On October 3rd, 2020 Law 213/2020 for the amendment and completion of the Labour Code entered into force, introducing the terms external consultant and conciliation in employment relationships.
According to the law, conciliation is the process of settling individual labour conflicts in a friendly manner with the help and support of an external consultant specialised in labour law, in conditions of neutrality, impartiality and confidentiality, with the consent of the parties.
The external consultant specialised in labour law may be a lawyer, an expert in labour law or a mediator specialized in labour law who, through his active role, will make sure that the parties settle the dispute in a friendly manner.
The external consultant can represent either party, not only in the event of a labour conflict but also at the negotiation, conclusion or amendment of the employment contract.
In the event of a labour dispute, the parties are entitled to freely choose their external consultant whose fee shall be paid by the parties according to their agreement.
Either party may contact an external consultant to initiate the labour dispute conciliation procedure. The external consultant will send to the other party a written invitation, through one of the means of communication referred to in the employment contract. The conciliation proceedings can’t be initiated in more than 5 days from the delivery of the invitation. Any deadlines to appeal a labour dispute shall be suspended during the conciliation.
If the parties manage to solve the dispute through conciliation, the external consultant must draft an agreement that shall include the terms of the parties and the means of solving the dispute. The agreement must be signed by the parties and by the external consultant and shall become effective on the signing date or on a later date to be expressly stipulated in the agreement.
Conciliation proceedings end when a minute is drafted in this regard, signed by the parties and by the external consultant, in the following cases: the dispute is solved and the parties sign an agreement; the external consultant acknowledges the failure of the conciliation; the failure of either party to be present on the date communicated in the invitation.
This process of settling labour disputes in a friendly manner must be included by the employer in the Internal Rules.
The employer can request the services of an external consultant specialised in labour law also for disciplinary procedures, case in which the employer must authorize the consultant to this end. In this case, for the prior disciplinary investigation the employee shall be notified in writing by the external consultant.
On the other hand, during the prior disciplinary investigation, employees have the right to defence and to provide the committee or the person authorized to carry out proceedings all the proofs and arguments employees deem necessary, but also the right to be assisted, upon their request, by an external consultant specialized in labour law.

With the World Health Organization declaring COVID-19 a worldwide pandemic on March 11, 2020 and with the Romanian authorities declaring a state of emergency on March 16, 2020, including all subsequent regulations, there is no doubt that family relationships will also be affected by this disease.

 Unfortunately, family relationships were pretty much ignored by the authorities when drafting the military ordinances that have progressively limited the freedom of movement and the right to leave one’s house or residence. Therefore, the opinions presented herein are a personal interpretation of the present situation, however with direct reference to all laws that apply.

1. Self-isolation and orders of protection

Petitions for orders of protection continue to be on the docket of the court, being classified as urgent matters. The problem is when the aggressor, against whom an order of protection was issued ordering the aggressor to keep away from his/her family or the victim, must self-isolate for 14 days.

In my opinion, if the aggressor does not have any alternative housing options, the public local authorities should provide the aggressor with a place to self-isolate, as far as possible from the house of the victim, but also from other individuals, in order to avoid and limit as much as possible the spread of the virus. Otherwise, the aggressor would not be able to observe the obligations set forth in the order of protection.

2. Rights of non-resident parents to parenting time with their minor children (visitation schedule)

Whereas individuals are only allowed to leave the house for specific reasons, how will parents be able to benefit of their right to parenting time.

Obviously, one of the options, if parents agree, is for the non-resident parent not to visit or host the child during this period, having the possibility to claim more visitation hours or days afterwards – e.g. summer holiday. In this case, for the entire period of this special situation, the parent and the child shall keep in touch through any modern communication means, such as voice or video calls.

In case parents don’t agree, the question is whether this visitation schedule could or should be suspended. In my opinion, we can talk about a rightful suspension only if the non-resident parent is quarantined or self-isolated at home. Otherwise, there is no legal ground for the suspension of the visitation schedule, except when the resident parent addresses the family court and submits a request in this regard.

Another aspect that needs to be considered is which of the legal grounds set forth in the Military Ordinance no. 3/2020 can be used by a parent who has to leave the house to pick the child up at the beginning of the visitation schedule and to return the child when required. In my opinion, as long as there are no official clarifications, the legal ground would be article (1) paragraph (1) letter (d) of the Military Ordinance no. 3 from March 24, 2020 which refers to the right to leave the residence/household for justified grounds such as caring/accompanying a minor child.

1. Acte normative apărute în Monitorul Oficial în perioada 30 martie 2015 – 6 aprilie 2015.

Legea nr. 61/2015 pentru modificarea şi completarea Legii nr. 189/2003 privind asistența judiciară în materie civilă și comercială.
Noua lege modifică și completează Legea nr. 189/2003 privind asistenţa judiciară internaţională în materie civilă şi comercială, stabilind cu claritate atribuțiile Ministerului Justiției, în calitate de autoritate centrală, în procedura de soluționare a cererilor de asistență judiciară internațională având ca obiect comunicarea de acte judiciare, dar și obținerea de probe prin comisie rogatorie. Astfel, Ministerul Justiției are calitatea de principal intermediar pentru comunicarea actelor în străinătate.
Modalitatea de exercitare a controlului de regularitate internaţională efectuat de Ministerul Justiției constă în verificarea conformităţii cererii de asistenţă judiciară internaţională şi a actelor anexate acesteia cu dispoziţiile convenţiilor, tratatelor bilaterale sau multilaterale aplicabile, inclusiv cu declaraţiile formulate de România în baza dispoziţiilor unor convenţii multilaterale.
Ministerul Justiției va realiza și transmiterea în străinătate a cererilor de comisie rogatorie formulate de instanțele judecătorești române.

2. Ordinul ministrului transporturilor nr. 497/2015 pentru modificarea și completarea Ordinului ministrului transporturilor nr. 1.031/2014 privind emiterea certificatelor tehnice pentru vehiculele rutiere care efectuează transport rutier internațional de mărfuri în vederea acordării și utilizării autorizațiilor CEMT din 6 aprilie 2015.
Cele mai relevante modificări privind emiterea certificatelor tehnice constau în:
– certificatul CEMT de conformitate cu cerințele tehnice și de siguranță pentru un autovehicul (autoutilitară) cu masa totală maximă autorizată (MTMA) mai mare de 3,5 tone și care nu depășeste 6 tone «EURO IV/4 sigur», «EURO V/5 sigur», «EEV sigur» sau «EURO VI/6 sigur», al cărui model este prevăzut în anexa nr. 1e, este emis de către R.A.R. numai în cazul în care el nu a fost emis de către fabricantul autovehiculului sau reprezentantul autorizat al acestuia în România ori în cazul în care fabricantul nu are reprezentant autorizat în Romania și numai dacă R.A.R. deține sau are acces la documentele tehnice necesare emiterii lui
– în cazul în care nu toate echipamentele autovehiculului sunt montate de fabricantul acestuia, certificatul CEMT este emis de către R.A.R., cu condiția prezentării de către deținătorul autovehiculului a acceptului fabricantului cu privire la modificările constructive efectuate ulterior fabricării autovehiculului, precum și a documentelor tehnice de omologare/certificare privitoare la aceste modificări
– certificatul CEMT este emis o singură dată pentru autovehicul și nu trebuie să fie reînnoit decât dacă datele de bază menționate în certificat, pentru orice tip de emisie, se modifică.

2. Știri juridice

ICCJ: Clauza privind scadența anticipată dintr-un contract de credit este abuzivă dacă nu se bazează pe un motiv întemeiat.
Prin Decizia nr. 2665/2014 Înalta Curte de Casație și Justiție a hotărât că este abuzivă clauza referitoare la „scadenţa anticipată” prevăzută în condiţiile generale din contractul de credit, prin care s-a stipulat că în cazul neîndeplinirii unor obligaţii rezultând din alte contracte, încheiate fie cu banca, fie cu alte societăţi financiare/de credit, precum şi în cazul unor situaţii neprevăzute care, în opinia băncii, face să devină improbabil ca reclamanţii să-şi poată îndeplini obligaţiile asumate prin contract, banca va avea dreptul să declare soldul creditului ca fiind scadent anticipat, rambursabil imediat împreună cu dobânda acumulată şi cu toate celelalte costuri datorate băncii conform convenţiei.
Înalta Curte a reținut că pentru a nu fi abuzive, prevederile unei astfel de clauze ar trebui să descrie un motiv întemeiat, or formulările cuprinse în clauzele contractului nu oferă posibilitatea reală ca un observator independent să aprecieze asupra temeiniciei unei astfel de clauze, cu atât mai mult cu cât aceste clauze oferă băncii dreptul discreţionar de a declara soldul scadent anticipat, fără ca instanţa să aibă la îndemână un criteriu pentru verificarea legalităţii unei astfel de măsuri.

ICCJ: Dreptul de a deduce TVA-ul trebuie respectat chiar dacă documentele justificative nu îndeplinesc toate condițiile de formă.
Recent Înalta Curte de Casație și Justiție s-a pronunțat în sensul neîngrădirii dreptului de deducere a TVA în cadrul unui litigiu a cărui obiect a fost anularea unei decizii de impunere prin care organele fiscale au negat dreptul de deducere a TVA, invocând faptul că avizele de însoțire a mărfii şi celelalte documente justificative nu conţin toate elementele formale şi, de asemenea, facturile fiscale tipizate nu ar fi completate cu toate informaţiile prevăzute de respectivul formular de factură, deşi aceste informaţii nu se regăsesc printre elementele prevăzute de art. 155 Cod fiscal. Actul administrativ fiscal anulat a fost întemeiat de organele fiscale în baza Deciziei nr. V din 2007 a Înaltei Curţi de Casaţie şi Justiţie, pronunţată într-un recurs în interesul legii cu forţă juridică obligatorie.

Abstract: In 2007 two procedures regarding the acknowledgement of foreign resolutions became enforceable in Romania. The first one is a procedure which applies to foreign resolutions passed in one of the member states of the European Union, while the other is a procedure which applies to member states, based on the principles which apply to international private law.
Thus, the legislation of the European Union provides a set of rules which will help European citizens and residents have access to the same rules of the legal system, benefiting from a simplified procedure stipulated by Regulation 44/2001 and 805/2004.

The acknowledgement of foreign court resolutions is a contentious procedure whose purpose is to verify the compliance with the regularity conditions of these resolutions.

One of the main conditions of such foreign resolutions is that they are intangible. This means that their main effects are to have the value of a matter judged (res judicata), to be enforceable and to have the power to prove an authentic act.

Foreign resolutions that can be acknowledged and executed in Romania may be issued not only by courts of law but also by other authorities with jurisdictional competence.

The procedure for the acknowledgement and enforcement of court resolutions passed in any EU member state is provided in EU regulations that can be directly applied by these member states, namely Regulation no. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and Regulation no. 805/2004 creating a European Enforcement Order for uncontested claims.

Court resolutions passed in states that are not members of the European Union shall continue to be regulated by the provisions of Law 105/1992 regarding the regulation of international private law relations.

A foreign court resolution usually acquires an enforceable power same as a resolution issued by the country on whose territory the execution of such resolution is requested through the procedure known as exequatur which requires the examination the international regularity of foreign resolutions for their acknowledgement and enforcement. According to the New York Convention from 1958 „no more onerous conditions or higher fees should be imposed than when enforcement of a domestic award is sought.”

Law no. 105/1992 makes a clear distinction between the acknowledgement of foreign court resolutions and their enforcement and between the acknowledgement by right of a resolution and the acknowledgement through a resolution issued by a Romanian court.

Through acknowledgement, the foreign court decision is regarded in Romania as a matter judged (res judicata) same as a Romanian court resolution. In this regard, article 167 of Law no. 105/1992 stipulates that foreign court resolutions may be acknowledged in Romania and be regarded as a matter judged (res judicata). This is the acknowledgement through a Romanian court resolution. However, the effects are the same as the acknowledgement by right.

We are talking about an acknowledgement by right of a foreign court resolution when it refers to the personal status of the citizens of the state where it was passed or if, being passed in a third country, they were first acknowledged in the state whose citizens each party is or, in case such an acknowledgement is lacking, they were passed on the law applicable according to the Romanian international private law, it is not contrary to the Romanian international private law public order and the right of defence was respected.

The conditions for a foreign court resolution to be acknowledged in Romania are the following:

• The resolution is final according to the laws of the state where it was passed;
• According to the laws of the respective country, the court that passed the resolution was competent to judge the case;
• A principle of reciprocity applies in this regard between Romania and the state of the court that passed the resolution;
• If the resolution was passed in the absence of the party who lost the trial, it must be acknowledged that the respective party has received the summons and the act of apprehension in due time, that his right of defence and to appeal the resolution were both respected. The non-final nature of the foreign resolution, resulting from the failure to summon the person who hasn’t attended the trial before the foreign court, can only be invoked by that person.

The court may refuse the acknowledgement of a foreign resolution for the following reasons:

• The resolution is the result of a fraud committed during the procedure carried out abroad;
• The foreign resolution breaches the public order of the Romanian international private law;
• The lawsuit was settled between the same parties through a resolution, even if not a final one, of Romanian courts or is being tried by these courts at the time the foreign court is notified;
• If the Romanian courts had exclusive competence for judging the case (art. 1096 paragraph (1) letter e) Civil Procedure Code.

If the acknowledgement of a foreign resolution is sought, a request must be submitted in this regard with the competent court or authority. A certificate filled out by the competent court or authority that has issued the resolution, the authentic act or the judicial transaction must also be attached to the aforementioned request. According to article 1098 of the Civil Procedure Code, the acknowledgement request is a matter to be solved directly by the competent court. If it is impossible to determine the competent court, such matters shall be solved by Bucharest Court.

The request for the acknowledgement of a foreign resolution shall be drawn up according to the conditions stipulated by the Civil Procedure Code and shall include the following documents:

1. copy of the foreign resolution
2. proof that certifies the final nature of the court resolution
3. copy of the proof that the summons and act of apprehension were communicated to the party who did not attend the trial or any other official document certifying that the summons and act of apprehension were brought to the attention of the party against which such resolution was passed
4. any other document certifying that the foreign resolution complies with all the other provisions stipulated by article 1095 of the Civil Procedure Code.

Bibliography:

1. S. Deleanu, Drept internaţional privat, partea generală, Dacia Europa Nova Publishing House
2. “Enforcements of Foreign Arbitral Awards”, The Romanian Digest, Nr. 5 from May 2005, Vol. X;
3. Ghid de cooperare judiciară internațională în materie civilă și comercială, Coordinator: Dr. Viviana Onaca.

Abstract: Non-competition clauses are legal instruments meant to protect employers. This protection operates upon the termination of employment relations between employers and employees. However, in order for such provisions included in employment agreements to be effective they must observe a number of requirements stipulated by the Labour Code. Such requirements are meant to avoid any kind of abuse by employers in this regard.

Abstract: The Romanian Civil Code, which has entered into force on the 1st of October 2011, refers in Section 6 to the statute of limitation, extinguishment of rights and term estimation. Therefore, the former Decree-law no. 167/1958 on the statute of limitation and the articles regarding this legal institution in the Civil Code from 1864 have all been abrogated.
Considering these new provisions on the statute of limitation, we have tried to present possibile implications of these new rules and possible problems that may arise from the interpretation of the new law.
Our purpose is not to reaffirm what has already been said or what is already well known, but to point out and analyze some of these new provisions which need to be discussed.

Abstract: The New Civil Procedure Code regulates both the default summons and the procedure for summons of a lower value. The default summons procedure is regulated by article 1013-1024 of the Civil Procedure Code and refers to the recovery of certain, liquid and payable debts. However, the new regulation stipulates that, before submitting a request for the issuance of a default summons, one must go through the prior procedure stipulated by article 1014. The summons of a lower value represents a new procedure regulated by article 1025-1032 of the Civil Procedure Code. This procedure may be applied in case of requests that refer to receivables that are below the value of Lei 10.000.

The New Civil Procedure Code entered into force on 15.02.2013. This Code has brought major changes to court procedures, especially in matters of debt recovery.

The New Civil Procedure Code makes reference to the following debt recovery procedures: default summons, summons for a lower value and the common law procedure.

Thus, the changes brought by the New Civil Procedure Code are the repeal of the Emergency Ordinance 5/2001 on demands for payment and of the Government Emergency Ordinance 119/2007 on default summons, but also the introduction of a new debt recovery procedure stipulated by articles 1025-1032 of the New Civil Procedure Code regarding summons of a lower value.

The default summons is regulated as a recovery procedure for certain, liquid and exigible debts and is stipulated by articles 1013-1024 of the New Civil Procedure Code.

Unlike the old regulation, the New Civil Procedure Code introduces the obligation to carry out the preliminary demand for payment procedure before the submission of the request for the issuance by the court of the default summons.

Article 1014 NCPC makes reference to this prior procedure, namely the creditor must send the debtor a summons, through a court enforcement officer or by registered mail with acknowledgement of receipt, informing the debtor that he must pay the debt in 15 days from the receipt of such summons.

If the debtor fails to pay the debt in 15 days, the creditor is entitled to go to court.

We believe that by introducing this prior procedure, the recovery of the debt shall take more time because the creditor can no longer go directly to court and he will have to wait 15 days for the debtor to pay such debt.

This prior procedure is mandatory and the proof must be attached to the request to be submitted to the court, together with all the other documents that prove such debt. The failure to prove the compliance with such prior procedure shall determine the court to reject the creditor’s request.

The request must be submitted to the court together with all the documents that prove the existence of such debt, the acknowledgement of the debt by the debtor and the fulfilment of the prior procedure. Both the request and the proofs shall be submitted in at least three copies, one for each party and one for the court.

The statement of defence must be submitted by the debtor with at least 3 days before the hearing. The court shall verify whether the debtor’s claim is well grounded or not. If the debtor does not submit a statement of defence, the court may regard such failure as an acknowledgement by the debtor of the creditor’s claims. According to the NCPC, the statement of defence is no longer communicated to the creditor. In this case, the creditor must access the case’s file and see whether a statement of defence was submitted or not.  Only written documents are accepted as evidence.

The court, based on the documents submitted by the parties, may approve the creditor’s request in whole or in part and may issue a default summons that will stipulate the payment deadline, which can be between 10 to 30 days from the communication of the default summons. The judge may set a different payment deadline only if the parties agree in this regard. If the creditor’s request is approved only in part, for the remaining claims the creditor may initiate a regular debt recovery procedure.

According to the NCPC, the default summons is enforceable even if appealed through an action for rescission and has the value of a temporary case law until such action for rescission is solved.

An action for rescission may be initiated by both the creditor and the debtor in 10 days after the default summons is communicated.

The action for rescission does not suspend the execution. However, the debtor may request the suspension of the court decision if he pays a bond whose value is established by the court. If the court approves the action for rescission in whole or in part, the default summons shall be rescinded in whole or in part, as the case may be, the court issuing a final resolution in this regard.

Once with the entry into force of the NCPC, it is no longer required for court resolutions to be made enforceable. Thus, it is observed that the issuance of orders of enforcement does no longer exist. Therefore, there’s only the writ of execution that is issued by the court.

Summons of a lower value is a new procedure stipulated by the New Civil Procedure Code. This procedure is regulated by articles 1025-1032 of the NCPC and is applied to those debts that do not exceed a certain value, namely Lei 10.000. This amount, Lei 10.000, only includes the main debt and it does not include penalties and interests, which will be estimated and requested separately.

According to this procedure, the creditor must fill out a form provided by the Ministry of Justice and shall include all the information necessary for solving the dispute in question.

According to this procedure, it is not necessary to appear before the judge. However, if the parties would like to, they can request to appear before the judge assigned to solve the case in the form they must fill out. Moreover, the court may as well order for the parties to appear before the judge, if it requires certain clarifications.

This procedure is not mandatory. The plaintiff has the possibility to choose between this procedure and the regular one. Furthermore, if the request can’t be solved for various reasons, the court must inform the parties in this regard. In this case, if the plaintiff does not withdraw his request, such a case shall be solved according to the regular procedure.

Unlike the default summons and regular procedures, this procedure does not stipulate the obligation to initiate a prior procedure. The plaintiff may directly submit his request to court.

Thus, the plaintiff shall fill out the form, which includes all the explanations necessary for filling such form out. The plaintiff must also submit, together with the form, all documents which prove the debt in question. These documents must be submitted in a number of copies equal to the number of parties, plus an extra copy for the court.

The defendant must fill out a special form in his defense, but according to article 1029 – paragraph 4 he is not obliged to use such form and he may answer by any appropriate means. The defendant must send his defense in 30 days from the communication of the sue petition. Later on, the court shall set a hearing date.

If the defendant does submit a statement of defense, the whole procedure will last 60 days at most.

Documents may be used as proof. However, this procedure allows the use of other proofs as well, but only if the value stated in such evidence does not have a value that is different from the value of the disputed amount.

At the end of the lawsuit, the court shall issue a court resolution that is enforceable by right. This resolution may be appealed in 30 days after being communicated. If requested by the debtor, the court may suspend the execution of the court resolution provided that the debtor pays a bond representing 10% of the disputed amount.

The value of the stamp duty for the two requests is Lei 200 for the issuance of a default summons and Lei 50 for summons of a lower value – if the requested debt is up to Lei 2.000 – and Lei 200 if the requested debt is between Lei 2000 – Lei 10.000.

Author: Lawyer Alexa Ionela

Abstract: From a fiscal point of view, working as a self-employed person could be more convenient than working as an employee based on an employment agreement. However, a problem that may arise is for such an activity to be later classified as a dependent activity.

Abstract: This is a brief overview of the problems generated by court resolutions that have the value of authentic documents and their legal regime. The following two questions may arise: may this resolution be appealed as any other authentic agreement? Or, on the contrary, such resolution may only be appealed according to the provisions of the Civil Procedure Code on court resolutions? Are we actually dealing with a genuine legal act resulted from the settlement of a dispute or with an acknowledgement of the parties’ will for the conclusion of the agreement? Given the lack of relevant cases, there are however two court resolutions in which it is explained why invoking certain nullity cases of such agreements acknowledged by the court of law would sometimes be admissible. 

Abstract: Any shareholder who fails to observe the provisions of the company’s articles of incorporation or harms its interests may be excluded from the company. Such exclusion is acknowledged through a court resolution, upon the request of the company or of any shareholder.     

Abstract: Mandatory mediation in litigation involving the divorcing parties inherently creates questions about the disadvantages, namely usefulness of recent regulations. The wide applicability of the institution of mediation is reflected in the penalties provided by the legislature in case of breach of procedure, namely inadmissibility of petitions.

Abstract: Abusive contract terms that are included in loan agreements give a bank the right to amend such agreements unilaterally, without any actual negotiation of the new terms, thus creating a significant unbalance between the two contracting parties. According to these banks, the justification of these amendments lies in the evolution of the financial market and of the bank’s loan policy. However, these justifications exceed the principle rebus sic standibus and good faith. Moreover, they deprive consumers of their right to cancel the agreement immediately.
Key words: abusive contract terms, loan agreement, consumer, negotiation, unilateral amendment.

Abstract: Regulation (CE) no. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems regulates an exception from the general rule according to which „a person who carries out a salary or independent activity in one of the member states, must observe the laws of that state.” Thus, an employee relocated in another member state continues to observe the legislation of his/her state of origin provided that the following two terms are both complied with: a direct relationship between the employer and the employee and the existence of a relationship between the employer and member state where such employer resides. In order to determine the enforceable legislation, the employer shall initiate the procedure for obtaining the A1 portable document – „Certificate regarding the enforceable legislation.”

Abstract: an opposition to foreclosure may even regard the validity of the promissory note as a legal act or the forced execution of such a deed, while the challenge on enforcement – in case of promissory notes – must be strictly limited to those aspects which regard the validity of each individual act of execution. If a debtor submits an opposition to foreclosure, requesting the extinguishment of the payment obligation for which the promissory notes were issued, namely the extinguishment of all fundamental relations between the parties, any payment made by such debtor would be irrelevant in terms of that promissory note’s legal efficiency. Consequently, the extinguishment of such fundamental relation, by invoking other means of payment, is unquestionably a substantive defence directed toward enforceable titles, which may only be exploited through special means of appeal. 

The exercise of parental authority only by the mother may be decided by the court if the father has showed no interest whatsoever towards the minor child and has refused to work together with the mother in order to take all major decisions that concern the child.

The use of payment instruments – promissory notes and cheques – can only offer advantages to the beneficiaries of these bonds.
They are enforceable titles – this means that if their payment is refused, the foreclosure of the issuer and of the guarantor is possible without further proceedings in any type of courts. Moreover, in certain cases, they offer guarantees for the recovery from the guarantor or endorser of the amount for which they were issued, depending on which of the two is solvent.