Enforcement proceedings are the procedural phase in which the creditor, on the basis of an enforceable title, requests the intervention of the bailiff to recover his claim. In practice, this stage can have immediate and serious effects on the debtor’s assets through bank account garnishment, deductions from wages or the sale of real estate. In situations where enforcement is illegal or debatable in terms of merits, the law provides the debtor with an essential instrument of protection: suspension of enforcement proceedings.
This remedy is governed mainly by Articles 718 and 719 of the Code of Civil Procedure and is provisional in nature. A stay does not annul enforcement or erase the debt. It temporarily halts further enforcement measures pending determination of the challenge or another application concerning enforcement.
What is the suspension of enforcement proceedings?
The suspension of enforcement is the measure by which the enforcement court orders the temporary cessation of enforcement pending the resolution of the dispute concerning its legality. The main legal basis is Article 718 Civil procedure code, which allows the court to intervene where there is a challenge to enforcement or another enforcement claim.
The provisional nature of the measure must be stressed. The suspension shall not result in retroactive effects on acts already carried out, but shall block the continuation of the procedure for the future by preventing consequences which are difficult or impossible to repair, such as the sale of a building at public auction.
Is security mandatory?
The rule is that the suspension of enforcement shall be ordered only after a security has been lodged, in accordance with Article 719 Civil Procedure Code. Security protects the creditor against misuse of applications for a stay and provides a guarantee against loss caused by delayed enforcement.
In the case of money-valued claims, the law lays down, as a rule, an amount of 10% of the value of the object of the claim. If the object is not evaluable in cash, the court shall fix an amount which is assessed in practice. The security shall be lodged with the bank unit or CEC in the name of the court and may be returned if, within 30 days of the final settlement of the case, the creditor does not seek compensation.
However, there are also situations expressly provided for by the law in which suspension may operate without the obligation to pay a security, which we will discuss further.
What happens during the suspension? (Art. 701 CPC)
The effects of the suspension shall be clarified by Article 701 Civil procedure code. During the period of suspension, the acts of enforcement previously carried out remain in existence and the freezing measures ordered by the bailiff or court continue to exist, unless otherwise provided by the court.
One important aspect is that the enforcement measures carried out on the very day of the settlement of the application for suspension are abolished by law by the effect of the acceptance of the application. After termination of the suspension, the bailiff may resume the proceedings at the request of the creditor, if the enforcement has not since been annulled or terminated by a court order.
Therefore, the suspension takes effect for the future and is intended to preserve the legal situation until the legality of enforcement is clarified.
High Court Decision No. 11 of 16.04.2018: effects of a stay on bank account garnishment
A key clarification came with Decision No. 11 of 16.04.2018, issued by the High Court of Cassation and Justice in an appeal in the interests of the law.
The practical issue concerned Article 784(1), second sentence, of the Code of Civil Procedure: after enforcement by garnishment is stayed, must the bank also freeze future credits to the debtor’s account?
The High Court held that a stay of bank account garnishment removes the garnishee’s obligation to freeze sums received after the stay. In other words, the amounts in the account at the time of suspension remain frozen, but future receipts cannot be blocked.
The decision is binding on all courts pursuant to Article 517 (4) of the Civil Procedure Code and has put an end to a non-uniform practice which seriously affected the situation of debtors, whose accounts remained fully blocked even after the suspension was obtained.
Duration of a stay — High Court Decision No. 2 of 08.02.2021
By Decision No 2 / 08.02.2021, also given by the High Court of Cassation and Justice on appeal in the interest of the law, the interpretation of the deadline "pending the resolution of the challenge to enforcement 'in Article 719 (1) of the Civil Procedure Code was clarified.
The Supreme Court has established that the suspension of enforcement proceedings is limited in time until the appeal is resolved at first instance. This means that if the judgment is appealed, the suspension shall not be automatically extended and a new application must be made.
This decision strengthened the temporary and strictly determined nature of the suspension.
Mandatory stay and High Court Decision No. 81 of 06.12.2021
By Decision No 81 / 06.12.2021, the High Court of Cassation and Justice established that the effects of the compulsory suspension provided for in Article 719 (4) (1) of the Code of Civil Procedure shall take place until such time as the appeal is resolved at first instance and such an application cannot be repeated in the appeal.
The judgment strengthens the idea that suspension is a procedural instrument limited in time and strictly conditional on the procedural phase.
Cases of legal suspension
There are situations in which the suspension of enforcement operates automatically without the intervention of the court. An example is an administrative-offence appeal which, under Article 32(3) of Government Ordinance No. 2/2001, stays enforcement of the fine pending determination of the case.
In personal insolvency, Law No. 151/2015 provides for provisional suspension of enforcement against the debtor’s assets from the date the application is admitted in principle. Also, in tax matters, Articles 203 and 235 of the Fiscal Procedure Code regulate situations in which enforcement is suspended as a result of staggered payment or lodging a guarantee letter.
Those assumptions demonstrate that the legislator recognised the need to protect the debtor in certain objective situations, without making the suspension conditional on the judgment of the court.
Conclusions
The suspension of enforcement proceedings is one of the most important procedural protection mechanisms for the debtor. Under Articles 718 to 719 Civil Procedure Code and clarified by Decisions No 11 / 2018, No 2 / 2021 and No 81 / 2021 of the High Court of Cassation and Justice, this institution shall ensure the balance between the creditor's right to enforcement and the debtor's right to a fair trial.
The enforcement proceedings can result in irreparable consequences if it is illegal. Even a temporary stay may prevent the loss of real estate, complete freezing of funds or serious harm to the debtor’s finances until the legality of enforcement is clarified.
Are you facing enforcement? Don't wait till it's too late
The suspension of enforcement proceedings is an effective legal instrument, but it is highly technical and strictly procedural. A superficial application without a sound legal basis or a proper assessment of its prospects may be rejected, allowing enforcement to continue with serious consequences for your assets.
In practice, the deadline for the appeal is short and the analysis must be made immediately after receipt of the first act of enforcement. Garnishment of accounts, sale of property or attachment of wages can only be stopped if you act promptly and strategically.
If you are in such a situation, it is essential to benefit from a professional legal analysis of the enforcement file. A fair assessment may differentiate between the loss of the goods and the complete cancellation of the enforcement.
Book a legal consultation to find out whether enforcement can be stayed or even annulled.
Send the enforcement documents for a preliminary analysis.
The suspension of enforcement proceedings is closely linked to the challenge to enforcement, which is usually the procedural framework in which the suspension is requested.
For a full analysis of:
• the reasons for the cancellation of the enforcement,
• the legal deadlines,
• the limitation period for the right to seek enforcement,
• the nullity of enforcement acts,
read the detailed article here:
Challenging enforcement — specialist legal assistance
Why choose STAN Alexandru-Ion Law Office?
The challenge to enforcement is one of the most complex procedures in civil law. STAN Alexandru-Ion Law Office offers personalised legal advice, a full assessment of the enforcement file, strategies for obtaining a stay or annulment, professional drafting of the challenge and representation before Romanian courts.
STAN Alexandru-Ion Law Office — legal assistance with challenges to enforcement
This article is part of a legal blog with the purpose of informing the public, the information displayed is the effect of expressing its own opinion.
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