BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW · 1 Codul de Procedura Civila 1865 (Code of...

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1 BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW PROJECT REFERENCE: JLS/2006/FPC/21 – 30-CE-00914760055 THE EFFECT IN THE EUROPEAN COMMUNITY OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS: RECOGNITION, RES JUDICATA AND ABUSE OF PROCESS Project Advisory Board: The Rt Hon Sir Francis Jacobs KCMG QC (chair); Lord Mance; Mr David Anderson QC; Dr Peter Barnett; Mr Peter Beaton; Professor Adrian Briggs; Professor Burkhard Hess; Mr Adam Johnson; Mr Alex Layton QC; Professor Paul Oberhammer; Professor Rolf Stürner; Ms Mona Vaswani; Professor Rhonda Wasserman; Professor Mathijs ten Wolde Project National Rapporteurs: Professor Alegría Borrás (Spain); Mr Andrew Dickinson (England and Wales); Ms Esther Rivera (Spain – Assistant Rapporteur); Mr Christian Heinze (Germany); Professor Lars Heuman (Sweden); Mr Urs Hoffmann-Nowotny (Switzerland – Assistant Rapporteur); Professor Emmanuel Jeuland (France); Professor Paul Oberhammer (Switzerland); Mr Jonas Olsson (Sweden – Assistant Rapporteur); Mr Mikael Pauli (Sweden – Assistant Rapporteur); Dr Norel Rosner (Romania); Ms Justine Stefanelli (United States); Mr Jacob van de Velden (Netherlands) Project Director: Jacob van de Velden Project Research Fellow: Justine Stefanelli Project Consultant: Andrew Dickinson Project Research Assistants: Edward Ho Aniket Mandevia Floor Rombach Daniel Vasbeck

Transcript of BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW · 1 Codul de Procedura Civila 1865 (Code of...

Page 1: BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW · 1 Codul de Procedura Civila 1865 (Code of Civil Procedure of Romania, as amended up to and including 2006), art 255. 2 See

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BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW PROJECT REFERENCE: JLS/2006/FPC/21 – 30-CE-00914760055

THE EFFECT IN THE EUROPEAN COMMUNITY OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS: RECOGNITION, RES JUDICATA AND ABUSE OF PROCESS

Project Advisory Board: The Rt Hon Sir Francis Jacobs KCMG QC (chair); Lord Mance; Mr David Anderson QC; Dr Peter Barnett; Mr Peter Beaton; Professor Adrian Briggs; Professor Burkhard Hess; Mr Adam Johnson; Mr Alex Layton QC; Professor Paul Oberhammer; Professor Rolf Stürner; Ms Mona Vaswani; Professor Rhonda Wasserman; Professor Mathijs ten Wolde Project National Rapporteurs: Professor Alegría Borrás (Spain); Mr Andrew Dickinson (England and Wales); Ms Esther Rivera (Spain – Assistant Rapporteur); Mr Christian Heinze (Germany); Professor Lars Heuman (Sweden); Mr Urs Hoffmann-Nowotny (Switzerland – Assistant Rapporteur); Professor Emmanuel Jeuland (France); Professor Paul Oberhammer (Switzerland); Mr Jonas Olsson (Sweden – Assistant Rapporteur); Mr Mikael Pauli (Sweden – Assistant Rapporteur); Dr Norel Rosner (Romania); Ms Justine Stefanelli (United States); Mr Jacob van de Velden (Netherlands) Project Director: Jacob van de Velden Project Research Fellow: Justine Stefanelli Project Consultant: Andrew Dickinson Project Research Assistants: Edward Ho Aniket Mandevia Floor Rombach Daniel Vasbeck

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REPORT

The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process

Romania

Dr Norel Rosner

Levantplein 80

1019 MB Amsterdam

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I. Judgments .............................................................................................................5

A. The concept, form, structure and terminology of judgments ................................................. 5

B. The final determination and findings on issues of fact and law............................................. 9

C. The binding character of a judgment.................................................................................... 10

D. Judgments that are capable of having preclusive effects ..................................................... 11

II. Preclusive effects ...........................................................................................13

A. Claim preclusion ............................................................................................................... 13 1. Existence and nature of claim preclusive effects......................................................................................13 2. Policies underlying claim preclusive effects ............................................................................................13 3. Conditions for claim preclusive effects ....................................................................................................14 4. Invoking claim preclusive effects .............................................................................................................15 5. Exceptions to claim preclusive effects......................................................................................................15 6. Claimant and Defendant ...........................................................................................................................17 7. Other participants .....................................................................................................................................18 8. Represented persons .................................................................................................................................18 9. Persons connected to the Claimant, Defendant, and other participants ....................................................19 10. Strangers ..............................................................................................................................................19

B. Issue preclusion................................................................................................................. 20 1. The existence and nature of issue preclusive effects ................................................................................20 2. Policies underlying issue preclusive effects .............................................................................................21 3. Conditions for issue preclusive effects .....................................................................................................21 4. Invoking issue preclusive effects..............................................................................................................21 5. Exceptions to issue preclusive effects ......................................................................................................21 6. Claimant and Defendant ...........................................................................................................................22 7. Other participants .....................................................................................................................................22 8. Represented persons .................................................................................................................................22 9. Persons connected to the Claimant, Defendant, and other participants ....................................................22 10. Strangers ..............................................................................................................................................22

C. Wider preclusive effects ................................................................................................... 23 1. The existence and nature of wider preclusive effects ...............................................................................23 2. Policies underlying wider preclusive effects ............................................................................................24 3. Conditions for wider preclusive effects ....................................................................................................24 4. Invoking wider preclusive effects.............................................................................................................24 5. Exceptions to wider preclusive effects .....................................................................................................24 6. Claimant and Defendant ...........................................................................................................................25 7. Other participants .....................................................................................................................................25 8. Represented persons .................................................................................................................................25 9. Persons connected to the Claimant, Defendant, and other participants ....................................................25 10. Strangers ..............................................................................................................................................25

III. Preclusive effects of judgments within the Brussels/Lugano Regime ..........27

A. Recognition....................................................................................................................... 27 1. Judgments recognised...............................................................................................................................27 2. Procedural aspects of recognition.............................................................................................................28 3. Exceptions to the rule (grounds for non-recognition)...............................................................................29 4. Effects of recognition ...............................................................................................................................29

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B. Claim preclusion within the Brussels/Lugano Regime..................................................... 30 1. Existence and nature of claim preclusive effects......................................................................................30 2. Policies underlying claim preclusive effects ............................................................................................30 3. Law applicable to claim preclusive effects...............................................................................................30 4. Conditions for claim preclusive effects ....................................................................................................30 5. The identity of claims in the Brussels/Lugano Regime ............................................................................31 6. The identity of parties in the Brussels/Lugano Regime............................................................................31 7. Invoking claim preclusive effects under the Brussels/Lugano Regime ....................................................31 8. Exceptions to claim preclusive effects under the Brussels/Lugano Regime.............................................31 9. Persons affected by claim preclusive effects ............................................................................................32

C. Issue preclusion................................................................................................................. 32 1. Existence and nature of issue preclusive effects.......................................................................................32 2. Policies underlying issue preclusive effects .............................................................................................33 3. Law applicable to issue preclusive effects................................................................................................33 4. Conditions for issue preclusive effects .....................................................................................................33 5. Invoking issue preclusive effects..............................................................................................................33 6. Exceptions to issue preclusive effects ......................................................................................................34 7. Persons affected by issue preclusive effects .............................................................................................34

D. Wider preclusion (abuse of process/claims and issues that could or should have been raised)........................................................................................................................................ 34

1. The existence and nature of wider preclusive effects ...............................................................................34 2. Policies underlying wider preclusive effects ............................................................................................35 3. The law applicable to wider preclusive effects.........................................................................................35 4. Conditions for wider preclusive effects ....................................................................................................35 5. Invoking wider preclusive effects.............................................................................................................35 6. Exceptions to wider preclusive effects .....................................................................................................35 7. Persons affected by wider preclusive effects ............................................................................................35

E. Authentic instruments/court approved settlements........................................................... 36

IV. Preclusive effects of third state judgments....................................................37

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I. Judgments

A. The concept, form, structure and terminology of judgments Please describe the typical concept, form, structure and terminology of judgments in your legal system.

Summary:

There are three types of Romanian judgment: Sentinta, a judgment on the merits at first instance, Decizie, a judgment rendered on appeal, and Incheiere , a term which covers any other type of judgment.

The term “hotarare judecatoreasca” is synonymous with the English term judgment – i.e. a final determination of the dispute with res judicata effects. It is an umbrella term covering sentinta and decizie.

A Romanian judgment consists of three main parts: Practica, which includes administrative details, as well as information as to the object of claim and the arguments and evidence used by the parties, Considerente, the reasoning of the Court, and Dispozitiv , the decision of the Court. Judgments must also contain the ways to appeal and the term in which an appeal may be lodged.

Full Response:

As a matter of legal terminology, there are three types of judgments that Romanian courts can render in civil and commercial matters, depending on the nature of the court and the matter settled through such judgment1.

Accordingly, judgments on the merits rendered by courts of first instance (Judecatorie or Tribunal) are named “sentinta” or “sentinte” (plural). It should be noted that the reference in the Code of Civil Procedure to judgments on the merits includes any judgements rendered in first instance whereby the court will no longer try the respective case (eg: declination of jurisdiction, inadmissibility of the claim, annulment of the complaint)2.

Judgments rendered in appeal or as a result of an appeal in cassation (recurs), as well as judgments rendered as a result of a request for revision in the interest of the law (recurs in interesul legii) are named “decizie” or “decizii” (plural)3.

Finally, any other judgments rendered by court are generically named “incheiere” or “incheieri” (plural)4.

In literature, the general term used to describe any legal acts issued by courts in Romania is “hotarare judecatoreasca”, which means literally judicial decision5. Alternatively, the same term is used in a narrower sense, to describe only the final and imperative act issued by courts which resolves the litigation between parties and which has res judicata effects6, in fact comparable with the English term judgment. In other words, the term is used to describe the first two types of judgments mentioned above, namely “sentinte” and “decizii”. The same conclusion may be drawn if one takes into consideration the language of article 255 of the Code of Civil Procedure.

This would be the sense in which this terminology will be used in the present chapter. As a consequence, when reference is being made to “judgment(s)” or its Romanian equivalent of “hotarare judecatoreasca”, one has in mind a court's final determination of the rights and obligations of the parties in a case, in other words “sentinte” and “decizii”. Separate reference will be made when other types of judicial acts (“incheiere”) will be mentioned.

With regard to its form and structure, a Romanian judgment will typically consist of three main parts7:

• A first part, called “practica” will include (i) details of the court and of the judges that tried the case, (ii) the name, domicile or habitual residence of the parties, their procedural role, as well as the names of their legal representatives and of their attorneys, (iii) the object of the claim, as well as briefly the parties’ contentions and the evidence provided, and (iv) the statement(s) submitted by the public prosecutor (“procuror”), where it participates in the trail8;

1 Codul de Procedura Civila 1865 (Code of Civil Procedure of Romania, as amended up to and including 2006), art 255. 2 See Mihaela Tabarca and Gheorghe Buta, Codul de Procedura Civila Comentat si adnotat cu legislatie, jurisprudenta si doctrina (Universul Juridic, Bucharest 2007) 683. 3 Codul de Procedura Civila (n1) art 255. 4 ibid. 5 Maria Fodor, Drept Procesual Civil, (2nd vol Universul Juridic, Bucharest 2007) 381. 6 ibid. 7 ibid, Tabarca and Buta (n2) 702. 8 Codul de Procedura Civila (n1) art 261.

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• A second part, called “considerente” or “motivare” would essentially consist of the factual and legal reasons that led to the court’s decision, including the decision related to the rejection of the claim(s)9. Lack of reasoning or improper reasoning may trigger the nullity of the judgment10. A brief and confusing reasoning was considered to be improper by the Romanian Supreme Court of Justice11 (currently the High Court of Cassation and Justice). The judge(s) is bound to explain in writing the reasons why a certain solution has been chosen, its attitude towards parties’ contentions and the evidence submitted or the reasons why a certain legal norm has been applied or a certain interpretation has been preferred12. However, there is no obligation to address all the arguments invoked by the parties. It is sufficient that such arguments have been implicitly addressed by the judgment in its entirety13.

• Finally, the decision/dictum (“dispozitiv”) arrived at by the court;

• In addition, Romanian judgments have to contain two additional elements, namely the ways pf appeal and the term in which an appeal may be lodged, as well as reference to the fact that the judgment has been pronounced in public session and the signatures of the judges and of the court’s registrar.

Example of judgment issued by the High Court of Cassation and Justice14:

“Motivarea hotărârii judecătoreşti. Răspunsul judecătorului la fiecare argument invocat de părţi poate fi şi

implicit.

Codul de procedură civilă, art. 261 alin. (1) pct.5 În conformitate cu dispoziţiile art. 261 alin.(1) pct. 5 din Codul de procedură civilă, hotărârea se dă în numele

legii şi va cuprinde motivele de fapt şi de drept care au format convingerea instanţei, cum şi cele pentru care s-au

înlăturat cererile părţilor. Condiţiile procedurale privind motivarea hotărârii sunt îndeplinite chiar dacă nu s-a

răspuns expres fiecărui argument invocat de părţi, fiind suficient ca din întregul hotărârii să rezulte că s-a

răspuns tuturor argumentelor în mod implicit, prin raţionamente logice.

Î.C.C.J., Secţia de contencios administrativ şi fiscal,

Decizia nr. 2522 din 29 iunie 2006

Curtea de Apel Bucureşti - Secţia a VIII-a Contencios Administrativ şi Fiscal judecând cauza în fond după

casare, prin sentinţa civilă nr.2013 din 30 noiembrie 2005, a admis acţiunea formulată de reclamanta S.C.

MTC S.R.L., a anulat punctul nr.2 din dispozitivul deciziei nr.408/17 iulie 2002, emisă de Ministerul Finanţelor

Publice, privind obligarea reclamantei la plata sumei de 54.794.848 ROL, reprezentând majorări de întârziere şi a

anulat procesul –verbal de control nr.981/20 mai 2002.

9 ibid. 10 Tabarca and Buta (n2) 702. 11 CSJ, sectia de contencios administrativ, decizia no. 723/2000, 3 Dreptul 2001, 162 (Romanian Supreme Court of Justice). 12 Tabarca and Buta (n2) 702-703. 13 ICCJ, sectia de contencios administrative si fiscal, decizia no. 2522/2006, 4 Dreptul 2007, 244 (Romanian High Court of Cassation and Justice). 14 ibid.

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Pentru a pronunţa această soluţie, instanţa a reţinut în esenţă, că reclamanta nu a procedat la recalcularea

impozitului pe profit, datorat pentru contractul de leasing nr. Mal 04015 iunie 1999 şi nici nu a înregistrat în luna

februarie 2002 în contul contabil „602”, diferenţe de rectificare /stornare de cheltuieli aferente acestui contract de

leasing, aşa cum au arătat autorităţile fiscale în actele administrative contestate. Considerentele reţinute de instanţă au rezultat din balanţa contabilă întocmită de reclamantă la 28 februarie

2002 şi din concluziile raportului de expertiză efectuat în cauză, potrivit art.315 alin.1 Cod procedură civilă,

conform celor stabilite prin decizia nr.353/25 ianuarie 2005 a Înaltei Curţi de Casaţie şi Justiţie – Secţia contencios

administrativ şi fiscal. Împotriva acestei hotărâri au declarat recurs pârâţii, criticând-o pentru nelegalitate şi netemeinicie. În motivarea recursului său, recurenta-pârâtă Garda Financiară – Comisariatul General a arătat că sentinţa

atacată a fost pronunţată cu încălcarea prevederilor art.261 alin.5, în sensul că instanţa de fond nu a menţionat

motivele de fapt şi de drept care i-au format convingerea şi nu s-a pronunţat asupra unor dovezi hotărâtoare, situaţie

care face imposibilă exercitarea controlului judiciar. De asemenea, recurenta-pârâtă a arătat că sentinţa a fost pronunţată cu aplicarea şi interpretarea greşită a

legii şi a probelor administrate în cauză. În acest sens, recurenta-pârâtă a arătat că în faza procedurii administrative prevăzute de O.U.G. 13/2001,

intimata-reclamantă nu a invocat argumente de fond privind nelegalitatea stabilirii majorărilor de întârziere în sumă

de 54.794.848 ROL, singurul motiv de anulare a procesului-verbal de control fiind încălcarea art.19 alin.2 din O.G.

70/1997 de către organul de control. Susţinerile făcute pentru prima dată în faţa primei instanţe nu puteau fi luate în

considerare, întrucât legalitatea deciziei de respingere a contestaţiei se analizează numai în funcţie de motivele şi

argumentele prezentate în baza procedurii administrative prealabile. În fapt, a arătat recurenta-pârâtă, intimata-reclamată a înregistrat eronat pe cheltuieli deductibile la calculul

profitului impozabil contravaloarea ratelor de leasing aferente contractului nr. MAL nr. 040/15 iunie 1999,

considerându-l leasing operaţional, iar în luna februarie 2002 a procedat la recalcularea impozitului pe profit, prin

reconsiderarea contractului ca fiind de leasing financiar. Pentru suma de 29. 509.478 lei, rezultată în plus ca urmare a recalculării impozitului pe profit în luna

februarie 2002, intimata—reclamantă a depus la organul fiscal teritorial cererea de compensare cu TVA de

rambursat nr.1080/30 aprilie 2002, iar majorările de întârziere în sumă de 54.794.848 ROL au fost calculate pentru

perioada în care impozitul pe profit a fost diminuat. Recurenta-pârâtă a mai arătat că instanţa trebuia să înlăture concluziile raportului de expertiză contabilă,

întrucât expertul a avut în vedere date consemnate în evidenţa financiar-contabilă după data încheierii procesului-

verbal de control din 20 mai 2002, ceea ce duce la concluzia că la data efectuării controlului, evidenţa financiar-

contabilă nu era întocmită la zi. În ceea ce priveşte constatarea instanţei, că procesul-verbal de control a fost încheiat cu încălcarea art.19

alin.2 din O.G. 70/1997, în sensul că perioada în care s-a derulat contractul de leasing a mai fost verificată de

Administraţia Finanţelor Publice Sector 3, recurenta-pârâtă a arătat că este eronată, întrucât controlul Gărzii

Financiare a vizat o altă perioadă de timp decât cea consemnată în actul de control al organului fiscal teritorial şi

anume dacă în luna februarie 2002 a fost calculat corect impozitul pe profit. În motivarea recursului pe care l-a formulat, recurenta-pârâtă Agenţia Naţională de Administrare Fiscală a

invocat prevederile art.304 pct.9 Cod procedură civilă, arătând că în temeiul prevederilor O.G. nr.51/28.august 1997,

republicată, privind operaţiunile de leasing şi societăţile de leasing, aprobată prin Legea nr.90/1999 şi ale O.M.F.

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nr.686/1999, pentru aprobarea normelor privind înregistrările operaţiunilor de leasing, în cazul leasingului financiar,

astfel cum a fost calificat contractul nr. MAL 040/1999, reprezintă cheltuieli deductibile la stabilirea impozitului pe

profit doar cota de amortizare calculată conform prevederilor legale şi dobânda aferentă derulării contractului de

leasing. Pe de altă parte, recurenta-pârâtă a arătat că în speţă nu sunt incidente prevederile art.19 alin.2 din O.U.G.

nr.70/1997 privind controlul fiscal, pentru că intimata-reclamantă nu a adus nici un argument din care să rezulte că

impozitul pe profit aferent lunii februarie 2002 a fost verificat anterior, iar alte motive de nelegalitate nu au fost

invocate în contestaţie, conform art.3 alin.1 lit.c din O.U.G. 13/2001. Examinând cauza în raport de motivele de recurs invocate şi de prevederile art.3041 Cod procedură civilă,

ţinând seama de înscrisurile depuse la dosarul de fond şi de prevederile legale aplicabile în cauză, Curtea constată că

recursurile nu sunt fondate. Sentinţa atacată cuprinde motivele de fapt şi de drept care au format convingerea instanţei, precum şi cele

pentru care s-au înlăturat argumentele pârâtelor, conform art.261 alin.1 pct.5 Cod procedură civilă. Judecătorul nu este obligat să răspundă în mod expres fiecărui argument invocat de părţi, fiind suficient ca

din întregul hotărârii să rezulte că a răspuns tuturor argumentelor în mod implicit, prin raţionamente logice. În consecinţă, Curtea constată neîntemeiată critica vizând nemotivarea sentinţei, încadrată în prevederile

art.304 pct.7 Cod procedură civilă, cuprinsă în recursul Gărzii Financiare– Comisariatul General. Potrivit art.315 alin.1 Cod procedură civilă, în caz de casare, hotărârile instanţei de recurs asupra

problemelor de drept dezlegate, precum şi asupra necesităţii administrării unor probe sunt obligatorii pentru

judecătorii fondului. Obiectivele expertizei contabile efectuate în cauză au fost stabilite conform indicaţiilor cuprinse în decizia de

casare nr.353/25 iunie 2005 a Înaltei Curţi de Casaţie şi Justiţie –Secţia de Contencios Administrativ şi Fiscal, iar la

soluţionarea cauzei a fost avut în vedere şi răspunsul la obiecţiunile formulate de intimata-pârâtă Garda Financiară

Centrală. În procesul-verbal nr.991 încheiat la data de 20 mai 2002, organul de control a reţinut că în luna februarie

2002, societatea reclamantă a reconsiderat contractul de leasing nr. MAL 040, procedând la recalcularea

impozitului pe profit, dar această afirmaţie, reluată şi în cererile de recurs, nu este susţinută de nici unul dintre

înscrisurile depuse la dosar şi este infirmată de concluziile raportului de expertiză contabilă întocmit pe baza

verificării documentelor şi evidenţelor de specialitate, conform art.201 alin.1 Cod procedură civilă. Recurentele–pârâte au făcut referire la o cerere de compensare a impozitului pe profit stabilit în plus cu TVA

de rambursat (cererea nr.1080/30 aprilie 2002 ), dar nu au depus această cerere la dosar, pentru a se verifica dacă

există vreo legătură între suma pentru care s-ar fi solicitat compensarea şi pretinsa sumă stabilită în plus cu titlu de

impozit pe profit în urma unei reconsiderări a contractului de leasing nr.MAL 040/15 iunie 1999, reconsiderare care

s-ar fi făcut din iniţiativa intimatei-reclamante şi care ar fi putut fi interpretată drept o împrejurare nouă care să

justifice controlul. Potrivit art.19 alin.1 din O.G. 70/1997, aprobată prin Legea 64/1999, privind controlul fiscal, în vigoare în

perioada supusă analizei, controlul fiscal se efectua o singură dată, pentru fiecare impozit şi pentru fiecare perioadă

supusă impozitării. Alineatul 2 al aceluiaşi articol prevedea, prin excepţie de la alineatul 1, că reverificarea unei anumite

perioade era permisă dacă de la data încheierii controlului fiscal şi până la împlinirea termenului de prescripţie

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apăreau date suplimentare, necunoscute organului de control fiscal la data efectuării controlului, de natură să

influenţeze sau să modifice rezultatele acestuia. În procesul –verbal nr.991/20 mai 2002 se prevede expres că obiectivul controlului îl constituie verificarea

derulării, evidenţierii şi înregistrării în contabilitate a contractelor de leasing nr. AFIVPRO/112/1998 şi MAL

040/15 iunie 1999 şi nicidecum verificarea impozitului pe profit pe luna februarie 2002, aşa cum se susţine în

cererile de recurs, majorările de întârziere fiind calculate pentru perioada derulării contractului. Modul de calcul al impozitului pe profit şi legalitatea înregistrărilor efectuate în contabilitate cu privire la

contractul de leasing în discuţie mai fuseseră însă verificate, prin procesele –verbale depuse la dosarul de fond, astfel

încât organul de control fiscal nu mai putea proceda, din oficiu, la recalificarea naturii contractului de leasing. În aceste condiţii, instanţa de fond a reţinut în mod corect încălcarea prevederilor art.19 din O.G. 70/1997,

întrucât nu s-a făcut dovada existenţei unor date suplimentare pentru perioada deja controlată. Susţinerile reclamantei, privind inexistenţa unei recalculări a impozitului pe profit în luna februarie 2002, ca

efect al reconsiderării contractului de leasing nr. MAL nr.040/15 iunie 1999, nu sunt motive noi de nelegalitate cu

privire la actele administrativ – fiscale, neinvocate în contestaţia administrativă, ci argumente în sprijinul ideii că

procesul-verbal de control atacat a fost întocmit fără să existe date suplimentare ulterioare controalelor deja

efectuate, în sensul art.19 alin.2 din O.G. 70/1997. În raport de aceste considerente, Curtea constată că sentinţa instanţei de fond a fost pronunţată cu

interpretarea corectă a probelor administrative în cauză şi cu aplicarea corespunzătoare a prevederilor legale

invocate, neexistând motive de modificare sau casare a hotărârii, conform art.304 pct.9 sau 3041 Cod procedură

civilă, astfel încât recursurile au fost respinse ca nefondate.”

B. The final determination and findings on issues of fact and law How does the court's determination of a matter in your legal system relate to the findings on issues of fact and law on which this determination is based?

Summary:

Determinations must be supported by legal/factual reasoning. Where this is not the case or where the reasoning contradicts the decision reached, the decision can be annulled. Appeal Courts can review the findings of fact and law of lower Courts.

Full Response:

As stated under question A above, a judgment issued by a Romanian court will essentially contain three parts: general information which will enable the identification of a case, the reasoning and, finally, the decision itself. The reasoning will contain findings of fact and law that will allow the court to reach a certain decision, admitting certain claim(s) and rejecting others15.

Under the Romanian legal system, this distinction is based on law (article 261 Code of Civil Procedure). Such findings of fact and law, as included in the reasoning of the court, are strictly related to the decision arrived at in the third part of the judgment (dictum)16. Accordingly, a logical flow has to exist between the findings of fact and law enshrined in the reasoning and the decision rendered by the court. If the dictum is not based on the reasoning or, an even more serious flaw, the dictum contradicts the reasoning, than such judgment can be considered without reasoning and, as a result, be annulled17.

15 Codul de Procedura Civila (n1) art 261. 16 Fodor (n5) 387. 17 ICCJ, sectia comerciala, decizia no. 963/2005, cited on http://www.scj.ro accessed 11 December 2007 (Romanian High Court of Cassation and Justice).

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Appeal courts may review such findings of fact and law as established by the lower court18. This, however, will be done only within the limits of the request of appeal. On the other hand, appeals in cassation may be directed only against the dictum of the judgment19. Nevertheless, in trying such requests the court may review the findings of fact and law in order to interpret the dictum20.

C. The binding character of a judgment Please describe the prerequisites for a judgment to have binding character so as to be capable of having preclusive effects in your legal system.

Summary:

For a Romanian judgment to have binding effect it must contain the four required elements, the court issuing it must have subject matter and territorial jurisdiction over the dispute and have tried the case on the merits.

In the event of an appeal, the judgment retains its binding character until it is set aside. If the same issue is re-litigated between the same parties and res judicata is not raised, then an expedited appeal process is engaged to enable a higher court to annul the second judgment.

Full Response:

A judgment issued by a Romanian court has to contain all the elements mentioned above under question A. Failure to contain one or more of such elements may trigger the nullity of the judgment in question21. In other words, in order to have binding effects, a Romanian judgment has to comply with the formal legal requirements. However, it should be mentioned that if a judgment does not comply with such requirement its nullity is not ex officio and may be pronounced if the judgment in question has caused a procedural prejudice to a party that may be remedied only by declaring such judgment null22.

In addition, in order to be valid (i.e. able to withstand an attack in the form of a request for relief from judgment) the court rendering such judgment in first instance has to have subject-matter and territorial jurisdiction, has to try the case on its merits and, in case of a judgment rendered in default of appearance, to have issued proper notice to the defaulting defendant. While the first two requirements would trigger the annulment of the judgment in appeal, the latter would lead to its setting aside23.

As long as no appeal has been lodged, a judgment issued by a Romanian court, even if not yet final (i.e. which may be subject to appeal proceedings), has res judicata effects (“putere de lucru judecat”) and, hence, binding character24. One of the consequences of lodging an appeal is suspension of execution of the challenged judgment25. However, until such time as the judgment is reversed, it maintains its binding character. If, as a result of an attack on the judgment in the form of an appeal, it is being set aside or annulled, the judgment in question will loose its res judicata effects and, hence, its binding character. As a consequence, it can be contended that Romanian judgments on the merits have temporary res judicata effects as soon as they are rendered, status which can be consolidated or, on the contrary, reversed after possible appeal proceedings.

In the situation where a party fails to invoke the res judicata exception in a subsequent procedure on the same cause of action and between the same parties, or even if invoked such exception has not been debated during trail, then the risk exists that inconsistent judgments will be rendered. In such cases Romanian law26 allows for an extraordinary way of appeal called motion to alter (“revizuire”) whereby the higher court will be seized with this matter. This way of appeal may succeed only if the request for annulment concerns the second rendered judgment in time27.

Where a judgment is based on the binding character of another judgment and the latter has been either annulled or altered, a motion to alter the second judgment may be lodged with the Romanian court that rendered such

18 Codul de Procedura Civila (n1) art 295. 19 There is an exception to this rule, where the appeal in cassation is grounded on the lack of or inconsistent reasoning. Codul de Procedura Civila (n1) art 304(7). 20 Fodor (n5) 467. 21 Tabarca and Buta (n2) 702. 22 Codul de Procedura Civila (n1) art 105(2). 23 ibid, art 297. 24 Fodor (n5) 400. 25 The literatures agrees that as long as the term for lodging an appeal has not expired the execution of the judgment is suspended (Fodor (n5) 436, Tabarca and Buta (n2) 1209). An appeal in cassation has such effects only in exceptional circumstances. 26 Codul de Procedura Civila (n1) art 322(7). 27 Fodor (n5) 580.

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judgment28. The motion to alter has to be lodged within one month after the first judgment has been either annulled or altered and may result either in the annulment or modification of the second judgment.

D. Judgments that are capable of having preclusive effects Please identify and describe (1) the types and characteristics of judgments in your legal system that are capable of having preclusive effect and (2) any types of judgments that are not capable of having preclusive effects.

Summary:

Judgments rendered at first instance (sentinta) have preclusive effect. This effect is temporary till either the judgment is confirmed on appeal or the period for lodging an appeal elapses. Final judgments (decizie) have full preclusive effect as soon as they are rendered. Incheieri have preclusive effect as to the matter settled by the Court in such acts. Provisional judgments, in contrast to definitive judgments which resolve the merits of a case, do not have preclusive effects.

Full Response:

In addition to the distinction made above under question A, between judgments issued by courts of first instance on the merits (“sentinte”), those issued in appeal or appeal in cassation (“decizii”) and other types of judgments, such as for instance procedural orders (“incheieri”), there are a number of categories of judgments that should be mentioned in this context. With regard to “sentinte”, they would entail preclusive effects when they are rendered. However, such effects are temporary and could be either reversed in appeal or consolidated should appeal proceedings be not successful or in case the term for lodging an appeal has expired. “Decizii” are final judgments that have preclusive effects. Finally, “incheieri” would have preclusive effects as to the matter settled by the court in such acts, for instance where a party is ordered to submit certain documents.

Another distinction relevant in this context is that between provisional and definitive judgments29. While the former are temporary measures taken in urgent situations, the latter are judgments on the merits of the case. Definitive judgments will have preclusive effects even if an appeal can still be lodged. As stated above, in this case the preclusive effects have a temporary character, and may be consolidated if no appeal is lodged within the legal term or if the initial judgment is upheld as a result of such appeal. Provisional judgments, such as presidential ordinances (“ordonanta prezidentiala”) rendered base on article 581 Code of Civil Procedure do not have preclusive effects with regard to the trial on the merits of the case or with regard to another provisional judgment, in case the factual situation that justified such a measure has been changed30.

A further distinction is being made in the Code of Civil Procedure between partial and entire judgments. Accordingly, based on article 270 of the Code of Civil Procedure, if the defendant accepts part of the claim(s), the courts may render a partial judgment recording such acceptance. Such partial judgments cannot be challenged in appeal proceedings31. They can be attacked only with an appeal in cassation. However, this detail does not influence their preclusive effects, which begins to run for both types of judgments from the moment they are rendered.

Yet another distinction may be made between final and not final judgments, as well as judgments that are irrevocable32. Final judgments are those rendered in appeal or those rendered by the courts of first instance against which no appeal has been lodged or such has not been successful. Judgments rendered by courts of first instance are not yet final, unless no appeal is open for such judgments. Irrevocable judgments are those rendered either by courts of first instance or in appeal for which an appeal in cassation is no longer available, as well as judgments given as a result of an appeal in cassation. This distinction, however, does not have an influence on the res judicata status of such judgment. As stated above under question C, Romanian judgments on the merits will have res judicata status, and hence preclusive effects, from the moment they are rendered. If such a judgment is not yet final, this status will either be consolidated after appeal proceedings or in case such appeal has not been lodged and the term has expired, or reversed if the appeal is successful.

Finally, in the Romanian legal literature a further distinction is being made between condemnatory judgments, where the defendant is ordered to do something, declaratory judgments, confirming or denying a legal status and constitutive judgments, creating, altering or ending a certain legal status33. While this distinction has influence on whether a judgment is feasible for execution or not (declaratory judgments being feasible only for recognition), or 28 Codul de Procedura Civila (n1) art 322(5). 29 Fodor (n5) 382. 30 Tabarca and Buta (n2) 1421. 31 ibid, 721. 32 Fodor (n5) 383, Codul de Procedura Civila (n1) art 377. 33 A Nicolae, “Aspecte privind efectele substantiale ale hotararii judecatoresti” 2 Revista romana de drept privat 2007, 99.

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on whether a judgment has retroactive effects (constitutive judgments having effects only for the future)34, all such judgments are capable of having preclusive effects.

34 Fodor (n5) 400.

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II. Preclusive effects

This part of the questionnaire is concerned with the effects of a judgment (including, for this purpose, any statement of the reasons given for a judgment) insofar as it restricts the ability of the participants in the proceedings in which it was given, or related or non-related persons, to bring or conduct later proceedings (whether or not forming part of the same action) as they would wish. In particular, this section is concerned with so-called rules of "res judicata" or their equivalent. References to "Claimant" are to the person seeking a remedy from the court, and references to "Defendant" are to the person against whom a remedy is sought.35 The terminology used in this intended for guidance only and is not intended to exclude or restrict discussion of the legal concepts and terms which are relevant to your legal system. This section is not concerned with the evidential status of the record of judgment, nor with the value of judgments as a legal precedent for future cases (stare decisis), both of which fall outside the scope of this Project. For the purpose of drafting the questionnaire, a distinction has been drawn between "claim preclusive effects" (see Part II.A) and "issue preclusive effects" (see Part II.B). These are intended to be descriptive categories, the former (which might also be described as "same claim preclusion") embracing rules of preclusion affecting the raising of claims which a legal system considers to have been determined in earlier proceedings and the latter embracing rules of preclusion affecting attempts to re-open issues of law or fact which a legal system regards as having already been determined in earlier proceedings. A third category of "wider preclusive effects" has been used (see Part II.C) to accommodate rules of preclusion which are considered to fall into neither of these categories. Those co-ordinating the Project recognise, however, that different legal systems will approach the categorisation differently depending on how they define the concepts of “claim” and “issue”, and that terminology will vary (e.g. in England, reference is made to "cause of action estoppel", "issue estoppel" and to various other rules, including "abuse of process"). Rapporteurs are thus encouraged to be flexible and to fit their description of the law and practice of their legal system into the framework established below as they think most appropriate.

A. Claim preclusion

1. Existence and nature of claim preclusive effects Are judgments in your legal system capable of having claim preclusive effects?

Romanian judgments, even if not yet final (i.e. may be subject to appeal) have res judicata status. According to article 1201 Civil Code, the status of res judicata presupposes that a second claim based on the same cause of action, having the same object and between the same parties would be precluded. In other words, Romanian judgments have substantive claim preclusive effects. Such effects are produced when the judgment is rendered36. As stated above, finality is not a condition for such.

2. Policies underlying claim preclusive effects What are the policy considerations for the claim preclusive effect of judgments in your legal system?

Summary:

Two policy considerations operate to justify giving judgments preclusive effect: first that a claim can only be finally settled once and second the need to avoid irreconcilable judgments.

Full Response:

The res judicata effects of judgments under the Romanian legal system are not expressly regulated by law37. However, based on two legislative provisions dealing with the definition of res judicata (art. 1201 Civil Code) and

35 Thus, for example, a person named as Defendant in legal proceedings who advances a counterclaim should be treated as "Defendant" for the purposes of the main claim against him (including, for example, any true defence of set-off) and "Claimant" for the purposes of the counterclaim. 36 Fodor (n5) 400. 37 ibid, 401.

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the res judicata exception of article 166 Code of Civil Procedure, the opinion expressed in the literature38 is that the policy considerations for granting res judicata effects to judgments are in fact that a claim can be finally settled only once (“bis de eadem re ne sit actio”) and the solution contained in a judgment is presumed to express the truth and should not be contradicted in another judgment (“res judicata pro veritate habetur”). In this context, these legislative provisions should be cited. Accordingly, article 1201 Civil Code39 reads as following: “Este lucru judecat atunci cand a doua cerere in judecata are acelasi obiect, este intemeiata pe acceasi cauza si este intre aceleasi parti, facuta de ele si in contra lor in aceeasi calitate.” “Res judicata is where the second claim has the same object, is based on the same cause of action and is between the same parties, done by them and against them in the same capacity.” (translation by the author) Article 166 Code of Civil Procedure reads as following: “Exceptia puterii lucrului judecat se poate ridica, de parti sau de judecator, chiar inaintea instantelor de recurs.” “The res judicata exception may be raised by the parties or by the judge, even before the appeal courts.” (translation by the author)

3. Conditions for claim preclusive effects What are the conditions for the claim preclusive effects of a judgment?

Summary:

To engage the preclusive effect of a judgment it must be shown that litigation has the same object (the court looks to the substance and not the form of the action), is based on the same cause of action, that is the same legal basis, and is between the same parties as in the original litigation (who need not have the same roles in the second claim as in the first).

Full response:

Under Romanian law, three distinct elements are required in order to invoke the preclusive effects of a previous judgments40:

• Same object (obiect);

• Same cause of action (cauza);

• Same parties (parti).

On the first element, the need for a similar object (claim), Inalta Curte de Casatie si Justitie (the High Court of Cassation and Justice) was of the opinion that for the res judicata exception to be successful it is sufficient that the claims have similar in concreto objective41. It is therefore not necessary that the claims should be similarly formulated42.

As to the second element, the same cause of action, it is necessary that both claims have the same legal basis. Accordingly, the Court of Appeal Iasi43 rejected the res judicata exception since the first claim was based on a statutory provision (Law 18/1991 on the restitution of land), while the second claim was based on a contractual provision.

38 See Viorel Mihai Ciobanu, Tratat teoretic si practic de procedura civila. Teorie generala,,(2nd vol National, Bucharest 1997), 270-271, Mihaela Tabarca, Drept Procesual Civil, (Global Lex, Bucharest 2005), 703. 39 Codul Civil 1865 (Civil Code of Romania, as amended up to and including 2006), art 1201. 40 CA Craiova, decizia no. 141/2007, < http://porta.just.ro > accessed 18 December 2007 (Court of Appeal Craiova). 41 CA Tomisoara, decizia no. 289/2007, < http://porta.just.ro > accessed 18 December 2007 (Court of Appeal Timisoara). 42 ICCJ, sectia civila si de proprietate intelectuala, decizia no. 4525/2005, Jurisprudenta Sectiei civile pe anul 2005, 533 (Romanian High Court of Cassation and Justice). 43 CA Iasi, decizie civila no. 1960/1999, Jurisprudenta pe anul 1999, 187 (Court of Appeal Iasi).

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With regard to the identity of parties, the exception would succeed if here is legal identity of the parties. This element is therefore not concerning the physical identity of parties. In other words, if a party participated in legal proceedings on its own name but through representative, it will be prevented from litigating again by the res judicata exception, even if it did not physically participate in such proceedings.44 Even though some authors are of the opinion that such identity exists as long as the parties have the same procedural role (Claimant or Defendant) the ICCJ45 was of the opinion that such identity exists even where the parties exchange their procedural roles in the second proceedings.

It could be therefore concluded that, perhaps with the exception of the cause of action element, the Romanian judiciary chooses for a rather broad interpretation of these elements, being willing to grant such preclusive effects even where the claims are not similarly formulated or when the parties have different procedural roles.

Under Romanian law the res judicata exception is considered a substantive exception, having a pre-emptory nature because it generally leads to the rejection of the claim. It is also an absolute exception since it is regulated by mandatory law46. Claiming such exception and thus the preclusive effects of a previous judgment can occur at any stage during proceedings, even in appeal or appeal in cassation, without regard to the grounds for appeal.

4. Invoking claim preclusive effects Please describe how the claim preclusive effects of a judgment are invoked in your legal system.

Summary:

Res judicata can be raised at any stage during the proceedings, including in an appeal hearing. The burden of proof lies with the party alleging the doctrine applies. If successful the action will be rejected by a formal judgment of the court.

Full Response:

If the case is that the unsuccessful Claimant in a former trial will bring fresh proceedings having essentially the same claim, based on the same cause of action and against the same Defendant, either the judge ex officio or the interested party may raise the res judicata exception at any stage during proceedings, even during appeal proceedings47. Such exception may be brought in the form of an interlocutory motion for relief. The party raising such exception will also bear the burden of proof to show that the elements mentioned above under the previous question have been met.

If justified, the exception will lead to the rejection of the claim. Such rejection will be made in the form a judgment. In such cases, where the claim is rejected because of the preclusive effects of a previous judgment, the court will not require evidence on the substantive validity of the second claim and is not even required to analyse the evidence submitted on the merits48. Finally, depending on the court issuing such judgment, it may be subject to appeal or to an appeal in cassation.

5. Exceptions to claim preclusive effects Please verify whether the claim preclusive effect of judgments in your legal system is subject to generally accepted exceptions.

Summary:

Two exceptions to the preclusive effects of judgments exist. First, an annulment of a final judgment is permitted where either one of the parties was not adequately served with process or where the Court’s rules on exclusive jurisdiction have been infringed. This exception is only available if ground for annulment was not raised on appeal nor could have been raised on appeal. Second a final judgment can be revised or annulled where new information, unavailable at the trial, or evidence of fraud emerges.

44 CA Bucharest, sectia a IV-a civila, decizia no. 1056/2001, not published, as cited in Tabarca and Buta (n2) 532 (Court of Appeal Bucharest). 45 ICCJ, sectia civila si de proprietate intelectuala, decizia no. 4525/2005, Jurisprudenta Sectiei civile pe anul 2005, 533 (Romanian High Court of Cassation and Justice). . 46 Tabarca and Buta (n2) 533. 47 Codul de Procedura Civila (n1) art 166. 48 CA Cluj, sectia civila, decizia no. 361/1999, Buletinul Jurisprudentei 1999, 198 (Court of Appeal Cluj).

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Full Response:

Under certain specific circumstances, expressly stipulated by law49, judgments entailing preclusive effects may be challenged. Accordingly, the Code of Civil Procedure contains in article 317 rules with regard to the motion for annulment of judgment (“contestatia in anulare”) as an extraordinary way of appeal against final and irrevocable judgments. The parties to the initial litigation, including the interveners, or the legal successors of such, may lodge such a motion with the court that rendered the irrevocable judgment based on one of the following grounds: (i) where one of the parties has not been adequately served with process; (ii) where the public policy rules on courts jurisdiction, in other words the rules on exclusive jurisdiction, have been infringed upon50.

It should be mentioned that this extraordinary way of appeal may be used only if these matters have not been raised in appeal or in appeal in cassation. Moreover, if the party that raised such grounds for annulment could have done so in one of the ordinary ways of appeal and failed to do so the motion will be rejected. In other words, this procedural “escape” under Romanian law does not allow parties to choose between ordinary and extraordinary ways of appeal51. However, article 317(2) Code of Civil Procedure contains an exception to this requirement, where even though one or both these grounds have been raised in appeal proceedings, the court was not in the position to analyse them because it needed a factual analysis or where the appeal in cassation has been rejected without a trial on the merits.

Yet another way of extraordinary appeal that may affect the preclusive effect of judgments is the motion to alter the judgment (“revizuirea”)52. Accordingly, the parties to the litigation or the public prosecutor may initiate these proceedings against final or irrevocable judgments. Such proceedings may lead to either the revision of the challenged judgment or to its annulment, thereby affecting its preclusive effects.

If, after the initial judgment has become final or irrevocable, new circumstances appear or certain important circumstances unknown at the date of judgment are brought to the knowledge of the parties or of the public prosecutor, such a motion may be lodged with the competent court. In addition, if the initial judgment involved certain elements of fraud which altered judges’ opinion on certain factual elements53, then such a motion may be lodged. Article 322 Code of Civil Procedure contains an exhaustive list of nine reasons that can justify such procedure:

• Where the dictum of the judgment contains contradictory provisions or provisions that cannot be executed;

• Where the judgment is ultra or infra petita;

• Where the object of the claim does not exist;

• Where a judge, witness or expert that participated in the initial proceedings has committed a felony related to the judgement in question for which he or she has been convicted through a final judgment, or if the judge has fulfilled his duties in such case with bad faith or gross negligence;

• Where written evidence not available during the initial trial has come to light or where the judgment based on which the judgment which is subject to the motion to alter has been rendered has been, in its turn, modified or annulled;

• Where the state or a public entity, as well as persons that have been declared disappeared or are under guardianship have not had a proper defence during trail;

• Where inconsistent final judgments have been rendered in one or more matters, between the same persons acting in the same procedural role;

• Where a party has been prevented to appear before the court and to inform the court of such circumstances;

• Where the European Court of Human Rights has identified an infringement of human right or fundamental freedoms as a result of a judgment and such grave consequences continue to occur and can only be remedied through amendment of such judgment.

It should be noted that while the motion for annulment or the motion to alter are pending the initial judgment retains its res judicata effects (article 379 Code of Civil procedure).

49 Codul de Procedura Civila (n1) art 317. 50 Tabarca and Buta (n2) 911, Fodor (n5) 543. 51 Tabarca and Buta (n2) 912. 52 Codul de Procedura Civila (n1) art 322-328. 53 Fodor (n5) 562.

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In the previous section, the Questionnaire addressed general aspects of claim preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the claim preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of claim preclusion in the circumstances as described.

6. Claimant and Defendant May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from bringing or defending fresh proceedings against the Defendant or Claimant based on what is considered in your legal system to be the same claim?

Summary:

Even though the Romanian Legal system does not expressly regulate the res judicata effects of judgments, it is generally recognized that judgments entail such effects by inference from the definition of res judicata and the exceptions to res judicata. However in theory a party could relitigate the same issue against the same parties again, should no interested party or the judge ex officio raise the res judicata principle. On raising the principle the second claim is automatically rejected.

Full Response:

As specified above under question II.A.2, based on two legislative provisions dealing with the definition of res judicata (“putere de lucru judecat” - art. 1201 Civil Code) and the procedural character of the res judicata exception (“exceptia puterii lucrului judecat”) article 166 Code of Civil Procedure) the opinion expressed in the literature54 is that granting res judicata effects to judgments means in fact that a claim can be finally settled only once and the solution contained in a judgment is presumed to express the truth and should not be contradicted in another judgment.

Based on the above, the following may be inferred: even though under the Romanian legal system the res judicata effects of judgments are not expressly regulated by law, it is generally recognized that judgments entail such effects. However, the successful or unsuccessful Claimant, as well as the unsuccessful Defendant may, in principle, bring fresh proceedings on the same claim against the same Defendant (Claimant). In the framework of such new proceedings either the judge ex officio or the interested party may raise the res judicata exception at any stage during the process, even during appeal proceedings. If justified, the exception will lead to the rejection of the claim. Under Romanian law the res judicata exception is considered a substantive exception, having a pre-emptory nature because it normally leads to the rejection of the claim. It is also an absolute exception since it is regulated by mandatory law55. The application of the preclusive effect towards Claimant or Defendant is subject to the exception listed above under question II.A.5.

As explained in detail above under question II.A.3, in order for this exception to be successful, three elements have to be present: same object, same cause of action and same parties.

In other words, in principle it is possible for Claimant or Defendant to open new proceedings against the same party on the same cause of action. However, at any point during proceedings, even in appeal, either the judge ex officio or the interested party may raise the exception of res judicata. Provided that the object (claim) is similar, that it is based on the same cause of action and that the same parties are involved in the proceedings, even in a different procedural role, the second claim will be rejected.

As a consequence, if the Claimant were to bring fresh proceedings against the same Defendant on the same claim and on a similar legal ground (cause of action), while in the first proceedings an appeal is pending, either the judge of its own motion or the interested party (in this case the Defendant) may raise the res judicata exception and the second claim will most probably be rejected. It would be recalled that under Romanian law even judgments that are not final (i.e. are subject to appeal) have preclusive (res judicata) effects. However, if the second claim were to have a different object (for instance where the first claim regards lost wages from January to June while the second covers

54 Ciobanu (n38) 270-271, Tabarca (n38) 703. 55 Tabarca and Buta (n2) 533.

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the period July-December), then raising the res judicata exception in the second proceedings will most probably be unsuccessful since there is no identity of the three elements needed for such to succeed: object, cause of action and parties.

7. Other participants To what extent, if at all, do the claim preclusive effects of judgments extend to other participants in the litigation?

Summary:

Preclusive effects extend to any person with a close connection between the object of the claim and the cause of action of the original claim. As such this covers co-claimants/defendants and third parties and interveners in the original proceedings.

Full Response:

In addition to having preclusive effects towards the Claimant or Defendant, Romanian judgments are capable of having such effects towards other procedural parties as well. Accordingly, similar substantive preclusive effects extend to the co-claimants or co-defendants56. While the law (article 47 Code of Civil Procedure) stipulates that in order for such procedural co-participation to exist there needs to be identity of either the object of the claim or its legal ground (cause of action), the doctrine57 interprets this requirement broadly, so as to make such participation possible even where there is a close connection between the object of the claims and their legal grounds (cause of action). The manner in which the substantive preclusive effects in such situations may be invoked, as well as the exception to which such effects may be subject are similar to the ones invoked under the previous answer.

Furthermore, such effects extend to third parties or interveners in the proceedings. Romanian law regulates two types of interveners in legal proceedings, namely voluntary interveners (i.e. at the initiative of the third party, regulated in articles 49-56 Code of Civil Procedure) and mandatory interveners. The latter consist of three situations expressly regulated by law58: introducing another party that might have similar claims as the claimant (articles 57-59 Code of Civil Procedure), introducing another party against whom a warranty or a guarantee may be asserted (article 60-63 Code of Civil Procedure) and where the defendant introduces the holder of the right in rem in the proceedings (articles 64-66 Code of Civil Procedure). Judgments pronounced in such case will have preclusive effects towards the interveners as well59, under the same conditions and exceptions as against the main parties.

8. Represented persons Does your legal system provide for group/representative actions (including, for example, US-style class actions)? To what extent, if at all, do the claim preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

Summary:

The Court is provided with the power to order multiple co-claimants/defendants to be represented at trial. Any ensuing judgment has substantive preclusive effects towards each represented party.

Full Response:

Where in a trial there are several co-claimants or co-defendants, as made possible by article 47 Code of Civil Procedure, the president of the court where the proceedings are pending may order, in the interest of a good and efficient administration of justice, that parties be represented during trial (article 114(5) Code of Civil Procedure). The co-claimants may choose their own representative and failure to do so may trigger the suspension of the trial. On the other hand, if the co-defendants do not choose their own representative then the president of the court may choose a special representative.

In such case, the ensuing judgment has substantive preclusive effects towards each represented party, subject to the same conditions and exceptions as stipulated for co-claimants and co-defendants, which in turn have been listed in the answer to question II.A.6 above.

56 Ioan Les, Codul de Procedura Civila, (All Beck, Bucharest 2005), 169. 57 Tabarca and Buta (n2) 223, Fodor (n5) 201. 58 Fodor (n5) 227. 59 ibid, 211.

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9. Persons connected to the Claimant, Defendant, and other participants To what extent, if at all, do the claim preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings?

Summary:

Since there must be identity of parties for a judgment to have preclusive effect, generally judgments have no preclusive effect against non-parties. If however a non-party is deemed to share the legal identity of a party, then they will be bound by the judgment. As such, successors, co-debtors and spouses (where the judgment relates to common property acquired during marriage) will be bound by judgments even if they were not parties to the proceedings. Indeed it is suggested that whenever there is a substantial connection between the non-party and a party to proceedings, preclusive effects may follow.

Full Response:

As stated above, in order to have preclusive effect and thus to bar subsequent proceedings, there needs to be a triple identity between the object of the claim, the cause of action and the parties. This is the rule. Whether other persons, non-parties in the initial proceedings, might be bound by such judgment and thus barred from raising the same claim in subsequent proceedings is a complex question that, in many cases, does not receive a clear cut answer in the legislation. As a result, in order to provide an answer to this question, one has to turn to case law in order to analyse the way courts deal with the specifics of this matter.

The complexity of this question has to do with the fact that one of the requirements for such preclusive effect is the identity of the parties. In the factual situation portrayed under this question such identity is missing, and thus one would tend to conclude that no such preclusive effects can be produced towards non-parties to the initial proceedings, even if connected in one way or another to the parties.

However, this rule has exceptions. As mentioned above under question II.A.3, the requirement for parties’ identity has been interpreted by courts broadly60. It does not concern the physical identity of the parties, but rather their legal identity. As a consequence, a successor in interest to one of the parties is barred from re-litigating the same claim on the same cause of action61. In the case at hand the successor in interest was an heir of the party to the trial, thus one can speak in this case of a substantial connection.

Another example of a substantial connection when a non-party is bound by a judgment is where a non-participating co-debtor may benefit from a judgment rendered for the benefit of a co-debtor in another proceeding62.

Finally, since under Romanian law goods acquired by spouses during marriage form their common property, the action undertaken by one spouse to realize the rights related to such goods is presumed to have the tacit support of the other spouse. As a result, judgments pronounced against or for the benefit of one spouse have preclusive effects towards the other spouse as well63.

One can infer from the above mentioned case law that where there is a substantial connection between the non-party and the Claimant or the Defendant, such preclusive effects towards non-participants may be envisaged. The case law has expressly dealt with the situation of heirs, co-debtors and family members. While one cannot foresee the reaction of Romanian courts in other cases of substantial connections (members of the same corporate group, members of the same association, members of a partnership, etc.), the extension of these effects in other situation cannot be excluded.

10. Strangers To what extent, if at all, do the claim preclusive effects extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

Under Romanian law, claim preclusive effects do not extend to persons not connected in a legally relevant way to the parties in the proceedings.

60 CA Bucharest, sectia a IV-a civila, decizia no. 1056/2001, not published, as cited in Tabarca and Buta (n2) 532 (Court of Appeal Bucharest). 61 ibid. 62 TS, colegiul civil, decizia no. 1094/1963, 3 Justitie noua 1964, 134 (Supreme Tribunal), as cited in Tabarca and Buta (n2) 531. 63 G. Kovács and B. Diamant, note to TJ Sibiu, decizie civila no. 1028/29 September 1973, 1 Revista Romana de Drept 1975, 42-44 (County Tribunal Sibiu), as cited in Tabarca and Buta (n2) 530.

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B. Issue preclusion

1. The existence and nature of issue preclusive effects Are judgments in your legal system capable of having issue preclusive effects?

Summary:

Formally previous judgments have issue preclusive effect with regard to issues of law only. But in practice since the operative part of a judgment is presumed to be true, the judge in the second action is bound not to contradict this reasoning and is to that extent there may be limited issue preclusive effects.

Full Response:

The Romanian rules of res judicata extend, as specified above, to claim preclusive effects. For a judgment to have such effects and thus to bar subsequent litigation, three cumulative elements have to be present: object, parties and cause of action (legal grounds). Subsequent proceedings among different parties and/or which have a different object, even if based on the same cause of action, are not precluded. Insofar as a subsequent litigation between the same parties and having the same object is based on the same legal ground (cause of action), the previous judgment may be said to have issue preclusive effect with regard to the issues of law only. However, since such effects occur only where the two other elements (object and parties) are present, it is clear that such are strictly related to claim preclusive effects and may not be looked at independently, as a distinct set of effects which judgments entail.

The preclusive effects extend only to the solution64 arrived at in a matter and not to the issues of fact contained in the reasoning to such solution. This means in practice that what has been stated in the operative part of a judgment is presumed to be true and, while not precluding raising the issue again in subsequent proceedings, has the power of forcing the judge in the second action not to contradict the solution arrived at in the dictum of the previous judgment (prezumtia lucrului judecat)65. In practice, this would mean that if in the first judgment the court ruled that the understanding arrived at between the parties does not constitute a valid sale, the second action where the receipt of the due price and, implicitly, the conclusion of the sale contact is requested would be dismissed based on this principle (prezumtia lucrului judecat)66.

However, as mentioned above under part I.A, between the solution arrived at in the dictum and the reasoning of the judgment, which contains the legal and factual findings, there has to be a logical flow. As a result, even though the res judicata effects extend only to the solution, courts may look also at the reasoning in the judgment whose binding character is being invoked, either to interpret the dictum or to establish if all the three elements for claim preclusive effect are present. Indeed, since the cause of action (legal ground) of a judgment is contained in its reasoning, in assessing the claim preclusive effects of a previous judgment the court will analyse its findings of law, as contained in the reasoning, in order to arrive at a well based decision on the res judicata effects of such judgment.

As a consequence, it can be stated that under Romanian law judgments have limited issue preclusive effects. Factual or legal issues which have been settled in previous proceedings may in principle be raised again in a new proceeding. However, if the issues have been settled in the operative part of the previous judgment (dictum), the court trying the second judgment has to uphold the solution arrived at in the initial judgment. At the same time, if the new proceedings are between the same parties and have the same object the claim will be precluded. By the same token, where a claim between the same parties and having the same object is raised again, the second time based on a different legal ground, the claim will not be rejected67.

Such limited issue preclusive effects have to do with the fact that the effects are confined to the determination of issues of law or fact included in the dictum of the previous judgment. While such issues may be raised again in subsequent proceedings, they are in most likelihood to be rejected since the decision arrived at in the previous judgment is presumed to contain the truth. Even though this presumption is nor regulated by law but rather inferred from doctrine68 and case law69, since it is part of the res judicata effects that a judgment entails it is too to be considered a substantive exception. Such limited issue preclusive effects will be effective as of the date the judgment is rendered. Finality is not a requirement for such effects.

64 Fodor (n5) 401, I. Deleanu and V. Margineanu, Prezumtiile in drept,( Dacia,Cluj-Napoca 1981) 147-148. 65 CA Brasov, decizia no. 1073/R/2002, Buletinul Jurisprudentei. Culegere de practica judiciara 2004, 287-288 (Court of Appeal Brasov), as cited in Fodor (n5) 402. 66 CA Craiova, decizia no. 40/2006, < http://porta.just.ro > accessed 18 December 2007 (Court of Appeal Craiova). 67 CA Iasi, decizie civila no. 1960/1999, Jurisprudenta pe anul 1999, 187 (Court of Appeal Iasi). 68 Fodor (n5) 401-402, Deleanu and Margineanu (n64) 147-148. 69 CA Brasov, decizia no. 1073/R/2002, Buletinul Jurisprudentei. Culegere de practica judiciara 2004, 287-288 (Court of Appeal Brasov), as cited in Fodor (n5) 402, CA Craiova, decizia no. 40/2006, < http://porta.just.ro > accessed 18 December 2007 (Court of Appeal Craiova).

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With the exception of questions 3, 6 and 10 below, the answers provided under part II.A of this questionnaire will apply mutatis mutandis to this part.

2. Policies underlying issue preclusive effects What are the policy considerations for the issue preclusive effect of judgments in your legal system?

Please refer to question II.B.1 above.

3. Conditions for issue preclusive effects What are the conditions for the issue preclusive effects of a judgment?

Summary:

Since the preclusive effect of judgments is inferred from doctrine and case law, it is not clear what specific conditions must be met to invoke issue preclusive effects, only that a party must have an interest in litigating the disputed right.

Full Response:

The res judicata presumption (prezumtia lucrului judecat), the principle that lies at the basis of issue preclusion effects under Romanian law, presupposes simply that courts cannot contradict the determination of fact or law contained in a dictum of a previous judgment. It does not extend to preliminary or interlocutory issues.

This principle is not regulated in law, but rather inferred from doctrine and case law. Accordingly, while it is clear that the three cumulative elements needed for claim preclusive effect are not relevant in this context, it is not entirely clear whether certain specific conditions are needed in order to invoke issue preclusive effects. However, the party raising this matter before the court has to have an interest in litigating the disputed right, a general condition in order to engage in litigation before Romanian courts70.

4. Invoking issue preclusive effects Please describe how the issue preclusive effects of a judgment are invoked in your legal system.

Please refer to question II.A.4 above (of course here the existence of the three elements, similar parties, object and cause of action need not be proven).

5. Exceptions to issue preclusive effects Please verify whether the issue preclusive effect of judgments in your legal system is subject to generally accepted exceptions.

Please refer to question II.B.1 above.

In the previous section, the Questionnaire addressed general aspects of issue preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the issue preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of issue preclusion in the circumstances as described.

70 Fodor (n5) 200.

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6. Claimant and Defendant May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from challenging in the same or subsequent proceedings against the same party any finding (whether adverse or otherwise) on an issue of fact or law which the court may have determined in giving judgment on a particular claim?

Summary:

Even though the Romanian Legal system does not expressly regulate the res judicata effects of judgments, it is generally recognized that judgments entail such effects by inference from the definition of res judicata and the exceptions to res judicata. However in theory a party could relitigate the same issue against the same parties again, should no interested party or the judge ex officio raise the res judicata principle. On raising the principle the second claim is automatically rejected.

Full Response:

Both Claimant and Defendant may invoke an issue of fact or law which has been determined in the dictum of a previous judgment. The procedure to invoke the issue preclusive effects of a previous judgment is similar to that described under question II.A.6. The main difference with the situation where the parties invoke claim preclusive effects is that under this heading parties need not prove the existence of the three elements (same parties, same object and same cause of action).

It is not entirely clear how a Romanian court will react if the first judgment is subject to appeal proceedings. While under Romanian law judgments which are not final have (temporary) res judicata effects, and as a consequence issue preclusive effects, one recent judgment of the Court of Appeal Craiova71 would seem to suggest that such effects would extend only to final judgments. In my view, since the dictum of a judgment, be it in first instance or after appeal proceedings, is presumed to contain the truth, issue preclusive effects will extend to all judgments, including if such are not final. If the judgment is altered after appeal proceedings then the second judgment may be altered as well, in appeal or after submitting a motion to alter the judgment (“revizuire”). After all, a similar solution is applied even if the first judgment was final but was subsequently altered in appeal in cassation.

7. Other participants To what extent, if at all, do the issue preclusive effects of judgments extend to other participants in the litigation?

Please refer to question II.B.1 above.

8. Represented persons If your legal system provides for group/representative actions (including, for example, US-style class actions), to what extent, if at all, do the issue preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

Please refer to question II.B.1 above.

9. Persons connected to the Claimant, Defendant, and other participants To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in some way to the Claimant, Defendant or another participant in the proceedings or to the subject matter of the action?

Please refer to question II.B.1 above.

10. Strangers To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

Summary:

71 CA Craiova, decizia no. 40/2006, < http://porta.just.ro > accessed 18 December 2007 (Court of Appeal Craiova).

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Issue preclusive effects of judgments can be envisaged to extend to non-parties where the legal issue they litigate is materially the same as in an earlier decision.

Full Response:

Under certain circumstance, where issues of fact or law have been determined in a previous judgment, the preclusive effects of such may extend to subsequent litigation between parties who have not been directly involved in the first proceedings and who are not connected to the parties in such proceedings. For instance, one may envisage the situation whereby in a first judgment between an insurance company and an insured person a legal provision is interpreted in a certain manner, while second proceedings are opened between two unrelated parties, again an insurance company and a person insured. The interpretation of the law upheld by the court in the dictum of the first judgment might be presumed to be the truth and thus subsequent litigation on the same legal issue will be barred.

C. Wider preclusive effects This section is concerned with the wider preclusive effects of judgments, that is to say any preclusive effect which does not fall into either section A (claim preclusive effects) or section B (issue preclusive effects) above. It is thus concerned with rules which preclude the raising of claims or re-litigation of issues which are not considered by your legal system to have been determined by an earlier judgment, e.g. on the basis of procedural fairness or abuse of process), but which are in some sense related to determined claims or issues.

1. The existence and nature of wider preclusive effects Does your system attribute wider preclusive effects to judgments on the basis of, for example, a doctrine of abuse of process or procedural unfairness?

Summary:

A party cannot act in bad faith by harassing another party by claiming a right without a legitimate interest. Showing that a previous related claim has been resolved can be an important aspect of establishing bad faith.

Full Response:

The free access to justice is a right upheld in article 21 of the Romanian Constitution. The exercise of this right in civil and commercial matters is governed by the principle of freedom of action (“principiul disponibilitatii”) during civil proceedings72. However, this freedom to act cannot be exercised abusively, in bad faith. Accordingly, the Romanian Code of Civil Procedure has a general provision on abuse of process in article 723:

“(1) Drepturile procedurale trebuie exercitate cu buna-credinta si potrivit scopului in vederea caruia au fost recunoscute de lege.

(2) Partea care foloseste aceste drepturi in chip abuziv raspunde pentru pagubele pricinuite.”

“(1) Procedural rights will be exercised in good faith and according to the aim for which such have been upheld by law.

(2) The party that uses such rights abusively is responsible for the damages caused.” (translation by the author)

Even though this provision on abuse of process may lead in practice to wider preclusive effects of judgments, subsequent claims will not be rejected simply because they relate to an earlier resolved claim. As it is shown below under question II.C.3, for the abuse of process to exist there has to be an element of bad faith, where one party is set to harass the other party by claiming a right without a legitimate interest73. In proving this element of harassment, showing that a previous related claim has been resolved one way or another may be an important aspect of proving

72 Fodor (n5) 92-100, Tabarca and Buta (n2) 1613. 73 I. Stoenescu and S. Zilberstein, Drept procesual civil. Teoria generala. Judecata la prima instanta. Hotararea, (2nd edition, Didactica si Pedagogica, Bucharest 1983), 275.

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abuse of process. This is even more so if the previous claim has been admitted or dismissed based also on abuse of process.

2. Policies underlying wider preclusive effects What are the policy considerations for the wider preclusive effect of judgments in your legal system?

The law recognises subjective legal rights for natural or legal persons. The aim of such rights, as they are upheld by law, is the protection of those that can claim a legitimate interest. Procedural rights form no exception to this rule. Such rights are being conferred by law for the benefit of the parties in civil or commercial litigation and should be exercised in accordance with their aim, in other words by parties that may claim a legitimate interest.

The provisions of article 723 Code of Civil Procedure on abuse of process aim at upholding this policy consideration. Their aim is to ensure that subjective procedural rights are exercised within the scope conferred upon them by law74.

3. Conditions for wider preclusive effects What are the conditions for the application of wider preclusive effects of a judgment?

Article 723(1) Code of Civil Procedure speaks only of the need to exercise procedural rights in good faith, according to their legal purpose. The doctrine has elaborated on this legislative provision. Accordingly, one can speak of abuse of process where the claim has been submitted in bad faith or where it is based on a grave error, bordering fraud, with the intention to cause material or immaterial damage, as well as where the opposing party has been coerced to abandon its rights or to make concessions75.

4. Invoking wider preclusive effects How are wider preclusive effects invoked in your legal system?

The wider preclusive effects may be invoked by way of a procedural exception aiming at either the rejection or the annulment of the abusive claim. It may be raised not only by the interested party but also by the judge, ex officio76. If successful, in addition to the rejection of the claim, the exception leads to the award of damages to the injured party, as well as the payment of a civil fine, payable to the state budget.

5. Exceptions to wider preclusive effects Please verify whether the wider preclusive effects of judgments in your legal system are subject to generally accepted exceptions.

Summary:

Two exceptions are recognized – annulment of judgment or a alteration of judgment

Full Response:

Subsequent claims submitted in the framework of either a motion for annulment of judgment (“contestatia in anulare”) or a motion to alter the judgment (“revizuire”), which are listed above under II.A.5 as exception to the claim preclusive effects of judgments, are also relevant as exceptions in the case of abuse of process. Accordingly, if a claim is rejected based on article 723 Code of Civil Procedure (abuse of process) and the judgment is irrevocable, then the parties may lodge a motion for annulment of judgment, an extraordinary way of appeal which can be lodged in the situations described under question II.A.5 above. A motion to alter the judgment any also be lodged against judgments where the claim has been rejected based on abuse of process, where the judgment is final or, for judgments rendered after an appeal in cassation, if such are on the merits.

In the previous section, the Questionnaire addressed general aspects of wider preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the 74 Tabraca and Buta (n2) 1613. 75 ibid, I. Stoenescu and S. Zilberstein (n73) 275. 76 Tabraca and Buta (n2) 1615.

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previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of wider preclusion in the circumstances as described.

6. Claimant and Defendant May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from (1) advancing, in the same proceedings or later proceedings, related claims against the Defendant or Claimant; and/or (2) from seeking the determination in such proceedings of other potentially related issues of fact and/or law?

Summary:

Abusive claims may be rejected by the Court and thus when raising a related issue of fact and/or law amounts to an abuse of process it can be rejected.

Full Response:

As stated above under question II.C.3, the conduct in bad faith of a procedural party, be it Claimant or Defendant, may amount to abuse of process and may trigger the rejection of the abusive claim. Should any of such parties advance related claims, either in the same or later proceedings, such claims will be judged on their own merits. If the conditions for abuse of process as listed under question II.C.3 will be satisfied, then the respective related claims may be rejected.

The same is true for requests submitted by the parties seeking the determination of potentially related issues of fact and/or law. Accordingly, if raising a related issue of fact and/or law amounts to abuse of process (i.e. is exercised in bad faith), then such request may be rejected by the court based on article 723 Code of Civil Procedure.

7. Other participants To what extent, if at all, do the wider preclusive effects of judgments extend to other participants in the litigation?

Not only the Claimant and the Defendant are barred from exercising their procedural right in bad faiths. The same is true for other participants, such as co-claimants co-defendants, as well as voluntary or mandatory interveners. These parties too are precluded from advancing related claims or from seeking the determination of a related issue of fact and/or law if such conduct is not in good faith and in accordance with the legal purpose of the right sought to be protected.

8. Represented persons If your legal system provide for group/representative actions (including, for example, US-style class actions), to what extent, if at all, do the wider preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

In their procedural conduct, represented persons are bound by the same rules applicable to the main parties or to other participants. As a result, they may raise related claims or seek the determination of related issues of fact and/or law in subsequent proceedings, provided that their conduct is not in bad faith.

9. Persons connected to the Claimant, Defendant, and other participants To what extent, if at all, do the wider preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in some way to the Claimant, Defendant or another participant in the proceedings or to the subject matter of the action?

Persons connected to the parties, such as heirs or co-debtors, may raise related claims or request the determination of related issues of fact and/or law as long as these acts are exercised in good faith, fulfilling the conditions listed under question II.C.3 above.

10. Strangers To what extent, if at all, do the wider preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

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Under Romanian law, wider preclusive effects do not extend to persons not connected in a legally relevant way to the parties in the proceedings.

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III. Preclusive effects of judgments within the Brussels/Lugano Regime

This Part is concerned with the practice of your legal system concerning the recognition of "judgments" (as defined) under the Judgments Regulation, the Brussels Convention (as amended) and the Lugano Convention, to the extent that the State of which your legal system falls part is a Member State or Contracting State bound by the Regulation and/or the either of the Conventions. References to "State of Origin" are to the Member or Contracting State from which the judgment emanates and references to "Recognising State" are to the Member or Contracting State in which recognition of the judgment, for whatever purpose, is sought. Detailed analysis of the provisions of the Brussels Regulation and of the Brussels and Lugano Conventions, as well as the decisions of the European Court of Justice referred to below, is not called for, except insofar as such analysis is necessary or appropriate to explain the practice of your legal system.

A. Recognition

1. Judgments recognised Which judgments, or types of judgments, are recognised (or not recognised) in your legal system under the Brussels/Lugano Regime?

Summary:

While Romania only acceded to the European Union on 1st January 2007, it had previously recognized and enforced judgments from other Member States as if the Brussels Regulation was in effect (law no. 187/2003 entered into force 16th May 2004). Under this quasi-Brussels Regulation regime, Romanian courts took a wide definition of “judgment” including Court decrees and orders. The Lugano Convention is not yet applicable in Romania.

Full Response:

Romania acceded to the European Union on 1st of January 2007. The Brussels Regulation is applicable in Romania only as of that date. In addition, the Lugano Convention is not yet applicable in Romania (the 2007 revised version of the Lugano Convention still has to be ratified by the contracting parties). Having in mind these specifics of the Romanian legal system, the answers to the questions in this part would be rather limited. This has to do with the fact that the literature and in particular the case law has had only little time to deal with these matters.

However, part of the accession negotiations to the European Union, Romania has adopted a statutory provision in 200377 essentially incorporating the Brussels Regulation. This meant in fact that, for little longer than two and a half years up to accession (law no. 187/2003 entered into force on 16 May 2004), Romania recognized and enforced judgments originating in EU member states as if it were de facto an EU member state, while a similar conduct was not being reciprocated in the EU. To the extent relevant, the literature and case law dealing with this legislative provision will be used in order to provide answers in this part of the chapter. However, due to the fact that this was a quasi-Brussels Regulation regime (for instance, courts generally made no reference to ECJ case law, let alone a preliminary reference to the court in Luxembourg) such materials have only limited use for the purpose of drawing conclusions on the application of the Brussels Regulation in Romania.

Romanian courts apply a broad interpretation of the concept of “judgment” as included in article 32 of the Brussels Regulation. As a consequence, not only judgments in the strict sense are eligible for recognition in Romania, in other words not only court decisions where the merits of case have been settled. Court decrees, orders, enforcement writs as well as decisions with regard to the costs are also eligible for recognition based on this provision78.

With regard to the interpretation of the terms “court” or “tribunal” as referred to in article 1(1) of the Brussels Regulation, Romanian courts have not adopted a clear definition of such. One would therefore expect that the generally accepted interpretation of such terms, as enshrined in the explanatory report drawn for the Brussels Convention and the various accession conventions, to be applied in Romania. As a consequence, while the character

77 Law 187/2003 (Romania). 78 Rubin Meyer Doru & Trandafir, “Recunoasterea si punerea in executare a hotararilor straine, in urma aderarii Romaniei la Uniunea Europeana”, [2007] 12 The Romanian Digest 6. < http://www.hr.ro/digest/200706/digest_ro.htm#contents> accessed 8 January 2008.

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of the judgment as a civil or commercial would matter, the name of the issuing authority, criminal courts or administrative tribunals, would be less important.

2. Procedural aspects of recognition What are the procedural aspects of recognition under the Brussels/Lugano Regime in your legal system?

Summary:

Because of Romania’s recent accession to the Brussels Regime, a clear body of case law has not yet developed. However some indication of procedure can be gleaned from the Romanian legislation (law no. 187/2003) implementing the Brussels regulation, though the legality of these measure are questionable. A literal reading of Art 1(1) of the implementing provisions suggests that automatic recognition of judgments in line with Art 33(1) of the Brussels Regulation may not be possible. Case law will clarify this. Both methods of challenging recognition in Art 33 of the Brussels Regulation are available under Romanian law. Art 34 and 35 Brussels Regulation on the refusal of recognition are liable to be read literally, since there is no Romanian case law on these articles.

Full Response:

As mentioned above, Romania has yet to develop consistent case law that will allow the provision of a clear answer to this question, setting out the precise procedural aspects of recognition under the Brussels Regime. This has the advantage of allowing the Romanian judiciary to apply not only the letter of the Brussels Regulation, but at the same time to take into account the interpretation provided by the European Court of Justice.

At the same time, certain conclusions may be drawn from the Romanian legislation related to Brussels Regulation. As recalled from question 1 above, Romania has adopted legislation essentially implementing the Brussels Regulation before accession, through law no. 187/2003. As of 1st of January 2007, the date of accession, the said law has been repealed through a government emergency ordinance79. According to Romanian law, even though such ordinances are valid as of the date of their publication, in order to remain in force such need to be approved by Parliament. Such approval came in June 2007, in the form of law no. 191/2007. Nevertheless, the Parliament amended the governmental form of the ordinance, which essentially repealed law 187/2003 paving the way for the direct application of Brussels Regulation. The law adds a number of provisions meant to ease the application of the regulation. One has doubt whether the very introduction of such text is in line with the established case law of the European Court of Justice, essentially making national implementing legislation not only unnecessary, but also illegal80.

One of the implementing provisions (article 1(1)) awards jurisdiction to the county tribunals to try the requests for recognition and for enforcement. The introduction of this text would seem to imply that automatic recognition, in line with article 33(1) of the Brussels Regulation, would not be possible81. This is the conclusion one might draw especially when the text of the repealed law 187/2003 is called in for comparison. Such provision existed in article 36(1) of the said law, but only referring to the lodging of such requests in case the recognition of the foreign judgment is disputed, perfectly in line with article 33(2) of the Brussels Regulation. The silence of the legislator in law no. 191/2007 on this matter would lead one to believe that indeed automatic recognition would be very difficult. However, this conclusion is only preliminary, based only on legislation. One would expect that future case law developments would bring more clarity into this matter.

It should be mentioned that both ways of challenge to recognition envisaged by article 33 of the Brussels Regulation, through a principal suit or as an incidental question, are available under Romanian law. In principle, the request should be accompanied by the certificate listed in annex V to the Brussels Regulation. However, Romanian courts have discretion to decide whether such a certificate is needed and whether a certified translation should be provided. Due to scarce case law, it is not entirely clear whether a judgment which is no longer binding in the State of Origin may be recognised in Romania. The same can be said about the stay of proceedings in accordance with article 37(1) of the Brussels Regulation if an ordinary appeal has been lodged in the State of Origin.

With regard to the grounds for refusal of recognition, as listed in articles 34 and 35, one cannot point out to a consistent practice in case law. It would seem that Romanian courts will follow the letter of the regulation and would allow recognition, if challenged based on article 33(1) and (2) of the Brussels Regulation, without review of

79 Government Emergency Ordinance 119/2006 (Romania). 80 Case 93/71 Leonensio v Minstero dell' Agricoltura e Foreste [1972] ECR 287. 81 See for the need to lodge a request fro recognition Rubin Meyer Doru & Trandafir (n78).

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the grounds for refusal. Such may occur in the appeal stage, in my view either ex officio or at the request of the party against whom recognition is sought.

3. Exceptions to the rule (grounds for non-recognition) How does your legal system approach the grounds for non-recognition under the Brussels/Lugano Regime so far as they concern the preclusive effects of the judgment?

Summary:

Again a lack of case law precludes a full answer. Under the previous quasi-Brussels Regulation regime (law no. 187/2003) there was a three year time limit to request the execution of foreign judgments.

Full Response:

Romania has yet to develop significant case law on the application of the Brussels Regulation, such that will enable a full answer to this question. However, an indication as to how courts will apply the said act may be drawn from the application of law no. 187/2003. Even though an almost similar act with the Brussels Regulation, one should note that an important difference is the scope of application of the former, which extended to family law matters, except for rights in property arising out of a matrimonial relationship.

For instance, in an appeal in cassation tried by the High Court of Cassation and Justice82 in a matter regarding the custody of a child, the court was very clear in stating that the control of Romanian court is only formal, and thus cannot extend to the merits of the case. The court found that article 37 of law no. 187/2003 (essentially similar to article 34 Brussels Regulation) cannot be resorted to in order to deny recognition of the foreign judgment, among other since the party against whom recognition is sought has been regularly cited in the foreign proceedings, in accordance with foreign procedural law (in this case Austrian law).

With regard to the effects of a foreign judgment, the High Court of Cassation and Justice83 was of the opinion that the term of prescription of three years for execution of judgments as set out in article 405 of the Code of Civil Procedure applies to foreign judgment as well. The court went further to establish that such term begins at the date when the leave for exequatur in Romania has been issued, and not at the date when the foreign judgment has been issued.

4. Effects of recognition What are the effects of "recognition" within the Brussels/Lugano Regime?

Summary:

Again lack of case law precludes a full answer. Currently foreign non-EU judgments are deemed to have the same preclusive effects as Romanian judgments (law no.105/1992) and presumably EU judgments will be given the same effect. Whether the Romanian Courts will follow the ECJ approach in Hoffmann v. Krieg is as yet unclear.

Full Response:

Since the existing Romanian case law and literature is not sufficient to provide an answer to this question, it is necessary to turn to the regime for recognition of judgment from outside the European Union. Such effects are governed by law no. 105/1992. Accordingly, judgments recognized based on this law, either without any procedure being required or after a request has been lodged with the competent Romanian court, have similar preclusive effects as Romanian judgments84.

It can be assumed that the effects of recognition of such judgments in Romania would apply a fortiori in case of judgments originating in the European Union, irrespective of the procedure for recognition. It is not clear whether Romanian courts will alter this approach in the future, in the framework of the Brussels Regulation regime, and apply rather the approach upheld in the Jenard Report and in the judgment of the Court of Justice in Hoffmann v

82 ICCJ, sectia civila si de proprietate intelectuala, decizia no. 5537/2006, http://www.scj.ro accessed 8 January 2008, (Romanian High Court of Cassation and Justice). 83 ICCJ, sectia civila si de proprietate intelectuala, decizia no. 5826/2005, http://www.scj.ro accessed 8 January 2008, (Romanian High Court of Cassation and Justice). 84 Ion P. Filipescu and Andrei I. Filipescu, Tratat de drept international privat, Universul Juridic,Bucharest 2005) 450.

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Krieg85 that "[r]ecognition must have the result of conferring on judgments the authority and effectiveness accorded to them in the State in which they were given".

B. Claim preclusion within the Brussels/Lugano Regime

1. Existence and nature of claim preclusive effects Do judgments recognised in accordance with the Brussels/Lugano Regime have claim preclusive effects in your legal system?

Summary:

Since foreign judgments are deemed to have the same preclusive effects as Romanian judgments (law no.105/1992), foreign judgments will have res judicata effects from the moment they are rendered. This again assumes the Romanian courts will not adopt the decision in Hoffmann v. Krieg.

Full Response:

As stated above, judgments recognized in Romania would have similar preclusive effects as a Romanian judgment. As shown in part II above, Romanian judgments have claim preclusive effects, a feature that extends to recognized foreign judgments as well. Since Romanian judgments have res judicata effects from the moment they are rendered, even though they are not final, one may conclude that recognized foreign judgments will have such effects as well. Of course, should Romanian courts decide to apply the approach upheld by the ECJ in Hoffman v Krieg86, then such recognized foreign judgments that are not yet final will have claim preclusive effects insofar as such effects are upheld by the law of the State of Origin.

2. Policies underlying claim preclusive effects What are the policy considerations for the claim preclusive effect of judgments originating in other EU Member/ Lugano Contracting State in your legal system?

Since at this point in time under Romanian law the effects of a recognized foreign judgment are similar to those of a Romanian judgment, the policies underlying such are also similar. Please refer to question II.A.2 above.

3. Law applicable to claim preclusive effects Does your legal system consider that claim preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required, (2) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the claim preclusive effects of the judgment, (3) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the claim preclusive effects of an equivalent local judgment, (4) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the claim preclusive effects of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning?

Once recognized, either without any procedure or as a result of a request submitted to a Romanian court, a foreign judgment will have similar claim preclusive effects as a Romanian judgment. This is the main rule of Romanian private international law, as applicable to judgments originating outside the European Union, recognizable based on law no. 105/199287. This rule is applicable a fortiori to judgments recognized based on the Brussels Regulation regime, at least insofar as Romanian courts have not adopted a different approach.

After having been recognized, Romanian law on claim preclusive effects of judgments will be applicable, namely article 1201 Civil Code and article 166 Code of Civil procedure, as cited above under question II.A.2.

4. Conditions for claim preclusive effects What are the conditions for the claim preclusive effects of a judgment?

85 Case 145/86 Hoffmann v Krieg [1988] ECR 645, para 10. 86 Ibid. 87 Ion P. Filipescu and Andrei I. Filipescu (n84) 450.

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Since these conditions are similar for domestic Romanian judgments, please refer to question II.A.3 above.

5. The identity of claims in the Brussels/Lugano Regime How do courts in your legal system determine the identity of claims under the Brussels/Lugano Regime?

Summary:

While there is no specific case law on this point, it would seem that given that the three elements needed to establish identity of claims under the Brussels Regulation are similar to those used under Romanian law, the considerations used to decide the preclusive effect of Romanian judgments will be the same as those used for EU judgments.

Full Response:

This research has not detected relevant court judgments determining the identity of claims under the Brussels Regime. However, the Romanian version of both article 27(1) (in the context of lis pendens) and of article 34(4) Brussels Regulation (one of the refusal grounds) speaks of three elements which are needed in order to arrive to the conclusion that there is identity of claims: same cause of action, same object and same parties. These elements are similar to those taken into account by Romanian courts when assessing the claim preclusive effects of domestic judgments. As a result, it can be concluded that Romanian courts will use similar standards when assessing the claim preclusive effects of both Romanian and foreign judgments, which in turn are similar to the standards used to detect identical claims within the framework of the Brussels Regulation.

6. The identity of parties in the Brussels/Lugano Regime How do courts in your legal system determine the identity of parties under the Brussels/Lugano Regime?

This research has not detected relevant court judgments determining the identity of parties under the Brussels Regime. Since it can be anticipated that the same standard employed by Romanian courts when assessing the identity of this element for Romanian judgments will be applied for judgments originating in EU member states, please refer to question II.A.3 above where this element has been analysed in the context of domestic judgments.

7. Invoking claim preclusive effects under the Brussels/Lugano Regime Please describe how the claim preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

Summary:

Preclusive effects of EU judgments can be raised in a similar fashion to the preclusive effects of Romanian judgments. Cf. II.A.4

Full Response:

As noted above, once recognised, either without any procedure or as a result of a request submitted to a Romanian court, foreign judgments will have similar preclusive effects as Romanian judgments88. If subsequent proceedings on the same cause of action (legal ground), object and between the same parties are brought before Romanian courts, then the res judicata exception may be raised in a similar fashion as the one described above under question II.A.4. Just as with Romanian judgments, in order to prove that the three elements needed in order for claim preclusive effects to exist, the party relying on this substantive exception may use not only the dictum of the foreign judgment, but also its reasoning or other parts, as necessary.

8. Exceptions to claim preclusive effects under the Brussels/Lugano Regime

Please verify whether the claim preclusive effect of a judgment originating in another EU Member/Lugano Contracting State is subject to generally accepted exceptions in your legal system.

Summary:

88 Ibid.

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The preclusive effect of EU judgments is limited by Arts 34 & 35 (1) Brussels Regulation, in that if the judgment is not recognized at all on the basis of one of these articles, the judgment will have no preclusive effect.

Full Response:

The exceptions to claim preclusive effects listed above under question II.A.5 apply to Romanian judgments only. As a result, if the foreign judgment originating in another Member State has been recognised as a result of an action submitted before Romanian courts based on article 33(2) or 33(3) Brussels Regulation, the motion for annulment of judgment or the motion to annul the judgment would be available as against the Romanian recognising judgment only.

With regard to the claim preclusive effects of the foreign judgment, such can be affected only to the extent that recognition is barred altogether because of one of the refusal grounds as listed in article 34 and 35(1) Brussels Regulation. Here too one would have to caution that future case law developments might bring change to the current state of affairs.

9. Persons affected by claim preclusive effects To which persons or categories of persons do the claim preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

Summary:

Since foreign judgments have the same effect as Romanian judgments the position is the same as for Romanian judgments. However if the legal relationship between the parties bound by the judgment is governed by foreign law, Romanian courts will look to that foreign law to decide if a relationship which engages the preclusive effect of the judgment exists.

Full response:

As mentioned above under question 3 of this part, once recognized, foreign judgments will entail similar preclusive effects as Romanian judgments. This would mean that the comments made above under question II.A.6-II.A.10 will apply mutatis mutandis to judgments recognized in accordance with the Brussels Regime. However, one should note that while under part II.A above the legal relationship between persons and categories of persons affected by a certain judgment will in most cases be governed by Romanian law, it should be pointed out that in case of foreign judgments such legal relationships might be governed by foreign law, to be established in accordance with Romanian rules of private international law.

In other words, if the legal relationship between the persons affected by a foreign judgment is governed by the foreign procedural law, for instance in case of co-claimants or co-defendants, then Romanian courts will defer to that law in order to establish the existence of such relationship. However, if the legal relationship is rather substantive, such as between heirs or co-debtors, then in order to establish whether such relationship validly exists Romanian courts will look at the law applicable to such in accordance with Romanian rules of private international law.

C. Issue preclusion

1. Existence and nature of issue preclusive effects Do judgments recognised in accordance with the Brussels/Lugano Regime have issue preclusive effects in your legal system?

Summary:

Again the position will be unclear till the Romanian Courts decide whether to follow Hoffmann v. Krieg. Until then foreign judgments will have similar effects to Romanian judgments and as such obtain preclusive effect as soon as rendered even if they are not final.

Full Response:

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As mentioned above, until Romanian courts state their view on the doctrine of extension of effects as upheld by the European Court of Justice in Hoffman v Krieg89, judgments recognized in accordance with the Brussels Regime will have similar effects as Romanian judgments. This would mean that courts in subsequent proceedings would have to presume that the determination of issues of fact or law included in the dictum of the recognized foreign judgment contains the truth and are bound not to contradict such. This would further mean that based on this principle, as well as the prohibition to review foreign judgments as to their substance set out in article 36 Brussels Regulation, Romanian courts are bound to dismiss objections in relation to findings of fact or law, as long as such have been included in the operative part (dictum) of the foreign judgment.

Since the effects of recognized foreign judgments are equal to those of Romanian judgments, the comments made above under question II.B.1 apply mutatis mutandis.

2. Policies underlying issue preclusive effects What are the policy considerations for the claim preclusive effect of judgments originating in other EU Member States in your legal system?

Please refer to question II.A.2 above.

3. Law applicable to issue preclusive effects Does your legal system consider that issue preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required; (2) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the issue preclusive effects of the judgment; (3) the conclusion that the Recognized judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the issue preclusive effects of an equivalent local judgment; (4) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the issue preclusive effects of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning?

Please refer to question III.B.3 above.

4. Conditions for issue preclusive effects What are the conditions for the issue preclusive effects of a judgment?

Please refer to question II.B.3 above.

5. Invoking issue preclusive effects Please describe how the claim preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

Summary:

Foreign judgments have similar preclusive effects as Romanian ones. As such res judicata can be raised in the same way as for national judgments under Part II.A.4.

Full Response:

As noted above, once recognised, either without any procedure or as a result of a request submitted to a Romanian court, foreign judgments will have similar preclusive effects as a Romanian judgment90. If subsequent proceedings are brought before Romanian courts where an issue of fact or law that has been determined in the operative part of a recognised foreign judgment is raised, then the res judicata exception may be raised in a similar fashion as the one described above under question II.A.4 (of course here the existence of the three elements, similar parties, object and cause of action need not be proven). Just as with Romanian judgments, in order to prove that such issue has been previously determined the party raising this substantive exception may rely only on the dictum of the foreign judgment.

89 Case 145/86 [1988] ECR 645. 90 Ion P. Filipescu and Andrie I. Filipescu (n84) 450.

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6. Exceptions to issue preclusive effects Please verify whether the issue preclusive effects of judgments in your legal system are subject to generally accepted exceptions.

Summary:

An action for annulment or amendment is available against a Romanian judgment which has recognized an EU judgment but not against the EU judgment itself. The preclusive effects of EU judgments can only be affected by Arts 34 & 35(1) Brussels Regulation.

Full Response:

The exceptions to claim and issue preclusive effects listed above under question II.A.5 apply to Romanian judgments only. As a result, if the foreign judgment originating in another member state has been recognised as a result of an action submitted before Romanian courts based on article 33(2) or 33(3) Brussels Regulation, the motion for annulment of judgment or the motion to alter the judgment would be available as against the Romanian recognising judgment.

With regard to the issue preclusive effects of the foreign judgment, such can be affected only to the extent that recognition is barred altogether because of one of the refusal grounds as listed in article 34 and 35(1) Brussels Regulation. Here too one would have to caution that future case law developments might bring change to the current state of affairs.

7. Persons affected by issue preclusive effects To which persons or categories of persons do the issue preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

Summary:

Foreign judgments have the same preclusive effects as Romanian judgments, the only notable difference being the potential for foreign law, rather than Romanian law, to be used to determine the existence of the relevant relationship between the parties.

Full Response:

As mentioned above under question 3 of this part, once recognized, foreign judgments will entail similar preclusive effects as Romanian judgments. This would mean that the comments made above under question II.B.6-II.B.10 will apply mutatis mutandis to judgments recognized in accordance with the Brussels Regime. However, one should note that while under part II.B above the legal relationship between persons and categories of persons affected by a certain judgment will in most cases be governed by Romanian law, it should be pointed out that in case of foreign judgments such legal relationships might be governed by foreign law, to be established in accordance with Romanian rules of private international law.

In other words, if the legal relationship between the persons affected by a foreign judgment is governed by the foreign procedural law, for instance in case of co-claimants or co-defendants, then Romanian courts will defer to that law in order to establish the existence of such relationship. However, if the legal relationship is rather substantive, such as between heirs or co-debtors, then in order to establish whether such relationship validly exists Romanian courts will look at the law applicable to such in accordance with Romanian rules of private international law.

D. Wider preclusion (abuse of process/claims and issues that could or should have been raised)

1. The existence and nature of wider preclusive effects Do judgments recognised in accordance with the Brussels/Lugano Regime have wider preclusive effects in your legal system?

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Once recognized, foreign judgments have similar effects as Romanian judgments. Accordingly, a subsequent related claim may be barred based on the Romanian rules of abuse of process, as set out in article 723 Code of Civil Procedure. For further details on this matter please refer to question II.C.1 above.

2. Policies underlying wider preclusive effects What are the policy considerations for the wider preclusive effect of judgments in your legal system derived from the Brussels/Lugano Regime?

Please refer to question II.C.2 above.

3. The law applicable to wider preclusive effects Does your legal system consider that wider claim and issue preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the Recognized Judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required; (2) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the effects of the Judgment; (3) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the effects of an equivalent local judgment; (4) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the effect of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning.

Please refer to question III.B.3 above.

4. Conditions for wider preclusive effects What are the conditions for the wider preclusive effects of a judgment?

Please refer to question II.C.3 above.

5. Invoking wider preclusive effects Please describe how the wider preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

Please refer to question II.C.4 above.

6. Exceptions to wider preclusive effects Please verify whether the wider preclusive effects of judgments recognised under the Brussels/Lugano Regime are subject to generally accepted exceptions.

Subsequent claims submitted in the framework of either a motion for annulment of judgment (“contestatia in anulare”) or a motion to alter the judgment (“revizuire”), which are listed above under II.A.5 as exception to the claim preclusive effects of judgments, are also relevant as exceptions in the case of abuse of process. Accordingly, if a claim is rejected based on article 723 Code of Civil Procedure (abuse of process) and the judgment is irrevocable, then the parties may lodge a motion for annulment of judgment, an extraordinary way of appeal which can be lodged in the situations described under question II.A.5 above. A motion to alter the judgment any also be lodged against judgments where the claim has been rejected based on abuse of process, where the judgment is final or, for judgments rendered after an appeal in cassation, if such are on the merits. Although this research has not resulted in relevant case law on this matter, it is to be expected that the finality of the foreign judgment is to be assessed by Romanian courts in accordance with the law of the State of Origin.

7. Persons affected by wider preclusive effects To which persons or categories of persons do the wider preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

Please refer to question II.C.6-II.C.10 above.

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E. Authentic instruments/court approved settlements Do the preclusive effects described in Part III.B. to Part III.D. above (or similar effects) extend to authentic instruments and court (approved) settlements within the meaning of Articles 57 to 58 of the Brussels Regulation (Articles 50 and 51 of the Brussels/Lugano Conventions)?

This research has not resulted in any significant case law that will allow a clear cut answer to this question. However, one would expect that preclusive effects will extend to authentic instruments and court (approved) settlements as well, provided that such are declared enforceable in Romania. Such declaration upon their enforceability would imply their recognition and thus their preclusive effects.

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IV. Preclusive effects of third state judgments

This Part concerns the preclusive effects of "third state judgments", i.e. judgments from a State which is neither a EU Member State nor a Contracting State to the Lugano Convention. It has been included not only for the purposes of comparison with the domestic and Brussels/Lugano Regimes (as well as the rules in force in the United States of America, which is not a party to the Brussels or Lugano Conventions), but also so that the end product of the Project does not exclude completely this important aspect of the study of the cross-border effects of judgments. It is concerned mainly with the generally applicable rules of your legal system for the recognition of foreign judgments outside the Brussels/Lugano regimes, and not with special regimes applicable, by virtue of international treaty or otherwise, to judgments in specific subject areas or from particular foreign jurisdictions (save insofar as such regimes cast light on the general practice in your system). If third state judgments have preclusive effects in your legal system, both as a matter of general law and by virtue of international convention, please focus on the former rules, giving examples from international conventions only where necessary to highlight significant differences in treaty practice from that pertaining under the general law.

Do the preclusive effects described in Parts II and III above (or similar effects) extend in your legal system to third state judgments?

Summary:

Third state judgments will have similar preclusive effects as Romanian judgments (and therefore EU judgments), subject to them meeting conditions imposed by law. no. 105/1992 (of which three are mandatory, while the remaining three are more permissive in nature). Romanian Courts cannot review the substance of the foreign judgment.

Full Response:

As explained above under Part III, once recognised in Romania, foreign judgments will have res judicata effects similar to Romanian judgments91. This means that third state judgments recognised in Romania by virtue of law. no. 105/1992 will have similar preclusive effects as Romanian judgments, as described in Part II, or judgments recognised in accordance with the Brussels Regime, as described in Part III.

After having been recognized, Romanian law on claim preclusive effects of judgments will be applicable, namely article 1201 Civil Code and article 166 Code of Civil Procedure, as cited above under question II.A.2.

Law 105/1992 stipulates two sets of conditions for the recognition of third state judgments. One set of requirements has imperative character and failure to comply with any of such requirements triggers the refusal to recognise the foreign judgment:

• the judgments is final, in accordance with the law of the state of origin;

• the rendering court had jurisdiction in accordance with the law of the state of origin;

• there is reciprocity on this matter between Romania and the state of origin.

The second set of requirements has a more permissive character, which implies that the recognising court may refuse recognition in any of the following situations:

• the foreign judgment has been rendered as a result of a procedural fraud;

• the judgment infringes upon the Romanian private international law public policy. Such an infringement is if the foreign court assumed jurisdiction where Romanian courts had exclusive jurisdiction based on law 105/1992;

• the trial between the same parties has ended with a judgment rendered by a Romanian court, even if not yet final, or was pending before Romanian courts when the foreign court has been seized with the matter.

Furthermore, the law contains a prohibition to review the foreign judgments as to their substance.

91 Ion P. Filipescu and Andrie I. Filipescu (n84) 450.

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With regard to the procedure to be followed, the request for recognition is submitted to the county tribunal at the place of domicile or at the seat of the party against whom recognition is sought92. The request may be submitted also in the framework of another procedure, as an incidental question. It should be noted that while Romanian courts will review foreign third state judgments in order to decide on their recognition, judgments on the status of foreign nationals, pronounced either by the courts of such states or by courts in third countries and recognised in the state of the nationality under dispute, are recognised in Romania without the need for any procedure.

92 Ibid, 451.