Interim measures in Romania

1.1.1 On 15 February 2013 a New Civil Procedure Code (NCPC) entered into force in Romania, replacing the former civil procedure code, which had regulated civil legal relationships for approximately 150 years. The NCPC significantly changed the litigation process in Romania, establishing new sets of rules as well as the various mandatory stages to be followed in the courts before a judgment is made.

1.1.2 Interim measures are mainly governed by the NCPC. In order to determine whether provisions other than the NCPC are also applicable to an interim measure, the applicant has to check two issues:

1. (i) whether the claim or the interim measure has an international dimension; and
2. (ii) whether there are special provisions for the particular subject matter of the claim.

1.1.3 For EU-related cases, jurisdiction is established in accordance with Council Regulation (EC) No 1215/2012 (the Brussels Regulation). 1 Council Regulation (EC) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). Provisions regarding the international jurisdiction of the Romanian courts are also included in the NCPC, especially for non-EU countries. These provisions primarily relate to jurisdiction and enforcement.

1.1.4 As for the applicable law when dealing with a dispute with an international dimension, the Romanian Civil Code contains rules on conflicts which establish the applicable law when there is a conflict of laws.

1.1.5 Further, certain provisions relating to the following areas are located in other sources of law, such as:

• for protective measures regarding creditors that have submitted applications to register their claims with the list of creditors 2 List of creditors who filed petitions for relief in time so that the court has jurisdiction to determine what they are due in the event of insolvency. against insolvent debtors (e.g. a debt application), the provisions of the Insolvency Law 3 Law no. 85/2014, Insolvency Law. apply;
• the Romanian Criminal Procedure Code (RCPC) provides for interim measures such as freezing movable and immovable assets through sequester, in order either to repair criminal damage caused or to enforce the payment of fines; 4 RCPC, art 163(1).
• the Romanian Civil Code (RCC) provides for provisional measures regarding the protection of human rights; 5 RCC, art 255, and human rights defined under art 252. and
• interim and provisional measures concerning the protection of industrial property rights are contained in special legislation. 6 Government Ordinance No. 100/2005 on ensuring compliance with industrial property rights, art 9-11.

2.1.1 For international disputes, as a general rule and unless a mandatory national law provides otherwise, Romanian courts have jurisdiction when the respondent is domiciled, or its headquarters, secondary place of business or goodwill are in Romania at the date on which the application is submitted. Where there is more than one respondent, it is sufficient for one of them to be domiciled, have its headquarters, secondary place of business or its goodwill in Romania. However, Romanian courts will not have jurisdiction where the request is filed with the sole purpose of excluding a certain respondent from the jurisdiction of its domicile, headquarters or secondary place of business situated abroad.

2.1.2 Romanian courts also have jurisdiction concerning the usual activities carried out at a legal person’s secondary place of business when such company has its headquarters abroad, and such secondary place of business is located in Romania at the date on which the application is submitted.

2.1.3 With regard to rights under Romanian law that are not human rights, the parties may decide which court will have jurisdiction in the event that current or future litigation arises out of a legal relationship with an international dimension. The jurisdiction agreement must be concluded in writing, through telegram, telex, facsimile or any other means of communication allowing evidence of the written agreement’s text to be included therein.

2.1.4 The agreement on jurisdiction will be invalid if it results in improperly depriving one of the parties of the protection ensured by the court provided for by Romanian law (for example, if one of the parties is a consumer and the sole purpose of the agreement would be to prevent the consumer from enforcing his legal rights in court by choosing a foreign court). The agreement will likewise be ineffective when the court chosen to have jurisdiction is located abroad, but where the specific circumstances of the case mean that the Romanian courts have exclusive jurisdiction (for example, when the dispute concerns real estate located in Romania). The same applies when the chosen court is a Romanian court, but a foreign court has exclusive jurisdiction over the main proceedings.

2.1.5 The court chosen to have jurisdiction over a claim cannot reject such a claim, thus declaring itself incompetent, in the following situations: 7 NCPC, art 1067(3).

1. (i) where one of the parties has its domicile or secondary place of business within the territorial scope of the chosen court; and/or
2. (ii) where the applicable law, according to private international law, is Romanian law.

2.1.6 A Romanian court also has jurisdiction over disputes which have a sufficient connection with the place of the court, where it is not possible to make an application abroad or where it cannot reasonably be argued that an application may be made abroad. If the application is filed either by (i) a Romanian citizen, (ii) a person without citizenship but domiciled in Romania, or (iii) a Romanian legal person, then the jurisdiction of the Romanian courts is mandatory 8 RCPC, art 1070. .

2.1.7 Although a different court may have jurisdiction over a specific matter, the parties may voluntarily extend jurisdiction in favour of Romanian courts, as follows:

1. (i) where the parties have validly agreed that the Romanian courts shall have jurisdiction, such courts have exclusive jurisdiction over the matter without the parties specifying exclusivity; and
2. (ii) except when otherwise provided by the law, the Romanian courts will have jurisdiction in any case where the respondent appears before the court and formulates substantive defences without invoking the defence of a lack of jurisdiction of the forum at the latest by the time at which the available evidence has been analysed and the judge considers the case is sufficiently clear to move to the next stage of considering the merits of the case.

In cases (i) and (ii) above, the Romanian courts may refuse to reach a decision on the claim if the specific circumstances of the dispute show that such a dispute has an insufficient connection with Romania.

2.1.8 In urgent matters, Romanian courts have jurisdiction to order provisional measures concerning Romanian natural persons or assets situated in Romania (for example, measures relating to the conservation or enforcement of assets), at the date on which the application is submitted, even if, according to the NCPC, such courts shall not have jurisdiction on the substantive case. Moreover, in relation to immovable assets situated in Romania, the Romanian courts have exclusive jurisdiction, whether or not the dispute has an international dimension.

2.2.1 Whenever the parties have concluded a jurisdiction agreement, the court designated as competent in the agreement will also have jurisdiction over any application for interim measures.

2.2.2 As explained above, for those disputes with an international dimension, the Romanian courts also have jurisdiction in urgent matters to order interim measures concerning Romanian natural persons or assets situated in Romania at the date on which the application is submitted. This is the case even if, according to the NCPC, those courts do not have jurisdiction over the substantive case.

2.3.1 For remedies such as distraint (upon property) and precautionary garnishment, the court that hears the case at first instance has jurisdiction.

2.3.2 The first instance court may be a district court (Judecătorii) or a county court (Tribunale) depending on the circumstances of the case and the criteria established by the NCPC. For example, if the subject of the main application is an asset amounting to more than 200,000 RON, the county court has jurisdiction, if the asset has a lesser value, the district court has jurisdiction.

2.3.3 For judicial sequester, if there is an ongoing litigation, the competent court is the one that has conduct of that litigation. In the absence of ongoing litigation, the location of the asset will determine the competent court to hear the application.

2.4.1 If different courts have jurisdiction over the same interim measure, the choice of where to file the request is a tactical one and has to be carefully considered. The following factors might be taken into account when choosing the venue:

• the average duration of proceedings in the respective jurisdictions;
• the desire to avoid long disputes concerning jurisdiction. Jurisdiction will normally be less contentious when the court seised of the claim is at the seat of the respondent and/or the place where the measure has to be enforced;
• small district courts are not often used to dealing with international law issues;
• the standards required to obtain an interim measure tend to be stricter in courts that have more experience in these types of matters; and
• court costs can vary from one district within Romania to another.

3.1.1 Precautionary measures are measures for preservation and conservation to prevent the other party from destroying or dissipating assets or from diminishing its assets or rights which are the subject of the claim on the merits, prior to or during the trial of the substantive claim.

3.1.2 The NCPC regulates three particular precautionary measures: distraint (upon property), judicial sequester, and precautionary garnishment.

The practical impact of these categories

3.1.3 The applicant has the right to choose which interim measure it pursues, taking into account the nature of the substantive claim, as well as the type of assets that it is seeking to freeze, i.e. monetary or non-monetary assets.

3.1.4 All interim measures are to be settled through a fast track court procedure, imposing certain special conditions as well as a high degree of expediency.

3.2.1 The NCPC provides that a distraint upon property consists of freezing the debtor’s movable and/or immovable assets that may further the purpose of the enforcement. The assets remain in the debtor’s possession, or in the possession of a third party, until the creditor that has a monetary claim obtains an enforceable judgment.

3.2.2 In general, companies that are subject to insolvency/bankruptcy proceedings may not be subjected to interim measures. However, in specific cases under Romanian insolvency law, the insolvency judge may grant limited interim measures but only in relation to the assets of those directors of the company who allegedly caused the company’s insolvency.
Conditions for requesting a distraint (upon property)

3.2.3 A creditor may apply for a distraint upon a debtor’s assets, either movable or immovable, if 9 NCPC, art 952. :

• the creditor does not yet have enforceable title;
• the creditor’s claim is evidenced in writing;
• the sum owed is due and payable;
• the claim consists of an amount of money; and
• the creditor can show that it has filed the pleadings on the merits of the claim.

3.2.4 The court may order the applicant (creditor) to pay security in an amount set by the court of up to 20% of the value of the asset that is the subject of the application for interim measures. The security represents the amount of money that must be submitted by the party that intends to impose a distraint of property, with the purpose of indemnifying the respondent (debtor) for possible damage suffered as a result of freezing its assets.

3.2.5 Even if the applicant’s claim is not evidenced in writing, it may request setting a distraint upon the respondent’s assets, if it can prove that it has filed the substantive claim and submits with the application security in the amount of half of the value of its substantive claim. In such cases, the provision of security is mandatory, whereas as a general rule, security is at the court’s discretion.

3.2.6 Even if the sum owed is not yet due and payable to the applicant, the court may still agree to impose a distraint where the respondent has, through its actions, diminished the guarantees given to the creditor; has not given the promised guarantees; or where there is a threat that the respondent will evade enforcement, conceal its assets or dissipate its wealth. In such a situation all the other conditions mentioned above must be met, and the applicant must also pay security in the amount set by the court.

3.2.7 The applicant is not obliged to itemise the assets upon which it requests the distraint to be imposed, as the enforcement officer appointed by the claimant will decide which assets to seize – either those assets indicated by the applicant or any other assets he deems fit.

3.2.8 Failure to submit the amount of the security within the timeframe set by the court leads to the ceasing of the distraint by operation of the law, such that the respondent’s assets become “un-frozen”. This is established by a final judgment on paper (without a hearing).

3.2.9 The frozen assets may not be enforced upon until the applicant obtains enforceable title which will usually be following final judgment in the substantive proceedings.

3.2.10 The distraint may be lifted, at the respondent’s request, where the respondent offers adequate and sufficient security. Since the law does not specify the type of security that shall be deemed sufficient, the court shall decide, taking all the relevant circumstances into account including the amounts owed by the debtor and the proposed security. Such a request shall be considered in a closed hearing, after the parties have been summoned at short notice 10 NCPC, art 956(1). .

3.2.11 The respondent may file an appeal against the judgment mentioned in paragraph 3.2.9 above within five days of the date of notification of the reasoned judgment to the parties. The appeal shall be considered by the court urgently.

3.2.12 The distraint shall also be lifted in circumstances in which the substantive claim (on the basis of which the request for interim measures was approved) has been annulled, rejected or has become obsolete, or where the applicant does not pursue the substantive claim. In such a case, lifting the distraint is a result of the applicant’s acts. For such a situation, the court shall issue an order that cannot be challenged, and which is given without a hearing. 11 NCPC, art 956(2).

3.3.1 Judicial sequester consists of freezing assets which are the subject matter of an ongoing dispute, or any other asset as provided by the law, by appointing a special administrator who will manage the seized asset.

3.3.2 Whenever there is ongoing litigation over property rights (in rem rights), over movable or immovable assets or any other real estate rights or rights over the possession or administration of a movable or immovable property asset, the court may, at the request of any interested party, allow judicial sequester of the asset in question, if such measure is necessary to preserve the right being litigated 12 NCPC, art 972. .

3.3.3 In such a case the court may only sequester the assets that are the subject of litigation to the extent such a measure is necessary. For example, assets damaged by the respondent (debtor), assets which may be alienated, etc.

3.3.4 The court may allow a judicial sequester if there is no ongoing litigation, when such sequester is:

• over an asset that the respondent itself offers to provide, in lieu of the asset which the claimant seeks to sequester;
• over an asset which the applicant has reasonable grounds to fear will be stolen, destroyed, devalued or altered by its current owner; or over movable assets comprising the applicant’s security, where the applicant anticipates the respondent’s insolvency or when it has reasonable grounds to suspect that the respondent will circumvent possible future enforcement or fears theft or damage of the assets.

3.3.5 In this case, the applicant that obtained the sequester must submit its substantive claim to the competent court, initiate all necessary actions for establishing the arbitral tribunal (where applicable) or request the enforcement of its enforceable title within a maximum of 20 days from the date on which the court ruled that the judicial sequester should be imposed.

3.3.6 In the event that the applicant fails to do so, the judicial sequester shall cease by operation of law (ipso jure).

3.3.7 For any request on judicial sequesters over assets that are not the subject of existing litigation, the court with jurisdiction shall be the court where the assets are located.

3.4.1 A precautionary garnishment may be created over amounts of money, securities or other intangible movable property owed to the respondent (debtor) by a third party or that would be owed in the future under existing legal relations.

3.4.2 For a precautionary garnishment to be ordered, the applicant creditor must show that:

• it does not yet have an enforceable title;
• the claim is evidenced in writing;
• the claim has become due and payable;
• the claim consists of an amount of money; and
• it has issued proceedings on the substantive case.

3.4.3 Paragraphs 3.2.3 to 3.3.7 above regarding a distraint (upon property) are also applicable to a precautionary garnishment measure.

3.5.1 Any interim measure may be subjected to an injunction order procedure. The relevant procedure requires that:

• all measures taken must be provisional (until an award on the merits of the substantive case is made);
• there must be urgency either for preserving a right that would be damaged by a delay, or preventing imminent damage that would not be reparable; and
• the interim measure cannot deal with the substantive merits of the case.

3.5.2 In cases of extreme urgency, the injunction order may be rendered on the same day as the request is submitted, with the court giving its decision on paper, ex-parte, without a hearing.

3.6.1 In Romania (as in most civil law jurisdictions), the taking of evidence is administered by the court and performed at specific times during the litigation process. To ease this burden, the preliminary or preventive taking of evidence by the court is allowed at any time, including prior to the start of the substantive proceedings, if:

• the law so provides;
• the applicant can credibly show that the evidence is at risk of destruction/alteration/removal from the jurisdiction etc.; and
• there is a reason the evidence must be urgently protected.

3.6.2 Legal provisions allowing the preservation of evidence can mainly be found within the NCPC. 13 NCPC, art 359 to 363.

3.6.3 Article 359 paragraph 1 of the NCPC states that anyone who has an interest in urgently:

• ascertaining a person’s testimony;
• ascertaining an expert’s opinion;
• ascertaining the condition of movable or immovable assets; or
• obtaining the recognition of a document, a fact or a specific right,

may request, either prior to and/or during trial, the taking of evidence if there is a danger of such evidence being destroyed or removed prior to the ordinary evidential proceedings, or being difficult to obtain in future.

3.6.4 The request for the preventive taking of evidence must be filed at the court that has jurisdiction in respect of the substantive claim for trial or, prior to the trial, at the court where the witness or the subject matter (e.g. real estate) to which the measure relates is located.

3.6.5 The request for the preventive taking of evidence should comprise:

• a description of the evidence that is sought;
• facts intended to be proved by such evidence;
• grounds in support of seizing the evidence as is necessary for such an interim measure; and
• defendant’s (debtor’s) consent, if any (if the defendant consents, the claimant does not have to prove urgency).

3.6.6 If the request is granted, the taking of evidence itself shall be done either immediately, or at a later date fixed specifically for the purpose of taking such evidence. The taking of evidence is carried out by the court and cannot be appealed.

3.6.7 Evidence taken by way of preventive interim measure will be reviewed by the court in the substantive proceedings, at which stage issues relating to admissibility, relevance and weight to be attributed to the evidence will be considered. The court may, if necessary and possible, proceed to take the same evidence again.

3.6.8 The evidence may also be used by any party to the substantive proceedings, not just the party who originally applied for the evidence to be taken. Any expense incurred during the taking of evidence (see section 7 below on costs) shall be taken into consideration by the court when assessing the case on its merits.

3.7.1 If there is a factual situation that may cease in the future or that could change before evidence is taken, an enforcement officer (bailiff), at the request of any interested party, may ascertain the relevant factual situation there and then. The district in which the assessment of the factual situation is to take place will be determined by the district of the enforcement officer with jurisdiction in the matter. 14 NCPC, art 364 (1).

3.7.2 In some instances, the assessment can only take place with the consent of the opposing party or any other interested party. If the opposing party refuses to give its consent, the interested party may ask the court to waive the requirement for consent and to approve the assessment of the factual situation in the absence of the opposing party. The court may give its approval without summoning the person against whom the measure is requested, i.e. without notice to the respondent.

3.7.3 The enforcement officer then produces minutes setting out the factual situation. A copy of the minutes is provided to the person against whom the measure was taken, if that person was not present at the assessment of the factual situation. That minutes will have the evidential weight of an authenticated proof of a factual situation 15 NCPC, art 364 (4). .

3.7.4 In cases of urgency, both the “preventive taking of evidence” and the “urgent assessment of a factual situation” can be done on non-working days and outside business hours, with the express permission of the court 16 NCPC, art 365. .

Form of the request

4.1.1 Interim measures are subject to the rules applicable to summary proceedings. In most cases, a hard-copy of the interim application is lodged with the relevant court. The NCPC allows electronic submissions incorporating an authorised electronic signature. For the time being, the option to file an electronic submission is rarely used as the technical procedure is often rather complicated and burdensome.

Content of the request

4.1.2 The request has to include a comprehensive prayer for interim relief and must name the grounds on which the request is founded. The court is prevented by the principle of non ultra petita from awarding more than the applicant requested. However, following the principles of a maiore ad minus and proportionality, the court can and should order a lesser measure if the applicant’s right which is at risk can be secured by a lesser measure.

Enclosures to the request

4.1.3 The applicant must attach all evidence in support to its request.

Specifics of each interim measure

4.2.1 With regard to distraint (upon property) and preventive garnishment measures, the court will not summon the parties and shall make its decision on an urgent basis on paper. The decision is recorded in an enforceable order that also establishes the extent/scope of the distraint/garnishment. Through the same court order, the court establishes the amount of the security requested (if such security is requested at all), as well as the timeframe for submitting such security to court by the applicant (creditor).

4.2.2 The court’s ruling on the application for a distraint/garnishment is communicated by the court to the respondent immediately. The imposition of such measures can only be challenged through an appeal, within five days of the order being notified, at the applicable higher court. The appeal shall be heard with urgency, and the parties will be summoned within a short time. Even if they do not attend the court hearing, the court will make a ruling which shall be made available to the parties by the court in its online public records. The ruling can be delayed for up to 24 hours, and the reasons for the decision shall be made available within 48 hours of the ruling. 17 NCPC, art 953(1) to (4).

4.2.3 Both distraint (upon property) and preventive garnishment are enforced by the enforcement officer, who follows the enforcement procedure provided for by the NCPC. Once the court has approved the interim measure, there is no need for any other authorisation or approval for the measure to be implemented by the enforcement officer.

4.2.4 In relation to a distraint upon property, the enforcement officer shall go, as soon as possible, to the place where the assets to be distrained are located. The enforcement officer shall seize the respondent’s assets only to the extent necessary for the applicant’s claim to be met. In all cases, seizure takes place without warning or prior notice to the respondent.

4.2.5 Any seizure of assets that is to be subjected to publicity formalities so as to alert third parties is registered with the Land Registry (in respect of real estate), Trade Registry (in respect of shares), the Electronic Archive of Movable Securities (in respect of movable assets), or any other public register, as the case may be. Such registration shall make the seizure legally binding on any third parties that may acquire (further) rights over the said asset in addition to the parties to the order.

4.2.6 In relation to judicial sequester, the court must summon the parties to a hearing before ruling on the application 18 NCPC, art 974 (1). . The task of guarding the seized asset for the purpose of executing the “judicial sequester” measure falls to a person designated by the parties by mutual agreement. If the parties fail to agree, the court designates the guardian, which may be the guardian of the asset at the time the sequestration order is made. The enforcement officer will go to the place where the asset is located and gives the asset to the sequester-administrator. This is documented in a certificate of confirmation that is given to the court that approved the “judicial sequester”.

4.2.7 The sequester-administrator is entitled to do everything necessary for managing and conserving the asset. He shall also receive any incomes or amounts due, and may pay any debts due, as well as debts attested through an enforceable title. The sequester-administrator may sell the asset, with the prior approval of the court, in the event that its conservation is impossible or for any reason that requires the sale of such asset. Moreover, if the court approves it, the sequester-administrator may take the place of the parties as regards the seized asset at trial.

4.2.8 In urgent matters, the court may approve an interim administrator until the application for judicial sequester has been decided.

Limitation of evidence

4.3.1 In principle, only documentary evidence is permitted in summary proceedings. Documentary evidence is interpreted broadly and includes every document suitable to prove the relevant facts, such as papers, drawings, plans, photos, films, audio recordings, electronic files and e-mail print-outs.

4.3.2 Other evidence (such as questionnaires and witnesses) is only admissible if it does not substantially delay the proceedings; if the purpose of the proceedings requires such evidence; or if the court is obliged by law to establish the facts of the case ex officio.

Standard of proof – credibility

4.3.3 The applicant does not have to prove conclusively the conditions for each of the interim measures; the requirement is only to demonstrate them credibly. In summary, making a claim credible requires more than a simple allegation, but less than strict proof. The facts must be supported by some documentary evidence. The substantiation of the facts must be of such quality that, following a prima facie assessment, the judge comes to the conclusion that the applicant’s presentation is likely to be true, but not all doubts have to be ruled out. Some experts/commentators refer to this as “the proof of likeliness”.

4.3.4 The courts have substantial discretion when assessing whether or not the standard of credibility is met. In many cases, it will simply come down to the judge’s instinct when considering whether a case has been made credible. This shows the importance of a convincing application and compelling evidence.

5.1.1 In all cases where the respondent is summoned by the court, it shall receive a copy of the application and can present counter-arguments and evidence either in a hearing (in the case of judicial sequester) or in a written statement of defence. In principle, the same restrictions apply to the respondent’s evidence as to the applicant. While the applicant has to show that its case is credible, the respondent only needs to put forward substantiated allegations which are sufficient to overthrow the credibility of the facts alleged by the applicant.

5.1.2 The respondent also has an opportunity to challenge the decision of the court on the application for an interim measure once the decision has been made. The appeal must be filed within five days of the judgment being made (if the parties were formally summoned to a hearing) or notified to the parties (following an ex parte procedure). The reasons of the ruling have to be drafted within 48 hours since the date of the ruling.

5.2.1 Distraint (upon property), judicial sequester and provisional garnishment may be conditional upon the payment of security by the applicant. The court has discretion whether or not to order security, which is as a general rule up to 20% of the value of the assets subject to the interim measure. In some cases, however, security is mandatory and the amount is set by law at 50% of the value of the underlying claim, as mentioned at paragraph 3.2.5 above.

5.3.1 The respondent can challenge the enforcement of an interim measure. Interim measures are usually enforced through the enforcement procedure provided by the NCPC 19 NCPC, art 954(4). . Through such a challenge, the party suffering damage may request compensation, and if it is found that the interim measures were unjustified, the applicant may be obliged to pay damages to the respondent. However, although the NCPC sets out a fast track procedure for making applications requesting an injunction from the court (to obtain interim measures), challenges against the enforcement of such interim measures fall within the procedures applicable to trials on the merits of the case. This means that the court can take much longer to render its decision.

5.3.2 In addition to seeking damages by way of compensation, if the applicant has filed the request for an interim measure in bad faith, for example, by concealing evidence that would not have been in its interest to reveal, then the court may additionally order the applicant to pay a fine.

6.1.1 The prerequisites for interim measures are the same whether or not the substantive case is already pending. Any request will be dealt with in fast track proceedings. However, before the substantive claim is issued, the applicant has a greater choice of jurisdiction, as set out in section 2 above.

6.2.1 As a rule, requests for interim measures are decided quickly. If the urgency is obvious, the court may even issue its order within the same day, sometimes within hours (however, this is rarely seen in practice)..

6.2.2 There are cases where the issuance (or denial) of an interim measure takes considerably longer, depending upon the workload of the court. In addition, varying standards of case management and sophistication of the local courts can result in differences as to the length of time taken for the court to issue an order.

6.3.1 Where a judicial sequester is issued before the main proceedings are pending, the applicant must file its substantive claim within 20 days of the date the interim measure was granted. Failing to do so will result in the automatic ineffectiveness of the interim measure. The deadline is fixed by the law, and cannot be extended by the court.

6.3.2 An interim measure will be in place for as long as the main (substantive) proceedings are in progress. If an order for an interim measure is made and then appealed, the court of appeal may stay enforcement up until it rules on the appeal only if the party asking for the stay of the enforcement provides security. The amount of the security will be set by the court.

7.1.1 Provisions regarding court fees are set out in the Government Emergency Ordinance no. 80/2013 on court fees. An applicant should take into account the actual costs of its own representation and that it may have to pay court costs in advance.

7.1.2 Court costs include the court fee and, where applicable, the costs of taking evidence and/or translations. For injunctions having a monetary value (“ordonante presedintiale”), the court fee calculation will be calculated on a scale determined by the amount in dispute, as provided by the Government Emergency Ordinance no 80/2013 on court fees. 20 Government Emergency Ordinance no 80/2013, art 1. The court fees for setting a judicial sequester, distraint upon property or provisional (i.e. temporary) garnishments are of nominal value.

7.1.3 Party compensation includes compensation for professional representation and reimbursement of necessary expenses. The level of compensation for legal costs is determined by the court, based on the evidence produced by the party claiming reimbursement. The court analyses such costs and may award the entire amount, or a proportion of the amount, taking into account the complexity and novelty of the case. The court has sole discretion in setting the level of compensation for legal fees. In some cases, the compensation covers only a relatively small fraction of the successful party’s actual legal fees. If a party is not represented by a lawyer, compensation will not be awarded.

7.2.1 The applicant must pay the court fees in advance in order for its claim to be considered 21 Government Emergency Ordinance no 80/2013, art 1. . In the absence of payment, the courts will dismiss the claim.

7.2.2 A successful applicant has to seek reimbursement of both the court costs and its legal fees, following approval by the court, from the respondent. If the respondent refuses to pay, the applicant will have to initiate enforcement proceedings for the costs.

7.2.3 The applicant seeking interim relief may be required to provide security to compensate the other party if it later becomes apparent that the interim measure should not have been granted (see paragraph 5.2.1 above).

7.3.1 The court shall decide on costs when deciding on the application for the interim measure. Both court costs and any security required are determined when a request is filed by an interested party. The allocation of court and legal costs shall be decided by the court when rendering its judgment on the interim measures application.

7.3.2 Cost shifting applies for both court costs and party compensation. Accordingly, where a request for interim relief is fully granted, the respondent must bear all costs. If a request is partially granted, the costs are allocated proportionally. 22 CPC, art 106. By way of example, if an applicant succeeds in 80% of its request, it will be ordered to pay 20% of the court’s costs, and the proportion of costs and compensation payable by the respondent will be correspondingly reduced.

8.1.1 The interim measure may be modified or revoked if the relevant circumstances have changed or if the measures have later been proven to be unjustified. Examples of changed circumstances are:
urgency which no longer applies;
grant of the interim measure causes higher damages than expected; or
the subject/substantive matter has ceased to exist (e.g. an intellectual property right has expired).

8.1.2 Any application for modification or revocation of the interim measure should be brought before the court that ordered the measure.

8.1.3 Although not specifically provided by law, the courts have ruled in practice that the alleged change of circumstances must have occurred after the day on which the interim relief was granted.

Outline of the Romanian appellate system

8.2.1 As a general rule, court decisions in Romania are subject to an appeal and a final appeal. Any parties may challenge the first instance decision on the basis of either the merits of the case and/or the lawfulness of the decision. The final appeal, however, can only be filed in certain circumstances relating to questions of law that are within the scope of the specific provisions of the NCPC.
The appeal

8.2.2 An appeal can be brought against the decision of the first instance court on the interim application. 23 NCPC, art 997. The appellate court is vested with the full power to review the case, i.e. the appellant can challenge both the application of the law and proof of the facts.

8.2.3 The appeal must be filed in writing with the court that has ordered the interim measure, and must set out the grounds for the appeal. The period in which to file an appeal is only five days following either notification of the reasoned decision to the respondent/applicant (in case of distraint or precautionary garnishment) or the date when the decision was rendered (in case of judicial sequester). The appeal does not automatically result in the suspension of the enforcement of the interim measure. However, on request and exceptionally, the court may suspend the enforcement of an interim measure if such enforcement would cause the respondent harm that is not easily reparable.

8.2.4 Such an appeal is decided through a fast track procedure, in which the parties are summoned to appear within a short period of time of between a few weeks and a few months, depending upon the court.

8.2.5 The other party will then be notified of the appeal and may then file a statement of defence, but it is not mandatory. 24 NCPC, art 998(1).

9.1.1 There is no separate enforcement procedure for interim measures that have been ordered by the court, and the enforcement process is the same as that applicable to the enforcement of a court order relating to the substantive claim. However, it is up to the applicant to apply for the relevant enforcement measures.

9.1.2 If the interim measure judgment is not complied with willingly, the enforcement officer shall enforce the judgment. The court enforcement officer may enter a person’s domicile or a company’s headquarters, with the help of public force (i.e. police, gendarmerie, etc.), if required.

9.1.3 Possible means of enforcement are:

• imprisonment: The Romanian Criminal Code provides that failure to comply with a court decision and opposing the enforcement procedure by threatening the enforcement officer is punishable by imprisonment for between three months to two years. Criminal liability of companies can include criminal liability of the individual who has caused the company to commit a criminal offence. Moreover, the party resisting enforcement will also be ordered to pay damages in the event that it causes prejudice to the other party through its refusal to comply with the court’s decision;
• a judicial fine: Article 627(3) NCPC provides that in the event that the debtor in an enforcement procedure refuses to appear before the enforcement officer to give the requested clarifications, or gives incomplete information in bad faith, then the chairman of the court may punish such debtor with a judicial fine of up to RON 1,000;
• an order for performance by a third party: Where the respondent does not carry out an action as ordered, the court can, to the extent possible, order the execution of its order by substitution (i.e. authorise the applicant or another person to perform this action). In general, the applicant carries out the necessary actions in the name and on behalf of the respondent, the latter being liable to pay any costs incurred as a result of such substitution; and
• the replacement of a party’s declaration by the other party’s declaration: where the respondent does not make a declaration (e.g. such as is needed for the entry of information into a public registry), the other party’s declaration is deemed sufficient for the required purpose.

9.2.1 An order for interim measures obtained abroad in a member state of the European Union may be enforced in Romania under the specific conditions provided by the Brussels I Regulation 25 Brussels I Regulation, art 2(a). . The procedure for enforcement of the interim measure obtained abroad is governed by the law of Romania as the addressed member state 26 Brussels I Regulation, art 41. .

Enforcement under the Brussels Regulation

9.2.2 An interim measure order issued in a member state of the European Union may not be enforced in Romania.

9.2.3 In order to enforce such order the applicant needs to provide the competent enforcement authority in Romania with: 27 Brussels I Regulation, art 42(2).

• a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
• a certificate from the court of origin in the form set out in Annex I of the Brussels I Regulation containing a description of the measure and certifying that: (i) the court has jurisdiction as to the substance of the matter; and (ii) the judgment is enforceable in the member state of origin; and
• where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment.

Enforcement under the NCPC

9.2.4 Article 1102(2) of the NCPC provides that foreign decisions on interim measures, as well as any foreign decisions where the enforcement is temporary, cannot be enforced in Romania. However, with respect to EU courts’ decisions on interim measures, these should be enforced under the provisions of the Brussels Regulation.

10.1.1 If the party against whom the interim measures were ordered does not voluntarily comply, the arbitral tribunal may request that the competent court rule upon the interim measures, thus rendering an enforceable decision 28 NCPC, art 1116(2). . The state court will only apply Romanian law.

10.1.2 The Geneva Convention provides that requesting interim or conservatory measures from a national court shall not be considered either incompatible with an arbitration agreement or as a way of awarding jurisdiction over the merits of the case 29 European Convention on International Commercial Arbitration (signed on 21 April 1961, ratified by Romania on 16 Aug 1963), art VI 4. .

10.2.1 Provided the parties have not agreed to the contrary, the arbitral tribunal has the power to grant interim relief. While the arbitral tribunal is not bound by Romanian law, it must treat the parties equally and observe the parties’ right to be heard. However, the arbitral tribunal cannot enforce its order or impose sanctions if a party does not voluntarily comply with the tribunal’s order. The NCPC provides that arbitral tribunals can ask for the competent court’s intervention if a party does not voluntarily comply with interim measures ordered by the arbitral tribunal, whether the party is domiciled in Romania or if the arbitral tribunal is seated in Romania. 30 NCPC, art 1116(2).

10.3.1 Since the NCPC expressly states that foreign court decisions on interim measures may not be enforced in Romania, foreign arbitral awards on interim measures are not enforceable in Romania either.

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