Unfair contractual terms and practices in relation between professionals

• Author: George Chiocaru
• Position: Institute for Doctoral Studies, Law Department, Bucharest University of Economic Studies, Romania
• Pages: 53-56

UNFAIR CONTRACTUAL TERMS AND PRACTICES IN RELATION BETWEEN

PROFESSIONALS

PhD. student George CHIOCARU

1

Abstract

The purpose of this study is to analyse the main elements of novelty brought by the tra nsposition of the

Directive 2011/7/EU of the European P arliament and of the Council on combating late payment in commercial

transa ctions in the Romanian nationa l legislation by Law no. 72/2013 on the measures for co mbating la te payment of a

certain amounts of money r esulting from the a greements conclu ded between the professionals and between

professionals a nd contracting authorities. The cur rent ana lysis is ba sed on the interpr etation of the lega l previsions of

the above mentioned acts a s well as on the r elated secondary legisla tion. It is importa nt to underline tha t at the moment

of this study there is few cour t practice on this subject matter a t the na tional level as well as of the European

community level. Further more, consider ing the relatively new pr esence of the Law no. 72/2013 in the nationa l

legislation, albeit this law is adop ting certain elements from the existent legislation, there is a la ck of substa ntial

doctrine in this respect. Sta rting form th e considerations expressed a bove, we intend by this article to underline the

main measures to be take into considera tion by the professionals in the commercia l relations esta blished between them

as well as in the commercial r elations established with contracting authorities.

Keywords: professionals, unfair terms, contractual r elations, contracting a uthority

JEL Classification: K12, K22, K33

I. General domain

Four years after the moment when the Law no. 469/2002 on contractual discipline between

merchants have been repealed, a new la reinstate for the professionals, as parties to a contractual

relations, specific obligations in performing the contract and regulates particular mechanisms for

securing the payment of the price for the services provided and delivered goods.

Adopted in order to implement in the Romanian legislation the provisions of the Directive

2011/7/EU, Law no. 72/2013 on the measures for combating late payment of a certain amounts of

money resulting from the agreements concluded between the professionals and between

professionals and contracting authorities, creates a certain discipline for the contractual partners and

limits for their freedom in establishing the applicable conventional framework.

According with art. 1 paragraph (1) of the Law no. 72/2013, its general domain of

applicability regards only the contracts concluded between the professionals or between them and

contracting authorities. This law is not including the contracts concluded with consumers, this

category being protected under a different set of legal provisions.

In accordance with the provisions of Law no. 72/2013 professionals are defined as a natural

person or an entity operating an undertaking for profit. Furthermore the contracting authority is

defined by the law as:

(a) any public authority of the Romanian state acting at the central level, regional or local, or,

(b) any public entity, other than those provided under a) above, having legal capacity and which

was established for meeting general interest needs, non-profit, and which is in one of the

following situations:

(i) is financed, mainly by contracting authority, as is this defined under a) above, or by

another public law entity;

(ii) is under or is under control of a contracting authority, as is this defined under a)

above, or by another public law entity;

1 George Chiocaru - Institute for Doctoral Studies, Law Department, Bucharest University of Economic Studies, Romania,

george.chicoaru@gmail.com