The liability of paying certain fees by the foreign legal persons with office in Romania who work in journalism. The exception of unconstitutionality is rejected

In Official Gazette of Romania no. 794 of 31st October 2014 , the Decision of the Constitutional Court no. 486 of 25th September 2014 regarding the exception of unconstitutionality of the provisions of article 40 paragraph (3) of the Law no. 41/1994 on organizing and functioning of the Romanian Broadcasting Corporation and the Romanian Television Broadcasting was published.

The exception of unconstitutionality was removed by the “Detect Serv” company from Cluj-Napoca in a file which is under the responsibility of the Court of Cluj-Napoca.

The subject of the unconstitutionality exception, as it was noted in the device of notification ruling, consists of the provisions of article 40 of the Law no. 41/1994 on organizing and functioning of the Romanian Broadcasting Corporation and the Romanian Television Broadcasting, republished in the Official Gazette of Romania, with further amendments and additions. From the analysis of the formulated criticism, the Court ascertains that in reality, the subject of the unconstitutionality exception consists only of the provisions of the paragraph  (3) of the article 40 of the Law no. 41/1994, according to which “The legal persons with office in Romania, including the branches, subsidiaries, agencies and their representations, as well as the representations from Romania of the foreign legal persons, have the liability to pay a fee for the broadcasting public service and a fee for the television broadcasting public service, as beneficiaries of these services.”

In supporting the unconstitutionality of the criticized legal regulation, the infringement of the constitutional provisions of article 56 paragraph (2) are invoked, according to which “The legal system of taxation must ensure the correct carrying out of the fiscal tasks” and of those of article 136 paragraph (5) which provide that “The private property is intangible, under the conditions of the organic law.”

Analyzing the unconstitutionality exception, the Court ascertains that the provisions of article 40 paragraph (3) of the Law no. 41/1994 were already subject to the control of constitutionality. Thus, through the Decision no. 297 of 6th July 2004 or the Decision no. 331 of 18th April 2006, the Court has decided that “indeed, the article 40 of the Law no. 41/1994 republished, with further amendments and additions, establishes that the incomes of the Romanian Broadcasting Corporation and of the Romanian Television Broadcasting also come from fees for the broadcasting public service, respectively for the televisions broadcasting public service, but as provided even in the paragraph (3) of this article, (…) the taxes are owed by the subjects mentioned ipso jure, as beneficiaries of this services.

:: The source: JURIDICE.ro

Denis BORTIS

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