Is there a specific simplified procedure for collecting claims liable to remain uncontested by the defendant ("order-for-payment procedure")?
Yes. The relevant provisions are to be found in Government Ordinance No 2001, which was amended successively by Law No 295/2002 on the approval of the Ordinance, then by Ordinance No 142/2002 and, finally, by Law No 195/2004 amending and supplementing the Code of Civil Procedure.
In accordance with the Ordinance, the order-for-payment procedure is instigated, at the creditor’s request, with a view to the collection, voluntarily or by enforcement, of certain liquid and due claims representing outstanding payments of sums of money covered by a written agreement or determined under a statute, regulation or some other written provision which the parties have accepted by way of their signature or in another legally admissible manner and which attests to rights and obligations relating to the performance of services, works or the like.
Article 1(2) of the Ordinance stipulates that the sum representing the obligation under paragraph 1 as well as any interest, increases or penalties payable by the law are adjusted for the inflation rate recorded on the effective payment date.
The procedure is clearly optional for the claimant. However, according to Article 7, the order by the judge rejecting the creditor’s request is irrevocable but, in this case and in the case where the order has partially allowed the request, the creditor may apply for an action to be brought under ordinary law.
The order-for-payment procedure is available to any person, with no discrimination whatsoever and regardless of the parties’ citizenship. Of course, the international private-law rules regarding court jurisdiction, as stipulated under Law 105/1992, republished, must be observed.
Originally, the competent court was determined according to Article 2, which stipulated that all requests in this area, regardless of the value of the object concerned, were to be lodged with a court of first instance for civil matters and with a tribunal for commercial matters.
In the courts specified in paragraph 1, requests are decided on by a single judge, who checks the court’s competence ex officio, acting in accordance with the law.
Subsequently, Article 2 was amended by Law No 195/2005 to the effect that, as of the date on which this Law amending the Code of Civil Procedure Government Ordinance No 5/2001 came into force, requests for a summons for payment must be lodged with the court competent to judge the merits of the case at first instance.
Is this procedure governed by the general rules on court competence (a link to this datasheet could be included in such a case) or by different principles?
Yes, this special procedure is governed by the general rules on the territorial competence of the courts laid down in the Code of Civil Procedure, with Ordinance No 5/2001 expressly referring to the general rule, and with Article 11 expressly stating that the provisions of the Ordinance are supplemented by those of the Code of Civil Procedure.
There is no standardised form, but the claimant/creditor must observe the minimal formal requirements relating to the application, which has to include a series of specifications explicitly laid down in Article 3 of Ordinance No 5/2001, i.e.:
The contract or any other deed evidencing the sums payable must be attached to the application.
The application and the attached documents are lodged in as many copies as there are parties involved, plus one for the court.
No, representation by a lawyer is not obligatory, but it is recommended.
As pointed out in the answer under point a, the claimant/creditor must give at least three details from among the following: i.e. the debtor’s name/designation, his place of residence/business, the number of the certificate of registration with the commercial registry or registry for non-profit organisations, the tax code and bank account number, as well as the sum owed, the origin of the debt, its period and maturity.
Yes, you do. You have to attach to the application the contract or any other deed evidencing the sum owed (invoice, tax receipt, handwritten receipt, etc.).
In accordance with Article 6 of Ordinance No 5/2001, unless the file has been closed as provided for in Article 5, the judge reviews the application on the basis of the documents filed and the explanations and clarifications of the parties presented to him under Article 4(2) – (4). Article 4 stipulates that the judge may examine the application and the supporting files without summoning the parties.
When he deems it necessary for settling the application, the judge may, in accordance with the provisions of the Code of Civil Procedure on summoning parties in urgent cases, summon the parties for explanations and clarifications, as well as urge the debtor to effect payment of the sum owed or insist on the parties’ agreeing on the payment arrangements.
Copies of the creditor’s application and of the documents filed by the creditor in support of the application must be attached to the debtor’s summons. The summons must specify that the debtor may file the counter-arguments and the documents that can help contribute to settlement of the application by the day set for the opening of the proceedings.
When, after carrying out the examination provided for in paragraph 1, the court finds that the creditor’s claims are justified, the judge issues the order which includes the summons for payment to the creditor and specifies the period for making the payment.
In such cases the payment period must be at least 10 days and not more than 30 days, but the judge may set another period in agreement with the parties.
The judge’s ruling is delivered to the party in attendance or notified to each party immediately by registered letter (with acknolwedgement of receipt).The debtor is also notified of the creditor’s application and of the documents attached to it where these have been notified to the debtor in accordance with Article 4(3).
The judge therefore reviews the merits of the claim before issuing the summons for payment. And so, if the claim is unjustified, it is rejected.
The answer is in the affirmative, but there is a peculiar feature. To be specific, according to Article 7 of Ordinance No 5/2001, the order by the judge rejecting the creditor’s application is irrevocable. However, in such cases, as well as in cases where the creditor's/claimant’s application has been admitted in part, the creditor may bring an action under ordinary law.
According to Article 8 of Ordinance No 5/2001, as amended by Law No 195/2004, the debtor may bring an action for annulment of the order provided for in Article 6(2) within 30 days from the date on which it was delivered or notified.
The action for annulment is settled by the court competent to judge the merits of the case at first instance.
If the court allows the annulment action, it will annul the order and, at the creditor’s request, will proceed to judge the case on its merits under ordinary law.
Finally, the judgment whereby the application for annulment is repealed is irrevocable.
If the competent court allows the action for annulment brought by the debtor/defendant, it will repeal the order and, at the creditor’s request, proceed to judge the case on its merits under ordinary law.
The order to admit in whole or in part the creditor’s application against which no action for annulment has been brought under Article 8 is irrevocable.
At the creditor’s request, the order provided for in paragraph 1 or, as the case may be, the order against which the action for annulment provided for in Article 8 has been brought and which was though rejected by a judgment that has remained irrevocable by non-appeal or by rejection of the appeal will become enforceable, according to the provisions of the Code of Civil Procedure. Such an order constitutes an enforcement order issued to the creditor. A copy of the order is also delivered to the debtor.
According to Article 9 of Ordinance No 5/2001, the order allowing in whole or in part the creditor’s application against which no action for annulment has been brought under Article 8 is irrevocable.
At the creditor’s request, the order provided for in paragraph 1 or, as the case may be, the order against which the action for annulment provided for in Article 8 has been brought and which was through rejected by a judgment that has remained irrevocable by non-appeal or by rejection of the appeal will become enforceable, according to the provisions of the Code of Civil Procedure. Such an order constitutes an enforcement order issued to the creditor. A copy of the order is also delivered to the debtor.
The judgment needs to confer authority to execute. The relevant application is addressed to the court that ruled on the merits under the Code of Civil Procedure and then is executed by the bailiff in accordance with Article 373 of the Code of Civil Procedure.
The answer is in the affirmative, but some qualification is needed in that, under Article 10 of Ordinance No 5/2001, the interested party may contest execution, in accordance with the Code of Civil Procedure, under the terms of Article 399 et seq.
By contesting execution, the debtor may invoke substantive/defensive agruments against the execution order, except where he challenged the order to allow the creditor’s application with the action for annulment provided for in Article 8.
Last update: 04-12-2007