Decision No. 4/2023, pronounced in an appeal in the interests of the law and published in the Official Gazette of Romania, part I no. 575 of June 26, 2023, the Supreme Court of Cassation decided a controversial legal issue in practice, namely the substantive and procedural competence of the courts charged with hearing appeals. Decision No. 4/2023 thus put an end to a significant divergence in judicial practice on this issue, to which conflicting decisions were found at the level of the same section of the same court, including the High Court of Cassation and Justice (sections and panel of 5 judges).

After an appeal to the Board of Directors of the Galati Court of Appeal, the Supreme Court was called upon to rule on the following legal issue: “In the interpretation of Art. 129 par. (2) Clause 2 of Art. 130 paragraphs (2), Art. 131 par. (1), Art. 133 and Art. 136 of the Code of Civil Procedure, which will determine the material procedural competence of the court of judicial control: the material procedural competence of the court that considered the dispute regarding the essence or nature, subject matter or price of the claim arising from the court decision. ?”

Before promulgation of RIL Decision no. 4/2013, two jurisprudential guidelines were outlined in the practice of Romanian courts.

In the first orientation, the courts decided that the substantive and procedural jurisdiction of the appellate court would be given the same jurisdiction as the court that tried the dispute on its merits. For example, if in the first instance the case was decided by the first civil section of the court, the appeal filed against the verdict will be considered by the first civil section of the highest court in the hierarchy – the court of appeals.

In the second orientationthe courts took into account that in appeals the competence will be determined by the nature, object or price of the claim brought to the decision, while there is no direct legal prohibition to check the competence by the court of the trial instance, since the latter has the opportunity to refer to its own incompetence during the first court session and with compliance all other special rules.

Examining the legal issue that is the subject of the appeal, in the interest of law, the High Court of Cassation referred to the provisions of the relevant civil procedural legislation, as well as to its decisions, issued earlier in the appeal in the interest of law. rights, with reference also to this analysis.

Thus, the Supreme Court of Cassation and Justice reminded that, according to its permanent judicial practice, material competence is distinguished within the scope of material competence functionwhich is established according to the type of jurisdictional powers vested in each category of courts (for example, trial at first instance, appellate, appellate) and subject matter jurisdiction proceduralwhich is determined in accordance with the object, nature and price of the claims submitted to the court decision. [1]

The specialized competence of the section or board, regulated by the content of Law no. 304/2022 [2]as in special laws, subject to competence ratione materiae procedurally established regarding the subject, nature or value of the dispute. According to Decision No. 17/2018, issued in an appeal procedure in the interests of the law, the material procedural lack of jurisdiction of the specialized section/college is public. [3]

Despite the fact that the judge or the parties may refer to the exception of procedural material incompetence, in accordance with Art. 130 and 131 of the Civil Code, only in limine litisaccordingly, before the first-mentioned court before the first term at which the parties are legally summoned and may submit briefs. After this procedural point, the reference to the exception of material procedural incompetence is no longer possible, the court in which the previous application was registered finally wins jurisdiction. [4]

As for the competence to consider reformation complaints (appeals, appeals), the legislator established it in favor of the court directly superior to the one that issued the contested decision. [5]. Therefore, it is necessary to turn to the court that actually tried the case, and not to the one that would be competent, according to the law, to decide the case, if the rules of jurisdiction were fully observed, because the jurisdiction in appeals, according to the legislator, is derived from the jurisdiction of the first court

In view of the above, the Supreme Court established by Resolution No. 4/2023 that the interpretation submitted in support of the first jurisprudential guideline is correct, but with a nuance, that is, only in the case of an appeal against a decision rendered by a court at the level of which there were specialized formations (chapter or fully specialized).

In this first hypothesis, the competence of the appellate court is established with respect to the court or, depending on the circumstances, the section or specialized panel that considered the case. The conclusion remains valid regardless of whether the specialized court recognized its material jurisdiction in accordance with Art. 131 par. (1) of the Code of Civil Procedure, or failed to do so, because after the first term, when the legally specified parties could present their conclusions, the material competence of the first vested court was completed and remains won in its favor. [6]

Vice versa in the second hypothesis, when the contested decision originates from the court of first instance, which was not structured in specialized entities, the material and procedural competence to resolve the appeal will be determined taking into account the object and nature of the cause, as they were established by the court. whose decision is appealed. In this case, the court of the judicial instance during the trial for the first time faces issues of procedural competence, having the right to check its own procedural competence, referring to the object and nature of the case, in accordance with the provisions of Art. 132 para. (1) of the Civil Procedure Code.

However, the legal qualification of the acts and facts stated in the judgment must be observed as established by the court whose decision is appealed, since we are at the stage before the effective resolution of the appeal; or the correct legal qualification of the object – this is a question of the legality of the decision, which will be analyzed during the decision of the appeal, depending on the circumstances, and not on the occasion of a preliminary check by the court of its competence. trial.

In conclusion, as per RIL decision no. 4/2023, in the interpretation and uniform application of Art. 129 par. (2) Clause 2 of Art. 130 paragraphs (2), Art. 131 par. (1), Art. 133 and Art. 136 of the Civil Procedure Code, the material and procedural competence of the court of judicial control will be determined: (a) in accordance with the specialization of the first court (full or separate), which will accordingly be applied also in the appeal or (b) ) when considering the object and nature of the dispute with compliance with the qualifications , established by the court of first instance, if the dispute was resolved at first instance by a court that does not include specialized structures (full or sections).

This decision given by the Supreme Court on a legal issue is binding from the date of publication of the decision in the Official Gazette of Romania, in accordance with Art. 517 of the Civil Procedure Code, which is especially useful for practicing lawyers.

Footnotes:

[1] In this sense, §16 ICCJ Decision no. 17 of September 17, 2018, published in M. of. Part I No. 872 of October 16, 2018; §155 ICCJ Decision no. 18 of October 17, 2016, published in M. of. Part I No. 237 dated April 6, 2017; §29 ICCJ Decision no. 16 of September 18, 2017, published in M. of. Part I No. 924 dated November 24, 2017.

[2] Law No. 304/2022 on the judiciary, published in the Official Journal Part I No. 1104 dated November 16, 2022.

[3] ICCJ Decision No. 17 of 17 of September 17, 2018, published in M. Of. Part I No. 872 dated October 16, 2018.

[4] See § 52 and 53 ICCJ Decision no. 31 of November 11, 2019, published in M. of. Part I No. 133 dated February 19, 2020.

[5] Articles 95 – 97 of the Code of Civil Procedure.

[6] In this regard, ICCJ Decision no. 31 of November 11, 2019, published in M. of. Part I No. 133 dated February 19, 2020.

The article is signed by Laura Mihalace, Senior Partner ([email protected]), STOICA & Associates.