Incertitudinea și contenciosul administrativ. Analiza unei prevederi legale „bumerang”: despre încetarea efectelor suspendării actelor administrativ-fiscale în lumina prevederilor art. 278 alin. (5) C.pr.fisc.

Abstract

Stay action of administrative-fiscal acts, in essence, a ‛derivative’ of the ordinary stay action (regulated in the matter of administrative litigation by art. 14 and 15 of the Romanian Law no. 554/2004), may raise issues in judicial practice, unsuspected at the first reading of the Romanian Fiscal Procedure Code. For example, art. 278 para. (5), that regulates the legal cessation (sudden, automatic) of this special type of suspension, and which was intended to be beneficial to the individual, can often have the opposite effect to that pursued by the legislator, if this text of the law is interpreted literally. Nevertheless, the historical evolution of the institution, corroborated with the principles that govern it, requires an interpretation of the norm in its spirit (in consensus with the purpose for which it was adopted). This interpretation leads to a surprising conclusion: even if art. 278 para. (5) establishes the time of communication of the decision to resolve the administrative appeal as the only time frame from which the 60-day period begins to run, which conditions the effects of the suspension, in fact, as it could not run before the effective disposition of the measure, the first moment of the term must be established differently, as the settlement of the administrative appeal is prior or, on the contrary, subsequent to the pronouncement of the suspension by the court. And this is because the new regulation of the legal termination of the suspension measure should have, compared to the ordinary administrative law regulation, only dilatory effects, not peremptory effects.