The exception of unconstitutionality refers to the provisions of pt. 8 (viii) of the section 13 of Government Emergency Ordinance No. 8/2015 which established that: “In the cases provided in section vii, if the economic operator pays the contravention fine or half the amount, as well as an amount equal to ten times the fine imposed, the complementary sanction ceases de iure from 24 hours upon presenting the proof of payment to the ascertaining body. The amount of money equal to ten times the fine imposed is revenue to the state budget and can be paid at the Savings House – CEC – S.A. or the State Treasury units and is not refundable if, at the request of the economic operator, the court annuls the minutes of the contravention “.
The arguments from the Explanatory Memorandum are based on the deprivation of its effects of a court decision, which violates the constitutional provisions that enshrine the separation and balance of powers in state, through the legal text above – mentioned, because “although the minutes of the contravention is subject to the court control the Ruling of cancelation of the fine has no purpose of redress for the person in case, as the fine and the amount of money paid is not refundable.”
Thus, on one hand, the economic operator cannot reclaim the amount of money paid and, on the other hand, the court is prevented by the provisions criticized to reinstate the operator in the previous situation before the finding of the contravention measure, although the minutes can be canceled in terms of legality.
It is also mentioned that “the Ordinance violates the principle of proportionality between the means employed and the aim achieved. Thus, payment of the fine or half the amount, as appropriate, and an amount equal to 10 times the fine imposed, in order to the end the complementary sanction of suspension of activity of the economic operator, appears as a disproportionate measure to the economic operator, having an exorbitant character, the economic operator being basically constrained by the state organs to bear an inequitable and unconstitutional burden in order to exercise a fundamental freedom”.
“The payment of such an amount, which has an arbitral character, is not only a measure of restricting the exercise of the rights, but also an excessive obligation on the patrimony of the economic operator, which can lead to an enrichment of the state correlated with a reduction of the patrimony of the person, which is not in accordance with the principles of a democratic society. “
Compared to these provisions, the Ombudsman considers the criticized normative act as being unconstitutional in whole, as it affects free access to justice, the right of a person aggrieved by a public authority to obtain compensation for its damage, the conditions of restraining some rights and liberties and the economic freedom of the individuals concerned.