Law no. 196/2020 brings substantial changes to Law no. 297/2018 on the National Register of Movable Publicity (hereinafter referred to as “Law no. 297/2018”), which refers, among others, to the organization and responsibilities of the Supervisory Authority of the National Register of Movable Publicity (hereinafter referred to as “NRMP”), to the attributions, organization and conflict of interests among the operators authorized to make registrations in NRMP, updating the taxes collected by the state from the mobile publicity activity. The new law also contains certain provisions related to the role of the NRMP regarding enforceable titles.
The list of private signature documents having the value of enforceable titles includes:
- the lease agreement concluded in writing under private signature and registered with the tax authorities;
- the share-farming agreement concluded in writing under private signature and registered with the city council;
- the bailment agreement concluded in writing under a private signature with a certain date;
- the loan agreement concluded in writing under a private signature with a certain date;
- the movable mortgage agreement concluded by a document under private signature registered in the Electronic Archive of Real Movable Guarantees;
- promissory note, bill of exchange and check;
- credit and personal guarantee agreement;
- the leasing agreement;
- deposit agreement;
- the legal counseling agreement concluded in writing.
Starting with the date of entry into force of Law 196 of 2020, all documents under private signature that are not concluded before the notary public, but by law are enforceable will have to be registered in the NRMP in order to be enforced.
NRMP constitutes a public register through which the record of the creditors’ priority in case of foreclosure is kept and the publicity of those legal acts and operations for which the law provides for the necessary fulfillment of these formalities.
Registration in the NRMP must be made even if the law governing that document does not expressly provide that publicity formalities must be completed for that document.
In 2017, art. 641 of Law no. 134/2010 on the Code of Civil Procedure has been amended in the sense that documents under private signature can no longer be enforceable titles unless they are registered in public registers, in the cases and under the conditions provided by law. At that time, this amendment was the subject of doctrinal and jurisprudential controversy, concluding that this provision refers to documents representing enforceable titles for which the regulatory law expressly provides for the need to be entered in a public register.
Subsequently, this interpretation also received a legislative confirmation by the entry into force of Law no. 297/2018 in the initial version, which provided in art. 4 para. (3) the fact that the enforceable titles for which the law requires the completion of publicity formalities meet this condition by registration in the NRMP. The clarification brought by Law no. 297/2018 concerns the fact that the provisions regarding the publicity of the executory titles refer only to those acts for which the regulatory law expressly requires the registration, NRMP being only the public register adequate for such a form of publicity.
At the beginning of 2020, the Romanian Parliament adopted a bill of law that would amend the text of art. 4 para. (3) of Law no. 297/2018 in a form that also had the ability to provoke numerous discussions in practice: “The mortgage agrreement and the documents under private signature for which the law requires the completion of publicity formalities are enforceable titles under the condition of registration in the Register.”
This bill of law was subject to constitutional review, the Constitutional Court concluding by Decision no. 238/2020 that the wording proposed to the text does not comply with the rigors of constitutionality, respectively “is inaccurate and induces an obvious legal insecurity precisely through the contradictions it arises with the regulations of the civil code and the civil procedure code.” The Court noted that the new legislative wording attributes the character of an enforceable title to any document under private signature, which is in disagreement with the legal order and constitutional principles.
Following the decision of the Constitutional Court, the Parliament amended the content of art. 4 para. (3) reaching its current form, which entered into force on 11 September 2020, which stipulates that “privately signed documents which, according to the law, are validly concluded and have an enforceable character, may be enforced only under the condition of registration in the Register“.
This amendment does not seem to take into account the argument of the Constitutional Court used in the above-mentioned decision according to which “the criticized law links the enforceability of the movable mortgage agreement to its publicity, when in fact, the enforceability derives from the binding force of the agreement, and not from its publicity. If it had been desired that only the valid mortgage agreement concluded and regarding which the publicity formalities were carried out […] represent an enforceable title, this would have been expressly established in art. 2431 of the Civil Code. ”
Thus, although this criticism of unconstitutionality refers to mortgage agreement, it must be extended by analogy to all enforceable titles regulated by special laws, for which enforceability is not linked to the fulfillment of any condition of enforceability. In support of this interpretation, the Constitutional Court also mentions that “enforceability can only be conferred by the special law establishing the regime of a certain type of document under private signature.” Thus, a general law, as is the case of Law no. 297/2018, should not be able to regulate the executoriality of the documents that are object of other special laws.
One of the aspects to be followed in practice is related to the possible application in time of this article and whether it will be considered applicable to the legal documents in force on 11 September 2020 or whether it will also apply to enforceable titles currently in the course of foreclosure proceedings. In addition, taking into account the discrepancies between the provisions of Law no. 297/2018 and of art. 641 of the Code of Civil Procedure, it will be important to follow which text of law the courts will choose to aply in foreclosure cases.
From a practical perspective, it is very important how these publicity formalities can be carried out in NRMP, given that at this time the notices concern either the publicity of movable mortgages or the publicity of certain specific legal aspects, leaving no room for registration of any other having the character of an enforceable title. In the absence of an implementing regulation, the minimum content of such a registration is not known for it to be considered sufficient for the purpose of the provisions of art. 4 para. (3) of Law no. 297/2018.
However, until the intention of the legislator is clarified, the registration in the NRMP will be able to be considered in the context of the foreclosure by those interested and will be able to be realized at any time until the opening of the foreclosure case.