A few months ago, while perusing the Emergency Ordinance no. 41/2022 regarding the e-Transport system in an article posted on the blog of Costaș, Negru & Asociații, we have anticipated a wave of contraventional complaints tackling the sanctions which the fiscal authorities have imposed by virtue of this legislative text. At that moment, Article 13 stated that the seizure of goods was imposed regardless of the type or the gravity of the offence which had been commited, as long as it consisted of a breach of the Ordinance.
Despite the future seeming dark, it seems that the court have been receptive to the new amendments of the Ordinance.
The lawyer team from the law firm Costaș, Negru și Asociații have managed to win a case judged by the Cluj-Napoca First Court. Through this decision, the court has applied the principle of the more favourable contraventional norm, thus removing the complementary sanction of seisure which has been applied to our client.
Factually, Company D. had been contraventionally sanctioned for not fulfilling the e-Transport formalities in due time, i.e. generating the UIT code. The company has collaborated with a Dutch supplier in order to transport second-hand goods. The Dutch supplier would further resort to collaborating with another company which would be in charge with the transport, which would then take the order from company D. The transporter would then deliver the goods to Company D. in Romania. The transport would take 3-5 days on average.
The supplier proceeded to load the truck with the purchased goods later than estimated, after the work schedule of Company D’s employees ended. Based on previous experiences, Company D. estimated that the delivery would occur the following week. Therefore, they fulfilled the e-Transport formalities at the beginning of that week, at the beginning of their work schedule. However, the transport had been initiated during rest days and the supplier had arrived at the border point before Company D.’s schedule started. The Company was announced by the transporter that there is no UIT code generated, therefore Company D warned them to not pass the border until they did not generate the UIT code. Despite the warning, the transporter had entered the customs to initiate the custom formalities, under the pressure of the customs officers. During the operative verifications, the officials established that when passing the border, the UIT code was not generated. Despite the fact that the transported showed the invoice, the proof that the transport was registered in the e-Transport app, but at a a later time, the Company has been sanctioned with a warning and the seisure of the monetary equivalent of the undeclared goods, amounting up to RON 164,003.
The Court has stated the communication error between the Company and the transporter cannot exonerate the Company from contraventional liability. However, the Court has noticed that during the proceedings, there was a modification of the Emergency Ordinance no. 41/2022. Essentially, the legislator has removed the seisure „in case of reports that have taken place after the road transport of goods has finished, when it has been registered in the justificative documents which fundament the accounting records, as well as in the users’ accounting, during the time when those operations have been conducted”. We have easily proven that, even though the UIT code was generated later, Company D. owned justificative documents which fundament the accounting records. Therefore, the seisure sanction was unjustified, by virtue of the more favourable contraventional norm.
Therefore, the court has removed the seisure of 164.003 lei, which had been applied through the sanctioning act.
This court decision is encouraging in the matter of e-Transport. On one side, we believe that it is a starting point in consolidating a jurisprudential practice which discourages any excessive sanctioning of the fiscal authorities when adopting disproportionate sanctions. On the other side, it also constitutes a warning for the fiscal authorities, in the sense that they have to interpret the law in a balanced manner, in this case taking the safeguards that the contravenient benefits from into consideration.
We still highlight that applying the Emergency Ordinance no. 41/2022 is still not enstranged from arbitrary interpretations conducted by fiscal authorities. Therefore, we hope that the court will diminish the effects which such interpretation could have on contravenients.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by lwy. Mihuță Miruna, from the Arad Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 18 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
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