Status of Digitalisation of ESCP Enforcement Procedures

The judicial process in Romania as a whole has undergone numerous reforms in the area of digitalisation, increasing the use of electronic mail and digital systems provided by the courts or other public authorities. Implicitly, the ESCP procedure is also subject to these reforms.

Thus, the parties may communicate all documents to the court in electronic format, provided that the parties have a qualified electronic signature.

The parties may also receive any documents, including the judgment, from the court by e-mail, provided that the parties provide the court with an e-mail address and agree that the documents and the judgment may be communicated by e-mail.

Digital systems have been implemented at the level of the Courts of Appeal and the High Court of Cassation and Justice, allowing electronic access to court files, and for some courts there is the possibility to submit applications via the electronic file.

ESCP Procedural Aspects

1. Competent Enforcement Authority

According to Romanian law, the Civil Procedure Code 2010, the enforcement of an ESCP judgment can only be carried out by the bailiff and the enforcement procedure has the following main rules and stages:

• The person who wishes to enforce the ESCP judgment shall refer the matter to the competent bailiff;

• The bailiff is obliged to register the request for enforcement;

• Once the request for enforcement has been registered, the bailiff shall refer the matter to the enforcement court for a decision granting enforcement;

• After the communication of the decision granting enforcement, the bailiff shall proceed to enforce the judgment of the ESCP by seizing money from the debtor’s accounts, by tracing the movable and immovable property of the debtor or of third parties liable, under the law, for the debtors, as well as by other means permitted by law.

2. Rules on Service

In the judicial process, documents addressed to the court or sent by the court can be communicated in the following ways:

– Through the Romanian Post;

– Via courier services;

– By electronic mail, if requested by the parties;

– By fax;

– The parties may also file the documents in person at the court registry.

For the communication of documents by the parties through the Romanian post and courier services, specific delivery charges are payable.

In Romania, the most used means of communication is still the mail, but the use of electronic mail and digital systems provided by the courts is widespread.

3. Language of the Certificate and Documents to be Appended

According to Article 18 of the Code of Civil Procedure, the language of the civil proceedings is Romanian and all applications and procedural documents are drawn up in Romanian. Foreign citizens and stateless persons who do not understand or do not speak Romanian have the right to take cognizance of all the documents and papers of the case, to speak in court and to submit conclusions, through an authorized translator.

4. Enforcement Fees

The enforcement of the ESCP judgment in Romania involves the following costs:

– Stamp duty of 20 lei for the declaration of enforceability;

– Bailiff’s fee;

– Lawyer’s fee, if applicable;

– Other expenditure relating to the communication of documents.

The enforcement costs will be paid by the party seeking enforcement and will be recovered in the enforcement proceedings.

5. Refusal, Stay, or Limitation of ESCP Enforcement Procedures

The suspension or restriction of enforcement is ordered by the enforcement court.

On the suspension of enforcement, in accordance with Article 701 and Article 719 of the Code of Civil Procedure 2010:

• It can be requested by the debtor through a challenge to enforcement or through a separate application;

• It can also be ordered at the creditor’s request by the bailiff;

• In addition to the cases provided for in Regulation 861/2007, a stay of enforcement may also be ordered for the following reasons: a court judgment has declared the document (ESCP judgment) to be enforced to be false and the debtor proves by authentic instrument that he has obtained from the creditor a deferment or, as the case may be, a time limit for payment. For these grounds of stay of enforcement, no security is payable.

Restriction of enforcement is provided for in Article 702 of the Code of Civil Procedure 2010 and is ordered if the creditor is pursuing, at the same time, several movable or immovable assets whose value is clearly excessive in relation to the claim to be satisfied. In this case, the enforcement court may, only at the request of the debtor and with the creditor’s summons, restrict enforcement to specific assets.

Critical Assessment

It would be advisable to increase the amount of the claim up to the equivalent in euro of 50,000 lei.

Another recommendation is to establish a formal translation system to be used by the parties and the court in these proceedings. The use of the ESCP, which must be conducted in the official language of the country of the competent court when the claimant does not know the official language of that country, is a hindrance to the parties’ motivation to choose this procedure and to the smooth running of the proceedings.