Enforcement. Jurisdiction of the syndic judge to settle the claims aiming at this enforcement

DREPTUL CONTENCIOSULUI ADMINISTRATIV ŞI FISCAL

Abstract

The opportunity given under Article 143 para. (1) the final sentence of Law no. 85/2014 – as a result of the amendment of this regulation, by the GEO no. 88/2018 – eradicates neither the purpose of the insolvency procedure, nor the definition of the collective procedure, given that, by the option of enforcement, for those debts accrued during the period of the insolvency procedure which are more than 60 days overdue, no individual procedure parallel to the insolvency procedure shall be regulated, which should be distinct and independent from it, remaining at the disposal of the creditor invoking such debts. The conclusion is implicitly sustained by the tax creditor which initiated and conducted a stand-alone enforcement, in a personal enforcement casefile and outside the jurisdiction of the syndic judge, respectively of the bankruptcy administrator. Thus, the tax creditor showed that the enforcement which it initiated aims at „the current obligations of the company under restructuring procedures”, the payment of which resulted in „the penalties provided for by the legislator under Article 143 para. (1) of Law no. 85/2014”, emphasizing that the creditors’ right to initiate the enforcement procedure is closely related to the manner in which the debtor company observes its current obligations arising after opening the insolvency procedure. Therefore, the tax creditor acknowledged that the legislator regulated the possibility of enforcement, based on certain measures imposed in the insolvency procedure, for those debts accrued during the period of this procedure, implicitly rescinding the perspective of a common law enforcement, in tax matter, based on the rules of the Tax Procedure Code, outside the framework of the procedure conducted according to Law no. 85/2014. The same arguments serve to substantiate the jurisdiction of the syndic judge to settle the claim (challenge) having as object the annulment of the enforcement proceedings carried out by the tax body in its own procedure. According to Article 45 para. (2) of Law no. 85/2014, the duties of judicial review of the activity of the bankruptcy administrator and/or of the judicial liquidator and the duties related to the judicial proceedings and claims related to the insolvency procedure shall outline the jurisdiction of the syndic judge in the insolvency proceedings. However, as resulting from the documents filed to the proceedings, the enforcement procedure was initiated in the executional casefile of the tax body for „failure to perform the current payment obligations”, „of the company under restructuring procedures”, therefore, subsequently to the opening of the insolvency procedure, and the creditor itself relied on the provisions of Article 143 para. (1) of Law no. 85/2014.