E-commerce legislation
Electronic commerce is the process of buying, selling or exchanging products, services or information through computer networks.
“Business-to-business” and “business-to-consumers” electronic commerce has seen, and continues to see, unprecedented and ongoing development.
Electronic commerce is a system that includes not only those transactions that focus on buying and selling goods and services, but also those that “support” revenue generation, such as:
creating demand for those goods and services, or facilitating communication between business partners, and all the interactions that arise from this process.
Advantages of electronic commerce
From the consumer's position, the advantages relate to:
time: the consumer can visit several virtual shops in a very short time (much shorter than the time required for a person's physical presence in a real shop);
freedom of choice: thanks to the large number of shops the consumer can visit, they will be able to choose a product based on a much larger number of options (price, delivery date, colour, etc.).
From the point of view of economic operators that use electronic commerce, the following advantages stand out:
a significant increase in communication speed, especially for international communications: several companies can set up a collaboration platform through which they can design and develop various products together;
strengthening relationships with suppliers and customers: through a website, the company's customers will be kept up to date with the latest products, will be offered technical support for the products purchased, and may even offer suggestions for possible improvements to products, services, etc.; on some sites consumers can build the product they want to buy (colours, materials, inscriptions, etc.);
a fast and convenient way of providing information about the company: through websites, intranets and extranets;
alternative sales channels: conducting business through such a site.
Because concluding the contract by electronic means does not require the simultaneous presence of the two parties, the economic operator and the consumer, the contract concluded by electronic means is regarded as a distance contract.
In relation to OG no. 130/2000 on consumer protection in concluding and performing distance contracts, with subsequent amendments and additions, Law no. 365/2002 on electronic commerce, with subsequent amendments and additions, appears as a special regulation whose provisions are supplemented by those contained in the aforementioned ordinance.
Types of electronic commerce
Business-to-business (B2B), an e-commerce model in which all participants are companies or other organisations;
Business-to-consumer (B2C), an e-commerce model in which companies sell to individual buyers, natural persons;
Consumer-to-business (C2B), natural persons (consumers) who use the internet to sell their products or services to companies and/or look for sellers to bid for the products or services they need;
Consumer-to-consumer (C2C), consumers who sell directly to other consumers;
Mobile commerce (m-commerce), e-commerce transactions and activities conducted through an electromagnetic medium;
E-government: Government-to-business (G2B), an e-commerce model in which a government institution buys or sells goods, services or information from legal entities;
Government-to-consumer (G2C), covering government-citizen relations at the level of information and the provision of public services (e.g. paying taxes online).
Freedom to provide information-society services
Art. 4 of Law 365/2002 on electronic commerce, with subsequent amendments and additions, regulates the freedom to provide information-society services, the provision of such services not being subject to any prior authorisation, this being carried out in accordance with the principles of free and fair competition, in compliance with the legal provisions in force.
The provision of information-society services by service providers established in other states is carried out under the conditions of the bilateral agreements concluded with those states, to which Romania is a party.
Unsolicited commercial communications, SPAM
Making commercial communications by email is prohibited, except where the recipient has given prior express consent to receive such communications.
Commercial communications that constitute an information-society service or a part of it, insofar as they are permitted, must meet at least the following conditions:
be clearly identifiable as such;
the natural or legal person on whose behalf they are made must be clearly identified;
promotional offers, such as discounts, prizes and gifts, must be clearly identifiable, and the conditions that must be met to obtain them must be easily accessible and clearly presented;
promotional competitions and games must be clearly identifiable as such, and the conditions for participation must be easily accessible and clearly presented;
any other conditions imposed by the legal provisions in force.
The consumer's consent may be obtained in any form and may be proven by any means of proof. The burden of proof lies with the service provider.
Consent communicated through a message transmitted by email is validly expressed if the following conditions are cumulatively met:
it is sent from the mailbox in which the recipient wishes to receive commercial communications;
the subject of the message is formed from the concatenation of the text “I ACCEPT COMMERCIAL COMMUNICATIONS FROM”, written in capital letters, and the name or designation of the person on whose behalf the commercial communications will be transmitted.
The subject of messages transmitted by email that constitute commercial communications must begin with the word “ADVERTISING” written in capital letters.
Commercial communications must include at least the following information regarding the person on whose behalf they are made:
the full name or designation;
the personal numeric code or the unique registration code, as applicable;
the domicile or registered office;
the telephone and fax numbers;
the email address.
The recipient of commercial communications has the right to revoke their consent to receive such communications by simply notifying the provider.
The provider has the obligation to implement a free procedure, accessible including by electronic means, through which the recipient can revoke their consent.
Revocation of consent by electronic means must take effect within at most 48 hours of initiating the procedure.
The provider must make the procedure public on its own website and within the messages that contain commercial communications.
The contract concluded by electronic means
Contracts concluded by electronic means produce all the effects that the law recognises for contracts, when the conditions required by law for their validity are met.
For their validity, the prior consent of the parties to the use of electronic means is not required.
The obligation to inform
The obligation to inform can be viewed from two perspectives, namely:
the one belonging to service providers that must be fulfilled toward recipients;
the one belonging to service providers that must be fulfilled toward consumers.
The service provider is defined by law as any natural or legal person that makes an information-society service available to a determined or undetermined number of persons.
The recipient is defined as any natural or legal person that uses, for commercial, professional or other purposes, an information-society service, in particular for the purpose of seeking information or providing access to it.
The consumer is defined as any natural person acting for purposes other than those of their commercial or professional activity.
In the first situation, the service provider has the obligation to make available to recipients, before the recipient sends the offer to contract or the acceptance of the firm offer to contract made with the service provider, at least the following information, which must be expressed clearly, unequivocally and in accessible language:
the technical steps that must be followed to conclude the contract;
whether or not the contract, once concluded, is stored by the service provider and whether or not it is accessible;
the technical means that the service provider makes available to the recipient for identifying and correcting errors that occur when entering data;
the language in which the contract may be concluded;
the relevant codes of conduct to which the service provider subscribes, as well as information about how these codes can be consulted by electronic means;
any other conditions imposed by the legal provisions.
The service provider has the obligation to offer the recipient the possibility of using an appropriate, effective and accessible technical procedure that allows the identification and correction of errors that occur when entering data, prior to sending the offer or accepting it.
The general clauses and conditions of the proposed contract must be made available to the recipient in a way that allows them to store and reproduce them. This obligation to inform does not apply to contracts concluded exclusively by email or by other equivalent means of individual communication.
In the second situation, the consumer, under OG no. 130/2000 on the legal regime of distance contracts, republished, must be informed about the name or designation of the offeror, their domicile or registered office, telephone and fax numbers, email address and any other data necessary to contact the offeror directly and effectively, as well as the means of identifying them, namely the trade-register registration number and the unique registration code.
Also, the offeror must offer consumers, within its web page, information about the prices of the products and services it sells, whether or not delivery costs are included in the price, and their value.
Prices must be indicated in compliance with the rules on marketing products and services on the market, specifying the exemption, inclusion or non-inclusion of value added tax (VAT), as well as its amount.
The obligation to inform also extends to the manner of concluding the contract, as well as to the aspects related to the procedure to be followed in this respect.
Thus, the offeror must inform the consumer about how they can choose a particular product or service from its “virtual shop” or presentation catalogue, about the steps they must take to order a particular product, about how to make payment and delivery of the chosen and ordered product, and about the right to unilaterally cancel the contract.
Details regarding the obligation to inform consumers, the performance of the contract and the cancellation of the contract can be found in the Online purchases topic.
The information must be materialised in the creation of technical means (links) needed to go through the stages of concluding a contract through electronic commerce.
For example, the ways of choosing a product may consist of selecting a product category from the menu within the economic operator's web page, or by accessing an alphabetical index of products, or by accessing the link that indicates the criteria for searching products by the brand desired by the consumer.
The ordering system is based on the “product cart”, with the possibility of adding an unlimited number of products, changing quantities and automatically calculating prices.
The offeror must make available to consumers the technical means needed to view the content of the cart and the cost, to remove certain products or to continue shopping, through links with these viewing, removal or continuation specifications.
Concluding the contract by electronic means
To send the order, the consumer must carefully complete an electronic form regarding their surname, first name, address, telephone, email address and the password with which they register.
This password can help the consumer track the orders they make, thus saving the time needed to enter personal data when they want to place a new order.
This data provided by the consumer is necessary for the offeror to confirm and deliver the ordered products under optimal conditions, without violating the legal provisions on the protection of personal data regulated by Regulation (EU) 2016/679 (GDPR) and Romanian Law no. 190/2018 implementing it.
Unless the parties have agreed otherwise, the contract is considered concluded at the moment when the acceptance of the offer to contract has come to the offeror's knowledge.
A contract that, by its nature or at the beneficiary's request, requires immediate performance of the characteristic obligation is considered concluded at the moment when its debtor has begun performance, except where the offeror has requested that acceptance be communicated to them beforehand.
Where the recipient sends by electronic means the offer to contract or the acceptance of the firm offer to contract made by the service provider, the service provider has the obligation to confirm receipt of the offer or, as the case may be, of its acceptance, in one of the following ways:
sending an acknowledgement of receipt by email or by another equivalent means of individual communication, to the address indicated by the recipient, without delay;
confirming receipt of the offer or of the acceptance of the offer, by a means equivalent to that used to send the offer or acceptance, as soon as the offer or acceptance has been received by the service provider, provided that this confirmation can be stored and reproduced by the recipient.
These methods do not apply to contracts concluded exclusively by email or by other equivalent means of individual communication.
The offer or the acceptance of the offer, as well as the confirmation of receipt of the offer or of the acceptance of the offer, made in one of the ways indicated above, are considered received when the parties to whom they are addressed can access them.
Article taken from https://www.eccromania.ro/articole/informatii/teme/achizitiile-online/comert-electronic!