Electronic Commerce

Electronic Commerce

The electronic commerce (e-commerce) represents the process of selling, buying or changing products, services and information by means of computer networks.

Business-to-business and business-to-consumers e-commerce has known and still knows an incredible and continuous development. The Internet has given a strong push to e-commerce – in many cases small and medium companies discovered they can run their on-line businesses the same way as big companies do. In fact, all sized businesses discovered they can use the Internet in their advantage to reduce the costs of e-commerce either by replacing other network or by transforming their data base in a digital one and including it in their commercial practices.

E-commerce represents a system including not only the transactions concentrating on selling and buying products and services, but also those supporting income generation, such as creating the request for those products and services or facilitating the communication among the business partners an all the interactions deriving from it.

E-commerce advantages

From the consumer point of view, the advantages are linked to:

  · time: the consumer has the possibility to visit more virtual shops in a very short time span (much shorter than the time he uses to be physically present in a real shop).

  · liberty of choice: due to the increased number of shops the consumer can visit, he will have the possibility to choose a product with a wider choice, having more options depending on the price, delivery period, warranty services etc.

From the professionals point of view, the advantages are:

  · increased communication speed, especially for international communications: a larger number of companies can establish a cooperation platform, through which they can design and develop new products and services; communicating through telephone or fax would mean this processes could be drastically slowed. Also, the costs are more reduced: for example, using the e-mail the costs with postal services are reduced.

     ·  strengthening the relationships with providers and customers: through a website, the company’s customers will be informed of the newest products, will be granted technical support for the products they purchased, and they could even offer suggestions for improving the products and services; on some sites, the consumers can even build the product they wish to buy (colors, materials etc.); the providers can have, inside this site, a special place where they can present their newest offers.

       ·  the existence of a fast and easy way to give information on the company;

       ·  alternative selling channels.

Due to the fact the contract is concluded by electronic means which do not need the simultaneous presence of the parties, it is analyzed as a distance contract (for distance contracts concluded between consumers and professionals see “Distance selling”).

Types of e-commerce:

   · Business-to-business (B2B) – e-commerce where all the participants are professionals;

  · Business-to-consumer (B2C) – e-commerce where professionals sell to individual buyers – natural persons.

   · Consumer-to-business (C2B) – natural persons use the Internet to sell their products or services to professionals.

  · Mobile commerce (m-commerce) – transactions and other e-commerce activities run through the electromagnetic medium.

  · E-government: government-to-business (G2B) – e-commerce where governmental institutions buy or sell goods, services or information from/to professionals.

   ·  Government-to-consumer (G2C) – cover the government-citizens relations regarding the information and public services (ex. paying the taxes on-line).

Freedom to provide the services of the informational society

Art. 4 from Law 365/2002 on electronic commerce, establishes the principle of freedom to provide the services of the informational society. This means that in order to provide such services one doesn’t need any preliminary authorization, the services being provided with the respect of the principles of a fair and free competition.

Unsolicited commercial communication – SPAM

Sending commercial communications through e-mail is prohibited, with the exception of cases where the receiver has given his consent to receive such communications.

The commercial communications which represent a service of the informational society or a part of such a service, if they are permitted, must respect at least the following conditions:

   ·  to be clearly identifiable as such;

   ·  the natural or moral person in the name of which they are made to be clearly identified;

  ·  the promotional offers, such as reductions, prizes and gifts, to be clearly identifiable, and the conditions to met for obtaining them must be easy accessible and clearly presented;

   ·  competitions and promotional games must be clearly identifiable as such, and the participation conditions must be easy accessible and clearly presented;

   ·  any other conditions stated by the legal dispositions.

The consumer’s consent can be obtained in any form and can be proved with any mean. The professional must prove he has the consumer’s content.

The consent communicated by a message through the e-mail is valid if the following conditions are cumulatively met:

  ·  it is sent from the mailbox where the consumer wishes to receive the commercial communications;

  ·  the message’s subject is “I ACCEPT COMMERCIAL COMMUNICATIONS FROM”, written with capital letters, and the name of the person for which the communications will be sent.

The subject of the e-mail messages, which are commercial communications, must begin with the word “ADVERTISING” in capital letters.

The commercial communications must contain at least the following information, regarding the person for which are made:

   ·   name;

   ·   personal numerical code or registration code;

   ·   postal address;

   ·   phone and fax numbers;

   ·   e-mail address.

The receiver of commercial communications has the right to revoke its consent to receive such communication by simply notifying the sender.

The provider has an obligation to implement a free procedure, accessible also by electronic means, through which the receiver would be able to revoke its consent.

The cancellation of the consent by electronic means must produce its effects in at most 48 hours from the beginning of the procedure.

The provider must make public the procedure on its webpage and in the messages containing commercial communications.

The contract concluded by electronic means

The contracts concluded by electronic means produce all the effects the law recognizes for the other contracts, when all the conditions requested for their validity are met.

For their validity the consent of both the parties to use the electronic means is not requested.

1. The information obligation

The information obligation can be perceived from two perspectives, respectively:

   ·  the perspective of the information the providers must give to the receivers;

   ·  the perspective of the information the providers must give to the consumers.

The service provider is defined as any natural or moral person who puts at disposal of a determined or undetermined number of persons a service of the informational society.

The receiver is defined as any natural or moral person which uses, in commercial, professional or other purposes, a service of the informational society, in particular for searching information or getting access to it.

The consumer is defined as any natural or moral person acting in other purposes than those of its commercial or professional activity.

In the first situation, the service provider has the obligation to put at disposal of all the receivers, before any receiver send an offer or accept an offer, at least the following information in a clear, unequivocal way and in an accessible language:

   ·  the technical steps necessary to conclude the contract;

   ·  if the contract, after conclusion, is or not stoked by the service provider and if it is accessible or not;

   ·  the technical means the service provider puts at the disposal of the receiver to identify and correct the eventual errors;

   ·  language of the contract;

  ·  relevant conduct codes to which the service provider subscribes and information on how this codes can be consulted by electronic means;

   ·  any other legal information.

The service provider has an obligation to give the receiver the possibility to use an adequate, efficient and accessible technical method, in order to identify and correct the eventual errors in the data.

The contractual terms and the general conditions must be put at the receiver’s disposal in a way that should permit him to stoke and to reproduce them.

This information obligation will not apply for the contracts concluded exclusively by e-mail or other equivalent communication ways.

In the second situation, the consumer, according to the Governmental Ordinance 130/2000 on distance selling, must be informed on: provider’s name, postal address, phone and fax numbers, e-mail address and on any other data necessary to contact the provider, the registration number.

Also, the professional must give to the consumers, on its website, information on the products and services prices, if the delivery costs are or not included in the price and what are this costs. The prices must be indicated with the respect of legal provisions, mentioning if the VAT is included or not, or not applicable, and also the VAT value.

The information obligation is extended also on the methods to conclude the contract. The professional must inform the consumer on how he can choose a product or a service, on the steps to be followed to order a product, on the payment method, on the delivery and on the right to cancel the contract.

Details on the information obligation regarding the consumers, contract execution and withdrawal right can be found in the distance selling section.

The information must be materialized by creating some technical means (links) necessary to follow the steps to conclude the contract by electronic means.

The order system is based on the “product basket”, with the possibility to introduce an unlimited number of products, to modify the quantities and to calculate the prices automatically.

The professional must give the consumers the possibility to visualize the basket’s content, the cost, and also to renounce to some products or to continue to shop.

2. Conclusion of the contract by electronic means

To send the order, the consumer must fill in an electronic form with his name, address, phone number, e-mail address and registration password.

This password can help the consumer to track the orders he has made, shortening the time necessary to introduce his personal data.

The contract is concluded when the acceptance of the offer is known by the professional, if the parties have not agreed otherwise.

When the receiver sends by electronic means an offer to conclude a contract or the acceptance of an offer, the service provider has the obligation to confirm he has received the offer or the acceptance in one of the following two ways:

   ·  sending a receipt prove by e-mail or by any other equivalent communication way, to the receiver’s address, with no delay;

  ·  confirming the reception of the offer or of the offer’s acceptance, through a way which is equivalent to the way the offer or the offer’s acceptance was sent.

The rules above do not apply to contract concluded exclusively by e-mail or other equivalent communication ways.

The offer and the offer’s acceptance are considered received when the parties to whom they are sent can access them.

For more information please see:

   · Law 365/2002 on electronic commerce, transposing Directive 2000/31/CE on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market;

   · Government Decision 1308/2002 approving the methodological rules for the application of Law 365/2002;

   · Governmental Ordinance 130/2000 on distance selling, transposing Directive 97/7/CE on the protection of consumers in respect of distance contracts;

     ·  Law 677/2001 on personal data protection and free circulation.