R O M Â N I A

BUCHAREST COURT OF APPEAL

CIVIL DIVISION V

Case no. 13042/3/2019

File No. Court of Appeal Bucharest 249/2020

CIVIL DECISION NO. 394

Public sitting of 21 May 2020

Court composed of:

President

Judge

Clerk

The appeal lodged by the appellant-debtor .... against the civil judgment no. 5208/01.10.2019, pronounced by the Bucharest Tribunal, Seventh Civil Section, in case no. 13042/3/2019, concerning insolvency proceedings, is pending.

The appellant-debtor ........, represented by a lawyer with collective power of attorney, replied to the rollcall made at the public hearing on page 6 of the file.

The case was reported by the clerk of the hearing, who stated that the procedure for summoning the appellant-debtor had been legally fulfilled, and that he had submitted proof of payment of the judicial stamp duty of 100 lei, after which,

The appellant-debtor ........, through a lawyer, submits an extract of the insolvency law applicable in Switzerland showing that that de facto reciprocity has been accepted.

The Court gives the party the floor on the request in evidence.

The Appellant-Debtor ..........., through its lawyer, requests approval of the evidence with the documents submitted to the file.

The Court grants leave to adduce the evidence based on the documents on file, considering it to be lawful, conclusive, and relevant to the resolution of the case, based on Article 255 and Article 258 of Procedural Civil Code.

The Court finds that the appeal is in order and grants the appellant the floor in support of the grounds of appeal.

The appellant-debtor .............., through its lawyer, requests that the appeal be admitted, that the judgment appealed be modified in its entirety and, consequently, the recognition in Romania of the foreign insolvency procedure opened regarding .... ...in Switzerland, by the Decision of 04/30/2018. The appellant states that the facto reciprocity emerges from the answer formulated by the Ministry of Justice in the sense that the Swiss law is identical to the Romanian law, requesting at the same time to consider the reasons for which it formulated this request.

The Court declares the proceedings closed and remits the appeal for further consideration.

THE COURT

In deciding the present appeal, holds that:

By civil judgment no. 5208/01.10.2019, pronounced by the Bucharest Tribunal, Seventh Civil Section, in case no. 13042/3/2019, the application for recognition of foreign insolvency proceedings, filed by the debtor ........., was rejected.

To pronounce this judgment, the court of first instance held the following:

With reference to the provisions of Article 287 of Law No. 85/2014, the court found that the applicant had proved by the documents on file that an insolvency proceeding is opened against ......... in Switzerland by the decision of 30.04.2018 issued by the Civil Court of Sarine, Fribourg, Switzerland, in case No. 10 2018 791 (file page 13), and that Mr. .......... has been appointed as special administrator of the debtor.

Also, according to the extract issued by the Commercial Register of Fribourg, Switzerland, the applicant ......... is currently insolvent.

In order to verify the fulfilment of the reciprocity condition regarding the effects of foreign judgments between Romania and Switzerland, the court ordered a letter to the Ministry of Justice - Directorate of International Law and Judicial Cooperation, which, in its reply address ........, informed the court that there is no applicable bi-multilateral treaty framework between Romania and Switzerland regarding the recognition of the effects of judgments rendered in insolvency matters.

In view of the absence of a legal regulatory framework between the two States, the court held that the express condition of reciprocity as laid down in Article as provided by art. 289 para. 1 lit. (e) from Law no. 85/2014 was not fulfilled, and therefore rejected the request for recognition of foreign insolvency proceedings filed by the debtor ...., through its special administrator, as unfounded.

Against this judgment, the debtor .... filed the appeal, requesting the admission of the appeal, the complete modification of the appealed sentence and, consequently, the recognition in Romania of the foreign insolvency procedure opened with regard to DPH in Switzerland, by the Decision of 04.30.2018.

In support of the appeal, it was submitted that the trial court did not put forward any arguments and did not explain how it reached the conclusion that in the case the existence of a de facto reciprocity must be proven.

The court considered that the absence of a legal regulatory framework between the two countries leads to the failure to meet the condition of reciprocity provided for in Article 289(1)(e) of Law No 85/2014.

In the light of the reply given by the Ministry of Justice, the appellant considers that there is a de facto reciprocity between the provisions on insolvency between the two States. The provisions applicable in the case do not establish that reciprocity in the case of recognition must be de jure, it may also be de facto.

It has been pointed out that there is de facto reciprocity between the insolvency provisions of the two States in the case in question, given that Articles 166-174 of the Swiss Federal Code of Private International Law govern the recognition in Switzerland of any foreign judgments handed down in insolvency matters under conditions similar to those laid down in Law No 85/2014.

Examining the judgment under appeal in the light of the documents in the casefile and the pleas in law relied on, the Court finds that the appeal is unfounded, for the following reasons:

The Court notes that the first instance delivered a lawful and well-grounded judgment.

Thus, like the first instance, the Court holds the applicability in the present case of the provisions of Article 287 of Law no. 85/2014, according to which the foreign representative has standing to bring before the competent Romanian court an application for recognition of the foreign proceedings in which he was appointed. The court thus seized shall examine ex officio whether it has jurisdiction, according to the provisions of Art. 276(2)

The application for recognition shall be accompanied by one of the following documents:

(a) a certified copy of the judgment opening the foreign proceedings and appointing the foreign representative.

 b) a certificate issued by the foreign court certifying the existence of foreign proceedings and the appointment of the foreign representative.

c) in the absence of the means of proof referred to in points a) and b), any other proof of the opening of foreign proceedings and of the appointment of the foreign representative, admissible under the conditions provided for by Government Ordinance No 66/1999 for Romania's accession to the Convention on the Abolition of the Requirement of Superscription for Foreign Official Documents, adopted at The Hague on 5 October 1961, approved by Law No 52/2000, as subsequently amended, or by other treaties, conventions or any other form of international, bi- or multilateral agreement to which Romania is a party.

Also, according to Article 289(1) of Law no.85/2014, Subject to the provisions of Article 278, foreign proceedings shall be recognized to the extent that they cumulatively meet the following conditions:

(a) the foreign procedure is the procedure referred to in Article 5(49).

(b) the foreign representative seeking recognition is the person or authority referred to in Article 5(56).

(c) the request for recognition fulfils the conditions laid down in Article 287 para. (2).

(d) the request for recognition has been lodged with the competent court referred to in Article 276 para (2).

e) there is reciprocity in the effects of foreign judgments between Romania and the State of the court which delivered the judgment.

An analysis of these legal texts shows that all the conditions must be met for recognition of foreign proceedings to be ordered.

These procedures include reciprocity regarding the effects of foreign judgments between Romania and the State of the court which delivered the judgment.

About this condition, the appellant argued that the facto reciprocity, not reciprocity in law, would be sufficient.

The Court notes that reciprocity is of two kinds, namely de jure and de facto.

The Romanian legislator has not specifically established whether reciprocity is de facto or de jure, so that de facto reciprocity is not excluded.

The Court also notes that the first instance did not examine the possibility of the existence of de facto reciprocity, but this aspect will be examined by the Court of Appeal, so that any harm which might have been caused to the appellant is removed.

The Court notes that the appellant was under an obligation under Article 249(1) CPC to prove de facto reciprocity but failed to do so.

Thus, de facto reciprocity results from the existence of cases in which each State has complied with requests from the other State. In the present case, the appellant only claimed that there is such de facto reciprocity, but no judgment of the Swiss courts was filed regarding the recognition of insolvency proceedings opened by a Romanian court, which could have been obtained through diplomatic missions.

Regarding the address issued by the Ministry of Justice (f.86 of the case file), the Court noted that this document does not show a de facto reciprocity, and the appellant itself states in its appeal that this address neither confirms nor denies the existence of reciprocity between the two States, Romania, and Switzerland.

Accordingly, the Court, pursuant to Article 480 CCP, will dismiss the appeal as unfounded.

FOR THESE REASONS

IN THE NAME OF THE LAW

DECIDE:

Dismisses the appeal filed by the appellant-debtor......, against the civil judgment no. 5208/01.10.2019, pronounced by the Bucharest Tribunal, Seventh Civil Section, in case no. 13042/3/2019, as unfounded.

Definitive.           

Pronounced in public sitting today, 21.05.2020.

PRESIDENT                                                     JUDGE                                            CLERK