12 IOAN CHELARU
Community and international instruments in private international law matters.
The new regulation establishes the spouses’ autonomy of will by their possibility
to choose, within certain limits, the law applicable to the matrimonial regime.
Therefore, the proposed regulation reflects the principle established by the Hague
Convention of 1978 on the law applicable to matrimonial property regimes and
reaffirmed in the Green Paper of the European Commission on developing a
European regulation on conflict of laws in matrimonial property regimes,
jurisdiction and recognition of court judgments15.
Also, the new regulation distinguishes between personal effects and general
property of marriage (primary imperative regime) on the one hand, and proper
matrimonial regimes (legal and secondary), on the other hand, taking into account
such changes made in family law (Book II).
For the Code of Civil Procedure we can mention some innovations related to
Romania’s ECHR casuistry regarding, among others, the simplification and
acceleration of judicial procedures, the simplification of divorce procedure, the
provision whereby the bail may also regard real estate rights or financial
instruments, and the introduction of the appeal concerning delays in the trial as a
new remedy. The Code establishes a self-reliant special procedure directed against
the breach of the right to settle a trial within an optimal and predictable time: the
appeal against delays in the trial. Under the new procedure, observing ECHR
decisions that sanctioned the absence of legal means to act in case of exceeding the
reasonable time to settle a case, the party considering a cause to be delayed may
require legal measures for this situation to be removed.
Romania, who is also a member of the Council of Ministers of the Council of
Europe, participated actively in the process of streamlining the European Court of
Human Rights. It is well known that, following the entry into force of Protocol 11
(1998), the work of the European Court of Human Rights was increased, but also
15 A harmonized European regulation is obviously hampered by the variety of legislative
solutions in national legal systems. This is also why, in general, the matter of matrimonial property
regimes was largely only explored by the European legislator, and only occasionally, an expression
of the principles of equality and freedom within the family group, it was treated directly and
sought to impose universally valid rules. All these amid great difficulties encountered in managing
family relationships when they also contain an extraneous element, amplified in recent years by
large-scale migratory phenomena, by a recognized family instability and, practically, by the
impossibility to find and, then, to impose a regulatory framework that would be recognized and
adopted by the European Union States. In these circumstances, however, in 2011, the European
Commission and its subordinate legislative apparatus drafted and proposed two models for a
regulation on the jurisdiction, applicable law, recognition and enforcement of judgments in
matrimonial property regimes, one on marriages and the second regarding registered partnerships.
The first attempt to adopt such regulations, which occurred in the European Parliament in 2013,
resulted in a severe failure, the huge number of amendments proposed leading perhaps in the
future to the drafting of other texts. For more details on matrimonial property regimes, see I.
Chelaru, A.L. Chelaru, Foreigners in Romania. Legal regime, Universul Juridic Publishing House,
Bucharest, 2016, pp. 273-277.