24.06.2025

The legal remedies available to the holder of the notification in the event of failure by the CNCI to finalise the file within the legal deadline

Thirty-five years after the fall of the communist regime in Romania, reparation for property wrongfully seized between 6 March 1945 and 22 December 1989 is still a topical issue, which continues to generate a significant number of disputes before the courts.

With this article, we aim to briefly present the remedies available to the entitled person (holder of the notification) in the event of failure by the National Commission for Real Estate Compensation (hereinafter "CNCI") to settle within the legal deadline a compensation file established under Law no. 10/2001 and Law no. 165/2013.

In what context was Law 165/2013 adopted?

Law no. 165/2013[1]was adopted following the recommendations made by the European Court of Human Rights through the Pilot Judgment adopted on 12 October 2010 in the case of Maria Atanasiu and others v. Romania[2]¸ with the intention to streamline and complete the process of granting the reparation measures due for the properties taken over abusively during the communist regime, a process started by previous laws and in various stages of settling the "applications" within the meaning of Article 3, paragraph 1 of the law, including the notifications made under Law no. 10/2001.

To this end, Art. 33 of Law no. 165/2013 established new deadlines for the settlement of claims filed under the reparation laws and not settled by the date of entry into force by the entities entrusted by the law, respectively:

a) 12 months, the entities authorised by law which had up to 2,500 applications still to be processed;

b) for 24 months, the entities authorised by law which had between 2,500 and 5,000 applications still to be processed;

c) for 36 months, the entities authorised by law which had more than 5,000 applications still to be resolved.

In addition, Article 34 of Law No 165/2013, provided for time limits for the settlement of cases by other entities entrusted by law with the task of returning abusively seized properties and establishing reparation measures. In this regard, the CNCI (established by Law no. 165/2013) was given a legal deadline of 60 months for the settlement of cases, with the exception of land fund cases, which were set at 36 months.

What remedies are available to the holder of the compensation file in the event that the file is not settled by the CNCI?

If the CNCI fails to settle the claim within the legal deadline, the person entitled has two remedies: (i) an action seeking an order by the court to the CNCI to settle the claim or (ii) an action requesting the court to settle the claim itself.

The distinct legal regime of the two types of legal actions, each of them with their associated benefits and risks, results from Decision No 45/2019[3], delivered by the High Court of Cassation and Justice - Panel for the Settlement of Legal Questions.

Action for an order that CNCI settle the case

The sole purpose of the action by which the person entitled seeks an order that the defendant CNCI settle the claim for damages is to compel the debtor, with the assistance of the court, to fulfil the obligation himself.

Since this is an obligation to do something which cannot be fulfilled by another person, after obtaining the enforceable title, the creditor will have at his disposal the procedure provided for in Article 906 of the Civil Procedure Code for the application of penalties and, where appropriate, for the award of damages, if the CNCI persists in failing to fulfil its obligation to settle the case.

After the decision is issued by the CNCI, the entitled person will have the right to a new litigation to challenge the merits of the decision, to the extent that he/she is dissatisfied with the decision, in accordance with Article 35 para. (1) of Law No 165/2013.

This first type of litigation may be initiated at any time during the period in which the file constituted under Law No 10/2001 is pending before the CNCI. As the ICCJ held in Decision no. 45/2019, as long as the file is still in progress and no cause has arisen to extinguish the obligation to settle it, the entitlement of the holder of the notification to claim enforcement of the obligation cannot be denied, in order to capitalise on his subjective right to the compensatory measures provided for by law.

Action for a substantive decision by the court

The action by which the entitled person asks the court to decide on the merits of the compensation file itself, expressly recognised by the provisions of Article 35 para. (3) of Law no. 165/2013, is in fact a legislative consecration of the solution adopted by Decision no. XX/2007[4]handed down in appeal in the interest of the law by the High Court of Cassation and Justice in application of Art. 26 para. (3) of Law no. 10/2001.

By the judgement in this dispute, the court rules on the existence and extent of the right of ownership of the holder of the notification. This particular type of legal action is the most vigorous in achieving the aim of awarding compensation for the damage caused by the wrongful seizure of the property. The taking and taking of evidence by means of an expert appraisal is customary in this type of case in order to determine the amount of compensation by reference to the criteria laid down in Law no. 165/2013.

For the submission of such a request for a writ of summons, according to Article 35 para. (2) of the Law no. 165/2013, the entitled person has, however, a 6-month limitation period, calculated from the expiry of the time limits for the settlement of the cases provided for in Articles 33 and 34 of the Law.

In so far as the person entitled is not diligent enough to fall within the 6-month limitation period applicable in his case, he may thereafter only bring before the court the first type of claim, seeking an order that the debtor CNCI perform the obligation to do so.

In practice, if the passivity of the CNCI is added to the passivity of the holder of the unresolved file, in the sense that the latter has missed the 6-month deadline for filing the application provided for in Article 35 para. (2) of Law no. 165/2013, the holder of the file will bear the risk of delay and late finalisation of the procedure for granting compensatory measures.

It will have to wait for the decision to be issued by the CNCI (with penalties and, where appropriate, damages) and will then have to initiate new litigation against the CNCI if it is dissatisfied with the merits of the case.

Conclusions

The provisions of Law no. 165/2013, as interpreted in a binding manner by the High Court of Cassation and Justice by Decision no. 45/2019, allow the initiation of several types of litigation against CNCI, with the aim of finalising the process of granting compensatory measures related to the abusively taken over properties.

In the first 6 months after the expiry of the time limits for the CNCI to deal with the case, the holder of the notification has the option between requesting the CNCI to order the CNCI to deal with the case or requesting the court to deal with the case itself on the merits. Preference should be given to the second type of action, which is the more vigorous and likely to lead to a quicker granting of compensatory measures.

Once the 6-month limitation period has expired, the court can no longer be asked to decide on the merits of the case itself. However, the holder of the notification is still open to litigation to compel the debtor CNCI to fulfil the obligation to perform, with the caveat that the procedure may take longer and that it may be necessary to initiate several rounds of litigation in order to achieve the ultimate aim of granting compensatory measures.

Given that the CNCI has had since its establishment and still has a considerable number of cases under Law no. 10/2001[5], for which the legal time limits for settlement may have expired or are about to expire, the provisions of Law no. 165/2013 which regulate the remedies available to the holders of notifications remain topical and are constantly applied by the courts in the numerous related disputes before them.

An article by Laura Mihalache (lmihalache@stoica-asociatii.ro), Senior Partner, STOICA & ASOCIATII.