The principle of the effectiveness of insolvency proceedings in the european contex

Author:Dr. Anca Roxana Adam
Position:Senior Lecturer PhD
Pages:43-54
SUMMARY

Law no.85 / 2014 on Insolvency and Insolvency Prevention Procedures, known as the Insolvency Code, has explicitly regulated 13 principles on which its provisions are based. These principles give effect to the World Bank Insolvency Principles, the European Insolvency Principles and the UNCITRAL Legislative Guide on Insolvency. The Concept of Business Insolvency Code focuses on common rules that apply to all pre-insolvency and insolvency procedures in the Member States of the European Union, namely: encouraging insolvency prevention procedures by setting the foundations for a legal and business culture in negotiations; supporting the reorganization process at a reasonable economic and balanced level against a viable and bona fide debtor; in the event of a reorganization failure, the liquidation of assets can also be achieved by business transfer and its duration is reasonable, and asset recovery is effective.

 
CONTENT
The principle of the effectiveness of insolvency proceedings in the european context 43
THE PRINCIPLE OF THE EFFECTIVENESS OF INSOLVENCY
PROCEEDINGS IN THE EUROPEAN CONTEXT
Senior Lecturer PhD Dr. Anca Roxana ADAM1
Abstract
Law no.85 / 2014 on Insolvency and Insolvency Prevention Procedures, known as the
Insolvency Code, has explicitly regulated 13 principles on which its provisions are based. These
principles give effect to the World Bank Insolvency Principles, the European Insolvency Principles
and the UNCITRAL Legislative Guide on Insolvency. The Concept of Business Insolvency Code
focuses on common rules that apply to all pre-insolvency and insolvency procedures in the Member
States of the European Union, namely: encouraging insolvency prevention procedures by setting the
foundations for a legal and business culture in negotiations; supporting the reorganization process at
a reasonable economic and balanced level against a viable and bona fide debtor; in the event of a
reorganization failure, the liquidation of assets can also be achieved by business transfer and its
duration is reasonable, and asset recovery is effective.
Keywords: Procedure, insolvency, principles, application, efficiency
By the notion of principle is meant that fundamental element, that primary
cause, that basic idea, which is based on a scientific theory, a legal system, or a
norm of conduct.
Law no.85 / 2014 on Insolvency and Insolvency Prevention Procedures2 is
currently known in the usual language of doctrines and practitioners as Insolvency
Code3, given the structure of this normative act but this is not accurate from the
point of view of legal technique and scientific reasons.
1 Email: roxana.adam@unitbv.ro, Transilvania University of Brasov, Department of Law, Faculty
of Law
2 Published in the Official Gazette Part I no.466 / 25 06 2014
3 The use of the name of the Insolvency Code is made for the simplification of the language and
for the distinction to be made by the Law No. 85/2006 regarding the insolvency procedure, Law no.85
/ 2014 being a more complete and complex law, but not covering all the fields of application , suc h as
the insolvency of the territorial administrative units further regulated by the Government Emergency
Ordinance no. 46/2013 on the financial crisis and the insolvency of the territorial administrative units,
published in the Official Gazette Part I no.299 / 24 05 2013 and the insolvency of the natural persons,
is regulated by the Law no.151 / 2015 on insolvency procedure of individuals, published in the
Official Gazette Part I no.464 / 26 06 2015. Also, this law does not refer to the insolvency of the units
that provide the public utility services provided by the Constitution Of Romania, such as television
and state radio. For details on the name of the Insolvency Code given to the Law no.85 / 2014, see als o
the Decision of the Constitutional Court no.283 / 21.05 2014, published in the Official Gazette Part I
no.454 / 20 06 2014, according to which Law no. 85/2014 "can not be classified as an insolvency code
in the light of its scope"
Law Review vol. VII, special issue, December 2017, p. 43-54
44 ANCA ROXANA ADAM
This normative act attempted to build a unitary construction of the existing
institutions and concepts, following the way they evolved into the current
economic and social reality.
Law no.85/2014 is a comprehensive law, which encompasses legal norms
intended to apply to certain legal relationships with a specific regulatory field,
namely the applicable rules in the field of insolvency prevention (insolvency) and
insolvency. This law attempted to introduce the recommended jurisprudence to
the legal standard, which managed to develop equitable solutions.
The Insolvency Code contains special legal rules and consequently derogations
from common law4. Thus, Article 342 paragraph 1 of the Law no.85/2014
stipulates that "the provisions of this law shall be supplemented, insofar as they do
not contravene those of the Civil Procedure Code and the Civil Code".
Article 1, paragraph 1 of the new Civil Code5 lists the sources of civil law, these
being the law, the customs and the general principles of law6. Thus we find that for
the first time the legislator of the new Civil Code has regulated the principles of
law as a source of law, but without enumerating them and encompassing them in a
legal regulation7.
We consider that to the extent that the Insolvency Code complements the
provisions of the Civil Code, it constitutes a source of law and for the pre-
insolvency proceedings or for the insolvency procedure the general principles of
law, in so far as they do not contravene the principles regulated by this special law.
Thus, the 13 principles covered by the Insolvency Code are special principles,
which apply as a matter of priority and, in addition to these, constitute a source of
law and general principles of law, to the extent of their compatibility, with the
subject matter of this law.
The doctrine8 raised the question of whether the new Civil Code is the
common law in all areas of private law or only for matters directly or indirectly
regulated by it?
4 For details on the place of the institution of insolvency in Romanian private law, see I. Turcu,
M. Stan, A Rebel Private Private Law - Insolvency in Phoenix April - June 2008, pp.17-22
5 Law No. 287/2009 on the Civil Code published in the Official Gazette Part I no. 511/24 07 2009,
republished in the Official Gazette Part I no.505 / 15 07 2011
6 For details on the general principles of civil law, see I.R. Urs, C. Todica, Civil Law. General
Theory, Hamangiu Publishing House, 2015, pp. 28-38
7 The general principles of law were not a source of civil law under the Civil Code of 1864, for
details see C. Hamangiu, I. Rosetti-Blnescu, Al. Bicoianu, Romanian Civil Law Treaty, vol.1, All
Publishing House, Bucharest, 1996, pp.10-17
8 For details see M. Nicolae, The New Civil Code between Common Law and Romanian Private
Law, In In Honorem Corneliu Bîrsan, Hamangiu Publishing House, Right Magazine, 2013, pp.29-112.
The author proposes by law ferenda reformulation of art.2 of the new Civil Code, which in paragraph
2 should stipulate: "this Code is made up of a set of rules which constitute the common law for all the
domains to which the letter, spirit or object refers its provisions. In these areas, this code is the basis of
other laws that may themselves add or deviate from the code "
The principle of the effectiveness of insolvency proceedings in the european context 45
Law no.85/2014 did not expressly stipulate that the principles referred to in
Article 4 paragraph 1 constitute a source of law, the legislator stipulating that the
provisions of this law are based on these principles. Hence the conclusion that the
application of the principles enumerated by the legislator is done for the
interpretation of the provisions contained in the Insolvency Code and for their
completion, if the law does not distinguish or is unclear.
The need to adopt principles on which to apply the Insolvency Code results
from the fact that the legislator can not anticipate all the practical situations that
may arise under a certain regulation. Thus, in the literature9, it was emphasized
that "legislators can not know all the possible combinations of circumstances that
the future can bring."
The need to regulate the specific principles on which the Insolvency Code is
based, in our opinion, derives precisely from the special law character of this
normative act, which implies a certain specialization for the bodies that apply these
pre-insolvency and insolvency procedures.
The insolvency bodies, namely the court administrator, the liquidator, the
syndic judge and the courts, in fulfilling the duties provided by the law, must
interpret any provision contained in the Insolvency Code or supplement the lack of
provisions when the practical situation justifies it, in the spirit of the defective
principles of the law on art.4 of the Law no.85 / 2014.
It can be argued that the principles on which the provisions of this special law
are based contribute to the purpose of these procedures, being adopted for the
interpetation and unitary application of the provisions of the Insolvency Code10.
The purpose of pre-insolvency and insolvency proceedings was defined by the
legislator in art. 2 of the Law no.85/2014 and consists in "establishing a collective
procedure for covering the debtor's liabilities by granting, where possible, the
chance of redressing its activity ".
Article 2 of the Insolvency Procedure Law no. 85/200611 stipulated that "the
purpose of this law is to establish a collective procedure to cover the debtor's
liability in insolvency."
Regarding the Law no.85/2006, which was repealed by the Law no.85/2014, it
is necessary to specify that it regulated only the insolvency procedure, and by Law
no.381/2009 on the introduction of the preventive concordance and the mandate
ad-hoc procedures for pre-insolvency were regulated.
Art. 2 of the Law no. 381/200912, which was repealed by the Law no.85/2014,
stipulated that "the purpose of the present law is to safeguard the undertaking in
difficulty in order to continue its activity, to preserve jobs and to covering claims
9 H.L.A. Hart, The concept of law, 2nd edition, Oxford University Press, New York, 1961, p. 128
10 For details on the purpose of insolvency proceedings, see C.B. Nasz, Purpose and Object of the
Insolvency Procedure in Phoenix October - December 2008, pp. 26-31
11 Published in the Official Gazette Part I no. 359/21 04 2006
12 Published in the Official Gazette Part I no.870 / 14 12 2009
46 ANCA ROXANA ADAM
against the debtor, amicable procedures for the renegotiation of claims or their
conditions, or by the conclusion of a preventive arrangement ".
It thus appears that the legislature Code illustrated the purpose of insolvency
procedures to prevent bankruptcy and insolvency to lawmaker Law no.85/2006,
adding the possibility of recovery chance debtor's activity and common purpose
that both procedures preinsolven and procedure of insolvency. Thus, the
purpose of the law has been redefined, since Law No. 85/2014 also regulated the
institution of the ad hoc mandate13, which is not intended to cover the debtor's
liabilities, but to establish an agreement with one or more creditors in in order to
overcome the state of financial difficulty, but also the institution of the preventive
concordate14, which aims at the recovery of the debtor's activity.
In essence, the concept of Insolvency Code in the field of business
restructuring focuses on the following rules that apply to all insolvency and
insolvency proceedings in the Member States of the European Union, namely:
encouraging insolvency prevention procedures by setting up a legal and business
culture in negotiations; supporting the reorganization process at a reasonable
economic and balanced level against a viable and bona fide debtor; in the event of
a reorganization failure, the liquidation of assets can also be achieved by business
transfer and its duration is reasonable, and asset recovery is effective15.
Law No. 85/2014 established for the first time specific principles in light of
which the provisions of this law should apply in its area of regulation. These
principles must be respected by the bodies that apply both insolvency prevention
procedures and insolvency procedures16. Also, all participants in these procedures,
such as the debtor, the debtor's creditors, the special administrator, etc., must fulfill
all the acts and operations specific to these procedures in the spirit of these
principles.
Regarding the function that the principles laid down in the Insolvency Code
have to ensure, it is stated that this is an integrative function, and the necessity of
13 According to art. 5, paragraph 1, item 36 of the Law no.85 / 2014, the ad hoc mandate is a
confidential procedure initiated at the request of the debtor in financial difficulty whereby an ad hoc
mandate, appointed by the court, negotiates with the creditors in the purpose of achieving an
understanding between one or more of them and the debtor in order to overcome the state of
difficulty in the
14 According to art. 5, paragraph 1, item 17 of the Law no.85 / 2014, the preventive concordat is a
contract between the borrower in financial difficulty and the creditors holding at least 75% of the
value of the accepted and uncontested claims, on the other hand, approved by the syndic judge, a
contract whereby the debtor proposes a plan for the recovery and realization of the claims of these
creditors, and the creditors agree to support the debtor's efforts to overcome the difficulty they are in
15 For details, see S.M. Milos, A. Deli-Diaconescu, the New Law on Insolvency and previous
regulations. Comparative presentation with the analysis of the main novelties brought by the Law
no.85 / 2014, Hamangiu Publishing House, Bucharest, 2014
16 N. ndreanu, The Insolvency Code Annotated. News, comparative examination and
explanatory notes, Universul Juridic Publishing House, Bucharest, 2014, p.19
The principle of the effectiveness of insolvency proceedings in the european context 47
editing these principles derives from the "logical unity of the rule of law,
insolvency not being an exception in this matter"17.
The previous laws regulating this area, namely bankruptcy (Commercial
Code)18 judicial reorganization and bankruptcy (Law no.64/1995 on the procedure
of judicial reorganization and bankruptcy)19 and insolvency (Law no.85 2006) did
not contain provisions which sets out the principles governing these procedures.
In the literature20 prior to the adoption of the Law no.85/2014, some principles
governing these special procedures were mentioned, on the basis of an overview of
the provisions contained in the previous normative acts adopted in this field,
among which: the principle of celerity, the principle of reorganization, the
principle of maximizing the debtor's wealth, the principle of continuity of the
syndic judge21, the principle of ordering the rank of receivables, the principle of
active participation of creditors in the procedure.
The principles established by Law no.85/2014 were based on the World Bank
Principles, the European Insolvency Principles and the UNCITRAL Legislative
Guide on Insolvency.
The notion of effective procedure was introduced for the first time in the
internal insolvency law when the principle laid down in Article 4, paragraph 1,
paragraph 3 of Law no. It has been established that one of the principles on which
the application of the legal provisions on insolvency should be based is also to
ensure an efficient procedure, including through appropriate mechanisms for
communication and proceeding in a timely and reasonable manner, in an objective
and impartial manner, with a minimum of costs.
In the legal literature22 preceding the Insolvency Code reference was made to
the principle of the procedure, which was not expressly regulated by Law
17 .M. Milos, A.Deli, Elements of novelty in insolvency law - from principles to their
implementation - in Phoenix July - September 2014, p.5; Collective Authors with Scientific
Coordinator R.Bufan and Editors Coordinators A.Deli-Diaconescu, F. Moiu, Practical Insolvency
Treaty, Hamangiu Publishing House, Bucharest, 2014, p.61
18 Codes of Commerce of the Kingdom of Romania in 1887 with the amendments introduced by
the Law of 20 June 1895 and the Regulation of 7 September 1887 and that of 20 June 1895, published in
the Official Gazette of 20.6.1895
19 Republished in the Official Gazette Part I no. 608 / 13.12.1999
20 I. Turcu, Bankruptcy. Current procedure. The Treaties, the 5th Edition, Lumina Lex Publishing
House, Bucharest, 2005, pp. 253 257, I. Schiau, The Legal Regime of Commercial Insolvency,
Publishing All Beck, Bucharest, 2001, pp. judicial reorganization and bankruptcy, in the Commercial
Law Review Magazine no. 3/2001, pp. 118-126, A. Avram, Insolvency Procedure, General Part,
Hamangiu Publishing House, Bucharest, 2008, pp.13-18, CB Nasz, Opening of Insolvency Procedure,
C.H. Beck, Bucharest, 2009, pp. 94-134, C.B. Nasz, Principles of insolvency proceedings, in the
Commercial Law Magazine no.10 / 2008, pp.53-84
21 Regarding the principle of continuity of the syndic judge as an accessory component of the
principle of continuity specific to the Romanian civil process, see V.M. Ciobanu, Theoretical and
Practical Treaty of Civil Procedure. General Theory, vol. I, National Publishing House, Bucharest,
1996, pp.309-310
22 . Adam, C.N. Savu, Insolvency Procedure Law, Insolvency Procedure Law. Comments and
explanations, C.H.Beck Publishing House, Bucharest, 2006, p.6
48 ANCA ROXANA ADAM
no.85/2006 and was not considered as a component of the principle of ensuring
the efficiency of the procedure.
The principle of timeliness of the insolvency procedure was raised as a result
of the obligation for insolvency bodies to carry out their duties with speed.
The principle of the timeliness of the insolvency proceedings has also been
practicable, so it has been ruled by jurisprudence23 that during the insolvency
proceedings, the syndic judge will not be able to order the suspension of the trial
on the basis of the legal grounds contained in the Civil Procedure Code. In this
respect24, it was noted that even in the case of invoking an exception of
unconstitutionality, the insolvency proceedings will not be suspended.
As far as we are concerned, we consider that, pending the opening of the
insolvency proceedings, the suspension of the court is possible, namely in the cases
concerning the creditor's request for the opening of the ordinary insolvency
procedure, for the grounds of suspension of the trial provided by the Code of Civil
Procedure. Under such circumstances, the question arises as to whether, in the
event that the creditor fails to comply with the claim, the syndic judge will order
the suspension of the judgment under Article 242 of the Code of Civil Procedure25
or reject the creditor's claim as unproven, the provisions regarding the
regularization of the applications for legal action are not applicable, respectively
the sanction of cancellation of the creditor's request can not be applied, according
to art. 200 of the Civil Procedure Code. Even if the suspension of the judgment
constitutes a sanction26 applicable to the plaintiff for non-fulfillment of the
obligations imposed by the court, we consider that the syndic judge in such
situations will reject the creditor's request and will not order the suspension of the
court, since the provisions of art.70 par. 1 and 2 of the Law no.85/2014 stipulate
that the request for opening the insolvency procedure should have a certain
content, and it must be accompanied by the supporting documents. Regarding the
remedies against judgments given by the syndic judge in judicial practice it is
found that the judicial control courts have considered that the provisions of the
Code of Civil Procedure concerning the suspension of the court are applicable
given the enforceability of the judgments of the syndic judge and the cases
extremely limited when it is possible to suspend their execution by the judicial
control court.
23 Civil Decision no. 1994/2004 pronounced by the Court of Appeal Cluj, Commercial Section,
published in I. Turcu, Bankruptcy. The present procedure, Treatise, 5th Edition, op.cit., p.255
24 Civil Decision no.3456 / 02 11 2007 issued by the High Court of Cassation and Justice,
Commercial Section, published in Romanian Journal of Law No.1 / 2009, pp.148-150
25 According to Article 242 of the new Code of Civil Procedure, when it finds that the normal
conduct of the proceedings is hindered by the applicant's fault, by failing to fulfill the obligations
established in the course of the trial, the judge can suspend the trial
26 I. Les, Code of Civil Procedure. Comment on Articles, Issue 3, C.H. Beck, Bucharest, 2007,
p. 458
The principle of the effectiveness of insolvency proceedings in the european context 49
Thus, according to Article 43 paragraph 5 of the Law no.85/2014, the following
judgments of the syndic judge may be suspended by the court of appeal: a) the
opening sentence of the insolvency procedure; b) the sentence whereby the
debtor's entry into simplified procedure is decided; c) the sentence by which the
debtor's bankruptcy is decided; d) the decision to settle the appeal to the plan for
distribution of the funds obtained from liquidation; e) the decision to settle the
appeals against the measures of the judicial administrator / liquidator; f) the
conclusion by which the reorganization plan was confirmed; g) the termination of
the replacement of the practitioner in insolvency; h) the sentence by which the
actions for annulment of the fraudulent acts of the debtor, concluded before the
opening of insolvency proceedings, have been settled.
The Insolvency Code did not expressly regulate, among the principles on
which this law is based, the principle of the speed of insolvency proceedings, so
that we can see that the notion of procedural speediness is included in the notion
of procedural efficiency.
Thus, we find that the lawmaker of the Insolvency Code comprised in
principle the assurance of an efficient procedure and the principle of the speed of
insolvency proceedings.
Art. 40 para. 2 of the Law no.85/2014 stipulates that bodies applying the
insolvency procedure must ensure that the acts and operations stipulated by law
are carried out as a matter of urgency and that they must also ensure the rights and
obligations of the other participants in these acts and operations .
We consider that the notion of effective procedure implies the achievement of
its purpose, namely the establishment of a collective procedure to cover the
debtor's liabilities, with the possibility of re-establishing the activity of the debtor
when possible. Thus, the legislator refers to the notion of timely and reasonable
time for insolvency proceedings. Hence, it is concluded that the notion of celerity
must be understood in relation to the specificity of each insolvency proceeding, in
relation to the size and importance of the debtor, in relation to its economic and
social position, the number of creditors of the debtor, the economic and financial
situation at national level, or in a determined geographic or commercial space,
over a certain period of time, etc. In other words, the rapid deployment of
insolvency proceedings must be useful but also reasonable.
A component of this principle is also the obligation for the insolvency bodies,
namely the judicial administrator, the liquidator, the syndic judge and the courts,
to assure the rights and obligations of the participants in the acts and operations
specific to the insolvency procedure.
Regarding the appropriate means of communication, the legislator has
determined, in principle, that notifications and communications, in insolvency
proceedings, must be carried out by means and rapid methods, which ensure that
the right to information for the parties to the proceedings, the important acts and
operations performed by insolvency bodies.
50 ANCA ROXANA ADAM
Thus, the parties' summons, notification, as well as the communication of any
procedural documents after its opening are made through the Insolvency
Procedures Bulletin27. By way of exception to this rule, the provisions of the Code
of Civil Procedure in conjunction with the provisions of EU Regulation 2015/848 of
20 May 2015 of the European Parliament and of the Council on Insolvency
Proceedings, which apply to insolvency proceedings, shall apply to participants in
proceedings residing or domiciled abroad repealed Council Regulation (EC) No
1346/2000 of 29 May 2000 on insolvency proceedings, as subsequently amended
and supplemented and Regulation (EC) No 1393/2007 of the European Parliament
and of the Council of 13 November 2007 on notifications in the Member States
judicial and extrajudicial documents in civil or commercial matters and repealing
Council Regulation (EC) No 1348/2000 on the service in the Member States of
judicial and extrajudicial documents in civil or commercial matters, as the case
may be.
EU Regulation 848/2015 regulates the legal recognition in the territory of all
Member States of any decision to initiate insolvency proceedings by a court of a
competent Member State from the time it takes effect in the State of opening.
Several Member States of the European Union have adopted the Insolvency
Procedures Bulletin system for insuring quoting, communicating and notifying
specific insolvency proceedings. The system adopted by our country and managed
by the National Trade Register Office was considered to be efficient and effective at
the level of the European Union. Among the proposals to amend EC Regulation
1346/2000, the obligation to advertise insolvency proceedings in an electronic
register accessible to the public and the interconnection of national insolvency
registers was found. By the legislative resolution of 5 February 2014, the European
Parliament amended the European Commission's proposal COM (2012) 744
amending EC Regulation No.1346 / 2000, but it maintained the proposal to
interconnect the Insolvency Procedures Bulletins of the Member States of the
European Union.
At present, Article 25 of the EU Regulation No.848/2015, which will enter into
force on June 26, 2019, established a decentralized system for the interconnection of
insolvency registers by the European Commission. from the Member States'
insolvency registers, which is carried out through the e-Justice portal, which serves
as a central point of electronic access to information in the system.
27 The Insolvency Proceedings Bulletin functions within the National Trade Register Office and is
a publication made electronically and can be used for a fee. This was implemented by the
Government Decision no. 460/2005 on the content, stages, conditions for financing, publication and
distribution of the Bulletin of judicial reorganization and bankruptcy proceedings, published in the
Official Gazette Part I no.474 / 03 06 2005 and by the Decision Government Decision no.1881 / 2006
amending Government Decision no.460 / 2005, published in the Official Gazette Part I no.17 / 10 01
2007
The principle of the effectiveness of insolvency proceedings in the european context 51
The provisions of art.7 of the Law no.85/2006, which regulated the way of
quoting, notification and communication of procedural documents specific to
insolvency, similar to the provisions of art.40 of Law no.85/2014, were declared
unconstitutional in part28, in which they refer to natural persons or to natural or
legal persons residing or having their registered office abroad.
Regarding the notification of insolvency in judicial practice29, it was noted that
these should be cited according to the provisions of the Code of Civil Procedure,
since the Bulletin of Insolvency Proceedings is a publication that is not free, or
access to justice must be free, according to Article 21 paragraph 1 of the Romanian
Constitution. One of the principles of organization of justice is that of justice, and
the parties to the proceedings can not be required to pay the cost of summons and
procedural documents performed ex officio. This principle is intended to establish
the preventive role of justice, in the sense that the act of justice uses everyone.
It is noted that Law no.85/2014 does not contain provisions regarding the
quoting, notification and communication of procedural documents specific to the
insolvency procedure to natural persons participating in insolvency proceedings.
We appreciate that even under the Insolvency Code, even if the law does not
expressly provide, natural persons participating in the insolvency procedure must
be quoted or notified to the proceedings also according to the provisions of the
Code of Civil Procedure. Such a solution contributes to putting into practice the
principle that insolvency proceedings must be effective, including through
appropriate mechanisms for communication and implementation. Also, the bodies
implementing the procedure must ensure that the rights of the participants to this
procedure are respected. Moreover, the legislator had the obligation and under the
law of the Law no.85 / 2006 to amend the provisions of art. 7, within 45 days,
according to the ones established by the Constitutional Court by the decision of
unconstitutionality 30of this legal provision.
28 Decision of the Constitutional Court no.1137 / 2007 published in the Official Gazette Part I
no.31 / 15 01 2008
29 Civil decision no.60 / 17 01 2011 pronounced by Bucharest Court of Appeal, Commercial
Section IV, irrevocable
30 In this respect, Article 147 (1) of the Constitution of Romania establishes, with respect to the
laws and ordinances in force, found to be unconstitutional, that they "cease their legal effects 45 days
after the publication of the Constitutional Court's decision if, The Parliament or the Government, as
the case may be, disagree with the unconstitutional provisions with the provisions of the Constitution.
During this period, the provisions found to be unconstitutional are legally suspended "; This
constitutional provision is resumed at the legal level by art. 31 paragraph 3 of the Law no. 47/1992 on
the organization and functioning of the Constitutional Court, republished i n the Official Gazette Part I
no. 807/03 February 2010, For details see SM Costinescu, K. Benke, The Effects of Constitutional Court
Decisions on the Dynamics of Their Application, published on http://www.ccr.ro/uploads/
RelatiiExterne/2012/CB.pdf
52 ANCA ROXANA ADAM
By way of exception to the rule of quoting, notification or notification of acts
specific to insolvency proceedings, the Insolvency Proceedings Bulletin shall notify
the procedural documents prior to the initiation of the procedure and the
notification of the opening of proceedings in accordance with the provisions of the
Civil Procedure Code. Also, the first citation and communication of procedural
documents to persons against whom an action is brought under the provisions of
the Insolvency Code following the opening of proceedings will be carried out in
accordance with the Code of Civil Procedure and the Insolvency Proceedings
Bulletin.
In disputes that have been promoted under the common law, after opening the
insolvency proceedings, the summons of the debtor will be made at its
headquarters and at the head of the judicial administrator / liquidator.
The courts have the obligation to send ex officio the documents specific to the
insolvency procedure for their publication in the Insolvency Proceedings Bulletin.
If the debtor is a company traded on a regulated market, the syndic judge shall
communicate to the Financial Supervisory Authority the decision to open the
proceedings.
The notifications, unless the task of the notification belongs to other bodies that
apply the procedure, and the convictions provided by the Insolvency Code fall
under the responsibility of the judicial administrator or the liquidator, as the case
may be.
The publication of procedural documents, or, as the case may be, of court
rulings in the Insolvency Proceedings Bulletin replaces, from the date of their
publication, the summoning, summoning and notification of procedural
documents made individually to the participants in the trial, which are presumed
to be fulfilled at the time of publication .
As regards the notification of the debtor's creditors by the judicial
administrator / liquidator, immediately after the opening of insolvency
proceedings, for the purpose of formulating possible claims, this will also be done
according to the provisions of the Code of Civil Procedure. The insolvency code
expressly provided for in Article 42, paragraph 3, second sentence, that creditors
who have not been so notified are deemed to have been repudiated within the time
limit for the filing of the claims, but they will take over the procedure at the stage
when it is.
The legislator expressly imposed the obligation of objectivity and impartiality
for the bodies applying the insolvency procedure, such as the judicial
administrator / liquidator, the syndic judge and the courts.
For the syndic judge, who works within the court or the specialized court, and
the judges who compose the appeals at the level of the judicial control court,
respectively the court of appeal, the regulation of the obligation of impartiality and
The principle of the effectiveness of insolvency proceedings in the european context 53
objectivity may be considered an excess of regulation , as this obligation was
previously regulated for any magistrate31.
As far as the insolvency practitioner is concerned, we consider that the
lawmaker of the Insolvency Code also imposed on him an obligation of
impartiality and objectivity similar to that of the magistrate when he exercises the
public office of a judicial administrator, namely a liquidator, appointed in an
insolvency case32. The profession of insolvency practitioner is a liberal profession
in view of its legal regulation, but when it is exercised as a result of appointment in
an insolvency case as a judicial administrator or liquidator, the insolvent
practitioner becomes a body applying the procedure insolvency, together with the
magistrate judge / magistrates, having the attributions expressly stipulated by the
law, which are accomplished by taking measures imposed by the law.
The legislator provided for a minimum cost to be part of the principle of the
effectiveness of insolvency proceedings. This requirement must be considered by
the court administrator / liquidator in terms of the costs of the proceedings and by
the syndic judge / court in terms of censuring procedural expenses.
According to art. 39, par. 1 and 4 of the Law no.85/2014, all expenses incurred
by the judicial administrator / liquidator shall be borne by the debtor's assets and,
in the absence of available funds, the liquidation fund shall be used33.
According to art.159 paragraph 1 and art.161 paragraph 1 of the Law
no.85/2014 on the distribution of the funds obtained from the sale of goods and
rights from the debtor's property, the expenses of the procedure shall be paid as a
priority, these being composed of taxes, stamps and any other expenses related to
the sale, including the expenses necessary for the preservation and management of
these goods, the expenses incurred by the creditor in the forced execution
procedure, the debts of the utility providers born after the opening of the
procedure, the remuneration of the judicial administrator / liquidator, the
remuneration of the specialists employed during the 2% of the sums recovered in
insolvency proceedings due to the National Union of Insolvency Practitioners,
31 Art. 73 and 75 of the Law no.303 / 2004 on the status of judges and prosecutors, published in
the Official Gazette Part I no.576 / 29 06 2004, contained in Title III "Rights and duties of judges and
prosecutors" regulates the judge's obligation to impartiality, in the conduct of the trial
32 Government Emergency Ordinance no.86 / 2006 on the organization of the activity of
insolvency practitioners, published in the Official Gazette, Part I no.944 / 22.11.2006, Statute
regarding the organization and the practice of the insolvency practitioner profession, republished in
the Official Gazette Part I no. 678/06 10 2010, Code of Conduct on Professional Ethics and Discipline,
republished in the Official Gazette Part I no.678 / 06 10 2010
33 The liquidation fund is a fund constituted by the application of 50% of the fees to be paid to
the trade registry for the authorization of the constitution of persons subject to registration,
modification of their acts, facts and claims and the making of all records in the trade register,
authorization, operation and release specific documents, verification and / or reservation,
transmission / receipt / issuance of documents and / or information provided by law, and 2% of
sums recovered in insolvency proceedings, including funds obtained from the sale of property from
the debtor's property
54 ANCA ROXANA ADAM
including the funds obtained from the sale of the assets from the debtor's assets,
which constitute the liquidation fund, etc.
Analyzing these legal provisions it is found that the unfolding of the
insolvency procedure with minimal costs leads to a more satisfactory achievement
of the purpose of the procedure, namely the highest coverage of the debtor's
liabilities. The lower the procedural expenses, the more funds will be distributed to
the creditors.
The importance of conducting the insolvency procedure at low costs also
subsists when there are no assets in the debtor's assets, because in this case the
procedural expenses are borne by the liquidation fund, which is made up of public
funds.