A small company from Falticeni has overturned the Fiscal Procedure Code. The Constitutional Court found, in response to its petition, that there is no longer necessary to pay a bond for submitting and solving motions challenging the execution of the budgetary receivables started by the fiscal authorities and by the Banking Assets Resolution Agency (AVAB).
The Court has therefore sustained the unconstitutional exception raised against the provisions of the Fiscal Procedure Code that require depositing a 20% bond of the amount challenged as processing fee. "The ruling of the Court is no doubt correct in constitutional terms and benefits the taxpayers against which the State decides for forced execution of debts. Practically, most of the time it is about decisions for taxation issued as a result of controls by fiscal authorities," says Anda Rojanschi, associate with David & Bajas, a PricewaterhouseCoopers correspondent law firm.
She explains that, under a principle acknowledged by both the domestic and the European legislation, any individual or firm that feels an administrative authority, such as the fiscal bodies and AVAB, has infringed upon their rights, must be allowed to go to court unhindered. "Since the requirement to pay an exorbitant bond was undoubtedly hindering the free access to justice, the decision of the Court is fully compliant with these principles," Anda Rojanschi says.
Subsequently, starting March 16, 2004 (March 12 for any challenges to the execution commenced by AVAB) the courts of law will have to register and rule on the budgetary receivables forced execution challenges without requiring proof of bond deposited, as it was the case until now.
The ruling brings a major change in the jurisprudence of the Constitutional Court, which the Government used as an argument to support its position, particularly since a similar challenge had been dismissed as ungrounded last summer.
The Court has this time found that the provisions of Article 164 of the freshly enforced Fiscal Procedure Code (which reiterates nearly identical provisions to those in Ordinance 61/2002 on collection of budgetary receivables) and the provisions of Article 83, paragraph 1 in Emergency Ordinance 51/1998 on turning banking assets to account, are unconstitutional.
The Constitutional Court felt the restriction "was all the more obvious" as the bond was not related to an action in court but merely prevented filing with the court from the beginning, from the moment the judge on duty got the petition in view of registration and found out the requirement in question had not been met, and was therefore dropping the petition without even looking at it.
razvan.voican@zf.ro
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