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The seller is obliged to deliver to the consumer products which meet the subjective and objective conformity requirements and is liable to the consumer for any non-conformity which exists at the time of delivery of the goods. The legal guarantee of conformity arises by law and is granted to the consumer for a period of 2 years from the time of delivery of the goods.

Non-conformity entitles the consumer to have the goods brought into conformity, to benefit from a proportionate reduction in the price or to have the contract terminated under the conditions laid down by law.

At European level, the twin consumer rights directives, Directive (EU) 2019/771 concerning aspects of sales contracts for consumers and Directive (EU) 2019/770 concerning certain aspects of contracts related to the digital content and services sector, have been adopted. As the title suggests, Directive (EU) 2019/771 treats issues relating to contracts for the sale of goods with general applicability, while Directive (EU) 2019/770 provides particular rules on the conformity of digital products. In national law, Government Emergency Ordinance (GEO) 140 on certain aspects of contracts for the sale of goods and GEO 141 on certain aspects of contracts for the provision of digital content and digital services have been adopted. The two Directives maintain a maximum degree of harmonisation with the twin directives mentioned above.

The Commercial Guarantee is any obligation on the seller part towards the consumer, set out in the guarantee certificate or in advertising available at the time of or before the conclusion of the contract, in addition to the seller's legal obligations relating to the guarantee of conformity.

The Legal Conformity Guarantee (mandatory) operates for lack of conformity which occurs within 2 years from the date of delivery of the product, while the Commercial Product Conformity Guarantee (optional) covers solutions given to the consumer by the entrepreneur in extra to the minimum guaranteed by law. While the legal assurance of conformity is the minimum standard of guarantee required by the legislator, the consumer guarantee is the conventional guarantee that the seller offers to the consumer on a voluntary basis.

Compared to the legal guarantee of conformity, the consumer's commercial guarantee of conformity has been provided by the European legislation with an informative formalism consisting of certain mandatory particulars which the professional seller is required to include in the commercial guarantee offered, as well as the need for the conventional guarantee certificate to be " attested on any lasting basis ", either written or digital.

By lasting basis we mean any instrument which enables the consumer or trader to store information addressed personally to him in an accessible form for future reference for a time period suited to the purpose of the information and which allows the stored information to be reproduced without change.

Unlike the legal guarantee of conformity, where the legislator did not wish to make any mention of the form of the guarantee or the mandatory means of information, in the case of the commercial guarantee, the information formality required in the case of the conventional guarantee does not affect its validity or effectiveness, the purpose of this formality not being to validate the guarantee but to inform the consumer in an appropriate manner of the content of the guarantee certificate. Failure to comply with these provisions may result in the trader being fined or being obliged to pay damages and remedy the situation in the B2C contractual report.

One question is whether the legislator omitted to make similar provisions for the legal guarantee of conformity or did not intend to do so, given that the minimum guarantee of conformity is provided by law and regardless of the form in which the trader offers it to the consumer or the way in which the consumer is or is not informed, the very existence of the right would not be affected.

Given that the relevant common law does not provide for the seller's obligation to inform the consumer of the legal guarantee of conformity or to offer the guarantee ( guarantee certificate) in a certain form, we considered it necessary to investigate the common law on consumer protection.

Therefore, according to Article 18 of the Government Emergency Ordinance (GEO) 21/1992 on consumer protection, consumers have the right to be fully, correctly and accurately informed of the essential characteristics of the products and services offered by economic operators, so that they can make a rational choice, in accordance with their interests, between the products and services on offer and are able to use them safely for their intended purpose.

We cannot conclude from the wording of this law that the seller is obliged to inform the consumer of the legal guarantee of conformity, since guarantees are not essential characteristics of the products or services offered by economic operators.

According to Article 10(b) of the same legal act, consumers' rights when concluding contracts include clear and precise contractual terms, accurate prices and fees and, if required, guarantee conditions. Neither did the legislative authority intend to specify expressly what kind of guarantee it was referring to. The use of 'guarantee' as a general term is all the more misleading as the answer to our question depends on whether it is interpreted in a restrictive or restrictive way, and can be understood as a legal guarantee of conformity, a commercial guarantee or even a guarantee for a hidden defects or eviction.

As we are not yet clear on the answer to this question, we thought it would be useful to look at the national case law on this subject. According to a case decision[1], there is no confusion between the legal guarantee of conformity ( governed by mandatory legal rules, for example, art. 12 of GEO no. 140/2021) - which has the character of a minimum, mandatory rule from which the parties cannot differ - and the commercial guarantee provided by art. 15 of the Decree - the latter having the character of an additional protection offered to the consumer, but only if the trader voluntarily undertakes to do so, the law using relevant phrases such as 'may offer to the consumer' - "if it is offering the consumer a guarantee (...) the consumer remains protected by the mandatory legal rules relating to the legal guarantee, and for which it is not necessary to provide a certificate or to carry out any other formality when the product is marketed.

In another case[2], the Court holds that no legal requirement (...) requires the economic operator to list all the rights offered directly to the consumer by law (n.a.).

However, this was not always the view of the National Authority for Consumer Protection (NACP) inspectors at national level, who proceeded to sanction operators for failing to inform consumers about the legal guarantee of conformity or for not having a (legal) guarantee certificate when selling a product.

[1] Decision no. 6289/2022 of 21/07/2022, Brasov District Court

[2] Decision no. 13514/2015 of 18-Nov-2015, Timisoara District Court

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A legal perspective on the debates regarding ChatGPT

Numerous technology leaders and government officials worldwide have expressed concerns recently regarding the development of artificial intelligence platforms, specifically ChatGPT. These concerns should also be debated in Romania, and lawyers should be involved in these discussions considering the nature of their profession. The new technology has effects on companies and people's lives, according to Ioana Chiper Zah, an Attorney Associate at Hațegan Attorneys. Even Sam Altman, the CEO of OpenAI, has said that thoughts about artificial intelligence disturb his sleep. "What keeps me up at night is the hypothetical idea that we have already done something very bad by releasing ChatGPT," Altman told Satyan Gajwani, Vice President of Times Internet, at an event organized by Economic Times on June 8. When asked if AI should be regulated similarly to atomic energy, Altman said that there should be a better system for verifying the process.

Attorney Ioana Chiper Zah believes that the use of AI technologies in professional or commercial activities has significant legal implications, such as data protection, legal liability, and adherence to ethical standards. These implications should be further discussed in Romania by IT and advanced technology specialists, as well as by the community, authorities, business environment, lawyers, and consultants. Currently, states and private companies adopt different approaches to these issues based on their guiding principles and values.

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Starting from 22 October, Law No 283/2022, which substantially amends the Labour Code, entered into force.

Among the legislative changes introduced, there are certain ones which we consider to have an impact on the companies’ activities:

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To mark 18 years of activity in the western part of Romania, Hategan Attorneys is organizing an international online conference on the future of business: `DIGITALIZATION: THE NEXT BUSINESS FRONTIER`. The keynote speakers are VIOREL PECA, Head of Unit of Transition and Business Acceleration Services of the EIC European Commission, and Prof. Laurent Marliere, President & CEO, IsFin -Emerging Markets Advisor, Belgium.

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It is vital to keep an eye on developing locations to further invest and strengthen worldwide business connections. Established firm, Hategan Attorneys, has joined IsFin’s global network as an exclusive partner for those interested in the opportunities offered by the thriving Romanian market. Professor Laurent Marlière, CEO of IsFin, is thrilled to announce the partnership with Hategan Attorneys, a business law firm based in Timișoara, Romania which is also an independent member of Geneva Group International (GGI). They specialize in providing M&A and Corporate Practice Banking, Finance & Private Equity Real Estate, Construction and PPP Practice services. Additionally, the Hategan Foundation allows collaboration with social and community projects focused on Timisoara region.. 

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