NCPA's intention to strengthen its administrative capacity will entail challenges for the business environment

NCPA's intention to strengthen its administrative capacity will entail challenges for the business environment

By the draft government emergency ordinance published on 14 January, the NCPA seeks to consolidate its enforcement powers by the considerable increase of the amounts of the fines that this authority will be able to enforce against companies.

Thus, sanctioning with anything but turnover percentages (2%-4%) of companies perpetrating consumer protection-related misdemeanors is contemplated thereby.

Also, misdemeanors relating to incorrect commercial practices between merchants and consumers would be subject to fines ranging between 3%-4% of the companies’ turnover, while higher fines, of up to 5% of the turnover are contemplated for misdemeanors relating to abusive clauses.

Leaving aside the impact of the amount of the contemplated fines, which would place NCPA on the same level with ANCOM and the Competition Council, the future enforcement of such fines raises certain problems.

It thus remains to be seen how exactly will the turnover for fining purposes be determined. It also remains to be seen whether the right of defense of companies, directors and managers thereof facing operational prohibition of up to 3 years be consistently observed.

Following-up on the debates over the last years surrounding the qualitative level of food products placed on the Romanian market, the NCPA draft legislation provides for the compulsory testing of food products originating from “extra-Community countries”. By way of such exemption, the draft legislation places under certain strain the access on the Romanian market of food products originating from the Republic of Moldova, the Middle East or from the Americas.

Apart from the impressive level of the contemplated fines, it is extremely relevant that the fines that will be thus applied will have to be paid in full. An express provision in the NCPA draft legislation stipulates that fines applied in virtue of Government Ordinance no. 21/1992, Law no. 193/2000 on abusive clauses in contracts between professionals and consumers and Law no. 363/2007 on combatting incorrect practices in the merchant-consumer relationship will not benefit from the provisions of the recently-enacted law no. 203/2018 on ensuring efficiency in collecting fines. Said enactment introduced the general rule per which even when the regulations in virtue of which the sanction is applied do not expressly provide for it, should payment be done within a 48-hour timeframe, then the level of the fine is reduced by 50%.

Businessmen in Romania will have to know that once approved by Government, these proposals will empower NCPA inspectors to undertake mystery shopping activities and also to compel the sanctioned companies to display for 30 days notices informing the public of the sanctions they incurred for non-compliance with consumer protection laws.