Authorization of enforcement proceedings in light of the new decision of the Constitutional Court of Romania dated 18 December 2015
In the meeting held on 18 December 2015, CCR ruled that the provisions of Article 666 of the Code of civil procedure regarding the authorization of enforcement proceedings by bailiffs are unconstitutional, holding that the enforcement proceedings are no longer subject to judicial review, and that the requirement to ensure the right to an equitable lawsuit, insofar as the authority’s impartiality and independence are concerned, is no longer met.
The Court headed by Mr. Augustin Zegrean held that the provisions of Article 666 of the Code of civil procedure breach the constitutional provisions of Article 1 (4), to the effect that specific court activities are exercised by bailiffs. These provisions also infringe Article 21 (3) and Article 24, to the effect that the initiation of the enforcement proceedings is no longer subject to judicial review. In the opinion of the Court, on the one hand, the requirement to ensure the right to an equitable lawsuit, insofar as the authority’s impartiality and independence are concerned, is no longer met, and, on the other hand, the application of justice is ‘delegated’ to the bailiff.
Therefore, the original provisions of Article 373 and Article 3731 of the Former Code of Civil Procedure shall come into force again, under which the request for authorization of enforcement proceedings, accompanied by an enforceable title, shall be filed with the bailiff, and the bailiff, within maximum 5 days after the application has been filed, shall request the Court to authorize the enforcement proceedings.
The Court shall authorize the enforcement of the obligation set out in an enforceable title by a writ of execution issued in closed session without summoning the parties.
Pursuant to the decision upholding the request for authorization of enforcement proceedings, the bailiff shall proceed to the enforcement of the obligation set out in the enforceable title in any of the means provided for by the law.
The decision of the CCR of 18 December 2015 is mandatory and shall come into force upon its publication in the Official Journal. This decision shall not be applied retrospectively, but any enforcement proceedings authorized by bailiffs during this short period until publication may be challenged, the prerequisites for the court to cancel such enforcement proceedings being met.
During the forthcoming period, the manner in which the former provisions of the civil procedure code shall be harmonized with the new provisions, in light of the latest decision of CCR, should be monitored, most likely to become effective by means of an emergency ordinance.