1. Enforcement in civil and commercial matters
The provisions regarding enforcement in civil and commercial matters are contained in articles 372-580 of Romania’s Code of Civil Procedure.
Under the Romanian legal system, the enforcement represents the second stage in civil or commercial proceedings, and its main objective is to ensure effective and efficient recognition of rights conferred by a court decision or out-of-court settlement. As a result, the enforcement procedure enables the holder of a right established by a judiciary or non-judiciary decision to oblige the (natural or legal) person that infringed the right to comply with it and restore the rule of law with the support of the competent state authorities.
The Romanian Code of Civil Procedure provides a list of direct and indirect enforcement measures.
The following methods of enforcement qualify as direct if they concern the object of the obligation to be enforced:
enforced consignment of movable assets, enforced consignment of fixed assets – art. 572-5801
the enforcement of an obligation to do something or refrain from doing something – art. 5802 – 5805 of the Code of Civil Procedure and art. 1073, 1075-1077 of the Civil Code.
Where an obligation to do something is enforced, the law distinguishes between the following methods of enforcement:
1. The obligation may also be fulfilled by a person other than the debtor. In this situation, the creditor is entitled to ask the debtor to remove the source of the infringement of the creditor’s rights or he/she may ask the court for the permission to remove the cause himself/herself at the debtor’s expense. The same rule applies in the case of the “obligation to act”.
2. personal obligations can be met by the debtor only; in this case, direct enforcement is carried out by indirect constraint which has an effect on the debtor’s assets: obligation to pay civil fees and/or damages. – section 5803 Code of Civil Procedure.
Indirect enforcement refers to the means of obtaining the amount of money that is the object of the enforcement by enforcing the sale of the debtor’s movable or fixed assets.
2.1. The procedure
The Romanian law system acknowledges both judiciary as well as non-judiciary decisions as being enforceable. Thus, there are many types of legal decisions including authentic documents issued by the public notaries and also checks, bank orders, fines, etc.
There are three conditions for such an authorization: the decision must be binding and enforceable, and the amount established by the court must be certain (determined or determinable), in cash and due.
Usually, the first court has jurisdiction, the court which usually issues the decision.
The legal status, the role, the powers and the responsibilities of officers of the court are set out in detail in the special normative Act No 188/2000 on officers of the court, as subsequently amended and supplemented.
Applications for enforcement may be submitted either by the interested party, or by his/her legal representative. There are no mandatory provisions on this matter.
2.2. Substantive conditions
What are the criteria used by the court of law for granting an enforcement measure?
Under section 3711(3) CCP it is not the court, but the creditor who decides upon the form of enforcement: “Enforcement may take any of the forms provided for by law. Measures shall be conducted simultaneously or successively until the achievement of the recognized right, payment of interests, penalties or other amounts, accorded by law, payment of the cost of enforcement, have been enforced”.
Section 3714 CCP stipulates that, during the entire enforcement proceedings, the creditor and the debtor may agree under the supervision of the execution body that claims should be enforced, in part or in full, only against the financial income of the debtor, that the sale of assets that are subject to the proceedings should be carried out by mutual agreement or that the payment of the debt should be carried out in an alternative way under the law.
There are three conditions for such an authorization: the decision must be binding and final, and the amount established by court decision must be certain, payable and due.
Where a decision has been taken by another court from another state, a supplementary procedure must be used, i.e. a decision that recognizes and authorizes the action, either under regulation 105/1992 or regulation 187/2003 on the recognition and enforcement of the decisions of the Member States of the European Union.
Section 3713 CCP: “The debtor’s income and assets may be subject to enforcement measures if, under the law, they may be attached, but only to the extent needed for the enforcement of the creditors’ rights.
Assets subjected to a special regime of circulation may be attached only in accordance with the conditions laid down by law.”
As far as the debtor is concerned, there is a special condition that stipulates that no executory procedure may be enforced unless the debtor is duly cited. There are also other specific provisions regarding the debtor, such as the ones regarding under age or adult debtors declared incapable of managing their own affairs against whom the initiation of enforcement measures is impossible unless he or she has a guardian.
3. Object and nature of enforcement measures
3.1. Types of assets may be subject to enforcement
· Bank accounts
· Tangible movable assets
· Registered means of transport
· Immovable property
Types of goods or monetary claims that are not subject to enforcement measures
There are certain assets and properties that are not subject to enforcement measures. With regard to the movable assets, section 406 of the Romanian Code of Civil Procedure identifies all the items and assets in a household that are absolutely necessary for the debtor and to the debtor’s family, including religious objects, the foodstuffs and groceries needed to maintain the debtor and to the debtor’s family for a two month period and items used by the debtor and the debtor’s family for heating for a three month period in winter.
Moreover, the debtor’s salary or pension may be subject to enforcement but only to a certain extent, namely half of his or her net monthly salary in the case of maintenance claims and up to one third of his or her net monthly salary in the case of other types of claims.
Moreover, there is a category of income that is completely exempt from enforcement: assistance given in case of death or pregnancy, for women immediately after pregnancy, for persons caring for a sick child, daily allowances, any other special allowances, and academic scholarships.
3.2. Effects of enforcement measures?
When the debtor fails to comply with the measure is the disposal of his or her asset still valid?, can he or she be subject to sanctions?
The second subsection of section 1082 of the Code of Civil Procedure states that:
“The failure of any person to observe the rules regarding standard enforcement procedures shall be punished by the president of the enforcing court, at the claimant’s request, with a fine of LEI 50 to 500.
The nature of the infringement will also be established when the penalty is imposed.”
At the same time, under the Criminal Code it is an offence to impede enforcement of a court decision.
Vis‑à‑vis third parties:
What are the bank’s obligations regarding the disclosure of information and attachment of accounts?
Under subsections 2-4 of section 3732 of the Code of Civil Procedure “At the request of the court of enforcement or the officer of the court, persons owing a sum of money to the debtor or in possession of some of his/her assets that are the subject of judicial enforcement proceedings shall provide the information necessary for the purposes of enforcement.
Moreover, at the request of the court of enforcement or the officer of the court, institutions, banks and any other persons shall notify, in writing, the data and information necessary for the purposes of enforcement, even if special laws provide otherwise. At the request of the officer of the court or of the interested party, the court of enforcement may take the measures set out in section 108^1(1)(2)(f) and section 108^3.
The court of enforcement and the officer of the court shall ensure that the received information is treated confidentially unless the law stipulates otherwise.”
At the request of the officer of the court or of the interested party, the execution court may take the measures stipulated in section 108^1(1)(2)(f) and section 108^3. Fines may also be imposed and enforced.
4. Appeal against enforcement
Appeal can be made:
1. against the acts of enforcement themselves
2. against the writ of execution – i.e. of the scope or implementation of execution.
Any interested person can contest this decision – so, first and foremost, the debtor.
The competent court with which such an appeal should be lodged is the court of enforcement (usually the court of first instance under the second indent of section 373 of the Code of Civil Procedure in case a); The court that pronounced the final awarding decision in the case of b).
5. Appealing against the decision
Section 401 of the Code of Civil Procedure
An appeal may be lodged within 15 days from the date on which:
1. the appellant has knowledge of the enforcement order he/she contests or the refusal to comply with an enforcement order;
2. the interested party has received, depending on the case, the communication or notification regarding the initiation of the attachment. If regular income is attached, the period allowed for an appeal by the debtor starts no later than the date on which the first sum is attached from this income by the third party;
3. the debtor who contests the enforcement received the writ or on the date when he/she acknowledged the first enforcement decision, in cases where he/she did not receive the writ or the order is enforced without a summons.
Appeals regarding explanations of the meaning, of the scope or the application of the writ of execution may be lodged at anytime within the time limit for requesting enforcement.
Appeals involving a third party claims to ownership or other real rights over the asset subject to enforcement may be lodged within 15 days of completion of the sale or the date of the enforced consignment of the asset.
Failure to appeal within the deadline stipulated in the second indent does not impede the third party from exercising his/her right by means of a separate request lodged, in accordance with the law.
The effect of such an appeal
Section 404 of the Code of Civil Procedure:
(1) If the court allows the appeal against enforcement, depending on the case, it will either rescind the writ of execution or order its amendment, annulment or the cessation of enforcement, the annulment or explanation of the writ of execution or the implementation of the enforcement order whose performance was refused.(2) Where an appeal is rejected, the appellant may be obliged, on request, to pay damages for the loss incurred as a result of the delay in enforcement, and, if the appeal was lodged in bad faith, he/she shall be required to pay a fine (…).
(11) Where the executor’s refusal to start or to carry out enforcement is deemed unjustified, if the deed is not a criminal offence, the court of enforcement notified under section 399, will be able to fine the executor (…), and, at the request of the interested party, to impose damages for the injury so incurred.