Member Article

Pursuant to Decree no. 195/March 16^th, 2020, published in the Official Gazette of Romania no. 212/March 16^th, 2020, the President of Romania instated a state of emergency on the entire territory of Romania, for a period of 30 days, starting from March 16^th, 2020.

Considering the special nature of the Decree instating the state of emergency, it addresses, with the observance of the rules set forth in Ordinance 1/1999 regarding the regime of the state of siege and the regime of the state of emergency, the restriction of the exercise of certain rights with the legitimate purpose of limiting the massive spread of the coronavirus SARS-CoV-2 and of protecting the life and health of the Romanian citizens.

While the general concern is that this critical period is successfully overcome, one of the most frequent questions in the legal field is related to the regime of limitation periods, as are established both by the substantive and the procedural law, during the state of emergency.

In this respect, Chapter V of Presidential Decree no. 195/March 16^th, 2020, called “The Field of Justice”expressly regulates the legal regime of limitation periods and of the time-limits after which the right to exercise an action is lost.

Pursuant to Art. 41 of the Decree:

”The limitation periods and time-limits after which the right to exercise an action is lost will not start running, and, if they have already started running, they will be suspended throughout the duration of the state of emergency instated in accordance with this decree, and the provisions of Art. 2.532 item 9 IInd tenet of Law 287/2009 on the Civil Code or other legal provisions setting forth the contrary will no longer apply.”

Consequently, the limitation periods and time-limits after which the right to exercise an action is lost, both in accordance with the substantive and the procedural law, will not start running until the date of expiration of the state of emergency instated pursuant to Decree no. 195/2020.

Limitation periods that are already running will be suspended pursuant to Art. 41 of the Decree starting from March 16^th, 2020.

Thus, the provisions of Art. 2532 item 9 IInd thesis of the Civil Code, according to which:

“(…) when temporary, force majeure does not constitute a cause to suspend the term of the statute of limitations unless this occurs in the last 6 months preceding the expiration of the limitation period”

become inapplicable.

All the provisions of the special laws according to which, in case of a state of emergency or force majeure, the limitation periods or the terms after which the right to exercise an action is lost will continue to run (will start running for those that have not started running yet, and will not be suspended for those the term of which is already running), will also become inapplicable.

The preceding reference to force majeure is determined by the very manner in which the President of Romania chose to regulate its regime, excluding the application of the provisions regulating the special case of force majeure, i.e. Art. 2532 item 9 of the Civil Code, regulating the suspension of the limitation period in case of entities that are prevented by a case of temporary force majeure from interrupting their activities.

Given that Decree no. 195/2020 does not contain any norms carving out exceptions in this respect, the provisions regulating the suspension of the limitation period will continue to be applicable, in accordance with Art. 2534 – 2535 Civil Code concerning the effects of suspension of the limitation period, the benefits of suspending the limitation period and the extension of the suspension effect:

• The limitation period will start running again from the date on which the state of emergency has ceased.
  
  
• When calculating the limitation period, it is also necessary to take into consideration the period lapsed before the date on which the state of emergency was instated, i.e. the period up to March 16, 2020.
  
  
• However, claims will not be deemed time-barred before the expiration of a 6 months’ time-limit starting from the date on which the state of emergency – the cause for suspension – has ceased, except for limitation periods of 6 months or shorter than this, which will only lapse after the expiration of a term of one month from the date on which the state of emergency has ceased.
  
  
• Suspension may be invoked only by the party that was prevented from interrupting its activity, by the entity against which the limitation period is running, unless otherwise provided by the law – and this Decree does not set forth otherwise.
  
  
• The suspension operating in relation to a main debtor or a fidejussor will produce effects for both.
  
  

With respect to the time-limits after which the right to exercise an action is lost, the provisions of Art. 41 of the Decree constitute special norms derogating from the general framework provided by Art t. 2548 para. (1) of the Civil Code, according to which:

“The time-limit after which the right to exercise an action is lost are not subject to suspension or interruption, unless otherwise provided by the law.”

Article 41 of the Decree does not derogate from the provisions of Art. 2548 para. (2) of the Civil Code, according to which force majeure events impair, in all cases, the running of the period, and if the period has already started to run, it will be suspended, and Article para. (1) of the Civil Code will apply accordingly.

With respect to the term after which the right to exercise an action is lost, this should be deemed as having lapsed only after 5 days from the date when suspension has ceased.

Therefore, for the terms after which the right to exercise a legal action is lost, given that Art. 2548 para. (2) of the Civil Code does not constitute contrary legal provisions, these should not be deemed as having lapsed on the first day after the cessation of the state of emergency, but only starting from the fifth day from the cessation of the state of emergency instated by the President of Romania, on March 16, 2020.

We point out that, pursuant to Art. 205 of Law 71/2011 for the application of the Civil Code, the provisions of Art. 2548 para. (1) and (2) of the Civil Code will apply only to the time-limits after which the right to exercise a legal action is lost that started to run after the entry into force of the Civil Code.

On the other hand, during the state of emergency, the adjudication activity will continue only with respect to the particularly urgent cases established as such by the Management Council of the Supreme Court and by the Management Councils of the Courts of Appeals.

The adjudication of the other civil cases will be suspended by full operation of the law (ex officio) throughout the state of emergency period, without it being necessary to draft a procedural document by which the suspension is ordered, as per Art. 42 para. (6) of the Decree.

The adjudication of non-urgent civil cases will be resumed ex-officio, and within 10 days from the date of cessation of the state of emergency, the courts will take the appropriate measures to set the hearing dates and summon the parties.

For the procedural periods for exercising the means of challenge, in civil cases that are not particularly urgent and the adjudication of which is suspended by operation of law during the state of emergency, Art. 42 para. (7) of the Decree provides as follows:

“The periods for exercising the means of challenge in the cases provided in para. (6), that are pending when this state of emergency is established, will be interrupted, and new periods, having the same duration, will run from the date when the state of emergency ceases. In the cases provided in para. (6) where means of challenge have been declared until the date of issuance of this decree, the cases will be submitted to the competent court after the cessation of the state of emergency.”

Furthermore, during the state of emergency, the legal periods established for the resolution of the requests filed in the exercise of free access to public interest information, as well as of the petitions, will be doubled, in accordance with Art. 56 of the Decree.

In conclusion, the regime of limitation periods during the state of emergency is one that was expected, as the suspension of all periods is intended to protect the rights and interests of persons forced to limit their activities in order to support the Romanian State in its attempt to limit the impact of the coronavirus SARS-CoV-2.