Interim and precautionary measures - Romania
TABLE OF CONTENTS
What are the different types of measure?
What are the conditions under which such measures may be issued?
Please describe the procedure
Please describe the substantive conditions
What is the object and nature of such measures?
What types of assets can be subject to such measures?
What are the effects of such measures?
What is the validity of such measures?
Is there a possibility of appeal against the measure?
1. What are the different types of measure?
- (Please define the types of measure)
- (Please give a list of existing measures)
are procedural measures ordered by the court with regard to the debtor's
assets either during the proceedings or at the enforcement stage, in order to
ensure enforcement of the court decision.
are: precautionary attachment and attachment in aid of execution of a judgment,
and precautionary garnishee.
2. What are the conditions under which such measures may be issued?
2.1. Please describe the procedure
- (Is it always necessary to request a court judgment to authorise the measure?)
- (Which court has jurisdiction to issue such measures?)
- (Must I be represented by a lawyer?)
- (What role is played be intermediaries such as agents representing the authorities or court bailiffs?)
- (Please indicate the costs of this type of measure)
- Precautionary measures may only be taken by the court of first instance with jurisdiction to hear the case or the court in the place in which the asset is located.
- Assistance from a lawyer is not obligatory in these special proceedings, since legal aid is not compulsory at any stage of civil law proceedings in Romania.
- Court decisions concerning precautionary measures are enforced by court bailiffs with the assistance of the Romanian police force.
- The only costs are stamp duties, which in accordance with Article 3(e) and (p) of Law No 146/1997 are 10 RON for applications relating to precautionary measures and 388 RON for applications for seizure of ships and aircraft. In some cases, the security required is half the stipulated sum.
2.2. Please describe the substantive conditions
- (On what criteria does the court base a
decision to issue a preventive measure?
- With regard to the complaint: must the
proceeding be an adversary procedure?
- With regard to the debtor:
- Is there any requirement as regards
- Is there any requirement to prove that
the decision will not be enforced owing to the removal or dispersal of
the debtor's assets?)
The existence of a
pending proceeding is necessary in the case of precautionary attachment and
precautionary garnishee (Articles 591 and 597 of the Civil Procedure Code).
However, in the case of attachment in aid of execution of judgment, the
measure can be taken even if there is no pending proceeding (Article 599 of
the Civil Procedure Code).
no requirement that the application must be urgent. However, for the creditor
there exists the possibility (not a requirement) to prove that the decision
will not be enforced owing to the removal or dispersal of the debtor's
assets, in cases of precautionary attachment and precautionary garnishee,
even if the creditor's claim is not enforceable. However, security must be
3. What is the object and nature of such measures?
3.1. What types of assets can be subject to such measures?
- bank accounts?
- tangible movable property?
- registered means of transport?
- immovable property?
- bank accounts through precautionary garnishee;
- tangible movable property through precautionary attachment;
- registered means of transport, through precautionary attachment;
- immovable property, through precautionary attachment and attachment in aid of execution of a judgment;
- intangible assets, securities, through precautionary garnishee.
3.2. What are the effects of such measures?
- with respect to a debtor who does not
comply with the preventive measures:
- Can he still have access to his assets?
- Can he be subject to a penalty?
- with respect to third parties:
- What are the bank obligations
concerning disclosure of information and seizure of accounts?
- What are the penalties for non-compliance
with preventive measures?
A debtor who does not
comply with the provisions concerning precautionary measures cannot access
his assets in the case of simple attachment, a type of enforced attachment.
With respect to third parties, there is no provision whereby the debtor can
be subject to a penalty. Banks have a general confidentiality requirement
regarding the data, persons, bank activity etc. specified in Articles 111-116
of Emergency Government Decree No 99/2006 concerning credit institutions and
Fines are imposed only if
the complainant obtains, in bad faith, a precautionary measure damaging to
the defendant. The defendant/debtor can be penalised under criminal law for failure
to comply with the court judgment.
3.3. What is the validity of such measures?
- Is a time limit provided for by law or
specified in the court order?
- Is the measure valid until issuance of
the judgment or of a supplementary measure?
- If an initial measure is ordered ex parte, is there a time limit
for arranging a hearing inter
The judgment establishes
a time limit, for example for the creditor to provide security subject to lifting
of the attachment by law.
The measure is valid
until a decision is handed down lifting the attachment if the application is
refused, becomes time-barred or is annulled. If the application is allowed,
the measure is valid until enforcement of the decision or until the debtor
provides sufficient guarantees.
If the judgment
concerning the precautionary measure has been handed down without the parties
appearing, in the event of an appeal the parties must appear before a
decision is handed down.
4. Is there a possibility of appeal against the measure?
- who can contest the measure?
- to which court should I apply to appeal
against the measure?
- what is the time limit for appeals?
- what is the effect of an appeal?
The dissatisfied party
can contest a judgment concerning precautionary measures only through an
appeal to the court immediately above the one that handed down the decision concerning
the grounds for the application for precautionary measures.
The time limit for
lodging an appeal is 5 days from the date of the judgment (if the parties
have been summoned to appear) or notification thereof (if the parties have
not appeared). The effect of an appeal is either to lift or maintain the
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