1. General information
1.1 Structure of the legal system
Romania’s legal system follows the inquisitorial model which is usually encountered in civil law systems. The court is actively involved in investigating the case and may address questions to the parties, decide upon the necessity of particular evidence and invoke procedural incidents, etc. The court is also responsible for leading the hearings.
1.2 Structure of the courts
The Romanian civil court system encompasses the following subdivisions:
- the first court (”Judecatorie”);
- Court of Appeal;
- High Court of Cassation and Justice.
According to its size or nature a claim may be settled in first instance by any of these courts. As a rule, appeals follow the hierarchy of the courts, for example a claim settled in the first instance by the first court will be subject to a first appeal at the Tribunal and, if the case requires (depending on its nature), a second appeal at the Court of Appeal. Similarly, a claim settled in the first instance by the Tribunal will be subject to a first appeal at the Court of Appeal, and to a second appeal at the High Court of Justice. These procedural stages cannot be omitted during the course of the appeals process.
Court filings are only open to the parties of the litigation and their conventional representatives. The identity of the parties, the dates of the court hearings and a short summary of each court hearing are made available to the public through the court's electronic portal. As to the court proceedings, at the present date they are open to the public and anyone can be present in the court hall during the public court sessions; there are some specific cases which are heard in chambers e.g. divorce by mutual consent, the procedure for the issue of a writ or order of enforcement, the settlement of procedural incidents such as the challenge or recuse of judges, or the re-examination of decisions regarding the amount of stamp tax due.
In the initial phase of the litigation each party is responsible for its own costs. Once an award has been issued, the losing party may be ordered, at the prevailing party’s request, to reimburse all, or part, of the prevailing party’s costs, including attorneys’ fees. The prevailing party may claim reimbursement of its costs either during the course of the litigation itself or by means of a separate request, following the issue of the award. The court has the ability to limit the amount of the prevailing party’s attorney’s fees by taking into consideration the difficulty of the litigation, the actual amount of work required from the attorneys and other similar elements.
There are certain limitations regarding legal fees. Parties are forbidden from making a “no win, no fee” agreement; the parties may agree upon a 'success fee' for the attorney if a favourable outcome is achieved, but this cannot exclude the typical fees. In addition, litigation funding is not officially provided for within the Civil Procedural Code; therefore a third party may provide the funding for a party in a trial within the limits of a private agreement between them.
2. Initiating a Lawsuit
2.1 Statute of Limitations
The purpose of the statute of limitations is to protect the material right of action. As a rule, claims having a pecuniary object are subject to the statute of limitations. The statute of limitations does not operate ex officio. Instead, the objection of limitation can only be invoked, within the applicable terms (which differ according to the category of the right) in front of the first court, during the first court hearing at the latest. Before the commencement of the statute of limitations period, the parties cannot renounce the effects of the statute of limitations, as this is only possible after the commencement of the period.
Starting from August 1, 2013 particular cases (those which concern consumer law, family law, labour law, professional liability, claims up to a certain value – under RON 50,000 (approximately EUR11,000) – etc.), require participation in a mediation meeting as a prerequisite to filing a law suit. In specific cases, there are also several other prerequisites, such as the issue of a decision by the notary public in litigation regarding inheritance.
2.3 Jurisdictional requirements for defendants
The jurisdictional requirements for a defendant to be subject to a lawsuit are the same for all courts. Essentially the claimant has to prove that the defendant is the passive subject of the civil legal relationship the court is vested with i.e. the person owing the legal obligation.
2.4 The initial complaint
In order to initiate a lawsuit, a person must file a request detailing:
- The identity of the defendant;
- The facts which have led to the litigation;
- The claim and its value;
- The evidence proving the claim;
- The legal grounds of the claim.
As a rule, the initial claim can be amended up until the first court hearing.
2.5 Serving proceedings
Informing the adversary that it has been sued is the responsibility of the court. After receiving the initial claim, the court proceeds to communicate the information to the defendant, who then has a 25-day term to submit a statement of defence.
A party who resides outside the jurisdiction can be sued in Romania if the Romanian courts are competent/have the jurisdiction to settle such a lawsuit. The foreign party will be served by the Romanian court following a special procedure, which in some cases may be run through the Ministry of Justice.
2.6 Failure to respond to a lawsuit
The failure of the defendant to respond to a lawsuit does not block development of the case. The court vested with the claim will issue a judgment regardless of the defendant’s silence. However, this does not mean that the court will invariably side in favour of the claimant. By virtue of its active role and of the principle of establishing the truth, the court will impartially analyse the case and issue a judgment based on the facts, the evidence submitted, and their legal and/or contractual interpretation.
2.7 Class Action
The notion of collective/class actions is not provided for within the Civil Procedure Code, but only in certain special laws related to labour rights. However, several persons may file a unique claim providing that the object of the trial is a mutual right or obligation, if their rights and obligations have the same cause or if there is a close connection between them e.g. their claims derive from similar contracts concluded with the same person, etc.
3. Pretrial Proceedings
3.1 Dismissing the lawsuit
The Romanian legal system does not provide for the notion of motion to dismiss, as in common law. However such a notion and its consequences are, to some degree, incorporated within the statement of defence (filed at the very latest in the first court hearing, but generally filed within the 25-day period following communication of the claim to the defendant by the court). Within the statement of defence, aside from defences based on the merits of the claim, a party can invoke several objections which may lead to the dismissal of a lawsuit without any analysis of its merits e.g. objection of a lack of jurisdiction, objection of tardiness, objection of limitation, objection regarding the lack of procedural quality/capacity, etc. Such objections are generally made at the beginning of the trial. However, for the analysis of most of these objections it is necessary to provide some evidence to the court in order to bring about a ruling. Depending on the necessary degree of evidence, a judge may decide that the objection is to be analysed in conjunction with the merits of the claim and thus the ruling on both merits and objection will come at the end of the trial.
3.2 Dispositive motions
Dispositive motions are not common in Romanian law.
Interested parties may submit an intervention claim in order to join an existing lawsuit. The intervention of a party can be made either in its own interest or in the interest of one of the parties in the trial. The intervention of a party in its own interest can only be made in front of the first court, before the end of debates or in front of the court vested with the appeal, if all parties agree, as it is assimilated with the main claim as per nature and effects. The content of the intervention claim is similar to the one of a regular claim. The intervention of a party in the interest of one of the parties in the trial can be made throughout the development of the trial, before the end of debates, irrespective of whether this is before the first court or before the appeal courts. The intervening party becomes a party in the trial only after the claim has been admitted in principle.
The Romanian Civil Procedure Code provides for a specific process which enables the court to order the production of documents from the parties, if certain conditions are met. Thus, when a party claims that the opposing party holds a document regarding the dispute, the court may order its discovery. The request for discovery cannot be rejected if the document is a joint document of the parties, if the opposing party itself referred to said document in the proceedings or if, according to the law, it is obliged to submit it.
The taking of witness testimony is not allowed outside the court, as in Romania evidence is administered through the court after the commencement of a trial.
4.1 Legal privilege
According to the legal provisions regulating our profession, communications between attorney—client and the information received by the attorney fall under the attorney’s obligation of confidentiality. The extent of the obligation may vary depending on the agreement of the parties, but a general obligation of confidentiality is applicable to all attorneys, regardless if they are external or in-house counsel.
Trials are conducted by the court, usually in both parties’ presence and/or in the presence of their attorneys. The court invites each party to state its case, starting with the claimant. In virtue of its active role, the court may pose questions to the parties, invite the parties to address each other’s arguments, etc. The debates (closing arguments) are held after the administration of evidence, usually during a single court hearing. At the end of the debates (closing arguments), the court may grant the parties the possibility to submit written conclusions.
Jury trials are not available in Romania.
In order for a piece of evidence to be admissible, the following elements must be justified by the party claiming the admission of evidence: the evidence must be legal (in accordance with material and procedure law), plausible (realistic, in accordance with the laws of nature), pertinent (in connection with the object of the trial), and conclusive (regarding elements that may lead to a solution in the trial) for the litigation.
5.3 Expert testimony
Expert testimony is a common type of evidence in civil trials, administered either following the parties’ request or the court’s order. The expertise is usually presented in the form of a written expert report, but if the designated expert is able to immediately express an opinion it will be heard during the court hearing and the statement will be recorded.
6.1 Court approval
Court approval is not required to settle a lawsuit. At any time during the trial, the parties may ask the court to issue a judgment recording their amicable settlement.
The judgment issued for the settlement of a lawsuit is part of the court file. Hence all the observations made regarding the publicity of the file are also applicable to judgments, including the value of a settlement. The solution awarded in a case is always available to the public through the public registries, including the court’s electronic portal, which contain the dispositive part of the judgment (but not the details and arguments which lead to such decision, which are not public).
7. Damages & Judgment
7.1 Rules relating to damages
Reparation of damages is ordered relative to the damage incurred. There is no maximum limit of available damages, the court judges each case according to its particularities and orders the payment of a realistic amount of damages. Punitive damages are available. For example, the court may order payment of delay damages corresponding to the delayed execution of monetary obligations.
7.2 The collection of interest
Interest for an awarded amount of money, following the issue of a judgment, may be collected from the moment the payment was due until the moment of the actual payment.
7.3 Non-monetary relief
The rules regarding the process of a trial are the same for monetary and non-monetary reliefs. Injunctive reliefs are possible according to the content of the claim and the circumstances of the case.
7.4 Enforcement procedure
For a foreign judgment to be enforced in Romania, a judgment must be obtained from the tribunal which has jurisdiction where the enforcement will take place. To obtain enforcement of a foreign judgment, several conditions must be met, including that the judgment is final and enforceable according to the law of the state of the issuing court. The Romanian court vested with the enforcement claim will issue a final judgment of enforcement consent on the basis of which an enforcement title will be issued.
8.1 Grounds for appeal
Except for particular cases provided for by law, a party who is dissatisfied with the judgment issued in the first instance or in appeal may appeal to a higher court. The appeal has to be submitted within a determined term.
8.2 Time limits and triggering events
The term for appeal is 30 days from the communication of the judgment, unless otherwise provided for by the law.
9. Alternative Dispute Resolution
Alternative dispute resolution has gained popularity in recent years. Arbitration is more frequently used when one of the parties is of foreign nationality and/or when one or both parties are acting in their capacity as professionals. Mediation has been intensely lobbied, but it has still not gained a relevant share of disputes. In this case too, professionals are more inclined to consider this as an alternative to court litigation. As shown above – see Filing – at present only particular cases require participation in a mediation meeting as mandatory.
9.1 Relevant law
The recognition and enforcement of foreign arbitral awards starts with a request. This is addressed to the tribunal at the place where the domicile or headquarters of the party against whom the arbitral award was issued is located . The request will have to be accompanied by the arbitral award and the arbitration agreement. Following the request, the court issues a judgment subject only to appeal. The recognition and enforcement claim may be suspended if the annulment or suspension of the arbitral award is claimed in front of the competent authority of the state where the arbitral award was issued, or the state of the law according to which the award was issued