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Universul Juridic magazin

Effects of the Decision of the Constitutional Court no. 895/2015 with respect to the appeals against enforcement regarding prior enforcement proceedings. The obligation of the considerations of the decision for the courts

The courts are not held responsible by the considerations of the Decision no. 895/2015 regarding its effects, since the way in which the decision acknowledging unconstitutionality shall be applied, in terms of the effects produced by the legal text into question, does not depend on the explanation of the operative part of that decision, and is not a prerogative of the Constitutional Court. The judge shall carry out its own analysis related to these effects, considering that the decision is not applicable to the appeals against enforcement filed prior to its publication and that the annulment of the enforcement proceeding shall not be justified or, otherwise, he may appropriate the opinion of the Constitutional Court out of the considerations of the decision. In this last assumption, it is necessary to fulfil several conditions: the appeal against enforcement should be filed within the deadline provided by law; it should be admissible in relation to the provisions of art. 713 para. (3) of the Code of civil procedure; its object should consist as well, in the annulment of the writ of execution; the legal basis of the request for annulment shall consist in the unconstitutional nature of the provisions of art. 666 of the Code of civil procedure; the plea of unconstitutionality should have been declared as admissible under a resolution delivered by the court having jurisdiction to settle the appeal against enforcement.