On 30 May 2017, the Romanian Constitutional Court ("RCC") issued Decision no. 369, declaring the provisions of art. XVIII (2) of Law no. 2/2013 – measures relieving the courts and the implementation of Law no. 134/2010 regarding the Civil Procedure Code ("CPC") unconstitutional. The Decision was published in the Official Gazette no. 582 of 20 July 2017.
The legal provisions that were declared unconstitutional limit the right of parties to initiate a cassation (second) appeal against judgements issued in court cases with a value lower than RON 1,000,000 (approx. EUR 217,000). The RCC ruled that regardless of the value of a court case all parties must have access to such extraordinary remedy.
Due to the RCC's decision, numerous cassation (second) appeals with a lower value have been registered this year on the dockets of the Romanian courts in disputes. As provided by the CPC, all of these appeals have been sent to the High Court of Cassation and Justice ("HCCJ") for resolution.
Due to this unexpected volume of appeals HCCJ attempted to limit their number by interpreting the grounds and effect of the RCC's Decision of 30 May 2017.
As the RCC did not specify exactly which court cases will be affected by its decision, the HCCJ issued Interpretative Decision no. 52 (File no. 866/1/2018) on 18 June 2018, stating that a cassation (second) appeal may only be lodged in court cases with a value lower than RON 1,000,000 (approx. EUR 217,000) and which have been registered and settled by judgements after the RCC's Decision was published in the Official Gazette.
Moreover, HCCJ decided through a unitary case law that the Courts of Appeal are competent to rule on cassation (second) appeals submitted in disputes under the above-mentioned threshold.
The CCR has publicly disagreed with the decisions taken by the HCCJ in interpreting the Decision of 30 May 2017, and has challenged the powers of the Supreme Court to issue such interpretative decisions. Some parties affected by the limitations established by the HCCJ have already raised this issue and submitted applications for unconstitutionality to the RCC.
On 29 May 2018, the Romanian Parliament first circulated the draft law to amend the CPC to reflect the RCC's Decision of 30 May 2017. However, the CPC has still not been amended; leaving the uncertainty about the right of parties to initiate a cassation (second) appeal and significantly prolonging the resolution on such an appeal.
On 4 July 2018, the RCC approved the provisions of the draft law and issued a new Decision no. 454, covering the following important aspects:
- the RCC's Decision of 30 May 2017 is mandatory for all disputes and not only for those settled after the publication of this decision;
- the HCCJ is not allowed to establish/interpret the effects of decision issued by the CCR;
- under the current regulations of the CPC, the HCCJ is competent to rule on all cassation (second) appeals.
However, the CCR has not established a remedy for parties that have already been affected by the interpretation made by the HCCJ.
Therefore, there is still conflicting case law of the HCCJ and the CCR that has led to confusion due to the lack of a common point of view regarding the right to lodge a cassation (second) appeal. Parties have been affected by this situation and the only certainty can now be brought by the Romanian Parliament with an amendment to the CPC that will clarify both conflicting aspects and will be mandatory for all courts of law.
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