Published on 21 March 2022

FOURTH SECTION

Application no. 15553/15 S.C. ZORINA INTERNATIONAL S.R.L. against Romania lodged on 23 March 2015 communicated on 20 November 2019 and 1 March 2022

STATEMENT OF FACTS

1. The applicant company is a Romanian limited company whose registered office is in Constanţa. It was represented before the Court by Mr Cǎlin Dumitru, who was granted leave to represent the applicant company in accordance with Rule 36 of the Rules of Court.

2. The Government were represented by their Agent, most recently Ms O. Ezer, of the Ministry of Foreign Affairs.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 26 March 2013 the Constanţa Finance Inspectorate ( Garda Financiară ) conducted an inspection at the store where the applicant company carried out its commercial activities. Following the inspection, t he tax authority drew up a report indicating that the applicant company had failed to issue receipts for an amount of RON 179 (approximately 40 euros – EUR), and that no explanation for that failure had been provided by the company’s representative, Mr Cǎlin Dumitru, who was present during the inspection.

5 . Pursuant to Article 10 (b), Article 11 § 1 (b) and Article 11 § 3 of Government Emergency Ordinance no. 28/1999 (“GEO no. 28/1999” – see paragraphs 12 - 13 below), the applicant company was fined RON 8,000 (approximately EUR 1,900) and the sum of RON 179 was confiscated; moreover, the tax authority ordered that the applicant company’s activities be suspended for a period of three months, on the basis of the provisions of Article 14 § 2 of GEO no. 28/1999 (see paragraph 16 below).

6 . The applicant company challenged the tax authority’s report before the Constanţa First-Instance Court. Firstly, it argued that the amount of RON 179 did not represent the value of goods that had been sold, but had been money kept in the cash register so as to enable it to have sufficient change available for customers. This was confirmed by the paper report of the cash register, although it was blurred with red ink, as the till roll had run out of paper at the relevant point. Secondly, the applicant company submitted that the sanctions applied had been disproportionately harsh in relation to the amount found to be unjustified, and that those sanctions had seriously endangered its commercial activities, which were based mainly on the sale of perishable goods (food and the like).

7. On 7 October 2013 the court dismissed the applicant company’s action. It found that its allegations concerning the reason why the sum of RON 179 had been found in the cash register could not be proved, in so far as the report of the tax authority had been signed as such by the company’s representative, who at that time had been unable to provide any explanation for the money in question (see paragraph 4 above); moreover, the paper report of the cash register had red marks printed on it, making it illegible.

8 . The court further considered that the sanctions imposed in the tax report were fair and proportionate, having regard to the fact that the fine imposed represented the minimum amount prescribed by law (see paragraph 13 below) and also to the fact that the applicant company’s conduct had been one of constant denial of having committed the offence.

9 . The applicant company appealed against the decision of 7 October 2013; it reiterated its previous arguments (see paragraph 6 above). As an alternative, it requested the court to replace the fine with a warning and, in general, to reassess the sanctions imposed, which, taken together, were disproportionately harsh. In that vein, the applicant company submitted relevant examples of domestic case-law in which other courts had replaced the sanctions applied in similar circumstances with more lenient measures.

10 . On 24 September 2014 the Constanţa County Court dismissed the appeal and upheld the lower court’s judgment. The court held that the role of the impugned sanctions was preventive and educational in nature, and not one of reparation. The legislature had opted to penalise acts such as that committed by the applicant company by imposing high fines precisely because official statistics revealed a noticeable upsurge in tax offences. It followed that what was at stake was not the amount of money found in the applicant company’s cash register that was not accounted for by receipts, but the social value protected by the applicable legal provisions.

11 . The fact that there had been other national courts which in similar situations had reconsidered the overall sanctions imposed on companies and alleviated them could not constitute an argument supporting the requests of the applicant company, in view of the particularities of its situation, which did not justify any such alleviation.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

12 . GEO no. 28/1999 regulates the obligation on traders to use cash registers and the implementation framework for that obligation.

13 . Article 10 (b), as in force at the relevant time, provided, inter alia , that failure to issue receipts for all goods sold and services provided constituted a tax offence, for which a fine would be imposed. The corresponding amount of the fine ranged from a minimum of RON 8,000 up to RON 10,000, as set out in Article 11 § 1 (b). Article 11 § 3 stated that the amount of money for which no receipts had been issued was subject to confiscation.

14. Article 12 § 3 provided that the provisions of GEO no. 28/1999 were complemented by the provisions of the general law relating to administrative offences, namely Government Ordinance no. 2/2001 (“GO no. 2/2001” – see paragraph 18 below).

15. As of 30 December 2014, the version of Article 12 adopted on that date provided in paragraph 5 that by way of derogation from the provisions of Article 7 § 3 of GO no. 2/2001 (see paragraph 18 below), the sanction of a warning could not be applied for, inter alia , offences committed in breach of Article 10 (b).

16 . Article 14 § 2 stated that the tax offence described under Article 10 (b) also triggered the suspension of the company’s activities for a period of three months. Article 14 § 2 was repealed on 30 December 2014, but the sanction remained in place under Article 11, with the new provisions stating that the suspension could be applied for a period of between one and three months, depending on the severity of the offence.

17 . Those provisions were amended on 8 May 2015 to the effect that failure to issue receipts was punishable by means of a warning if the sum that was unaccounted for amounted to less than RON 300. Moreover, any suspension of the offender’s activities was for a period of thirty days and would only be applied the second time that the tax offence had been committed. The amended provisions set out that for any other offences, the courts could not replace the fine with a warning.

18 . Under Articles 32 and 33 of GO no. 2/2001, which constituted the general law governing administrative offences, the domestic courts were entitled to assess the lawfulness, as well as the necessity and the proportionality, of the sanctions applied. Article 5 § 5 and Article 21 § 3 provided that the sanction applied had to be proportionate to the degree of social danger of the offence, due account of the specific circumstances of each case being taken. Article 7 provided for the sanction of a warning, which could be applied if the offence committed was minor, and paragraph 3 of that Article specified that this could also be done when the lex specialis did not explicitly make mention of that particular sanction.

19 . Under the provisions of GO no. 2/2001, the courts could replace the sanctions applied with more lenient penalties, unless the lex specialis excluded that possibility.

COMPLAINT

The applicant company complained that the sanctions imposed on it for having failed to issue receipts were disproportionate and thus did not strike a fair balance between the public interest and its property rights, as provided in Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

2. If so, was that interference necessary to control the use of property in accordance with the general interest (see, mutatis mutandis, Grifhorst v. France , no. 28336/02, 26 February 2009; Patrikova v. Bulgaria , no. 71835/01, 4 March 2010; Andonoski v. the former Yugoslav Republic of Macedonia , no. 16225/08, 17 September 2015;) or to secure the payment of penalties within the meaning of the second paragraph of Article 1 of Protocol No. 1?

3. Having regard to the applicable domestic law, in particular Articles 10 ‑ 14 of the GEO 28/1999, as well as the provisions of GO 2/2001, as in force at the relevant time, did the domestic courts have discretion to apply more lenient sanctions in relation to offences as the ones challenged by the applicant company in the present case, by for instance going below the minimum threshold (RON 8,000) prescribed by the law for the fines and/or by varying or annulling one or all of the sanction(s) applied? In that connection, could the offence committed by the applicant company be considered as a “minor offence”, within the meaning of Article 7 of the GO No. 2/2001?

4. The parties are invited to submit relevant information and domestic practice concerning the courts’ approach in proceedings similar to those complained of in the present case, namely, where the sanctions applied pursuant to Article 10 (b), Article 11 § 1 (b), Article 11 § 3 and Article 14 § 2 were re-considered by the courts and more lenient sanctions were applied or, on the contrary, denied to the respective claimants.