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BONDOC & ASOCIATII Obtain an Important Confirmation in Administrative Litigation Area: Nullification of Documents Issued Based on Provisions of Government Ordinances Declared Unconstitutional in Other Cases

The Administrative and Tax Litigation Division of the High Court of Justice ordered the nullification of some administrative documents, namely claw-back payment notifications, issued in 2012, prior to the Constitutional Court’s Decision no. 39/2013, whereby the provisions of Government  Emergency Ordinance no. 77/2011, which provided for the inclusion of VAT in the basis for calculating the claw-back contribution, were declared unconstitutional.

Lawyers of BONDOC ȘI ASOCIAȚII represented a major multinational drug manufacturing company in a case involving the nullification of claw-back payment notifications issued by the National Health Security Fund for the time period between the 1st and the 3rd quarter of 2012, which included in the basis for the calculation of this fiscal liability also the value added tax related to the drug consumption considered in calculating the claw-back tax. The particularity of this case consisted of the fact that the nullification of notifications was requested under Article 9 para. 4 of Law no. 554/2004 on Administrative Litigation, which allows for a possibility to file a specific action for annulment against administrative documents issued under provisions of government ordinances declared unconstitutional in other cases, provided that such action is filed within one year after the publication of the relevant Constitutional Court’s decision.

In this dispute, the application was filed following the publication of the Constitutional Court’s decision.

Even though the legal provisions that left room for such a specific action for annulment have been adopted for a long time, until recently, there has been no relevant jurisprudence related to the use of such mechanism to censor administrative documents. The settlement of this case implied a thorough analysis of the constitutional basis
underlying the provisions of Article 9 para. 4 of the Law on Administrative Litigation, and of the relation between the
constitutional and legal principles, in particular the effects of decisions of the Constitutional Court and the principle of supremacy of the Constitution, and the right of persons prejudiced by illegal administrative documents to address the court for their censoring.

The team of defense attorneys consisted of Dinu Nicolae Viorel (Partner) and Ioana Katona (Managing Associate).

Mr. Dinu Nicolae Viorel, Partner and coordinator of BONDOC ȘI ASOCIAȚII’s litigation practice, stated that, “This decision represents an important step recognizing a really progressive legal mechanism in the area of administrative litigation, the practical testing of which was very limited on the agenda of courts until now.”

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