Press releases – preliminary rulings on questions of law in civil matter

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.

 

High Court of Cassation and Justice

 PRESS RELEASE

 

In its session of 3 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 three requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

Judgment 27 in Case 184/1/2023

 

The Panel denies as inadmissible the request brought by the Tribunal of Harghita – Civil Chamber, by judgement no. 1 of 10 January 2023, in Case no. 1.322/96/2022 for a preliminary ruling for the clarification of the following point of law:

“If the provisions of Art. 1 para. (2) letter (b) of Decree-Law No 118/1990 also cover persons enlisted in the Hungarian army who were taken as prisoners of war by the Soviet army after 23 August 1944?”

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

Returned in public hearing, today, 3 April 2023.

Judgment 28 in Case 279/1/2023

 

The Panel denies as inadmissible the request brought by the Court of Appeal of Bacău – II Administrative and Tax Litigation Chamber, by judgement no. 15 of 15 December 2022, in Case no. 556/110/2021 for a preliminary ruling for the clarification of the following point of law:

“Interpretation of Art. 311 para. (10) letter a) of Law no. 227/2015 on the Tax Code and of point 85 para. (6) of the Methodological Norms for the application of the Tax Code approved by Government Decision no. 1/2016 for the approval of the Methodological Norms for the application of Law no. 227/2015 on the Tax Code, by reference to the provisions of Art. 294 para. (1) letter g) and art. 271 of Law no. 227/2015 on the Fiscal Code, in order to identify the hypotheses in which the travel agency has a right of option between the application of the normal tax regime (exemption with the right to deduct VAT) and the application of the special VAT regime (19% on margin) for the activity of selling air tickets and in order to identify the criteria for delimiting the notion of “other tourist services”, i.e. whether the notion of “other tourist services” in the Fiscal Code can be interpreted by reference to the provisions of art. 3 point 15 letter d and art. 4 of G.D. no 2/2018 on package travel and package-related travel services and amending certain acts, namely Article 2 point 1 letter c) of G.D. no. 107/1999 on the marketing of package travel services, or the concept in the Fiscal Code has a specific definition in the application of the provisions relating to the taxation of tourism activity”.

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

Returned in public hearing, today, 3 April 2023.

 

Judgment 29 in Case 285/1/2023

 

The Panel denies as inadmissible the request brought by the Court of Appeal of Bucharest– VIII Administrative and Tax Litigation Chamber, by judgement of 2 November 2022, in Case no. 12.578/3/2021 for a preliminary ruling for the clarification of the following point of law:

“If Article 31 para. (1) ind. 2 of Law No 360/2002 on the Status of Police Officers, as amended and supplemented by Art. I of Law 288/2018 is be interpreted as meaning that a civil servant with special status – police officer who has concluded a mortgage/movable loan agreement for the purchase of a dwelling prior to the entry into force of Law No 288/2018 and who, at the time of the purchase of the dwelling, satisfied the conditions for the payment of rent may also be entitled to the monthly rent compensation for the payment of the instalment/part of the instalment of the mortgage/property loan taken out as from the date of entry into force of the Law – 9 December 2018?”

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

Returned in public hearing, today, 3 April 2023.

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

High Court of Cassation and Justice

 PRESS RELEASE

In its session of 27 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 21 in Case 109/1/2023

The Panel denies as inadmissible the request brought by the Court of Appeal of Piteşti – First Civil Chamber, in Case no. 9116/109/2021 for a preliminary ruling for the clarification of the following point of law:

Interpretation of Art. 85 para. (2) of Law No 303/2004 on the status of judges and prosecutors, republished, as subsequently amended and supplemented, with reference to Art. 14 para. (1) of Framework Law No 153/2017 on the salaries of staff paid from public funds, as subsequently amended and supplemented, concerning the method of updating the service pension of a judge who holds the scientific title of Doctor of Law, namely whether to take into account the percentage of 15% from the time of retirement or the fixed amount established by Framework Law No 153/2017.

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

Returned in public hearing, today, 27 March 2023.

Judgment 22 in Case 122/1/2023

The Panel denies as inadmissible the request brought by the Court of Appeal of Bacău– First Civil Chamber, in Case no. 1289/321/2020 for a preliminary ruling for the clarification of the following point of law:

“Is Article 196 of the Code of Civil Procedure to be interpreted as meaning that the request to comply with the obligation to pay the stamp duty is an unequivocal expression of the party’s intention to continue with the legal proceedings and not to discontinue them, with the consequence that the request for referral to the court cannot be declared null?”.

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

Returned in public hearing, today, 27 March 2023.

Judgment 23 in Case 128/1/2023

 The Panel sustains the request brought by the Court of Appeal of Bucharest – Seventh Chamber for labour and social security disputes, in Case no. 32435/3/2021, for a preliminary ruling and, as a result, establishes that:

In interpreting and applying the provisions of Article 47 para. (1) and (2) of Law no. 53/2003 – Labour Code, republished, as subsequently amended and supplemented, in relation to the provisions of Art. 1 para. (1), (3) and (4) of Framework Law No. 153/2017 on the remuneration of staff paid from public funds, as subsequently amended and supplemented, an employee seconded from an employer whose salary rights are determined by negotiation may not be paid by the transferee employer, institution or public authority, rights that exceed the maximum level provided for by Framework Law No. 153/2017.

In interpreting and applying the provisions of Article 256 para. (1) of the Labour Code, in relation to Art. 47 para. (2) of the same Act, with reference to the provisions of Art. 1 para. (1), (3) and (4) of Framework Law No 153/2017, the employee who has received from the transferee employer salary rights exceeding the maximum level provided for by Framework Law No 153/2017 for the post to which he was seconded is not obliged to return them.

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

Returned in public hearing, today, 27 March 2023.

Judgment 24 in Case 161/1/2023

 The Panel denies as inadmissible the request brought by the Court of Appeal of Cluj – IV Chamber for labour and social security disputes, in Case no. 1357/117/2022, for a preliminary ruling for the clarification of the following point of law:

How to interpret and apply the provisions of Art. 82 para. (1) of Law No 303/2004 on the status of judges and prosecutors, republished, as amended and supplemented, and the provisions of Article 7 para. (1), (2) and (3) of the Methodological Norms for the application of the provisions of Law no. 303/2004 on the status of judges and prosecutors, republished, and Law no. 47/1992 on the organisation and functioning of the Constitutional Court, republished, concerning service pensions and the granting of child-raising allowances for children up to 2 years of age, approved by Government Decision no. 1.275/2005, relating to service pensions, in order to determine whether the rights granted by irrevocable court judgments on DNA-DIICOT differences,  respectively the coefficients laid down by letter A, points 6 to 13 of the Annex to 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, are covered by the term “compensation received” and must be taken into account when determining the judges’ service pension.

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

Returned in public hearing, today, 27 March 2023.

Judgment 25 in Case 210/1/2023

 The Panel sustains the request brought by the Court of Appeal of Suceava – First Civil Chamber, in Case no. 345/40/2022, for a preliminary ruling and, as a result, establishes that:

In interpreting and applying the provisions of Article 82 para. (1), by reference to Art. 79 para. (1) lit. c) and Art. 65 para. (1) of Law No 263/2010 on the unified public pension system, as subsequently amended and supplemented, the existence of a right of option between invalidity pension and partial early retirement pension at the date of fulfilment of the conditions laid down by law for the latter category of pension is not excluded.

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

Returned in public hearing, today, 27 March 2023.

Judgment 26 in Case 207/1/2023

 The Panel denies as inadmissible the request brought by the Tribunal of Alba – First Civil Chamber, in Case no. 6277/176/2020, for a preliminary ruling for the clarification of the following point of law:

How to interpret the provisions of Art. 27 para. (23) of the Land Law No 18/1991, republished, as subsequently amended and supplemented.

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

Returned in public hearing, today, 27 March 2023.

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

High Court of Cassation and Justice

 PRESS RELEASE

In its session of 20 March 2023, the High Court of Cassation and Justice- Panel for the Clarification of Certain Points of Law in Civil Matters, lawfully established in the case, considered a request for a preliminary ruling for the clarification of certain points of law, and returned the following Judgment:

Judgment 20 in Case 1713/1/2022

 

The Panel sustains the request brought by the Court of Appeal of Iaşi – Administrative and Tax Litigation Chamber, by judgement of 30 June 2022, in Case no. 4.838/99/2020, for a preliminary ruling.

In interpreting and applying Art. 281 para. (2) of Law no. 207/2015 on the Code of Tax Procedure, as amended and supplemented, by reference to the provisions of Art. 8 para. (1) final sentence of the Administrative Litigation Act No. 554/2004, as amended and supplemented, the grounds of illegality invoked in the application for annulment of the decision on the complaint and the administrative tax acts to which it refers are not limited to those invoked in the administrative complaint.

In interpreting and applying Article 266 para. (41) of Law No. 207/2015 on the Code of Tax Procedure, as amended, the cancellation of the tax liability owed by the self-employed natural person debtor, as a result of the debtor’s removal from the register in which he was registered according to the law, does not prevent the natural person from taking over the tax liability under the terms of Art. 23 para. (3) and (4) of the Tax Procedure Code.

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

Returned in public hearing, today, 20 March  2023.

 

 

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

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.

High Court of Cassation and Justice

 PRESS RELEASE

In its session of 20 February 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 two requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

 

Judgment 11 in Case 2423/1/2022

 The Panel sustains the joined requests brought by the Court of Appeal of Craiova – Labour and Social Security Litigation Chamber, in Case no. 1733/109/2021, for a preliminary ruling and, as a result, establishes that:

In interpreting and applying the provisions of Article 82 para. (2), Art. 86 para. (1) of Law No 303/2004 on the status of judges and prosecutors, republished, as subsequently amended and supplemented, with reference to the provisions of Article 49 para. (1) letter (c) of Law No 263/2010 on the unified public pension system, as amended and supplemented, Art. 1 and Art. 3 para. (3) of Law No 46/1996 on the training of the population for defence, as subsequently amended and supplemented, the period during which, after appointment to the judiciary, the judge or prosecutor has completed the compulsory military service shall constitute seniority in the judiciary.

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

Returned in public hearing, today, 20 February 2023.

 

Judgment 12 in Case 2660/1/2022

The Panel denies as inadmissible the request brought by the Court of Appeal of Timişoara – Labour and Social Security Litigation Chamber, in Case no. 5409/30/2021* for a preliminary ruling for the clarification of the following point of law:

In interpreting the provisions of Article 7 of Government Emergency Ordinance No 158/2005 on social health insurance leave and allowances, approved with amendments and additions by Law No 399/2006, as subsequently amended and supplemented, the entitlement to the rights provided for in Article 2 para. (1) letter (c) of Government Emergency Ordinance No 158/2005 – payment of maternity benefits – is conditional on completion of the minimum period of insurance for the grant of those rights – six months completed in the 12 months preceding the month in respect of which the sick leave is granted – on the date of issue of the initial sick leave (date of birth), or are those benefits also granted to the extent that those six months are completed after the date of birth, but within the period of 126 days of sick leave for pregnancy and childbirth and, if so, from what point in time?

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

Returned in public hearing, today, 20 February 2023.

 

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

High Court of Cassation and Justice

 PRESS RELEASE

In its session of 30 January 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 3 in Case 2219/1/2022

 The Panel sustains the request brought by the Court of Appeal of Suceava – First Civil Chamber in Case no. 3244/86/2021, for a preliminary ruling and, as a result, establishes that:

The provisions of Article IX para. (1) of Government Emergency Ordinance No. 59/2017 on amending and supplementing certain acts in the field of service pensions shall apply also to the service pensions of the auditors within the Court of Accounts.

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

Returned in public hearing, today, 30 January 2023.

Judgment 4 in Case 2287/1/2022

 The Panel sustains the request brought by the Tribunal of Arad – III Administrative Jurisdiction, Tax, Labour and Social Security Chamber, in Case no. 1572/108/2022, for a preliminary ruling and, as a result, establishes that:

In interpreting and applying the provisions of Art. 5 para. (6) of Decree-Law No 118/1990 on the granting of certain rights to persons persecuted for political reasons by the dictatorship established from 6 March 1945, as well as to those deported abroad or taken prisoner, republished in the Official Gazette of Romania, Part I, No 1208 of 10 December 2020, as subsequently amended and supplemented, the adopted child with the effects of natural filiation by other persons is not excluded, for this reason, from the benefit of the rights requested, in view of the political persecution of his biological parent.

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

Returned in public hearing, today, 30 January 2023.

Judgment 5 in Case 2155/1/2022

The Panel denies as inadmissible the request brought by the Tribunal of Bucharest – IV Civil Chamber, in Case no. 16927/4/2017*, for a preliminary ruling for the clarification of the following point of law:

“If the provisions of Article 262 para. (4) of Law no. 207/2015 on the Code of Tax Procedure, as amended, derogate from the common law represented by Art. 724 of the Code of Civil Procedure, as regards the method of restoring the previous situation in the event that the foreclosed assets has been valorised, i.e. if, according to Art. 262 para. (4) of Law no. 207/2015 on the Code of Tax Procedure, as subsequently amended and supplemented, in tax matters, the method of restoring the previous situation in the event that the foreclosed assets have been valorised can be done only by the restitution by the person entitled of the amount due to him from the valorisation of the assets”.

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

Returned in public hearing, today, 30 January 2023.

Judgment 6 in Case 2350/1/2022

The Panel denies as inadmissible the request brought by the Tribunal of Giurgiu – Civil Chamber, in Case no. 5434/236/2020*, for a preliminary ruling for the clarification of the following point of law:

– Decision No 7 of 15 April 2013 of the High Court of Cassation and Justice – the Panel for Appeal in the Interest of the Law on the interpretation and application of Article 460 para. (1) of the Code of Civil Procedure of 1865 remains applicable also under the provisions of Article 790 para. (1) of the Code of Civil Procedure?

– Failure by the creditor or the bailiff to submit an application for validation of the attachment within the time-limit laid down in Article 790 para. (1) of the Code of Civil Procedure of one month from the date on which the third party debtor was due to deposit or pay the sum sought, entail the penalty of forfeiture of the right of the bailiff to issue a new writ of attachment in the same enforcement proceedings in respect of the same garnishee and the same claim?

– If the answer to the second question is in the negative, does the issuing by the bailiff of a new writ of attachment, in the same enforcement proceedings and in respect of the same garnishee and the same claim, after the expiry of the time-limit within which he could obtain the validation of the attachment previously ordered, have the effect of causing a new time-limit of one month to run within which to obtain the validation of the attachment subsequently established, or does it have the effect of restoring the time-limit for obtaining the validation of the first attachment?

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

Returned in public hearing, today, 30 January 2023.

Judgment 7 in Case 2295/1/2022

The Panel denies as inadmissible the request brought by the Tribunal of Timiş– Second Civil Chamber, in Case no. 15737/325/2021, for a preliminary ruling for the clarification of the following point of law:

In interpreting and applying the provisions of Article 25 letter (b) of Law No 132/2017 on compulsory insurance for motor civil liability for damage caused to third parties by accidents involving vehicles and trams, as subsequently amended and supplemented, Article 2.528, Article 1.597 and Article 1.394 of the Civil Code, in the event of an action for recourse by the insurer against the person responsible for the accident, based on the provisions of Article 25 para. (b) of Law No 132/2017, is the extension of the limitation period provided for in Article 1.394 of the Civil Code applicable?

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

Returned in public hearing, today, 30 January 2023.

 

Judgment 8 in Case 2069/1/2022

The Panel denies as inadmissible the request brought by the Tribunal of Timiş– First Civil Chamber, in Case no. 25826/325/2018, for a preliminary ruling for the clarification of the following point of law:

If, in the land register regions where the provisions of Decree-Law No. 115/1938 on the unification of the provisions concerning land registers, as subsequently amended, have been applied, in the case of a property entered in the land register under the same act and before the entry into force of the Law on Cadastre and Real Estate Publication No. 7/1996, republished, with subsequent amendments and additions, the owner may apply to the court to change the surface area of the property in accordance with the provisions of Article 914 of the Civil Code or if this change of surface area can be obtained only after going through the procedure provided for in Article 41 of Law No. 7/1996.

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

Returned in public hearing, today, 30 January 2023.

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

High Court of Cassation and Justice

 PRESS RELEASE

 

In its session of 16 January 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 two requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

 

Judgment 1 in Case 2149/1/2022

 

The Panel sustains the request brought by the High Court of Cassation and Justice – First Civil Chamber, in Case no. 5.637/105/2019, and, as a result, establishes that:

In interpreting and applying the provisions of Article 539 of the Code of Criminal Procedure, in view of the effects of the Decision No 136 of 3 March 2021 of the Constitutional Court, in the event of deprivation of liberty during a criminal trial concluded by a final acquittal, without the illegality of the deprivation of liberty having been established in accordance with the Decision of the High Court of Cassation and Justice – the Panel for Appeal in the Interest of the Law No 15 of 18 September 2017, the acquittal, according to Article 16 para. (1) lit. a)-d) of the Code of Criminal Procedure, is sufficient in itself for the award of compensation to the person deprived of liberty and subsequently acquitted.

In this context, the “unjust/unlawful nature of the deprivation of liberty measures” and the “unreasonableness of the criminal charge” constitute autonomous criteria which entitle the person concerned to compensation and extend the scope of the provisions of Article 539 of the Code of Criminal Procedure.

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

Returned in public hearing, today, 16 January 2023.

 

Judgment 2 in Case 1971/1/2022

 

The Panel sustains the request brought by the Tribunal of Bucharest – V Civil Chamber, by judgement of 12 June 2022, in Case no. 19.409/299/2022, and in interpreting the provisions of Article 24 para. (1)-(3) and (4) of the Administrative Litigation Law no. 554/2004, as subsequently amended, establishes that:

The provisions of Article 24 para. (1)-(3) of Law No 554/2004, as subsequently amended and supplemented, must be interpreted as meaning that the procedure for the enforcement of a final judgment of an administrative court is applicable even where the obligation laid down in that judgment is the adoption of a unilateral administrative act of an individual nature.

The provisions of Article 24 para. (3) and (4) of Law No 554/2004 must be interpreted as meaning that the procedure for fixing the final amount due to the creditor by way of penalties is applicable even where, in the enforceable title, the court has established penalties applicable to the party obliged, for each day of delay, pursuant to Article 18 para. (5) of Law 554/2004.

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

Returned in public hearing, today, 16 January 2023.

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

High Court of Cassation and Justice

 PRESS RELEASE

In its session of 5 December 2022, 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 three requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

Judgment 79 in Case 2059/1/2022

 

The Panel sustains the request brought by the High Court of Cassation and Justice – First Civil Chamber in Case no. 16667/3/2019*, for a preliminary ruling and, as a result, establishes that:

In interpreting the provisions of Article 497 of the Code of Civil Procedure, as amended by Law no. 310/2018 amending and supplementing Law no. 134/2010 on the Code of Civil Procedure, as well as amending and supplementing other normative acts, in conjunction with the provisions of Article 492 para. (1), art. 498 and art. 501 para. (3) and (4) of the Code of Civil Procedure, if the recourse is sustained in the second round of proceedings and the contested decision is anulled, the High Court of Cassation and Justice will only hold the case for trial on the merits when it would not be in a position to analyse the factual situation by reclassifying the facts or by supplementing or re-administering the evidence, otherwise the case will be sent back to the Court of Appeal or, as the case may be, to the first instance.

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

Returned in public hearing, today, 5 December 2022.

Judgment 80 in Case 2112/1/2022

 

The Panel sustains the request brought by Court of Appeal of Iaşi – Labour and Social Security Litigation Chamber, in Case no. 643/99/2021, for a preliminary ruling and, as a result, establishes that:

In interpreting Art. 731 para. (13) of Law no. 7/2006 on the status of parliamentary civil servants, republished, as amended, the provision referring in the text to the provisions of Articles 83-92 of Law no. 263/2010 on the unitary system of public pensions, as amended, covers all the legal conditions for the establishment of the survivor’s pension, including the method of determining its amount – as a percentage of the average annual score achieved by the supporter, related to the pension provided for in para. (1) of Article 89 of Law No. 263/2010 on the unified public pension system, as amended.

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

Returned in public hearing, today, 5 December 2022.

Judgment 81 in Case 1945/1/2022

 

The Panel denies as inadmissible the request brought by the Specialised Tribunal of Mureş, in Case no. 3327/320/2021, for a preliminary ruling for the clarification of the following point of law:

  1. How can the court’s obligation “to apply as a matter of priority – the solution of adaptation of the contract” – established in the light of the provisions of Article 3 together with those of Article 4 para. (4) of Law no. 77 of 28 April 2016, published in the Official Gazette of Romania, Part I, no. 330 of 28 April 2016 – as amended by Law no. 52 of 13 May 2020, published in the Official Gazette of Romania, Part I, no. 386 of 13 May 2020, by the recital in paragraph 48 of Decision no. 432 of 17 June 2021 of the Constitutional Court of Romania, published in the Official Gazette of Romania, Part I, no. 905 of 21 September 2021 – with the possibility for the consumer to claim the adjustment of a credit agreement concluded with a professional when that credit agreement has previously been declared to be due in advance, the claim thus arising – represented by the obligation to repay the entire credit, together with the interest on the agreement and other charges – being pursued in the context of enforcement proceedings for the pursuit of the mortgaged property (dwelling), without it being valued?
  2. In the same circumstances, what would be the objective criteria for identifying the “social utility of the continued performance of the contract”, which seems to be enshrined as a principle by the Constitutional Court of Romania in the decision mentioned above?

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

Returned in public hearing, today, 5 December 2022.

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

High Court of Cassation and Justice

 PRESS RELEASE

 

In its session of 14 November 2022, 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 three requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:

Judgment 75 in Case 593/1/2022

 

The Panel sustains the request brought by the Tribunal of Dolj – Administrative and Tax Litigation Chamber in Case no. 7578/63/2021, for a preliminary ruling and in interpreting and applying the provisions of Art. 154 para. (1), (6) and (6)1, Art. 163 para. (5), Art. 164 par. (4) and Article 175 para. (1) of the Code of Civil Procedure, establishes that:

Carrying out the summons procedure, in accordance with the provisions of Article 154 para. (6) of the Code of Civil Procedure, if the party has requested and indicated the appropriate dates for this purpose, constitutes a principal means of service of procedural documents, without being conditional on the procedure being conducted in letter form in accordance with the provisions of Art. 154 para. (1) of the same act.

The act of summoning the party to the proceedings, in a manner other than that invoked by the application to the court, is void under the provisions of Article 175 para. (1) of the Code of Civil Procedure if, by failing to comply with the method of service of the procedural document, the party has suffered damage which can only be remedied by its annulment, without being subject to the use of the procedure of false registration, pursuant to Article 163 para. (5) and Art. 164 para. (4) of the Code of Civil Procedure.

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

Returned in public hearing, today, 14 November 2022.

Judgment 76 in Case 1818/1/2022

 

The Panel denies as inadmissible the request brought by the Tribunal of Bucharest – IV Civil Chamber, in Case no. 21478/299/2020, for a preliminary ruling for the clarification of the following point of law:

“If, in interpreting the provisions of Article 781 para. (5) letter (c) of the Code of Civil Procedure, the notion of sums relating to the payment of future salary entitlements refers to those sums whose purpose is unequivocally established in this way before or at the latest at the time of the establishment of the attachment (for example, by describing the account as being intended for the payment of salary entitlements) or whether this particular purpose can be assessed by the garnishee subsequently on the basis of a request made by the debtor for the release of sums for the payment of salary entitlements.

If, in interpreting the provisions of Article 781 para. (5) letter (c) in conjunction with Art. 784 para. (1) last sentence of the Code of Civil Procedure, after the attachment by the garnishee of sums held in an account of the debtor, the garnishee may, at the request of the debtor, release sums of money requested by the latter for the payment of salary rights.”

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

Returned in public hearing, today, 14 November 2022.

 

Judgment 77 in Case 1909/1/2022

 

The Panel denies as inadmissible the request brought by the Court of Appeal of Bacău – I Civil Chamber, in Case no. 3413/110/2019, for a preliminary ruling for the clarification of the following point of law:

“Art. 28 para. (1) letter o) of Law No. 223/2015 on State Military Pensions, as amended and supplemented, be interpreted as excluding from the basis for calculating the military pension the TBC/HIV bonus granted on a permanent basis to the former employee?”.

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

Returned in public hearing, today, 14 November 2022.

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

 

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