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Last update: 07-09-2007
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Interim and precautionary measures - Romania

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TABLE OF CONTENTS

1. What are the different types of measure? 1.
2. What are the conditions under which such measures may be issued? 2.
2.1. Please describe the procedure 2.1.
2.2. Please describe the substantive conditions 2.2.
3. What is the object and nature of such measures? 3.
3.1. What types of assets can be subject to such measures? 3.1.
3.2. What are the effects of such measures? 3.2.
3.3. What is the validity of such measures? 3.3.
4. Is there a possibility of appeal against the measure? 4.

 

1. What are the different types of measure?

  • (Please define the types of measure)
  • (Please give a list of existing measures)

Precautionary 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.

Precautionary measures 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 urgency?
    • 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).

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There is 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 provided.

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?
  • others?
  • 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 capital adequacy.

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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 partes?

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 precautionary measure.

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Last update: 07-09-2007

 
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