Costaș, Negru & Asociații is pleased to announce that it has succeeded in obtaining the referral of the Court of Justice of the European Union in a case concerning the application of the ne bis in idem principle.
Specifically, starting in 2014, a tax procedure and a criminal procedure were conducted in parallel against the company represented and its administrator. The two procedures took into account the same tax situation and the same alleged additional tax obligations worth approximately 6.3 million lei, which also determined the legal classification in the criminal process.
In the tax procedure, as a result of a decision rendered by the Alba Iulia Court of Appeal on 29.12.2022, the tax decision was annulled for approximately 5.7 million lei, also taking into account a tax expert opinion. The reasoning for the sentence lasted more than 10 months. Subsequently, in June 2024, the High Court of Cassation and Justice admitted the appeals of both parties and sent the case for retrial to the Alba Iulia Court of Appeal, for a better analysis of the arguments of all parties. The case is currently being retried, before the Alba Iulia Court of Appeal.
In parallel, in the criminal proceedings, the Brașov Court of Appeal delivered a judgment on 6.10.2022 convicting the associate and administrator of the company for the crime of tax evasion, although the expert opinion administered in the criminal proceedings provided an interpretation close to that in the tax file. The Brașov Court of Appeal explicitly refused to wait for the resolution of the tax proceedings and, by a decision of 18.07.2023, upheld the conviction ordered by the Brașov Court of Appeal.
Given the particular elements of the case, the lawyers Costaș, Negru & Asociații requested the Alba Iulia Court of Appeal to refer the following preliminary questions to the Court of Justice of the European Union:
Question no. 1:
Is it compatible with the principle of ne bis in idem enshrined in Article 50 of the Charter of Fundamental Rights of the European Union and with the principle of legal certainty a national regulation which, at the time of the facts, did not provide for any correlation between the tax procedure and the criminal procedure and allowed the public authorities and national courts, considering the same tax facts and for the same tax obligations, to pursue liability in two procedures, possibly with radically different results?
Question no. 2:
Having regard to the criteria established by the Court of Justice of the European Union in Case C-524/15, Luca Menci, does Article 50 of the Charter allow the use by a Romanian tax court of evidence administered in parallel criminal proceedings, given that the national legislation did not provide, at the time of the facts and does not currently provide, any rule of coordination between the two procedures?
Question no. 3:
Is it compatible with the principle of ne bis in idem enshrined in art. 50 of the Charter of Fundamental Rights of the European Union and with the principle of legal certainty the position of a criminal court, which, although aware of the parallel conduct of the tax procedure, which may lead to the cancellation of all or a significant amount of the allegedly unpaid tax obligations, with significant direct influences on the legal classification of the charges of tax evasion, proceeds to pronounce a conviction without waiting for the completion of the tax procedure?
By its decision of 7 April 2025, the Alba Iulia Court of Appeal admitted the request and, pursuant to art. 267 TFEU, referred a preliminary ruling to the Court of Justice of the European Union.
In our opinion, this referral is particularly important and has the ability to clarify the relationship between criminal and tax proceedings in Romania. We recall that for a while these proceedings ran in parallel, with disastrous results. Currently, completely inappropriately, the tax proceedings are stopped and priority is given to the criminal proceedings, although the basis of any legal classification of a tax evasion act is tax obligations, which must be established by the competent bodies (tax bodies), within the tax proceedings.
The questions submitted also allow the Court of Justice of the European Union to analyze the conduct of the courts in Romania, especially the criminal courts, which are disconnected from European case law, which they most often ignore.
The client was represented, in the tax proceedings, by attorney Dr. Cosmin Flavius Costaș and attorney Dr. Lia Pricope, both from the Arad Bar.
Costaș, Negru & Asociații is a civil law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and consultancy in several areas of practice through a team of 18 lawyers and consultants. Details regarding legal services and the composition of the team can be found on the website https://www.costas-negru.ro.
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