LAW
No. 365 of June 7th, 2002
on the electronic commerce [1]CHAPTER I
General Provisions
Art. 1: Definitions
For the purposes of this Law, the following definitions shall apply:
1. information society service – any activity consisting in the supply of services or presupposing the establishment, modification, transfer or extinction of a real right over a material or non-material good, activity which is carried out by electronic means and has the following characteristics:
a) it is carried out in consideration of a patrimonial advantage, usually procured to the offeror by the recipient;
b) it is not necessary for the offeror and the recipient to be physically present simultaneously in the same place;
c) it is carried out by the transmission of information upon the individual request of the recipient;
2. electronic means – electronic equipment and cable, optical fiber, radio, or satellite networks, and others similar, used for the processing, storage, or transmission of information;
3. service provider – any natural or legal person who makes available an information society service to a determined or undetermined number of persons;
4. service provider established in a state – a service provider having a stable place of business in a state and who effectively pursues an economic activity using that place of business, for an undetermined period; the establishment of a service provider in a state is not necessarily determined by the place where the technical and technological means required to provide the service are located;
5. domain – a zone in an information technology system, owned as such by a natural or legal person or by a group of natural or legal persons, for the purpose of processing, storage, or transfer of data;
6. recipient of the service or recipient – any natural or legal person who, for commercial or professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible;
7. consumer – any natural person who is acting for other purposes than those of his or her commercial or professional activity;
8. commercial communication – any form of communication intended to promote, directly or indirectly, the goods, services, image, name or logo of a person pursuing a commercial activity or exercising a regulated profession; the following do not in themselves constitute commercial communications: information allowing direct access to the activity of a natural or legal person, in particular a domain name or an electronic-mail address, communications relating to the goods, services, image, name or brands of a natural or legal person, made by a third party which is independent of that person, particularly when these are free of charge;
9. coordinated legislation – provisions in force contained in the national laws, applicable to the activities that are object of information society services or to the information society service providers in what concerns:
a) the conditions with which the service providers have to comply in respect of the taking up of the information society service activity, such as those concerning qualifications, authorisations or notifications;
b) the conditions with which the service providers have to comply in respect of the pursuit of these activities, such as those concerning their behaviour, the quality or content of the services offered, including those applicable to advertising and conclusion of contracts, or those concerning the liability of the providers;
10. electronic payment instrument – an instrument allowing its holder to make the following types of operations:
a) funds transfers, other than those ordered and executed by financial institutions;
b) cash withdrawals, as well as the charging and discharging of an electronic money instrument;
11. remote access payment instrument – an electronic payment instrument allowing its holder to access his funds in an account at a financial institution and to authorise a payment by using a personal identification code or another similar means of identification;
12. electronic money instrument – a rechargeable electronic payment instrument, other than the remote access payment instrument, on which the value units are stored electronically and which allows its holder to make the types of operations referred to in point 10;
13. holder – the person that holds an electronic payment instrument on the basis of a contract concluded with an issuer, under the conditions set out by the legal provisions in force;
14. identification data – any information that may allow or facilitate the making of the types of operations referred to in point 10, such as an identification code, the name, domicile or headquarters, phone number, fax number, electronic-mail address, registration number or other similar identification means, fiscal registration code, personal numeric code and others similar.
Art. 2: Objective and Scope
(1) This Law seeks to establish the conditions for the provision of the information society services, as well as to label as criminal offences certain deeds committed in relation to the security of domains used in the electronic commerce, to the issuance and use of the electronic payment instruments and to the use of identification data for the purpose of undertaking financial operations, in order to ensure a favourable framework for the free movement and development in safe conditions of these services.
(2) The activities which do not present the elements of the definition provided for in Art. 1 point 1, and in particular the activities listed below, shall not constitute information society services:
a) the offer of services requiring the physical presence of the provider and of the recipient, even if supplying these services involves the use of electronic equipment;
b) the offer of services presupposing the manipulation by the recipient of material goods, even if supplying these services involves the use of electronic equipment;
c) the offer of goods or services which is not presented to the recipient by the transmission of the information at his individual request and which is intended for the simultaneous reception by an unlimited number of persons (point – multipoint);
d) the activities carried out by voice telephony, telefax or telex services, as well as the radio and TV broadcasting services, including teletext services;
e) voice telephony, telefax or telex services;
f) the exchange of information by electronic-mail or by other similar means of individual communication, between persons acting for purposes outside their commercial or professional activity;
g) the contractual relationship between an employee and his employer.
(3) This Law shall not apply to the following activities:
a) the activity of the public notaries, to the extent that this presupposes a direct and specific connection with the exercise of public authority prerogatives;
b) the activities of legal representation before the courts and criminal investigation bodies;
c) the gambling activities with monetary earnings, including lotteries and betting transactions.
(4) The provisions of this Law shall be completed with:
a) the legal provisions in the field of taxation;
b) the legal provisions regulating the protection of individuals with regard to the processing of personal data and the free movement of these data, as well as those regulating the processing of personal data and the protection of privacy in the field of telecommunications;
c) the legal provisions in the field of competition.
(5) This Law shall be completed, to the extent that it does not contain derogatory provisions, with the legal provisions concerning the conclusion, validity and effects of the legal instruments, with the other legal provisions in the field of consumer and public health protection, as well as with the legal provisions of international private law.
Art. 3: Application of the Romanian Law in Case of Information Society Services
(1) This Law shall apply to the service providers established in Romania and to the services they offer.
(2) From the date of entry into force of this Law, the information society services shall be subject:
a) in cases where they are offered by service providers established in Romania, only to the provisions in force of the Romanian laws that are part of the coordinated legislation;
b) in cases where they are offered by service providers established in a Member State of the European Union, only to the provisions in force of the laws of that state that are part of the coordinated legislation.
(3) The free movement of the information society services offered by a provider established in a Member State of the European Union cannot be restricted in Romania by way of application of legal provisions which are part of the coordinated legislation.
(4) The paragraphs (2) and (3) shall not apply in the following fields:
a) the intellectual property right and the industrial property right;
b) the issuance of electronic money, under the conditions provided in the methodological norms for the application of this Law;
c) the advertising for the organisations for collective investment in securities;
d) insurance activities, under the conditions provided in the methodological norms for the application of this law;
e) the freedom of the parties to choose the law applicable to their contract, when they have such a right;
f) obligations resulted from the contracts concluded with consumers;
g) the formal conditions for the validity of the legal instruments establishing, modifying, extinguishing or transferring rights over immovable goods situated on the Romanian territory;
h) the requirements applicable to goods as such and to their delivery;
i) the requirements applicable to the services which are not provided by electronic means.
(5) The public authorities may take measures which derogate from the provisions of paragraph (3) only under the following conditions:
a) the measure is necessary for reasons of public order, criminal investigation, protection of minors, fight against any form of incitement to hatred on grounds of race, sex, religion or nationality, violations of human dignity, protection of public health, national defence and national security, protection of consumers including investors;
b) the measure is taken against a given information society service which prejudices one of the values mentioned in letter a) or which presents a serious and grave risk of prejudice to those values;
c) the measure is proportionate to the objective undertaken;
d) the collaboration, consultation, or information procedures provided in the methodological norms for the application of this Law are observed.
CHAPTER II
The Provision of the Information Society Services
Art. 4: Principles Governing the Provision of Information Society Services
(1) The provision of information society services by natural or legal persons is not subject to any prior authorisation and shall be pursued in accordance with the principles of free and fair competition, in compliance with the legal provisions in force.
(2) The provisions of paragraph (1) are without prejudice to the legal provisions imposing the prior authorisation for the pursuit of certain activities by natural or legal persons, if these provisions are not specifically and exclusively targeted at the information society services or at the service providers, within the meaning of this Law.
(3) The provision of information society services by service providers established in the Member States of the European Union shall be carried out under the conditions provided for in the European Agreement establishing an association between Romania, on the one hand, the European Communities and their Member States, on the other hand.
(4) The provision of information society services by service providers established in other states shall be made under the conditions provided for in the bilateral agreements concluded with those states, to which Romania is a party.
Art. 5: General Information
(1) The service provider must make available for the recipients and for the public authorities means allowing the easy, direct, permanent and free of charge access to the following information:
a) the name of the service provider;
b) the provider’s domicile or headquarters;
c) the phone and fax numbers, the electronic-mail address and any other data necessary for the provider to be contacted directly and effectively;
d) the registration number or other equivalent identification means, where the provider is registered with the Register of Commerce or with another similar public register;
e) the fiscal registration code;
f) the particulars of the competent authority, where the provider’s activity is subject to an authorisation regime;
g) the professional title and the state where it has been granted, the professional body or any other similar body with which the service provider is registered, the indication of the professional regulations applying in the state where the provider is established, as well as the means of access to these, where the provider is member of a liberal profession;
h) the tariffs for the services offered, which have to be indicated in accordance with the legal provisions on the sale of market products and services, stating whether they are exempt, inclusive or not inclusive of VAT, as well as the amount of VAT;
i) whether the price is inclusive of delivery expenses or not, as well as their amount, if such is the case;
j) any other information the service provider has to make available to recipients according to the legal provisions in force.
(2) The obligation provided in paragraph (1) is deemed accomplished in cases where the service provider publishes this information on the web page by means of which that service is being offered, under the conditions mentioned in paragraph (1).
Art. 6: Commercial Communications
(1) The undertaking of commercial communications by electronic-mail is forbidden, except in cases where the recipient has previously expressed his consent to receive such communications.
(2) Commercial communications which are part of, or constitute an information society service, to the extent they are allowed, must observe at least the following conditions:
a) to be clearly identifiable as such;
b) the natural or legal person on whose behalf the commercial communications are made shall be clearly identifiable;
c) promotional offers, such as discounts, premium and gifts, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and clearly presented;
d) promotional competitions and games shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and clearly presented;
e) any other conditions imposed by the legal provisions in force.
(3) Commercial communications which are part of, or constitute an information society service, when this service is provided by a member of a liberal profession, are allowed subject to compliance with the legal provisions and professional rules regarding in particular the independence, dignity and honour of the profession, the professional secrecy and fairness towards clients and other members of the profession.
(4) The information society service providers undertaking commercial communications have the obligation to observe the provisions of paragraphs (1) to (3).
CHAPTER III
Contracts Concluded by Electronic Means
Art. 7: Validity, Legal Effects and Proof of Contracts Concluded by Electronic Means
(1) The contracts concluded by electronic means shall produce all the effects that the law recognises to contracts, when the legal requirements for their validity are met.
(2) The prior consent of the parties on the use of electronic means is not necessary for the validity of contracts concluded by electronic means.
(3) The proof for conclusion of contracts by electronic means and for the obligations resulting from such contracts is subject to the provisions of the ordinary law in the field of proof, as well as to the provisions of Law no. 455/2001 on the electronic signature.
Art. 8: Information to be Provided to Recipients
(1) The service provider must make available to the recipient, before the recipient sends the offer to enter into the contract or the acceptance of the firm offer to enter into the contract that was made by the service provider, at least the following information, which must be expressed clearly, unambiguously and in accessible language:
a) the technical steps to follow in order to conclude the contract;
b) whether or not the concluded contract will be filed by the service provider and whether it will be accessible;
c) the technical means the service provider makes available to the recipient for the purpose of identifying and correcting the data input errors;
d) the language available for the conclusion of the contract;
e) the relevant codes of conduct to which the service provider subscribes, as well as information on how these codes can be consulted by electronic means;
f) any other conditions imposed by the legal provisions in force.
(2) The service provider must make available to the recipient the possibility to use an appropriate, effective and accessible technical means allowing him to identify and correct the data input errors, prior to sending the offer or the acceptance thereof.
(3) The service provider may derogate from the provisions of paragraphs (1) and (2) only where it has come to a different agreement with the recipient, provided that neither of the parties has the quality of consumer.
(4) Contract terms and general conditions of the proposed contract must be made available to the recipient in a way that allows him to store and reproduce them.
(5) Paragraphs (1) to (3) shall not apply to contracts concluded exclusively by exchange of electronic-mail or by other equivalent means of individual communication.
Art. 9: Conclusion of Contract by Electronic Means
(1) Except when otherwise agreed by the parties, the contract shall be deemed concluded at the moment when the acceptance of the offer to enter into the contract has reached the knowledge of the offeror.
(2) The contract which, by its nature or at the request of the beneficiary, requires an immediate performance of the specific prestation, is deemed concluded at the moment when the debtor of the said prestation has started the performance thereof, except for the cases where the offeror has requested that the acceptance of the offer is communicated to him in advance. In the latter case, the provisions of paragraph (1) shall apply.
(3) In cases where the offer to enter into the contract or the acceptance of the firm offer to enter into the contract made by the service provider is sent by the recipient by electronic means, the provider must confirm the receipt of the offer or of the acceptance, as the case may be, in one of the following ways:
a) the sending of a proof of receipt by electronic-mail or by a means equivalent to that used for sending the offer or the acceptance of the offer, at the address indicated by the recipient, within 24 hours from the receipt of the offer or of the acceptance;
b) the confirmation of the receipt of the offer or of the acceptance of the offer, by a means equivalent to that used for sending the offer or the acceptance of the offer, as soon as the offer or acceptance was received by the service provider, provided this confirmation can be stored and reproduced by the recipient.
(4) 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 provided for in paragraph (3), are deemed received when the parties to which they are addressed can access them.
(5) The provisions of paragraph (3) shall not apply to contracts concluded exclusively by electronic-mail or by other equivalent means of individual communication.
Art. 10: Conditions Concerning the Storage or Presentation of Information
(1) Where the law requires the information to be presented or stored in its original form, this requirement is deemed accomplished if the following conditions are simultaneously met:
a) the guaranty of the integrity of information is ensured by compliance with the national standards in the field, from the moment when the information was generated;
b) the message is signed with the extended electronic signature of the issuer;
c) the information can be immediately provided and presented upon request.
(2) The recipient who is acting in the exercise of its business acts on its own risk if he knows or should have known, according to the current commercial practices or following the use of the procedures expressly agreed with the issuer, that the information contained in an electronic message was altered during its transmission or processing.
CHAPTER IV
Liability of Service Providers
Art. 11: General Principles
(1) The service providers are subject to the legal provisions concerning the civil, criminal and administrative liability, to the extent that this Law does not provide otherwise.
(2) The service providers are liable for the information provided by themselves or on their behalf.
(3) The service providers are not liable for the information transmitted, stored or to which they facilitate the access, under the conditions provided for in Arts. 12 to 15.
Art. 12: Mere Conduit
(1) Where an information society service consists in the transmission in a communications network of the information provided by a recipient of that service, or in the provision of access to a communications network, the provider of that service shall not be liable for the information transmitted if the following conditions are cumulatively met:
a) the service provider did not initiate the transmission;
b) the service provider did not select the receiver of the transmission;
c) the content of the information transmitted has not been influenced by the service provider in any way whatsoever, meaning that he cannot be attributed neither the selection nor the possible modification of this information.
(2) The transmission of information and the provision of access, referred to in paragraph (1), shall also include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place exclusively for the sole purpose of carrying out the transmission in the communications network, and provided that the information is not stored for any period which is un reasonably longer than what is necessary for its transmission.
Art. 13: Temporary storage of information, “caching”-type storage
Where an information society service consists in the transmission in a communications network of information provided by a recipient of that service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information, to the extent that this operation is performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service, upon their request, if the following conditions are cumulatively met:
a) the service provider does not modify the information transmitted;
b) the service provider complies with the legal conditions on access to that information;
c) the provider complies with the rules or usages on the updating of information, in the manner they are widely recognised and applied by industry;
d) the service provider does not interfere with the lawful use by any person of the technologies widely recognised and applied by industry with a view to obtain data on the nature and use of the information;
e) the service provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information initially transmitted has been removed from the communications network, or the access thereto has been disabled, or that such removal or disablement was made following decision of a public authority.
Art. 14: Permanent storage of information, “hosting”-type storage
(1) Where an information society service consists in the storage of information provided by a recipient of that service, the service provider shall not liable for the information stored at the request of a recipient, if any of the following conditions is met:
a) the service provider does not have knowledge of the fact that the activity or information stored is illegal and, as regards claims for damages, is not aware of facts or circumstances from which the fact that the said activity or information may prejudice the rights of a third party is apparent;
b) the provider, upon obtaining knowledge of the fact that the activity or information is illegal, or becomes aware of facts or circumstances from which the fact that the said activity or information may prejudice the rights of a third party is apparent, acts expeditiously to remove or to disable access thereto.
(2) The service provider has knowledge of the fact that the activity or information is illegal when the illegal character thereof was ascertained by a decision of a public authority.
(3) The provisions of paragraph (1) shall not apply when the recipient is acting under the authority or the control of the provider.
Art. 15: Search Engines and Links to Other Web Pages
(1) The provider of an information society service that facilitates the access to the information provided by other service providers or by the recipients of services offered by other providers, by making available to the recipients of his services search engines or links to other web pages, is not liable for that information, if any of the following conditions is met:
a) the provider does not have knowledge of the fact that the activity or information to which he facilitates the access is illegal and, as regards claims for damages, is not aware of facts or circumstances from which the fact that the said activity or information may prejudice the rights of a third party is apparent;
b) the provider, upon obtaining knowledge of the fact that the activity or information is illegal, acts expeditiously to remove or to disable access thereto.
(2) The service provider shall be liable for the information when the illegal character thereof was ascertained by a decision of a public authority.
(3) The provisions of paragraphs (1) and (2) shall not apply when the recipient is acting under the authority or the control of the provider.
CHAPTER V
Surveillance and Control
Art. 16: Duties of service providers
(1) The service providers must expeditiously inform the competent public authorities on the activities with illegal appearance pursued or on the information with illegal appearance provided by the recipients of their services.
(2) The service providers must expeditiously communicate to the authorities referred to in paragraph (1), upon their request, information allowing the identification of the recipients of their services, with whom these providers have concluded contracts for the permanent storage of information.
(3) The service providers must interrupt, temporarily or permanently, the transmission in a communications network or storage of the information provided by a recipient of the service, in particular by removing the information or disabling the access to it, the provision of access to a communications network or the provision of any other information society service, if these measures were ordered by a public authority, ex officio or upon receipt of a claim or intimation from any person.
(4) The claim referred to in paragraph (3) may be made by any person that considers him/herself prejudiced by the content of the information concerned. The claim or intimation shall be made in written form, stating the grounds thereof, and shall be dated and signed. The claim cannot be introduced if a court action with the same object and between the same parties has previously been introduced.
(5) The decision of the authority must state its reasons and it shall be communicated to the interested parties within 30 days from the date of the receipt of the claim or intimation, or, if the authority acted ex officio, within 15 days from the date it was issued.
(6) Against a decision issued in accordance with the provisions of paragraph (3), the interested person may lodge a contestation within 15 days from the date of the communication of the decision, with the competent administrative court, under the sanction of loosing the right to contest. The contestation shall be judged as a matter of emergency, with summoning the parties. The decision of the court shall be definitive.
Art. 17: Competent Authorities
(1) The regulatory authority in the field of communications and information technology, hereinafter referred to as the Authority, shall be competent to supervise and control the compliance by the service providers with the provisions of this Law and of the methodological norms for the application of this Law, to ascertain the contraventions and to apply the sanctions set out in Art. 22.
(2) Without prejudice to the provisions of paragraph (1), public authorities for the purposes of Art. 3 paragraph (5), Art. 5, Art. 13, Art. 14 paragraph (2), Art. 15 paragraph (2), Art. 16 paragraphs (1) and (3), Art. 23 paragraph (2) and Art. 30 paragraph (1) shall mean those authorities of the public administration, or, where such is the case, courts of law, whose competence over the matter is established by the legal provisions in force, applicable in every case.
(3) The Authority may require the service providers any information necessary for the performance of its tasks, stating the legal basis and the purpose therefor, and may set out deadlines until when this information has to be provided, under the sanction provided for in this Law.
(4) With a view to find out and investigate the breaches of the provisions of this Law and of the methodological norms for the application thereof, the regulatory authority shall act through the control personnel empowered for this purpose.
(5) In exercising its investigation tasks, the control personnel empowered for this purpose of the Authority or of the legal person referred to in paragraph (12) may request the necessary information from the service providers, specifying the legal grounds and the purpose of the request, and may set out deadlines until when this information has to be provided, under the sanction provided for in this Law.
(6) The Authority shall order the carrying out of investigations, under the conditions set out in this Law, ex officio or upon receipt of a claim or intimation from any person.
(7) The control personnel empowered for this purpose of the Authority or of the legal person referred to in paragraph (12) may request statements or any documents necessary to carry out their mission, may seal or take any registers, financial-accounting and commercial documents, or other records, leaving to the person subject to investigation copies of the originals, or may take copies, leaving the originals; it may also carry out unexpected inspections, the result of which shall be recorded in a procès-verbal[2], and may also receive information and justifications upon summoning or on site.
(8) The central and local public administration, as well as any other public institutions and authorities are compelled to allow the control personnel empowered for this purpose of the Authority or of the legal person referred to in paragraph (12) access to documents, data, and information they hold, to the extent these are necessary for the fulfilment of the legal mission of the Authority, without having the possibility to deny such access on the grounds of the character of state secret or professional secret of such documents, data, and information.
(9) The control personnel empowered for this purpose, being granted access to the documents, data, and information referred to in paragraph (8), is held to observe the character of state secret or professional secret of such documents, data, and information.
(10) The Authority shall refer the matter to the criminal investigation bodies whenever it ascertains violations of the criminal law.
(11) The Authority shall inform the service providers, recipients, Member States of the European Union and the European Commission with regard to all the aspects concerning the enforcement of the provisions of this Law and cooperates with the competent authorities from abroad, with a view to effectively exercise the surveillance and control over the activity of the service providers.
(12) The Authority may delegate the exercise of the attributions mentioned in this Article to another legal person of public law having surveillance and control attributions in the field of telecommunications.
(13) For the purposes of this Law, until the establishment of the Authority, the attributions thereof shall be fulfilled by the Ministry of Communications and Information Technology.
Art. 18: Codes of Conduct
(1) The associations and non-governmental organisations with professional or commercial character, or those constituted for the purpose of consumer protection, or protection of minors or of disabled people, may draw up codes of conduct in collaboration with the Authority and the Ministry of Justice, in order to duly apply the provisions of this Law.
(2) The Authority and the Ministry of Justice shall seek to include in the codes of conduct referred to in paragraph (1) provisions referring in particular to:
a) the out-of-court dispute settlement;
b) the temporary or permanent interruption of the transmission in a communications network or of the storage of the information provided by a recipient of the service, in particular by removing the information or disabling the access to it, or of the provision of access to a communications network, or of the provision of any other information society service;
c) the protection of recipients with regard to commercial communications;
d) the protection of minors and of the human dignity.
(3) The Authority and the Ministry of Justice shall support:
a) the translation of the codes of conduct into languages of international circulation;
b) the facilitation of access to the codes of conduct by electronic means;
c) the popularisation of the codes of conduct at the national level and the transmission thereof, as well as the transmission of the assessment reports on their application and practical impact, to the Member States of the European Union and to the European Commission.
CHAPTER VI
Dispute Settlement
Art. 19: Court Actions
(1) The persons having active quality before the courts according to the provisions of paragraph (2) may request to the court to order the defendant to cease any action or abstention which is contrary to the provisions of this Law, not to re-launch it in the future and to pay damages for the prejudice incurred.
(2) The persons listed below have active quality before the courts:
a) the natural and legal persons pretending to be holders of one of the rights provided for in this Law or of an interest that cannot be realised otherwise than in justice;
b) the associations and non-governmental organisations referred to in Art. 18 paragraph (1);
c) the National Authority for Consumer Protection, the county offices for consumer protection and the Office for Consumer Protection of Bucharest;
d) the entities constituted for the purpose of consumer protection in the Member States of the European Union, under the conditions laid down in the methodological norms for the application of this Law.
(3) The action provided for in paragraph (1) shall prescribe within 1 year from the date of the action or abstention that justified its introduction.
(4) The persons having active quality before the courts according to the provisions of paragraph (2) may require to the court to order the defendant, by way of Presidential Ordinance, to cease any action or abstention which is contrary to the provisions of this Law, under the conditions laid down in the Civil Procedure Code.
Art. 20: Out-of-Court Dispute Settlement
(1) The service providers and recipients may submit the disputes arising between them to the arbitral court, under the conditions set out by the legal provisions in force, as well as to the other out-of-court dispute settlement schemes provided for in the codes of conduct drawn up in accordance with the provisions of Art. 18.
(2) The use of electronic means in the out-of-court dispute settlement schemes is possible under the conditions set out by the legal provisions in force.
CHAPTER VII
Civil and Administrative Sanctions
Art. 21: The Relative Nullity of the Contracts Regarding Information Society Services
Any contract regarding the provision of information society services can be annulled upon request of the recipient if it has been concluded with a service provider who:
a) has not made available to the recipient, under the conditions set out by the legal provisions in force, the information provided for in Art. 5, letters a) – i), or has not made available all this information, or has made available inaccurate information;
b) has not made available to the recipient, under the conditions set out by the legal provisions in force, the information provided for in Art. 8 paragraph (1) letters a) – e), or has not made available all this information, or has made available inaccurate information, when the provisions of Art. 8 paragraph (3) or paragraph (5) do not apply;
c) has infringed the obligation set out in Art. 8 paragraph (2), when the provisions of Art. 8 paragraph (3) or paragraph (5) do not apply;
d) has infringed the obligation set out in Art. 8 paragraph (4).
Art. 22: Contraventions
The following deeds committed by the service providers shall constitute contraventions, when not committed under such conditions as to constitute criminal offences, according to the criminal law, and shall be punished with fine from ROL 10,000,000 to ROL 500,000,000:
a) undertaking of commercial communications by infringing the conditions set out in Art. 6 paragraph (1) and paragraph (2), letters a) – d);
b) not making available to the recipients and to the public authorities the information provided for in Art. 5 letters a) –i), under the conditions set out by the legal provisions in force, or not making available all this information, or making available inaccurate information;
c) not making available to the recipient the information provided for in Art. 8 paragraph (1) letters a) – e), under the conditions set out by the legal provisions in force, or not making available all this information, or making available inaccurate information, when the provisions of Art. 8 paragraph (3) or paragraph (5) do not apply;
d) infringement of the obligation set out in Art. 8 paragraph (2), when the provisions of Art. 8 paragraph (3) or paragraph (5) do not apply;
e) infringement of the obligation set out in Art. 8 paragraph (4);
f) infringement of the obligation set out in Art. 9 paragraph (3);
g) infringement of the obligations set out in Art. 16 paragraphs (1) to (3);
h) not providing the information requested in accordance with Art. 17 paragraph (3) or paragraph (5), or not providing all this information, or providing inaccurate information.
Art. 23: Ascertainment of Contraventions and Application of Sanctions
(1) The empowered representatives of the regulatory authority in the field of communications and information technology or of the supervisory authority referred to in the Law no. 677/2001 for the protection of individuals with regard to the processing of personal data and the free movement of these data shall be competent for ascertaining the contravention set out in Art. 22 letter a) and for applying the corresponding sanction, upon intimation by any person or ex officio.
(2) The empowered representatives of the Authority or of the other competent public authorities shall be competent for ascertaining the contraventions and for applying the sanctions set out in Art. 22 letters b) to h), upon intimation by any person or ex officio.
(3) The ascertainment of the contraventions may be made, in all the situations, also by the Police officers and sub-officers.
(4) The contraventions set out in Art. 22 shall be subject to the Government Ordinance no. 2/2001 on the legal regime of contraventions, with the subsequent amendments.
CHAPTER VIII
Criminal Offences Committed in Relation to the Issuance and Use of the Electronic Payment Instruments and to the Use of Identification Data for the Purpose of Undertaking Financial Operations
Art. 24: Falsification of the Electronic Payment Instruments
(1) Falsification of an electronic payment instrument shall be punished by 3 to 12 years of imprisonment and denial of certain rights.
(2) The same punishment shall apply to putting into circulation, by any means, of falsified electronic payment instruments or to possession for the purpose of putting them into circulation.
(3) Punishment shall be 5 to 15 years of imprisonment and denial of certain rights if the deeds provided for in paragraphs (1) and (2) are committed by a person who, by virtue of his/her job assignments:
a) undertakes technical operations necessary for the issuance of the electronic payment instruments or for making the types of operations provided for in Art. 1 point 10, or
b) has access to the security mechanisms involved in the issuance or use of the electronic payment instruments, or
c) has access to the identification data or to the security mechanisms involved in making the types of operations provided for in Art. 1 point 10.
(4) Attempt to commit these deeds shall be punished.
Art. 25: Possession of Equipment for the Purpose of Falsifying the Electronic Payment Instruments
Fabrication or possession of equipment, including hardware or software, for the purpose of falsifying the electronic payment instruments shall be punished by 6 months to 5 years of imprisonment.
Art. 26: False Statements for the Purpose of Issuance or Use of the Electronic Payment Instruments
False statements given to a banking, credit or financial institution, or to any other legal person authorised, under the conditions set out by the legal provisions in force, to issue electronic payment instruments or to accept the types of operations provided for in Art. 1 point 10, for the purpose of issuance or use of an electronic payment instrument, on own behalf or on somebody else’s behalf, when, according to the law or to the circumstances, the given statement serves to issue or use that instrument, shall be punished by 3 months to 2 years of imprisonment or by fine.
Art. 27: Fraudulent Undertaking of Financial Operations
(1) Undertaking of one of the operations provided for in Art. 1 point 10, by use of an electronic payment instrument, including of the identification data which allow for its use, without the consent of the holder of that instrument, shall be punished by 1 to 12 years of imprisonment.
(2) The same punishment shall apply to undertaking one of the operations provided for in Art. 1 point 10, by the unauthorised use of any identification data or by the use of fictive identification data.
(3) The same punishment shall apply to the unauthorised transmission to another person of any identification data, for the purpose of undertaking one of the operations provided for in Art. 1 point 10.
(4) Punishment shall be 3 to 15 years of imprisonment and denial of certain rights, if the deeds provided for in paragraphs (1) to (3) are committed by a person who, by virtue of his/her job assignments:
a) undertakes technical operations necessary for the issuance of the electronic payment instruments or for making the types of operations provided for in Art. 1 point 10, or
b) has access to the security mechanisms involved in the issuance or use of the electronic payment instruments, or
c) has access to the identification data or to the security mechanisms involved in making the types of operations provided for in Art. 1 point 10.
(5) Attempt to commit these deeds shall be punished.
Art. 28: Acceptance of the Financial Operations Fraudulently Undertaken
(1) Acceptance of one of the operations provided for in Art. 1 point 10, in full awareness that it was undertaken by means of an electronic payment instrument falsified or used without the consent of its holder shall be punished by 1 to 12 years of imprisonment.
(2) The same punishment shall apply to the acceptance of one of the operations provided for in Art. 1 point 10, in full awareness that it was undertaken by the unauthorised use of any identification data or by the use of fictive identification data.
(3) Attempt to commit these deeds shall be punished.
Art. 29: Undertaking of Unauthorised Operations in an Information Technology System
(1) Unauthorised access in an information technology system or in a domain shall be punished by 3 months to 3 years of imprisonment or by fine.
(2) Unauthorised data transfer from an information technology system or from a domain for personal use or for use by third parties shall be punished by 1 to 12 years of imprisonment.
(3) Unauthorised modification or total or partial destruction of the information stored in an information technology system or in a domain shall be punished by 3 to 15 years of imprisonment.
Art. 30: Ascertainment and Judgement of the Criminal Offences
(1) The criminal offences set out in this Law shall be ascertained by the competent public authorities that shall forward the official report to the local policy inquiry body.
(2) The criminal offences set out in Arts. 24 and 25 shall be judged in the first instance by the Tribunal.
(3) The provisions of this Chapter shall be completed with those of the Criminal Code and of the Criminal Procedure Code.
CHAPTER IX
Final Provisions
Art. 31: Burden of Proof in case of Litigations Regarding the Provision of Information Society Services
In case of a litigation regarding the provision of an information society service, arisen between the provider of that service and a recipient of the service, the service provider shall bear the burden of proof in what concerns the compliance with the obligations set out in Arts. 5, 6, 8 and 9, when the recipient is a consumer.
Art. 32: Repeal of Some Contrary Legal Provisions
Letter f) of Art. 6 of the Government Ordinance no. 130/2000 on the legal regime of the distance contracts is hereby repealed.
Art. 33: Entry into Force and Application
(1) Within 3 months from the date of publication of this Law in the Official Journal of Romania, Part I, the Ministry of Communications and Information Technology shall draw the methodological norms for the application thereof, which shall be approved by Government Decision.
(2) This Law shall enter into force on the date of its publication in the Official Journal of Romania, Part I, and shall be applied after 3 months from its entry into force.
*******
This Law has been adopted by the Senate in its meeting of May 9th, 2002, on the grounds of Art. 74 paragraph (1) of the Romanian Constitution.
This Law has been adopted by the Chamber of Deputies in its meeting of May 9th, 2002, on the grounds of Art. 74 paragraph (1) of the Romanian Constitution.
______________________________________________
[1] Published in the Official Journal of Romania, Part I, no. 483 of July 5th, 2002.
[2] Official written report of the proceedings.