Art. 6 of Law no. 241/2005 provides that “is an offense and is punishable by imprisonment from one year to six years detention withholding and not submitting, intentionally, within 30 days of the due date, the amounts representing taxes or contributions.”
In its arguing, the Constitutional Court ruled that the legal provisions in case are an expression of art. 23 paragraph (12) of the Constitution, according to which “No punishment can not be established or applied if it is not in accordance with and under the law”, as well as those of art. 73 paragraph (3) h), which regulates the competence of the legislature to establish criminal offenses, penalties and the execution thereof. In this context, the Court noted that any normative deed must meet certain qualitative conditions, among which is predictably, which means that it must be sufficiently precise and clear to be applied. Equally, the European Court of Human Rights ruled that the law should indeed be accessible to litigants and predictable in terms of its effects.
The Court also finds that “the legislative text should be made clear, fluent and intelligible without syntactic difficulty and obscure or ambiguous passages “ and that “normative acts must be written in a language and style specific for the legal normative deeds, concise, sober, clear and precise, to exclude any doubt, in strict compliance with rules of grammar and spelling. “
From the examination of the legal provisions in tax matters in conjunction with the Law. 241/2005, the Court notes that it does not specify, in particular, which are the taxable income withholding, limiting only to mentioning, sporadically, for example, “withholding tax representing anticipated payments for some income from independent activities, “” income in the form of awards is taxed by withholding, with a share of 16% to the net income achieved in each prize “or” payers of income subject to withholding taxes, except for payers of income from wages under this Title, must submit a statement regarding the computation and withholding tax for each income beneficiary to the tax authorities until the last day of February of the current year for the previous year.”
The Court also notes that, according to Art. 6 of Law no. 241/2005 constitutes an offense punishable with imprisonment from one year to six years detention not submitting intentionally within 30 days of the due date, the amounts representing taxes or withholding, but not even in this article nor elsewhere in the Law or other laws mentioned, the notion of “taxes or withholding” is not defined.
In conclusion, the Court finds that the contested provisions don’t comply with the constitutional requirements regarding the quality of the law, respectively do not meet the criteria for clarity, accuracy, predictability and accessibility, being contrary to Art. 1 paragraph (5) of the Constitution, therefore, admitting the claim of unconstitutionality, art. 6 of Law 241/2005 no longer represents an offense and is no longer sanctioned with imprisonment.
Since the publication of the CCR decision in the Official Gazette, the provision declared unconstitutional is suspended for 45 days after publication in the Official Gazette, during which the provision is no longer applicable. Whereas, during the 45 days, the parliament and government have not issued a regulation to amend this provision of the law, art. 6 of Law no. 241/2005 become inoperable and its legal effects are permanently ceased.