Doctrină

Consumer Rights Directive, Chapter 5, Article 25 Consumer Rights Directive, Chapter 5, Article 25

The authors analyse, among others, the overriding mandatory provisions contained in Government Emergency Ordinance no. 34/2014 on consumer rights resulting from contracts concluded with traders (which transposes the provisions of Directive 2011/83/EEC) ("GEO 34/2014"), as follows:
• GEO 34/2014 provides that in case the applicable law to the contract is that of a member state, the consumers may not waive the rights granted by the ordinance. Therefore, the contract concluded between the trader and the consumer will still be governed by the law chosen by the parties, but for the aspects where Romanian law is more favourable to the consumer, the ordinance shall apply.
• GEO 34/2014 regulates overriding mandatory provisions only when the law applicable to the contract is a law of a member state. Otherwise, the Rome I Regulation shall apply and, as a result, art. 6 of the Regulation will decide if the law chosen by the parties to guide their contractual relationship is effective .
• Art. 6 of the Rome I Regulation does not preclude the adoption of overriding mandatory provisions to encourage consumers. In order to support that view, art. 9 paragraph. (2) Rome I provides: "This Regulation does not restrict the application of overriding mandatory provisions of the law of the forum." As such, the provision of art. 25 of GEO 34/2014 (which transposes the provisions of art. 24 of Directive 2011/83/EEC) does not exclude the possibility to extend the scope of overriding mandatory provisions to those situations where the law of the contract is that of a non-member state as long as the national judge consider certain provisions of the national law transposing the Directive. 2011/83/EEC as crucial to safeguarding national interests.
• The field of consumer contracts is a realm that illustrates that the notion of public interest must be interpreted in a broad sense in order to encompass certain values of private order. There is strong evidence for justifying such an option originating from the European legislator. Abusing the weaker party in the contract may be seen as a threat to society and, consequently, it is the general interest that justifies the existence of the overriding mandatory provisions in the field of consumer rights. Such an interpretation is supported by the EU Charter of Fundamental Rights, which mentions consumer protection among the core values that the citizens of the European Union have.