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The High Court of Cassation and Justice: Suspension of the execution of the guarantee of good execution on the path of the presidential ordinance is inadmissible

11 March 2020

The Brașov Court of Appeal – The Civil Section notified the High Court of Cassation and Justice in file no. 1980/1/2019 with the following question regarding the resolution of the question of law:

“The procedure of the presidential ordinance in the matter of suspending the execution of a guarantee of good execution, annexed to a public procurement contract, is admissible, in the case where in the process regarding the settlement of the fund it was not requested to suspend the execution, under the conditions provided by art. 53 paragraph (2) of Law no. 101/2016 and no aspects other than those that could be invoked in the procedure regulated by the special law were invoked, given the temporary and limited nature of the effects of the presidential ordinance? ”

On March 2, 2020, the High Court of Cassation and Justice – Completion for the clearance of certain issues of law has ruled that the procedure of the presidential order cannot be used if it is desired to suspend the execution of a guarantee of good performance under a contract of public procurement.

Thus, in interpreting and applying the provisions of art. 997 of the Civil Procedure Code and of art. 53 paragraph (2) of Law no. 101/2016 on remedies regarding the award of public procurement contracts, sectoral contracts and works concession contracts and services concession, as well as the organization and functioning of the National Council for Solving Complaints, the procedure of the presidential ordinance is inadmissible in the matter of the suspension of the execution of a good performance guarantee related to a public procurement contract.

After publication in the Official Gazette of Romania, Part I, the High Court solution will become compulsory, according to the provisions of art. 521 paragraph (3) of the Civil Procedure Code.