In contractual relations between professionals, it is often the case that one of the contracting parties does not fulfill the financial obligations resulting from the agreement concluded between them. In these cases, the creditor of the claim has the possibility to take legal action against the debtor, appealing to the Romanian courts.
THE CREDITOR MAY BRING AN ACTION AGAINST THE DEBTOR:
- A request for a writ of summons, using the common law procedure;
- A request for the issuance of a payment order, using the special procedure provided for by art. 1014-1024 of the Civil Procedure Code;
- A request for a reduced amount, using the special procedure provided for in Articles 1026-1033; it should be noted that for the latter special procedures the conditions provided for by law for the claims subject to the procedure must be met.
However, this is the classic scenario in which the two co-contracting parties are two companies established in Romania. However, if the debtor of the obligation to pay a sum of money is a company established in another Member State of the European Union, the three procedures outlined in the previous paragraph will not be as easy. The same problem has been encountered throughout the European Union, which is why Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure was adopted.
The purpose of the Regulation is to simplify, speed up and reduce procedural costs in cross-border cases concerning uncontested pecuniary claims that are certain, of a fixed amount and due, by establishing a European order for payment procedure, and to ensure the free circulation of European orders for payment within all Member States by laying down minimum standards whereby no intermediate proceedings in the Member State of enforcement are necessary prior to recognition and enforcement. The procedure for issuing the European order for payment is valid in all Member States of the European Union, namely Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom, with the exception of Denmark, which has not taken part in this Regulation.
This Regulation applies in civil and commercial matters in cross-border disputes, regardless of the nature of the court. It does not regulate fiscal, customs or administrative matters, nor the liability of the State for acts or omissions in the exercise of State authority (acta jure imperii).
In the situation where contractual relations have been carried out between two entities, established in two different Member States, there is the possibility for the creditor of a claim that is certain, liquid and payable, to file a request with the competent court (Court/Court, if the creditor is a company established in Romania) for the issuance of a European order for payment.
THIS REQUEST CONSISTS OF FILLING IN A FORM IN WHICH DATA SUCH AS:
- the name and address of the parties and, where applicable, of their representatives, as well as of the court seised;
- the amount of the claim, in particular the principal and, where applicable, interest, contractual penalties and costs;
- where interest is charged on the claim, the interest rate and the period for which interest is charged, unless statutory interest is automatically added to the principal under the law of the Member State of origin;
- the cause of action, including a description of the circumstances invoked as the basis of the claim and, where applicable, the interest claimed;
- a description of the evidence in support of the claim;
- the basis of jurisdiction;
- the cross-border nature of the dispute within the meaning of Article 3.
After considering whether the summons has been properly completed, the court will be obliged to communicate the summons to the defendant (the company in the Member State) within 30 days of the resolution of the claim. The court will inform the defendant that:
- the summons was issued solely on the basis of information provided by the claimant and was not verified by the court;
- the summons will become enforceable unless an opposition has been lodged with the court in accordance with Article 16;
- where an opposition has been lodged, the proceedings continue before the competent courts of the Member State of origin (the Romanian court) in accordance with the ordinary rules of civil procedure, unless the claimant has expressly requested that the proceedings be terminated in this case.
If the defendant should file an opposition within the legal time limit provided for by the Regulation, he/she shall file the opposition with the court that issued the payment order (the Romanian Court/Court), and the judgment of the opposition shall take place according to the common law procedure provided for by the Romanian civil procedural law.
If the defendant does not file an opposition against the summons or the opposition is rejected by the Romanian court, the summons becomes enforceable and will be forwarded to the defendant by the court with the mention – enforceable.
Subsequently, the summons will have to be enforced in the Member State where the defendant is established. To this end, the claimant (creditor) must submit the following to the enforcement body (in the state where the defendant has its registered office):
– a copy of the European order for payment, as declared enforceable by the court of origin and fulfilling the conditions necessary to establish its authenticity;
– where applicable, a translation of the European order for payment into the official language of the Member State of enforcement or, if that Member State has several official languages, into the official language or one of the official languages of court proceedings of the place where enforcement is sought, in accordance with the law of that Member State, or into another language which the Member State of enforcement has indicated it can accept. Each Member State may indicate the official language or languages of the institutions of the European Union other than its own which it can accept for a European order for payment. The translation shall be certified by a person authorised for that purpose in one of the Member States.
This enforcement procedure will impose a number of costs, depending on the fees charged by the enforcement body in the Member State. In addition, for the issuing of a European enforcement order, a stamp duty of 200 RON will have to be paid and an extract from the national register of the defendant will have to be attached to the European enforcement order in order to certify that the defendant is still established in the Member State concerned.
A European order for payment issued in a Member State which has become enforceable should be treated for enforcement purposes as if it had been issued in the Member State where enforcement is sought. Mutual trust in the administration of justice in the Member States means that a court in one Member State may consider that all the conditions for issuing a European order for payment are met in order to allow enforcement of the order in all the other Member States without a judicial review of the correct application of the minimum procedural rules in the Member State where the order is to be enforced.