December 2024
by Oana Ionescu and Iunia Radu
The Romanian version of the article is available HERE.
The presidential ordinance proceedings, while benefiting from a specific legal framework, suffers from procedural ambiguities that hinder its speed and efficiency. A particularly contentious issue is the mandatory nature of the statement of defense in the appeal stage, which leads to inconsistencies in judicial practice and practical challenges for both courts and parties involved in disputes.
A central question in the appeal process is whether a statement of defense is mandatory to be filed. We will examine how this uncertainty affects the procedure’s efficiency and the fundamental right to defense. In this context, we will discuss both the current issues of legal interpretation and possible solutions that could contribute to the establishment of unified judicial practice in this area.
Introductory Clarifications
The presidential ordinance proceedings constitute a specialized legal mechanism aimed at obtaining an enforceable title by which the court, establishing in favor of the plaintiff that there is an appearance of right, shall order provisional or urgent measures such as:
- temporary cessation of infringement of intellectual property rights derived from the registration of certain trademarks/ designs/ models;
- prohibition of the use of rights over a trademark or a sign/ model/ design;
- temporary withdrawal of counterfeit products from commercial circuits;
- granting temporary access to property;
- reintegration of family members into the family home;
- provisional establishment of the visitation schedule for minors etc.
The subject matter is governed by Articles 997 et seq. of the Civil Procedure Code, a series of procedural rules derogating from the common law that must be considered by the courts invested with the resolution of presidential ordinance, being established, as we will detail below.
Procedural Aspects
Starting from the applicable legal provisions, we observe that the special rules dedicated to this matter aim to ensure the expeditiousness of the injunction proceedings, as follows:
- the parties are summoned in accordance with the rules for urgent processes[1];
- the statement of defense is not mandatory[2];
- the ordinance can be issued without summoning the parties[3];
- in cases of exceptional urgency, the ordinance can be rendered on the same day, with the court ruling on the requested measure based on the claims and submitted documents[4];
- evidence requiring a longer administration time is inadmissible[5], etc.
Therefore, we can argue that the rules in this matter are relatively short, which can lead to different interpretations in some cases.
For instance, one of the features of these proceedings is provided by Article 999, paragraph (1), second thesis of the Civil Procedure Code, which explicitly establishes the non-mandatory nature of the statement of defense during the first procedural stage.
However, the provisions of Article 1000 of the Civil Procedure Code, which establish the procedural rules applicable in the appeal or second appeal stages, state that “The appeal shall be judged urgently and with priority, with the summoning of the parties. The provisions of Article 999, paragraph (4) shall apply.”
Given these aspects, a key question arises: Is a statement of defense mandatory in the appeal stage of these proceedings? The Romanian legislator has not directly addressed this issue, leading to ambiguity and inconsistent practices at the court level regarding the communication process in the appeal stages.
It is not uncommon to find that, in similar cases filed with different national courts or even the same national court, contradictory solutions have been rendered regarding the deadline for submitting the statement of defense in appeal.
Thus, on the occasion of the communication of summons in appeal/ second appeal, as the case may be, either a deadline for submitting a statement of defense was not expressly set, or a 10-day deadline was granted for this purpose, or a mention was made regarding the optional nature of the response. In this context, the case law on this matter reflects two fundamentally opposing views.
On the one hand, it is conveyed the idea that the response to the statement of defense is not mandatory in the appeal stage of the procedure and the defendant is not required to submit any defenses within a specific procedural deadline. We tend to believe that this interpretation of the courts is justified by the urgent nature of the proceedings, considering that a contrary practice would lead to delaying the resolution of the case and would undermine the efficiency of its main feature – urgency.
On the other hand, it is argued that, in the absence of an express provision, submitting a statement of defense in the appeal stage is mandatory, and consequently, there is an obligation to submit it within a period ranging from one to 10 days from the communication of the statement of claim, according to the provisions of Article 180, paragraph (3) and Article 201, paragraph (5) of the Civil Procedure Code, which grant the possibility for the court to reduce the procedural time limits.
This same orientation is shared by some of the legal experts, who state in the sense that “The submission of the statement of defense is mandatory in the appeal stage. The appeal in this matter is subject to the provisions concerning the verification and regularization of the claim”. Along the same lines there are also the provisions of Article 208, paragraph (1) of the Civil Procedure Code, which state that “The statement od defense is mandatory, except in cases where the law expressly provides otherwise.”.
Consequently, there is no consistent practice regarding the submission of statement of defense in appeal/ second appeal stage and the courts adopt different approaches based on their own interpretation of the law.
Practical Difficulties
The lack of clarity in the regulation leads to a series of procedural difficulties that are most diverse. For example, closely related to the submission of the statement of defense is the institution of the incidental appeal – a means of defense available to the defendant in the principal appeal/ second appeal, which, according to Articles 471, paragraph (1), and 491 of the Civil Procedure Code, can only be exercised within the legal deadline for submitting the statement of defense to the appeal.
Therefore, there is a dependence relationship between the statement of defense and the incidental appeal. As the Constitutional Court of Romania has stated[6], the incidental appeal should be submitted along with the statement of defense and the failure to comply with this procedural requirement results in the sanction of being barred from submitting this procedural act.
However, given the short deadlines granted in the presidential ordinance proceedings for submitting the statement of defense in the appeal or even the absence of an expressly set deadline by the courts, the real possibility for submitting an incidental appeal along with the statement of defense seems substantially limited.
In this context, in the recent judicial practice has also launched the thesis of the inadmissibility of the incidental appeal in the presidential ordinance proceedings. This issue was addressed by the Bucharest Tribunal in one of its decisions[7], which concluded that “the provisions of Article 472 of the Civil Procedure Code do not impose any prohibition regarding the formulation of an incidental appeal within the summary procedure of the presidential ordinance. The prohibition only applies to those methods of exercising the right to civil action that involve discussing the substance of the right in dispute. Since such a prohibition or inadmissibility cannot be presumed, as it is not expressly mentioned by the legislator, it results that the incidental appeal is admissible even in the summary process of the presidential ordinance. […]”.
The solution rendered by the court does not resolve, unfortunately, the inherent difficulties regarding the deadline for submitting an eventual incidental appeal, which depends entirely on the regulatory framework of the statement of defense in the presidential ordinance proceedings.
An obvious drawback of the regulation of the presidential ordinance under the Civil Procedure Code is, therefore, the provisions of Article 1000 related to the exercise of remedies, the latter being liable to lead to legal disputes and inconsistent court practices.
This is the reason we consider that a re-setting of the regulation in this matter is required, with a clear indication of the procedural deadline in which there is the possibility to submit a statement of defense in the appeals the case may be. Referring the matter to the High Court of Cassation and Justice for a ruling in the interest of law could be a solution that would bring clarity to this issue.
[1] Article 999 para. (1) thesis I Civil Procedure Code;
A Article 999 para. (1) thesis II Civil Procedure Code;
[3] Article 999 para. (2) thesis I Civil Procedure Code;
[4] Article 999 para. (2) thesis II Civil Procedure Code;
[5] Article 999 para. (3) thesis I Civil Procedure Code;
[6] Civil Decision 193/2021 [R] regarding the constitutionality objection of the provisions of Article 472, paragraph (1), and Article 474, paragraph (1) of the Civil Procedure Code.
[7] Civil Decision 2199/31.08.2021, rendered by Bucharest Tribunal;