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Law No. 193 Of 6 November 2000 Relating To Unfair Terms In Contracts Concluded Between Traders And Consumers

Original Language Title:  LEGE nr. 193 din 6 noiembrie 2000 privind clauzele abuzive din contractele încheiate între comercianţi şi consumatori

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LEGE no. 193 193 of 6 November 2000 (** republished) (* updated *) on unfair terms in contracts between professionals and consumers ((updated on 13 June 2014 *)
ISSUER PARLIAMENT




---------- ** **) Republicated pursuant to the provisions art. 80 80 of Law no. 76/2012 for the implementation of Law no. 134/2010 on the Code of Civil Procedure, published in the Official Gazette of Romania, Part I, no. 365 of 30 May 2012, giving the texts a new numbering. Law no. 193/2000 on unfair terms from contracts concluded between professionals and consumers was republished in the Official Gazette of Romania, Part I, no. 305 305 of 18 April 2008 and subsequently amended by Law no. 161/2010 for amendment art. 84 84 of Law no. 296/2004 on the Consumer Code and the Law no. 193/2000 on unfair terms from contracts concluded between traders and consumers, published in the Official Gazette of Romania, Part I, no. 497 497 of 19 July 2010. + Chapter I General provisions + Article 1 (1) Any contract concluded between professionals and consumers for the sale of goods or the provision of services will include clear, unequivocal contractual clauses for the understanding of which no expert knowledge is required. (2) In case of doubt on the interpretation of contractual clauses, they will be interpreted in favour of the consumer. (3) It is prohibited for professionals to stipulate unfair terms in contracts concluded with consumers. + Article 2 (1) The consumer means any natural person or group of natural persons constituted in associations, who, pursuant to a contract covered by this law, act for purposes outside his commercial, industrial activity. or production, artisanal or liberal. (2) By professional means any authorized natural or legal person, who, pursuant to a contract covered by this law, acts within the framework of his commercial, industrial or production, artisanal or liberal, as well as any person acting for the same purpose on behalf of or on its behalf. + Article 3 (1) The provisions of this Law shall also apply to order vouchers or delivery vouchers, tickets, vouchers and others such as stipulations or references to predetermined general conditions. (2) The contractual clauses provided for under other normative acts in force shall not be subject to the provisions of this Law. + Chapter II Rights and obligations of Contracting Parties + Article 4 (1) A contractual clause that has not been negotiated directly with the consumer will be considered abusive if, by itself or together with other provisions of the contract, it creates, to the detriment of the consumer and contrary to the requirements of good faith, a significant imbalance between the parties ' rights and obligations. (2) A contractual clause will be considered as not directly negotiated with the consumer if it has been established without giving the consumer the possibility to influence its nature, such as preformulated standard contracts or general conditions of sales of professionals *) on the market of the respective product or service. ---------- Alin. ((2) of art. 4 4 has been modified according to section 3 3 of art. 38 of LAW no. 76 76 of 24 May 2012 , published in MONITORUL OFFICIAL no. 365 of 30 May 2012, by replacing the term "trader" with the term "professional". (3) The fact that certain aspects of the contractual clauses or only one of the clauses was negotiated directly with the consumer does not exclude the application of the provisions of this law for the rest of the contract, if a global assessment of the contract highlights that it has been predetermined unilaterally by the professional. If a professional claims that a preformulated standard clause has been negotiated directly with the consumer, it is his duty to present evidence in this regard. (. The list contained in the Annex which forms an integral part of this Law shall, for example, render the clauses regarded as abusive. (5) Without violating the provisions of this law, the abusive nature of a contractual clause shall be evaluated according to: a) the nature of the products or services covered by the contract at the time of its conclusion b) all factors which determined the conclusion of the contract; c) other clauses of the contract or other contracts of which it depends. (6) The assessment of the abusive nature of the clauses is neither associated with the definition of the main object of the contract, nor with the quality of satisfying the price and payment requirements, on the one hand, nor with the products and services offered in return, on the other part, to the extent that these clauses are expressed in a slightly intelligible language. + Article 5 In the case of pre-formulated standard contracts, the professional has the obligation to submit, upon request, to any interested person a copy of the contract he proposes. + Article 6 The unfair terms contained in the contract and found either personally or through the bodies empowered by law will not produce effects on the consumer, and the contract will continue to be carried out, with the consent of the consumer, only if after Their elimination may continue. + Article 7 To the extent that the contract can no longer produce its effects after the removal of the clauses considered abusive, the consumer is entitled to ask for the termination of the contract, and may request, as the case may be, damages. + Chapter III Competent bodies for finding contraventions and settling disputes + Article 8 The control of compliance with the provisions of this law is made by the authorized representatives of the National Authority for Consumer Protection, as well as by authorized specialists of other public administration bodies, according to the competences. + Article 9 The control bodies carry out checks on the complaint of the injured persons referred to in art. 2 2 para. ((1) or ex officio. + Article 10 Professionals have the obligation to present to control bodies, in original, contracts concluded with consumers. + Article 11 The competent control bodies conclude the minutes by which the facts found on the occasion of the checks made are recorded, as well as the articles of the law violated by the professional. + Article 12 *) (1) If it finds the use of adhesion contracts containing abusive clauses, the control bodies provided for in art. 8 will refer the matter to the court of residence or, as the case may be, the seat of the professional, requesting its obligation to modify the pending contracts, by eliminating the abusive clauses. (2) The minutes drawn up according to art. 11. (3) Consumer protection associations which meet the conditions laid down in art. 30 and 32 of Government Ordinance no. 21/1992 on consumer protection, republished, with subsequent amendments and completions, may be sued by the professional who uses adhesion contracts containing abusive clauses, at the court provided in par. (1), in order for it to order the cessation of their use, as well as the modification of the contracts under execution, by eliminating unfair clauses. Art. 13 13 para. ((1) and (4) are applicable. (4) Provisions of para. ((1)-(3) are without prejudice to the right of the consumer to whom an adhesion contract containing abusive clauses to invoke the nullity of the clause by way of action or by way of exception, under the law. + Article 13 (1) The court, if it finds the existence of unfair terms in the contract, obliges the professional to modify all the adhesion contracts in the course of execution, as well as to eliminate unfair terms from the preformulated contracts, intended to be used in professional activity. (2) In the case provided in par. (1), the court will also apply the contravention fine provided for in art. 16. (3) If the court finds that there are no abusive clauses in the contract, it will cancel the minutes drawn up. (4) The judgment is subject only to appeal *). + Article 14 Consumers prejudiced by contracts concluded in violation of the provisions of this law have the right to address the judicial bodies in accordance with the provisions of the Civil Code and the Code of Civil Procedure. + Article 15 If the contracting parties choose as the law applicable to the contract the law of a state not part of the European Union, and the contract has a close connection with the territory of Romania or with other Member States of the European Union and in the case in which the present law has more favorable provisions for the consumer, the latter will apply. + Chapter IV Sanctions + Article 16 (1) It constitutes a contravention, in so far as the act is not committed in such conditions that, according to the criminal law, it is considered a crime, the violation of the prohibition stipulated in art. 1 1 para. (3) and is sanctioned with a fine of 200 lei per 1,000 lei. (2) The provisions of this Law shall be supplemented by provisions Government Ordinance no. 2/2001 on the legal regime of contraventions, approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions, except art. 27-29. + Chapter V Final provisions + Article 17 This law shall enter into force 30 days after the publication in the Official Gazette of Romania, Part I. On the same date, any contrary provisions shall be repealed. + Article 17 ^ 1 The National Authority for Consumer Protection informs the European Commission of the adoption or maintenance of stricter provisions in this emergency ordinance than the provisions Directive 93 /13/EEC of the Council of 5 April 1993 on unfair terms in contracts concluded with consumers, and in relation to any subsequent amendment to this emergency ordinance, in particular where those provisions are either to extend the testing of the abusive nature to the individually negotiated contractual clauses or the adequacy of the price or remuneration, or contain lists of contractual terms which will be deemed to be abusive. ---------- Art. 17 ^ 1 was introduced by par. ((1) art. 29 of EMERGENCY ORDINANCE no. 34 34 of 4 June 2014 , published in MONITORUL OFFICIAL no. 427 427 of 11 June 2014. * This law transposes the provisions Council Directive 93 /13/EEC COMMISSION DECISION of 5 April 1993 on unfair terms in consumer contracts published in the Official Journal of the European Union (JOCE) no. L 95 of 21 April 1993. + Annex LIST comprising the clauses considered as abusive (1) These contractual provisions are considered to be unfair terms which: a) entitle the professional to unilaterally modify the terms of the contract, without having a valid reason to be specified in the contract. The provisions of this letter do not preclude clauses under which a financial services provider reserves the right to change the interest rate payable by the consumer or due to the latter or the value of other charges for services financial, without prior notice, if there is a substantiated motivation, given that the professional is obliged to inform as soon as possible about it the other contracting parties and the latter have the freedom to terminate right away. The provisions of this letter also do not oppose the clauses by which the professional reserves the right to unilaterally modify the terms of an indefinite contract, given that the professional has the obligation to inform the consumer, through a prior notification submitted within a reasonable time, in order for the latter to be free to terminate the contract; b) obliges the consumer to submit to contractual conditions that he did not have the real possibility to become aware of at the time of signing the contract; c) obliges the consumer to fulfill his contractual obligations, even in situations where the professional has not fulfilled his/her; d) entitle the professional to automatically extend a contract concluded for a fixed period, by the consumer's tacit agreement, if the limit period to which he could express his option was insufficient; e) entitle the professional to modify unilaterally, without the consent of the consumer, the clauses on the characteristics of the products and services to be provided or the delivery time of a product or the term of execution of a service; f) entitle the professional to unilaterally agree the conformity of the products and services provided with the contractual provisions g) give the exclusive right to the professional to interpret the contractual clauses; h) restrict or cancel the right of the consumer to claim compensation in cases where the professional does not fulfil his contractual obligations; i) oblige the consumer to pay disproportionately large amounts in case of non-fulfilment of contractual obligations by him, compared to the damage suffered by the professional; j) restrict or cancel the consumer's right to terminate or terminate the contract unilaterally, in cases where: -the professional unilaterally modified the clauses provided in lett. e); -the professional has not fulfilled his contractual obligations; -the professional imposed on the consumer, by contract, clauses regarding the payment of a fixed amount in case of unilateral denunciation; k) exclude or limit the legal liability of the professional in the event of injury or death to the consumer, as a result of an action or omission of the professional regarding the use of products and services; l) exclude the right of the consumer to take legal action or to exercise another legal remedy, while seeking to resolve disputes in particular through arbitration; m) unduly allow the imposition of restrictions in the administration of obvious evidence available to the consumer or the request of evidence that, according to the law, is the subject of another part of the contract; n) entitle the professional to transfer the contractual obligations to a third person-agent, trustee, etc. -, without the consent of the consumer, if this transfer serves to reduce the guarantees or other liabilities to the consumer; o) prohibit the consumer from offsetting a duty to the professional with a claim he would have on the professional; p) provide that the price of the products is determined at the time of delivery or allow the sellers of products or service providers the right to increase the prices, without, in both cases, to grant the consumer the right to cancel the contract in the case in which the final price is too high in relation to the agreed price at the time of the conclusion The provisions of this letter do not preclude the price indexation clauses, as long as they are legal, provided that the method by which prices vary is explicitly described; r) allow the professional to obtain sums of money from the consumer, in case of non-execution or completion of the contract by the latter, without providing for the existence of compensation in the equivalent amount and for the consumer, in case of non-execution the contract by the professional; s) entitle the professional to cancel the contract unilaterally, without providing the same right for the consumer; t) entitle the professional to terminate the contract concluded for an indefinite duration without reasonable prior notice, except for good reasons. The provisions of this letter do not preclude clauses by which the financial services provider reserves the right to unilaterally dispose of an end to a contract concluded for an indefinite period and without prior notice in the event of a reason based, provided that the supplier is obliged to inform the other Contracting Parties immediately. (2) Provisions of para. ((1) lit. a), p) and t) are not applicable in the case of: a) transactions in securities, financial instruments and other products or services, where the price is linked to fluctuations in the stock market quotation or the stock market index or a financial market exchange rate, which the seller or supplier cannot control them; b) contracts for the purchase or sale of estimates, traveller's cheques, international payment orders issued in currencies or other international payment instruments. _________