Press release – Panel for the Clarification of Certain Points of Law in Civil Matters in its session of 13 March 2023

High Court of Cassation and Justice

 

 PRESS RELEASE

 

In its session of 13 March 2023, the High Court of Cassation and Justice- Panel for the Clarification of Certain Points of Law in Civil Matters, lawfully established in each of the cases, considered six requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

 

Judgment 13 in Case 2254/1/2022

 

The Panel sustains the request brought by the Court of Appeal of Ploieşti – First Civil Chamber in Case no. 3542/120/2021, for a preliminary ruling and in interpreting the provisions of Article 882 para. (5) of Law no. 304/2004 on the judicial organisation, republished, as amended and supplemented, in conjunction with the provisions of Article 13 para. (1) letter (a) of Government Emergency Ordinance No. 27/2006 on the salaries and other rights of judges, prosecutors and other categories of staff in the justice system, approved with amendments and additions by Law No. 45/2007, as subsequently amended and supplemented, establishes that:

The right governed by Article 882 para. (5) of Law no. 304/2004 has the legal nature of the gross monthly employment allowance for prosecutors who have worked in the Department for the Investigation of Criminal Offences in the Judiciary, and the guarantees of the principle of non-discrimination and the principle of equality, provided for in Article 6 letters (b) and (c) of Framework Law no. 153/2017 on the remuneration of staff paid from public funds, as subsequently amended and supplemented, may be invoked only by magistrates who occupied a “similar function” to theirs, as defined in Article 7 letter (g) of the same legislative act in conjunction with Article 8 of Section 2 of Chapter VIII of Annex No V to Framework Law No 153/2017.

Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.

Returned in public hearing, today, 13 March 2023.

Judgment 14 in Case 2791/1/2022

 

The Panel denies as inadmissible the request brought by the Tribunal of Harghita, Civil Chamber, in Case no. 2220/258/2021 for a preliminary ruling for the clarification of the following point of law:

“1. In view of the provisions of Article 2009 of the Civil Code whereby a mandate is a contract by which one party, called the mandatary, undertakes to conclude one or more legal acts on behalf of the other party, called the principal, can it be said that only the lawyer can be a mandatary, since under Law No 51/1995 only he can draw up legal acts, and the mandatary is prohibited from using a lawyer to draw up legal acts?;

  1. Can it be held that where a mandatary, acting on the basis of a contract of mandate concluded in accordance with Article 2009 et seq. of the Civil Code, relies on a lawyer to draw up the legal documents to which the mandatary is bound under Article 2009, he infringes Article 3 letter (c) of Law No 51/1995?
  2. Can it be held that when a mandatary, acting on the basis of a contract of mandate concluded in accordance with Article 2009 et seq. of the Civil Code, calls upon a lawyer to conclude a legal assistance contract directly with the client-plaintiff in order to represent the client-plaintiff before the court, infringes the provisions of Law No 51/1995?
  3. Whether, in interpreting and applying the provisions of Article 1026 para. (1) and Art. 1027 para. (3) of the Code of Civil Procedure, the court may, of its own motion, order the absolute nullity of a contract in the context of a low value claim for payment of sums of money, or in order to be able to order and declare of its own motion the absolute nullity of a contract, it must refer the parties to the need for the action to be tried at common law and proceed to judgment on the action at common law?

Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.

Returned in public hearing, today, 13 March 2023.

Judgment 15 in Case 24/1/2023

 

The Panel denies as inadmissible the joined requests brought by the Tribunal of Bucharest – VI Civil Chamber, in cases No 23648/299/2021 and no. 9626/299/2021, for a preliminary ruling on the following question of law:

Art. 42 para. (61) of the Law on Community Public Utility Services No 51/2006, republished, as subsequently amended and supplemented, be interpreted as meaning that the fiscal invoice issued by the operator to the public authority under a contract delegating the management of a public utility service is also enforceable?

Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.

Returned in public hearing, today, 13 March 2023.

Judgment 16 in Case 1203/1/2022

 

The Panel sustains the request brought by the High Court of Cassation and Justice – Administrative and Tax Litigation Chamber, by judgement of 7 April 2022, in Case no. 7.878/2/2017, for a preliminary ruling and, as a result, establishes that:

According to the interpretation of the provisions of Article 18 of Law no. 571/2003 on the Fiscal Code, the tax base used to determine the minimum tax at the rate of 5% in the case of fixed odds bets is made up of the total sums collected by the economic operator from participating players.

Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.

Returned in public hearing, today, 13 March 2023.

Judgment 17 in Case 1759/1/2022

 

The Panel denies as inadmissible the requests brought by the Tribunal of Bucharest – III Civil Chamber, by judgement of 5 July 2022, in case No 20.854/299/2022, by judgement of 5 July 2022, in case No 22.019/299/2022 and by judgement of 2 August 2022, in case No 21.097/299/2022, for a preliminary ruling on the following question of law:

“In interpreting and applying Art. 24 para. (1)-(3) of Law No 554/2004, as amended, the procedure for the enforcement of a final judgment of a court of administrative jurisdiction shall apply even where the obligation established by that judgment is the adoption of a unilateral administrative act of an individual nature?”.

Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.

Returned in public hearing, today, 13 March 2023.

Judgment 18 in Case 2018/1/2022

 

The Panel sustains the request brought by the Court of Appeal of Oradea – Administrative and Tax Litigation Chamber, in Case no. 3.575/111/CA/2020*-R, for a preliminary ruling and, as a result, establishes that:

In interpreting the provisions of Article 527 para. (1) of the Administrative Code, the phrase “income earned during that period” refers to income lawfully earned between the time of termination of public office and the time of actual reinstatement in public office, which is related to the unlawful termination of the employment relationship, arising from an activity that replaced public office.

Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.

Returned in public hearing, today, 13 March 2023.

After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.