13.04.2015
Înalta Curte de Casaţie şi Justiţie (High Court of
Cassation and Justice) Civil Section, Decision
no 2358 of 24 June 2014.
Tort liability claim, under Art 1349 Civil Code. Conditions and effects.
PLAINTIFF: Aeroportul Arad S.A.
DEFENDANTS: Romanian institutions which constructed the highway and
which were responsible for affecting the operational capacity of the airport:
 C.N.A.D.N.R., (National Company for Highways and National Roads in
Romania) represented by the Regional Department for Roads and Bridges
of Timisoara, and
 the Romanian Government represented by the Department for Foreign
Investment Projects and Infrastructure;
Parties that intervened in favour of the plaintiff: Arad County Council.
The matter of temporal applicability of the law, strongly related with the legal nature of
the dispute: conventional and commercial (as stated by the Timisoara Court of Appel),
or tort law (as the High Court ruled).
A. Initial relation between the parties - conventional relation:
offer/acceptance. The conventional legal relation concerns the obligation of bearing
the costs in order to restore the operational capacity of the airport which became
necessary due to the loss of some land areas in favour of the State’s public property in
order to build the highway.
B. Tort law relation between the parties - the defendants’ conduct became
“tortious” at the time of their refusal to pay compensation for the damage that was a
direct consequence of the construction of the highway, when such damage was certain.
The wrongful conduct began with the notice addressed by CNADNR to the plaintiffs in
which they were asked to dismantle all buildings and installations on the land.
The tort law relation was born under the provisions of the new Civil Code, and
according to Act no. 71 of 2011 regarding the implementation of the new Civil Code,
the applicable law in this particular case is the new Civil Code.
IMPORTANCE: The new Civil Code regulates tort law in a different manner than the
old Civil Code.
Timisoara Court of Appeal erroneous decision.
The High Court: tort liability conditions are fulfilled in this case:
Criticism: tort liability is applicable whenever the rights or legitimate
interests of others are breached by an action or omission, without a prior
legal relationship between the parties being necessary.
- The wrongful act is represented by the loss of the airport’s operational
capacity,
The High Court considers the Court of Appeal decision to be ‘discriminatory’,
because its outcome is not provided neither by the old nor by the new Civil
Code.
Moreover, the High Court considers that the national public interest argument
could amount, at most, to a case precluding liability and by no means to the
absence of any legal relation between parties.
The defendants’ erroneous arguments: the attempt to change
the legal basis of the dispute from the tort law area to the transfer of
ownership of the land. The necessary land for the highway
construction was taken from a bigger plot of land belonging to the
airport and was now in the State’s public property, therefore the
airport would not be entitled to compensation because it is not the
owner of the land involved in the highway’s construction.
The High Court rejected this argument on the grounds that the
transfer of ownership of the land does not have the effect of
cancelling the corresponding pecuniary obligations, but, on the
contrary, rather of honouring them.
- The damage - the amounts spent by the plaintiffs to restore the
operational capacity, while
- The causation condition is met by the fact that the damage is a direct
consequence of the construction of Arad ring road, part of A1 highway.
The defendants‘ erroneous opinion: they would have no obligation
towards the plaintiffs since the latter had already advanced the necessary
amounts of money for restoring the operational capacity of the airport.
CONCLUSION
The national public interest, such as the construction of a
highway, cannot constitute a reason for removing tort
liability when damage was caused to land owners affected by
the public project, especially where compensation for such
damage had been the condition to issue the authorizations
and permits required by those who developed this project.
THANK YOU FOR YOUR ATTENTION!
1