Whilst we have all heard about the recent amendments to the procedure governing the civil trial in Romania, it is important to emphasise those changes that might impact the very next court hearings in pending litigation cases.
Many legal procedures associated with modern civil trials have developed over the past years. Law no. 310/2018, amending and supplementing the Romanian Civil Procedure Code, aims to correlate the legal provisions with recent decisions of the Constitutional Court of Romania and to simplify the court procedure.
Here is what one can expect:
- Deadlines for filing procedural documents: the last day, the last hour
Motions of the parties may be submitted with the court by fax or e-mail in the last hour of the last day of the procedural term. These shall be considered to be lawfully filed, as opposed to the previous regulation, which accepted as valid only those fax or e-mail communications made during the court’s business hours. As such, a procedural document is considered to be filed with the court at the date of its receipt, as such date was recorded by the court’s fax or e-mail account.
Also, summons and other procedural documents communicated by the court by fax or e-mail are considered to be duly communicated at the time of receipt of a message from the recipient’s system, attesting the delivery. Said message will be printed and attached to the case file, the procedure being deemed as fulfilled on the date shown on the printed copy of the dispatch, certified by the clerk who made the transmission.
Thus, the procedure was thoroughly simplified by eliminating (i) the court’s obligation to use registered mail and also (ii) the need for a form to confirm receipt in the case of communication of procedural documents by fax or e-mail. Instead, each court will obtain an electronic extended signature, which will replace the stamp of the court and the signature of the court clerk.
- Less formal conditions for court motions: increase of the court’s role
The new law limits the cases in which the court may order the annulment of a motion. Specifically, failure of the claimant to explain the legal grounds of the claim or to show the evidence on which each count of the claim is based is no longer sanctioned with nullity of the motion.
Likewise, the law expressly states that the claimant cannot be compelled to include in the motion data or information that is not available at the time of the request and that can only be obtained through the court’s agency. In practical terms, this means that (a) the claimant can no longer be sanctioned for such omissions and that (ii) court’s assistance may be sought in order to gather said data or information.
The notions of “data or information” includes such basic information as the name, address and/or contact information of the defendant(s).
These provisions will prove to be especially useful in those trials where, due to various circumstances concerning the claimant (such as being headquartered in a different jurisdiction) or due to the object and complexity of the case (multiple or unknown defendants, multiple counts of claim, etc.), not all necessary information is available to the claimant.
- Recording of the witness statement: the exact words spoken by the witness
Maybe the most notable amendment refers to the way the witness statements are to be recorded in court. Whilst before the entering into force of Law 310/2018, the witness was heard in court but his or her statements were paraphrased by the judge and recorded in a written statement that was attached to the minutes of the hearing, the new law imposes the clerk to record the exact words spoken by the witness.
The amendment comes as a guarantee of the civil trial, as it is supposed to prevent any alteration, even accidental, of the witness statement.
Such procedural rule will imply some practical challenges for the clerk who will have to record the witness statement word by word, in real time. This will certainly lead to the necessity of specialised transcript skills and software.
- Possibility to suspend the trial: preliminary ruling filed with ECJ in a similar case
Law no. 310/2018 also introduced a new case of optional suspension of the trial, which refers to the possibility of the civil court to suspend the trial when a request for a preliminary ruling was sent to the Court of Justice of the European Union (ECJ) in a similar case.
Thus, it comes to the judge to determine whether the request referred to ECJ has an impact to the pending case and consequently to suspend the trial until the Court of Justice issues a judgment on the preliminary ruling.
As the number of the preliminary ruling requests referred by Romanian courts has significantly increased in the last few years, with this change, the chances that a civil court renders a decision contrary to a mandatory interpretation provided by ECJ will be reduced.
- Release of the court decision: maximum 90-day term
Among the amendments aimed at speeding up the trial is the one referring to the court’s obligation to draft the decision within 30 days from the ruling, with the possibility to extend this term only twice.
It follows that, in theory, all parties of a civil trial could reasonably expect to be in possession of the drafted decision in a maximum 90-day term, starting to run form the day such decision was rendered.
In practice, however, this might not be the case, given that, as was the case with the previous regulation, the law does not provide a sanction in case the aforementioned term is not complied with by the court.
- Errors in court decisions: the parties’ right to appeal is not affected
There are situation in which the term for filing appeal is erroneously mentioned in the court decision.
Under the previous version of the Civil Procedure Code, when a person submitted an appeal outside the term provided by the law, by relying on the erroneous mention of the appeal term within the court decision, the general view of the courts was that the appeal was null and void.
However, the new version of the Civil Procedure Code provides that the appellant who filed the appeal without observing the legal term for appeal, while relying on the erroneous term mentioned within the decision, is automatically reinstated in the term for submitting the appeal.
This amendment is a major change, as it shifted the responsibility for the error from the person, who may not have legal knowledge, to the judicial system.
- Opposition to enforcement: cases in which the arguments on the merits are not allowed
In case of writs of execution other than court or arbitral awards, the former procedural rules allowed the debtor to bring arguments in defence on the very merits of the case even during the enforcement phase, by means of an opposition to enforcement. Under Romanian law, such writs of execution included, for example, banking contracts, promissory notes or notarial deeds.
This possibility to defend on the merits even in an opposition trial, applied to the cases in which there was no other “special path” provided by a special legal provision for annulling the very writ of execution.
The new version of the law expressly clarified that “special path” shall refer also to a general court action, such as an action for annulment of the contract/deed and not only to special paths for annulment regulated by special laws.
In other words, if there is no special path/procedure for annulment in a special law but the writ of execution may be challenged in a general court procedure, the debtor cannot invoke defences related to the merits at the enforcement stage.
The abovementioned amendments shall apply to all civil trials started after the entry into force of Law no. 310/2018, namely 21st of December 2018, except for the amendment regarding the recording of witness statements, which applies to all trials, including those started before this date.