The adjournment for the execution of the General Assembly’s provisions is of utmost importance with respect to the judgments that apply immediately and that have as a main effect the company’s patrimony or which directly affect the activity of the company.
The procedure of the injunction is regulated by the provisions of Law no. 31/1990, referring to those of the Civil Procedure Code referring to the Judge’s Order, the differences between the two types of actions in court being emphasized in the present paper and the nature and characters of this form of ordinances as well as the regulation in the law of commercial companies make this variety one of the few forms of this kind that the legislator has agreed to regulate separately in a special law.
Keywords: adjournment, presiding judge’s order, company
- THE NATURE OF THE PROCEDURE
The decisions challenged with an action for annulment may be suspended through the procedure regulated by article 133 of the Law of Companies, the applicable procedure being that of the presiding Judge’s order. In view of these issues, it is imperative that the applicant proves that the conditions for admissibility for the judge’s order are met, namely the timeliness, the failure to judge the merits and the urgency. However some authors  and some courts of law  considers that the application for suspension must be admissible whenever proof of the action for annulment is made.
Interesting is the fact that the interwar case law considers that there is no need to prove the existence of an action for annulment pending the submission to the court of a request for suspension which is being resolved by way of a presidential decree.
2 CAPACITY TO PURSUE THE PROCEEDINGS
Given the nature of the request, that of presiding Judge’s order, the parties are the same as in the main application, the action for annulment. Currently, in which the passive quality of action in the nullity of the decisions of the general assembly is in accordance with the provisions of Law no. 31/1990, belongs to the commercial company is practically unambiguous as in the judge’s order the company through its representatives has the passive quality of proceedings. According to article 70 the company is represented by its administrators. The hypothesis that needs to be considered is about the situation when the decision is being challenged by all its administrators. The legislator by article 132 paragraph (6) provided that the company would be represented by the person appointed by the president of the court among its shareholders who will carry out the mandate with which was given until the general assembly convened for this purpose will choose another person. The solution required for the representation of the company, under the conditions of the common law, is made according to the provisions of article 58 par. (1) of the Civil Procedure Code, a legal text giving the court the possibility of appointing a special curator in the event of a conflict of interest between the represented and the representative. Article 132 provides for the same remedy for the action for annulment, but the text in question cannot be applied by analogy, being practically strict interpretation, being a special rule, according to the rule specilia generalibus non derogant.
The rules of appointment of the company’s representative follow the non-contentious procedure. Thus, a complainant who knows that he is in such a situation may request the President of the court or judge designated to receive the application to make such appointment right from the introduction of the request for a judge’s order.
Regarding the intervention on our own behalf, we appreciate that the judicial practice also considers that it is not permissible to intervene in the name of the creditors who have opened the way to the opposition. This appreciation is sound and verifiable only in relation to relative nullity, and not to the situation where absolute nullity is invoked.
- THE ISSUE OF BAIL
According to article133 paragraph (2): “the President, agreeing to the suspension may oblige the applicant to a bailment.” The wording of the legal text leaves it to the court to assess whether there is a need to bail out such requests.
Doctrinal assessments are in the sense that the submittal of the bail should be ordered whenever the judgment under appeal is not contrary to the law or articles of incorporation, that is to say, the illegality or breach of the articles of incorporation stems from the judgment itself, without the need for other evidence. The necessary elements to be taken into account in establishing the bail are primarily linked to the existence and extent of the damage suffered by the company by postponing the execution of the judgment under appeal until the application is declared void, since the intended purpose of the bail is to ensure, at least in part, the recovery of the damage.
The court will have to exercise caution in determining the amount of the bail in order to maintain a balance between the risk that a bail will become a way of unduly restricting the applicant’s access to the requested suspension and the risk that a very low bail will open the door to an abusive exercise of rights by the applicant.
Some exceptions of unconstitutionality have also been invoked in practice, but the Constitutional Court has pointed out that article 133 paragraph (1) and (2) allows the court to assess, in the light of the circumstances of the case, the eventual and baffling nature of the application for suspension of the decision of the disputed general assembly of the shareholders to establish a bail to deter unsubstantiated or abusive claims made with bad faith. The submittal of the bail is a guarantee in the sense that, following the dismissal of the action for annulment of the decisions taken by the general assembly of the shareholders, the interested party will be able to demand and obtain compensation for the damages suffered due to the delay in executing the respective decision.
The introduction of a new suspension request appears to be hampered by the wording of article 133 paragraph (1), which provides that ‘once the action for annulment is brought, the applicant may request the President of the Court to suspend the execution of the judgment under appeal’. Therefore, the law temporarily locates the moment when the application for suspension is filed, but this is excessive and there may be no interest in the suspension at the time of filing the action for annulment, and the acceptance will occur later with the first act of execution of the general assembly’s decision.
Another issue that arises is that of the authority of resolving the ruling on the first request for suspension formulated. The conflicting views of the practice have led to the emergence in the case-law of solutions for the cancellation of the petition for failure to make the bail, which leads to the admissibility of a new application for suspension. If the application is to be dismissed as inadmissible for failure to provide a bail, there is authority to act as it is in the matter of judge’ orders that the authority of the court of law is relative, being circumspect when the circumstances of the case do not change. If the factual situation changes, we consider that it may also include the possibility of the plaintiff to pay the bail, the court being able to appreciate and implicitly settle, without being hindered by the authority of the court.
- JURISDICTION AND SETTLEMENT PROCEDURE OF THE REQUEST
Under Article 998 of the Code of Civil Procedure, the court having jurisdiction to hear the judge’s order is the court with jurisdiction to rule in the first instance on the merits. In the present case, the jurisdiction on the merits of the action for the nullity of the decision of the general assembly rest with the court at the specialized section of the professionals in whose territorial jurisdiction the company has its headquarters whose decision of the general assembly is requested to be suspended.
Jurisdiction of the courts is exclusive, as the claims made by way of the judge’s order are not in general likely to be settled by arbitration, all the more so since the main claim is itself the exclusive competence of the court.
Regarding the procedure for solving the adjournment request, the literature considered that it is a contentious and not graceful.
To the extent that the procedural provisions derogating from Law no. 31/1990 does not order otherwise, the procedure for settlement is the one stipulated in article 997 of the Civil Procedure Code and the following.
Given the absence of an express text that deviates from the common law in the matter of the judge’s orders, the request for adjournment will be settled in a public hearing.
- 5. COURT JUDGMENT AND APPEAL
In the settlement of the judge’s order, the pronounced ruling will be included in a decision, the request being solved separately from the request for annulment. The case-law has found solutions to the fact that the request for adjournment may be dealt with in the same file as the nullity of the decision of the general meeting, without the need for a dissolution order, and the name of the judgment as “court decision” is not such as to attract its cassation. The solution pronounced by the Supreme Court cannot be maintained due to the current regulation of the provisions of Article 133.
As regards the appeal against the “adjournment order, an appeal may be lodged within 5 days of delivery”. By the phrase “adjournment order” is meant only the solution for the admission of the application for adjournment or the rejection of the request for adjournment. This has led in practice to the invocation in some instances of the plea of inadmissibility of the appeal against the presidential decree dismissing the application for enforcement adjournment of the decision of the general assembly of shareholders. In dealing with the exception courts have a non-unitary practice. Thus, the solution took into account the fact that Article 133 paragraph (3) of The Law on Commercial Companies derogates from the common law, according to which both the claimant and the defendant can appeal, irrespective of whether or not the Ordinance has been rejected. Accordingly, since the special law expressly provides that an appeal may be brought only against the decision ordering the adjournment of enforcement of the decision of the general assembly of shareholders, it is no longer possible whether that appeal is lodged in the event of rejection of such an application. Other courts have decided otherwise, in the sense that the order dismissing the request for the adjournment of execution of the decision of the general assembly of the shareholders can be also be appealed.
The General Prosecutor’s Office, as a result of the non-unitary practice, filed an appeal in the interest of the law, concluding that it was admissible in order to establish that the appeal against the presidential decree dismissing the application for adjournment of the execution of the provisions of a decision of the general assembly of shareholders is inadmissible. By Decision no. LXII (62) of 24 September 2007 the referral in the interests of the law has been admitted and have established that the provisions of Article 133 paragraph (3) of the Law no. 31/1990 is interpreted meaning that the presiding judge’s order by which the application for suspension of the adjournment of the provisions of a decision of the general assembly of shareholders was rejected may be appealed. The reasoning of the Supreme Court states that the provisions of Article 133 paragraph (3) cannot lead to the restriction of the right of the dissatisfied party to challenge the decision only when the application is accepted. This restrictive statement on the possibility of appeal against the decision to suspend the execution cannot be considered as limiting as long as it would invalidate the principle of the appeal procedure symmetry, specific to our procedural law. Restrict the right of the unsatisfied party to the possibility of exercising the remedy of the appeal only against the decision to suspend the execution would mean to proceed to the implicit violation of the provisions of Articles 21 and 129 of the Constitution regarding free access to justice and the use of appeals. Moreover, an extensive interpretation of the provisions of Article 133 paragraph (3) of the Law no. 31/1990, republished, as subsequently amended, is imposed especially by the necessity of equal treatment of the parties in the process, with regard to the rules of common law in the matter of the judge’s order, respectively those contained in articles 998-999 of the Code of Civil Procedure, allow all parties to the dispute to challenge the order given at first instance by way of appeal, irrespective of whether the action is admissible or dismissed .
The fundamental difference between the term referred to in Article 133 (3) and the term of the classical presiding Judge’s order is given by its statute of limitation, since in the case of the classical judge’s order, lapses from the pronouncement, if the request was settled with summoning the parties, and from the communication, if it was settled without the summoning of the parties, for the judge’s order suspending the execution of the decision of the general assembly of the shareholders the term of appeal of 5 days always lapses from the delivery.
The Supreme Court has held  that the term for challenging the judgment given in the settlement of the application for adjournment would be different depending on the court’s decision, namely, if the court rejects the request for adjournment, the time limit will be 5 days, since Article 133 paragraph (3) expressly provides: “the order of adjournment”, and if the court rejects the request for adjournment, the term will be the common law, which is 15 days. At present, the terms are not different, the term being the common law of 5 days, but as to the moment from which this term lapses, the expression of the Law no. 31/1990, which refers only to the “adjournment order”, not to the order by which the request for suspension was rejected, it leaves room for interpretation.
It should be noted that in court practice it is considered that it is not permissible to make a request for review against the judgment given in the appeal because this appeal is not admissible against the decisions rendered in the settlement of the judge’s orders. However, it will be possible to file an appeal for annulment.
The action for the adjournment of the effects of the General Assembly’s decision is practically a special form of judge’s order.
The specific features of this procedure are complemented by the common law where the procedure allows it because this form of the judge’s order contains the elements provided for in Article 133 and can practically be merely a suspension order which, by touching the merits of the case, allows the court to deliver a temporary solution with limited effects in time in the case of admission, i.e. until a solution has been given in the cancellation request.
Judicial Practice Collection in Commercial Matters 2000-2001, p.224-225.
- Scheaua, Law of the Companies no. 31/1990, commented and annotated, Publishing house All Beck, Bucharest, 2000.
Bucharest Court of Appeal, Division VI commercial, Decision no. 246R/19.07.2006, delivered in case no. 16821/3/2006 (not published).
Court of Cassation, Division III, Decision no. 612/1932 and no. 277/1926, Judicial practice in commercial matters, vol. II, Publishing house Lumina, Bucharest, 1991.
R.R.D.A no. 5-6/2004.
Demetrescu, I. L. Georgescu, Carol al- II- lea Commercial Code. The text of the law. Legislative Council report. References to existing legislation. Comment, Publishing house Cartea Românească, Bucharest, 1938.
R.D.C no. 1/1997
R.D.C no. 9/2002
 Bucharest Court of Appeal, commercial division, Decision no. 365/2000, Judicial Practice Collection in Commercial Matters 2000-2001, p.224-225. In that decision, the court held that the only necessary and sufficient condition for the admission of the application for suspension is the existence of an action for annulment, and it is not necessary to prove the conditions provided by article581 of the Civil Procedure Code.
 M. Scheaua, The Law of Companies no.31/1990, commented and annotated, Publishing House All Beck, Bucharest, 2000,p. 297-298./
, Bucharest Court of Appeal, division VI-a commercial, Decision no. 246R/19.07.2006, delivered in case no. 16821/3/2006 (not published).
 Court of Cassation, Division III, Decision no. 612/1932 and no. 277/1926, Judicial practice in commercial matters, vol. II, Ed. Lumina, Bucharest, 1991, p.111-113.
 C.A Bucharest, s.a-V-a com, Decision no. 899 of 22 May 2003, R.R.D.A no.5-6/2004, p.105-107.
 M. Scheaua, quoted work, p. 298.
 Demetrescu, I. L. Georgescu, Carol al- II- lea Commercial Code. The text of the law. Legislative Council report. References to existing legislation. Comment, Publishing house Cartea Românească, Bucharest, 1938, p.169.
 C. Leaua, Commercial companies. Special Procedures, Edition 2, Publishing house C. H. Beck, Bucharest 2009, p.197-198.
 Constitutional Court Decision no. 209 of 14 April 2005 regarding the exception of unconstitutionality of the provisions of article 133 paragraph (1) and (2) of Law no. 31/1990 regarding the companies- M.O. no. 528 of 22 June 2005.
 C.A. Bucharest, Division VI-a com, Judgment no. 165 of 30 July 2006, R.R.D.A nr.6/2007, p.77-83.
 I. L. Georgescu, quoted works, vol. II, p.460-461. For the contrary, see Court of Cassation, decision of 10.07.1993, quoted by I. L. Georgescu, quoted work, p 459-460.
 See SUPREME COURT OF JUSTICE, commercial division, decision o. 128/1996, R.D.C no. 1/1997.
 High Court of Cassation and Justice, Unified Divisions, Decision no. 62 din 24 September 2007, delivered in case no. 29/2007, Official Gazette no. 276 din 8 April 2008.
 n.a V.c.p.c
 article 582 paragraph (1) (n.a.V.c.p.c
 SUPREME COURT OF JUSTICE., decision no. 679 of 5 February 2002, R.D.C no. 9/2002, p.185
 Bucharest Court of Appeal, Division V commercial, Decision no. 63 of 15 January 2007, delivered in case no. 8410/2/2006 (not published).
 I. Les, Principles and institutions of Romanian procedural law, vol. I, II and III, Lumina Lex, Bucharest, 1998 and 1999, p.91-92.