Case Relevance
In practice, situations arise where, for various reasons, a person other than the actual offender is sanctioned. In such cases, it is crucial for the unjustly sanctioned person to file a contravention complaint requesting the annulment of the contravention report, the removal of the main sanction, and, where applicable, the complementary sanction.
Otherwise, the individual listed as the offender in the report may be required to pay the fine as the main sanction. In addition to the fine, other measures may also be imposed, such as the confiscation of goods, cessation and demolition of works, or suspension of economic activities.
Of course, the court will assess all the conditions regarding the validity and legality of the contravention report, including the statute of limitations if it is invoked. In contravention matters, prescription may apply to both contravention liability and the enforcement of contravention sanctions.
Statute of Limitations in Contravention Matters
According to Article 13 of Government Ordinance no. 2/2001, the application of a contravention fine is subject to a statute of limitations of six months from the date of the offense. In the case of continuing contraventions, this period begins from the date the offense ceases. A contravention is considered continuous when the violation of a legal obligation extends over time.
Regarding construction violations, Article 31 of Law no. 50/1991 states that the right to ascertain contraventions and impose fines under Article 26 of the law is subject to a statute of limitations of three years from the date of the offense. Concerning the calculation of this period, the High Court has ruled that the limitation period for liability in contraventions under Article 26(1)(a) of Law no. 50/1991, which involves constructing a building without a permit, begins from the actual completion date of the unauthorized construction. In other words, the three-year period runs from the moment the construction is proven to be completed.
Finally, under Article 14 of Government Ordinance no. 2/2001, the enforcement of contravention sanctions is prescribed if the contravention report is not communicated to the offender within two months from the date the sanction was applied.
Summary of Facts in the Case Givem
In September 2022, a contravention report was issued, noting that during an inspection conducted in August 2022, it was found that construction work was carried out without a building permit, specifically the placement of an annex container on the inspected site. For this violation, the petitioner was sanctioned with the demolition of the existing construction, a measure that was to be executed by October 2022.
PROCEEDINGS IN THE FIRST INSTANCE – CLUJ-NAPOCA COURT
Through the contravention complaint, the petitioner, a legal entity represented by Brisc Legal Cluj-Napoca law firm specializing in contravention law, sought to annul the contravention report as illegal and unfounded and requested the respondent, UAT Florești Municipality, to cover the legal costs incurred.
The petitioner argued that the sanctioned entity lacked the status of offender, as the contravention report penalized the legal entity even though it was not the one that placed the annex container on the land. The construction litigation lawyers pointed out that the construction was carried out by an individual who, although serving as the company’s administrator, acted in a personal capacity and not on behalf of the company.
Additionally, the petitioner, represented by the legal team at Brisc Legal, invoked the prescription of the right to ascertain the contravention, stating that the annex container had been placed more than three years before the contravention was recorded, specifically in 2013. The petitioner also argued that no main sanction was applied, which is required before a complementary sanction such as demolition can be imposed, and that the report did not mention the location where it was issued.
In response, the respondent argued that the petitioner was the landowner and that contravention sanctions apply to the landowner, who is presumed to be the owner of the construction. Regarding prescription, the respondent stated that the petitioner had not proven that the annex container was placed in 2013. The respondent also pointed out that the petitioner’s administrator had applied for and obtained a Zoning Certificate for the construction legalization in 2021.
The Cluj-Napoca Court ruled in favor of the petitioner, adopting the arguments presented by the Brisc Legal team. The court annulled the contravention report, removed the demolition measure, and ordered the respondent to cover legal expenses.
The court determined that the construction was erected by an individual who, although serving as the administrator of the petitioner company, did not construct it in the company’s name but in a personal capacity. Therefore, the company was not the liable contravention offender.
Regarding prescription, the court found that the contravention report itself confirmed that the annex container was placed more than three years before the report was issued, making the right to ascertain the contravention time-barred. The Zoning Certificate was deemed irrelevant as it did not prove the actual completion date of the construction.
A key aspect of the case was proving these main illegality issues: identifying the actual builder and determining the construction date. Satellite images of the site from different time periods showed that the construction existed more than three years prior. Additionally, an older notarized declaration confirmed that the individual had built the structure.
Finally, the court held that imposing only a complementary sanction (demolition) without also applying a main sanction rendered the contravention report unlawful, as it failed to comply with Law no. 50/1991.
APPEAL PROCEEDINGS – CLUJ TRIBUNAL
Through its appeal, UAT Florești Municipality argued that the petitioner company committed the contravention, not its administrator, because the company’s registered office was at the location where the violation was recorded and business activities were conducted there.
Regarding prescription, the appellant argued that the petitioner’s own notarized declaration confirmed that a family house, not an annex container, was built on the land in 2013.
The petitioner, through Brisc Legal attorneys, requested the dismissal of the appeal as unfounded, emphasizing that the sanctioned legal entity and the individual who placed the annex container were not the same. The petitioner demonstrated that the land belonged to the individual, not the company, and that the company used the land based on a lease agreement.
Regarding prescription, the petitioner maintained that the appellant misinterpreted Law 50/1991, which states that contraventions must be sanctioned within three years from the offense. While the appellant argued that the limitation period began when the Zoning Certificate for legalization was issued, the petitioner countered that the certificate was irrelevant because the request for legalization did not determine the date the construction was placed on the land.
CLUJ TRIBUNAL DECISION
The Cluj Tribunal ruled in favor of the petitioner, adopting the arguments presented by our Cluj lawyer specializing in contravention complaints. The court reaffirmed that the contravention liability is personal and that the petitioner company could not be held liable for a construction erected by an individual. Therefore, the petitioner could not be sanctioned.
Regarding prescription, the appellate court concluded that the statute of limitations began from the actual completion date of the construction, contradicting the municipality’s claim that the Zoning Certificate determined this date.
Thus, the contravention report was definitively annulled, and the demolition measure was removed.