinances which would regulate a field, ordinances which would subsequently be approved by means of a law adopted by the Romanian Parliament.
26 In the field of the legal consumer protection in Romania, a series of documents of a normative nature have been adopted: Emergency Ordinance no. 43 of 2007 of the Romanian Government regarding the deliberate bringing into the environment and market of the genetically modified organisms, Emergency Ordinance no. 34 of 2000 of the Romanian Government reading the ecological agricultural food products, Romanian Government Ordinance no. 21 of 1992 regarding consumer protection, republished in 2008, Romanian Government Decision no. 189 of 2002 regarding the establishment of the procedure for granting the ecological label, Romanian Government Decision no. 329 of 2001 regarding the import and marketing of used products.
Other normative documents, subject to the law
These can be formal juridical sources for the institution of the juridical consumer protection if they contain juridical norms from this domain. They are the acts adopted by different public administration central authorities (instructions, regulations, etc.), and acts adopted by the public administration local authorities (local council decisions, mayors dispositions, etc.). In the field of the juridical consumer protection, a series of documents with a normative nature have been adopted: Order of the National Authority for the Consumer Protection no. 448 of 2009, Order of the Ministry of Environment and Water Management no. 55 of 2007 related to the establishment of the National Registry of Information regarding the genetic modifications in the genetically modified organisms, and sending the information to the European Commission.
27 2.2. European sources of law The community normative documents which are applicable in Romania once Romania has adhered to the European Union are also part of the sources of the juridical consumer protection institution in Romania. Such documents are: Regulations no. 271 of the Commission of 2010 to modify Regulations (CE) no. 889/2008 establishing the application norms of Regulations (CE) no. 834/2007 of the Council, regarding the logo of the European Union for the ecological production, Council Regulations no. 834 of 2007 regarding the ecological production and labeling of the ecological products, Regulations CE 1946 of the Parliament and Council of 2003 regarding the transboundary movements of GMOs, Regulations of the European Parliament and Council no. 1980 of 2000 regarding the revised community system of granting the community ecological label, Directive no. 18 of 2001 of the European Parliament and Council regarding the deliberate dissemination of the genetically modified organisms, and annulment of Directive 90/220/CEE of the Council. The regulations are applied to all persons entering their application scope. 1 The regulations create subjective rights in the favor of private persons, citizens of the member states, both natural and legal persons. As compared to the regulations, the directives have an obligatory power only for each member state, to which they appeal to regarding the outcome to be attained. These community normative documents (directives) cannot be
1 Fuerea A.: Drept comunitar european. Partea general. (European community law. General part) Editura All Beck, Bucureti. 2003, p. 108.
28 invoked in the relations between private persons but only against a member state to which they are addressed, as they cannot impose obligations to the persons, as regulations can. 3. Informal juridical sources of the juridical consumer protection in Romania Besides the formal juridical sources, there are other juridical sources called informal or real (customs, doctrine, extrajudicial practice) which are, in general, disputed in Romania.
Morals or social cohabitation rules
Morals include all human behavioral rules. As compared to the law system the totality of social behavior norms, which when needed are implemented by state coercion force morals are the law proximal type. In most cases, the legally regulated rules coincide with morals. 1 So, morals are not a distinct juridical source but a derived juridical source to the extent to which it is included in the law. For example: the situations in which a person feels morally obliged to execute an obligation (even if the law does not impose that obligation and that person is free to make a choice). But once that obligation is voluntarily executed, law intervenes so that the work can no longer be restored to the person who did it, and acted driven by conscience (this is the natural obligation).
1 Abbott K., Pendlebury N., Wardman K.: Business Law. 7 th Edition, Editure Continium, London. 2002, p. 13.
29
Tradition or customs (land tradition, juridical usage)
This is a behavior rule established in time by the social life practice, rule which tends to become a law rule. It manifests itself in an instinctive and non-intentional form. Customs must include two elements: a material element, i.e. a behavior with a certain frequency, habitude, a psychological element, which implies a behavior perceived as obligatory by the public opinion. The custom has features similar to the law: - it is expressed in a general and impersonal form, - it has a particular notoriety, - it can have an obligatory nature, as the case may be. For these reasons, certain authors 1 claim that the custom must be a juridical source in Romania (a secondary and accessory juridical source, as compared to the law, which remains the essential juridical source). The Romanian Law can anytime supress a custom for opportunity reasons, when the law considers that the custom is badly established.
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 26 et seq.
30
Jurisprudence (judicial practice)
J urisprudence means the totality of juridical solutions included in the judiciary authority decisions. J urisprudence is not an actual juridical source in Romania, but only a derivate, interpretative and partly creative source. The particularity of the jurisprudence is that the judicial instances are not obligated to align themselves to a crystallized jurisprudence. But, in fact, in most cases, the juridical instances comply with such a judicial practice, even if those solutions are based on conviction, imitation or fear for the fact that the decision might be canceled by the superior instances. De lege lata (in conformity with the existing legislation in force), the judicial precedent is not and it cannot be a source of the juridical consumer protection institution in Romania. It influences the interpretation and correct application of the norms which are included in the normative acts. Thus, the judicial precedent offers a possibility for the legislator to perfect his creation. 1
Doctrine (the law science)
The doctrine represents the works written by the specialists who explain, comment and interpret the juridical norms. Although the doctrine is not an actual juridical source in Romania, it elaborates the juridical interpretation norms, and creates, in most cases, the vocabulary and juridical notions.
1 Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2005, p. 27.
31 The doctrine often influences the legislator who simply takes doctrine tendencies and incorporates them into laws. As the judicial precedent, at present, the juridical doctrine is not permitted to elaborate laws in the Romanian legislation. Doctrine is not and it cannot be a source of the juridical consumer protection institution in Romania, but it has a great influence upon the legislative powers, when it is created by reputed authors. 1
J urisprudence and doctrine are considered to be indirect juridical sources in the Romanian law system, because even if they have no competence to establish obligatory norms, they can deliver solutions or formulate ideas, which impose themselves by their persuasion power, and whose violation or neglection can entail, for example, the judicial decision annulment by the superior authority for the wrong application of law. 2
1 Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2005, pp. 28 et seq. 2 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 29 et seq.
32 CHAPTER III APPLICATION AND INTERPRETATION OF THE CONSUMER PROTECTION LAW IN ROMANIA 1. Application of law We consider, as the specialized literature in Romania 1 in the private law field, that laws simultaneously operate in three respects: during the time when laws follow each other (application of law in time), on a certain territory on which laws coexist (application of law in space), regarding certain subjects, called law recipients, having specific subject categories to which laws apply (application of law to persons). 1.1. Application of the consumer protection law in time Law, including the consumer protection law, is applied under these three aspects while it is in force. In time, laws have their own life, between the moment of their coming into force and the moment when they are no longer in force. 1
1 Beleiu G.: Drept civil romn. (Romanian civil law) Editura ansa SRL, Bucureti. 1993, pp. 49 et seq.
33 The consumer protection law, adopted by the Romanian Parliament, comes into force either on the day of its publication in the Official J ournal, or on the day mentioned in the law content (if the law specifically mentions a certain date). By the fact that the consumer protection law comes into force, it becomes obligatory; an absolute presumption of knowing the law is applied, a presumption which is applied to all persons, irrespective of their citizenships (nemo censetur legem ingnorare nobody is considered unknowledgeable regarding the law). This means that nobody can avoid the application of the law for reasons of not knowing the law. The consumer protection law is no longer valid when it is abrogated; its abrogation can be explicit or implicit. The express abrogation implies the specification within the new law of the old law, which is no longer valid. On the other hand, the implicit abrogation is incident when the new civil law is incompatible with the dispositions of the old law. The coming out of the effect of the law can also be accomplished by means of the procedure called falling into disuse. The disuse implies that the law has not been applied for a long time or that there have been changes in the circumstances which motivated that particular law. But the juridical literature in Romania 2 does not acknowledge disuse (or rational abrogation) as a way of coming out of the effect of the law, especially in the field of the juridical protection of the consumers rights, a relatively new field in the juridical domain.
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 30 et seq. 2 Beleiu G.: Drept civil romn. (Romanian civil law) Editura ansa SRL, Bucureti. 1993, p. 49; Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, p. 32.
34 From the point of view of the law application in time, the new law can have immediate effects (operating, thus, at present), retroactive effects (applying also over the past), or ultra-active effects (applying also over the future, to certain juridical facts or situations occurring after the law has been abrogated).
Law Retroactivity Consumer protection law Law Ultra-activity
Past Present Future
Figure no. 5
In the domain of the law application in time, the following principles are valid 1 : 1. The principle of the law non-retroactivity means that the new law is only applied to the juridical situations occurring after the law has come into force (the new law is not applied to juridical facts or acts which have occurred before it has come into force). 2. The principle of the immediate application of the new law means that the new law must immediately be applied to all facts which have occurred after its coming into force, but also to all future facts (all that happens under the new law must submit to it). If the occurrence of a juridical situation means the accumulation of circumstances or elements which take place successively in time, then the act creating the respective juridical situation shall be considered to be valid only according to the law in force at the latest moment of its successive creation.
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 33 et seq.
35 1.2. Applying the consumer protection law in space Solving the law conflict in space is made depending on the conflictual norms adopted by each state. An example of law conflicts in space: the case of a Danish citizen who purchases a TV set manufactured in Italy, but sold by a trader from Romania. The conflictual norms in Romania are stipulated by Law no. 105 of 1992 (the regulation of the international private law juridical relations). The Romanian Parliament has adopted a new civil code, law no. 287 of year 2009, which shall come in force on a date which shall be established in the implementation law of this code, a law which has not been adopted yet. Law no. 287 of year 2009, the new civil code, shall regulate the subject matter of the private international law. 1.3. Application of the consumer protection law to persons The fundamental principle which regulates the application of the law to persons is the principle of the subjects equality to the law. According to the category of subjects to which it is applied, we can speak about three law categories: Laws with general application vocation. For example: the Civil Code, Decree no. 31 of 1954 regarding natural and juridical persons. Laws with the application vocation only for natural persons. For example: The Consumption Code, Law no. 449 of 2003 regarding product sale and related guarantees. Laws with the application vocation only to juridical persons. For example: Law no. 31 of 1990 regarding commercial societies, Law
36 no. 15 of 1990 regarding the reorganisation of the economic units as self-governed companies and commercial companies. 2. Interpretation of the law A law cannot be read like a short novel. The juridical text must be deciphered, interpreted (in most cases). 1
To interpret a law means to determine the exact meaning and sense. 2 In other words, the interpretation of the consumer protection law means the logical-rational operation of explanation, explanation of the juridical norms content and sense, aiming at its just application, by correctly framing various situations from everyday life into their own hypotheses. 3
The interpretation is a stage in the process of law application. It is the necessary operation for the correct framing of a practical case into the law hypothesis which stipulates it, which is not always an easy thing. The civil law interpretation can be classified depending on the authority performing the interpretation of the law and the result which is obtained. According to the authority which performs the law interpretation, the interpretation can be: A. Official interpretation: this is performed by a state authority, abilitated to make this interpretation. B. Authentic interpretation: this is performed by the authority that has adopted the norm which is subject to interpretation. For example: Parliament, Government, etc.
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 38 et seq. 2 Poenaru E.: Drept civil. Teoria general. Persoanele. (Civil law. General theory. The subjects) Editura Dacia Europa Nova, Lugoj. 2001, pp. 33 et seq. 3 Beleiu G.: Drept civil romn. (Romanian civil law) Editura ansa SRL, Bucureti. 1993, pp. 53 et seq.
37 C. Legal interpretation: this is performed by a certain state authority which has been empowered by the law to interpret the laws. For example: before 1989, the State Council. D. J udiciary interpretation: this is performed by the judiciary authorities when the norm is applied to practical juridical situations, when the litigations subject to the competent authorities are solved. Unlike the other two types of official interpretations, the judiciary interpretation is not obligatory. E. Unofficial interpretation (doctrinal): this is performed by the persons who do not have the official quality of the state authority, thus not having an obligatory force. For example: the interpretation performed by specialists professors, researchers in their scientific studies, the interpretation performed by lawyers in their pleading or written conclusions. According to the results, the interpretation can be: 1. Literal (strict) interpretation: in this interpretation, the legal text shall strictly be applied to the situations which the legislator has had in mind (determined by the phrases used in the text). An example: Art. 6 stipulates the fact that the provisions included in this Code are mandatory for all the consumers and economic operators performing trade acts and facts, according to the law. Interpreting this text, the conclusion is: it applies to all consumers and economic operators in Romania, with no exception, which means a strict or literal interpretation. 2. Extensive interpretation: which means that the area of the juridical situations to which the law is applied is extended, as compared to the area which seems to result from the terms used by the legislator. This means that the juridical norm does not cover all the situations
38 which (in the legislators intention) should be covered. Extensive interpretation is inadmissible: when the law includes a limitative enumeration, when the law expressly restrains a norm application to a practical situation, when the law establishes an exception from the general rule. 3. Restrictive interpretation: which means that the area of juridical situations for which the law is applied is restricted as compared to the area which seems to result from the terms used by the legislator. An example of restrictive interpretation: item 13 of the Annex of the Consumption Code - the consumer term is defined as any natural person or group of natural persons constituted in joint ventures, which operates for purposes outside their commercial, industrial or production activity, hand-made or liberal. In the literal sense of the word, the consumer term includes, especially in the specialized economics literature, both natural persons (individual consumers), and legal persons (organizational consumers). Interpretation methods that can be used in the Romanian law system shall further be presented. a. Grammatical interpretation is performed using the meaning of the words used by the legislator, and the way they are placed and connected in the sentence. It implies a morphological and syntactic analysis of the text. Sometimes, certain words have a specific meaning in the juridical language, different to the usual meaning from the literary or everyday language. An example: in a strict sense, third person means the third, but in the private law system, third person refers to all others except the contractual parts (or except the real right holder). The grammatical interpretation also implies an analysis of the connection between words in a sentence or clause.
39 b. Logical interpretation is performed according to certain national rules called arguments (interpretation procedures and sayings used by the interpreters of the law systems). The most widespread arguments are further presented. b.1. A pari argument (analogical) states that the reasons are the same, the same law must be applied, respectively the same solution found. Analogical argument must cumulate the following conditions in order to operate: the social relation must not be stipulated expressly by the law, that particular relation must have some similarity with the juridical relation, regulated by the norm which will be applied using analogy (cannot be considered a comparison based on intuition only). There are two kinds of analogies: analogy of laws (analogia legis): when the completion of the laws lacunas are covered using a civil juridical norm, analogy of law systems (analogia juris): when the same thing is done using the principles of the civil law. b2. Using the a fortiori argument, we can extend a norm application from a case stipulated in a law or principle, to a case not expressly stipulated. This is because the reasons which determined the norm adoption can be used a lot more in that practical case. The A fortiori argument is expressed into the Latin adage qui potest plus, potest minus (who can more, can less). b3. The per a contrario argument emphasizes the logical rule: when something is stated, the contrary is negated (qui dicit de uno, negat de altero). So, if a legal stipulation regulates some particular aspects, it is understood that that legal stipulation negates the contrary aspect and vice versa: if the legal text negates one aspect, it means that it affirms the contrary.
40 This argument must carefully be used: the laws silence regarding a solution cannot always lead to the conclusion that the adoption of the contrary solution was aimed at. b4. The reductio ad absurdum supposes that a certain solution is possible rationally speaking; the contrary solution is absurd and so it cannot be accepted. b5. The ab eodem argument (the argument of equivalent form) supposes the following situation: although a form stipulated by the law was not observed, this non-compliance with this form is covered if another equivalent form was used. The law system considers the forms that attain the same goal as equivalent. The application of the logical interpretation of the law must be limited strictly to the situation when the contradiction between the letter of the law and the spirit of the law is obvious. Systematic interpretation focuses on the place of the norm, which must be interpreted in the law context (in chapters, sections, titles etc.) or in the entire legislation context (interpretation is done according to the general or special character of the law, the civil or commercial character of the law etc.). Historical interpretation is concerned with the social-historical conditions in which a law was adopted, preparation operations, parliamentary amendments and discussions which took place before the law was adopted, and other. Teleological interpretation has the aim envisaged by the legislator in the adoption of that particular norm. This aims at finding the text significance (which has to be as close as possible to the legislators presumed intention).
41 Structuralist interpretation implies an analysis of the legal text on the whole. This is an explanation of the general spirit of the law, taking into consideration the frequency of using a word, the arrangements of words in clauses and sentences, the connection between two terms, legal dispositions symmetry or asymmetry etc. In the process of interpreting the law, the interpreter must have a more active and creative position, attitude that can give him the possibility to find an appropriate solution in cases of law lacuna or ambiguity. He cannot deviate from the text because our law system does not allow the judge to create a law rule in an arbitrary way. The interpretation methods cannot be used in a separate way, but together, or, sometimes, it is possible to use only a part of them.
42 CHAPTER IV CIVIL AND COMMERCIAL ASPECTS OF THE JURIDICAL RELATION BETWEEN THE CONSUMER AND THE TRADER IN ROMANIA 1. The terms of civil juridical relation and commercial law juridical relation While living together, people establish relations. The social relations can be the attribute of regulating several domains. Thus, the moral relations are driven by the rules of ethics, while the confessional relations are driven by the religious normativity. The social relations, in which the society is mostly interested, are regulated by the law, and thus the social relations become juridical relations. Therefore, the civil juridical relation is a species of the juridical relation, and governs the matter of the social relations phenomenon which is subject to the civil law. The civil juridical relation is defined by the specialized juridical literature in Romania, 1 as a patrimonial social or non-patrimonial personal relation, which is regulated by the civil law norm. Thus, the personal (non- patrimonial) relations and the patrimonial relations regulated by civil law norms are civil juridical relations. These are, for instance, property relations, obligation relations, succession relations, etc.
1 Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2005, pp. 40 et seq.
43 We consider that we can define the juridical relation between the consumer and the trader as a social patrimonial relation or non-patrimonial personal, which is regulated by the consumers protection norm, which is established between the subjects of this juridical relation.
Regulates behavior norm
Social relation between
Figure no. 6
Before analysing the elements of the civil juridical relation, we consider that the features of the civil law juridical relation must be enumerated: a) The civil juridical relation is a social relation, i.e. a relation between individuals, not a relation between a person and a thing. Any right implies a relation between people; it cannot exist outside the social relations. b) The civil juridical relation has a volitional nature, i.e. the civil law act is determined by the will of the civil subject. c) The civil juridical relation implies the legal equality of the parties, which is an application of the equality in front of the law principle in the civil law field. J uridical norm J uridical relation Consumer Trader
44 These features, we believe, are also applied in the case of the juridical relation belonging to the juridical consumer protection institution. The source of the concrete juridical relation is defined 1 as being a circumstance (act or fact) to which the civil law associates the occurrence of a concrete civil juridical relation. The act or fact which is the source of a concrete civil juridical relation is also the source of the subjective civil rights forming the content of the respective juridical relation. As it can be seen in figure no. 7, also the source of the actual juridical source between the consumer and the trader is a circumstance, act or fact to which the law connects the emergence of this actual juridical relation.
For instance, a relation between a consumer and a trader regarding the granting of the guarantee in the case of a purchased laptop is determined by the fact that that laptop has got defective. A source of this relation belonging to the juridical consumer protection relation is the actual deterioration of the laptop, previously purchased by the consumer.
1 Boroi G.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2001, pp. 41 et seq. J uridical norm Source of the juridical relation - Acts - Facts Trader Consumers right Consumers obligation Traders right Juridical relation Consumer Traders obligation
45 The sources of the concrete civil juridical relations can be classified depending on a series of criteria. We consider that also the actual juridical relations belonging to the consumer protection juridical institution can be subject to the same classification criteria. 1. Depending on their dependence of independence of the human will, the sources of the juridical relations belonging to the consumer protection juridical institution can be divided into: 1.a. Human deeds: (comissive or omissive) performed by the legal subjects belonging to the consumer protection juridical institution with or without the intention of producing legal effects. The law associates to them the occurrence, modification or termination of concrete juridical relations belonging to the consumer protection juridical institution. This category comprises both the voluntary (wanted) actions or inactions, and the involuntary (unwanted) ones. Depending on their being compliant with the law or not, we distinguish the licit and illicit deeds. 1.b. Natural deeds (events): they are the circumstances which occur irrespective of the mans will, and to which the law associates the occurrence of juridical relations. 2. Depending on their range, we distinguish between the broad-sense legal fact (human deeds performed with or without the intention of producing legal effects, and natural facts), and the legal fact in a restricted sense (human deeds performed without the intention of producing legal effects, but produced on the grounds of the law, and natural facts). 3. Depending on their structure, the sources of the concrete juridical relations belonging to the consumer protection juridical institution are simple (broad-sense legal facts whose structure is made up of one single element which creates through itself the concrete juridical relation), and complex
46 (legal facts whose structure is made up of several elements producing valid legal effects only if all of them are united, either successively, or concomitantly). 4. Depending on the subjective civil rights they create: we distinguish between sources of patrimonial rights (which are divided into ways of acquiring real rights and sources of obligations), and sources of non- patrimonial personal rights. Thus, the consumer protection juridical institution includes both juridical patrimonial relations, and personal juridical non-patrimonial relations. The difference, highlighted in figure no. 8, between a juridical patrimonial relation and a personal juridical non-patrimonial relation is that in the first case the juridical relation can be evaluated in money. An example of patrimonial juridical relation regards the purchase of a TV set by a consumer, from a trader. The non-patrimonial personal juridical relation cannot be evaluated in money. An example of non-patrimonial personal juridical relation regards the consumers right not to have his health endangered by theproduct purchased from the trader.
behavior norm regulates
social relation
Figure no. 8
J uridical norm Juridical relation patrimonial can be evaluated in money personal nepatrimonial can be evaluated in money
47 As any juridical relation, the one regarding the juridical consumer protection domain has three constitutive elements 1 : parties, content, object. 2. Structure of the juridical relation between the consumer and the trader 2.1. Parties of the juridical relation The subject of the juridical relation belonging to the consumer protection juridical institution can be defined as the person who has the attribute of being the holder of the rights and obligations creating the content of the juridical relation belonging to the consumer protection juridical institution. They are subjects, individuals or legal entities among which a juridical relation belonging to the consumer protection juridical institution is created, and have, one towards the other, either subjective rights, or civil obligations correlated to these rights. The person acquiring or exerting subjective rights is an active subject (creditor in the obligation juridical relations), while the person who has the obligations is a passive subject (debtor in the obligation juridical relations). Usually, each party of the juridical relation belonging to the consumer protection juridical institution is both an active subject (holder of certain rights), and a passive holder (having certain obligations). Generally, the civil rights and obligations are correlative (the right of a party tallies with a correlative obligation of the other party). There are two subjects in the juridical relation belonging to the consumer protection juridical institution: an active one and a passive one. There are however relations in which several persons can be active (or passive)
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 48 et seq.
48 subjects. In these cases, the correlative rights and obligations are divided between the active or passive subjects. Sometimes however, they are not divided. In this sense: if two consumers buy an apartment from a trader, the seller is obliged to hand over the entire apartment to any of them; he cannot hand over to each of the buyers a half of the apartment. We witness here indivisibility (both the obligation, and the correlative right are indivisible). The rights and obligations are not divided into several active or passive subjects, not even in case of solidarity (when either the law, or the will of the parties imposes the obligation to be executed / the right to be exerted undividedly, by any of the debtors, or in the favour of any of the solidary creditors). For instance: if several persons commit together an illicit and culpable deed a manufacturer and, then, a trader sell a product which endangers a consumers health and thus cause damage to another person the consumer who has purchased the product gets ill , the authors of the deed are solidarily responsible to the victim. This means that the victim, the consumer, can claim and receive the entire compensation from any of the co-doers, manufacturer or trader. The one who completely indemnifies the victim can then recover (by regress action) from the other co-debtors the part incumbent on each of them for bearing the obligation to repair the damage they have done together. The civil capacity to use the civil law subjects is defined as the general disposition to have civil rights and obligations (the disposition to be a civil law subject, and thus be included into civil juridical relations). It is acknowledged by law to all individuals, with no discrimination.
49 The civil usage capacity is general (it comprises all the subjective rights and all the civil obligations acknowledged by the objective law), and it is equal for all individuals. Nobody can be restricted in their usage capacity (as a law subject), except for the cases and conditions expressly provided by the law. The civil usage capacity of the individuals starts when the persons are born and ends when the persons die. The civil usage capacity of the human being starts when the person is conceived (on condition that the person is born alive) in the case of acquiring rights (but not assuming obligations). As for the legal entities, the civil usage capacity occurs when the legal entity is established (or acknowledged, authorized, registered), and ends when it is annulled (or it stops existing by merging, division, dissolving). This capacity is not however general and equal (as with the individuals) but, according to the principle of speciality of the usage capacity of the legal entities, each such person has the capacity to acquire only those rights and assume those obligations corresponding to his/her purpose provided by the law, setting up document or statute. The civil exercise capacity of the civil law subjects is defined as the capacity of the persons to acquire rights and assume obligations by way of their own legal acts. If all individuals have their usage capacity acknowledged by the law, based on the simple fact that they exist as human beings, not all individuals have the exercise capacity, only those who have a conscious will, who have the power of discernment of their deeds (only they can comprehend the consequences of their deeds producing legal effects). The rule is the following: the individuals acquire the full exercise civil capacity when becoming of age (18 years old), an age at which the legislator implies that they have a conscious will and have the discernment to evaluate
50 the importance and consequences of the legal acts they perform. Exception: the persons under age who get married acquire, through this fact itself, the full exercise capacity. Until 14 years old, the persons under age are completely deprived of the exercise capacity, as the law presumes they possess no discernment. As they have the usage capacity, they can become holders of rights and obligations but the legal acts from which these derive, must be concluded, on behalf of the person under age, by his legal representatives. The persons under age who have turned 14 years old acquire a restricted exercise civil capacity (with the previous agreement of their parents or tutor who, according to the law, provides their protection). As a rule, the exercise capacity acquired at the becoming of age lasts the entire duration of life, and ends (as the usage capacity) only when the person dies. As an exception to the rule, the law provides that also the persons of age can sometimes be deprived of the exercise capacity: when, because of suffering from mental alienation or mental debility (being deprived of discernment, conscious will), are laid under an interdiction by a legal decision. As for the consumers use capacity and exercise capacity, we consider that this is not relevant in the field of the juridical consumer protection institution. Also, we consider that the special restrictive regulations related to the asset purchase should be complied with, i.e. the trader should check the fulfillment of the restrictive conditions provided by the special legislation regarding certain assets. The legal entities exert their rights and assume their obligations through their organs (through the individuals entrusted with the management of the respective legal entities according to the law, setting up document or statute).
51 The trader, involved in the juridical relation belonging to the juridical consumer protection institution, must comply with the legal conditions regarding the capacity of the legal person. 2.2.1. Traders, general characters The subjects of the commercial juridical relation can be traders or non- traders, according to the Romanian Commercial Code. The Romanian Commercial Code is based on the objective system. 1 Its regulations are applied to any person who performs objective commercial facts, which are stipulated by the Commercial Code in Article 3. That way, the priority is the character of performed facts, not the condition that the person who performed it has or has not the quality of a trader. A condition for a person to become a trader is for that person to perform commercial facts of professional character (Article 7 Commercial Code). Article 4 Commercial Code stipulates the following: once the quality of a trader is acquired, all acts and operations made by this person are presumed to be commercial. Although the subjects of the commercial juridical relation are traders or non-traders, the commercial activities are performed, in general, by the traders. Also, the trader is one of the subjects of the relation belonging to the juridical consumer protection institution.
1 Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-a revizuit i adugit. Editura Universul Juridic, Bucureti. 2007, pp. 65-426.
52 The commercial juridical doctrine 1 defines the trader as any person natural or juridical who performs a commercial activity, i.e. performs commercial facts of professional character. Because the commercial activity includes the activity that products goods and services and the circulation activity (distribution) of goods, the trader notion is a generic notion. This notion means that any person natural or juridical performs, in a professional manner, a commercial activity, no matter what its object might be. Article 7 Commercial Code divides traders in two categories: natural person traders (individual traders) and Commercial companies (collective traders). But these categories are not the only ones. Article 1 align (2) from Law no. 26/1990, republished in 2008, includes self-governed companies and cooperative organizations. Law no. 161/2003 regulates a new category of traders: economic interest groups. Smaller traders have a special situation.
Traders, natural persons
Natural persons who perform commercial facts of professional character have the quality of traders. The Commercial Code defines the natural person trader not by his/her affiliation to a certain professional group, but by the acts and operations commercial facts he/she performs in a professional manner. Natural persons can perform economic activities in an individual manner or can create familial associations.
1 Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-a revizuit i adugit. Editura Universul Juridic, Bucureti. 2007, p. 66.
53 The familial association is started at the initiative of a natural person and is formed by this persons family members: husband, wife and children up to 16 years, and the relatives up to the 4 th grade. The familial association is an associative form with no juridical personality. It is represented in relations to third parties by the person who has the initiative to form that familial association or by the person mandated based on a certified proxy. Natural persons and familial associations can perform economic activities in all domains, jobs and occupations, except for those which are regulated by special laws. The natural person and the familial association must have the administrative authorization and the registration certificate, which are issued under the condition stipulated by Emergency Ordinance no. 44 of 2008 regarding the development of economic activities by the self- employed persons, individual enterprises and family enterprises.
Commercial companies
The juridical regime of the commercial company was regulated, initially, only by the Commercial Code. But, in 1990 these stipulations were replaced, in general, by stipulations included in Law no. 31/1990, republished in 2004, regarding commercial companies. Additionally, for commercial companies which operate in certain activity areas, a special legislation (in bank area, insurance area) was adopted. But the general legislation regarding commercial companies and the special legislation regarding certain commercial categories of companies are completed by the Commercial Code and the Civil Code stipulations.
54 The civil society was defined, by the specialized juridical literature in Romania 1 , as a contract according to which two or more persons (associates) understand to put in common certain goods in order to perform together a certain activity, having the purpose to obtain and divide the resulting benefits. The commercial company was defined, by the specialized juridical literature in Romania 2 as a group of persons constituted, based on a company contract and benefiting from juridical personality, in which the associates understand to put in common certain goods, in order to perform certain commercial facts, with the purpose to obtain and divide the resulting profit. Regarding commercial companies, the Commercial Code just stipulates that they have the quality of a trader. Commercial companies are acknowledged to have the quality of a trader because of their commercial object. The commercial companies include the commercial companies organized in conformity with the conditions stipulated by Law no. 31/1990 and commercial companies with public capital organized in conformity with Law no. 15/1990. Certain commercial companies with public capital, having the object: activities of national public interest are named national companies or national associations. The self-governed companies were created from public economic unities reorganized in conformity with the conditions stipulated by Law no. 15/1990, in strategic areas of national economy.
1 Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-a revizuit i adugit. Editura Universul Juridic, Bucureti. 2007, p. 153. 2 Idem. p. 156.
55 The self-governed companies perform an activity comparable with the activity performed by the commercial companies. They are not juridical persons and they operate based on the economic administration and the financial autonomy. The cooperative organizations deal with goods production and goods distribution, and service provision. The cooperative organizations operate based on the economic administration and the financial autonomy and they have a juridical personality. The economic interest groups are an associative form having the purpose of helping and developing the economic activities of their members and improving the results of these activities. Regarding Law no. 161/2003, economic interest groups have the quality of traders when their object is of commercial character. Small traders: Article 34 Commercial Code stipulates: Commercial Code disposition regarding commercial registers are not applied to packmen, traders who make small ambulant traffic, carriers or traders whose commerce is a manual profession. But the Commercial Code indicates that the volume of operations does not have relevance for the traders commercial regime. In reality, the dispositions of Article 34 Commercial Code exclude these traders from a professional obligation: to have commercial registers. This exception is determined by the small volume of commercial operations and is conceived to be a measure of protection for traders who, in general, do not have adequate knowledge to keep the commercial registers imposed by law.
56 2.1.2. Consumers The consumer is legally 1 defined as any individual or group of individuals organised in associations, which buy, purchase, use or consume products outside their professional or commercial activities. The volume of community and internal legislation on the protection of this subject of the relations belonging to the consumer protection legal entity indicates a significant importance given to consumers of goods and commercial services, both at community level and internally. 2
Consumer protection is a concept representing the totality of provisions related to public or private initiative intended to ensure and continuously improve the observance of consumers or users interests. 3 Consumer movements are active in consumer protection field. Consumerism is a social movement that aims to make the traders pay higher attention to consumers needs and desires. 4 The trader category includes producers as they perform commercial activities as well. Consumerism originates in United States of America at the beginning of 1900 and related to the scandals occurred at that moment in food and pharmaceutical industries. The second consumers movement, in the 30s, related to a scandal in the pharmaceutical industry as well. The third consumers movement started in the 60s when the better educated consumers were discontent with the activity of American institutions.
1 Law no. 449 of 12.11.2003 on selling products and their guarantees, art. 2, letter a. 2 Murean L.: Etic i responsabilitate social n marketing. Aspecte economice i juridice. (Ethics and social responsibility in marketing. Economic and juridical aspects) Editura C.H. Beck, 2010, pp. 20-40 3 Patriche D.: Protecie a consumatorului. (Consumer protection) n Florescu C., Mlcomete P., Pop N. Al. (coordonatori): Marketing. Dicionar explicativ. Editura Economic, Bucureti. 2003, p. 579. 4 Patriche D.: Consumerism. n Florescu C., Mlcomete P., Pop N. Al. (coordonatori): Marketing. Dicionar explicativ. Editura Economic, Bucureti. 2003, p. 169.
57 American companies were accused of practices that were unethical and damaging for consumers. Consumers rights originate in Consumer Bill of Rights defined by American president J . F. Kennedy, on March 15 th , 1962, as a special message addressed to USA Congress. The main categories of Consumers rights included in that bill were: the right to safety and the rights to be informed, the right to choose, and the right to be heard. The American Congress investigated certain industries and proposed consumer protection legislation. 1 Since then numerous au consumer organisations have been set up and a series of consumer protection laws have been adopted. The consumerist movement has evolved globally, in terms of territory, and has become very strong in Europe. Consumer associations are legal organisation forms specific to consumers, non-governmental and non-profit, aiming to defend the legitimate rights and interests of their members and/or of general consumers in front of authorities and companies. 2 The consumer associations are referred to as consumerist as well. Along with other central and local public bodies responsible for consumer protection, they watch observance of consumers fundamental rights. Depending on the activity field criterion, the following associations can be identified: consumers local associations organised at the level of a consuming area, looking for concrete objectives, consumers national associations performing activities at country level and consumers international associations. An example of consumers international
1 Patriche D.: Drepturi ale consumatorului, ale utilizatorului. (Consumer, user rights) n Florescu C., Mlcomete P., Pop N. Al. (coordonatori): Marketing. Dicionar explicativ. Editura Economic, Bucureti. 2003, p. 221. 2 Drguin M.: Asociaii ale consumatorilor. (Consumer Associations) n Florescu C., Mlcomete P., Pop N. Al. (coordonatori): Marketing. Dicionar explicativ. Editura Economic, Bucureti. 2003, pp. 68-69.
58 association is the International Organization of Consumers Unions, grouping associations in over 40 states. Economic literature 1 considers that in consumer protection field, consumers do not have only rights, but the obligation to protect themselves. The obligation to protect consumers is not only a task of public and private bodies. Both national legislations and international documents consider consumer protection an issue for state power, which must intervene in order to rectify the imbalance between contracting parties: the company (benefiting from employees with legal background) and the consumer. 2
In consumer protection field both private and public bodies are active. In Romania, the public, central and local bodies are the County Consumer Protection Committee (CPC) organised at county level the National Authority for Consumer Protection (ANPC) organised rat central level. Consumers fundamental rights fall into the following categories: rights related to safety in consumption, rights related to choosing products and services, rights related to consumers information, rights for being educated, rights for being indemnified and rights for being represented. The Decision no. 284 of March 11 th , 2009 on A.N.P.C. 3 organisation and operation provides that the National Authority for Consumer Protection, hereinafter referred to as Authority, is a specialised body of the central public administration, with legal personality, subordinated to the Government and coordinated by the Ministry of Small and Medium Enterprises, Trade and Business Environment.
1 Kotler Ph., Wong V., Saunders J ., Armstrong G.: Principles of Marketing. Fourth european edition. Pretice Hall, Harlow. 2005, pp. 183-190. 2 Diaconescu M.: Cadrul juridic al marketingului. (The legal framework for marketing) n Florescu C., Mlcomete P., Pop N. Al. (coordonatori): Marketing. Dicionar explicativ. Editura Economic, Bucureti. 2003, p. 95. 3 Published in the Official J ournal no. 182 of March 24 th , 2009.
59 The National Authority for Consumer Protection coordinates and develops the Government strategy and policy for consumer protection, acts to prevent and fight against practices that prejudice consumers life, health, security and economic interests. The most important objectives of A.N.P.C. are: making state activity efficient as regards consumers direct and indirect protection by market research, informing and educating consumers and strengthening decision ability; stimulating individual and associative self-protection ability, so as it becomes the main protection way; protecting consumers against incorrect commercial practices and promoting good commercial practices. Art. 3 of Decision no. 284/2009 set the most important categories of responsibilities of the National Authority for Consumer Protection. We hereinafter present these responsibilities in theory. The most important of ANPC responsibilities relates to the activity to inform, offer consultancy and educate consumers; editing specialised publications in consumer protection field. The National Authority for Consumer Protection is legally bound to perform activities to educate and inform not only consumers, but companies as well in their relationship with own customers, providing to companies specialised consultancy related to consumer protection. The National Authority for Consumer Protection, together with other bodies of the central and local specialised public administration with responsibilities in the field and with consumers non-governmental bodies participate in the development of the strategy in consumer protection field, providing its correlation with the one existing in the European Union.
60 ANPC has legislative responsibilities as well, proposing for the Government to adopt and approving draft normative documents in consumer protection field; but developing as well together with other specialised bodies of public administration procedures, conditions and collaboration way in performing consumer protection activity. The Authority ensures the harmonization of the national legislative framework with the regulations in the European Union in consumer protection field. 1
The responsibilities of this administrative body extend in executive field as well: evaluates the market effects of the systems to survey products and services intended for consumers, controls observance of legal provisions related to consumer protection, security of products and services as well as to defeating consumers legitimate rights. ascertains contraventions and orders measures to limit the consequences of producing, providing, importing, trading or offering for free certain food or non-food products and services that do not correlate with legal provisions, by applying contravention sanctions provided by law and draws criminal prosecution bodies attention whenever it ascertains breaches of legal law, controls whether the weighing devices used in the market are accompanied by documents provided by law certify their check from metrological point of view, draws the attention of decision factors and operators involved in the quality certification systems for products and services, based on own ascertainment and on information received from non-governmental
1 Murean L.: Etic i responsabilitate social n domeniul marketingului. (Ethics and social responsibility in marketing domain) Tez de doctorat (PhD thesis) Universitatea Transilvania din Braov. 2010.
61 bodies and consumers, related to the non-conformities of the products and services intended for population consumption as compared to certification documents and proposes improvement or development of regulations in the field, performs analyses and tests in laboratories certified according to the law or in own or agreed laboratories; develops or finances studies, comparative tests and research in the field related to the quality of products and services intended for consumers, about which it informs the public. As compared to the old regulation of ANPC, this governmental decision assigns certain responsibilities in correlation with certain jurisdictional aspects, supporting the set up of mediation bodies in consumer protection field. Art. 7 of Decision no. 284/2009 sets forth that A.N.P.C. has 12 regional committees for consumer protection subordinated, as bodies with legal personality, whose organization structure includes county offices for consumer protection and the Bucharest Committee for Consumer Protection as entities without legal personality. 2.2. Content of juridical relation The content of the juridical relations belonging to the juridical consumer protection institution includes all subjective rights and obligations of its parts (subjects). 1 That means active subject rights and passive subject obligations, parts of juridical relation. In other words, the elements of the content of juridical relations belonging to the juridical consumer protection institution are: subjective right and correlative obligation.
1 Beleiu G.: Drept civil romn. (Romanian civil law) Editura ansa SRL, Bucureti. 1993, p. 73.
The rights and obligations are characterized by an interdependent connection (each subjective right is connected to a civil obligation, and each civil obligation is connected to a subjective right of other part). For example: in a sale and purchase contract, the seller/trader has the right to pretend and get the price of the sold good. For this right there is a correlative obligation for the buyer/consumer to pay that price. But, the seller has the obligation to transmit to the buyer/consumer the property of sold good, and the buyer has the correlative right to get the property of that good. The content of juridical relations belonging to the juridical consumer protection institution can be seen from two points of view of those two subjects: for the active subject content of civil juridical relation include the rights and for the passive subject same content include the obligations. Contents of the juridical relation Trader Consumers right Consumers obligation Traders right Juridical relation Consumer Traders obligation
63 In all cases for every subjective right there is a correlative obligation (there is no right without correlative obligation). The subjective right is defined 1 as a possibility of the owner (active subject) to have a certain behavior, guaranteed by the law, with the capacity to pretend from the passive subject a certain correspondent behavior (which can be imposed, if it is necessary, by the constrain force of state). 2.3. Object of the juridical relation The 3 rd structural element of each juridical relation belonging to the juridical consumer protection institution is the object of the juridical relation. 2
The object of the civil juridical relation is 3 the action or non-action (abstaining) to which the active subject is entitled and to which the passive subject is obliged (i.e. the conduct or behavior of the juridical relation subjects). The object must not be confused with the content of juridical relation belonging to the juridical consumer protection institution. The content means subjects rights and obligations (juridical possibilities and juridical debts to pretend and to fulfill certain actions or non-actions). The object means these actions and non-actions which can be pretended by the active subject, and which must be fulfilled by the passive subject.
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, p. 56. 2 Idem. p. 75. 3 Boroi G.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2001, p. 71.
64 Goods
In the case of patrimonial juridical relations belonging to the juridical consumer protection institution (the parties conduct refers to things, i.e. goods) goods are perceived as forming the derivate object of the juridical relation. The thing means 1 all is positioned in nature being perceived through our senses (having a material existence). In the Romanian law, things become goods because of the advantages they offer to people. For a thing to become a good, in the juridical sense, it is necessary to be useful for the human, to have an economical value and to be susceptible to be appropriated (to be taken into possession), in form of rights getting into a patrimony (belonging to a natural person or to a juridical person).
Social relation
Conduct of subject 1 Conduct of subject 2
Figure no. 10
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 76 et seq. Good /asset Derived object of the juridical relation J uridical relation Consumer Trader Action/inaction of the consumeri Action/inaction of the trader
65 The classification of goods has, according to the Romanian private law system, a special signification from theoretical point of view, but especially in practice, because on one hand it determines the nature of juridical relations that can be established regarding some goods, and on the other hand, the juridical regime of different goods categories. The most important classification of the goods concerns the nature of goods and the qualification given by the civil law. Depending on this classification, we can distinguish the following: A. Immobile goods (unmoving): goods with a stabile foundation (land, buildings and everything which is built on soil). The buildings are of three kinds: A.1. Buildings by their nature, which include: A.1.1. Lands and buildings, A.1.2. Windmills and watermills, A.1.3. Harvests which have roots and fruits on trees (when harvests are cut and fruits are picked up they become mobile). A.2. Buildings by their destination: which are mobile goods by their nature, but are considered fictive because they are designated to be accessories to the exploitation of a building: A.2.1. Objects designated for agricultural, industrial or commercial services and exploitation (animals, ploughing instruments, instruments necessary for plants and factories, etc.). A.2.2. Mobile objects standing on a ground with perpetual affectation (statuettes in niches, ornaments fixed in walls etc.). A.2.3. Any other mobile goods put on the ground by their owners for the utility and exploitation of this ground (on condition that the ground owner is also the mobile good owner).
66 A.3. Immobile by the object to which they are applied: this group includes, in an artificial manner, all the rights related to unmoving goods (real immovable rights, immovable debts and real immovable actions). B. Mobile goods (moving): goods with no stable foundation, being susceptible to be moved from a place to another, by them or by another force (animals, things separated from soil, debts, incorporable goods). Mobile goods are divided into three categories: B.1. Mobiles by their nature: bodies that can be moved from a place to another place by them or by another force (non-living things). Living mobiles are only the animals. B.2. Mobiles by law determination (artificial): all rights which refer to a mobile thing (all real rights to mobiles, debt rights and justice actions regarding mobiles, personal non-patrimonial rights intellectual rights , literary and artistic property, clients of a trader, etc.) A.3. Mobiles by anticipation: goods which are immobile by their nature because their incorporation on soil (harvests which have roots and fruits on trees) but parties considered that these goods are mobile in their juridical acts, because of what these goods will become in the future (harvests and fruits sold before their picking). The goods subject to the relation belonging to the consumer protection legal institution fall into the same categories. Another classification of goods relates to the possibility to conclude civil legal documents related to certain goods. We consider that goods, subject to the relation belonging to the consumer protection legal institution, must be part of the civil circuit. To that purpose, this classification is useful in the field of the consumer protection legal institution. Depending on the
67 possibility to conclude civil legal documents related to certain goods, we distinguish among: A. Goods taken out from the civil circuit: goods that cannot be subject of legal documents among persons alive or for death cause (goods that can be only public property objects). B. Goods part of the civil circuit: all other goods for which individuals and legal entities can conclude civil legal documents. The goods in the civil circuit civil can fall into subcategories: B.1. Goods whose circulation is free: that cannot be obtained or transferred by any person. B.2. Goods whose circulation is restricted: either as related to the subjects entitled to obtain or to transfer them, or related to the conditions to conclude legal documents (weapons and ammunition subject to Law no. 295 din 2004 related to their regimen). The next classification of goods, being important for consumer legal protection, related to the way to determine goods in: A. Goods determined by individual features (res certa): things that by their specific features are different from similar goods, giving them a certain individuality. Frequently goods determined individually are nonpareils (manuscript of a work, a picture, a sculpture), and the ones that can be individualized by their particular features: a house identified by locality, street, number. B. Goods determined by generic features (res genera): thinks considered by common features of their entire category and that subsequently individualize by counting, measuring, weighing (money, cereals, fuels etc.).
68 The goods subject to the relation belonging to the consumer protection legal institution can be classified depending on the fact that the usual usage of goods implies or not their consummation of transfer at the first use, in: A. Consumptible goods: goods that cannot be used, according to their usual destination, without having their substance consumed or without being transferred at their first use (foods, fuel, money etc.). B. Non-consumptible goods: goods that can be continuously used without using by this their substance or involving transfer (pieces of land, buildings, furniture, clothes etc.). Depending on the fact that goods can or cannot be divided without changing their destination, we can make distinction between: A. Divisible goods: goods susceptible to be divided, without having their destination changed by this operation. B. Indivisible goods: goods that cannot be divided without having their destination changed. Depending on the correlation among goods, we can make distinction between: A. Main goods: those goods which, having an independent use, are not intended to serve for using other goods. B. Accessory goods: those goods that cannot be useful than by means of other things they are intimately connected to (boxes for musical instruments, over-cover of a book, keys for the locking device, pump for the bicycle, rows for the boat). Depending on the legal regimen of goods, we can make distinction between: A. Simple goods: those goods that form an indivisible unit and that are naturally subject to a homogenous legal regimen (gold, an empty piece of land, a pearl etc.). This simplicity extends as well over goods that if
69 separated, are formed by concrete elements (a building, a picture: made of cloth, oil, paint). B. Composed goods: are made of various and distinct elements for which there is an interest to be sometimes associated or sometimes dissociated (universalities in fact, incorporeal properties etc). Depending on the fact the goods produce or not fruit, we can make distinction among: A. Frugifer goods: goods capable to produce fruit without consuming their substance. Fruits represent all that goods produce periodically without consuming their substance, different from products that involve substance consumption and have periodicity character (marble in a quarry, wood extracted from a forest etc.). We can make distinction among three categories of fruit: A.1. Natural fruit: those products that goods give without any human intervention (grass grown on an uncultivated piece of land, animal breeding, hunting or mushrooms in a forest). A.2. Industrial fruit: those products obtained following human activity (crop produced on the agricultural field). A.3. Civil fruit: equivalent in money or in other things of using goods (rent fees, interests, lease fees etc). B. Non-frugifer goods goods that do not generate any income, referred to as sterile goods (jewellery, golden tablets etc.). The goods subject to the relation belonging to the consumer protection legal institution can be classified depending on the way the goods are perceived, in: A. Corporeal goods: goods that have material existence, being perceived by human senses. They are the ones that can be seen and that we can touch, can be dominated in fact, can be possessed. For the legal notion of corporeal
70 goods it is indifferent whether the goods are solid, liquid or gas. All things around us are corporeal goods. B. Incorporeal goods: goods that have no material existence (body, substance), that lack tangible stuff, such as rights. For example: copyright that means author faculty to exclusively exploit his/her work; apart from heirs, only he/she has this right. Although the author will benefit from copyrights materialized in a money amount (corporeal goods) the actual right does not identify with the amount of money received. The copyright or the prerogative or the faculty he/she has over the work is an abstract thing (incorporeal). Goods subject to the transaction between belonging to the consumer protection legal institution can be classified depending on all classifications presented above. The goods and their classification are not provided in the consumer protection special legislation or in the commercial legislation. In this case common law as regards private law is applies; the provisions in force of the Romanian civil law are applied.
71 CHAPTER V CIVIL AND COMMERCIAL ASPECTS REGARDING THE JURIDICAL ACT CONCLUDED BETWEEN THE CONSUMER AND THE TRADER 1. Notion and classification of the civil juridical act and the commercial juridical act The creativity and proliferation of the civil juridical relation take place through a juridical act. The juridical act is clearly differentiated from other human conducts (actions). The person who performs a civil juridical act is connected through his exteriorized will (intention) to the other persons whose juridical situations are dependent in relation to this manifested attitude. The consumer who performs a judicial act is connected through his will exteriorized to the others whose juridical situations are dependent in relation to this manifested attitude. The majority of the civil juridical relations have their sources in the juridical acts, the contract being a classical example. 1 The general regulations regarding the juridical act and contract are applied in the commercial law, regarding the commercial contracts. The general regulations regarding the civil juridical act, the civil contracts and the commercial contracts are applied in the field of the juridical consumer protection, because there are no special regulations regarding these fields. The special legislation regulating the
1 Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2005, p. 62.
72 juridical consumer protection in Romania includes legal dispositions regarding the special condition of the consumer, inferior to his contractual partner: the trader; the rules regarding the juridical act, the contract concluded between them shall be subject to the norms of the Romanian commercial law system and norms of the Romanian civil law system. Although the juridical act is a fundamental institution of the civil law system, it has no legal definition. The Romanian juridical doctrine has the duty to issue an adequate and complex definition for the civil juridical act. The majority of authors define the civil juridical act as a will manifestation made with the intention to produce juridical effects, to create, to modify or to extinguish a certain civil juridical relation. 1
We consider that the juridical act concluded by the consumer is the will manifestation performed with the intention of producing juridical effects, i.e. create, modify or extinguish an actual juridical relation belonging to the juridical consumer protection institution. If the external motivation for acknowledging the validity of the juridical act is stipulated in the law, an internal motivation is, no doubt, also in the idea of trust (the third parties must be able to rely on the fact that what was said when a civil juridical act was completed, will be observed). An exception in this case is represented by the will (the testament), which is valid even if nobody else, but the testator knows about it. 2 But the acknowledgment of the civil juridical act validity must be searched first in the will autonomy principle, which establishes that each person can decide freely to complete a certain juridical act, with a certain person and with certain content.
1 Beleiu G.: Drept civil romn. (Romanian civil law) Editura ansa SRL, Bucureti. 1993, p. 118. 2 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 96 et seq.
73 Of course, the will autonomy principle is also applied in the consumers case. The civil juridical act is made up of a series of relevant juridical situations and at least one exteriorized will to which the law connects certain juridical results. The kernel of the civil juridical act is that exteriorized will directed to produce juridical effects. When that expressed will is missing, we do not talk about a civil juridical act. In order for a civil juridical act to exist, beside the juridical will, juridical effects are necessary to be produced. These juridical effects consist in creating, changing or extinguishing a certain civil juridical relation, which is the specific difference between the civil juridical act and other juridical acts belonging to other law system branches. Also in the case of the juridical act concluded by the consumer, in order for it to exist, it is required to express the juridical will together with producing juridical effects. The juridical terminology uses the expression civil juridical act in two different senses: on the one hand, it means juridical operation (negotium), and on the other hand, it means proving document, for proving that operation (instrumentum). These senses must not be confused. This way, in the consumer protection field, when we talk about a sale and purchase contract, concluded between a consumer and a trader, it means the operation itself (negotium), the sale, or it means the document that demonstrates this selling (instrumentum) edited and signed by the consumer and trader.
74 The classification of the civil juridical acts can be done according to many criteria. 1 Taking into account the fact that in the consumer protection field these aspects have not received special regulation, the common law in this field shall be applied: the institution of the civil juridical act. According to the number of parties whose juridical will participates in the completion of an act (or the necessity that for the producing juridical effects the will manifestation of a person or several will manifestations might be needed), the civil juridical acts can be: 1. Unilateral civil juridical acts: the result of a single juridical will. They are valid if completed by a single person. For example: the will (testament) through which the testator designates, in a unilateral way, the person who will be his legatee after the testators death, the person who will receive the testators patrimony. The legacy means the disposition within a will (testament) through which a testator leaves a liberality to his heirs, indicated by him. The legatee is the person who receives legacy through heredity. A civil juridical act (in which a single will is expressed) must not be confused with an unilateral contract (as any other convention, it implies the agreement among two or more wills, but just a single part is obliged to the other party). 2. Bilateral civil juridical acts: the civil juridical acts completed by the will agreement between two different parties (each party can include one or more persons). The will manifestation of every party is named consent. Bilateral civil juridical acts are named contracts or conventions. The civil juridical act is bilateral or synalagmatic when the parties are obliged one to another. This means that, at the same time, a party has the quality as creditor and the quality as debtor.
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 97 et seq.
75 This way, in a sale and purchase contract the seller/trader has the quality of a creditor (the right to receive the price) and the quality of a debtor (the obligation to deliver the sold good); and the buyer/consumer has the quality of a debtor (the obligation to pay the price) and the quality of a creditor (the right to receive the purchased good). The civil juridical acts which are applicable in the field of the juridical consumer protection are, most of them, bilateral juridical acts concluded by a consumer and a trader. 3. Multilateral civil juridical acts (collective): those civil juridical acts completed by the will of many parties. We can distinguish two species: On the one hand, collective unilateral acts: include a bunch of identical wills, of unilateral will declarations. For example: the decisions made by the general assembly from a company or acts which constitute a union, an association. On the other hand, collective conventions: as the contract, are based on a will agreement. For example, work collective contracts which are agreements between the persons who represent employees and the persons who represent employers for regulating the conditions of the work contract. In the field of the consumer protection, we can also encounter multilateral juridical acts concluded by a trader with several consumers. According to the purpose aimed at by parties in completing these acts, the civil juridical acts with patrimonial content are divided into: 1. Civil juridical acts with onerous title: civil juridical acts in which the party which gives something to the other party aims, in exchange, at a patrimonial result for him also. In this way, through the civil juridical act
76 with onerous title every party has an interest and gets something from the other party in exchange of what he gives. 1.1. Commutative civil juridical acts: civil juridical acts in which the parties know or can know, at the moment of completing these acts, about the existence and the expansion of his rights and obligations, which are regarded as equivalent from the value point of view. For example: in a sale and purchase contract, the seller knows exactly the sum which he will get, the price, and the buyer knows exactly what goods he will receive in exchange for that price, both parties consider that the price is value corresponds to the good (that their services are mutual and equivalent), as far as the value is concerned. 1.2. Random civil juridical acts: civil juridical acts in which the existence and the expansion of obligations (at least for one party) depend on an uncertain element (named alea, meaning hazard). The parties have in mind the possibility to win or the risk to lose at the moment of completing the act (for example: insurance contract, lottery, etc.) The civil juridical acts which are applicable within the juridical consumer protection institution are, most of them, juridical acts with an onerous title, because the trader, subject of the juridical relation belonging to the juridical consumer protection institution, is always interested in obtaining a profit. 2. Civil juridical acts with gratuitous title: civil juridical acts in which the party, who gives something to the other party, does not aim at obtaining anything in exchange. For example: donation in which getting the ownership
77 of an asset is made without any counter-performance; the donor gets poorer; the gratificant gets richer. 2.1. Liberalities: civil juridical acts in which one party transmits to the other party, with gratuitous title, a good or a fraction of his patrimony, or even all his patrimony (for example: donations, legacies). 2.2. Disinterested acts: civil juridical acts in which one party transmits to the other part a service, with gratuitous title, without influencing his own patrimony (for example: the loan, the gratuitous mandate etc.). In this situation, a person transmits to the other gratuitous advantages, without enjoying his goods. This advantage can consist in a use (loan for gratuitous use), in a non-refunding credit (a bail) or in a non-refunding service (deposit, gratuitous mandate). Considering the time when civil legal documents are to produce effects, they can be: 1. Civil legal documents among people alive (inter vivos): civil legal documents intended by their essence to produce effects during parties life (even if sometimes their effects can extend as well after parties death by active successoral transfer of rights or by passive successoral transfer of obligations included in the successoral patrimony). 2. Civil legal documents for death cause (mortis causa): civil legal documents intended by their essence to produce effects only after partys death (testament, donation of future goods, life insurance). Most of the civil legal documents that have applicability within the consumer protection legal institution are civil legal documents among people alive as both the consumer and the trader, subjects of the legal relation belonging to the consumer protection legal institution are alive when the
78 contract is concluded. As an exception, certain aspects of sales, such as using the guarantee, can be transferred to the consumers heirs, at the same time with the property over goods purchased from various traders, that have legally (or contractually) provided obligations as regards the guarantee of the sold goods. Depending on the type and nature of the effects they produce, civil legal documents, as well as documents concluded among consumers can be: 1. Civil legal documents constitutive of civil rights: civil legal documents by means of which legal relations are created among parties containing correlative rights and obligations that are generated in this way, as they did not previously exist (document to constitute a usufruct right, acquisition of a new car etc.). 2. Civil legal documents transferring civil rights: civil legal documents by which certain rights are transmitted from the patrimony of one party into the patrimony of the other party (sale-purchase contract). 3. Civil legal documents declarative of civil rights: civil legal documents by which parties recognise, confirm, definitive or consolidate certain rights that existed before concluding the document. The legal effects of the declarative documents are retroactive, they go into the past up to the moment the legal relation that initially generated those rights is set up (sale-purchase contract with deadline, transaction etc.). Depending on the importance or the seriousness of certain civil legal documents present as related to the patrimony of the person that concludes them, the civil legal documents can be: 1. Preservation civil legal documents: civil legal documents intended to keep certain rights in the patrimony of the person, consolidation and prevention against their loss. Such documents involve expenses much lower than the value of the rights or of the goods whose salvation is intended; they
79 offer only utilities and involve minimum vigilance. Example: interruption of a prescription to prevent loss of a right because of a long time period when it was not used. Practically, the creditor reclaiming in justice the payment of what it is owed to him/her interrupts in this way the prescription of his/her outstanding debt. 2. Administration civil legal documents: civil legal documents by which it is intended to value, to normally use and exploit goods or a patrimony, without losing (transferring) it. This type of civil legal documents is used to fructify the patrimony goods and involve their normal and current management. For example: To rent a building for less than 5 years, to cash the invoices of the owed amounts. 3. Disposition civil legal documents: civil legal documents whose result is to have goods out of the patrimony of the party concluding the document without an intention to replace (sell) or to entail it with actual tasks (setting up a mortgage). Renouncing a right is also a disposition document. Sale- purchase could be an example. By this operation, the trader transfers the property over the purchased goods to the purchasing consumer. The civil legal documents applicable in the field of consumer legal protection are disposition legal documents, as the consumer, subject to the relation belonging to the consumer protection legal institution, receives the purchased goods, which exit the traders patrimony and enters his/her patrimony. Depending on the requirements of valid forming of the civil legal document, the civil legal documents, as well as documents concluded among consumers, can be: 1. Consensual civil legal documents: civil legal documents that can be validly concluded by simple parties will, no matter its materialization. Romanian law is dominated by consensualism principle (Art. 971 Romania
80 Civil Code); according to this principle, the legal document is valid and produces effects as soon as the parties agreed for its conclusion. 2. Solemn (formal) civil legal documents: civil legal documents whose validity is conditioned by the parties expressing their agreement in a certain solemn form requested by law ad validitatem or ad solemnitatem (acquisition of a car, acquisition of a piece of land etc.). 3. Actual civil legal documents: civil legal documents for whose valid conclusion, along with parties consent, it is necessary to actually submit the thing the document refers to (traditio rei) (goods transport contracts, sale- purchase contract for corporeal goods etc.). Depending on the role of the parties will for setting the content of the legal relation they generate, either a civil legal relation or a legal relation belonging to the consumer protection legal institution, we can distinguish among: 1. Subjective (ordinary) civil legal documents: civil legal documents where the parties freely establish themselves the content of the legal relation connecting them, determining their mutual rights and obligations. The parties the legal effects the document must produce (price, quality, guarantee etc.). The civil law is dominated by the principle of freedom to conclude civil legal documents (or the principle of contractual freedom, the principle of will autonomy etc.). Most of civil legal documents are subjective legal documents. 2. Condition civil legal documents: civil legal documents by which parties materialize their will to conclude the document and to obey in this way the legal rules that form a certain legal institution, with a pre-established content, without being possible to modify these rules or to derogate from them. An example of condition document is the acquisition of an internet
81 provision service. Once the contract concluded, the consumer must obey all imperative rules imperative dictated by the regulator for using the internet. 3. Adhesion civil legal documents (adhesion contracts): occupy an intermediary position (they are half way) between subjective legal documents and condition documents. When a consumer concludes a contract with a big company, the latter imposes their will. Negotiation is out of the question, as well as a discussion from will to will: the stronger imposes their will and the little one can conclude the contract or not. This is why the regulator has a tendency to protect the solitary contractor (consumer) and free competition. Depending on the correlations among civil legal documents, or the documents concluded by the consumer, as regards their relative importance, we can distinguish between: 1. Main civil legal documents: civil legal documents that have their independent legal existence and their faith does not depend on another legal document. Most of civil legal documents are independent documents. 2. Accessory civil legal documents: civil legal documents that do not have their independent legal existence and depend on another main legal document (gage contract, mortgage contract, penal clause etc.). Depending on their strict dependency or independence from the cause element, we can distinguish between: 1. Causal legal documents: legal document whose validity necessary involves the validity of their cause (purpose) so as if the document has an illicit, immoral or fictive cause, the legal document shall be null. Most of civil legal documents or the documents belonging to the consumer protection legal institution are casual documents.
82 2. Abstract legal documents: civil legal documents whose validity is detached from cause validity, being appreciated only depending on the other structural elements (or validity conditions): consent, capacity and object (the shares of companies, the bonds issued by banking companies etc.). They can be applied to civil legal documents and to legal documents concluded by consumers with traders, a series of other classifications, such as the following classification: 1. Civil legal documents with execution in one piece (uno ictu): civil legal documents that are executed by conducting only one conscription. 2. Civil legal documents with successive execution: civil legal documents that are executed either by several successive conscriptions (selling with payment in instalments, payment of monthly instalments when credit is taken from a banking company), or by continuous conscription. 2. Conditions of the juridical act The conditions of the civil juridical act are the components which can and must be included in the structure of the civil juridical act, the elements which form the civil juridical act. 1 These components are necessary for that juridical act to be valid and to produce juridical effects. Similarly, the conditions of the juridical act concluded between a consumer and a trader are the components which can or must be include the structure of the juridical act belonging to the institution of the juridical consumer protection. These components, elements of which the juridical act is made up of in the field of the juridical consumer protection, are required in order for the juridical act to be valid and produce juridical effects.
1 Boroi G.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2001, p. 151.
83 The Civil Code, in force in Romania, is referring strictly to conventions and contracts, but it is generally admitted in the juridical literature in Romania 1 that the stipulations of Art. 948 can be applied to all civil juridical acts, no matter if they are unilateral or bilateral. Art. 948 of the Romanian Civil Code stipulate: The essential conditions for the validity of a convention are: the capacity to contract, the valid consent of the obliged part, a determined object, a legal cause. 2.1. Capacity to perfect a juridical act The capacity to complete civil juridical acts is that civil juridical acts fond, essential and general condition that consists in civil law system subjects ability to become rights and civil obligations titular, after the civil juridical acts are completed. Domain base: Art. 948 point 1 Cod Civil, Art. 949 Civil Code, Art. 950 Civil Code, Art. 808 Civil Code, Art. 856 Civil Code, Art. 1306 Civil Code, Family Code and Decree number 31 from 1954. The person civil capacity includes using capacity and exercise capacity. Using capacity always attracts the exercise capacity, because nobody can exercise a right for himself without being that rights titular, no matter of age, sex, nationality or social condition. In this domain, the capacity of completing civil juridical acts is the rule, and the incapacity is the exception. The incapacities must be express and limitative stipulated within the law, because they are for strict interpretation.
1 Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2005, pp. 81 et seq.
84 A correlation between capacity and discernment is important. The capacity is a law estate and the discernment is a fact estate. A person who has exercise capacity is presumed to have also the discernment for his facts, this presumption being relative, because it can be demonstrated otherwise. For a valid completion of a juridical act, the part or the parties must dispose by a legal capacity, but also by a natural capacity, which presume effective existence of discernment at the right moment of civil juridical act completing. The natural incapacities must always prove in front of a juridical instance, this is a difference to legal incapacities (stipulated within the law) which are presumed. There is the possibility for a person that is declared incapable according to the law (for example a person who is judicial put under interdiction) to have discernment in the moment of completing the act, being at a moment of temporary lucidity. In this case it can not be validated the act which is complete at that moment of lucidity, the presumption of missing capacity being absolute and not breakable. Still, it must be specified that we are referring only to juridical interdicted impossibility to complete juridical acts, but he can be responsible for his illegal juridical facts if it is proved that he worked with discernment. The exception of capacity rule must be express and limitative stipulated into law, being for strict interpretation and application. As for the use and exercise capacity of the consumer, we consider the fact that this is not relevant in the field of the juridical consumer protection. We consider that the special restrictive regulations should be complied with, regarding the procurement of assets, i.e. the trader should check the fulfillment of the restrictive conditions provided by the special legislation regarding the making of certain assets.
85 2.2. Consent The consent is the willful expression of the rightful subject to be connected through the legal act which he consents to (a unilateral expression of will), i.e. the consent is the exteriorized decision to conclude a certain legal act. In order to acquire legal value (in order to be valid), the consent must meet the following conditions 1 : 1. The consent must be given by a person endowed with discernment. As the civil legal act is the expression of will made with the intention of producing legal effects, the person who concludes it must be aware of these effects, must want them, so the person must have discernment in order to deliberate while aware. The natural persons of full age have full legal competence, so they are presumed to have discernment. The persons under age between 14 and 18 years old have limited legal competence, so they are considered to have discernment but as they do not have the legal life experience, the documents concluded by them must previously be consented to by their legal guardian. In the case of the mentally alienated or defective persons, if the document has been concluded while lucid, it shall be considered valid. Contrarily, the lack of discernment during the conclusion of the civil act shall have to be proved. Some authors 1 distinguish between the legal incapacities (where the persons under 14 years old and those laid under a legal interdiction are
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 117 et seq.
86 included), and natural incapacities (where the persons having the legal competence but are temporarily in the situation in which they do not have the required discernment: hypnosis, sleepwalking, intoxication, strong anger, etc. are included). Of course, the juridical act must be concluded by a person endowed with judgment, in the field of the juridical consumer protection institution, judgment is not as relevant as in the civil law system. Moreover, a trader cannot discriminate in any way in selling products or providing services to the consumers. 2. The consent must be exteriorized (stated). In order to become consent, the legal will must be exteriorized. Only the exteriorized will can make the outer world aware of an activity of the psychic life. If left on the inside, the real will does not produce legal effects as it cannot be known by others, and neither can it come into contact with another will, in order for the will agreement, characteristic to the bilateral and multilateral acts, to be achieved. Example: if a consumer has not chosen a product for sale, and has not paid for it, then he shall not acquire the ownership of that product, even if his intention of acquiring that product was well-known by those around him. 3. The consent must be expressed with the intention of producing legal effects. As the legal act is the expression of will made with the intention of producing rightful effects, the consent must express the legal commitment of the author. The will must be expressed, so that the third parties can understand it as producing legal effects.
1 Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2005, pp. 85 et seq.
87 The intention of producing legal effects (as a condition of the consent) is not met when the expression of will is vague, has been expressed in jest, and has been made under a purely potestative condition (I bind myself if I want to). 4. The consent should not be altered by any vice of consent. The expression of will of the parties with the purpose of producing legal effects (in order to be valid) must not only be initiated by a capable and conscious person, but this expression of will must also not be altered by certain vices of consent. The vices of consent are: error, dishonesty (cunning), and violence, and for certain civil legal acts and certain natural persons, injury. In the field of the consumer protection juridical institution, the most widespread are the first two consent vices error, fraud (slyness). In general, the situations in which these consent vices occur are regulated by the special legislation of consumer protection in Romania, and by the normative the European Union, whose member state is Romania. 2.3. Object of the civil juridical act and of the juridical act concluded by the consumer The object of the civil legal act consists 1 in the performance (action or inaction) which the active subject can claim, and the passive subject is forced to perform based on the commitment made by concluding the civil legal act. It can be noticed that the object of civil legal act is identical with the object of the obligations created by the civil legal act, or the object of the civil juridical relation whose source is the civil legal act.
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, p. 139.
88
Social relation between
Consumers conduct Traders conduct
Figure no. 11
As it can be seen in Figure no. 11, the object of the juridical act in the field of the juridical consumer protection is the performance (action or inaction) which the active subject can claim, and the passive subject is obliged to perform it based on the commitment assumed by concluding the juridical act. The performance of the passive subject can be a positive one (commissive to give something or to do something) but can also be a negative one (ommissive not to do something). There are cases in which the object of the legal act is much more complex, including both positive and negative performances. When the action or inaction (performance) refers to a thing (an asset), this thing is the object of the performance, and indirectly, is the exterior object which the civil legal act refers to. 1
1 Poenaru E.: Drept civil. Teoria general. Persoanele. (Civil law. General theory. The subjects) Editura Dacia Europa Nova, Lugoj. 2001, p. 123. Object of the juridical relation J uridical relation Consumer Trader Action/inaction of the consumer Action/inaction of the trader
89 In order for a civil legal act or a juridical act belonging to the juridical consumer protection institution to be valid, the object of the legal act must meet certain conditions 1 : 1. The object must exist. A civil legal act which would not refer to any performance could not be valid. Example: If, when selling it, the sold thing has been completely gone, the sale is null. Thus, if today I, as a trader, am signing a contract with a buyer, through which I am selling a house in Sighioara, without knowing that yesterday the house had been destroyed by an earthquake the sale is not valid. An exception to the rule, according to which the object must exist when concluding the legal act, is the fact that the future goods can become the object of a juridical obligation. Example: in the contract for the provision of computer components, the commercial company obliges itself to produce in the future and sell to the beneficiary the computer components which are the object of the contract. 2. The object (the thing to which the performance refers) must be in the civil circuit. The assets which the law establishes that are not in the civil circuit cannot be estranged by way of legal acts (cannot form the object of a valid act). 3. The object must be determined or determinable. The object can be determined, i.e. individualized, by way of the elements included in the legal act. The object can also be determinable in the future based on elements included in the legal act. An example of a determinable object can be considered a certain asset (individually determined). Thus, the house in Braov, located in 5, Brnduelor St., made up of 3 rooms and annexes, registered in the Land
1 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 140 et seq.
90 Register no. 2255 Braov under A*1 topographic no. 468, registered under my name B. S., can be sold. A generic asset can also be the object of the legal act if its species, quality and quantity are specified in the contract. Example: I am selling the 30 kilos of plums stored in silo no. 4 at Fruit Farm Z. As for the object (performance) of the other party (in the buy-sell contract: price), this must be serious and determined by the parties. n civil law domain, the price can be determined by a third party. For some products, the prices are mandatorily determined by the state (gasoline, etc.). 4. The object of the legal act must be possible (nobody can oblige himself to do something impossible). The impossibility must be absolute (must exist for everybody). The impossibility resulting from the inability of the debtor or relative causes, is irrelevant. For instance: the assumed obligation to transport by car merchandise from Cluj to Bucharest in 2 hours is null, as its object is impossible. The obligation to transport by car merchandise from Cluj to Bucharest is also invalid when the person who assumes this obligation cannot drive or does not own a car. In the case of the obligation to give a certain thing (individually determined) the impossibility of the object can only come from the disappearance of that thing (physical impossibility) or its removal from the civil circuit (legal impossibility). In the case of the obligation to give similar things, practically the object cannot be impossible as long as things of the respective kind exist or can be produced or procured (genera non perent similar things will not disappear).
91 The impossibility of the object must exist when the legal act is concluded. For instance: in 1800, the obligation to go to the Moon was impossible; nowadays, such an obligation is valid, as its object (assumed performance, trip to the moon) is technical and legally possible. 5. The object of the legal act must be licit, i.e. it must not be against the law. The obligation to demolish a building belonging to other persons than those between which the juridical act is concluded is null as it has an illicit object. 6. The object of the legal act must consist in a personal fact of the person who obliges himself (only to the legal acts which imply the performance of a fact, of an action to give or do). However, the following promise is valid: to determine somebody else to conclude a legal act because the promisor obliges himself to a personal fact: to take action in order to convince the third party to conclude a legal act, but the promised act shall be concluded by that third party who will become a debtor through his own consent when concluding the act. 7. Another condition regarding the object of the obligation to give: the person who obliges himself to give must be holder of the respective right (only in the case of legal translative or constitutive acts of real rights). For instance: the case of the seller who must be the owner of the sold asset.
92 2.4. Cause of the juridical act The cause is defined 1 as the purpose intended by the parties when concluding the civil legal act. In the field of the juridical consumer protection, the cause is the purpose aimed at by the consumer and trader when concluding the juridical act belonging to the juridical consumer protection institution. The cause is a psychological legal element which determines the consent, and explains why the legal act has been concluded. As it is a component of the legal will (the determinant reason for the consent), the cause is an element (a validity condition) of the will of each party. Thus, in contracts, we do not only have one cause but two causes (one for each party which obliges itself by consenting to the conclusion of the legal act). It is more correct to call it the obligation cause than the legal act cause. Actually, the cause is the representation of the purpose for which it is consented to the assuming of the obligation (final cause). The cause comprises two different elements 2 : a) An abstract, objective and invariable element in the same category of legal acts. This element consists in the representation of the direct and immediate purpose of the consent (which is the consideration of the counter-performance in the onerous synallagmatic contracts, delivering the thing in the real contracts or the intention of liberality in the free contracts).
1 Popa V. V.: Drept civil. Partea general. Persoanele. (Civil law. General part. The subjects) Editura All Beck, Bucureti. 2005, p. 133. 2 Ungureanu O.: Drept civil. Introducere. (Civil law. Introduction) Editura All Beck, Bucureti. 2000, pp. 143 et seq.
93 b) A concrete, subjective and variable element, as the case may be. This element consists in the mediated purpose of the consent (the main reason which determined the decision to consent to the conclusion of the legal act). For instance: in a buy-sell contract, the immediate purpose of the sellers consent is obtaining the price (an abstract, objective and invariable purpose, the same for all the sellers in the world). The mediated purpose of the consent which concretely explains why the seller has consented to transfer his asset and cash the price is the concretely intended purpose or the concrete destination which the seller wishes to give to the amount obtained as a price (concrete, subjective and variable purpose from a seller to another). In the onerous legal acts, the determined reason must also have been known (or could have been known) by the other party, because otherwise its being sanctioned with bearing the consequences of the cancellation of the civil act would not be justified. The prior condition is not required by the free acts, as the dissolution of the civil legal act does not directly cause damage but only deprives the gratified cocontractor of a free advantage. The cause must fulfill certain conditions: 1. The cause must exist. At Art. 966, the Civil Code stipulates that the obligation without a cause cannot have any effect. There is also no cause in the following cases: missing counterperformance in the synallagmatic contracts, missing submission of the asset in the real contracts, missing risk in the aleatory acts, missing intention to gratify in the free acts. 2. The cause must be real, i.e. it should not be false. 3. The cause must be licit. If the mediated, concrete and subjective purpose is illicit or immoral, this is enough for the legal act to be cancelled.
94 CHAPTER VI ADMINISTRATIVE LAW ISSUES RELATED TO LEGAL DOCUMENTS ISSUED BY PUBLIC AUTHORITIES WITH RESPONSIBILITIES FOR CONSUMER JURIDICAL PROTECTION
The administrative law norms can regulate social relations occurred between bodies of public administration and individuals (individuals or legal entities). In the field of consumer legal protection the County Consumer Protection Committee (CPC) organised at county level and the National Authority for Consumer Protection (ANPC) organised at central level operate. 1. Juridical norms regulating the activity of consumer protection public authorities The administrative law norms, including the ones regulating the legal relations between ANPC or CPC and consumers, as well as the norms regulating the legal relations between these public authorities and traders, present a series of specific features. 1
A. The administrative law norms regulate the social relations that occur among the bodies of public administration for implementing the tasks of the executive power, as well as between these bodies and individuals (individuals or legal entities).
1 Priscaru V. I.: Tratat de drept administrativ romn. (Treaty on Romanian administrative law) Editura Lumina Lex, Bucureti. 2002, pp. 27-44.
95 B. Taking into account the reality that the executive power relates to most of social relations occurring between bodies of public administration and individuals (individuals or legal entities), these norms are, according to their regulation subject, very diversified, from education, health issues up to army and safeguarding countrys boundaries. In the field of consumer protection principle application in Romania, we relate to the norms regulating the relation of ANPC or CPC with consumers or traders. C. The administrative law norms have a different generality degree. Thus, one of them are bounding for all citizens, others are bounding for a large part of citizens, such as consumers or traders, others for a reduced category of persons, even 2-3 persons or only one person. D. The administrative law norms except for the ones included in the Constitution and laws are issued based on and with a view to law execution. As regards the institution for consumer legal protection, the public authorities in Romania having legally set responsibilities in this field, survey and control the application of the Romanian law for consumer protection. The administrative law norms have been divided by the legal literature in Romania 1 into several categories, being based on the regulation object criterion and on the criterion of the sphere for including the norms. A. Depending on the regulation object, the administrative law norms fall into the following categories: A1. Organic norms, the ones regulating the set up, the organization and the operation of certain specialised bodies of the public central administration, e.g. Decision no. 284 of March 11 th , 2009 on organisation and operation of the National Authority for Consumer
1 Priscaru V. I.: Tratat de drept administrativ romn. (Treaty on Romanian administrative law) Editura Lumina Lex, Bucureti. 2002, pp. 27-44.
96 Protection published in the Official J ournal no. 182 of March 24 th , 2009. A2. Material law norms; those administrative law norms regulating the rights and obligations of state bodies public administration bodies and/or of other categories of individuals (individuals or legal entities), such as Law no. 296 of J une 28 th , 2004 on Consumption Code republished in Official J ournal no. 224 din 24.03.2008. A3. Procedurals law norms, namely the administrative law norms whose subject is regulation of procedurals norms, taken into account by certain public administration bodies when performing their activities. B. Depending on the sphere for including the norms, we make distinction among: B1. General norms with large regulating sphere, ca de such as Law no. 31 of 1990 on commercial companies, republished in the Official J ournal no. 1066 of November 17 th , 2004. B2. Special norms, those norms regulating a certain group of well determined social relations, such as Governmental Decision no. 189 of February 28 th , 2002 on setting the procedure to assign the ecological label, published in the Official J ournal no. 166 of March 8 th , 2002. B3. Exceptional norms are the law norms adopted in exceptional cases in order to regulate situations exceptionally occurred. The classification of law norms in terms of their inclusion sphere present importance for their interpretation and application. Thus, a special or an exceptional norm can derogate from general norms of the same degree as the first ones have been adopted or issued in order to regulate a special or an exceptional situation.
97 2. Juridical relations whose subjects are consumer protection public authorities The administrative law relations represent one of the elements of administrative law. Those social relations occur in realizing the tasks of the executive power and are regulated by the administrative law legal norms. The administrative law legal relations are born, modified and disappear in public administration bodies activity to perform the tanks of the executive power. The administrative legal relations occur in a large sphere of activity for the public administration bodies, sphere determined by the concrete performance of the tasks of an executive power in a state: Thus, in Romania there are administrative legal relations whose subject is consumer protection. Administrative legal relations are born, modified or disappear in most of social activity fields where individuals (individuals or legal entities) are subject to these legal relations.
Legal relation 2 Legal relation 3
Legal relation 1
Figure no. 12
As seen in Figure no. 12, most legal relations in the consumer legal protection field, that present administrative law features are set among administrative bodies operating in this field and consumers or traders. The first relation to take place, relation on which the next two ones depend, is the mixed legal relation, regulated by commercial law, between a civil law ANPC / CPC Consumer Trader
98 subject consumer and a commercial law subject trader. Under certain situation, where the legally set consumer rights are breached by the trader, the next two relations will take place as well, belonging to administrative law. Thus, the second legal relation will be the one between consumer and the public authority whose legal obligation is to protect his/her interests. The third legal relation will take place then the public authority whose legal obligation is to protect consumers interests and the trader who ignored consumers interests. As it can be noticed, the two administrative law relations have an accessory character, the main one being the legal relation between consumer and trader. The roots of the administrative legal relation are those legal documents and facts on whose adoption/issuance or performance/non-performance the regulator regulates the occurrence, change or disappearance of the legal law relations. As previously explained, in the consumer protection legal field, these legal facts are of administrative nature consisting in consumers appeal to ANPC or CPC. In consumer protection field a series of administrative relations can be met, independent from other relations, relations set between consumer and ANPC or CPC, whose purpose is to educate and inform consumers.
99 3. Documents issued/adopted by administrative authorities in the consumer protection field The administrative document is perceived by the legal literature in Romania 1 as a tool of the process to exercise executive power. Most of administrative documents represent a rational process to choose one action direction from a number of possibilities, with a view to fulfilling a certain objective. In consumer legal protection field, in Romania, the administrative authorities with responsibilities in the field ANPC and CPC adopt administrative documents with normative character and aim to optimally protect the consumer in relation with the producers or traders in Romania. The public administration represents the activity to be performed by the public administration authorities with a view to organizing, executing or directly executing the law norms adopted by the legislative power. The normative administrative document is adopted by the public authorities included in the system of the public administration authorities. Both the National Authority for Consumer Protection and the County Consumer Protection Committees are part of the system of the Romanian public administration authorities. The documents issued, mainly by ANPC turn into execution the normative documents adopted by the Romanian Parliament, laws that establish the general principles of the consumer legal protection institution in Romania. The administrative document is that form of the administrative activity of the state or of the local community, consisting in express will manifestation, radiating from a public administration authority in realising the will of the legislative power and by which rights and obligations are generated, modified
1 Alexandru I.: Administraia public teorii, realiti, perspective. (Public Administration - theories, facts, perspectives) Editura Lumina Lex, Bucureti. 1999, pp. 479-488.
100 or disappear. By reporting to this definition of the administrative legal document, the documents issued by ANPC and CPC represent an express manifestation of will for these authorities central or local in implementing the will of the executive power of Romania or of European Union by which rights and obligations in the field of consumer legal protection in Romania are generated, modified or disappear. We believe it is important to emphasize that the public authorities with legally set responsibilities in the field of consumer legal protection in Romania can issue documents with normative character, similar to the laws issued by the Romanian Parliament, but, at the same time, they control trader and producers operating in the markets in Romania in order to check the observance of normative documents regulating the consumer protection legal institution.
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Juridical and economic analysis of the consumer protection legislation in Romania
102 CHAPTER VII THE LEGISLATION REGARDING THE PROTECTION OF THE CONSUMERS OF FOOD ECOLOGICAL PRODUCTS IN ROMANIA 1. The food ecological products With regard to the biological agriculture, the cultural biological and mechanical methods are preferably used in comparison with the synthesis products. The purpose of the biological agriculture is designing durable, diversified and balanced systems, providing the protection of the natural resources and the consumers health. The community law, and also the Romanian law, distinguishes between the ecological food and the non-ecological food. Next we will deals with the ecological food. In order to be legally commercialized in Romania, food must comply with the conditions regarding substance, nature and quality required by the buyer. As for the quality of the food, the retail selling of the food allows a few opportunities for the consumer. For the food consumer, these opportunities consist in the ability to obtain attributes of the food he claims. Food tends to be convenience food, and even though they are not convenience food, the serving method in the big stores offers detailed and clear information regarding these products. Consequently, the standards in relation to food and its labeling are highlighted as key communication methods between the supplying channels and the end clients.
103 Certain quality attributes in relation to food can be checked in the consumption process. These quality attributes required by the consumer are: the sensory attributes, storage quality, affordability and safety. However, these are not the only food attributes. The quality of the conditions regarding the distribution of the food, such as food ethics and esthetics, plays a growing part. These conditions cannot be checked by consuming the product. However, consumers might find it difficult to trust products whose obvious attributes are doubtful, under the circumstances in which they are the object of media activity regarding the ethical standards of the commercial companies supplying food, and the honesty of the administrative authorities involved. These attributes are: source of the commercialized food, and its production process. As a general principle, the law concerns only the minimum standards and basis of the public morality, involving a compromise. In the European Union, Great Britain more precisely, ethics a component of the consumers value has been brought into the public eye. In the food field, this is expressed by the difference between reality and theory regarding the protection of the value through the agency of the label, for instance the quality symbol. This symbol is used in order to differentiate the products depending on the ethical production methods. These symbols have been given positive expressions, negative expressions, or neutrally expressed values. An example regarding positive expression is the following: the friend of the dolphins tone. An example regarding negative expression is:not genetically modified. An example regarding neutrally expressed values is the term organic. The negative expression, as well as the exaggerated positive expression of a certain product can be interpreted as a prevention regarding the products of the competition. The ethical provisions condemn both behaviors of the above-mentioned commercial companies.
104 The Western Europeans are convinced that the future of agriculture consists in maintaining a peasantry which would cultivate the land also through the gustative and ecological quality of their products. Europe acknowledges slow food, a movement originating from Italy which supports the excellence of food and its wholesome value. Their opposite, the products containing genetically modified products, designed by the great multinational agroalimentary companies are a technical system adapted to an intensive agriculture. The European consumers and agriculturists express their wish to develop a model radically different from the American model. In 2003, the political Europe adopted the reform of the common agricultural policy, which abandoned the objective of production growth and seriously considered the environment protection. This model tends to acquire an international value, because the world agricultural issue is not to increase the quantity of products, but to protect the individual cultivators. 1
The ecological agriculture also called biological agriculture is considered a cultivation technique which removes the use of fertilizers and synthesis pesticides, in order to eliminate damaging residues from the animal and vegetal production, obtaining health-friendly agroalimentary products, and beneficially acting towards protecting the soils and the phreatic water from pollution by nitrates, nitrites, etc. In the ecological/biologic agriculture, fertilizers are replaced by natural minerals natural phosphates, marine algae, rock dust and compounds obtained by mixes of vegetal and animal organic matters transformed by fermentation. The synthesis chemical pesticides are replaced by natural
1 Duu M.: Tratat de dreptul mediului. (Environmental law treaty) Editura C.H. Beck, Bucureti. 2007, pp. 930-935.
105 products extracted from plants and a few simple industrial products copper salts, sulphur. However, in the current agricultural system, the biological agriculture occupies a still modest place: approx. 1% of the useful agricultural area in France, and 10% in Austria. In Romania, the attempts of the traders to use the ecological agriculture, for lack of natural products replacing synthesis chemical pesticides, are inefficient and have rapidly been abandoned. In order for this type of agriculture biological agriculture to evolve in Romania as well, natural products replacing the synthesis chemical pesticides must be brought to market. 1
2. Legal analysis of the harmonization of the Romanian legislation with the community legislation in the field of ecological food labeling Regulation no. 2092 of 24 J une 1991 of the European Union Council regarding the biological production method of the agricultural products and their presentation on agricultural products and food suggests a specific terminology in relation to the languages acknowledged within the European Union. For instance, the term ecologico is used in Spanish, in English organic, in French biologique. The Romanian legislation chooses the name ecological agroalimentary products. The community document offered a harmonized framework for labeling, production and control of the agricultural products and food, appropriate for a biological manufacturing method. 2 Regulation no. 2092 of 24 J une 1991 of the European Union Council has been modified by Regulation no. 2254 of 27
1 Murean L.: Elemente de dreptul mediului. (Elements regarding environmental law) Editura Universitii Transilvania din Braov. 2007, pp. 80-81. 2 Duu M.: Principii i instituii comunitare de drept comunitar al mediului. (Principles and community institutions of community environmental law) Editura Economic, Bucureti. 2005, p. 322.
106 December 2004 of the European Commission which allowed the protection of the biological agriculture. The limits of this protection are the guarantee of the loyal competition conditions between the manufacturers having these indications, the prevention of anonymity of ecological products on the market, the provision of transparency during each production and preparation phase. These limitations in protecting the biological agriculture at the community level lead to a greater credibility of these products for consumers. Regulation no. 2092 of 24 J une 1991 of the European Union Council has been annulled and replaced by the Regulation of the European Union Council no. 834 of 28 J une 2007 related to the ecological production and labeling of ecological products. As mentioned before, the regulation has a direct applicability for all citizens of the European Union. The Regulation of the European Union Council no. 834 of 28 J une 2007 must for this reason be observed by the citizens of the European Union member states, including the commercial companies performing a commercial activity on the Romanian market. In Romania, the biological agricultural system is part of the action against soil and water pollution. In the Romanian law, the ecological production/agriculture is regulated by Emergency Ordinance no. 34 of 17 April 2000 related to the ecological agroalimentary products, approved by Law no. 38/2001, modified and completed by Emergency Ordinance no. 62/2006, approved by Law no. 513/2006. 1 This internal normative document, Emergency Ordinance no. 34/2000, provides the implementation of the Regulation of the European Union Council no. 834 of 28 J une 2007 regarding the ecological production and ecological product labeling.
1 Published in the Official J ournal no. 172 of 21 April 2000.
107 The legal community framework regulating the ecological production sector intends to attain the objective of providing a loyal competition and adequate operation of an internal market of ecological products, as well as maintaining and justifying the trust of the consumers in the products labeled as ecological. For this reason, i.e. the observance of the legal and also moral rights (because we are considering the consumers trust) of this category of stakeholders, we believe that the requirements of the corporate social responsibility are complied with under three aspects: legal, ecological and ethical. The European Union member states have the option, by means of their internal legislation, to apply stricter norms regarding the ecological vegetal and animal production on condition that these norms are in accordance with the community law, i.e. they should not forbid or restrict the commercialization of ecological products outside the territory of the member state aimed at. The community legislation applicable to the ecological production plays a more and more important role within the agricultural policy, and it is closely connected to the evolution of the agricultural markets. Art. 1 of the Regulation of the European Union Council no. 834/2007 mentions the purpose of this community document. Thus, providing the bases for a durable development of the ecological production is first aimed at, an aspect which combines the economic responsibility (the durable development implies a commercial activity observing the legal and moral requirements for the environment protection) with the legal responsibility (reflection of these aspects in the normative documents in force), the ecological responsibility and the ethical responsibility (observing the moral norms regarding environment protection).
108 Secondly, at the community level, the efficient operation of the internal market and guarantee of a loyal competition are aimed at. Then, at the community level, a protection of the consumers purchasing ecological food is aimed at by: providing the consumers trust, and protecting the consumers interests. Art. 2 of the Regulation of the European Union Council no. 834/2007 defines the most important terms being used in the biological agriculture field. The reason for defining these terms consists in clearly stating the features, activities, or any other constitutive elements of these notions. Emergency Ordinance no. 34/2000 enumerates the main principles of the ecological agroalimentary production. The main principles are: eliminating any polluting technology; economical use of the conventional energetic resources, and replacing them to a greater extent by rationally using the reusable secondary products; applying technologies both for plant cultivation, and animal raising, which would satisfy the requirements of the species, sorts, and races. All these principles, provided by the internal normative document, support the requirements of the corporate social responsibility by taking into account the main categories of external stakeholders: natural environment and consumers. The labeling of the ecological products shall be analyzed by presenting the community stipulations, and then the internal normative stipulations related to the community stipulations. The ecological food has a special community legal regime. The products obtained by means of the biological agriculture are labeled, so as to inform the buyer that the product or ingredients contained by a product have been obtained in conformity with ecological production methods.
109 In order to provide clarity for the consumers on the entire community market, the European Union sigle is mandatory for all pre-wrapped ecological food produced on the European Community territory. The community legislation establishes the obligation of the member states to make possible, by means of the internal legislation adopted by these states, the voluntary application of the European Union sigle on the ecological products which are not pre-wrapped, obtained on the Community territory, or on any ecological products imported from third countries. The limitation of applying the European Union sigle regards those products exclusively or mostly including ecological ingredients, in order not to mislead the consumers about the ecological nature of the entire product. For this reason, the European Union member states have the obligation to forbid, in their internal legislation, the use of this sigle when labeling products during their conversion period, or processed food containing ecological agricultural ingredients in a proportion smaller than 95%. The community stipulations provide the fact that processed food can be labeled as ecological only when all or most of their agricultural ingredients are ecological. And as an exception, at the internal level, one must set special labeling instructions for the processed food containing agricultural ingredients which cannot ecologically be obtained. Thus, such processed food containing agricultural ingredients which cannot ecologically be obtained are hunting and fishing products. In order to inform the consumers, to ensure the transparence of the market, and to promote the use of ecological ingredients, the community legislation establishes certain obligations to be fulfilled by the member states. These obligations regard the inclusion in the internal legislation of the possibility to mention the ecological production method in the ingredients list.
110 The labeling is regulated in Title IV of the European Union Regulation no. 834/2007. A product is considered as bearing terms referring to the ecological production method if, on the label, advertisements, or commercial documents, the product in question, its ingredients or raw materials are described in words suggesting the buyer that these have been obtained according to the norms applicable to the production, provided by the community legislation. It is forbidden to use any terms, including terms used in commercial brands, or practices used in labeling or promoting which can mislead the consumer or user by suggesting the fact that a product or its ingredients meet the exigencies stipulated by the Council Regulation no. 834/2007. The labeling of the ecological products is regulated in chapter IV of Emergency Ordinance no. 34/2000. The labeling is made in accordance with the legal regulations in force, which complete this internal normative document. These stipulations are part of the normative documents which lay at the basis of the consumers protection legal institution. The labels shall include a sigle specific to the controlled ecological products, registered at the State Office for Inventions and Trademarks. This sigle shall be issued and applied based on the certification system, indicating the fact that the respective product is compliant with the ecological production rules. Emergency Ordinance no. 34/2000 regards the products obtained and labeled in order to inform the buyer that the product and/or the ingredients contained by the product have been obtained in accordance with the ecological production methods. Taking into account Romanias integration into the European Union, the adoption and application of the community regulations regarding the promotion of the Romanian traditional and ecological products, and the
111 provision of consultancy in the field of protecting the geographical indications, origin names and guaranteed traditional specialties of the Romanian traditional products, has determined the establishment of an administrative organism with attributions in the field of traditional and ecological Romanian products. The National Office of Romanian Traditional and Ecological Products has been established and is regulated by the Government Emergency Ordinance no. 42 of 16 April 2008. 1 This office meets the need to strictly monitor the registration, authorization and promotion of the Romanian traditional and ecological products which shall be commercialized on the internal market. The National Office of Romanian Traditional and Ecological Products is an administrative authority with attributions in the field of consumers protection and environment protection. It guarantees the consumers a special quality of the products by means of their origin, composition, and domestic production method. The National Office of Romanian Traditional and Ecological Products has the following main attributions: provides the promotion of the Quality products concept, as well as the Ecological products concept; provides technical assistance to the manufacturers or processors when preparing the documentation, according to the community and national legislation, in order to request the protection of the geographical indications, origin names and guaranteed traditional specialties of the Romanian agricultural products or food, at the national and community level; provides the promotion of the image of the Romanian traditional and ecological products by means of communication.
1 Published in the Official J ournal no. 305 of 18 April 2008.
112 Thus, as far as the control of observing the community and internal stipulations is concerned, an administrative organism with attributions in the field of the Romanian traditional and ecological products has been established in Romania. This way, the Romanian legislation performs an adequate implementation of the community and internal norms in the field of ecological vegetal and animal production. As mentioned before, after analyzing the labeling of the ecological food, the community provisions regarding this category of products are transposed into the internal normative provisions. Thus, it can be said that the Romanian law is harmonized with the community law. As for the possibility of developing this type of agriculture the biological agriculture in Romania, we believe that the natural products replacing the synthesis chemical pesticides are necessary on the Romanian market. 1
1 Murzea C., Murean L.: The protection of the ecological food consumers - a social responsibility of the commercial companies. in Proceedings of the International Scientific Conference: Bioatlas, May 27-30, 2009, Braov, published in Journal of EcoAgro Turism vol. 6 (2010), nr. 3 (20) pp. 149-154.
113 CHAPTER VIII THE LEGISLATION REGARDING THE ECOLOGICAL LABEL APPLIED TO THE NON-FOOD PRODUCTS AND SERVICES IN ROMANIA, ELEMENT OF CONSUMER PROTECTION 1. The non-food ecological products and ecological services In order for the non-food products less affecting the natural environment to be acknowledged as non-food ecological products, they must ecologically be labeled. The ecological label practically designates those products which can determine the diminution of the negative impact on the environment, as compared to other products of the same products group, without causing damage to the regulation instructions applicable to products at the community and national level. An example of non-food ecological products is the green Wrangler blue jeans, manufactured by means of environmentally friendly processes. Even though the production cost is high, after these blue jeans are washed, they do not pollute the discharged water after being washed, and do not affect the environment. The advertisement message of these eco-products has been the following: a small step for man, a giant leap for fish and turtles 1
1 Hawkins D. I., Best R. J ., Coney K. A.: Consumer Behavior. Building Marketing Strategy. Mc Graw Hill, Boston. 1998, p. 87.
114 An example of ecological services and products recently provided/commercialized in Romania is the ecological car wash without using water, as well as the products used for this operation (products also offered by the Romanian commercial companies). These products are ecological, and the service performed by the Romanian commercial companies offers a no-water car wash, eliminating the residues polluting the soil and the polluted water discharged after the car wash. 1
The rule according to which it is more important to discover than prevent the ecological problems before they manifest themselves, has determined the use of the ecological label/mark as a means of promoting the environmentally friendly products. The main role of the ecological label is to inform consumers on the products considered to be less destructive for the environment than other similar products. 2
The eco-label or ecological label is used by the commercial companies performing a commercial activity as an instrument of attracting the clientele, guaranteeing products having a minimum impact upon the environment during their entire lifetime. Internationally, there is a great variety of such ecological labels supported/financed by governments, private groups, or a combination of them. The ecological labels show the characteristics of the product and the methods used while manufacturing it. 3
1 Spltorie auto ecologic mobil fr utilizarea apei. http://www.spalatoriefaraapa.ro/spa/ ?page_id=2 2 Duu M.: Tratat de dreptul mediului. (Environmental law treaty) Editura C.H. Beck, Bucureti. 2007, p. 449. 3 Matsushita M., Schoenbaum T. J ., Mavroidis P. C.: The Word Trade Organization. Law, Practice and Policy. Oxford University Press, 2003, pp. 471-472.
115 2. The juridical analysis of harmonizing the Romanian legislation with the community legislation in the field of the ecological label applied to the non-food ecological products The ecological label is a method of transmitting information to the consumer regarding the natural environment, specifying that a product is environmentally friendlier, as compared to other similar products. 1
In the field of granting ecological labels to wide consumption products except for food, drinks, and medicines the European Parliament and Council Regulation no. 1980 of 2000 has been adopted. In 2010, these regulations have been replaced by the Regulation No 66/2010 of the European Parliament and of the Council of 25 November 2009 2 which have introduced the EU ecological labeling system. This European ecological labeling system has as an objective the reduction of the negative impact of the consumption and production upon the environment, health, climate and natural resources. 3 The system is meant to promote those products which have a high environmental performance level, by means of the use of the ecological label. The Regulation No 66/2010 of the European Parliament and of the Council state the fact that the possibility of using the EU ecological label should be extended in order to encourage higher environmental performances in all the fields for which the impact on the environment is a factor in the choice made by the consumer. 4
1 Gertz R.: Access to Environmental Information and the German Blue Angel Lessons to be Learned?. European Environmental Law Review volume. 10, October 2004, Blackwell Publishing, p. 268. 2 Published in the Official J ournal of the European Communities L 27 of 30 J anuary 2001. 3 Point 5 in the Preamble of the Regulation No 66/2010 of the European Parliament and of the Council. 4 Point 6 in the Preamble of the Regulation No 66/2010 of the European Parliament and of the Council.
116 In order to harmonize the internal legislation with the community legislation, Decision no. 189 of 28 February 2002 of the Romanian Government has also been adopted, a decision which has expressly been abrogated and replaced by Decision no. 236 of 7 March 2007. The label can be defined 1 as any written, printed, lithographed, engraved, or illustrated material, which includes product identification elements, and accompanies the product, presented for sale, or is applied on its package. The label can have additional singles or other ecological marks, as well as advertising elements inscribed or attached, while complying with the legislation in force. The label is a simple rapid method of informing the consumers upon the products offered by the manufacturing commercial companies, and plays an essential role in the commercial activity of several commercial companies. The rule according to which it is more important to discover and prevent the ecological problems before they manifest themselves, has determined the design of the ecological label/mark. This special type of label ecological label is a means of promoting the environmentally friendly products. The main role of the ecological label is to inform the consumers upon the products considered as being less destructive for the environment than other similar products. 2 The purpose considered by the ecological labeling is to encourage the manufacturers to follow the ecological direction. However, the specialty legal literature 3 suggests the fact that there should be a balance between the competitive interests of the consumer and the commercial company which is the owner of the mark. In other words, in the field of protection offered by the mark to the consumers, each European
1 Mlcomete O.: Etichet. (Label) n Florescu C., Mlcomete P., Pop N. Al. (coordonatori): Marketing. Dicionar explicativ. Editura Economic, Bucureti. 2003, p. 240. 2 Duu M.: Tratat de dreptul mediului. (Environmental law treaty) Editura C.H. Beck, Bucureti. 2007, pp. 449, 930-935. 3 Rosler H.: The Rationale for European Trade Mark Protection. in European Intellectual Property Review vol. 29 Issue 3 March 2007, pp. 100-106.
117 Union member state should have a special justification, taking into account the fact that this protection is an intervention upon the free European market. In this case, the justification aims at the protection of the natural environment. 1
The ecological label must include simple, clear, precise information, based on a scientific research, regarding the important ecological aspects which are taken into account when granting the label. The ecological label must also indicate as much information as possible regarding the reasons for which the label has been granted. This condition finds its practical utility in the help granted to the consumer, so that he could understand the significance of granting the label, i.e. to allow the consumers to make a conscious choice. Establishing the criteria which must be satisfied by the products, in order for them to be able to have the ecological label based on the best environmental performances achieved by products to be found on the community market. These criteria should be easy to understand and apply and should be based on scientific proofs, taking into account the latest technological evolutions. 2 In order to simplify the EU ecological labeling system, and reduce the administrative task related to the use of the EU ecological label, the evaluation and checking proceedings should be simplified. Regulation No 66/2010 of the European Parliament and of the Council establish the need to inform and make the public sensitive to the EU ecological label by promotion actions, information and education campaigns at the local, national and community level, which would allow the consumers to understand the meaning of the EU ecological label, and make well-
1 Murean L., Neacu A. N.: Etichetarea ecologic. (Ecological labeling) n Zilele medicale ale Braovului, 7-8 Decembrie 2007, publicat n Jurnalul medical braovean nr. 4 din 2007, pp. 13-15. 2 Point 5, Point 10 and Point 13 in the Preamble of the Regulation No 66/2010 of the European Parliament and of the Council.
118 informed choices. These actions are also required in order to grant the EU ecological labeling system an increased degree of attractiveness for manufacturers and traders. The granting of the ecological label to the products which have a reduced impact on the environment, during their entire life time, has a double direct effect on the protection of the environment, as well as the protection of the consumers. Regarding the consumers, the ecological label has a preventive effect. In this respect, a possibility to choose the products which are healthier for them is created for the consumers. These products, complying with the conditions for granting the ecological label, are healthier also for the natural environment, not affecting the health of the population living in the area the respective product is manufactured and commercialized. By means of the ecological labeling, it is also intended to make the consumers responsible because, if preferring ecological products, they can actively contribute to the protection of the environment. The increase of the consumers preference for ecological products shall lead to the increase of the demand for these products and the increase of the ecological products production. This way, the production of several commercialized non-food products shall comply with the legislatively set ecological norms. As for the National Eco-labeling Board, Government Decision no. 236/2007 modifies the structure of the board, i.e. it includes the representatives of employers, together with the representatives of the non- governmental organizations in the field of environment protection and consumers protection, and the representatives of the Ministry of Environment, Ministry of Economy, and the Ministry of Education, Research and Innovation. 1 The modification is made in order to harmonize the internal legislation with the community legislation, more precisely in the respect of
119 guaranteeing transparency in applying the community optional and selective system of granting the ecological label, but also in order to transpose the structure of the European Union Eco-labeling Board (EUEB). The former Regulations, abrogated by Regulations No 66/2010 has established the constitution of an European Union Eco-labeling Board, established at the community level, as an organism guaranteeing, for each group of products, a balanced participation of all parties interested in the respective group of products, such as representatives of the industry and service providers, including SMEs, their corporations and organizations, trade unions, traders, retailers, importers, environment protection groups and consumers organizations. 1
Regulations No 66/2010 establish the constitution of the European Union Committee for ecological labeling (CUEEE), made up of the representatives of the competent authorities of all member states and other interested parties. CUEEE contributes to the preparation and revision of the criteria regarding the EU ecological label and to any reexamination of the implementation of the EU ecological labeling system. 2 Each Member State has the obligation to designate the authority/authorities, within the ministries or outside them, which are responsible for the fulfillment of the tasks provided by Regulations No 66/2010, and makes sure that they are operational. CUEEE maintains a balanced participation of all the relevant interested parties for each group of products: competent authorities, manufacturers, producers, importers, service providers, wholesale dealers, retailers, especially SMEs, as well as the environment protection groups and consumer organizations.
1 Point 17 in the Preamble of the Regulations of the European Parliament and Council no. 1980 of 2000. 2 Art. 4 and 5, Regulation No 66/2010 of the European Parliament and of the Council.
120 Decision no. 236 of 2007 is better structured as compared to the former normative document regarding eco-labeling, 1 especially in relation to the grouping of the contraventions in this field. Also, the amount of the eco-labeling sanction fine has substantially been increased. 2 One can notice a doubling of the fine amount which is applied in case a contravention is committed, a benefic measure in the respect of the consolidation of a financial prevention in the field of granting and using an eco-label. The modifications of the internal legislation by adopting the previously analyzed Government Decision no. 236/2007 contribute to a better protection of the consumers and natural environment. Thus, the objective of the eco- labeling community system, stipulated at item 1 of Art. 1 of the Community Regulation were implemented, i.e. to promote the products which can determine the diminution of the negative impact upon the environment, as compared to other products belonging to the same product group, contributing to the efficient use of resources and to a high environment protection level. 3
Regulation No 66/2010 of the European Parliament and of the Council continue to support this principle at item 6 of the preamble, by establishing the extension of the possibility to use the EU ecological label, in order to encourage higher environmental performances in all fields for which the impact on the environment is a factor in the choice made by the consumer. The weakness of the eco-labeling is the fact that this system is very difficult to manage, mainly because of the need to globally evaluate the lifetime of the entire product.
1 Governmental Decision no. 189 of February 28 th , 2002. 2 Art. 26 letter 2, Governmental Decision no. 189 of February 28 th , 2002. 3 Murzea C., Murean L.: Ecobrand - The Ecological Label. Bulletin of the Transilvania University of Braov, Vol. 14 (49) 2007, pp. 593-596.
121 The ecological mark can also be used as an instrument of moral value, especially, of prestige, of identification and highlighting of certain exceptional natural elements of the acknowledged ecological products or ecological practices used in manufacturing this group of products. 1
The European eco-labeling is a graphic symbol accompanied by a short descriptive text, applied on the product, package, in a brochure or any other informative document accompanying the product and offering information on at least one and at most three types of impact on the environment. The symbol of the European ecological label is a flower with little star-shaped petals. 2
The European ecological label can be granted to the following categories of products: refrigerating appliances; domestic washing machines; domestic dish-washing machines; portable computers; soil ameliorators and culture substrates; dish-washing machine detergents; footwear; textile products; paints and lacquers used for interiors; bed mattresses; electrical lamps; universal detergents and toilet detergents; manual dish-washing detergents; copying paper and graphic paper; absorbent paper; materials for rigid floors; TV sets; tourist accommodation services; vacuum cleaners; lubricants; camping services; soaps, hair shampoos and conditioners, heating pumps. The conditions for granting the European ecological label to these categories of products are regulated by a series of community normative documents transposed into the Romanian internal legislation.
1 Duu M.: Dreptul mediului. (Environment Law) Editura C.H. Beck, Bucureti. 2007, pp. 233-234. 2 Ministerul Mediului i Dezvoltrii Durabile (Institutul Naional de Cercetare-Dezvoltare pentru Protecia Mediului): Consumai Eco. Produsele etichetate ecologic. Bucureti, 2008, pp. 1-13.
122 We shall enumerate, for example, the criteria for granting the European ecological label for detergents and other cleaning products. 1 This type of ecological products has as a main purpose the diminution of water pollution by restricting the constitutive dangerous substances and by reducing the detergent amount used. The concern for water consumption is an aspect suggesting ecological responsibility and ethical responsibility of the commercial companies manufacturing non-food ecological products. A second purpose is the reduction and prevention of risks for the environment and human health regarding the use of dangerous chemical substances. This purpose combines the protection of the natural environment and the protection of the consumers. Another purpose is the reduction of the package waste amount. The concern for products packaging shows a special respect for the natural environment. The reduction of energy consumption by promoting those detergents which can be used for washing at low temperatures is another purpose pursued by the commercial companies manufacturing non-food ecological products. A last purpose is providing the consumer with the information allowing him to use the product in an ecologically efficient manner. This purpose mainly regards the protection of the environment, and then the interests of the consumers. The European eco-label applied on detergents and other cleaning products offers the consumers the guarantee that these cleaning products exhibit certain positive aspects. These advantages are: a reduced impact on the aquatic environment, they do not contain dangerous substances for the
1 Ministerul Mediului i Dezvoltrii Durabile (Institutul Naional de Cercetare-Dezvoltare pentru Protecia Mediului): Eticheta ecologic. Ghidul produselor de consum i serviciilor etichetate ecologic. Bucureti, 2008, pp. 4-9.
123 aquatic environment, high biodegradability, their efficient use does not cause damage to the environment and consumers health, as they are safe products. However, at the same time, these cleaning products wash at least as well as the non-ecological detergents. This way, consumers can contribute to the protection of the aquatic environment rivers, lakes, etc. by buying detergents and other cleaning products which have the European ecological label. The European eco-label is assigned only to the ecological products/services existing on the market, 1 i.e. in the commercial circuit. Further to the previous analysis, regarding the non-food ecological products, it can be considered that the internal legislation is harmonized with the community normative stipulations. The social responsibility also manifests itself in the situations in which the commercial companies are involved in the environment protection actions. This involvement implies the promotion of the green or ecological marketing, which considers not only the strict observance of the anti- pollution legislation, but also the design of certain strategies meant to contribute to the future reduction or elimination of any environment pollution possibilities. 2
1 Ministerul Mediului i Dezvoltrii Durabile (Institutul Naional de Cercetare-Dezvoltare pentru Protecia Mediului): Eticheta ecologic european. Instrument al dezvoltrii durabile. Bucureti, 2008. 2 Murzea C., Murean L.: The social responsibility of the commercial companies manufacturing non-food ecological products, or performing ecological services in their relation to the environment and their own consumers. in Proceedings of the International Scientific Conference: Bioatlas, May 27-30, 2009, Braov, publicat n Journal of EcoAgro Turism vol. 6 (2010), nr. 3 (20) pp. 155-159.
124 CHAPTER IX RISKS AND IMPLICATIONS OF THE GENETICALLY MODIFIED PRODUCTS IN THE CONSUMER PROTECTION FIELD 1. Risks for the health of the consumers of genetically modified organisms The genetically modified foods are products containing similar or sometimes better nutrients than the products obtained by means of classical methods. The new foods are the results of genetic engineering. A gene is a particle within the DNA acid molecule, and it is responsible for a certain feature of the organism (such as blood type). The genetically modified products are not new for Romanians. The most well-known and beloved turtles were mutant, i.e. genetically modified. The first product obtained by means of this technique and intended for sale, has been a genetically modified version of a hormone - BST somatotropine which is stimulating the milk production in cows. This product has been made by inserting the gene for BST in bacteria, a similar method being also used in the experiment for obtaining insulin. Further to this accomplishment, they have wondered whether this hormone influences only the animal or the consumer as well. It has experimentally been proved that a BST injection increases the milk production by 15-20%. The Canadian researchers dealing with marketing the new genetically modified foods have found that 30% of the rats receiving an increased dose of BST have produced anti-bodies, which means that BST has
125 reached the blood circulation. Only after 8 years from the preparation of these studies, they have succeeded in stopping the use of this hormone in Canada. In Romania there is a great deficit of information with regard to genetically modified organisms. The term OMG is used to refer to live organisms, plants or animals, which have been injected with genes, particles from other species DNA, tresspassing the species barrier, for it to be able to have new properties. The results of relevant studies on guinea pigs are available. One of the most interesting studies of this type, which concerns us, has been prepared in Russia on MG soy the same MG soy variety also cultivated Romania, officially, since 1998 and until last year. Officially because, unofficially, it is still being cultivated. The effects on the 2 generations of tested guinea pigs, which consumed MG soy, have been absolutely impressive, even the scientists who participated in the study have been shocked. Thus, malformations of internal organs (liver, brain, testicles), an increase of the behavioral aggression in the second generation, the decrease of birth rate by 50%, and the loss of maternal instinct in the female guinea pigs which killed their cubs and consumed their brain, have been noticed in the tested animals. The producers and traders of genetically modified organisms state that the MG seeds resistant and produce unpretentious crops. This is an advantage for farmers, especially for those in the Third World. Authors 1 from the juridical and economic field consider that it is not an advantage for the farmers anywhere in the world, because of the conditions imposed by the companies producing genetically modified seeds. This way, the farmers lose their primordial right to use the seeds from one crop to
1 Murean L., Neacu A. N., Madar A.: Risks and Implications of Genetically Modified Products. in The 4th Edition of the International Scientific Conference: European Integration New Challenges for the Romanian Economy, May 30-31, 2008, Oradea, publicat n Analele Universitii din Oradea, pp. 417-421.
126 another, being forced to buy a new lot of seeds from the producing company, every year. Another problem which occurs is contamination. The crops of a farmer not intending to cultivate MG plants can accidentally be contaminated by natural pollination (wind, insects) which man obviously cannot control. There are cases, globally, in which the producers of MG seeds solicit damages for the unwilling farmers with contaminated crops, since these farmers cant depend on the laws protection, while the MG seed producer is protected through his registered norms. The MG seeds producers also claim that for the crops obtained by means of their seeds fewer herbicides/chemicals are used. These are however very strong and nonselective such as Round Up, the most widely used herbicide in the MG crops. It has however been found that even these generated resistance in the spontaneous flora, weeds and so-called pests. It can be inferred that the environment becomes resistant also to these herbicides, so the idea that the farmer shall use fewer herbicides is completely false, as in time the amount of chemicals used for obtaining the same effect shall be increased. In Romania, MG soy has been cultivated since 1998, and 99% of the people have not been aware of it. According to the Ministry of Agriculture, in the Official List containing the species of plants cultivated in Romania in 1998, 12 hybrids of potato, soy, sugar beet and MG corn have been included. Greenpeace has tested in 2008 several products containing soy, which are currently being sold in stores. In each of these, a content of over 50% MG soy has been found but none of the products had a tag according to the law.
127 The tests run in an independent laboratory by Greenpeace have however been ignored by authorities, invoking a procedure vice in taking the samples. 1
In 1998, when they started to cultivate GM plants in Romania, there was no specific legal framework for the regulation of these cultures. So, the GM seeds have been registered in the catalogue as regular seeds, no difference has been made in the evaluation and release in the environment of these seeds as compared to the conventional ones. The legislation has been in force since 2007, but it is not complied with; practically, no product from the Romanian stores which contains GM plants is properly labeled. In Romania, they have attempted to solve the situation in which it is impossible to identify the products which contained genetically modified organisms by the consumers, by creating territories free of OMG. This is a concept from the resistance campaign against OMG, through which the local authorities (local counsels, municipal councils) declare that they do not want to cultivate any kind of OMG on the territory they preside over. As soon as there will be enough local councils who take these kinds of decisions, this type of pressure, from a local level, will matter very much in decisions at the national level, regarding the MG cultures. Romania owns these types of territories, without OMG, as well. Fourty-two places: 3 cities and 37 communes from the counties of Cluj and Bistrita-Nasaud, have declared themselves OMG-free zones from 2008. The people with whom they discussed were receptive in these places and the result was positive meaning that all the zones were declared OMG free zones.
1 Murean L., Neacu A. N., Madar A.: Risks and Implications of Genetically Modified Products. in The 4th Edition of the International Scientific Conference: European Integration New Challenges for the Romanian Economy, May 30-31, 2008, Oradea, publicat n Analele Universitii din Oradea, pp. 417-421.
128 InfOMG, in 2008, had an Information tour about Genetically Modified Organisms in 3 countries: Romania, Bulgaria, and Macedonia. It was found that in these 3 countries there is a great deficit of information for the citizens, a deficit of assimilable information. The subject of OMG can be perceived in the first phase as a very complicated one, even though it can be explained quite simply and intelligently, so that all the people can be conscious of what OMG are and why they create problems. The public interest for the information performed by InfOMG was visible. Generally, the reaction shown from Romanian was of not believing the safety of consuming these genetically modified products. There were questions about the impact of these genetically modified products on the human health and that of the environment. Many people were unhappy about the fact that the products which contain OMG are not labeled according to the legislation in force at the time (Government Decision no. 173/2006), which tresspasses upon the consumers right to choose. With this event, InfOMG and Friends of the Earth Europe launched a campaign of collecting signatures for the outlawing of genetically modified corn MON810 crops in Romania, product of Monsanto, authorized in Romania. There are risks from the consumption of genetically modified products to the consumers health, of which the most important are: a. Allergic effects. Newly inserted genes can produce proteins which, to some people, can determine allergies. The most frequent allergies are from milk, eggs, fish, cereals, and soy beans. At the beginning of the 1990s when soy beans were discovered to have nutrition effects from the introduction of a gene from Brazilian nuts, the potential risk was evident. b. Antibiotic resistance. It is known that some produce genetically modified can raise the human resistance or animal resistance to antibiotics. For example, tomatoes genetically modified and consumer fresh have a gene marker (a resistant gene to antibiotics) which is resistant to neomycin or
129 kanamycin. The same thing happens in the case of cotton seeds. Generally, the risk varies according to the origin of the implicated gene. Bacteria which produce lactic acid dont have to have the resistant gene to antibiotics. c. Modifications at the metabolism level. Through the insertion of new genes other alterations can be produce at the genome level meaning that the total genes of an organism alterations which can generate in the host organism other effects besides the counted on one, like the lowering of the quantity of nutritive substances and the raising of the toxin levels in the host organism. The specialized literature in the juridical and economic fields has brought the following suggestions: Romanian consumers have the right to know the truth about genetic engineering and about the contents of the products they consume. Farmers have the right to know what type of seeds they plant. Also, society on the whole has the right to make a good informative choice regarding the way of agriculture which they wish to practice. Presently, there has not been a focus of public attention about this subject, least of all there have not been any public proceedings on the subject. The intention of InfOMG is the objective informing about the situation of genetically modified organisms in Romania and abroad, and the making aware of the public regarding the impact of the introduction of this biotechnology in the environment and in the food circuit. Competent authorities should perform more controls to see if the legislation which regulates this subject will be respected. There has to be more intense programs and actions for the informing and educating of consumers with regard to OMG.
130 2. Harmonizing the Romanian legislation related to the genetically modified organisms to the community legislation Considering the above, the related community legislation shall be analysed, and then the harmonization degree of the Romanian legislation with the community stipulations shall be analysed. 1
At community level, the genetically modified organisms are mainly regulated by Directive 2001/18/CE of the European Parliament and Council of 12 March 2001 regarding the deliberate dissemination in the environment of the genetically modified organisms, and for the cancellation of Directive 90/220/CEE of the Council, together with Regulation (CE) No. 1946/2003 of the European Parliament and Council of 15 J uly 2003 regarding the transfrontier movement of genetically modified organisms. The community legislation concerning the genetically modified organisms regulates in detail all the situations that might occur regarding the genetically modified organisms marketed as actual products or components of other products, within the Community, the genetically modified organisms deliberately disseminated in the environment with any other purposes than their being marketed within the Community, as well as the genetically modified organisms being imported onto the area of the Community. The purpose for which the legal community regulation is so broad is stipulated at item 4 of the preamble of Directive 2001/18/CE of the European Parliament and Council: the living organisms, if disseminated in the environment in large or small amounts, for experimental purposes or as commercial products, can reproduce in the environment and exceed the national frontiers, thus
1 Murean L., Gheorghe C. A.: European Legislative Perspectives regarding Products Containing Genetically Modified Organisms, between Consumers Protection and Environment Protection. In Proceedings of International Conference: Present and Future Challenges of the Common EU Policies, 23 May 2008, Braov, pp. 245-252.
131 affecting other member states. The effects of such disseminations in the environment can be irreversible. Thus, the member states are obliges to make sure, according to the precaution principle, that all adequate action has been taken in order to avoid adverse effects on human health and environment, which can occur further to the deliberate dissemination or marketing of GMOs. Directive 2001/18/CE of the European Parliament and Council regulates the marketed genetically modified organisms as actual products or components of other products, within the Community, at the same time protecting the environment, but also the consumers. Thus, in accordance with the precaution principle, the objective of this community directive is to harmonize the law-acting acts with the administrative acts of the member states, and to protect human health and environment in case the genetically modified organisms are marketed as actual products or components of other products, within the Community. Moreover, putting the GMOs into the environment must be made according to the step by step principle. This means a low content of GMOs, and the dissemination scale is gradually extended, step by step, but only if the evaluation of the previous steps regarding the protection of human health and environment shows that we can move to the next step. The member states take action in order to provide the supervision, according to the legal community norms, of the GMOs which are authorized according to the Directive, in all the stages of their being marketed.
132 We shall first analyze the authorization procedure of marketing the products containing genetically modified organisms. 1
The procedure for authorizing the marketing of the products that contain genetically modified organisms is regulated in the Directive 2001/18/CE of the European Parliament and Council of the 12th of March 2001. 2
Thus, any person, before placing GMOs on the market as actual products or as components of other products, in case it is intended to use the product that involves its deliberate dissemination into the environment, must submit a notification to the competent national authorities. 3 The person making the notification is legally defined, at communitarian level, as the person that submits the information requested based on the communitarian legislation towards the competent authority of the member state. Placing on the market means making available for third parties, with onerous title or for free the products containing GMOs. Although the objective of the communitarian regulation is to harmonise the documents having the power of a law with the administrative documents of the member states and to protect human health and environment, in compliance with the precaution principle, in case genetically modified organisms are placed on the market as actual products or components of other products, inside the Community; in case the respective product has been authorised in compliance with the current directive, a member state cannot forbid, restrict or prevent the GMOs from being placed on the market, market as actual products or components of other products, that correspond to the
1 Murean L., Poincu C.: The Harmonization of the Romanian Legislation with the European Legislation in the Field of Genetically Modified Organism. In Proceeding of 6th International Conference Challenges in Higher Education and Research in the 21-st Century, 4-7 J une 2008, Sozopol, Bulgaria, pp. 684-689. 2 Directive 2001/18/CE of the European Parliament and Council of 12th of March 2001. 3 Art. 1 and Point 56 in the Preamble of the Directive 2001/18/CE of the European Parliament and Council.
133 requirements of the current directive. 1 Therefore, in case the administrative procedure for issuing the authorisation for placing on the market genetically modified organisms as actual products or as components of other products, the EU member states cannot limit this activity. From this context, the importance of detailed regulation of this authorising procedure results. The communitarian law makes redundant the control of the activity for placing on the market genetically modified organisms as actual products or as components of other products, apart from the deadline for issuing the authorisation, control reflected in surveying, during all the stages, the placing on the market of the GMOs as actual products or components of other products authorised according to the law. Besides, it is necessary to look for means to offer possibilities to facilitate the GMOs control or to withdraw them in the eventuality of a serious risk. Also, it is necessary to adopt a protection procedure in case risks for human health or for environment occur. 2 The member states and, as the case may be, the Commission ensure that the potential adverse effects upon human health and environment that can produce directly or indirectly, through the gene transfer from GMOs to other organisms, are correctly evaluated for each case. Thus, the administrative procedure for issuing the authorisation for placing on the market GMOs as actual products or as components of other products must be made more efficiently and more transparently, and the first authorisation must be issued for a limited period. Within this authorisation procedure, an important role is played by public consultation and by the consultation of the European Group for Ethics in Science and New Technologies as well, with a view to obtaining consulting in general ethic
1 Point 42, Point 45 and Point 56 in the Preamble of the Directive 2001/18/CE of the European Parliament and Council. 2 Point 48, Point 58 and Point 60 in the Preamble of the Directive 2001/18/CE of the European Parliament and Council.
134 problems regarding the placing of the GMO on the market. However, these types of consultation do not interfere with the competency of the member states regarding ethical issues. The EU member states must be able to consult any committee set up by them in order to obtain consultancy related to the ethical implications of the biotechnology. The legal communitarian regulation regarding the observation of ethic principles in the field of trading products that contain GMOs is distinguishable. The information exchange among the member states of the European Union provided by the communitarian directive must cover as well the experience gained, taking into account ethical aspects. The Report that the Commission must develop every three years, based on the information provided by the member states, will contain a separate chapter regarding the social and economical advantages and disadvantages of each category of GMO authorised to be places on the market, that take into account the farmers and consumers interest. 1
Before initiating the authorisation procedure, the legal entity assesses the ecological risk. The assessment of the ecological risk is legally defined as an assessment of the risks for human health and for environment, either direct or indirect, immediate or delayed, that the GMOs placing on the market can pose. During this stage, the member states and the commission ensure that special attention is paid to the GMOs that care genes resistant to antibiotics. 2
The authorisation procedure is initiated by submitting a notification to the competent authority of the member state in case a GMO or a combination of GMOs, as actual products or as components of other products are to be placed on the market for the first time. The competent authority confirms the
1 Point 62 in the Preamble of Directive 2001/18/CE of the European Parliament and Council. 2 Art. 2, Par. 2, Let. b, Point 8 and Art. 4, Par. 2, Directive 2001/18/CE of the European Parliament and Council.
135 date for receiving the notification and forwards the abstract of the file to the competent authorities of the other member states and of the Commission. 1
The notification contains: 1. information regarding: - the diversity of the areas where GMOs are used as actual products or as components of other products, - the data and the results obtained following the dissemination made with a view to research and development, which refer to the impact of dissemination upon human health and environment; 2. assessment of the ecologic risk; 3. conditions for placing the product on the market, including specific conditions for using and handling them; 4. a period proposed for authorisation, which should not be longer than 10 years; 5. a monitoring plan, including a proposal regarding the duration of the monitoring plan (it can be different from the period proposed for authorisation); 6. a proposal for labelling (the labelling clearly stipulates that a GMO is present, the words this product contains genetically modified organisms are present either on the label or in a document attached); 7. a proposal for packaging o according to legal requirements; 8. an abstract of the file. In case new information regarding the risks posed by GMOs for human health or for environment occurs, before issuing the written authorisation, the person who makes the notification is obliged to immediately take the necessary actions in order to protect human health and environment and to inform the competent authorities regarding this.
1 Art. 13, Directive 2001/18/CE of the European Parliament and Council.
136 Within 90 days after receiving the notification, the competent authority prepares an assessment report and sends it to the person who made the notification. This assessment report indicates whether: the respective GMO (or GMOs) must be placed on the market and in which conditions or whether the respective GMO (GMOs) must not be placed on the market. 1 In case the competent authority that prepared the report decides that the GMO (or GMOs) must not be placed on the market, the notification is rejected. Reasons must be presented for this decision. In case, on the contrary, the competent authority that prepared the report decides that the product can be placed on the market, in the lack of any objection for which reasons are presented from a member state or from the Commission within 60 days after starting to circulate the assessment report, the competent authority that prepares the report issues a written authorisation for placing on the market, sends it to the person who made the notification and informs the other member states regarding this aspect within 30 days. The competent authority or the Commission can request additional information, can make comments or can present objections for which reasons are presented related to placing the respective GMO (or GMOs) on the market within 60 days after starting to circulate the assessment report. The competent authorities and the Commission can discuss any problems remained unsolved in order to reach an agreement within 105 days after the date when the assessment report started to circulate. It will not be taken into account either the period during which additional information is expected from the person who made the notification in order to calculate the final period of 45 days, to reach an agreement. In each request the reasons for requesting additional information are mentioned.
1 Art. 14 and Art. 15, Directive 2001/18/CE of the European Parliament and Council.
137 The authorisation is issued for maximum 10 years, starting the date when it is issued. Nine months before the expiration of the authorisation, the person who makes the notification submits a notification to the competent authority that had received the initial notification, notification which contains: 1. a copy of the authorisation for placing GMOs on the market; 2. a report regarding the results of the monitoring performed in compliance with the communitarian law; 3. any other new information available regarding the risks of the product for human health and/or environment; 4. if the case, a proposal for modifying or completing the conditions of the initial authorisation, the conditions regarding future monitoring and limitation of the authorisation in time. The competent authority confirms the date when the notification was received and, in case the notification is compliant with legal requirements, submits without any delay a copy of the notification and the assessment report to the Commission, which, within 30 days after receiving them, submits them to the competent authorities of the other member states. The competent authority will send to the person who made the notification its assessment report. The assessment report indicated whether: GMO (GMOs) must remain on the market and in which conditions or GMO (GMOs) must not remain on the market. 1
At internal level, in Romania, the Emergency Ordinance no. 43 on the 23rd of May 2007 regarding the deliberate introduction in the environment and placing on the market of the genetically modified organisms 2 transposes the communitarian legislation.
1 Art. 17-20, Directive 2001/18/CE of the European Parliament and Council. 2 Published in Official J ournal no. 435/28 J une 2007.
138 The Emergency Ordinance no. 43/2007 interdicts a genetically modified organism to be introduced on the market, either as it is or as part of a product, without an authorisation issued by the competent authority in compliance with the Romanian law or without an authorisation issued by another member state. 1 Also, this ordinance interdicts the usage of a product that does not observe the conditions in the authorisation received. The Emergency Ordinance no. 43/2007 stipulates that any person who sends a notification according to the provisions of the Romanian law must previously perform an assessment of the risks upon human health and upon environment, by observing the internal legislative provisions and the specific communitarian legislation, which include a description of the methods used and a description of the methods used and references to methods standardised or internationally recognized, as well as bibliographic references. In this context, that person can be only a legal entity. The assessment of the risk upon human health and upon environment is made only by independent scientific organisms or by independent experts, authorised or certified according to the legislation. 2 It can be noticed, for this assessment previous to the initiation of the authorisation procedure, the harmonisation between the Romanian legislation and the communitarian one. Any legal entity that wants to place on the market, for the first time, a genetically modified organism or a combination of such organisms, as it is or as component of a product, must previously send a notification to the competent authority, in case Romania is the state where they intend to place on the market, for the first time, this genetically modified organism, in order to obtain the authorisation for performing such activities. The notification will be sent electronically, in Romanian and in English, and on paper support
1 Art. 4, Emergency Ordinance no. 43 of the 23rd of May 2007. 2 Art. 5, Emergency Ordinance no. 43 of the 23rd of May 2007.
139 as well, in two original copies, by mail, with receipt confirmation, or will e submitted to the competent authority, which register the notification at the submission date. The notification must contain: 1. authorisation request, which mentions the type of genetically modified organisms and the proposed usage; 2. the proof that the tax for the assessment of the notification file has been paid; 3. the technical file containing the information stipulated in Ordinance 43/2007, which takes into account the diversity of the locations where genetically modified organisms are used, as they are or as components of other products, data and results obtained from the introductions made for research-development, regarding the impact upon human health and environment, which include: - general information, including information about the employees and their professional background; - information regarding the genetically modified organism; - information regarding the introduction conditions and the potentially receiving environment; - information regarding the interactions between the genetically modified organisms and the environment; - measures regarding internal control, traceability, monitoring, remediation methods, waste disposal, intervention plans in case of emergency; - an appendix including eventual confidential data; 4. the abstract of the notification, according to the applicable national and communitarian legislation in force;
140 5. assessment of the risk upon environment and human health; 6. conditions for placing the product on the market, including specific conditions for using and handling; 7. validity period proposed for the authorisation, which cannot exceed 10 years; 8. monitoring plan, for identifying the effects of the genetically modified organisms upon human health or environment, including a proposal regarding the duration of the monitoring plan (the duration can be different from the validity duration of the authorisation); 9. proposal for labelling, according to legal requirements; 10. proposal for packaging, observing legal requirements; 11. information for the public, in electronic format an don paper support; 12. in case based on the results of any introduction notified according to the law, or based on other important aspects, for which scientific reasons are presented, a person who makes the notification considers that placing on the market and using a genetically modified organism, as it is or as component of a product, does not pose any risk for human health and environment, he/she can propose to the competent authority not to provide part of or all the information requested by law; 13. a separate appendix, with the confidential information; 14. statement at his/her own responsibility, filled in and signed by the person who makes the notification, through which he/she undertakes the entire civil responsibility for any prejudice to human health, material goods or environment, which could result from the proposed placing on the market. 1
It can be noticed that for the notification procedure as well: the submission of the notification and its content observe the minimal communitarian provisions. Besides, the person who makes the notification is
1 Art. 29, Emergency Ordinance no. 43 of the 23rd of May 2007.
141 obliged to provide witness samples from the genetically modified organism to the legal representative of the control organism and/or of the competent authority or of a laboratory certified for performing analyses, at the same time with the notification or in 10 days after the notification was accepted, at the latest. As the communitarian legislation, the Emergency Ordinance no. 43/2007 stipulates certain obligations in case new information occur regarding the risks posed by the genetically modified organisms for human health or for environment, before the authorisation is issued by the competent authority. In this case, the person who makes the notification is obliged immediately: to take the necessary actions in order to protect human health and environment, to inform the competent authority without delay before any modification or immediately they become aware of any unexpected change or in case new information is available; to appropriately review the information and the conditions mentioned in the notification. The competent authority decides regarding the acceptance of the notification within 20 days after the registration of the notification. Absence of an answer from the competent authority within 20 days cannot be considered as acceptance of the notification. In case the notification is accepted, the competent authority writes it down in the register developed for this purpose, informs in writing the person who made the notification, communicates him/her the number of the notification and mentions the number of copies of the notification file necessary during the authorisation process, that he/she must submit to the competent authority in 7 days at the most. Any delay in sending the documentation automatically leads to the extension of the other deadlines with the duration of the delay.
142 In the opposite case, when the notification is not accepted, the competent authority communicates in writing to the person who made the notification the reasons and mentions the missing information. The person who makes the notification is obliged to complete the missing information in the notification file in maximum 10 days, and in case the person who made the notification does not fill in the notification file before the deadline stipulated, the authorisation procedure is ceased, without affecting his/her right to submit a new notification file. Also in this stage of the authorisation procedure, the internal legislation is harmonised with the communitarian one. The authorisation procedure regulated by the Emergency Ordinance no. 43/2007 requires: the approval of the Commission for biological security and of the authorities involved, as well as public consultation. In order to facilitate the procedure for public consultation, organised by the European Commission, the competent authority publishes on the internet address and in mass-media, within 5 days after starting the procedure: the abstract of the notification together with the information for the public. 1
Within maximum 90 days after starting the authorisation procedure, the competent authority, based on the approval of the Commission for biological security, of the authorities involved, on the information for the public and on the synthesis of public consultation, on the measures for risk management and after consulting the central public authority for environment protection develops a report for the assessment of the notification. The report prepared in Romanian and English. This can be: favorable and establishes by presenting reasons that the genetically modified organism/organisms can be placed on the market and in which conditions; or unfavorable and establishes
1 Art. 31-32, Emergency Ordinance no. 43 of the 23rd of May 2007, modified by Law no. 247/2009 point 49.
143 by presenting reasons that the genetically modified organism/organisms cannot be placed on the market. The procedure for issuing/not issuing the authorisation for placing on the market the product that contains genetically modified organisms observes the provisions of the Directive 2001/18/CE of the European Parliament and Council. Regarding the procedure for renewing the authorisation, 9 months at the latest after the expiration date for the authorisation issued, in case Romania is the member state that received the initial notification, the person who made the notification must send to the competent authority a notification for renewal under the following circumstances: 1. the number of copies, the presentation format and the transmission method are provided in the procedure for issuing the authorisation; 2. the notification must contain: - the request for renewing the authorisation; - the proof that the tax for assessing the file has been paid; - the copy of the authorisation for placing genetically modified organisms on the market; - the report regarding the results of the monitoring performed; - any other new information, become available, regarding the risks of the product upon human health and/or environment; and - if the case, a proposal regarding the revision or completion of the conditions in the initial authorisation, among others, the conditions regarding future monitoring and the validity duration of the authorisation. After receiving the renewal notification, the competent authority checks whether the notification can be accepted and within 20 days after receiving the request, the competent authority takes a decision regarding the acceptance
144 of the notification. In case the notification is accepted, the competent authority writes down the notification in the register developed for this purpose, sends the result of the notification to the European Commission, informs in writing the person who made the notification, communicates him/her the number of the notification and the number of copies of the notification file and requests the approval of the Commission for biological security and of the authorities involved. In the contrary case when the notification is not accepted, the competent authority communicates in writing to the person who made the notification the reasons for the refusal, as well as requests for additional information. 1
Regarding the observance of the ethics principles in this field, the competent authority can request the European Commission, by informing the central public authority for environmental protection to consult any committee set up for counseling regarding the ethic implications of biotechnologies upon general ethic aspects. The result of this consultation will be made available to the public by being published, including on the internet address. 2
We shall further on analyse the potential risks involved by the deliberate dissemination or marketing of the GMOs referring to the genes resistant to antibiotics defining the terms used in the regulation of the GMOs, consulting and informing the public, confidential information protected by the intellectual property, as well as the observance of the ethical principles. Directive 2001/18/CE establishes that the member states and the Commission must provide systematic and independent research regarding the potential risks implied by the deliberate dissemination or marketing of
1 Art. 36-37, Emergency Ordiance no. 43 of 23 May 2007, modified by Law no. 247/2009 points 51-53. 2 Art. 47, Emergency Ordiance no. 43 of 23 May 2007, modified by Law no. 247/2009 point 60.
145 GMOs. In order to pursue this research, the member states and the Community must provide the required resources depending on their budgetary procedures, and the independent researchers must be allowed to have access to all relevant materials, at the same time observing the intellectual property rights. When evaluating the risks of GMOs containing such genes, special attention must be paid to the antibiotic resistance genes. The member states and the Commission have the obligation to make sure that special attention is paid to GMOs containing genes which are resistant to the antibiotics used in medical or veterinary treatments, when evaluating the ecological risk, in order to identify and progressively eliminate from GMOs the antibiotic resistance markers, which can have negative effects on human health and environment. The member states and the Commission make sure that the potential negative effects on human health and environment, which can directly or indirectly occur, by means of gene transfer from GMOs to other organisms, are correctly evaluated for each case. 1
The community legislation defines the terms used in regulating the genetically modified organisms marketed as actual products or components of other products: 1. organism means any biological entity able to reproduce or transfer genetic material; 2. genetically modified organism (GMO) means any organism, except for human beings, in which the genetic material has been modified by means of a way which is not naturally produced through mating and/or natural recombination. 3. to market means to put at the disposal of third parties, in exchange of money or free of charge.
1 Preambul Point 21, 22, 24, Art. 1, Art. 2 pct. 1, 2, 4, 7, 8 and Art. 4, Directive 2001/18/CE of the European Parliament and Council.
146 4. evaluation of the ecological risk means the evaluation of the risks to human health and environment, either direct or indirect, immediate or postponed, which marketing the GMOs could present. 5. product means a preparation consisting in or containing a GMO, or a combination of GMOs, which is marketed. In order to make sure that the presence of GMOs in the products containing or consisting in genetically modified organisms is properly identified, the words This product contains genetically modified organisms must be clearly mentioned, either on the label, or in the attached document. 1
The member states take action in order to make sure that in all stages of marketing, the labeling and wrapping the GMOs as actual products or components of other products are compliant with the relevant requirements specified in the license obtained for this purpose. For the products in the case of which the accidental or technically inevitable traces of GMOs cannot be excluded, a minimal threshold can be established under which the respective products must not have the words This product contains genetically modified organisms written on the label or in the attached document. The levels of this threshold are established depending on the product in question. Without causing damage to the protection clause, the member states cannot forbid, restrict or prevent the marketing of GMOs, as actual products or components of other products, which are compliant with the community directive. The protection clause implies the situation in which new or additional information occurs, influencing the evaluation of ecological risk, so that there are well-founded reasons to believe that a GMO is a risk for human health or environment, situation which determines the provisional restriction or the interdiction of using and/or selling the respective GMO,
1 Preambul Point 40, Art. 13 alin. 2 lit. f and Art. 21, Directive 2001/18/CE of the European Parliament and Council.
147 leading (after a well legally regulated procedure) to the modification of the conditions of the license received, or the annulment of the license. 1
An important requirement stipulated by Directive 2001/18/CE of the European Parliament and Council concerns the consultation and information of the public. Thus, for a comprehensive and transparent framework, we must make sure that the public is consulted, either by the Commission, or by the member states, during the preparation of the measures, and that it is informed on the action taken during the implementation of the community legislation. Within the procedure of granting the license for marketing the genetically modified organisms as actual products or components of other products, the population can make comments addressed to the Commission within 30 days, and the Commission immediately forwards the respective comments to the competent authorities. Without causing damage to the legal stipulations regarding the confidentiality of certain information, for all the GMOs for which a written license for marketing has been received, or whose marketing has been rejected, as actual products or components of other products, according to the present directive, the evaluation reports prepared for the GMOs in question and the permit (permits) of the consulted scientific committees are placed at the disposal of the population. For each product, the GMO or GMOs contained by it and their use or uses are clearly specified. 2
The Commission and the competent authorities do not reveal to third parties any confidential information notified or exchanged according to the present directive, and defend the intellectual property rights regarding the received data. The notificator can indicate the information from the submitted notification, whose disclosure can affect his competitive position, and which
1 Art. 22 and Art. 23, Directive 2001/18/CE of the European Parliament and Council. 2 Preambul Point 10, Art. 24 and Art. 25, Directive 2001/18/CE of the European Parliament and Council.
148 consequently must confidentially be dealt with; the submission of a verifiable confirmation is essential. After consulting the notificator, the competent authority decides which information is confidential (even in the case in which the notificator withdraws his notification), also informing the notificator. The following information cannot be confidential: 1. general description of the GMO or GMOs, name and address of the notifier, purpose of dissemination, location of dissemination, and planned uses; 2. methods and plans to monitor the GMO or GMOs, and to intervene in case of emergency; 3. evaluation of ecological risk. The competent authority must express their approval regarding the granting of the license only after it has been established that the dissemination is safe for human health and environment. The administrative procedure for granting the licenses for marketing the GMOs as actual products or components of other products must be made more efficiently and more transparently, and the first license must be granted for a limited period. 1
The report the Commission must prepare every three years, based on the information supplied by the member states, must contain a separate chapter regarding the socio-economic advantages and disadvantages of each category of GMOs licensed to be marketed, which should consider the interest of the farmers and consumers. Directive 2001/18/CE of the European Parliament and Council stipulates the observance of ethical principles acknowledged in a member state as being very important. The member states can take into consideration the
1 Preambul Point 47, 48 i 62, Directive 2001/18/CE of the European Parliament and Council.
149 ethical aspects when GMOs are deliberately disseminated in the environment, or when they are marketed as actual products or components of other products. 1
The community legislation related to the genetically modified organisms causes the need of the member states legislation regarding the deliberate dissemination in the environment of GMOs to be harmonized, and to ensure the safe development of industrial products using GMOs. Moreover, the member states and the Commission set regular meetings and exchange information regarding the accumulated experience on the prevention of the risks concerning the dissemination and marketing of GMOs. The member states establish sanctions applicable in case of breaching the internal rightful dispositions adopted in accordance with this directive. The respective sanctions must be efficient, proportional and discouraging. 2
Directive 2001/18/CE of the European Parliament and Council regarding the marketing of GMOs as actual products or components of other products is transposed into the internal Romanian legislation through Emergency Ordinance no. 43 of 23 May 2007 regarding the deliberate bringing into the environment and marketing of the genetically modified organisms. The purpose of adopting Emergency Ordinance no. 43/2007 is the need and urgency to make the national legislation completely compatible with the legislation of the European Union in the field of genetically modified organisms, taking into account the fact that the modifications occurred at the European level in the biosecurity field, by enforcing Directive 2001/18/CE (providing an unitary legislative framework in this field) are imposing the harmonization of the national legislation with the new community stipulations. Moreover, because the present normative document
1 Preambul Point 9 i Art. 29, Directive 2001/18/CE of the European Parliament and Council. 2 Preambul Point 7, Art. 31 and Art. 33, Directive 2001/18/CE of the European Parliament and Council.
150 is not adopted, the complete transposition and the correct implementation of Directive 2001/18/CE cannot be achieved, and the finalization and approval of the normative document regarding the deliberate dissemination into the environment and marketing of the genetically modified organisms is a sensitive field for which Romania has been and still is monitored. Thus, the objective of this emergency ordinance is to provide the required legislative and institutional framework, harmonized with the community framework, so that the activities involving genetically modified organisms could be developed while observing the precaution principle, in order to provide the protection of human health and environment. It can be noticed that the observance of this principle is also transposed into the Romanian legislation. 1
The marketing of the genetically modified organisms, whether actual or as components of other products, also counts among the activities regulated through Emergency Ordinance no. 43/2007. The legal definitions given to the terms used in regulating the genetically modified organisms marketed within the Community as actual products or as components of other products are compliant with those used by the community legislation. 2
Emergency Ordinance no. 43/2007 prohibits the marketing of a genetically modified organism, whether actual or as a component of a product, without a license issued by the competent authority, or without a license issued by another member state. Also, it is forbidden to market a genetically modified organism, whether actual or as a component of a product, if the labeling and wrapping do not comply with the conditions provided by the granted license, or the provisions of the national and community legislation related to this field. 3
151 It can be noticed that Emergency Ordinance no. 43/2007 also transposes the community stipulations regarding the possible genes causing resistance to antibiotics contained by GMOs, as follows: the studies for the evaluation of the risk for human health and environment, concerning genetically modified organisms containing one or more antibiotics resistance genes must include distinct comments in order to identify and progressively eliminate from these organisms the antibiotics resistance markers, which could have a negative effect on human health and environment, and the GMOs containing antibiotics resistance genes, used in the treatment of human or veterinary affections, cannot be marketed if it is proved that these have been inserted through genetic modification. Until 31 December 2008, genetically modified organisms containing antibiotics resistance genes inserted by genetic modification shall progressively be eliminated. 1 These provisions have been modified by Law no. 247 of 30 J une 2009 for the approval of the Government Emergency Ordinance no. 43/2007 regarding the deliberate introduction into the environment and on the market of the GMOs. Law no. 247/2009 is stricter, establishing the fact that the genetically modified organisms containing genes resilient to antibiotics, used in the treatment of the human or veterinary diseases, which can have adverse effects on the human health and environment cannot be brought on the market if it is proved that they have been inserted by genetic modification. If the Ordinance allowed it (under certain circumstances), the Law clearly establishes the interdiction of bringing on the market of these GMOs, which contain genes resilient to antibiotics, used in the treatment of human or veterinary diseases. 2
152 The labeling of the products containing genetically modified organisms regulated through Emergency Ordinance no. 43/2007 complies with the community legislative stipulations, and also completes these stipulations. The labeling and wrapping of genetically modified organisms marketed as actual products or as components of other products is mandatory in all stages of the marketing, being made in accordance with the national and community legislation. For the products in the case of which the traces of genetically modified organisms, whether they are accidental or whose presence is technically inevitable, cannot be excluded, a minimal threshold (depending on the product) under which these products are not labeled, shall be established. This minimum threshold is 0.9%, also implying the proof of the fact that these traces are accidental or technically inevitable, and that all measures have been taken in order to avoid the presence of this genetically modified organism. 1
The free circulation regarding the marketing of genetically modified organisms, as actual products or as components of other products, complies with the community stipulations. Thus, their free circulation cannot be forbidden, restricted or prevented. The free circulation can be restricted, as an exception, when the competent authority has come into possession of new or complementary information, or reevaluates the existing information based on new or additional scientific data, and has well-founded reasons to consider that a genetically modified organism, as actual products or as components of other products, previously licensed, presents a risk for human health or environment. This safeguarding clause can limit the validity period of the license, or can temporarily restrict or forbid the use and/or sale of this genetically modified organism. Moreover, the competent authority provides the updating of the public regarding this new information. However, the final
153 decision concerning the application of the safeguarding clause shall be taken at community level. 1
As for the consultation of the public, Emergency Ordinance no. 43/2007 transposes the community stipulations providing the fact that: in order to facilitate the consultation procedure of the public, organized by the European Commission, the competent authority publishes on their website and in mass-media, the summary of the notification and the information intended for the public. Law no. 247/2009 excludes mass-media, as an information support for the public consultation. The public can send their comments to the competent authority, within 30 days, via e-mail or mail, with confirmation upon receipt, and can consult the notification file, except for the confidential data, based on a letter sent to the competent authority. When the duration established for receiving the comments of the public has ended, the competent authority prepares a summary of the comments, which is sent to the central public authority for environment protection, in order to decide upon the organization of public debates or not. 2
The commission for biological security and the central public authority for environment protection do not reveal to third parties any confidential information which is notified or which could make the object of an exchange of information based on the present emergency ordinance, and protect the intellectual property rights related to the received data. As for the confidential information, the Romanian legislation completely observes the community stipulations. 3
What Emergency Ordinance no. 43/2007 brings extra as compared to the community legislation is the regulation of the accidental presence of a genetically modified organism. Thus, the central public authorities for food
154 safety, agriculture, consumers protection, and each operator in this field take action, according to their competences, in order to avoid the accidental presence of genetically modified organisms in other products, according to the provisions of the community and national legislation in force. 1
As for the consultation of the ethics committees or exchange of information and their reporting to the European Commission, Emergency Ordinance no. 43/2007 completely transposes the community stipulations. 2
As a conclusion, as far as the marketing of genetically modified organisms, as actual products or as components of other products, is concerned, the Romanian legislation (through Emergency Ordinance no. 43/2007 approved and modified by Law no. 247/2009) completely transposes the community stipulations (Directive 2001/18/CE of the European Parliament and Council), also bringing additions to the latter. 3
1 Section 3, Chapter IV, Art. 45, Emergency Ordinance no. 43/2007. 2 Chapter IV, Section 5, Art. 47 and Section 6, Art. 48 Emergency Ordinance no. 43/2007. 3 Murean L., Gheorghe C. A.: European Legislative Perspectives regarding Products Containing Genetically Modified Organisms, between Consumers Protection and Environment Protection. In Proceedings of International Conference: Present and Future Challenges of the Common EU Policies, 23 May 2008, Braov, pp. 245-252.
155 CHAPTER X THE LEGISLATION REGARDING THE PROTECTION OF THE BANKING SERVICES CONSUMERS, EXPRESSION OF THE CORPORATE SOCIAL RESPONSIBILITY 1. General aspects regarding the corporate social responsibility The social responsibility of the commercial companies is a moral liability, a voluntary liability of the respective commercial companies regarding the interaction of their own activity with: the natural environment, clients/consumers, own employees. In order to understand the term social responsibility of the commercial companies, the stakeholder term must be explained. The stakeholder term derives from the following terms: stake meaning interest, holder meaning owner, both English terms. The stakeholders are those categories of persons who have an interest in the development of the activity of the respective commercial company. The stakeholders are divided into two main categories: a external stakeholders including business partners, suppliers, consumers, local communities, natural environment, future generations,
156 b. internal stakeholders including employees, shareholders, and managers/owners. 1
We shall further on consider the relation between the banking commercial companies and their main external stakeholders consumers. 2. The relation between the banking commercial companies in Romania and the corporate social responsibility The commercial banking companies have a very important role in the commercial field, especially in the relations with the consumers (natural persons); for this reason, we will try to briefly describe this special type of commercial company. The commercial banking company is defined 2 as the commercial company which has a specific object of activity, i.e. fund attraction from natural and legal persons, under the form of deposits or non-negotiable instruments, payable at sight or fixed term, as well as credit granting. Besides these main activities, a bank can perform several banking services, represented by the related operations. Thus, the only element strikingly differentiating a commercial banking company from another commercial company is the object of activity.
1 Racola-Paina N. D., Mateescu V. M.: Responsabilitatea social intern i producia de tip lohn. Studiu de caz: o ntreprindere mic, cu capital strin, din industria confeciilor. (Internal social responsibility and lohn type production. Case study: a small enterprise, with foreign capital, in the confection industry) n Management & Marketing Nr. 3/2006, Editura Economic, Bucureti. pp. 99-100. 2 Gheorghe C. A.: Drept bancar. (Bank law) Editura C.H. Beck, Bucureti. 2006, pp. 3, 7, 17, 61-62.
157 The commercial banking companies are universal credit institutions. Legally, these are joint-stock companies, according to the commercial legislation and to Government Emergency Ordinance no. 99/2006. 1
Thus, the banking commercial company is constituted under the form of a commercial joint-stock company. The main differences between another commercial joint-stock company and a banking commercial company are the restriction, in the case of the banking commercial company, of the object of the cash contribution made by the partner, and the minimum amount of the social capital of 37,000,000 lei, much higher as compared to the rest of commercial joint-stock companies for which the minimum amount of the social capital is 100,000 lei. As far as the commercial joint-stock company is concerned, it is considered 2 as being the most complex and most evolved form of commercial company. In the case of this type of company, the contributions of the partners are more important than their personal features. In general, the partners make their contribution to the social capital, without operating any activity within the company. These contributions are also important for the third parties, as the liability of the partners for the social obligations is restricted to these contributions. Due to the importance of the contributions to the social capital and blurring of the partners personal features, the joint- stock company is also known as an anonymous company. The commercial joint-stock company is intended to accomplish great businesses requiring significant capitals. This type of commercial company is conceived in order to form great capitals, required for the achievement of far-
1 Murean L., Gheorghe C. A., Poincu C.: Elemente de dreptul afacerilor. (Elements of business law) Editura Universitii Transilvania din Braov. 2007, p. 98. 2 Crpenaru S. D.: Drept comercial romn. (Romanian commercial law) Ediia a VI-a revizuit i adugit. Editura Universul Juridic, Bucureti. 2007, pp. 317-371.
158 reaching investments. For this purpose, the joint-stock company is authorized to appeal to the public subscription. Due to the importance of the activity performed by the commercial banking companies, they are constituted only under the form of commercial joint-stock companies. Moreover, the commercial banking companies, due to their size, always have a marketing department. Thus, we can check whether their marketing strategies are or are not socially responsible, although a few of these commercial banking companies perform philanthropic activities labeled as socially responsible activities. The banks are organized as commercial companies, and pursue the obtaining of a profit. By means of this purpose, the banks do not distinguish themselves from other commercial companies; the difference consists in the ways of achieving the purpose in mind. However, the profit is not the only factor which must be considered by the banks in establishing their investment policy. They are obliged to provide an active balance between profitability, liquidity and risk. 1
The commercial banks perform all types of banking operations. The main operations remain however the deposit constitution and their use for the purpose of granting credits to the traders legal persons and consumers natural persons. Thus, the bank has as its main function the concrete mediation by resource attraction and its redistribution in the economic circulation. Money and credit can form the object of the circulation, i.e. the object of certain commercial operations. The Romanian banking system is made up, on the one hand, of the National Bank of Romania, the central bank of Romania, whose activity is
1 Gheorghe C. A.: Drept bancar. (Bank law) Editura C.H. Beck, Bucureti. 2006, pp. 3, 7, 17, 61-62.
159 regulated by the B.N.R. Statute Law no. 312 of 2004 , and the banks constituted as commercial companies, according to Law no. 31 of 1990 regarding the commercial companies and G.E.O. no. 99 of 2006. 1
The commercial activity performed by the banks is mainly controlled by the National Bank of Romania. In their relation to the banks, the National Bank of Romania performs crediting operations for the banks; establishes the crediting conditions and costs; opens an account for each bank; monitors the payment systems; can provide compensation, storing, discounting and payment services, as well as data and information collection and issuance services, for the purpose of preventing and restricting risks. One of the most important activities performed by the BNR in relation to the banks is their prudential supervision, expressed by means of the exclusive competence to authorize the operation of the banks, and through the fact that B.N.R. is responsible for the prudential supervision of the credit institutions which they have authorized to operate. After they have been subject to the constitution control and operation authorization, the banks must be and continue to be controlled. This control considers the assumed risks which must not endanger the solvability of the respective bank and the credibility of others. At community level, the quality of the prudential control performed by the competent authority of each member state is mutually acknowledged, by harmonizing the prudential control rules. The abuse of the banks operating on the Romanian market towards the banking service consumers, has determined the recent modification of the consumer protection legislation. Thus, Emergency Ordinance no. 174 of 19.11.2008 for the modification and completion of normative documents
1 Gheorghe C. A.: Drept bancar. (Bank law) Editura C.H. Beck, Bucureti. 2006, pp. 3, 7, 17, 61-62.
160 regarding the consumer protection 1 modifies, first of all, Government Ordinance no. 21/1992 regarding consumer protection, republished in 2008. Thus, at art. 2 of Government Ordinance no. 21/1992, three new definitions are included. The total cost of the consumer credit includes all costs, including interest, commissions, taxes and any other type of costs which must be borne by the consumer, related to the credit contract, and which are known by the creditor, except for the notarial fees. The related service costs concerning the credit contract, especially the insurance bonuses are also included here, in case the obtaining of the credit is conditioned by the conclusion of a service contract. The total value payable by the consumer represents the sum between the total value of the credit and the total cost of the credit for the consumer. The total value of the credit represents the ceiling or the total amounts made available based on a credit contract. Emergency ordinance no. 174/2008 adds two new articles 92 and 93, according to which the banking service consumers are protected. Thus, any form of publicity related to the credit contracts indicating an interest rate or any other figures regarding the credit cost for the consumer shall include the following standard information: the interest rate related to the credit, fixed and/or variable, together with information related to any costs included in the total credit cost for the consumer; total credit value; actual annual interest, according to the specific legal stipulations; duration of the credit contract and total value payable by the consumer. The previously presented definitions explain the extent of these obligations in the field of the publicity performed by the banking commercial companies operating on the Romanian market. Moreover, in the case of any
1 Emergency Ordinance no. 174 of 19.11.2008 for the modification and completion of normative documents related to the consumer protection, published in the Official J ournal no. 795 of 27.11.2008.
161 form of publicity, the information related to costs shall visibly be written and easy to read, in the same visual area, and with characters of the same size. In the cases in which, in order to be granted the credit, the consumer is obliged to conclude an insurance contract, this shall be mentioned in the publicity. As for the contracts concluded by the banks with the consumers, the banks are obliged to comply with certain rules to be presented next. Contracts shall be prepared in writing, visibly and easy to read, with a font size of minimum 10, on paper or other durable support, in at least two copies, an original being distributed to each party; the background color of the paper on which the contract is prepared must contrast with the one of the used font. The interests, as well as all commissions, fees, tariffs, bank expenses or any other costs related to the granting and development of the contract, i.e. services regarding which the consumer does not have the freedom to choose, shall be mentioned in the contract, without aiming at the general business conditions of the bank, list of tariffs and commissions or any other document. If an anticipated refund right is provided, the anticipated refund commission of the credit is determined in close connection to the losses of the creditor related to the anticipated refund, and must not be a disproportionate obstacle in the exertion of the consumers right to early refund the credit. In the credit/deposit contract, the costs related to the administration, cash withdrawal and/or deposit related to the current account, which are the consumers task, shall also be mentioned, if the banking commercial company collects such commissions. Moreover, without prejudicing the stipulations related to the modification of the interest, during the development of the contract, it is forbidden to increase the commissions, fees, tariffs, banking expenses or any other costs mentioned in the contract, as well as the introduction and collection of new
162 fees, commissions, tariffs, banking expenses or any other costs which have not been mentioned in the contract. In the contract signed between the bank and the consumer, the type of interest, variable and/or fixed shall be mentioned, and if the interest is fixed only for a period of time, this shall precisely be mentioned. In the credit contracts with a variable interest, the variation of the interest rate must be independent of the will of the banking commercial company, related to the fluctuations of certain checkable reference indexes, mentioned in the contract, or to the legislative modifications enforcing this. In this type of contract, the interest can vary depending on the reference interest of the bank, on condition that the interest is unique for all financial products intended for the natural persons of the respective bank, and is not increased over a certain level, established by the contract. The formula, according to which the variation of the interest is calculated, must expressly be indicated in the contract, while mentioning the periodicity and/or conditions under which the modification of the interest rate occurs, i.e. it increases or decreases. The law forbids the contractual clauses allowing the banking commercial company to unilaterally modify the contractual clauses without signing an addendum, accepted by the consumer. Any notification related to the modification of the content of the contractual clauses regarding costs shall be sent to the consumers with at least 30 days before its coming into force. The consumer has 15 days from the date the notification is received, to communicate his option to accept or refuse the new conditions. The failure to receive an answer from the consumer within the mentioned deadline is not considered an implicit acceptance.
163 For any modification of the credit cost level, according to the contractual conditions, the bank is obliged to notify the consumer, depending on his written option, expressed in the contract, by means of one or several methods: registered letter, e-mail, SMS, and shall put a new refund schedule at his disposal. The banking commercial company has the legal obligation to take action in order to repair, within maximum 15 days, the possible damages caused to the consumer by means of the failure to observe the obligations assumed according to the contract, and prove the measures taken in this respect. The credit contract shall necessarily contain a stipulation according to which the consumer is informed on being reported to the Credit Office, Banking Risk Central Offices, and/or to other existing institutions, in case the consumer is late in paying his due installments, if there is such a reporting obligation. When the contract is terminated, including by completion, cancelation or unilateral denunciation from the consumer, the banking commercial company shall offer the consumer, free of charge, a document certifying the fact that all the obligations between the parties have been solved. At the same time, the accounts related to the main financial service supplied shall also be closed, without requiring the submission of another request by the consumer, and without the payment of additional costs. The infringement of the previously presented legal dispositions is sanctioned with a civil fine from 5.000 to 50.000 lei. It can be noticed that the value of the sanctions applied to the banks are higher in case the legal provisions for the banking service consumer protection are infringed.
164 These new legal regulations of the Romanian banking activity are a reaction of the state to the irresponsible and unethical actions of the banks. We have previously presented in detail the situations which have legally been regulated in the field of banking service consumer protection because these have been determined by the abusive commercial activity of the banks. In other words, each situation which has been provided in the normative document, and shall be sanctioned in case of breach, has been based on at least one case of abusive infringement of the ethical principles. It is sad to notice that the banks have not been aware of the fact that, if they had complied with certain ethical principles in their relation with the consumers, these principles would not legally have been sanctioned, i.e. they would not have been protected by the state. Ultimately, the significant sanctions to which the banks expose themselves at present if they continue to perform an unethical commercial activity are a consequence of the flagrant and repeated infringement of the ethics principles in the field of the consumer protection so far. 1
1 Murean L., Gheorghe C. A.: The Relation between the Romanian Commercial Banking Companies and the Corporate Social Responsibility. Bulletin of the Transilvania University of Braov, Vol. 2 (51) 2009 Series VII Social Sciences and Law , pp. 207-212.
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