30-CE-0517177/00-36

IMPLEMENTED BY FOR

ENTERPRISE AND INDUSTRY DG

www.dbblaw.eu

STUDY ON POSSIBLE NATIONAL LEGAL OBSTACLES

TO FULL RECOGNITION OF ELECTRONIC PROCESSING
OF PERFORMANCE INFORMATION ON CONSTRUCTION
PRODUCTS (UNDER THE CONSTRUCTION PRODUCTS
REGULATION), NOTABLY WITHIN THE REGIMES OF
CIVIL LIABILITY AND EVIDENTIARY VALUE

Jean ALBERT
Team Leader

– COUNTRY REPORT –
– ROMANIA –
Submitted by
Liviu DAMSA
Country Expert

December 2013
_____________

1
1. CHAPTER 1: Introduction.......................................................................................................................3
1.1. Summary of the regulation implementing Directive 89/106/EEC .............................3
1.2. Summary of the changes that are taking place following the adoption of the CPR
8
1.2.1. Current system..........................................................................................................................8
1.2.2. Change proposed or implemented (including repealing of Directive
89/106/EEC transposing legislation.................................................................................................9
2. CHAPTER2: Legal context in which the DoP may be relevant.............................................10
2.1. Presentation of the type of legal contexts in which the DoP may be relevant (i.e.
authorizations, liability, procedure and evidentiary rules, technical books of the
construction works)...................................................................................................................................10
2.1.1. Summary of construction products liability..............................................................15
2.1.2. Statute of limitations in the area of construction products liability...............16
2.1.3. Summary of the rules relating to authorizations pertaining to the use of
construction products...........................................................................................................................18
2.2. Administrative bodies that may require the DoP ............................................................18
2.2.1. Presentation, role, function and competence of these bodies...........................19
2.2.2. Link with the field of construction products.............................................................20
2.2.3. Context in which these bodies might need access to the DoPs (including
reference to rules and examples) ....................................................................................................21
2.3. Judicial bodies that may require the DoP ............................................................................21
2.3.1. Presentation, role function and competence of these bodies............................22
2.3.2. Link with the field of construction products.............................................................22
2.3.3. Context in which these bodies might need access to the DoPs (including
reference to rules and examples) ....................................................................................................23
2.4. Insurance organisations..............................................................................................................24
2.4.1. Role of insurance organisations in the construction products industry ......24
2.4.2. Context in which these organizations might need access to the DoPs ..........24
3. CHAPTER 3: Electronic/digital provision of the DoPs before administrative and
judicial bodies....................................................................................................................................................25
3.1. Provision of electronic documents to administrative bodies .....................................25
3.1.1. Admissibility of electronic documents (including reference to rules and
summary of case examples) ...............................................................................................................26
3.1.2. Weight of admissible electronic documents (including reference to rules
and summary of case examples) ......................................................................................................27
3.1.3. Authentication and integrity requirements (including those on
preservation) ............................................................................................................................................27
3.2. Provision of electronic documents to judicial bodies ....................................................27
3.2.1. Admissibility of electronic/digital evidence (including reference to rules
and summary of case examples) ......................................................................................................27
3.2.2. Weight of admissible electronic/digital evidence (including reference to
rules and summary of case examples)........................................................................................... 28
3.2.3. Authentication and integrity requirements (including those on
preservation) ............................................................................................................................................28
4. CHAPTER 4: Case Study .......................................................................................................................28
5. Conclusion..................................................................................................................................................32
5.1. Use of electronic means to provide DoPs before administrative bodies ...............32
5.2. Use of electronic means to provide DoPs before judicial bodies ..............................32
5.3. The life of the IT technology used for delivering the electronic DoP ......................33

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1. CHAPTER 1: Introduction

1.1. Summary of the regulation implementing Directive 89/106/EEC

In Romania, the Directive 89/106/EEC has been implemented through a series of

Government Decisions (Hotarari de Guvern) and Ministry Orders.

The main act implementing the Directive is the:

-Government Decision No 622 of 21 April 2004, for the establishment of the

condition for introduction construction products on the market (HG
622/21.04.2004 privind stabilirea condiţiilor de introducere pe piaţă a produselor
pentru construcţii), published in the Official Gazette No 421 of 11 May 2004
(republished in the Official Gazette No. 487 if 20 July 2007), given in application of
the Law No 608/2001 (Law for the evaluation of the conformity of the products-Art
5)1

This Decision was slightly modified or amended by several subsequent Government

Decisions, which did not alter however, its structure and main dispositions. Among
these subsequent acts are :

-Government Decision No 796 of 14 July 2005, for the modification and completion
of the GD 622/20042;
-Government Decision No 1708 of 21 December 2005, for the completion of article
39 of GD 622/2004;3
-Government Decision No. 1031 of 13 October 2010, for the modification and
completion of GD 622/2004 ;4

1 Law No 607 of 31 October 2001 for the evaluation of conformity of the products, published in the Official
Gazette No 712 of 8 November 2001 (Legea nr. 608 din 31 octombrie 2001 privind evaluarea
conformitatii produselor Publicat in Monitorul Oficial, Partea I nr. 712 din data 08 noiembrie 2001)
2 HG 796/14.07.2005 pentru modificarea şi completarea HG 622/2004 privind stabilirea condiţiilor de

introducere pe piaţă a produselor pentru construcţii

3 HG 1708/21.12.2005 pentru completarea art. 39 din HG 622/2004 privind stabilirea condiţiilor de

introducere pe piaţă a produselor pentru construcţii

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 Government Decision No 167 of 13 March 2012, for the modification and completion
of GD 622/2004;5
In application of the Government Decision No 622/2004 (as modified and completed by
subsequent acts), there are also several orders issued by various Ministries, which
implement aspects and regulations related to standards, testing laboratories, as follows:

-Standards
-Order of Ministry of Regional Development and Tourism No 1405 of 3 August
2012 for the approval of the list containing the reference indicators of Romanian
standards implementing the European harmonized standards for construction
products;6
-Oder of the Ministry of Transportation, Constructions and Tourism No. 1822 of
7 October 2004, and of Ministry of Interior and Administration No 394 of 26 October
2004 for the approval of Regulation for the classification and inclusion of the
construction products in classes, on the basis of their performance and
comportment to fire;7
- Oder of the Ministry of Transportation, Constructions and Tourism No 133 of 3
February 2006 and of Ministry of Interior and Administration No 1234 of 14 March
2006 for the modification and completion of the Regulation for the classification
and inclusion of the construction products in classes, on the basis of their
performance and comportment to fire, approved by order of the Ministry of
Transportation, Constructions and Tourism and of the Ministry of Interior and
Administration Nos 1822/394/2004. 8

4 HG 1031/13.10.2010 pentru modificarea şi completarea HG 622/2004 privind stabilirea condiţiilor de

introducere pe piaţă a produselor pentru construcţii

5 HG 167/13.03.2012 pentru modificarea şi completarea HG 622/2004 privind stabilirea condiţiilor de
introducere pe piaţă a produselor pentru construcţii
6 Ordinul Ministrului Dezvoltării Regionale şi Turismului 1405/03.08.2012 privind aprobarea Listei

cuprinzând indicativele de referinţă ale standardelor române care transpun standarde europene
armonizate din domeniul produselor pentru construcţii
7 Ordin al Ministrului Transporturilor, Construcţiilor şi Turismului 1822/ 07.10.2004 şi al Ministrului

Administraţiei şi Internelor 394/26.10. 2004 pentru aprobarea Regulamentului privind clasificarea şi

încadrarea produselor pentru construcţii pe baza performanţelor de comportare la foc
8 Ordin al Ministerului Transporturilor, Construcţiilor şi Turismului 133/ 03.02.2006 şi al Ministerului
Administraţiei şi Internelor 1234/14.03. 2006 pentru modificarea şi completarea Regulamentului privind
clasificarea şi încadrarea produselor pentru construcţii pe baza performanţelor de comportare la foc,
aprobat prin Ordinul ministrului transporturilor, construcţiilor şi turismului şi al ministrului
administraţiei şi internelor 1822/394/2004

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 - Oder of the Ministry of Transportation, Constructions and Tourism No 269 of 4
March 2008 and of the Ministry of Interior and Administration No 431 of 4 March
2008, for the approval of modification and completion of the Regulation for the
classification and inclusion of the construction products in classes, on the basis of
their performance and comportment to fire, approved by order of the Ministry of
Transportation, Constructions and Tourism and of the Ministry of Interior and
Administration Nos 1822/394/2004; 9

-Products Analysis, Testing Laboratories:, Certification 10

-Order of the Ministry of Transportation, Constructions and Tourism No 1558 of
26 August 2004 for the Approval of Regulation for the attestation of conformity of
construction products;11
- Order of the Ministry of Transportation, Constructions and Tourism No 896 of 6
June 2005 for the modification and completion of the Regulation for the
attestation of conformity of construction products, approved by Order No
1558/2004 of the Ministry of Transportation, Constructions and Tourism;12
-Order of the Ministry of Regional Development and Tourism No 909 of 15 June
2012 and of the Ministry of Interior and Administration No 117 of 30 May 2012, for
the approval of the Procedure for designation of the bodies for evaluation of
construction products’ conformity; 13
- Order of the Ministry of Interior and Administration No 607 of 19 April 2005,
for the approval of the Methodology of Control of the market of construction

9 Ordin al Ministerului Dezvoltării, Lucrărilor Publice şi Locuinţelor 269/04.03.2008 şi al Ministrului

Internelor şi al Reformei Administrative 431/04.03.2008 pentru modificarea şi completarea
Regulamentului privind clasificarea şi încadrarea produselor pentru construcţii pe baza performanţelor
de comportare la foc, aprobat prin Ordinul ministrului transporturilor, construcţiilor şi turismului şi al
ministrului administraţiei şi internelor 1822/394/2004
10 In January 2013, RENAR (the Romanian Association for Accreditation) also issued a programme related
to the transitions procedure for (re) accreditation of the certification organisms, in conformity to the CPR.
11 Ordin al Ministrului Transporturilor, Construcţiilor şi Turismului 1558/26.08.2004 pentru aprobarea

Regulamentului privind atestarea conformităţii produselor pentru construcţii

12 Ordin al Ministrului Transporturilor, Construcţiilor şi Turismului 896/06.06.2005 pentru modificarea
şi completarea Regulamentului privind atestarea conformităţii produselor pentru construcţii, aprobat
prin Ordinul ministrului transporturilor, construcţiilor şi turismului 1558/2004
13 Ordin al Ministrului Transporturilor, Construcţiilor şi Turismului 909/15.06.2012 şi al Ministrului
Administraţiei şi Internelor 117/ 30.05.2012 pentru aprobarea Procedurii privind desemnarea
organismelor de evaluare a conformităţii produselor pentru construcţii

5
products which have a role in the accomplishment of the requirement related to
security in case of fire;14
- Order of the Ministry of Interior and Administration No 1100 of 14 December
2005 for the modification and completion of the Methodology of Control approved by
Order 607/2005;15
- Order of the Ministry of Transportation, Constructions and Tourism No 270 of
22 February 2005 for the approval of the procedure of evaluation and designation of the
entities authorized to issue European technical agreements for construction
products 16
- Order of the Ministry of Regional Development and Tourism No 905 of 15 June
2012 for the approval of modification and completion of the procedure of evaluation
and designation of the entities authorized to issue European technical approvals for
construction products, approved by Order No 270/2005 of the Ministry of
Transportation, Constructions and Tourism17
-Order of the Ministry of Transportation, Constructions and Tourism No 1746 of
20 October 2005, for the approval of the List of the bodies recognized in the field of
construction products 18
- Order of the Ministry of Transportation, Constructions and Tourism No 2153 of
9 December 2005, for the modification of the List of the bodies recognized in the field of
construction products, approved by Order 1746/2005; 19

14 Ordin al Ministrului Administraţiei şi Internelor 607/19.04.2005 pentru aprobarea Metodologiei de

control privind supravegherea pieţei produselor pentru construcţii cu rol în satisfacerea cerinţei de
securitate la incendiu
15 Ordin al Ministerului Administraţiei şi Internelor 1100/14.12.2005 pentru modificarea şi completarea
Metodologiei de control privind supravegherea pieţei produselor pentru construcţii cu rol în satisfacerea
cerinţei de securitate la incendiu, aprobată prin Ordinul ministrului administraţiei şi internelor 607/2005
16 Ordin al Ministrului Transporturilor, Construcţiilor şi Turismului 270/22.02.2005 privind aprobarea

Procedurii de evaluare şi desemnare a organismelor autorizate să elibereze agremente tehnice europene

pentru produse pentru construcţii
17 Ordin al Ministerului Dezvoltării Regionale şi Turismului 908/15.06.2012 privind modificarea şi

completarea Procedurii de evaluare şi desemnare a organismelor autorizate să elibereze agremente

tehnice europene pentru produse pentru construcţii, aprobată prin Ordinul ministrului transporturilor,
construcţiilor şi turismului 270/2005
18 Ordin al Ministrului Transporturilor, Construcţiilor şi Turismului 1746/20.10.2005 privind aprobarea
Listei organismelor recunoscute în domeniul produselor pentru construcţii
19 Ordin al Ministerul Transporturilor, Construcţiilor şi Turismului 2153/09.12.2005 pentru modificarea

Listei organismelor recunoscute în domeniul produselor pentru construcţii, aprobată prin Ordinul
ministrului transporturilor, construcţiilor şi turismului 1746/2005

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 - Order of the Ministry of Transportation, Constructions and Tourism No 896 of
2 June 2006, for the completion of the List of the bodies recognized in the field of
construction products, approved by Order 1746/2005; 20
- Order of the Ministry of Transportation, Constructions and Tourism No 1484 of
4 August 2006, for the completion of the Annex at the Order of Ministry of
Transportation, Constructions and Tourism No 1746/2005 for the approval of the List of
the bodies recognized in the field of construction products;21
- Order of the Ministry of Transportation, Constructions and Tourism No 2479 of
20 December 2006, for the completion of the Annex at the Order of Ministry of
Transportation, Constructions and Tourism No 1746/2005 for the approval of the List of
the bodies recognized in the field of construction products22

Fees (non compliance). The Romanian Government’s Decision No No 622/04

also provides for a series of administrative fees (Contraventii,-in Romanian) in the case
of non compliance of a producer or distributor with the obligations attached to marking
of construction products. For example in its article 39, the Government Decision
provides for the possibility of an application of an administrative fee (amenda
contraventionala) and the imposition of retreat of a product from the market, or the
interdiction to market such a product, when the product does not comply with marking
obligation. In a systematic reading (in combination with Article 7 (b) of the Gov
Decision) similar sanctions are applicable when the product does not comply with the
obligations attached to CE marking.

In addition to the above Romanian legislation implementing the Directive 89/106/EEC,

in the field of constructions there are also relevant and applicable several generals acts,
such as the Law no 350/2001 (updated in 2006) on territorial and urban planning, Law

20 Ordin al Ministerul Transporturilor, Construcţiilor şi Turismului 896/02.06.2006 pentru completarea

Listei organismelor recunoscute în domeniul produselor pentru construcţii, aprobată prin Ordinul
ministrului transporturilor, construcţiilor şi turismului 1746/2005
21 Ordin al Ministerul Transporturilor, Construcţiilor şi Turismului 1484/04.08.2006 pentru completarea

anexei la Ordinul ministrului transporturilor, construcţiilor şi turismului 1746/2005 privind aprobarea

Listei organismelor recunoscute în domeniul produselor pentru construcţii
22 Ordin al Ministerului Transporturilor, Construcţiilor şi Turismului 2479/20.12.2006 pentru

completarea anexei la Ordinul ministrului transporturilor, construcţiilor şi turismului 1746/2005 privind

aprobarea Listei organismelor recunoscute în domeniul produselor pentru construcţii

7
no 137/1995 on environmental protection, and Law No 10/1995, regarding the Quality
in Constructions,23 as amended by Law no. 587/200224

Under the proposed system, the authority entrusted to control the compliance of the
legal provisions on the quality of the construction works (Law 10/1995) is the State
Inspectorate in the Field of Constructions.

The State Inspectorate in the Field of Constructions is also the market surveillance
authority in the field of the construction products.

With respect to the construction products (and constructions in general) compliance with
standards and requirements related to protection against fire, the General Inspectorate
for Emergency Situations is the competent authority for monitoring and surveillance.25

1.2. Summary of the changes that are taking place following the adoption of the
CPR

Between 11 and 21 September 2012, The Ministry for Regional Development and
Tourism (its current name: Ministry of Regional Development and Public
Administration) had launched for public debate a project of Government Decision for
the establishment of the framework for application of EU Parliament and Council
Regulation 305/2011. The project resulted in the adoption of the Government
Decision No 1236/2012 establishing the institutional framework and measures
for the application of Regulation (EU) No 305/2011, published in the Official Gazette,
Part I, No 876/21.12.2012.

1.2.1. Current system

The current system is described above and based on the CPD and the main
implementing regulation - the Government Decision No 622 of 21 April 2004,

23 Law No 10 of 18 January 1995, published in the Official Gazette No 12 of 24 January 1995

24 Law No 587 of 29 October 2002, (amending article 40 of the Law 10/1995), published in the Official
Gazette No 817 of 12 November 2002
25 HG 167/2012

8
 1.2.2. Change proposed or implemented (including repealing of Directive
89/106/EEC transposing legislation

Government Decision No 1236/2012 establishing the institutional framework and

measures for the application of Regulation (EU) No 305/2011.

The main changes following the CPR consist therefore in the default reformulation of the
former Government Decision 622/2004, so:

1. The Ministry of Regional Development and Tourism (The current name, according
to Gov. Decision No 1/2013, is The Ministry of Regional Development and Public
Administration) is designed as notification authority, which is taking implicitly all
the attribution provided by the CPR in matters related to notification authorities;
2. The Ministry of Regional Development and Public Administration is attributed all
the responsibilities necessarily to ensure the legal and procedural framework for
the application of the Regulation, for the coordination of application of the rules
of the CRR, for nomination and monitoring of the technical assessment bodies
and the bodies involved in the assessment and verification of constancy of
performance for construction products;
3. The Ministry of Regional Development and Public Administration ensure, within its
own structure, the functioning of the Product Contact Point for Construction,
according to Article 10 of the Regulation (EU) No 305/2011;
4. The State Inspectorate in the Field of Constructions (and the General Inspectorate
for Emergency Situations for products which has a role in the protection against fire)
are designated as national authorities for market surveillance;
5. The language for DoPs and instructions and safety information is Romanian, for
products made available in Romania.

The Ministry for Regional Development and Public Administration was also designated
as the government entity which would coordinate the campaign of dissemination of
information related to changes introduced by the CPR, but at the date of this writing, the
activities and calendar of the information campaign were not made available to the
public.

9
2. CHAPTER2: Legal context in which the DoP may be relevant

2.1. Presentation of the type of legal contexts in which the DoP may be relevant
(i.e. authorizations, liability, procedure and evidentiary rules, technical
books of the construction works)

The Declaration of Performance (“DoP”) may be relevant in two administrative contexts:

In the building permit process (including the verification of compliance of products with
minimum requirements related to quality in construction) and market surveillance
relating to the marketing and distribution of construction products. Nevertheless, the
main relevance of the DoP will most likely be in relation to liability for defects in
construction projects and for damage caused by the defective product. In addition, the
DoP may have relevance in several legal contexts, as for example, those related to unfair
competition, misleading marketing practices, compliance with environmental
requirements, with the protection against fire requirement, consumer protection, etc.

According to Law No 10/1995 on the quality of the construction works and the Gov.
Decision No 273/1994 for the approval of the Regulation on the reception of
construction works, the DoPs of the construction products used in a construction work
shall be included in the technical book of that construction work; the technical book of a
construction work shall be kept available, by the owner of the construction work, during
the whole life of that construction work.
Also, the Gov. Decision No 622/2004 provide that the construction products purchased
by contractors in order to be used in the construction works shall be accompanied by
Declaration of performance or Declaration of conformity, by case.

Building permit process

The Law No 50 of 29 July 1991 regarding the authorization of constructions and some
measures for the realization of dwellings,26 with its subsequent modifications governs
the issuance of building permits. Together with the Law No 10/1995 regarding the
quality in constructions, with all its subsequent modifications, this Law, No Law
50/1991, regulates the general conditions for execution of construction projects. While

26Lege nr.50 din 29 iulie 1991, privind autorizarea executarii constructiilor şi unele masuri pentru
realizarea locuintelor, republicata in Monitorul official No 3 din 13 Ianuarie 1997

10
the Law 50/1991 regarding the authorization of constructions mentions briefly the
requirement that the building projects and control plans should be drafted by
professionals and some of the characteristics of these plans, or the technical
specifications and documentations of construction which should be submitted for
issuance of building permits,27 the Law on quality of construction specifies in more
details the obligations of these professionals, as well as the obligations of larger spheres
of persons involved in the realization of construction projects, including the producers
of construction materials. The authorization decisions, issued by the Local
Administration at the recommendation of their technical bodies entrusted with the
evaluation of the plans have the character of administrative decisions, and could be
contested before the courts. The DoP may serve as evidence, for example, to show
whether a building has sufficiently safe technical properties, and therefore the project
comply with the obligations imposed by Laws 10/95 and 50/91.

Market surveillance

The State Inspectorate in the Field of Constructions (thereafter State Inspectorate) is

also the agency responsible for the implementation measures and for information and
market surveillance activities related to construction products.. With respect to the
compliance of construction products with standards and requirements related to
protection against fire, the monitoring and surveillance is accomplished by the General
Inspectorate for Emergency Situations.

In its market surveillance role, the State Inspectorate in the Field of Constructions
performs inspections on the characteristics of construction products by means of
documentary review and, where appropriate, physical and laboratory checks on the
basis of adequate samples. The Board performs audits of various products in continuous
planned monitoring program and also as a reactive measure to information received
from the public or from another EU/EEA country. The aim is to remedy incorrect CE
marking and false information about product characteristics.

In consequence, the DoP may have relevance in market surveillances executed by the
State Inspectorate in the Field of Constructions (or by General Inspectorate for

27 The Methodological norms for the application of the Law specify in more details these obligations

11
Emergency Situations in the case of construction products which have a role in the
protection against fire), since such inspection may include both review of documents
and of physical samples.

Liability for Defective Construction Products and for Damage Caused by the Defective
Product.

Summary table of Romanian national liability system (specific construction)

Countries
Liability
Specific Role of contract Joint and Duration of main liabilities
constructor’s in formation of several liability
liability liability or ”in solidum”
framework
Romania Yes - Specific Weak – liability Yes, Law no 10/1995:
provisions mainly may be 10 years – liability for
relative to governed by contractually hidden building defects
constructor’s legislation excluded
and consequential
liability in the
damages
Civil Code and
law no 10/1995 Liability for structural and
resistance defects
resulting from non
respect of design and
execution norms lasts for
the whole useful life of
the building

Defective Products

The DoP may be relevant in construction projects, for example in cases of liability for
hidden construction defects (produced by defective construction products), or in
liability cases for defective construction products, or in the case of liability for damages
caused by the defectiveness of the products.

With regards to liability for hidden construction defects, Article 29 of the Law No
10/1995 regarding the quality in constructions, with all its subsequent modifications disposes
that:

“the drafter of the project, the certified specialists who verifies the projects, the
producers and suppliers of materials and products for construction, the person
who executes the project,, the certified professional responsible with the
technical execution, etc respond for all the hidden defects of the construction

12
 which appear 10 years from the reception of the work, or, for the whole life of the
construction for defects related to the resistance structure of the building,
resulted from the breach of the norms related to the project and execution of
constructions in force at the date when the construction was realised”

Accordingly to Romanian law, a producer or seller liability for defective products

(including construction products) may also be engaged under the law No 240 of 7 June
2004, related to the responsibility of producers for damages produced by defective
products.28 According to this law a producer is liable for damages caused by a defect in
his product, i.e. for personal injuries or damages to any item of property other than the
defective product itself if the item is of a type ordinarily intended for private use and
was used for such purposes by the injured person. Such responsibility is applicable to
movables, even if incorporated into another movable or into an immovable. A product is
defective when it does not provide the safety which a person is entitled to expect, taking
all circumstances into account, including the presentation of the product. Although there
is not much litigation on this matter,29 nevertheless, the DoP may be considered as part
of the presentation of the product to which Law 240/04 refers, meaning that incorrect
information in the DoP may be of relevance for determining whether a producer is liable
for damage caused by a defect in his product. Unlike the statues of limitations for hidden
defects of construction provided by the Law 10/1995, the statues of limitation for
defective products is limited to 3 years from the date when the person affected knew the
existence of the damage, of the defect of the product and the identity of producer (Art
11), but the complain for recovery of damages could not be made after 10 years since
the date when the producer have launched the product on the market.

The general seller liability for defective products is also governed by the appropriate
dispositions of the civil code related to the contracts of sale. However, under the new
civil code the statue of limitation is relatively short (3 month-3 years), the seller liability
may be amended by contract, etc, so the different regimes for liability introduced by
special legislation which derogate from the general rules of the civil code may be

28 Legea nr. 240 din 07/06/2004 privind raspunderea producatorilor pentru pagubele generate de
produsele cu defecte, Publicat in Monitorul Oficial, Partea I nr. 552 din 22/06/2004
29 But see e.g. Civil sentence no 1490/2008, of Tribunal of Salaj County, affirmed in part and infirmed in

part (with regards to statue of limitations terms) in Appeal, infra, FN 33.

13
appropriate for a buyer attempting to engage the liability of producers in the field of
construction.30

In the situations when the buyer is a consumer, a seller’s liability is governed by a

number of acts related to the protection of consumer, most notably the Government
Ordinance No 21/1992 for the protection of the customers (approved by Law 11/2004)
with its subsequent modifications, Law No 449/2003 regarding the selling of products
and the warranties associated to the products,31 or the Law no 363/2007 regarding
incorrect business practices of in rapport to customers and for harmonization of
Romanian regulations in the field with the European practices for customer protection.32
However, in general, the statues of limitation are shorter in these laws in comparison to
the law for quality of construction products, and the liability or recovery regimes
introduced by these laws may be defined as complementary to those provided by the
law on quality of constructions. In other words, a consumer may be tempted to make
recourse to these regimes only when she has not an action under the rules provided by
the law on quality of construction.
Since the seller is responsible for defects relating to the characteristics of the products,
or a contractor for defects relating to performed services, a DoP may be of relevance to
determine whether a product or service is considered defective or not.

As indicated above, nevertheless, under the general rules provided by the Civil Code the
liability of parties involved in construction projects, including the seller’s or the
contractor’s responsibility for defects is principally defined in a contractual way, which
may differ from contract to contract. Nevertheless, the DoP may be of relevance in
determining whether a product is considered defective or not, and it may be relevant in
case of hidden defects in construction, two regimes which derogate from the general
regime established by the Civil Code.

30 For example, an individual customer, who bought a defective product, would prefer to invoke the
disposition of Law No 240/2004, instead those of the new Civil Code, as the former are more favourable
for her than the latter.
31 Legea nr.449 din 12 noiembrie 2003 privind vânzarea produselor şi garanţiile asociate acestora
32 Legea nr.363 din 21 decembrie 2007 privind combaterea practicilor incorecte ale comercianţilor în

relaţia cu consumatorii şi armonizarea reglementărilor cu legislaţia europeană privind protecţia

consumatorilor. This law regulates in particular aggressive selling, unconscious clauses, etc.

14
Misleading Marketing Practices and Unfair Competition
The DoP could also be relevant in relation to marketing and commercial practices. For
example, the Romanian Unfair Competition Law (Law 11/91, completed and modified
by Law 298/2001), contains a provision (art 4(f), which prohibits the traders to
dissemination to the public of misleading information, capable to create an unfair
advantage in rapport to other traders. Accordingly to the provision, a trader may not use
inaccurate claims or other presentations in marketing which are misleading with
respect to the commercial operations of the trader, for example regarding the product’s
type, quality and other defining characteristics. A trader whose marketing practices are
misleading may be prohibited from continuing the practice, if the practices influence or
are likely to influence the recipient’s ability to take commercial decision. Since the DoP
contains information about the product’s characteristics, it can be regarded as
advertising or as other commercial activities governed by the above mentioned Law.

2.1.1. Summary of construction products liability

Construction products liability is relevant in several fields and areas of law. It is for
example relevant both in the Law related to the quality of constructions and in the
relevant rules regarding sales.33 It also potentially relevant in respect of damage caused
by defective products, misleading marketing practices and unfair competition acts, as
discussed above.

33As for example in matters related to hidden vices of the construction products sold to individual
customers. The Supreme Tribunal (the former name of the High Court of Cassation and Justice) in its
decision No. 1936/1984, declared for example that the condition of a hidden vice is that such vice could
not by apprehended at the first sight or when the good sold was examined. The Bucharest Appellate Court,
in its Civil Decision No 212/Ap of 19 November 2007, extends for example this definition of the Supreme
Tribunal to the works executed by derogation of technical norms, and the inclusion of non conform
products in the final work, and engages the responsibility of the seller of construction works for the
“hidden defects” generated this way (However, the Court refuses to extend the responsibility of the seller
for hidden vices of constructions made before 1991-when Law 50/1991 introduced the requirement to
provide the technical cart of the building) . See also the Civil sentence no 1490/2008, of Tribunal of Salaj
County, Confirmed by the Appellate Court of Cluj, Civil Decision No. 241/2008,(definitive) decided on 22
December 2008, The Appellate Court, decided for example that the no presentation of the DoP for the
mortars used in a construction project (as requested by the SR EN 9000 standard) constitute a hidden vice
for the works executed in these conditions, and ii) that the Art. 29 of the Law No. 10/1995 (establishing a
prescription of 10 years), for the quality in construction constitutes the special law in matters related to
construction, and, that iii) the Law No 10.95, read in conjunction with the Decree No. 167/1958 providing
for statue of limitations for construction works, imply that an action for hidden vices in construction could
be introduced in 3 years since their discovery of the hidden defects, but not later than 10 years after the
construction was executed.

15
As for the Sales of Goods, general provisions that address lack of conformity could be
found in the New Civil Code, as well as in the laws regarding to defective products, sales
to consumers, or the law related to quality in constructions. Those acts contain a general
enumeration of certain aspects concerning standards and expectations the goods must
live up to. In addition, the law related to defective products contain provisions stating
that the goods shall be considered defective if they do not conform with information
relating to the characteristics of the goods or their use, which the seller has provided in
the context of marketing the goods or otherwise prior to the sale, and which can be
presumed to have influenced the sale. Such responsibility also applies if the goods do
not comply with information relating to their characteristics or use which a person
other than the seller, at an earlier point in the transaction chain, or on behalf of the
seller, has provided prior to the sale, in the context of marketing the goods and which
can be presumed to have influenced the sale, unless the seller neither knew nor should
have known about such information. The DoP may be considered as information related
to the characteristics of the goods which the seller has provided in the context of
marketing the goods, and which can be presumed to have influenced the sale.

Similar provisions to those provided in the laws related to defective products are
provided by the special legislation regulating sales to the customers. In the context of
such sales, the DoP may also be considered as information relating to the characteristics
of the goods and which can be presumed to have influenced the sale. A more special
regime (which concern hided defects of constructions) with extended statue of
limitations is provided by the law on the quality of construction products.

In general, the remedies available for the buyer, due to the products’ lack of conformity,
are primarily rectification of the defective product, replacement, price reduction. In
addition the buyer may be entitled to terminate the contract and to claim damages.

2.1.2. Statute of limitations in the area of construction products liability

The (general) statute of limitations, according to the new Civil Code is provided in
article1709 of this Code. According to this provision, the buyer must put the seller on
notice of the defect within three months after receiving the goods, in the case of

16
constructions.34 Otherwise, the buyer shall have forfeited the right to invoke the defect
unless otherwise provided by a warranty or other similar undertaking. However, the
Law on quality of constructions No 10/1995 provides a much longer statue of limitation
and a general liability for hidden defects which is 10 years, and in the case of structural
defects runs for the whole life of the building.

As for defective products or consumer sales, the statues of limitation run for 3 years
(since the buyer knew the defect but not longer than 10 years since the product was
launched on the market, Article 11 of the Law No 240 of 7 June 2004 related to the
responsibility of producers for damages produced by defective products), respectively 2
years (Art 16 Law No 449/2003) in the case of consumer goods sales and the warranties
associated to the products sold to customers. As in the case of civil code, some notice of
the buyer to the seller regarding the defect is required.
A summary of the above information discussed above is provided in the following
analytical table

Table 2. Relevant Romanian Statutes of Limitation in the area of construction products

liability:

Type of Statute Coverage

General Statutes of Limitation Covers all

(new Civil Code)
(favourable regime for sellers or producer, less
favourable for buyer, customer, etc), but special
legislation below introduces special statutes of
limitations
3 months

Special Statues of Limitations Defective (direct) Quality of

Products Sales to Constructions
Liability Customers
3 years (since
Law No 240/ 2004 (defective the buyer
products) knew the
defect)- but no Not Applicable
longer than 10

34Under the (default) legal regime applicable up to entry in force of this new code, provided by Article 5 &
11 of the Decree No 167/1958 (regarding the vices of a construction), these terms were longer,
respectively 1 and 3 years (and 6 months since the discovery of hidden vices, except for the cases when
the hidden vices were concealed in a delusive manner).,

17
 years (since
the product
was launched
on the market)

Law No 449/2003 (sales to Not Applicable 2 years Not Applicable

customers)

10 years (hidden
Law no 10/1995 (quality Not Applicable defects only) &
constructions) whole life building
(structural defects)

2.1.3. Summary of the rules relating to authorizations pertaining to the use of

construction products
The Law No 10/1995 regarding the quality in constructions includes in the system of
quality in constructions (Art 8 & 9) the quality of products utilized in the realisation of
construction (Art 9 (b). In the Article 10 it provides that …by technical regulations are
specified …the minimum quality requirements for the construction products, among
others, as well as the determination and the verifications of the accomplishment of those
requirements, and in Article 11 that the certification should be made by the producers,
accordingly to procedures and methodology established by law. In the second paragraph
of Article 11, the law bans the utilization of construction products without certification
of their quality, quality which should ensure a corresponding level of quality to the
essential requirements of quality of construction. Accordingly to the Article 5 of the law,
which details the requirements, those are mechanical resistance and stability; security
against fire, hygiene, health and environment; secure exploitation; protection against
noise and economy of energy and thermo isolation.

2.2. Administrative bodies that may require the DoP

Administrative bodies that may require the DoP are the municipalities’ technical
Building Committees, the State Inspectorate in the Field of Constructions (and General

18
Inspectorate for Emergency Situations for construction products which have a role in the
protection against fire) and the Permanent Technical Council for Constructions

2.2.1. Presentation, role, function and competence of these bodies

The (technical) Building Committee and the Chief Architect

In conformity to the Law No 50 of 29 July 1991 regarding the authorization of

constructions and some measures for the realization of dwellings and the technical
norms issued for its application,35 the issuance of building authorisation is usually the
competence of the mayor, at the proposal, following the examination of the project, of a
technical building committee, generally led in general by the Chief Architect of the
Municipality. Although the tendency is to have a technical building committee in each
municipality, when the municipalities lack the personnel and expertise, they could be
assisted by the county in these matters. The counties have technical committees,
including Chief Architects of the Counties. These committees have broad powers, among
others to ensure the compliance with relevant laws and general respect of legality by
municipalities’ committees. Generally, the technical Building Committees of the
municipality is responsible for handling applications for e.g. building permits and
tentative approvals, and for examination of the construction projects, including the
quality of these projects, and of the products utilized in their realization,36 and it should
pay attention to urbanism issues, and promote a landscape and townscape which are
aesthetically appealing.

State Inspectorate in the Field of Constructions

The national authority responsible which monitors compliance of constructions with

quality requirements, market surveillance activities related to construction products, as
well as for the ongoing harmonization in the construction products is the State
Inspectorate in the Field of Constructions. In matters related to compliance of
construction products with requirements of safety related to fire, the General Inspectorate

35 Order of the Ministry of Regional Development and Dwelling for approval of the Methodological Norms

for Application of Law 50/1991 (published in the Official Gazette No 797bis/23.11.2009)

36 Accordingly to the Law No 10/1995 regarding the quality in constructions (details above 2.1.3), when
evaluating the construction project the evaluators should also pay attention to the quality of the products
utilized in the realization of the construction and to ensure that these products meet the minimum
requirements.

19
for Emergency Situations is the competent authority, which similar attribution to the State
Inspectorate.

Permanent Technical Council for Constructions

Activities related to the implementation of the legislation on the marketing of the

construction products are performed by the Permanent Technical Council for
Construction (PTCC), according to Gov. Decision No 622/2004. PTCC functions under
the Ministry of Regional Development and Public Administration. Its technical
secretariat is held by the National Research – Development Institute for Construction
Works and Territorial Planning URBAN-INCERC .

2.2.2. Link with the field of construction products

The (technical) Building Committee and the Chief Architect

According to the Law No 50 of 29 July 1991 regarding the authorization of constructions

and Law No 10/95 on quality of constructions the technical Building Committee usually
led by the Chief Architect is responsible for examining permits and tentative approvals.
It also handles questions relating to the approval of control plans and control managers
as well as the organisation of workplace visits.

State Inspectorate in the Field of Constructions

The State Inspectorate in the Field of Constructions is the responsible Romanian central
government authority in relation to EU Regulation no 765/2008 setting out the
requirements for accreditation and market surveillance relating to the marketing of
products. The Inspectorate is responsible for carrying out market surveillance of
construction products covered by Directive 89/106/EEC and Regulation 305/2011/EU.

Permanent Technical Council for Constructions

The Permanent Technical Council functions under the Ministry of Regional Development
and Public Administration and performs aactivities related to the implementation of the
legislation on the marketing of the construction products.

20
 2.2.3. Context in which these bodies might need access to the DoPs (including
reference to rules and examples)

The (technical) Building Committees

The Building Committees might need access to the DoPs when determining whether
building permits and tentative approvals should be issued (Law 50/91 and its norms of
application, combined with Law 10/95 on quality of constructions), as well as when
handling questions concerning the approval of control plans, as well as the organisation
of workplace visits (same as above).

State Inspectorate in the Field of Constructions

The state inspectorate is the national authority responsible for market surveillance of
construction products and can in this capacity need access to the DoPs. Similarly, the
General Inspectorate for Emergency Situations may require access to the DoP’s when dealing
with construction products which have a role in the protection against fire.

Permanent Technical Council for Constructions

The council might need access to the DoPs when monitors the notified bodies.

2.3. Judicial bodies that may require the DoP

The Judicial bodies that may require the DoP are the general courts, which comprise
district courts, tribunals, courts of appeal and the High Court of Cassation and Justice
(Supreme Court)37. In addition, disputes may be settled by arbitration panels which thus
may require DoP. Since arbitration depends on the clauses provided on the construction
contracts, and these clauses may vary, we will leave aside arbitration bodies in our brief
discussion about the judicial bodies (we should note that the proof value of electronic
documents before arbitral bodies are similar to that before the judicial bodies). With
regards to judicial bodies that may require DoP, it should be noted that in Romania,
there is not a special administrative jurisdiction which parallels that of the general
(civil) courts (as for example in Poland). Therefore there are no special administrative

37In Romania there are no special “administrative courts” but the general courts, at all levels have a
specialized in administrative causes (“Cauze de contencios administrativ,” in Romanian).

21
courts, and the administrative matters are handled by specialised sections of the courts.
Similarly, there is no Supreme Administrative court or tribunal, and a special section of
the Romanian Supreme Court handles as a last resort court all administrative matters.

2.3.1. Presentation, role function and competence of these bodies

The General Courts

The District Court (Judecatorie) handles criminal cases as well as civil and
administrative law cases.38 The District Court also deals with various kinds of matters,
except general civil, criminal and administrative.

Tribunals

The Tribunal (Tribunalul) handles criminal cases as well as civil law cases. The Tribunal
also handles appeals against the decisions issued by the district courts, or recourse,
when special laws dispose so. There are 41 Tribunals in Romania.

The Courts of Appeal

The Court of Appeal (Curtea de Apel) is the first instance court in administrative and
fiscal contentious cases, accordingly to special law.39 The Court of Appeal also works as
the second instance court (court of appeal) in cases decided by Tribunals (sitting as first
instance courts) or sits as court of recourse, accordingly to special laws. There are 16
Courts of Appeal in Romania

The Supreme Court or the Hight Court of Cassation and Justice accordingly to its
Romanian denomination (Inalta Curte de Casatie si Justitie-in Romanian) is the final
instance in the Romanian judicial system. In the Romanian judicial system there are not
distinct administrative courts, as the system is not dual (civil/administrative).

2.3.2. Link with the field of construction products

Disputes may arise in relation to liability for defects in construction projects and
for damage caused by defective products. The DoP may also have relevance in cases of

38 Accordingly to article 94 (3) of the New Romanian Code of Civil Procedure, the district courts are
competent (general material competence) to handle all the complaints against the administrative
decisions of public administrative bodies.
39 N.B. This general competence is different than the general competence in administrative matters

entrusted to the District Courts.

22
misleading marketing practices or unfair competitions.40 Decisions issued by mayor at
the recommendation of the (technical) Building Committee and General Architects can
be appealed to the ordinary courts

2.3.3. Context in which these bodies might need access to the DoPs (including
reference to rules and examples)
In Romania, the parties may refer in principle to all evidence they can access, and the
court must evaluate this evidence freely (principle of free evaluation of evidence,
provided in the Article 264 New civil code). Nevertheless, in Romania, the principle of
the active role of the judge is well established doctrinally and in practice. The New Code
of Civil Procedure, entered in force in February 2013, provides for example in its Article
22 (2) that the judge could request a party to present a proof even if the party refuses to
do so, and in its Article 10 provides that the judge could request the administration of a
proof which is in the possession of another party than that requesting the
administration. In practice this principle temperate the action of the principle of free
production of evidence (parties refer to evidence they can access) and imply that in
particular circumstances related to the case, the courts may order production of
evidence not accessible to the party who invokes it.

Therefore, the judicial bodies might examine the DoP if any of the parties refer to it as
evidence, even if the DoP is not in the possession of the party who refers to it.41 In the
majority of cases, however, the parties who whish to introduce DoP as evidence will
have to expressly request so, and the judicial bodies will not on their own accord access
the DoPs, except for a limited set of particular circumstances, when the need to access
DoPs results from the debates in the case, and was not anticipated by the parties when

40 See e.g. National Authority for Protection of Customers verbal process nr.2/456 din 08.01.2007,
acknowledging misleading commercial practices and obligating the seller of roof tiles who did not
translate the DoP in Romanian and issued only a fiscal receipt to the buyer to replace at its own expense
the defective tiles sold; Civil Decision no.597 din 02.07.2008, of the Court of Odorheiu-Secuiesc, noting
that the marketing of products with inappropriate DoP’s amount to misleading practices partially
confirmed and partially rescinded (with regards to the prescription terms to introduced such actions, and
the equivocation of misleading DoP’s with hidden vices) by the Tribunal, on line (in Romanian) at:
http://jurisprudentacedo.com/Pretentii-constatarea-viciilor-relevate.html- But see County Court of
Constanta, Civil Decision No 7616.02.2010 (file No.11475 212 2007),definitive, deciding that in the case
when the whole construction is realized from different materials than those represented in the contract of
sale, the buyer has open the action for annulment of contract and not an action for hidden vices or for
responsibility of the constructor/seller for such damages produced by such vices.
41 In general the courts would nominate technical “experts’ who will evaluate the DoP’s in relation to all

the technical documentation presented by the parties, the works executed, the relevant dispositions of
contracts, etc.

23
introducing the action. In such circumstances the judge may require proprio motu (by its
own initiative) the production of the DoP’s, even in the situation when no party of the
trial requests so.

2.4. Insurance organisations

2.4.1. Role of insurance organisations in the construction products industry

In Romania there is no mandatory insurance for constructions products industry, and,
although the insurance organisation is active on the market and sell a variety of
insurance products, in practice everything depends on the producer or the builder
customs and practices.
More specifically, and with regards to customer contracts: No mandatory national
insurance (except for natural disasters-earthquakes and force majeure events,
introduced by Government Ordinance in 2010-no widespread application however, and
refer to other situations than those strictly resulted from construction products defects
or liabilities). In practice the insurance companies sell a variety of insurance politicise
for builders, including all risks insurances.
In construction projects in which the state is client, the builder may be required to have
special insurance, provide special warranties, etc, but much depends of particular
legislation and the practices of the state entity which order the construction project.

2.4.2. Context in which these organizations might need access to the DoPs
Insurance organisations might need access to the DoPs in case of occurrence of defects
or damage caused by defects concerning the contract work. In consequence, the DoPs
may be of relevance in determining who is liable for a defect or damage.

2.5. Contractors, investors and owners of the construction works

According to Gov. Decision No 273/1994, contractors, investors and owners of the
construction works have responsibilities regarding the completition and keeping
available the technical books of the construction works. Such technical books shall have
included the DoPs or Declarations of conformity of the construction products used for

24
the realisation of the construction works. The presence of DoPs in the technical book of
the construction work is relevant for:
- demonstrating that the products incorporated in the construction work are
suitable for the use in that construction work and respect the requirements
provided in the construction work design;
- who is liable in case of a defect or damage;
- giving important information for designing and realization of refurbishment
and/or strengthening of the construction work;
- giving important information for demolition projects (information such as the
contents and emissions of dangerous substances of the construction products);
- giving important information for the possible reuse of the construction products,
after their dismantling or after the demolition of the construction work.

It is important to note that the technical book shall be kept during the whole life of the
construction work. This period is much longer than the 10 years period provided for the
manufacturers to keep the DoP, after the construction product has been placed on the
market. Also, that due to the changes of the IT technology, the digital format and/or
medium in/on which the DoP has been made available could be not readable after
decades.

3. CHAPTER 3: Electronic/digital provision of the DoPs before

administrative and judicial bodies

3.1. Provision of electronic documents to administrative bodies

In the present, the main law governing the electronic documents is Law No 455/2001
regarding electronic signatures (published in the Official Gazette No 429/31 July 2001).
42 Article 5 of this law stipulates for example that the electronic documents to which is
has been applied an extended electronic signature….is assimilated in respect to its
conditions and effects to the act under private signature. Furthermore, article 6 of the
law provides that the electronic document to which it has been applied a (simple)

42 Lege nr.455 din 18 iulie 2001 privind semnătura electronică.

25
electronic signature, recognized by the party to which it is opposed, has the same effect
as the authentic act between these parties and between those who represent these
parties. Article 8 provides that if one party does not recognize the document and the
signature, an expertise could be ordered, and the article 7 provides that in the case when
the law requires a written form as a condition of proof or of validity of a documents, an
electronic document to which it has been attached an extended signature is deemed to
accomplish these conditions.

In addition to this main text, there are other laws which provide for the possibility of
electronic communication and consider electronic correspondence as evidence (e.g. Law
544 /2001 on access to information (FOIA) of such communication.

The project of the Romanian administrative code (not adopted yet), also provides for the
possibility of provision of electronic documents to administrative bodies and for the
proof value of such documents in a relatively liberal manner. 43

Nevertheless, at the present, the provision of electronic documents to administrative

bodies, although possible in practice and sometimes even required by various bodies is
not the rule. There are wide differences between various administrative bodies’
requirements in matters related to electronic documents, and especially on the local
level, there is a preference of both administrative bodies and of petitioners for the use of
the traditional documents. This is due in part to the significant expenses which may
incur for obtaining an extended electronic signature as well as to the fact that in
Romania at the time there are only three certified issuers of certificates for such
signatures.

3.1.1. Admissibility of electronic documents (including reference to rules and

summary of case examples)
See above

43The project (in Romanian) is available on line at the address :

http://www.mira.gov.ro/Documente/Transparenta%20decizionala/Proiect%20COD%20procedura%20a
dministrativa.pdf (visited March 2013).

26
 3.1.2. Weight of admissible electronic documents (including reference to rules and
summary of case examples)
Formal requirements in administrative matters are more common than under civil law.
One example is the issuance of building permits, where a petition, whose correspondent
in electronic form would be a document which include an extended electronic signature,
should be filed. However, once accepted, electronic documents are weighted as their
correspondents in traditional forms, accordingly to the principle of free evaluation of
proof.

3.1.3. Authentication and integrity requirements (including those on preservation)

See above (discussion on extended electronic signature; there is a project to move to
electronic archival, but is unclear at the moment what timeframe would be needed for
migration to electronic form)

3.2. Provision of electronic documents to judicial bodies

According to New Code of Civil procedure, a document is considered to be received by

the court on the day when the document or a note of the paid dispatch in which it is
enclosed, reached the court or was delivered to a competent court officer. This provision
is also applicable for electronic documents and to documents send by electronic means
to the court. The new code has a liberal conception in matters related to electronic
documents, so even the summons of the parties may be made by electronic means
(email).

3.2.1. Admissibility of electronic/digital evidence (including reference to rules and

summary of case examples)
In conformity to the Article 266 of the NCCP, the electronic document is received as
proof in the same conditions as the document on traditional supports, if the electronic
document accomplishes the conditions provided by law (Law on electronic signatures,
above). The subsequent article, 277 sent to the conditions established by the special law
on electronic signatures.

27
 3.2.2. Weight of admissible electronic/digital evidence (including reference to rules
and summary of case examples)
Under the Romanian law, there is no provision that certain evidence shall be given
different weight than other evidence. Courts evaluate all circumstances and therefore
admissible electronic documents will be regarded in the same way as paper copies of
documents. Therefore, electronic evidence, once accepted has the same value as
evidence on traditional material support.

3.2.3. Authentication and integrity requirements (including those on preservation)

See above (rules provided by the Law on electronic signatures)

4. CHAPTER 4: Case Study

CASE STUDY

Manufacturers X and Z have supplied with the construction products the reference number
for the DoPs and the Internet address (“Website”) where the DoPs can be found.

Manufacturer Y has placed on the construction products QR codes that contain the content
of the DoP and Website where the DoPs can also be found.

The Builder goes to the Websites of Manufactures X and Z, inputs the reference number for
the DoP on the Website and a DoP appears. It can be downloaded the form of PDF or
similar files, is readable and contains the information required by the CPR.

The Builder downloads the DoPs onto his computer and archives it.

The Builder uses his smartphone to read Manufacturer Y’s QR Codes, enabling him to view
the DoPs’ contents. He downloads the DoPs’ contents onto his smartphone. The
information contained in the QR Codes is readable and reflect the information required by
the CPR.

28
Hypothesis 1

A couple of years later a claim is brought up having a bearing with the factual
performance of a construction product.

The Builder seeks to produce a digital medium (memory stick, cd, smartphone) containing
the content of the relevant DoPs (bearing in mind that for a building there might by
hundreds of DoPs) before a court (administrative or civil).

What type of digital medium, if any, is accepted by the Courts to be used in Court?

Would the content of the digital medium produced be accepted as evidence of the DoPs
(please describe in detail in which circumstances and under which conditions (citing
relevant rules or case examples), if any, the digital medium would or would not be
accepted as evidence)?

Would the content of the digital medium produced be accepted as evidence of the
content of the DoPs (please describe in detail in which circumstances and under which
conditions (citing relevant rules or case examples), if any, the digital medium would or
would not be accepted as evidence of the content of the DoPs)?

Would this be given the same weight as other types of evidence?

The Builder provides the addresses of the Websites where the DoP information can be
found.

Would the Court accept the DoP information from the Websites as evidence of the DoPs
(please describe in detail in which circumstances and under which conditions (citing
relevant rules or case examples), if any, the Website addresses would or would not be
accepted as evidence of the DoPs)?

Would the Court accept the DoP information from the Websites as evidence of the content
of the DoPs (please describe in detail in which circumstances and under which conditions

29
(citing relevant rules or case examples), if any, the Website addresses would or would not
be accepted as evidence of the content of the DoPs)?

Would the Court give the same weight to this as other types of evidence?

A builder may provide DoPs before a court by means of a digital medium, at the court’s
discretion. Such a digital medium must be of a type normally employed by the court
itself and in such form that it may be read, listened to or otherwise comprehended. For
example, the DoPs may be provided to the court by e-mail. Larger files may be provided
on a USB-stick or CD/DVD. The content of the digital medium must be comprehendible
through use of technical aids normally employed by the court. Therefore, the format of
the files contained in the digital medium must be readable through use of standard
programs, i.e. for example file formats such as PDF and DOC.

If provided in such format that it may be comprehendible through use of technical aids
normally employed by the court, the digital medium may be accepted as evidence of the
DoP and its content.

Evidence provided by means of a digital medium shall be evaluated according to the

same principles as other types of evidence. The principle of freedom of proof entails that
the parties in a trial may refer to all the evidence that they can access and that the court
must evaluate this evidence freely. Therefore, evidence provided on a digital medium
shall, as a starting point, be given equal weight as other types of evidence.

The provision of the addresses of the Websites where the DoP information can be found
will most likely not suffice as evidence in a trial. In accordance with the principle of free
production of evidence, each party is responsible for submitting all the evidence that the
party wishes to invoke in the proceedings. The courts will only consider evidence that
the parties have submitted to the court and will therefore not on its own initiative access
a Website address that a party has provided. The provision of the addresses of the
Website where the DoP information can be found will therefore not suffice as evidence
of the DoP or of its content.

30
Hypothesis 2

The builder needs to obtain a final building permit from the authorities.

He/she, as part of the documentation used to obtain the final building approval produces a
digital medium (memory stick, cd, smartphone) containing the content of the relevant
DoPs.

Would the building inspectors/approval body accept the builder’s medium (please describe
in detail in which circumstances and under which conditions (citing relevant rules or case
examples), if any, the digital medium would or would not be accepted)?

He/she, as part of the documentation used to obtain the final building approval produces
the Website addresses.

Would the building inspectors/approval body accept the builder’s provision of the Website
addresses (please describe in detail in which circumstances and under which conditions
(citing relevant rules or case examples), if any, the Website addresses would or would not
be accepted)?

A builder may provide a digital medium containing DoPs to a Building Committee in a

similar manner as before a court (se Hypothesis 1 above). Thus, the digital medium must
be of a type normally employed by the building inspector or Building Committee itself
and in such form that it may be read, listened to or otherwise comprehended. In general
the local Building Committees makes available to the builders their specific technical
requirements related to electronic evidences, as well as the means of provision (e-mail,
USB-stick or CD/DVD).

A Building Committee, and other administrative bodies, has in general a wider service
obligation than a court, and this obligation is dependent in general on the administrative
body’s scope of activity and of what is considered as appropriate in view of the
individual’s need for assistance and the body’s activities. Thus, in some cases it may be
sufficient that a builder provides the Building Committee with the addresses of the

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Websites where the DoP information can be found, instead of providing the actual DoP,
but this depend of the particular Building Committee Discretion. Once the building
permit process will become electronic, the provision of the websites where DoP
Information exist may suffice, at the moment, however the most a Building Committee
accepts is the provision of DoP in electronic formats.

5. Conclusion

5.1. Use of electronic means to provide DoPs before administrative bodies

A party may use electronic means to provide DoPs before administrative bodies if
required and accepted by these bodies. Whether there are limitations on the actual size
of such documents sent by email is unclear at the moment, as much depends of the
particular systems of the respective administrative bodies and no specific disclaimers
appear on the websites investigated by the expert. Similarly, no particular reference
with regards to technical aids which the body itself employs for communication in such
form or specification of the technical conditions which should be accomplished by the
sender so the administrative body may read, listened, or otherwise comprehend the
information could be found on the administrative bodies website checked (a general
exception can be found in the methodological norms for implementation of the law
regarding building and construction permits, which make explicit the formats in which
the information regarding to construction plans could be presented) . Nevertheless, it is
possible to hand in electronic documents of larger size on a USB-stick or CD-ROM,
depending and the particular administrative body practices and discretion.

Evidence provided by means of a digital medium shall be evaluated according to the

same principles as other types of evidence and shall, as a starting point, be given equal
weight as other types of evidence.

5.2. Use of electronic means to provide DoPs before judicial bodies

Concerning the use of electronic means to provide DoPs before judicial bodies the same
applies as described above.

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 5.3. The life of the IT technology used for delivering the electronic DoP

See the considerations from point 2.5 (within the “important notice”) regarding the very
short life of the IT technology.

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