A case can be sent back for trial only once, and the Constitutional Court leaves the rule untouched

In a civil case that has reached the appeal on points of law, the file can be sent back for trial only once, and the Constitutional Court has held that this rule closes nobody’s road to justice. Decision no. 133 of 17 February 2026, published in the Official Gazette of Romania, Part I, no. 795 of 18 September 2026, dismisses as unfounded the plea of unconstitutionality raised by an individual against Article 498(2) of the Code of Civil Procedure. The file reached the Court by a roundabout route that anyone wanting to challenge a law in their own case should remember: the Bacău Court of Appeal refused to refer the matter to the Constitutional Court, and the High Court of Cassation and Justice allowed the appeal against that refusal, on the route by which a refusal to refer a matter to the Constitutional Court is challenged within 48 hours, and sent the plea onward through Decision no. 3.252 of 8 July 2020.

The text at issue concerns what happens after a judgment is set aside on an appeal on points of law. The basic rule, written in paragraph (1) of the same article, is that the court which allowed the appeal keeps the file and tries the merits itself, either on the same day or at a later hearing. Paragraph (2) lays down the exception: the file is sent back to the court whose judgment was set aside, or to another court of the same rank in the same district, in two specific situations. The first, where the court below disposed of the case without going into its merits, for instance by allowing a procedural objection and stopping there. The other, where the case was tried in the absence of a party who had not been legally summoned, both at the taking of evidence and at the debate on the merits. And that remittal, the text says, is made „o singură dată în cursul procesului”, only once in the course of the case.

The article applies to appeals on points of law heard by tribunals and by courts of appeal. At the High Court of Cassation and Justice the applicable text is Article 497, which lays down the same limit of a single remittal in the course of the case.

The author of the plea showed that her dispute had been before the courts of first instance twice and that on both occasions they had given rulings by which the court declined to go further without examining the merits. Her argument, in essence: if the judgment given after the remittal also sidesteps the merits, a second remittal is no longer possible, so the merits of the case end up being tried at first and last instance by the court of appeal, sitting as the court hearing the appeal on points of law, through a judgment that nobody can challenge any more. She relied on Article 21(1) of the Constitution, on free access to justice, and on Article 129, on remedies.

The Court answered that, however the stages of the case follow one another, the party who brought the appeal on points of law always receives a trial of the merits, with all the guarantees of a fair trial, including the possibility of putting a full defence. On the Court’s reading, the limit of a single remittal shortens the procedure rather than closing it: without it, the file could shuttle from one court to another an unlimited number of times. The legislature’s solution is, the Court writes in paragraph 16, „rațională”, rational, because it gives the party the chance of a fresh procedural cycle, and only after that cycle does the court hearing the appeal on points of law keep the case for itself.

On the substance of the criticism about access to justice, the Court repeated a position it has held for more than twenty years: the Constitution does not require the legislature to guarantee that every case passes through all levels of jurisdiction, and Article 129 provides that remedies are exercised „în condițiile legii”, under the conditions laid down by law. It referred to its own case-law, among other things to Decision no. 192 of 3 April 2014 and to Decision no. 500 of 30 June 2015, which say, in the paragraphs indicated, exactly what the present decision attributes to them.

The Court then relied on the case-law from Strasbourg. Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees the right to an effective remedy before a national authority, that is access to one level of jurisdiction rather than to all of them, and the right to two levels of jurisdiction is guaranteed, by Article 2 of Protocol no. 7, only in criminal matters. In Golder v. the United Kingdom the European Court of Human Rights had already held, in 1975, that the right of access to the courts is not absolute.

The last support is the one closest to the text under discussion. In Decision no. 454 of 4 July 2018 the Court had examined the limit of a single remittal and had said that it is a choice of the legislature, enacted for tribunals and courts of appeal as well, in precisely the two situations covered by the text criticised now. The regulation of trial procedure belongs to the legislature, under Article 126(2) of the Constitution, and the legislature has a wide margin of appreciation so long as it observes the Constitution.

The decision was taken unanimously and it is final and generally binding.

What it changes in practice

For anyone with a case pending, the immediate effect of the decision is zero in law and considerable in practice. In law, nothing changes: Article 498(2) remains in force word for word, in the form of the Code of Civil Procedure republished on 10 April 2015, a form that has not been amended since and that is exactly the one the Court examined. In practice, from 18 September 2026 the reasoning of this decision binds every court, under Article 147(4) of the Constitution, so a judge can no longer treat the question as open.

The concrete consequence for a party to a case can be counted, literally. If your file has already been sent back for trial once after an appeal on points of law was allowed, the remittal has been used up. At the next setting aside, the court hearing the appeal on points of law will try the merits itself, and its judgment is final, under Article 634(1)(5) of the Code of Civil Procedure, even where it disposes of the merits of the dispute. Neither an appeal nor an appeal on points of law follows.

From this follows a consequence of strategy that the decision does not state but does impose: the second cycle of trial on the merits is the last in which evidence is taken before a court that can weigh it freely. Any witness, expert report or document left for another time is lost, because the court hearing the appeal on points of law that keeps the case retries the merits on a file that is already made up, and does not open the case afresh.

This plea can be raised again by someone else, in another case, since the Court dismissed it rather than finding the text unconstitutional. But on the criticisms already examined, namely free access to justice and the exercise of remedies, the reasoning binds the court, so a claim that repeats them cannot lead to a different outcome. To count for anything, a new plea has to bring different grounds of unconstitutionality.

One thing the decision does not touch: at the High Court of Cassation and Justice the applicable text is Article 497, not the one discussed here. The limit is the same, a single remittal, but the rule is a different one, and anyone invoking the present decision has to cite the article that fits his own case.

What has changed compared with the previous situation

In the text of the law nothing has changed. Article 498(2) has read the same since 10 April 2015, when the Code of Civil Procedure was republished in the Official Gazette of Romania, Part I, no. 247. Unlike the neighbouring article, Article 497, which was amended in December 2018, this text has never been touched.

What has changed is its status. Until now the limit of a single remittal had been examined by the Constitutional Court once, in 2018, and in a different setting: Decision no. 454 of 4 July 2018 was given before the promulgation of a law amending the Code of Civil Procedure, on criticisms about the quality of the drafting and the clarity of the rule. The text in paragraph (2), in the form in which it applies in real cases, had not until now been set against Article 21 and Article 129 of the Constitution. From 18 September 2026 it has been, and the answer is public and binding.

The tone has changed as well. In 2018, when it examined the same limit, the Court openly acknowledged its price: if the remittal can no longer be made, the parties „nu vor mai putea exercita apelul și recursul”, will no longer be able to use the appeal and the appeal on points of law, and that is a matter for the legislature’s choice. In 2026 the same limit is presented through what remains rather than through what is lost: „recurentul va beneficia întotdeauna de o judecată a fondului”, the appellant will always have a trial of the merits. Both formulations are true and describe the same mechanism, but the one from 2018 says more plainly what the party gives in exchange.

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