Aplicarea principiului neretroactivității legii în practica jurisdicțională a Înaltei Curți de Casație și Justiție – Studiu critic al Deciziei nr. 52/2018 a Înaltei Curți de Casație și Justiție – Completul pentru dezlegarea unor chestiuni de drept
Application of the principle of non-retroactivity of the law in the jurisdictional practice of the High Court of Cassation and Justice – Critical study of the Decision No 52/2018 of the High Court of Cassation and Justice – Panel for solving some mat

Summary/Abstract: By the Decision No 369 of 30 May 2017, the Constitutional Court has declared as unconstitutional the phrase „as well as in other cash assessable claims worth up to ROL 1 000 000 inclusive”, included in Article XVIII (2) of the Law No 2/2013 on some measures to relieve the courts, as well as for preparing the implementation of the Law No 134/2010 on the Civil Procedure Code and has stated that „all judgments pronounced after the publication of this Decision in the Official Gazette of Romania, in the applications that are assessable in cash, less those exempted according to the criterion of matter, shall be subject to review”. Subsequently, the High Court of Cassation and Justice, by the Decision No 52/2018, has established that „the effects of the Decision of the Constitutional Court No 369 of 30 May 2017 are produced in respect of the judgments pronounced after its publication in the Official Gazette of Romania, in the litigations assessable in cash up to ROL 1 000 000 inclusive, initiated after the publication of the decision (20 July 2017)”. In the grounds of the decision, the High Court has appreciated that the application of the Decision of the Constitutional Court also to the ongoing trials would constitute an unlawful violation of the principle of non-retroactivity of the law, enshrined at constitutional level. The present study aims first to present the main theories addressing the matter of conflict of laws over time, with emphasis on the comparative analysis of the theory of the immediate application of the new law and of the normativist theory, and, afterwards, to present the conception about retroactivity adopted by the Romanian legislator and by the Constitutional Court. Then the study discusses the conception about retroactivity retained by the High Court of Cassation and Justice, and in the final part there are presented the arguments that, in the opinion of the authors, lead to a potential unconstitutionality of the interpretation given by Article 27 of the Civil Procedure Code by the Supreme Court. Thus, the authors conclude that the application of the Decision No 369 of 30 May 2017 on the judgments pronounced after the date of publication of this decision, so in previously initiated trials inclusive, does not violate the principle of non-retroactivity of the civil law, and the interpretation given by the High Court is likely to contravene Article 147 (1) and (4) of the Constitution, because it denies the immediate effect of the suspension and the one postponed by 45 days of cessation of the effects of the text declared unconstitutional, as well as to create an artificial distinction and an unjustified difference of treatment between the litigants depending on the moment of beginning of the trial, thus violating Article 16 (1) of the Romanian Constitution.

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