The value of the claim, and the document from which it originates, are very relevant when choosing the type of legal proceeding to be initiated against the debtor, and when checking the competency of the courts, as we shall detail below.
Under Romanian rules of civil procedure, the creditor that does not have a writ of execution may opt for one of the following types of proceedings:
2.1. The simplified procedure for small value claims
2.2. The request for the issuance of a payment ordinance
2.3. The common procedure
2.1. The small value claim procedure
This type of procedure is applicable when the value of the debt (without taking into consideration the interest, the court expenses, or any other accessories) does not exceed €2,000 at the date of filing the request to the court.
This procedure, though, is not applicable for debts deriving from taxes, customs, or administrative matters, nor for insolvency or labor matters.
The competent court, in this case, is the court of first instance from the place of residence/headquarters of the debtor. The creditor shall file a request through a simplified and standard form to which they shall attach the evidence they shall use during the procedure.
The whole procedure is a written one, and the debtor shall submit a response to the creditor's form within 30 days of receiving it.
The court shall render a decision with respect to the claim based on the submitted documents, without the presence of the parties, but the judge may ask for their presence if they consider it to be necessary. Nevertheless, due to the fact that the hearing of the parties is the exception to the rule, and generally, the court decision is rendered solely based on the written documents submitted by the parties, it is to be underlined that no interrogations, expert evidence, or witness evidence are permitted.
Against the court's decision, the parties have the possibility of filing an appeal.
The main advantage of this type of procedure is the fact that the stamp duty is a reduced one, starting from €10 up to €50.
The final decision of the court through which the claim is approved is a writ of execution, and if the debtor does not apply it, the creditor may request a bailiff to enforce it.
2.2. The request for the issuance of a payment ordinance
This special procedure is applicable to debts that are uncontested, liquid, and enforceable against the debtor, and that result from a written document such as a contract or an invoice.
This procedure is not applicable to debts arising from bankruptcy or proceedings relating to the winding-up of insolvent companies or other legal persons.
Issuing a payment ordinance involves a series of steps:
First, the creditor shall send the debtor a warning letter by bailiff, or by registered letter, making sure that the means of communication ensures a confirmation receipt. Through this warning letter, the creditor shall instruct the debtor to make the payment of the amount owed within 15 days of receiving it. Not observing this first step shall lead to the rejection of the court claim as inadmissible.
Although the law does not foresee the content of the warning letter, it should include a brief summary of the situation, the contractual relationship between the parties, and also the creditor's decision to initiate a court proceeding if the debt is not paid within a certain period (which cannot be under 15 days). The letter shall also include the calculation of the interest owed on the debt. It is recommended for this letter to be drafted by a lawyer in order to ensure a complete assessment of the situation and to respect certain requirements in order to send a fully comprehensible request to the debtor.
The purpose of the letter is twofold, namely to ensure that the precondition requested by the law is met, and secondly, to interrupt the statute of limitations, which, in Romania, is three years.
Last but not least, the letter shall be sent only after the creditor has prepared all the necessary documents needed in order to initiate the court proceeding so that after the expiration of the term indicated in the letter, the creditor can file the request with the court.
If the debtor does not comply with the demand, the creditor shall address the competent court with a request to issue an order for payment. The competence of the court shall be determined based on the value of the claim, like in an ordinary procedure, and on the residence/headquarters of the debtor.
To the request addressed to the court, the creditor shall attach invoices, delivery notes, or other documents that can usually prove the relationship between debtor and creditor and the existence of the debt. It is to be mentioned that in this procedure, the only evidence that the court shall approve and analyze is documentary evidence.
This procedure involves both a written and an oral stage. Based on the documentary evidence attached to the file by both the creditor and the debtor, the civil procedure code provides that court shall issue a decision within 45 days from the filing of the claim; however, it is not uncommon for the procedure to be prolonged due to procedural incidents, such as the need for the parties to supplement the evidence.
If the court claim is approved, the term that the court shall set for the debtor to pay the outstanding amount shall not be less than 10 days and not longer than 30 days from the date of the communication of the order of payment.
The court's decision can be challenged through a request for annulment. However, the advantage of this procedure is that the court's decision, although appealed, can be enforced from the date it was rendered.
Another advantage of this type of procedure is that the stamp duty paid by the creditor is not calculated based on the amount of the claim, but it has a fixed sum of approximately €40.
This procedure is suitable for debts deriving from unpaid invoices since it involves lower costs, and is a fast track. However, if the court considers that the solving of the claim implies administrating more evidence than documents, the request filed through an order payment procedure shall be dismissed.
2.3. The common procedure
The common procedure represents the standard recovery procedure in situations in which the debt is not certain, is liquid, and due, or if the creditor needs to administer more than documentary evidence.
The competent court is the one in the place of residence/headquarters of the debtor (if the contract does not provide otherwise), but the level of jurisdiction is determined based on the value of the claim. So, for claims up to approximately €45,000, the recovery claim shall be filed in a court of first instance, while for claims with a higher value, the competent court shall be the Tribunal Court.
Depending on the complexity of the file, this type of procedure can prove to be a long-lasting one given the fact that obtaining a solution may take up to one year from the moment of filing the claim. The decisions given by the first court can be appealed, and for claims larger than €45.000, Romanian law foresees an additional remedy, the recourse.
Proceeding with this type of request also implies the payment of a stamp duty. The stamp duty shall be calculated depending on the amount of the claim, as follows:
- For claims up to approximately €100, the stamp duty shall represent 8% of the claim, but not less than €4.
- For claims between approximately €100 and €1,000, the stamp duty shall represent €8, to which an amount of 7% of the total exceeding €100 shall be added
- For claims between approximately €1,000 and €5,000, the stamp duty shall represent €70, to which an amount of % of the total exceeding €1000 shall be added
- For claims between approximately €5,000 and €10,000, the stamp duty shall represent €280, to which an amount of 3% of the total exceeding €5,000 shall be added
- For claims between approximately €10,000 and €50,000, the stamp duty shall represent €400, to which an amount of 2% of the total exceeding €10,000 shall be added
- For claims larger than €50,000, the stamp duty shall represent €1,200, to which an amount of 1% of the total exceeding €50,000 shall be added.
If the claim is approved, the creditor is also entitled to recover the costs they incurred with the stamp duty, lawyers fees (which can be reduced if the judge considers they are too high), the fees of the experts (if any), etc.
It is common practice for creditors whose debt is certain to be liquid and due, and that derives from a written document, to first file a request for issuance of a payment ordinance. If the court rejects such a request, they should subsequently file a common procedure claim, since the decision of the court in the payment ordinance procedure does not constitute res judicata for the common procedure court.