How are you affected by the changes brought to the mediation law and what must you know about these changes when initiating a legal action?

On the 7th of May 2014 the Constitutional Court of Romania, through the Court Decision number 266/2014, has admitted the exception of unconstitutionality regarding the provisions of article 2 paragraphs 1 and 1 index 2, and by doing so, major changes to the mediation law – law 192/2006, have been made.

What is the effect of the Court Decision number 266/2014 and how are people that want to take legal action affected?
Firstly, we shall analyze the articles targeted by the Constitutional Court’s Decision and what are the effects of the changes on people that want to take legal action.

The provisions of article 2 paragraph 1 of the law 192/2006 stated that “before initiating a legal action regarding civil or family law, without limiting the field of application to these matters, the parties were compelled to attend a meeting regarding the benefits of mediation”. In order to have a complete interpretation, this article must be corroborated with the provisions of article 60 index 1 of the same law that extended the domain of application of the law.

According to article 60 index 1, the domains of application for article 2 paragraph 1 are as follow:
– Consumer protection;
– Family law, regarding:
• The continuation of marriage;
• The sharing of common goods;
• The exercise of parental rights;
• Establishing the child’s residence;
• Parental contributions to the child’s upkeep;
• Any other misunderstandings that can appear between spouses and can constitute the object of litigation;
– Neighborhood litigations;
– Professional liability and malpractice, if the law does not provide a different procedure;
– Civil litigations with values under 50.000 lei that do not regard insolvency or actions regarding the Trade Register.

Through the provisions of article 2 paragraph 1 index 2, the law stated that if parties that found themselves in any of the situations provided by article 60 index 1 did not participate at the meeting described in article 2 paragraph 1 before initiating a legal action, the Court would overrule the action as inadmissible.

When analyzing the exception of unconstitutionality brought up, the Court retained the fact that the regulations mentioned above are unconstitutional because they prohibited the free access to justice provided by article 21 of The Romanian Constitution.

Thereby, through this Decision, the Constitutional Court rules that mediation is an optional procedure, and the attendance to the meeting regarding the benefits of mediation is not mandatory.
Corroborating the provisions of article 60 index 1 with the fact that article 2 paragraphs 1 and 1 index 2 were declared unconstitutional, the only conclusion we can draw is that participation at the meeting regarding the benefits of mediation is no longer mandatory even in the cases provided in article 601.

How are these changes perceived in the context of European Law?
When attempting to analyze the changes brought to the mediation law by the Constitutional Court’s Decision in the context of European Law, we must not overlook the provisions of the European Parliament’s Directive number 52/2008 that considers mediation an optional procedure and not a mandatory one. So, the Court’s Decision is consistent with European Law.

When do the changes enter into force and whom do they regard?
According to the constitutional provisions of article 147 paragraph 1, unconstitutional provisions cease to produce judiciary effects 45 days after the Decision is published in the Official Monitor, if in this time period the issuing authority does not make the unconstitutional provisions consistent with the Romanian Constitution.

So, the changes brought to the law 192/2006 have entered into force on the 25th of June 2014. Pay attention! These provisions regard only the people that have initiated legal actions after the 25th of June 2014. For those who have initiated legal actions prior to this date, the changes do not apply because the decisions of the Constitutional Court can establish only for the future.

How can people wanting to address legal courts benefit from the changes brought to law 192/2006?
The benefits are obvious, the free access to justice of citizens trying to defend their rights have been improved by these changes.

Because of these changes, people will be able to initiate legal actions without having to attend the meeting regarding the benefits of mediation.


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