by Ana Pantilica (Senior Associate) and Irina Suătean (Associate) PeliFilip
In the event of incorrect ANPC's commercial practices, offenders are subject to both fines and grave complementary sanctions, such as the cessation of practices or the suspension of all business. The legal provisions offer the possibility for sanctioned economic agents to challenge both fines and complementary sanctions, but following different procedural routes. A simple challenge to the contravention entails the legal suspension of the obligation to pay the fine until the process is settled. Instead, complementary sanctions (in general, which are more dangerous for the agent than payment of the fine) are not automatically suspended during the appeal, but only by a separate application before the courts, which implies the fulfillment of restrictive conditions, which makes the suspension of complementary sanctions can only be achieved in practice very rarely.
The National Authority for Consumer Protection (ANPC) investigates at the complaint or ex officio the commercial practices of economic agents and may sanction those that are considered incorrect, according to Law no. 363/2007 on combating the misconduct of traders in relation to consumers and harmonizing the regulations with the European legislation on consumer protection.
What are Bad Business Practices?
Law no. 363/2007 provides that a practice of a trader is incorrect if (i) is contrary to the requirements of professional diligence, and (ii) distorts or is likely to distort the economic behavior of the average consumer key to reaching or bound by times of the average member of a group, when a business practice is addressed to a particular group of consumers. The same law includes in Appendix 1 an exemplary list of practices that are always considered incorrect, so ANPC may sanction other facts that meet the conditions listed above.
What sanctions can ANPC apply?
ANPC may apply two types of sanctions that can be challenged following distinct procedural routes:
a) Fines ranging from 2,000 to 100,000 lei depending on the type and severity of the sanctioned practice
The application of the fines is done through the report of the contravention by which ANPC finds the use of incorrect commercial practices. By the same Minutes, the determining agent may propose the application of complementary sanctions.
b) Complementary sanctions such as termination of incorrect practice or even suspension of activity
Following the proposal contained in the Minutes, ANPC apply sanctions complement consisting of (i) order the trader to cease the practice of unfair, (ii) prohibition of the assumption that it was to be initiated (art. 12 of Law no. 363 / 2007) or even (iii) the suspension of the trader's business until the end of the unfair commercial practice (Article 15 (4) and (5) of Law 363/2007).
These shall be applied within 5 days from the date of the proposal included in the minutes by an order issued by the ANPC leader or decision issued by the heads of the units subordinated to ANPC.
Different routes of attack of sanctions for unfair commercial practices
Economic agents who have been subject to both a fine (through the minutes) and a supplementary sanction (by order or decision) will have to initiate parallel disputes for each of the two sanctions:
a) Minutes ANPC of the offense and imposing a fine can be appealed in contravention directly to the competent court (court of the place of commission of offense), within 15 days from the date of dispatch and its communication to the offender (according to the provisions of the Emergency Ordinance No. 2/2001 on the legal regime of contraventions).
b) Order and decision NAPC to apply a complementary sanctions are legal regime of administrative litigation, which means that businesses sanctioned are required to go through the preliminary procedure requiring public authority revoking the contested measure, and only then can address the competent administrative courts (according to the provisions of the Administrative Contentious Law No. 554/2004).
The preliminary complaint must be filed within 30 days from the date of communication of the administrative act and the proceedings before the court may be initiated within 6 months from the date of receipt of the answer to the preliminary complaint, the unjustified refusal to resolve the complaint or at the expiration of the legal settlement date, as the case may be.
Suspension of the effects of sanctions issued by ANPC
The complaint against the minutes shall suspend its execution, which means that until the final settlement of the action in court, the economic agent is not obliged to pay the fine imposed by the minutes.
Instead, the formulation of the prior complaint and of the action before the administrative litigation courts does not automatically suspend the execution of the complementary sanctions, which means that the procedure for the suspension of the administrative act regulated by Law no. 554/2004.
Law no. 554/2004 imposes, in order to suspend the effects of administrative acts, the fulfillment of two cumulative conditions: (i) the existence of a well-founded case (ie an appearance of illegality of the administrative act); and (ii) the imminent damage (an injury caused to the trader by the act administrative).
It is clear from the practice of courts that, for the suspension of complementary sanctions applied by ANPC, judges only consider the appearance of illegality of the application of the complementary sanction, without giving any relevance to the alleged illegality of the report of the finding of the offense. More specifically, the courts rejected applications for the suspension of the additional sanctions based on the non-existence of the offense, as it was found in the minutes and not in the decision or order for the application of the sanction for completion whose suspension is requested. Consequently, the suspension of complementary sanctions was only ordered in the case of violation of formal requirements (such as the power to issue such acts or to comply with procedural deadlines).
Paradoxically, sanctioned companies can easily suspend payment of the fine imposed by ANPC (which would often involve insignificant financial burdens), but have difficulties in suspending complementary measures to stop a practice or to suspend the activity (measures that can cause much greater damage than fines).