The referral to the High Court of Cassation and Justice has been made by the Salaj Court – Civil Section, through the Ruling of 22.05.2014, in the file No. 4322/84/2013, to give a principle solution of on the following question of law:
“If, in relation to article 2 paragraph (1), article 4 paragraph (1) and article 7 of the Government Ordinance No. 75/2001 on the organization and functioning of the fiscal records, republished, with subsequent amendments, article 1 paragraph (1) of the Methodological Norms for the application of Government Ordinance No. 75/2001 on the organization and functioning of the fiscal record, approved by Government Decision No. 31/2003, with subsequent amendments and article 7, article 8 and article 38 of the Government Ordinance No. 2/2001 on the legal regime of contraventions, as amended and supplemented, the sanction of warning is or is not enrolled in the criminal tax records. “
On the question of law that has been invested with, the High Court held that:
The Government Ordinance No. 75/2001 regulates the establishment and organization of the criminal fiscal records, way of use for its own tax administration, as well as the conditions under which certain information can be made public.
The existence of the fiscal records for some taxpayers enables the orientation of the fiscal control authorities towards the taxpayers in whose tax records appears flagrant violations of the financial-fiscal and customs legislation: “in the fiscal records is kept the evidence of individuals and legal entities, as well as associations, shareholders and the legal representatives of the legal entities, who committed acts sanctioned by the tax laws, financial, customs, and those concerning financial discipline, hereinafter referred to as taxpayers “and, according to article 4 paragraph (1) of the same law, “in the tax records is registered the data regarding the sanctions applied to the taxpayers for the deeds stipulated in article 2 paragraph (1), and data from the documents provided in article 2 paragraph (2)”.
The legislature did not intend to regulate through the Government Ordinance No. 75/2001, in detail, the facts and the sanctions that are registered in the fiscal records of taxpayers, leaving for the secondary legislator to establish, in concrete, the actions and sanctions that fall under this law. In the Appendix to the Methodological Norms approved by the Government Decision No. 31/2003 there is no reference to the sanction of the warning, because the normative acts establishing and sanctioning such acts do not provide this sanction, but it is left open the path for applying the provisions of general law to the extent that they dont come in contradiction with the regulations of the special law and provide, for contraventions, the possibility of applying the provisions of art. 7 paragraph (3) of Government Ordinance No. 2/2001, according to which “the warning could be applied where the legislative act establishing and sanctioning the contraventions does not provides this sanction” or, for criminal offenses, the possibility of applying the provisions of article 81 of Law No. 286/2009 Penal Code, with subsequent amendments, according to which “when the penalty is given up, the court applies the offender a warning.”
Therefore, it is possible that the warning sanction to have other legal administrative consequences, such as emphasizing the penal and contravention acts and the people who commit such offenses, in their fiscal records, regardless of the content of the imposed sanction, the more so, since the warning is one of the main contravention sanctions, under article 5 paragraph (2) letter a) of the Government Ordinance No. 2/2001. Article 7 of the Government Ordinance No. 75/2001 regulates the situations and also the conditions in which the tax payers, who have criminal data in their fiscal records, are being removed. The fact that the legislator, when regulating the removal from the fiscal records of the taxpayers who have committed crimes or offenses, makes no reference to the hypothesis of applying the warning as a sanction, and conditions the removal to the payment of the contravention fines, does not mean that the taxpayers who received a warning cannot benefit from these legal provisions, because this condition is necessary only in the case of sanctioning by fine, in case of the sanction by warning operating the removal with fulfillment of the other conditions.
That being so, given that the provisions of article 2 paragraph (1) and article 4 paragraph (1) of the Government Ordinance No. 75/2001 in conjunction with article 5 paragraph (2) letter a) of the Government Ordinance No. 2/2001 are unequivocally that sanction with warning is included in the tax records, in application of the principle of law interpretatio cessant in claris, it cannot be accepted the interpretation that this sanction is not enrolled in the tax records, considering the possible unsuitable consequence, both legally and economically for the taxpayers.
As a consequence, the High Court of Cassation and Justice has determined that: “In the interpretation of the provision of article 2 paragraph (1), article 4 paragraph (1) and article 7 of the Government Ordinance No. 75/2001 on the organization and functioning of the fiscal records, of article 1 paragraph (1) of the Methodological Norms for the application of Government Ordinance No. 75/2001 on the organization and functioning of the fiscal records, approved by Government Decision No. 31/2003, and of article 7, 8 and 38 of the Government Ordinance No. 2/2001 regarding the legal regime of contraventions, the warning sanction is included in the tax records.”