Romanian Decision no. 52/2023 on the examination of the notification formulated by the Pitesti Court of Appeal – Civil Section I, in File no. 5,465 / 288/2017 **, in order to pronounce a preliminary ruling
The Pitesti Court of Appeal ordered, the notification of the High Court of Cassation and Justice, pursuant to art. 519 of the Code of Civil Procedure, in order to pronounce a preliminary decision on the issue of law regarding the interpretation of the provisions of art. 488 para. (1) point 2 of the Code of Civil Procedure, by reference to those of art. 19 and 214 of the Code of Civil Procedure, respectively if within this ground of appeal can be analyzed in concrete terms/effectively the criticisms regarding the legality of the measure to change the composition of the panel on appeal ordered by a decision of the management college of the court or it can be analyzed exclusively by way of administrative litigation, by an action brought by the parties.
According to the provisions of art. 4 para. (1) of the Romanian Law no. 554/2004, “The legality of an individual administrative act, regardless of the date of its issuance, may be investigated at any time in a process, by way of exception, ex officio or at the request of the interested party”. Correlative, art. 8 of the same law provides, in par. (1), that “The aggrieved party in a right recognized by the law or in a legitimate interest by a unilateral administrative act, dissatisfied with the response received to the preliminary complaint or who did not receive any response within the term provided in art. 2 para. (1) letter h), may refer the matter to the competent administrative court, to request the annulment in whole or in part of the act, the repair of the damage caused and, possibly, repairs for non-pecuniary damage (…)”.
It can therefore be concluded that, in view of their legal particularities and the public interest which is normally associated with them, the legislator considered it appropriate to create a distinct and special regime for verifying the legality of administrative acts, evading the common rules of judicial litigation. Thus, this derogating legal regime should preferably benefit from the application, in the context of the principle that the special law derogates from the general one (the special general principle), for only in this way does the will of the legislator come to impose itself.
Thus, the High Court of Cassation and Justice admits the notification formulated by the Pitesti Court of Appeal and establishes that in the interpretation of the provisions of art. 488 para. (1) point 2 of the Code of Civil Procedure, by reference to those of art. 19 and 214 of the same code, within the ground of appeal provided by art. 488 para. (1) pt. 2 of the Code of Civil Procedure cannot be analyzed the criticisms regarding the legality of the measure to change the composition of the full court on appeal ordered by a decision of the board of directors of the court, the legality of this decision can be analyzed under the conditions of the Administrative Litigation Law no. 554/2004, with the subsequent modifications and completions.
The Romanian Methodology for preventing and combating sexual harassment and moral harassment at work, dated 12.10.2023
Central and local, civil and military public administration institutions and authorities, as well as private companies, have an obligation to create and implement a unitary and coherent framework for both gender mainstreaming, as well as the prevention, control and management of situations of harassment on the grounds of sex and moral harassment at work by introducing measures aimed at:
a) ways to analyze, manage and resolve complaints about cases of harassment on the grounds of sex and moral harassment at work;
b) prevention of acts of harassment, as a result of analysis and resolution of the case at the level of the employer / institution;
c) establishing the concrete role and responsibilities in this field, both for the employer / leader and for the employees.
The victim may file a complaint/notification to the responsible person/commission for receiving and resolving the cases in any of the situations specified in par. (1), in written, olograph or electronic form, but obligatory assumed by signature by the victim, in compliance with the protection of identity data, in order to ensure its protection, or may submit a verbal notification to the responsible person/the commission for receiving and resolving the cases, following which a report will be drawn up.
The steps that the victim of acts of harassment on the grounds of sex and moral harassment at work can follow are:
a) direct approach to the alleged harasser or, if a victim cannot directly approach an alleged harasser, he / she can inform the hierarchical superior of the alleged harasser about unwanted and disturbing behavior;
b) informing the responsible person / commission for receiving and resolving cases of harassment on any systematic / repeated actions of harassment on the grounds of sex and moral harassment at work;
c) attempt to resolve the case amicably;
d) referral to the court.