The exception of unconstitutionality of Article 162 of the Tax Procedure Code – on the role of the Constitutional Court of Romania

The exception of unconstitutionality of Article 162 of the Tax Procedure Code – on the role of the Constitutional Court of Romania

The National Supervisory Authority for Personal Data Processing raised the exception of unconstitutionality of the provisions of Article 162 of the Tax Procedure Code, which establish the publication on the Internet of the lists of debtors that register tax obligations, by the tax authorities, taking into consideration Article 26 of the Constitution (right to privacy), Article 20, Article 53 and Article 148 of the Constitution, corroborated with Article 8 of the European Convention on Human Rights (right to privacy), Article 16 of the Treaty on functioning the European Union (right to protection of personal data), Articles 1, 7, 8 of the Charter of fundamental rights of the European Union (human dignity, respect for privacy and protection of personal data).

Thus, Article 162 of the Fiscal Procedure Code provides:

„The publication of the lists of debtors that register tax obligations

(1) The tax authorities have the obligation to publish on the their own web page the list of the debtors, natural and legal persons, that register tax obligations, as well as the amount of such obligations.

(2) The list shall be published on a quarterly basis, until the last day of the first month of the following quarter and shall include the outstanding tax obligations at the end of the quarter and which are unpaid at the date of publication of the list and whose limits are determined as follows:

a) for the tax claims administrated by the central tax authority, by order of A.N.A.F president;

b) for the tax claims administrated by local tax authority, by decision of the local council.

(3) Before publishing, the outstanding tax obligations shall be notified to the debtors. The tax liabilities of the secondary headquarters which are paying wages and similar incomes shall be notified to the person from the structure where they function.

(4) Within 15 day after the payment of all the tax liabilities owed, the competent tax authority shall operate the changes for every debtor who has paid these obligations.

(5) The provision of this article shall also apply to the tax obligations laid down by the tax debt securities against which the taxpayer has exercised the remedies provided by law, until the resolution of the appeal, in which case the tax body shall make entries regarding this situation. Whenever a taxpayer gets the suspension of the administrative tax act under the conditions of Law no. 554/2004, as amended and supplemented, the provisions of the paragraph (4) are applicable.“

The exception of unconstitutionality of the provisions of Article 162 of the Tax Procedure Code was raised by our institution in the dispute in front of Bucharest Tribunal, triggered by the National Agency for Tax Administration, whereby it disputed the report of sanctioning of 23rd of May 2016 of ANSPDCP, through which our authority imposed a fine of 16000 lei for illegal processing of personal data in connection with the publication of the list of debtors with tax liabilities on the Internet.

ANSPDCP considered that the provisions of Article 162 of the Tax Procedure Code (by establishing the obligation for the tax authorities to publish, on its website page, the list of the debtors – natural persons – which register unpaid tax obligations, as well as the amount of such obligations) are likely to affect the right to privacy, by restricting in an unjustified and disproportionate manner this right.

According to Article 26 of the Romanian Constitution, the public authorities have the enhanced obligation to ensure the right to privacy, stating that “(1) The public authorities shall respect and protect the intimate, family and private life.”

In line with this provision, the restriction of the exercise of certain rights or freedoms may occur only in strict compliance with the conditions laid down in Article 53 of the Constitution.

Under the conditions in which the State has the necessary procedural means for recovery the amount owed by the taxpayers, ANSPDCP considered that the measure of publishing the lists of the debtors on the Internet is not proportional with the situation that caused it.

In the matter of personal rights, such as the right to privacy, to its own image, to dignity and to protection of personal data, the rule unanimously recognized is to guarantee and respect these rights, the State having, thus, obligations in majority negative, of abstention through which to avoid, as much as possible, the interference on the right or freedom.

On the 16th of December 2016, the Bucharest Tribunal admitted the request of ANSPDCP to notify the Constitutional Court of Romania and established to notify it about the exception of unconstitutionality of Article 162 of the Tax Procedure Code, as it was formulated by our institution.

Legal and Communication Department

20.12.2016 ANSPDCP