Tribunalul Ialomita; 2019-09-13; 949/98/2019
Decision by national courts in the field of European Union law — ECLI:RO:TBILM:2019:004.001018
Date: 2019-09-13
Subject matter: Judicial cooperation in civil matters
Origin: Romania

82019RO0913(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards an action for provisional and protective measures brought before the Tribunalul Ialomiţa (hereinafter ‘Court of First Instance’)
A surviving wife and universal legatee (hereinafter ‘the plaintiff’) of the deceased holder of 50 % of the shares of a Romanian company contested the sale of these shares to a third person. The company management had already approved the sales contract of the company. The plaintiff requested that the decision approving the sales contract to be deemed null and void and return the shares to the estate of the deceased.
The nullity of the sales contract was also the object of proceedings commenced in Spain. In the present case brought before the Court of First Instance, the plaintiff sought an interim injunction to freeze the sale of the shares to restrain the company from disposing of the shares. The plaintiff relied on Article 35 of the Brussels I Regulation (recast) (1) according to which ‘application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.’
The Court of First Instance cited Article 973 of the C.pr.civ. (2), which lays down the conditions for creating a judicial attachment of property. Two conditions must be met to satisfy such application – (a) legal action against the property right must exist, and (b) the provisional measure must be necessary for the preservation of the right. The court confirmed the first condition to be fulfilled because the plaintiff brought the case against the transfer of ownership in Spain and Romania. However, the court believed that the plaintiff had not sufficiently proved the second condition’s fulfilment. The mere fact that there is a case challenging the transfer of the ownership of the shares is not sufficient to demonstrate the existence of a substantial risk of alienation. The company continues its long-term business development (moreover, it was a receiver of investments from European funds). No evidence had been found of any suspicious conduct.
Since the plaintiff’s action did not meet the statutory conditions, the Court of First Instance rejected it as unfounded.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Codul de Procedură Civilă (Code of Civil Procedure).