by Irina Văleanu and Diana Drăgan
Through a recent Decision of the Constitutional Court[1], a consistent jurisprudence has been reiterated regarding the powers of the National Consumer Protection Authority (“ANPC”), the Constitutional Court settling the issue: ANPC does not carry out jurisdictional activity, but exclusively administrative activity.
Where did the controversy arise from?
In accordance with the legal provisions[2] concerning consumer protection, ANPC representatives have the competence to apply, concurrently with contraventional sanctions, different complementary measures in their activity, such as remedial measures. Thus, in addition to the contraventional sanction itself, the role of such remedial measures, such as product replacement, price reduction, service rectification, and the reimbursement of the counter value of the product/service, is to remove the negative effects of certain acts which are not imputable to the consumer and which cause them prejudice, such as the non-conformity of a product/service or the existence of an unfair commercial practice.
What were the arguments of the submitter of the exception of unconstitutionality?
Through this legal action, it was argued that the legal provisions allowing ANPC representatives to apply such complementary measures would be unconstitutional, as they establish the possibility of intervening in a private law legal relationship, substituting themselves for a court of law. In other words, the submitter maintains that in no event may the ANPC, under the aegis of consumer protection, become an extraordinary court and administer justice in lieu of the courts of law, thus the invoked legal provisions would contravene the stipulations of Article 126 paragraphs (1) and (5) of the Constitution of Romania, which prohibit the establishment of extraordinary courts.
Nothing could be more accurate – the ANPC cannot be, nor is it currently, a court of law merely because it may apply these complementary measures, as the Court explicitly underlined.
The Constitutional Court’s response regarding similar claims has been consistent over time[3], thereby reiterating several basic principles concerning the ANPC’s powers, intended to protect consumers. It is set forth that the rights of citizens who qualify as consumers and the correlative obligations of economic operators, provided for by Government Ordinance no. 21/1992 on consumer protection consumers have a protective character against abusive practices, being adequate to the specific position of consumers in relation to the economic operators who benefit from the payment of the price for the product sold. Furthermore, it was held that the normal functioning of the market economy is perfectly compatible with consumer protection measures, and the freedom of commerce and the protection of national interests in economic activity are not only compatible with the setting of rules regarding the quality of products or services rendered, but are also imposed by other obligations incumbent upon the state, for instance, the one provided for in Article 135 paragraph (2) letter f) of the Constitution regarding the creation of the necessary conditions for increasing the quality of life.
In this context, the Court has ruled that the manner of regulating the legal framework, including with regard to the sanctioning regime in the event of non-compliance with the obligations provided by law in the field of consumer protection, constitutes the exclusive attribute of the legislator. Therefore, the latter has established that the possibility of applying complementary measures in the event of contraventions devolves upon the ANPC representatives, who, in this manner, are doing nothing other than legitimately exercising the powers conferred by law, having as their ultimate purpose the protection of consumers. In this way, the legislator makes the economic operators involved in the commercialization of products and services accountable and, consequently, ensures a superior level of consumer protection.
Regarding the powers of the ANPC, the constitutional judicial review court has constantly stated[4], including when examining similar objections, that the ANPC was established as a specialized body of the central public administration, subordinated to the Government, and the manner of regulating the legal nature and powers of the ANPC reflects the state’s concern to protect consumer interests against unfair practices promoted by economic operators. In the exercise of their powers, ANPC representatives make an appraisal of the contractual clauses only to the extent necessary for the finding of contraventions, without this appraisal being equivalent to the resolution of a case, as the contravention report may be challenged before an independent and impartial court.
It is essential to note that ANPC representatives cannot ascertain the commission of a contravention and draw up the contravention report in the absence of a preliminary appraisal of the contractual clauses. However, this appraisal does not supersede the role of the courts of law, the sanctioned economic operators having the possibility to challenge the contravention report and use all legal means of evidence to demonstrate that the recorded findings do not correspond to reality[5].
With respect to the claim that the ANPC would exercise the powers of an extraordinary court, the Court held that the drawing up of the contravention report for the finding and sanctioning of the contravention does not signify a judging of the deed, and the competences attributed by law to the authorized representatives of the ANPC are not similar to those to which the Court referred in its jurisprudence[6], by which it qualified the jurisdiction exercised by the National Council for the Study of the Security Archives and by the College of the Council as an extraordinary jurisdiction, and the legal nature of the bodies exercising it as that of extraordinary courts. The powers of the two authorities are not to be confounded.
What is the takeaway? Through the Constitutional Court Decision no. 237/2025, it was established that the ANPC does not carry out a jurisdictional activity, but exclusively an administrative one, and this manner of regulation represents the option of the legislator, who has chosen to protect an interest of a general, public nature, with a view to preventing and combating deeds that may affect consumers’ safety or their economic interests.
Footnotes:
[1] Decision of the Constitutional Court no. 237/2025 regarding the exception of unconstitutionality of the provisions of Article 15 paragraph (1) and (4) of Government Ordinance no. 21/1992 on consumer protection, of Article 27 paragraph (3) of Government Ordinance no. 2/2018 on package travel and associated travel arrangements, as well as for the amendment of certain normative acts, and of Article 151 of Law no. 363/2007 on combating unfair commercial practices in the relationship with consumers and the harmonization of regulations with European legislation on consumer protection
[2] Ordinance 21/1992 on consumer protection – Article 15 paragraph (1) and (4) and Law no. 363/2007 on combating unfair commercial practices – Articles 121 and 151 (here referring to the form of Article 151 prior to the amendment from 2022 – Government Emergency Ordinance no. 58/2022 for the amendment and supplementation of certain normative acts in the field of consumer protection)
[3] Decision of the Constitutional Court no. 277/2003; Decision of the Constitutional Court no. 1499/2011; Decision of the Constitutional Court no. 692/2020; Decision of the Constitutional Court no. 398/2021
[4] Decision no. 252/2012, Decision no. 505/2012, Decision no. 503/2012
[5] Decision of the Constitutional Court no. 403/2003
[6] Decision of the Constitutional Court no. 51/2008
Romanian version of the articles is available HERE.