Difficulties in Implementing European Contractual Institutions in National Common Law

Difficulties in Implementing European Contractual Institutions in National Common Law Lecturer Camelia SPASICI1 Abstract Romania's accession to the European Union has produced profound legal changes, including in legislative, doctrinal and practical terms. In matters of contract, the provisions of the European directives on the regulation of legal relations between professionals and consumers have created and continue to produce disputes, especially in the field of the harmonisation of the new consumerist institutions to the common national law. At the present stage, the general theory of the contract is subject to pressure exerted by the new rules, full of vitality, of the law of consumption or competition law. The main consumerist institutions subject to the national implementation process are: precontractual obligations, unfair terms and the consumer's right of withdrawal. The study insists on the difficulty of harmonizing the above institutions, in the context of the new legislative changes in the field, especially of the Emergency Ordinance of the Government. no. 58/2022. The work is structured in four sections: "The common law contract and the consumption contract", "Pre-contractual obligations: conditions of validity special to consumption", "Unfair terms: manifestations of pre-contractual will" and "Consumer withdrawal: denunciation of progressive consent". Keywords: contract in civil law, consumer contract, pre-contractual obligations, unfair terms, consumer's right of withdrawal. JEL Classification: K15, K33 1. Introduction. Common law contract and consumer contract According to Article 1166 of the Civil Code, a contract is an agreement of wills between two or more persons with the intention of creating, modifying or terminating a legal relationship. From the above text we understand that, in its unfolded form, the contract involves four main stages: the formation phase, the conclusion of the contract, the performance and the termination of the contract (in which the moment of conclusion of the contract is essential). The contract formation phase includes discussions and negotiations between persons interested in entering into legal relations. At this stage the question arises as to whether the essential conditions of validity laid down in Article 1179 of the Civil Code have been met: capacity, consent, subject matter, cause and form2. The contract is concluded when the offer meets the acceptance. The phase of performance (effects) of the contract comprises the obligations of the parties (contract terms). The contract usually ends when its effects have been produced. As an exception, the contract may also be terminated by unilateral termination by one of the parties (under certain conditions). Note that Article 1166 et seq. of the Civil Code governs the general contractual rules applicable to all contracts. They constitute the common law of contract. After 1990, national legislation transposed the provisions of several European directives, in particular in the field of consumer rights. However, the European consumer regulations include new specific contractual institutions which differ from those enshrined in national contract law. In this context, it should be noted that, according to Article 1177 of the Civil Code, contracts concluded between professionals and consumers (consumer contracts, n.d.) are subject to special rules (established by the relevant legislation, n.d.) and are supplemented by general rules (established by the Civil Code), which are common law in this area. Thus, according to Article 1 of the Law no. 296/2004 on the Consumer Code3 (hereinafter 1 Camelia Spasici - Faculty of Administration and Business, University of Bucharest, Romania, . 2 See Liviu Pop, Tratat de drept civil.Obligatiile, Volume II. Contract, Ed. Universul Juridic, Bucharest, 2009, p. 139. 3 Published in the Official Gazette no. 593/2004 (in force since 1 January 2007). Perspectives of Law and Public Administration Volume 12, Issue 3, October 2023 308 referred to as 'the law'), 'the legal relationships created between economic operators and consumers in relation to the purchase of products and services' are contractual in nature. The consumer contract is concluded between the consumer and the trader in the course of business and concerns a good or service 4. The difficult process by which the specific institutions of consumer law are brought into line with the corresponding (already established) civil law institutions is known as harmonisation 5. Through the process of harmonisation, the general theory of contract is subject to the pressure of the new and vital rules of consumer law or competition law. It is unanimously accepted in French doctrine that the general theory of contract is undergoing a period of reconsideration and reconstruction 6. The main difficulty in adapting the contract to the new conditions is that the legislator of the 21st century has created a legislative framework designed to meet current social and economic interests, without taking care to implement them in the existing legal system. Although the influence of consumer law on ordinary contract law has been confirmed, the fundamental role of consumer protection is nevertheless ensured by ordinary law. The task of harmonising the new rules with the existing legal system falls to doctrine and case law, by developing effective solutions. The main consumer institutions requiring harmonisation with the common law are the socalled 'pre-contractual obligations', 'unfair terms' and 'consumer withdrawal'. 2. "Pre-contractual obligations": special conditions of validity of consumption The contract formation phase is dominated by its final element: the parties' agreement of wills. In the common law, for consent to be valid, the contracting parties must, among other things, be informed of all aspects of the contract. According to Article 1166 et seq. of the Civil Code, the conclusion of a contract presupposes the expression of the free and un vitiated consent of the parties. To this end, each party must be aware of all the circumstances relating to the contract. However, in relations specific to the consumer contract, the specific features of the so-called "pre-contractual obligations" take on new and important values7. In the above context, the State must encourage the use of programmes designed to ensure that consumers are properly informed and educated in order to make the right choice based on adequate information about goods and services and are aware of their rights and responsibilities (Art. 38 of the Consumer Code). The general aim pursued is to protect consumers when purchasing goods and services and to protect the general public interest against misleading advertising, the negative consequences of advertising and establishes the conditions under which comparative advertising is permitted (Art. 39 of the Consumer Code). The so-called "pre-contractual obligations" are: the obligation to inform, (...truncated)