Press release – Panel for the Clarification of Certain Points of Law in Civil Matters in its session of 20 May 2024

High Court of Cassation and Justice

PRESS RELEASE

In its session of 20 May 2024, 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:

Judgement no. 22 in Case no. 232/1/2024

 The Panel sustains the joined requests brought by the Court of Appeal of Timişoara – Labour and Social Security Litigation Chamber, in Case no. 5663/30/2022 and by the Court of Appel of Cluj – IV Labour and Social Security Litigation Chamber in Case no. 2914/100/2022, for a preliminary ruling and, as a result, establishes that:

The provisions of Article 13 of Law No 285/2010 on the 2011 salaries of staff paid from public funds, as amended and supplemented, Article 9 of Government Emergency Ordinance No 80/2010 supplementing Article 11 of Government Emergency Ordinance No. 37/2008 on the regulation of certain financial measures in the budgetary sector, as well as for the establishment of other financial measures in the budgetary sector, approved with amendments and additions by Law No. 283/2011, Article 2 of Government Emergency Ordinance No. 84/2012 on the establishment of salaries of budgetary sector staff in 2013, the extension of certain deadlines in legislative acts, as well as some fiscal-budgetary measures, approved by Law No. 36/2014, with subsequent amendments, Article 10 of Government Emergency Ordinance No. 103/2013 on the salaries of staff paid from public funds in 2014, as well as other measures in the field of public expenditure, approved with additions by Law No. 28/2014, with subsequent amendments and additions, Article 9 of Government Emergency Ordinance No. 83/2014 on the salaries of staff paid from public funds in 2015, as well as other measures in the field of public expenditure, approved with amendments and additions by Law No. 71/2015, with subsequent amendments and additions, Article 11 of Government Emergency Ordinance No 57/2015 on the salaries of staff paid from public funds in 2016, the extension of certain deadlines, as well as some fiscal-budgetary measures, with subsequent amendments and additions, Article 1 para. (3) of Government Emergency Ordinance No. 9/2017 on some budgetary measures in 2017, extension of some deadlines, as well as amendments and additions to some normative acts, approved with amendments and additions by Law No. 115/2017, as amended, Art. 11 para. (1) of Government Emergency Ordinance No. 90/2017 on some fiscal-budgetary measures, amending and supplementing some normative acts and extending some deadlines, approved with additions by Law No. 80/2018, as amended and supplemented, Art. 41 para. (1) of Government Emergency Ordinance No. 114/2018 on the establishment of certain measures in the field of public investment and certain fiscal-budgetary measures, amending and supplementing certain regulatory acts and extending certain deadlines, as amended and supplemented, Article VII para. (1) of Government Emergency Ordinance No. 130/2021 on some fiscal-budgetary measures, extending certain time limits and amending and supplementing certain legislative acts, with subsequent amendments and additions, which successively ordered the non-granting of the retirement allowance provided for in Article 81 paragraph 1 of the Law No 303/2004 on the status of judges and prosecutors, republished, as subsequently amended and supplemented, with reference to the provisions of Art. 294 para. (5) letter (a) of Law No 303/2022 on the status of judges and prosecutors, as subsequently amended and supplemented, had the effect of suspending the exercise of this right, without the subjective right having become current again.

The measure provided for in Article VII para. (1) of Government Emergency Ordinance No 130/2021 and Article VII para. (1) of Government Emergency Ordinance No 168/2022 on certain fiscal-budgetary measures, the extension of certain deadlines and the amendment and completion of certain legislative acts, as subsequently amended and supplemented, with reference to the retirement allowance provided for in Article 81 para. (1) of Law No 303/2004, ceased on the date of repeal of Law No 303/2004, without the right to the pension allowance becoming current again from the date of cessation of any cause for suspension or non-application of the provisions of Article 81 para. (1) of Law No 303/2004.

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

Returned in public hearing, today, 20 May 2024.

Judgement no. 23 in case no. 474/1/2024

 The Panel denies as inadmissible the request brought by the Tribunal of Bacău – Second Civil, Administrative and Tax Litigation Chamber, for a preliminary ruling for the clarification of certain points of law:

If, in interpreting and applying the provisions of Article 781 para. (1), Art. 783 para. (2), Art. 790 par. (1) and (4) of the Code of Civil Procedure, a third party shall be deemed to be a person who:

  1. Does not have any legal obligation towards the debtor;
  2. Does not owe or will not in the future owe any money to the debtors sought;
  3. Does not hold money on behalf of these debtors;
  4. It is a contractual party to a contract for the provision of services, which expressly states that it is not and cannot be considered a third party, yet some courts of law ignore this fact;
  5. Under the said service contract, the holder of the account in lei is E.M.I. (the electronic money institution established and authorised in Lithuania), the collector account which is debited exclusively by E.M.I. and not by its customers (in this case, the debtor sought in the enforcement proceedings);
  6. It is not the holder of the collector account or accounts associated with it and does not open payment accounts to the debtors pursued, and the latter are not the real beneficiaries of the respective virtual accounts;
  7. It does not issue payment instructions with respect to payments from the collector account nor does it receive payment instructions from the debtors being pursued.

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

Returned in public hearing, today, 20 May 2024.

Judgement no. 24 in case no. 477/1/2024

 The Panel denies as inadmissible the request brought by the Court of Appeal of Galaţi – Labour and Social Security Litigation Chamber, in Case no. 477/1/2024, for a preliminary ruling for the clarification of the following point of law:

How to interpret and apply the provisions of Art. 65 para. (1), (4) and (5) of Law No. 263/2010 on the Unified Public Pension System, as subsequently amended and supplemented, for the purposes of determining whether a person receiving a partial early retirement pension under Article 65 para. (1) and (4) of the Law may apply for recalculation of the number of months of early retirement in the event of subsequent amendment of the provisions of Article 65 (5) or whether he may apply for partial early retirement under Article 65 para. (5) or whether he may apply for partial early retirement under Article 65 para. (1) and (5) of the same law.

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

Returned in public hearing, today, 20 May 2024.

Judgement no. 25 in case no. 542/1/2024

 The Panel denies as inadmissible the request brought by the Court of Appeal of Cluj – IV Labour and Social Security Litigation Chamber, for a preliminary ruling for the clarification of the following point of law:

Interpretation and application of Art. 5 para. (1) letter (o) of Law 341/2004, as amended by Article I, point 10 of Emergency Ordinance No 95 of 29 December 2014, in relation to the provisions of Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, read in conjunction with Article 1 para. (3) and Art. 20 para. (2) of the Romanian Constitution, in order to determine whether, in the application of those legal provisions, the national courts are entitled, as a result of a finding of a breach of Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, to establish the existence of an entitlement on the part of recipients of the allowance provided for in Article 5 para. (1) letter (o) of Law No 341/2004 to receive payment of that allowance at the level resulting from the application of the calculation algorithm laid down in that legal text, given the existence of annual legal provisions for maintaining payment of that allowance at the level of 2010 [Article 14 of Law No 118/2010; Article 10 of Law No 285/2010; art. 3 para. (2) of Government Emergency Ordinance No 19/2012; Art. 1 of Government Emergency Ordinance No 84/2012; Art. 14 point 1) of Government Emergency Ordinance no. 103/2013; Art. 13 para. (1) letter j) of Government Emergency Ordinance no. 83/2014; Art. IV para. (1) of Government Emergency Ordinance no. 95/2014; Art. 12 para. (2) of Government Emergency Ordinance no. 57/2015; Art. 11 para. (2) of Government Emergency Ordinance no. 99/2016; Art. 1 para. (3) of Government Emergency Ordinance No 9/2017; Art. 12 para. (2) of Government Emergency Ordinance No. 90/2017; Art. 40 para. (2) of Government Emergency Ordinance No 114/2018; Article IX, point 2 of Government Emergency Ordinance No 130/2021; Article XVIII of Government Emergency Ordinance No 168/2022].

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

Returned in public hearing, today, 20 May 2024.

Judgement no. 26 in case no. 457/1/2024

 The Panel denies as inadmissible the request brought by the Tribunal of Timiş– Second Civil Chamber, for a preliminary ruling for the clarification of certain points of law:

  1. In interpreting and applying the provisions of Article 4 para. (11) of Law no. 77/2016, in relation to Art. 970 of the Civil Code of 1864 and Art. 1271 of the Civil Code, the intervention of the court in the contract between the parties, as a result of the manifestation of hardship (the reaching of the exchange rate established by the legal presumption), takes place at the time of the occurrence of the event of hardship (the reaching of the exchange rate established by the legal presumption) or at the time of registration of the notice of balancing of the contract/payment or at the time of the court’s ruling on the balancing of the contract;
  2. If the answer to question (question of law) number 1 is that the court can intervene in the contract as soon as the hardship (the reaching of the exchange rate established by the legal presumption) occurs, the services performed after that moment will also be subject to balancing, in accordance with the provisions of Art. 4 para. (11) of Law no. 77/2016, with reference to Art. 4 para. (4) of Law no. 77/2016;
  3. c. If the answer to question (question of law) No 1 is that the court may intervene in the contract only from the moment of registration of the notice of contract balancing, are the performances already executed in a state of hardship, namely above the threshold established by the legal presumption, shall be deemed to have won the contract, or the court must take them into account when it is called upon to order the balancing of the contract and possibly to find additional ways of balancing the contract in addition to that of establishing an average exchange rate;
  4. In interpreting and applying the provisions of Art. 4 para. (4) of Law no. 77/2016, in relation to Art. 970 of the Civil Code of 1864 and Art. 1271 of the Civil Code, if the answer to question (question of law) number 1 is that the intervention of the court in the contract can only be made from the moment of registration of the notice of balancing of the contract, the reduction of the credit balance could represent a way of balancing the credit contract that would produce effects only for the future.

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

Returned in public hearing, today, 20 May 2024.

 

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