High Court of Cassation and Justice
PRESS RELEASE
In its session of 18 September 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 seven requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:
Judgment 49 in Case 1635/1/2023
The Panel denies as inadmissible the request brought by the Tribunal of Prahova – First Civil Chamber, in Case no. 17786/281/2021 for a preliminary ruling for the clarification of the following point of law:
In interpreting Art. 154 et seq. in relation to Art. 91 para. (1) and (2) of the Law no. 85/2014 on insolvency and insolvency proceedings, as amended and supplemented, in relation to Art. 163 para. (1) and (2) of the Code of Criminal Procedure of 1968, respectively Art. 249 para. (1), (2) and (8) of the Code of Criminal Procedure, the recovery of assets belonging to a legal person in insolvency proceedings, when such assets are subject to protective measures established in the framework of criminal proceedings with a view to repairing the damage caused by the offence, generates the legal consequence of:
- The acquisition, free of any encumbrances, of the assets disposed of by the insolvency administrator or liquidator in the exercise of his powers under Law No 85/2014?
- The removal from the land register of the charges registered on the basis of the precautionary measures ordered to cover the damage?
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 18 September 2023.
Judgment 50 in Case 1128/1/2023
The Panel sustains the request brought by the Tribunal of Mureş – Civil Chamber in Case no. 1627/320/2022, for a preliminary ruling and, as a result, establishes that:
In interpreting the provisions of Article 138 para. (1) and art. 139 of Law no. 85/2006 on insolvency proceedings, as amended and supplemented, in relation to the provisions of art. 220 para. (10) and art. 215 of Law no. 207/2015 on the Fiscal Procedure Code, as amended, where the liability of the members of the management bodies has been ordered, according to the provisions of the insolvency law, and the liabilities of the insolvent debtor also include tax claims, the limitation period for enforcement is the 3-year period provided by the Civil Procedure Code.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 18 September 2023.
Judgment 51 in Case 1287/1/2023
The Panel sustains the request brought by the Court of Appeal of Iaşi – Labour and Social Security Litigation Chamber in Case no. 3765/99/2022, for a preliminary ruling and, as a result, establishes that:
In interpreting and applying the provisions of Article 14 para. (3) and Art. 39 para. (5) of Framework Law No 153/2017 on the salaries of staff paid from public funds, as subsequently amended and supplemented, it establishes that the exclusion of the cumulation of the monthly allowance for the scientific title of doctor and the salary related to the teaching grade “I” obtained on the basis of the same scientific title of doctor also applies to teachers who, prior to the entry into force of Framework Law No 153/2017, were awarded the teaching grade I on the basis of the scientific title of doctor, on the basis of Art. 36 para. (3) of Law no. 128/1997 on the Status of Teachers, as amended and supplemented, and the Methodology for in-service training of teachers in pre-university education, approved by Order of the Minister of National Education no. 3770/1998, as amended and supplemented.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 18 September 2023.
Judgment 52 in Case 1500/1/2023
The Panel sustains the request brought by the Court of Appeal of Piteşti- First Civil Chamber in Case no. 5465/288/2017**, for a preliminary ruling and, as a result, establishes that:
In interpreting the provisions of Article 488 para. (1), point 2 of the Code of Civil Procedure, by reference to Articles 19 and 219 of the same Code, in the context of the ground of recourse provided for in Article 488 para. (1) point (2) of the Code of Civil Procedure, it is not possible to examine the criticisms concerning the legality of the measure of changing the composition of the panel of appeal judges ordered by a decision of the court’s governing board, since the legality of that decision may be examined under the terms of Law No 554/2004 on administrative disputes, as subsequently amended and supplemented.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 18 September 2023.
Judgment 53 in Case 1304/1/2023
The Panel denies as inadmissible the request brought by the Specialized Tribunal of Mureş, in Case no. 10049/320/2020*, for a preliminary ruling for the clarification of the following point of law:
“How to interpret the provisions of Article 8 and Article 9 of Law No 77/2016 on the payment of immovable property for the settlement of loan obligations by reference to the provisions of Article 468 para. (1) of the Code of Civil Procedure relating to the time-limit for appeals applicable to applications for appeal concerning actions by debtors concerning (the sole head of claim) the adaptation of the contract/rebalancing of benefits arising from credit agreements, namely: the 7-day time-limit laid down in the special act or the general 30-day time-limit”.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 18 September 2023.
Judgment 54 in Case 1425/1/2023
The Panel denies as inadmissible the request brought by the Tribunal of Argeş – Civil Chamber, in Case no. 18902/280/2021, for a preliminary ruling for the clarification of the following point of law:
In interpreting and applying the provisions of Article 27 para. (23) of the Land Law no. 18/1991, republished, as amended by Law no. 263/2022, by the phrase “or those who have acquired these properties by deeds of transfer of ownership” may be understood any sub-seller, natural or legal person, of the right of ownership of the building?
In interpreting and applying the provisions of Article 27 para. (23) point (a) of Law no. 18/1991, as amended by Law no. 263/2022, according to which “if the owners or their heirs are listed with the dwelling house in the agricultural registers or cadastral registers or are entered in the land register and are registered in the tax records#, it is necessary that at the date of the application for the establishment of the right of ownership of the land the building has the use of a dwelling house or it is sufficient that the building had this use at the date of construction or acquisition under the terms of Law no. 112/1995 on the legal status of certain buildings used as dwellings, which have become the property of the State, as subsequently amended?
A legal person governed by private law (company) that has acquired the building by sale-purchase contract from the person who built the building before 1990 or from the person who bought it according to the provisions of Law no. 112/1995 or from their heirs may benefit from the provisions of Art. 27 para. (23) of Law No 18/1991, as amended by Law No 263/2022, if at the time of the application for the establishment of ownership of the land the building is the company’s registered office or are those provisions enacted only in favour of natural persons in consideration of the use of the building as a dwelling-house under point (a) of the same law?
Can it be held that, by transferring ownership of the dwelling house to a legal person governed by private law (a company), the building changes its purpose, since it is not the company’s seat at the time when the application for registration of ownership of the land was made, and it retains within the company the purpose for which it was intended at the time when the building was constructed, in the first variant, and does not retain within the company the purpose for which it was intended at the time when the building was constructed, in the second variant?
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 18 September 2023.
Judgment 55 in Case 1536/1/2023
The Panel denies as inadmissible the request brought by the Tribunal of Bucharest, V Civil Chamber, in Case no. 1577/3/2023, for a preliminary ruling for the clarification of the following point of law:
“If the consent of the owners’ association, based on Article 50 letter b) of Law no. 196/2018 on the Establishment, Organization and Functioning of Owners’ Associations and Condominium Management, as amended, is deemed to be formed on the basis of all the written and signed declarations of each owner (in which case the written expression of each owner’s option is required), or it is sufficient to prove the notification of each owner of the matters under discussion, without the need to communicate the written declaration of each owner, then the association’s will agreement would be formed on the basis of a sufficient number of declarations to ensure the vote of a simple majority of the total number of owners.”
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 18 September 2023.
After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.