By Interpretative Decision No 2 of 12.04.2017 the General Assembly of the First and Second Colleges of the Supreme Administrative Court (SAC), a definite answer to the question “Which prescription period is applicable to the execution of the administrative penalty “fine” after interruption of the periods of prescription in the hypothesis of art.82, para.2 of the Administrative Violations and Sanctions Act (AVSA) – the one regulated by art.171 of the Tax Insurance Procedure Code (TIPC) or the one regulated by art.82, para.1, letter “a” of AVSA” was given. According to the supreme judges the applicable regulation is the one in AVSA – the period of prescription is 2 years.
The need for an interpretative case was engendered by the controversial practice of the administrative courts up to the current moment. According to a part of the judicial panels, the applicable regulation is art.82 of AVSA, as а special rule towards art.171, para.1 of TIPC, i.e. the 2-years long period of prescription. Other panels were resolving cases applying the 5-years long period of prescription with the argument that after the initiation of the enforcement proceedings, the order for collection of the fines is the one according to TIPC and the institute of prescription in TIPC is special towards the one in AVSA, i.e. it should apply.
In fact, the basis on which the two opposing views are formed is the dual nature of the fine. On the one hand, it constitutes an administrative penalty stipulated in art.13, l. “b” of AVSA. According to the cited Act, the administrative penalty “fine” is not executable if two years have elapsed since the enforcement of the penalty. The period of prescription is interrupted by any act of the competent authorities taken against penalties for the execution of the punishment, and after the termination of the action, a new period of prescription shall start. Furthermore, according to art.162, para.2 of TIPC the claims under penalty decrees in force (fines) represent public state claims which according to art.171, para.1 of the same law shall be extinguished with the expiration of a 5-year period of prescription as from 1 January of the year following the year when the debt should have been paid. It turns out that the fine, besides an administrative penalty is also a public claim, such as the taxes, social security contributions and customs duties. It is precisely this fact that is the reason for the contradictory and controversial practice /case law/ of different administrative panels.
The Interpretative Decision of the supreme judges supporting the shorter executorial prescription of the fine, unlike other public state and municipal claims, is motivated by the fact that the fine is an administrative penalty resulting of administrative-penal repression. While the grounds and the amount of the public claim are generally determined in the administrative proceedings, the grounds and the amount of the fine are determined in the administrative-penal proceedings in which are applicable not only the basic principles of administrative procedure, but also the principles of penal law. Exactly the specific nature of the fine as a type of administrative penalty is the factor underlying the relatively shorter periods of prescription for the realization of the administrative and penal liability and for the enforcement of the administrative punishment. An essential argument in forming the interpretative decision is that a prolongation of the period of prescription by interpretative proceedings (from two to five years) would be a prerequisite for the occurrence of administrative arbitrariness. Such prolongation contradicts the objectives of the administrative penalty, cited in art.12 of AVSA. According to that disposition the administrative penalties are imposed in order to warn and re-educate the offender to comply with the established legislative order and to have an educational and warning effect on other citizens. If this effect is not achieved in a relatively short period of time for minor offenses punishable by a fine, the achievement of the objectives set in the law becomes more difficult or impossible, which in turn renders the administrative-penal repression meaningless.
Last but not least, as far as the fine is a result of an administrative-penal repression, it is not justified to affect the legal sphere of the administrative offender for too long. Therefore, when considering the legal nature of the fine, its nature as an administrative penalty should prevail upon its nature of a public claim.
author: Vesela Velinova, attorney-at-law
Member of “Velinov and partners” Consulting House