Legal & Tax Updates

IT, Media and Telecommunications Newsletter No. 5/2010

Law 161/2010 amending Art. 84 of Law 296/2004 on the Consumer Code and Law 193/2000 on the abusive clauses of the contracts concluded between traders and consumers (“Law 161/2010”) was published in the Official Gazette no. 497 dated July 19, 2010.

Law 161/2010 establishes an additional protection for the consumers – natural persons – against certain abuses that they may undergo from the traders, thus expressly regulating that:
(i) the consumers’ rights to cancel or terminate the contract may not be annulled or limited by any contractual clause or understanding between the parties, otherwise, these will be deemed as null by the operation of the law, under the law; however, without prejudice to the obligation regarding the fair indemnification in the case of unilateral termination;
(ii) by abusive clause it is understood – the contractual clause, which limits or annuls the consumer’s right to cancel or unilaterally terminate the contract, if the trader:

-unilaterally amended the clauses:

• which entitle the trader to unilaterally amend, without the consumer’s consent,
• regarding the characteristics of the products and services to be provided or the delivery term of a product or the performance term of a service;
• filed to perform its contractual obligations;
• imposed upon the consumer, by contract, clauses regarding the payment of a fixed amount in case of unilateral termination

The Decision of the president of the National Authority for Management and Regulation in Communications of Romania (“ANCOM”) no. 480/2010 establishing the procedure for the resolution of disputes falling under the competence of ANCOM (“Decision 480/2010”) was published in the Official Gazette no. 497 as of July 19, 2010. This decision abrogated the Decision of the president of the National Authority for Management and Regulation in Communications of Romania no. 1331/2003 establishing the procedure for the resolution of disputes. Decision 480/2010:

• established certain terms for certain procedural acts (e.g.: the 30 day term for ordering provisional measures; the motions for postponement must be submitted to the Commission, in writing, including by fax, minimum 2 days prior to the date set; the extinction is declared after 2 months as of the suspension);
• certain procedural terms were reduced (e.g.: the term within which the Commission must notify the date when it summons the parties to appear before it was reduced from 7 to 5 days; the term, within which any party may submit a letter to the Commission for the purpose of analyzing the resolution proposed, was reduced from 15 to 10 days)
• expressly regulated certain procedural measures provided by the Civil Procedure Code (such as the postponement, suspension or extinction of the dispute) and
• clarified the regime of confidential information, as well as the regime of the service of procedural documents

The Strategy for restructuring and modernizing National Company “Poşta Română” – S.A. (“CNPR”) was published in the Official Gazette no. 491 as of July 16, 2010.CNPR is a company, in which the state owns a majority stake, operating in the field of postal communications, being designated the national provider of universal service in the field of postal services and the body responsible for performing the obligations arising from the capacity of Romania as founding member of the Universal Postal Union.
The measures for the restructuring of CNPR concern the improvement of the regional structure, the strategic restructuring, as well as the development of five support and profit centers. Among the next steps to be taken within the CNPR restructuring, we mention:

-Contracting a consultancy company for auditing the current system and implementing an integrated IT system;
-Preparing the tender book and organizing a tender for the purpose of selecting the provider of the ERP solution, which will be also in charge with the integration;
-Preparing a program of measures ensuring the unitary coordination of the IT system within CNPR.

The Decision of the president of ANCOM no. 458/2010 – amending and supplementing certain regulations in the field of numbering resources, was published in the Official Gazette no. 459 as of July 6, 2010, amending:

• the Decision of the president of the National Authority for Regulation in Communications and Information Technology (“ANRCTI”) no.2895/2007 on the National Numbering Plan, adding the national short numbers of the type 19 vxy to the numbers used for providing certain services of public interest at national level (e.g: citizen’s safety, medical assistance, public utility failures, assistance for the electronic communication services users, information services, etc.). Thus, the national short numbers for the services of public interest at national level can have 4 or 5 digits, of the type 19vx or 19vxy; and

• the Decision of the president of ANRCTI no.2896/2007 on the procedure for requesting and issuing the license for using the numbering resources („LUNR”) – regulating, among others, the right of ANCOM to suspend or withdraw, in full or in part, LUNR, in the case in which the number units/indicatives for selecting the carrier are not used for a period longer than 9 months, except for well-founded cases, when the use of such numbers was not possible

Government Decision 540/2010 (“GD 540/2010”) amending and supplementing Government Decision 12 / 2009 on the organization and functioning of the Ministry of Communications and Information Society („MCSI”) was published in the Official Gazette no. 413/June 21, 2010. By GD 540/2010, MCSI was authorized to conduct any activity within its scope of competence and in its secondary office located in 22 Italiana St., Sector 2, Bucharest. In addition, MCSI was assigned new duties in fields like:
-Assignment and allotment of radio frequencies,
– Conclusion of international specific treaties/agreements/conventions as well as with respect to the implementation of the programs and projects regarding the national infrastructure in the field of information technology and electronic communications, except for the ones in the field of defense, public order, national security, justice or related fields;
-Regulation of the operation of the “domains” registry;
-Lease, under the law, of immovable assets owned by the state and managed by MCSI, etc.
With respect to the organizational structure of MCSI, apart from the relevant Ministry, there will also be 2 state secretaries – a general secretary and a deputy general secretary, high public officers, who will ensure and perform the functional connections between the MCSI structures.