Romania: Limitation and prescription periods in the context of the state of emergency
Due to the coronavirus pandemic (“COVID-19”), Romania’s president issued the presidential decree on a state of emergency no. 195/16.03.2020 (the “Decree”) by which he officially declared a state of emergency on the territory of Romania for a period of 30 days. Depending on how the COVID-19 pandemic evolves, a new decree may be issued.
It should be noted that emergency measures have been adopted in order to mitigate the negative effects that may arise and to prevent the spread of infection with this virus.
One of the most important measures in the field of justice is established in Chapter V of the Decree, especially Article 41. This measure relates to substantive and procedural time limits, namely the fact that limitation and prescription periods of any kind will not start running throughout the state of emergency and, if they have already started running, they will be suspended during the period of the state of emergency starting from 16 March 2020.
1. The statute of limitations
This represents an express derogation from the provisions of Article 2532 point 9 second alternative of the Civil Code, which states that: “force majeure, when temporary, does not constitute a cause to suspend the term of the statute of limitations unless this occurs in the last six months preceding the expiration of the limitation period.”
Therefore, in the present situation the force majeure triggered by COVID-19 involves suspension of all the limitation periods, without differentiating whether the period remaining until the expiry of the limitation period is greater than or less than six months.
This derogation is possible due to the fact that the state of emergency triggered by the COVID-19 virus is considered a case of force majeure as defined by Article 1351 para. (2) of the Civil Code.
However, it should be mentioned that all legal provisions contrary to those mentioned above become inapplicable.
Regarding the effects and benefits of suspending limitation periods, as well as the extension of the suspensive effect, we note that the Decree does not derogate from the provisions of the Civil Code, meaning that the following rules apply: (i) the statute of limitations will resume its course from the date on which the cause of suspension (the state of emergency) has ceased. For fulfilment of the term, the time elapsed before the suspension is also counted – the “general effect”; (ii) the statute of limitations will not be fulfilled before the expiry of a six-month period from the date on which the suspension has ceased, except for limitation periods of six months or less, which will not be fulfilled until after the expiry of a period of one month from the time the state of emergency has ceased – the “special effect”; (iii) suspension of the limitation period may only be invoked by the party who was prevented from taking actions to interrupt it, unless the law provides otherwise.
2. Mandatory time limits
In relation to the time limits relating to the forfeiture of rights, Article 2548 para. (1) and (2) of the Civil Code states that: “the time limits are not subject to suspension and interruption, unless otherwise provided by law. However, the force majeure prevents the term from running in all cases, and if the term has begun to run, it shall be suspended (…)”.
It should be emphasised that the Decree does not establish a different regime from the one provided in the Romanian Civil Code in this respect. Therefore, the mandatory time limits are suspended during the state of emergency or for a period of at least 30 days (depending on a potential renewal of the state of emergency), starting from 16 March 2020, regardless of their nature or length.
Moreover, in terms of the suspension of mandatory time limits, the above rule stating that the time limit will resume its course from the date on which the state of emergency has ceased will apply. For the fulfilment of the term, the time elapsed before the suspension is also counted (the “general effect”).
As regards the special effect of the suspension of mandatory time limits, we note that it will only be considered as having lapsed after five days from the date when the state of the emergency has ceased.
3. Enforcement proceedings
Enforcement proceedings are possible in the current context as long as certain conditions are met, namely: “compliance with the rules of health discipline established by the decisions of the National Committee on Special Emergency Situations, aimed at protecting the rights to life and physical integrity of the participants in the forced execution.”
4. Time limits for lodging appeals
It is worth noting that the time limits for lodging appeals in civil cases suspended according to the Decree will be interrupted and that new periods of the same duration will run from the date on which the state of emergency ends.
If appeals have been filed in these cases up to the date when the Decree was issued, the files will be submitted to the competent court after the end of the emergency situation.
The Decree also states that during the state of emergency the courts will only handle urgent cases, as determined by the High Court of Cassation and Justice and the Courts of Appeal, other cases being suspended de jure.
Considering these aspects as well as the speed at which the new coronavirus is spreading in Romania, the role of suspending the limitation and prescription periods is to reduce the negative effects of the COVID-19 pandemic.