The European Order for Payment (EOP, Regulation (EC) No 1896/2006), the European Small Claims Procedure (ESCP, Regulation (EC) No 861/2007) and the European Account Preservation Order (EAPO, Regulation (EU) No 655/2014) applied for several years in Romania without any specific implementation legislation being adopted to coordinate their interaction with the national procedural rules.
As generally regulations do not require any specific additional legislative action from the Member States to be applied at national level, Romanian authorities relied on the principle of direct application of the three instruments. However, the referral to national procedural rules in several articles of the regulations (e.g. existence of an appeal mechanisms, costs of proceedings, assistance) as well as reliance on national rules when no specific provisions are contained in the European legislation (Article 26 EOP, Article 19 ESCP, and Article 46 EAPO) can create disparities and give rise to variations in the application of these instruments even within one Member State.
Recently, this direct application approach changed. In December 2019 the Romanian Government and, subsequently, the Parliament initiated acts to amend national laws. These legislative amendments were aimed at facilitating the application of these regulations and clarifying particular procedural aspects in order to ease judicial cooperation between Member States for the EOP, ESCP, and EAPO procedures. The new national rules dedicated to the EOP, ESCP, and EAPO focus mainly on issues of jurisdiction of Romanian courts, identifying the national authorities involved in the application of the Regulations, and establishing the applicable procedural fees.
EAPO: A Guided Implementation Process to Avoid an Infringement Procedure
The amendment of national legislation regarding the EAPO has been triggered by the initiation of an infringement procedure by the European Commission. A letter of formal notice (letter C(2019) 6729 final) was sent to the Romanian authorities in 2019 – more than two years since the regulation became applicable – because the Government failed to communicate relevant information for the application of the regulation as required by Article 50 EAPO Regulation.
Following this formal notice, the Romanian Government acted expediently to avoid a possible referral to the Court of Justice of the European Union in an infringement procedure. The Government’s Note proposing the legislative amendment as well as in the Statement of Reasons for the law approving the Government Emergency Ordinance containing implementation provisions refer to this risk as well as that of hefty fines for the national budget due to non-compliance with EU law. Based on these reasons the Government moved quickly in December 2019 to adopt an Emergency Ordinance – Ordonaţa de urgenţă nr. 75 din 13 decembrie 2019 pentru completarea Ordonanţei de urgenţă a Guvernului nr. 119/2006 privind unele măsuri necesare pentru aplicarea unor regulamente comunitare de la data aderării României la Uniunea Europeană, precum şi pentru modificarea Ordonanţei de urgenţă a Guvernului nr. 80/2013 privind taxele judiciare de timbre.
Based on the Government’s Note, the Emergency Ordinance No. 75/2019 was meant to address information that had not been clearly provided for the application of the EAPO in Romania. This concerned:
- the methods that could be used to obtain account information regarding a debtor holding a bank account in Romania (Article 50(1)(c) EAPO Regulation) and
- which courts were competent to handle EAPO requests, the available means of appeal, the national authority competent to receive requests for obtaining account information about bank accounts and to provide such information, and the methods applicable to receive this information (by Romanian and authorities in other Member States).
The new article Article I8 of the Government Emergency Ordinance No 119/2006 regarding certain measures necessary for the application of some Community Regulations after the date of accession of Romania to the European Union explicitly addresses the information requirements contained in Article 50(1) letters (a)-(d), (l) and (m) EAPO Regulation.
Based on this legislative amendment, the courts competent to issue Preservation Orders in Romania based on an authentic instrument would be the ones having jurisdiction to handle the claim at first instance (Article 1(1) Government Emergency Ordinance No 119/2006 in conjunction with Articles 6(4) EAPO Regulation). Further, any appeal against a decision to reject in whole or in part an application for a Preservation Order would be handle by the hierarchical higher court to the one that issued the initial decision (Article 1(2) Government Emergency Ordinance No 119/2006 in conjunction with Articles 21 EAPO Regulation). This means that different type of courts can have jurisdiction to receive an application for an EAPO based on the threshold of the claim. These would be either the district courts (judecătorii) for requests of up to 200.000 RON (approx. 42.000 euros) or the general courts (tribunale) for applications above this threshold. Similarly, any request to revoke or modify a Preservation Order based on Article 31(1) EAPO Regulation will be handled by the hierarchical higher court to the one that issued it (Article 1(3) Government Emergency Ordinance No 119/2006).
The remedies available to the debtor against the enforcement of a Preservation Order according to Article 34 EAPO Regulation will rest with the enforcement court (Article 1(4) Government Emergency Ordinance No 119/2006). Again any appeal against the remedies available to the creditor and the debtor based on the provisions of Articles 33-35 EAPO will lie with the hierarchical higher courts to the courts that issued the Preservation Order (Article 1(3)-(4) Government Emergency Ordinance No 119/2006 in conjunction with Articles 33(1), 34 and 35 EAPO Regulation). In such circumstances, the appeal would have to be introduced within a period of 30 days from the date of communication of the decision challenged, unless the law establishes otherwise. This last part gives rise to some uncertainty, especially for foreign parties which are presumed not to be familiar with the Romanian legal system and its particularities. Hence, relying on a local practitioner would remain necessary although representation is not mandatory in the EAPO procedure (Article 41 EAPO Regulation).
Any request to obtain information and identify a debtor’s potential bank accounts in Romania according to Article 14 EAPO Regulation will be dealt with by the National Union of Judicial Enforcement Officers (Uniunea Naţională a Executorilor Judecătoreşti, UNEJ). The National Union of Judicial Enforcement Officers is the designated information authority competent to provide this information upon request. For this purpose, the Union has been granted direct and free of charge access to the Ministry of Public Finance IT system – PatrimVen (Article 2 Government Emergency Ordinance No 119/2006).
With regard to procedural costs related to the issuance of a European Account Preservation Order, the court fees are fixed at 100 RON (approx. 21 euros) (Article 11(1) Government Emergency Ordinance No 80/2013 regarding the judiciary stamp fees). The EAPO court fee is similar to fees applicable in other national procedures concerning protective measures. Its low value is certainly convenient, especially for high-value EAPOs.
EOP and ESCP: Implementation Legislation A Decade into their Application
The EOP and ESCP have been the testing ground for direct application of ‘second-generation’ European regulations into national procedure. This has led to interpretation difficulties (e.g. amount of court fees to be paid, appeal and review mechanisms, lack of legal assistance) and mixed results according to previously published research findings (e.g. further Luxembourg Report on Mutual Trust and Free Circulation of Judgments and Cross-Border Debt Recovery in the EU). During this initial period, the only legislative provision implicitly referring to these instruments was Article 636 New Code of Civil Procedure. The article states that European enforceable titles for which the exequatur procedure is not required are immediately enforceable in Romania without any preliminary formality.
The legislative change for these two European procedures came in July 2020. A law – Law No 132 of 15 July 2020 – was adopted by the Parliament. The law amended one more time the Government Emergency Ordinance No 119/2006 regarding certain measures necessary for the application of some Community Regulation after the date of accession of Romania to the European Union and the Government Emergency Ordinance No 80/2013 regarding the judiciary stamp fees. Two new articles were added to facilitate the application of the EOP and ESCP Regulation in Romania – Articles I9 and I10 (see Statement of Reasons). As for the EAPO Regulation, these articles address only some of the elements that require coordination between the European rules and national legislation, namely: the requirements of Article 29(1)(a)-(b) EOP Regulation and Article 25(1)(a), (c) and (g) ESCP Regulation
For the EOP, the jurisdiction will rest with the courts that would be competent to handle the claims on the merits at first instance (Article 1 Government Emergency Ordinance No 119/2006). These would be either the district courts (judecătorii) or the general courts (tribunale). The district courts have competence for claims up to 200.000 RON (approx. 42.000 euros). The claims above this threshold will be handled by the general court as first instance court.
Any review request in the framework of the EOP Regulation will be examined by the same court that issued the EOP but in a panel of two judges (Article 2 Government Emergency Ordinance No 119/2006). Although this legislative step clarifies some organisational aspects of the review proceeding, it does not solve how the review should be handled based on various national means (see here also). The national procedures according to which the review should be handled are broader in scope than the provisions of Article 20 EOP Regulation and require some legal knowledge. This keeps the proceeding rather complex for a first-time user with little legal training.
With regard to the ESCP, the Romanian courts competent to issue the ESCP judgment are the district courts (judecătoriile) according to Article 2(1) Government Emergency Ordinance No 119/2006. The ESCP judgment will be subject only to appeal before the competent general court (tribunal) and will have to be filed within 30 days from the moment the judgment was communicated to the party (Article 2(2) Government Emergency Ordinance No 119/2006 in conjunction with Article 17 ESCP Regulation).
A request for review – as for the EOP procedure – will rest with the court that issued the ESCP judgment. However, unlike for the EOP, the provisions related to the ESCP do not expressly indicate that the review will be handled by a panel of judges. This difference in the drafting of the legal text is regrettable as it gives rise to potential confusions and interpretations per a contrario given the special nature of the rules.
Both EOP and ESCP provisions related to the competent courts to receive the application forms do not change the practice of the Romanian courts but confirm the already existing interpretation followed by practitioners.
For court fees, the Romanian legislator opted for a fixed court fee as for similar national procedures (ordonanţa de plată and procedura cu privire la cererile de valoare redusă). Hence, an application for an EOP will cost the applicant 200 RON (approx. 41 euros) (Article 6(2) Government Emergency Ordinance No 80/2013 regarding the judiciary stamp fees). While the ESCP claims will vary between 50 RON (approx. 10,5 euros) for claims below 2.000 RON (or their equivalent) and 200 RON (approx. 41 euros) for claims above this threshold (Article 6(2) Government Emergency Ordinance No 80/2013). The procedure following opposition to an EOP and review requests will involve an additional fixed fee of 100 RON (approx. 21 euros) (Article 6(21) Government Emergency Ordinance No 80/2013 regarding the judiciary stamp fees. This legislative action is welcomed as it puts an end to the different approaches followed by Romania courts. These varied between a fixed cost identical to the equivalent national procedures and a court fee based on the value of the claim submitted.
The most important legislative development related to the application of the ESCP concerns the implementation of specific provisions regarding the assistance to the provided to the parties (Article 11 ESCP Regulation).
According to Article 1 Government Emergency Ordinance No 119/2006, practical assistance for filling in the Claim Form (Form A) will be provided by the lawyers designated for this purpose by each local Bar Association for periods of three months (on a rotation basis). The list of lawyers to provide legal assistance and their contact details will be published online by the Union of National Bar Associations in Romania and each local Bar Association. This list is also to be communicated to each district court for publication at its premises as well as online on the website of the Romanian Courts. Finding the necessary details will remain certainly more challenging for foreign users as the information on the websites is generally available only in Romanian.
The costs for this assistance will be fixed based on a protocol of understanding establishing the representation fees for ex officio legal representation. No fee will have to be paid by the party receiving assistance in accordance with Article 11 ESCP Regulation. Although a welcomed legislative clarification such lists do not appear to have been published for the time being with the indicated national websites or their whereabouts are not easy to spot (even for a legally trained subject). Given that the legislative changes were only introduced four months ago, practical application and technical adjustments may take some time to be calibrated by the local Bar Associations and district courts.
These legislative steps undertaken by the Romanian authorities are certainly a good development for facilitating the interaction between the European and national procedural rules and the application of the EOP, ESCP, and EAPO. Domestic rules have an important influence on the manner in which the European procedures are applied and represent a key prerequisite for certainty, visibility of the procedures, and their subsequent success.