Press release – Panel for the Clarification of Certain Points of Law in Civil Matters in its session of 24 April 2023

High Court of Cassation and Justice

 PRESS RELEASE

 

In its session of 24 April 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 five requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

Judgment 30 in Case 2754/1/2022

 The Panel sustains the joined requests brought by the Tribunal of Gorj – First Civil Chamber in Cases no. 1627/318/2022 and no. 308/318/2022, for a preliminary ruling and, as a result, establishes that:

To the extent that the debtor has performed the obligation to do or not to do, which cannot be performed by another person, even during the settlement of the claim based on Article 906 para. (4) of the Code of Civil Procedure, the creditor may no longer obtain the final determination of the amount by way of penalty.

The Panel denies as inadmissible the joined requests brought by the Tribunal of Gorj – First Civil Chamber, in the same cases, for a preliminary ruling on the question of law: whether the verification of the good reasons which led to the non-performance of the obligation to perform intuitu personae could be carried out directly in the context of the dispute concerning the final amount awarded by way of penalty, given that the obligation was performed during the dispute, well beyond the period of three months for which the final amount by way of penalty is sought, or whether those good reasons can be relied on and, respectively, examined only by way of a challenge to enforcement, in accordance with Article 906 para. (5) of the Code of Civil Procedure or the provisions of Art. 906 para. (5) of the Code of Civil Procedure preclude the final determination of the amount of the penalty under Article 906 para. (4) of the Code of Civil Procedure if, at the time of the application based on Article 906 para. (4) of the Code of Civil Procedure (the determination of the final amount for non-fulfilment of the obligation intuitu personae established by an enforceable title), the obligation had not been fulfilled, nor within the 3 months for which the final amount by way of penalty is requested, but subsequently, during the course of the litigation, this obligation was fulfilled by the debtor.

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

Returned in public hearing, today, 24 April 2023.

Judgment 31 in Case 2748/1/2022

The Panel denies as inadmissible the request brought by the Court of Appeal of Bucharest – VIII Administrative and Tax Litigation Chamber, by judgement of 7 November 2022, in Case no. 4.880/2/2022 for a preliminary ruling for the clarification of the following point of law:

“From the combined interpretation of Article 24 (3) and (4) of Law No 554/2004 and Article 906 of the Code of Civil Procedure (amended and supplemented by Law No 310/2018), does it follow that a creditor of an obligation established by a final judgment of the administrative and tax litigation court is entitled to repeatedly request the setting of the final amount by way of late payment penalties, namely for the passage of several successive periods of three months during which the debtor is alleged to have failed to perform the obligation laid down in the enforceable title?

From the combined interpretation of Article 521 para. (3) and Art. 431 para. (2) of the Code of Civil Procedure, does it follow that, in the event of a concurrence between the positive effect of res judicata and the binding nature of the decision of the High Court of Cassation and Justice, which seeks to resolve a question of law, where both are relevant to a case but resolve a question of law differently, does res judicata or the binding decision of the Supreme Court have priority of application?”

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

Returned in public hearing, today, 24 April 2023.

Judgment 32 in Case 330/1/2023

The Panel denies as inadmissible the request brought by the Tribunal of Brailă – Second Civil, Administrative and Tax Litigation Chamber, in Case no. 8931/196/2021 for a preliminary ruling for the clarification of the following point of law:

If, in interpreting the provisions of Articles 94 and 466 of the Code of Civil Procedure and Article 9 para. (9) of Annex No 2 “Procedure for alternative dispute resolution by way of imposition of a solution in the framework of SAL-FIN” to the Regulation of the Financial Supervision Authority No. 4/2016 on the organisation and functioning of the Alternative Dispute Resolution Entity in the non-banking financial sector (SAL-FIN), as amended, the decisions rendered by the court, which decide on a request for the annulment of the decision rendered by SAL-FIN according to Article 9 of Annex No. 2 to the Regulation of the Financial Supervisory Authority No. 4/2016, are or are not subject to appeal.

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

Returned in public hearing, today, 24 April 2023.

 

Judgment 33 in Case 332/1/2023

 The Panel sustains the joined requests brought by the Court of Appeal of Craiova – Labour and Social Security Litigation Chamber in Cases no. 4165/63/2021 and no. 3735/63/2021, for a preliminary ruling and, in interpreting and applying the provisions of Article 43 para. (2) of Law 341/2004, in conjunction with Art. 1, points 10 and 11, Art. 168, Art. 219 of Law 207/2015 on the Tax Procedure Code, Art. 2 para. (2) letter b) of Law no. 227/2015 on the Tax Code, establishes that:

The limitation period applicable to actions for the reimbursement of social security contributions deducted from the gratuity provided for in Article 4 para. (4) of Law No 341/2004 is the five-year limitation period provided for in Article 219 para. (1) of Law no. 207/2015 on the Code of Tax Procedure.

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

Returned in public hearing, today, 24 April 2023.

Judgment 34 in Case 363/1/2023

The Panel denies as inadmissible the request brought by the Court of Appeal of Piteşti – First Civil Chamber, in Case no. 2115/90/2020 for a preliminary ruling for the clarification of the point of law which seeks the interpretation of the phrase “the gross monthly allowance of a judge or prosecutor in active employment, under identical conditions of office, seniority and grade of the court or public prosecutor’s office, taking into account, as a percentage, the allowances included in the basis for calculation of the service pension and the length-of-service increment” in Article 85 para. (2) of Law No 303/2004 on the status of judges and prosecutors, republished, with subsequent amendments and additions, with the entry into force of Framework Law No 153/2017 on the salaries of staff paid from public funds, with subsequent amendments and additions.

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

Returned in public hearing, today, 24 April 2023.

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