The High Court held that in the case the applicant claimed only the restitution of the market price (without having a separate point of complaint regarding the refund of the updated price, paid at the time of concluding the sale purchase – agreement, under Law No. 112 / 1995, as amended), the Court may grant the updated price, only by ignoring the principle of availability and the subject to its investment. Only in case of an incorrect legal qualification of the claims, in the principle iura novit curia, the judge would make the correct application of the incident rules and could give a ruling on the updated price, instead of the market price (obviously, putting into question, in advance, the legal qualification), but not for the reason that the updated price, being lower than the market price, it is either way included in the latter.
Under these conditions, granting of the updated price, although the applicant requested the market price, results in overcoming the object of the claim and therefore, in the violation of the principle of availability.
The fact that in both ways of payment, the debtor of the claim is the Ministry of Finance and the only criterion used by the legislature to determine the extent of damages would constitute compliance or non-compliance at the conclusion of the agreement, of the provisions of Law No. 112/1995, as subsequently amended, does not justify exceeding the limits of the investment, by granting the updated price, when it is found that not all conditions provided by law for the return of the market price are fulfilled.
Regarding the protection due to the holder of the debt, under the regulation of Art. 1 of Protocol No. 1 additional to the Convention, it cannot be stated that in the analyzed hypothesis is guaranteed the refund, at least, of the updated price.
On one hand, the guarantee of a right can be done only in the terms of exercising it in terms stipulated by law (neither when it wasn’t the object of the court investment, nor when it was desired it exploitation outside the statute of limitations).
On the other hand, being a proprietary interest attached to the legal category of the right of claims, to enjoy the protection of art. 1 of Protocol no. 1 Additional to the Convention, it must have a sufficient basis in the internal law, respectively to be enhanced by a clear and consistent jurisprudence of the courts. However, evidence of that lack of unitary jurisprudence is just the purpose of triggering an appeal on points of law.
Compared to these considerations, the Court upheld the appeal on points of law and determined that: “In the interpretation and application of art. 50 paragraph (2) and 501 paragraph (1) of Law no. 10/2001 regarding the legal status of buildings abusively taken between March 6, 1945- December 22, 1989, republished, as amended and supplemented, the court seized with granting a claim for payment of the market price, based on art. 501 paragraph (1) of Law No. 10/2001, republished, as amended and supplemented, may grant to the plaintiff the updated price paid at the time of concluding the sale purchase – agreement, under Law no. 112/1995 on regulating the legal status of property with destination of housing, owned by the state, with subsequent amendments, if it finds that the conditions stipulated by the provisions of art. 50 paragraph (2) of Law no. 10/2001, republished, as amended and supplemented, are fulfilled, only if there has been made a distinct request in the claim, in this respect.”