Member Article

We have already entered a state of emergency pursuant to the Decree issued by the President of Romania imposing a state of emergency on the territory of Romania, published in the Official Gazette Part I no. 212 on March 16th, 2020 (the “Decree”), and we can already see the changes and reactions triggered by this situation.

The state of emergency proclaimed for a period of 30 days starting from March 16th, 2020 has a far-reaching impact in all domains. This analysis aims to address an issue that is essential and of interest to the legal profession, namely the implications of the state of emergency on the adjudication of civil lawsuits.

Insofar as the adjudication activity is concerned, the state of emergency produces two essential effects, one being the rule, and the other one the exception that proves the rule, namely:

a) RULE (the suspensive effect): The suspension by operation of law of the adjudication of civil lawsuits

What does the suspension by operation of law of civil lawsuits entail? The Decree clarifies that no procedural actions need to be taken during the state of emergency.

Decision 257 dated March 17, 2020 of the Superior Council of Magistracy, Judges Division (“SCM Decision”), offers additional practical guidance regarding the suspension by operation of law:

• As regards the manner of implementation, it clarifies that the Ecris application will include a note on the suspension of court proceedings by operation of law by virtue of the Decree, and that no suspension decisions will be drafted for civil lawsuits.
  
  
• As regards the limits of the suspension, it clarifies that the state of emergency suspends the procedure for the verification and amendment of the complaint, and also the scheduling of new hearing dates.
  
  

The SCM Decision equally draws attention to the fact that the judgments drafted in relation to the suspended lawsuits will continue to be served on the parties during this period.

Therefore, as a result of the temporary interruption of court hearings, we can expect to receive in the following period a number of judgments, but the start date of the time period within which appeals may be lodged has been postponed until the termination of the state of emergency.

In other words, even if judgments are served on the parties during the state of emergency, the time period within which parties can file appeals will not begin to run until, and will be calculated only as of, the date of termination of the state of emergency.

The time limits for appeal that started and continued up to the moment the state of emergency was declared will be interrupted, and same new periods will begin to run after the termination of the state of emergency. If during the usual civil proceedings the party filed an appeal before the state of emergency became effective, the cases will be sent to the courts of a higher level in order to adjudicate on the appeal only after the termination of the state of emergency.

b) EXCEPTION (non-suspensive effect): Only particularly urgent cases are heard

The Decree sets forth an expedited process for the adjudication of particularly urgent cases, and courts may set very tight deadlines, and may schedule the hearing on the following day or even on the same day. In the case of the proceedings which are permitted during the state of emergency, it is possible to file a motion to postpone the hearing and the motion may be admitted in justified cases, when the party concerned is under home isolation, under quarantine or in hospital in the context of the COVID-19 pandemic.

In the exceptional cases in which the adjudication activity is allowed during the state of emergency, courts may decide that hearings are to take place by videoconference, and that procedural documents are to be served on the parties by electronic means of communication (fax, email) or by any other means that enable the transmission of the content of the document and acknowledgement of receipt.

What cases fall into the category of particularly urgent cases? The Decree does not clarify as to what makes a case qualify as particularly urgent, and the power to make this qualification is left to the discretion of the management structures of the courts, namely (i) the Management Council of the High Court of Cassation and Justice, for the cases that fall under the purview of this court, and (ii) the management councils of the courts of appeal, for the cases that fall under their purview, and also for the cases that fall under the purview of the courts that operate within the territory over which the courts of appeal have territorial jurisdiction.

The SCM Decision to which we referred above was issued in order to offer guidance to the management councils of the courts with respect to manner in which they are to determine which cases may be heard during the state of emergency. The decision includes only a number of elements that are to be considered in drawing up the list of particularly urgent cases:

(i) cases which, if suspended, would cause imminent, significant or irreparable harm to the plaintiff, or a type of harm that would be difficult to repair afterwards (we can include here the adjudication of claims for the temporary suspension of enforcement proceedings, injunctions concerning minors and the award of custody of minors).

In the tax sector, we are waiting for the entry into force of the measures that have been already announced by the National Fiscal Administration Agency in the press release no. 427/16.03.2020 issued by the Department for Communication, Public Relations and Media of the agency concerning the suspension or non-commencement of enforcement proceedings in relation to outstanding tax liabilities, which means that the agency will no longer issue payment notifications and garnishment orders for any liquidity and revenues subject to enforcement, and will no longer seize assets, as per its announcement.

The measure concerning the suspension/non-commencement of enforcement proceedings will not apply to the amounts awarded by court judgments rendered in criminal cases.

According to the agency’s press release, the announced measures will apply during the state of emergency and for an additional period of 30 days starting from the termination of the state of emergency.

(ii) cases generated by the application of the measures laid down in the Decree (the first ones that come to mind are employment disputes that could arise from the unilateral modification of the place and/or type of work, suspensions from management positions for non-performance of work duties, investigations of workplace accidents).

We may even see an intensification of courts’ work during the state of emergency, insofar as employment and social security disputes are concerned;

(iii) cases related to public procurement procedures;

(iv) categories of cases which are heard in the absence of the parties.

One question that comes to mind is to what extent we could include in this category the motions to approve the initiation of enforcement proceedings and to what extent new enforcement proceedings could be initiated. This question is justified since the Decree sets forth that enforcement proceedings can continue provided that the sanitary rules set out in the decisions of the National Committee for Special Emergency Situations are complied with, in order to protect the right to life and the physical integrity of the participants in enforcement proceedings. As things stand, it seems that it will be possible to initiate new enforcement proceedings since there is no express provision that states otherwise.

As expected, the management councils of the courts of appeal will be able to revise the list of particularly urgent cases based on the actual circumstances identified in practice.

We are therefore waiting for the full list of cases qualified as particularly urgent, and the management councils of the courts of appeal must submit the lists to the Superior Council of Magistracy by March 20th, 2020.