Abstract: Although the Constitutional Court of Romania (CCR) dismissed the exception of unconstitutionality of the much-criticized Article 22(6) of Law No. 255/2010, the reasoning of its decision is in fact favorable to the expropriated parties, since by giving full effect to Decision No. 78/2021 of the High Court of Cassation and Justice – Panel for Clarifying Matters of Law, the CCR reaffirmed what has always been known: that compensation in cases of expropriation must be just, as required by Article 44(3) of the Constitution.
In determining such fair compensation during judicial proceedings, the notarial grids will serve merely as a reference point, to be correlated with the legal criteria set forth in Article 26(2) of Law No. 33/1994: (a) the market price; and (b) the damage caused to the owner or other entitled persons.
I. The Controversy: Article 22(6) of Law No. 255/2010
- Under Article 22(6) of Law No. 255/2010 on expropriation for public utility, required for projects of national, county, or local interest (“Law No. 255/2010”): “Experts, when preparing the expert report, as well as the court, shall take into account the expert appraisals prepared and updated by the Chambers of Public Notaries, at the time of the transfer of ownership.”
This provision, introduced only in 2018 by Law No. 233/2018, triggered well-founded controversy, as it appeared to cap the compensation payable to expropriated owners—even during judicial proceedings—at the values set out in the notarial grids. Such an interpretation conflicted with fundamental rules of expropriation law:
– Article 44(3) of the Romanian Constitution: “No one may be expropriated except for a cause of public utility, established according to law, with just and prior compensation.”
– Article 26(1)–(2) of Law No. 33/1994 on expropriation for public utility (“Law No. 33/1994”): “(1) Compensation shall consist of the real value of the property and the damage caused to the owner or other entitled persons. (2) When calculating the amount of compensation, experts as well as the court shall take into account the prices at which similar properties are usually sold in the same administrative-territorial unit at the time the expert report is prepared, as well as the damages caused to the owner or, as the case may be, to other entitled persons, taking into account the evidence presented by them.”
- Given the uncertainty created by this new provision, many courts stayed proceedings and referred questions to both the High Court of Cassation and Justice (ÎCCJ) and the Constitutional Court (CCR) for clarification.
II. The Clarification: Decision No. 78/2021 of the High Court of Cassation and Justice – The Panel for Clarifying Matters of Law
- The Panel for Clarifying Matters of Law held that: “In the judicial stage of the expropriation procedure, when determining the amount of compensation, the provisions of Article 22(6) of Law No. 255/2010 shall be interpreted broadly, so that account is taken both of the ‘expert appraisals prepared and updated by the Chambers of Public Notaries at the time of the transfer of ownership’ and of the legal criteria set forth in Article 26(2) of Law No. 33/1994.”
- The criteria of Article 26(2) of Law No. 33/1994 rightly reaffirmed by the Supreme Court—are the real value of the property and the damage caused to the owner or other entitled persons. The Court emphasized that Article 22(6) of Law No. 255/2010 cannot be read restrictively or in isolation from the general legal framework, namely Article 44 of the Constitution and Law No. 33/1994. Thus, both sets of provisions continue to apply jointly.
- The High Court’s decision is remarkable, both in the coherence of its argumentation and in its measured, reassuring tone. A legal issue that seemed to call into question the very constitutional principle of fair and prior compensation was masterfully resolved by the supreme court, which restored order where chaos, uncertainty, and fear (of being expropriated for next to nothing) had taken hold.
- The Court acknowledged the “defective drafting” of Article 22(6), but—through a hierarchy-based, grammatical, logical, teleological, and systematic interpretation it managed to realign the provision with the general principles of expropriation law, lending coherence to an otherwise problematic text.
- Among the many arguments advanced, the most striking are those found in the section on logical interpretation (paragraphs 128–134), where the High Court stated unequivocally:
– “to accept the mechanical application of this calculation method (…) would mean harming or even depriving of substance the right of the expropriated person to contest in court the amount of compensation (…) the right of access to justice thus becoming merely theoretical and illusory”;
– “there is no legal logic in forming a commission of three experts to carry out a specialized work whose complexity would be reduced to a simple arithmetic calculation, but which could generate negative effects in terms of costs and the duration of judicial proceedings”;
– ”reductio ad absurdum, the real value of expropriated properties within a given administrative-territorial unit would be uniform, regardless of their specific characteristics (for example, location, utilities, easements, access routes, street frontage, or mode of use), which cannot be rationally accepted.”
III. The end of the road: CCR Decisions No. 450/25.10.2022 and No. 536/10.11.2022
- Even after Decision No. 78/2021, the judicial landscape remained unsettled. New exceptions of unconstitutionality continued to be raised. Out of the total of 59 exceptions brought before the Constitutional Court so far, around 20 were filed after High Court Decision No. 78/2021. The interpretation of the High Court may be binding, but unconstitutionality is still preferable…
- In any event, the group of expropriated persons seeking fair compensation was disappointed when the Constitutional Court, through Decisions No. 450 of 25 October 2022 and No. 536 of 10 November 2022, dismissed the constitutional challenges. Thus, the much-criticized legal provision turns out to be perfectly in order, and valuation based on notarial grids is downright constitutional? In other words, the notarial grid equals the “fair compensation” guaranteed by the Constitution???
- The heartbeat of the expropriated parties seeking fair compensation returned to normal once the reasoning was finally published “Ah, the considerations, we’d forgotten about those…”
- CCR Decisions No. 450/25.10.2022 and No. 536/10.11.2022 were published in the Official Gazette of Romania No. 128 of February 15, 2023, respectively No. 149 of February 22, 2023, and the reasoning is straightforward: Article 22(6) of Law No. 255/2010 is constitutional only because the High Court, in Decision No. 78/2021, interpreted it in conformity with the Constitution:
“Considering the rulings of the High Court, as set out in Decision No. 78 of 15 November 2021, and taking into account the binding nature of its interpretation for all courts from the date of publication, the calculation of compensation during the judicial phase of expropriation shall be carried out unequivocally in accordance with the criteria identified by the High Court, in order to ensure a fair and equitable value of the compensation, corresponding to the real value of the property and fully covering the damage suffered by the expropriated party. Consequently, in this context, the criticism of unconstitutionality in relation to Article 44 of the Constitution cannot be upheld.”
IV. Conclusions
a)Expropriated owners remain entitled to claim the real value or market price of the properties of which they have been disposed of, in addition to compensation for any damages suffered.
b) The rationale remains debatable as to why, during the “administrative” stage of the expropriation procedure under Law No. 255/2010, expropriating authorities are still required to assess the properties solely by reference to the notarial grid, even when such valuation is unjust and, if challenged, will almost certainly be overturned. The expropriator thus estimates an unrealistically low cost of expropriation, which risks being multiplied as a result of litigation. Nor should we forget the court costs. Cui prodest?
c) Article 22(6) of Law No. 255/2010 remains open to constitutional criticism, not necessarily for breaching Article 44(3) of the Constitution, but at least for failing to meet the constitutional standard of legislative clarity. Whatever its intended purpose, the provision has created more confusion than certainty.
