NNDKP CELF ALERT
The provisions of Art. 213 para. (8) of Law 207/2015 on the Fiscal Procedure Code were declared unconstitutional
The Center for Excellency in Fiscal Disputes (in Romanian NNDKP CELF) notes that on October 1, 2019, the Constitutional Court of Romania (CCR) admitted the objection of unconstitutionality of the provisions of Art. 213 para. (8) of Law 207/2015 on the Fiscal Procedure Code, in the form prior to the modification by Government Ordinance no. 30/2017 for amending and supplementing Law 207/2015 on the Fiscal Procedure Code, as well as of the same legal provisions as amended by Government Ordinance no. 30/2017.
The legal provisions declared unconstitutional, namely Art. 213 para. (8), in both its forms – prior and subsequent to – the modification by GO no. 30/2017, have the following content:
- “By exception from the provisions of para. (7), in case precautionary measures were instituted and the criminal investigation bodies were notified in accordance with the law, the precautionary measures cease by operation of law on the date when the precautionary measures were taken according to Law 135/2010 on the Criminal Procedure Code, as subsequently amended and supplemented.” (The form in force from January 1, 2016 until the date of entry into force of GO no. 30/2017)
- “By exception from the provisions of para. (7), if precautionary measures were instituted and the criminal prosecution bodies were notified pursuant to the law, the precautionary measures last until the date of the case resolution by the criminal prosecution bodies or by the court. After the communication of the solution given by the criminal investigation bodies or rendered by the court decision, if the precautionary measures established by the competent fiscal body do not turn into enforceable measures under the law, the measures shall cease upon the order of the competent body that ordered them. ”(The form in force from the date of entry into force of GO no. 30/2017 until now)
NNDKP CELF wishes to emphasize that the finding that the aforementioned legal provisions are unconstitutional represents a very useful measure in fiscal practice, which will avoid the situation when the injunctive seizures create negative effects for extremely long periods of time, limited by an uncertain point in time – the communication of the solution given by the criminal investigation bodies or of the court decision.
By declaring the analyzed provisions unconstitutional, CCR ensures certainty regarding the duration and predictability of the measures that have a major impact on the taxpayer, as it is well-known that the imposition of precautionary measures for an unjustified period could cause the insolvency of the taxpayers, preventing them from carrying out their activities and, ultimately, resulting in bankruptcy.
In practice, NNDKP CELF found that the favorable solutions obtained in court were not able to lead to the reparation of the damage already caused by the precautionary measures wrongly instituted under the legal provisions declared unconstitutional.
NNDKP CELF shares the solution offered by the CCR and notes that the CCR decision will result not only in the revision of the legal provisions for the purpose of applying the law in furtherance of constitutional intent, but also in a change in the approach in applying precautionary measures that can produce irreversible negative effects upon the taxpayer.
With respect to the moment when the CCR Decision becomes enforceable, we note that it will be published in the Official Gazette of Romania and, as of the date of publication, it will become binding and enforceable and will produce effects for the future only.