In brief
- Fines and confiscations applied on the basis of Law no. 12/1990, a law repealed back in 2020, remain valid: the Constitutional Court dismissed the challenge brought against the two provisions on which they rested.
- Confiscating the money obtained from a commercial activity carried out without meeting the legal conditions does not breach the right to property, because it is the direct consequence of breaking the law.
- For professionals, the requirement that the law be clear is less demanding: they are expected to assess for themselves the risks of the activity they carry out.
Published: Official Gazette of Romania (Monitorul Oficial) no. 569 of 10 July 2026
Pronounced: 20 November 2025
A company in Constanța that was fined and left without its takings through a confiscation asked the Constitutional Court to strike down the basis of the sanction, and the Court refused, even though the law on which the sanction rested has not existed since 2020. Decision no. 614 of 20 November 2025, published in Official Gazette of Romania no. 569 of 10 July 2026, finds that Article 1(a) and Article 3 of Law no. 12/1990 are constitutional. This is the second time this summer that the Court has ruled on a complementary sanction applied to a trader, after the one in which it confirmed that the ANPC can require a trader to hand the money back within 15 days.
The two provisions worked together. Article 1(a) declared it an administrative offence to carry out production, trade or service activities without meeting the conditions laid down by law, if the act was not a criminal offence. Article 3 provided that the goods which served or were intended to serve in committing the act, if they belong to the offender, together with the sums of money and the goods acquired by committing the administrative offence, are confiscated.
The plea was raised by Societatea Panoralis Beach S.R.L. din Constanța, in a complaint against a sanction report by which it had received both a fine, under Article 1(a), and the confiscation of its revenue, under Article 3. The Constanța District Court, Civil Division, referred the matter to the Court by Interlocutory Order no. 3,398 of 10 March 2021.
What it changes in practice
The first effect is that a repealed law remains under review. The Court notes, in paragraph 12, that Law no. 12/1990, republished in Official Gazette of Romania no. 121 of 18 February 2014, was repealed by Article I of Law no. 222/2020, published in Official Gazette of Romania no. 1018 of 2 November 2020. Even so, under Decision no. 766 of 15 June 2011, provisions whose legal effects continue to be produced after they cease to be in force are also subject to constitutional review. They produce effects in proceedings started before the repeal and not yet decided.
The second effect concerns sanctions already applied. Since the provisions are constitutional, sanction reports drawn up on their basis before 2 November 2020 cannot be annulled on that ground. The fine and the confiscation remain open to challenge only on grounds of fact and procedure.
The third effect concerns the standard of clarity required of a law. The Court restates the case law of the European Court of Human Rights in Cantoni v. France, paragraph 35, Dragotoniu and Militaru-Pidhorni v. Romania, paragraph 35, and Sud Fondi srl and Others v. Italy, paragraph 109, according to which foreseeability depends on those to whom the rule is addressed. In the case of professionals, who must show great caution in the exercise of their profession, particular care in assessing risks is expected. In other words, wording that would be too vague for a private individual may be clear enough for a trader.
The fourth effect concerns the technique of bringing a challenge. In paragraph 19, the Court states that merely citing Article 16(1) of the Constitution is not enough to identify a complaint. It thus restates Decision no. 785 of 16 June 2011: listing constitutional or convention provisions is not, in itself, a genuine plea of unconstitutionality.
What has changed compared with the previous situation
In law, nothing. The decision joins a long line of dismissals on the same provisions: Decision no. 129 of 9 March 2017, Decision no. 242 of 19 April 2018, Decision no. 273 of 4 June 2020, Decision no. 184 of 16 March 2021, Decision no. 641 of 13 December 2022 and Decision no. 355 of 11 July 2024.
What has been clarified is the relationship between confiscation and the presumption that assets were lawfully acquired. The Court restates the reasoning in Decision no. 641/2022, paragraphs 20 and 21, and shows that the provision does not establish a presumption of unlawful acquisition, but requires the unlawful character to be proved. The ban on confiscating lawfully acquired assets, in Article 44(8) of the Constitution, does not rule out the confiscation of goods intended for, used in or resulting from administrative offences, which is allowed by paragraph (9) of the same article. By the very act of committing the administrative offence, the perpetrator steps outside the sphere of what is lawful.
The meaning of the reference to the conditions laid down by law has also been clarified. Restating Decision no. 184/2021, paragraphs 14 and 15, the Court holds that Article 1(a) has in view the normative acts that govern the carrying out of commercial acts and dealings, compliance with which is an obligation that pre-exists this regulation. The provision does not create new obligations, it penalises the failure to observe those that already exist.
What has not changed is the fate of the law itself. It remains repealed as of 2 November 2020, and the subject matter was moved by the same act, Law no. 222/2020, into Government Ordinance no. 21/1992 on consumer protection.
Advantages and disadvantages
What it improves
- It closes, unanimously, a series of challenges to provisions that still produce effects in proceedings started before the repeal.
- It explains clearly why confiscating the takings does not contradict the presumption that assets were lawfully acquired.
- It states that, for professionals, the foreseeability required of a law is measured differently than for the general public.
- It recalls a useful rule for anyone raising a plea: citing an article of the Constitution does not take the place of an argument.
What remains a problem
- The proportionality complaint, set out in paragraph 6 by reference to Government Ordinance no. 2/2001 and to Decision no. 197/2019, receives no separate answer in the examination part.
- Article 3 used the wording “are confiscated”, with no margin of appreciation, so the extent of the sanction depended on the takings, not on the seriousness of the act.
- The penalising provision referred to any conditions laid down by law, so the content of the administrative offence was read from other normative acts, not from the provision itself.
- 1,948 days passed between the referral to the Court and the publication of the decision, in a case that started from a sanction report issued in 2020.
Practical advice
- If you have proceedings started from a sanction report drawn up under Law no. 12/1990 before 2 November 2020, the repeal of the law does not help you. The provisions continue to produce effects in your case.
- When you raise a plea of unconstitutionality, explain how the legal provision conflicts with the constitutional one. The Court dismissed the complaint under Article 16 precisely because that explanation was missing.
- If you are a professional, do not rely on the argument that the law lacks clarity. The standard applied to traders is stricter, and the Court applies it expressly.
- Check whether the confiscation in the sanction report covers sums acquired through the act found against you. Article 3 referred to the goods that served or were intended for the act and to the sums acquired through it.
- For acts committed after 2 November 2020, the basis is no longer Law no. 12/1990. The subject matter moved into Government Ordinance no. 21/1992 on consumer protection, through Law no. 222/2020.
Frequently asked questions
How can the Court review a repealed law?
What did Article 1(a) of Law no. 12/1990 penalise?
What was confiscated under Article 3?
Does confiscating the takings not breach the right to property?
Why was the complaint about equality before the law dismissed?
Which law applies now in place of Law no. 12/1990?
Was the decision taken unanimously?
Editorial analysis
The decision contains one useful thing that few people look for in a dismissal: it says what the foreseeability of a law means for someone who trades. Restating the case law from Strasbourg, the Court holds that the principle of foreseeability does not prevent the person addressed by the rule from being led to seek clarifying guidance, and that in the case of professionals particular care in assessing risks is expected. The practical consequence goes beyond this case: the same wording may be too vague for a private individual and clear enough for a business operator. Anyone arguing that a commercial rule lacks clarity starts out against a harder standard.
The second observation concerns a complaint left without an answer of its own. In paragraph 6, the author of the plea argued that Article 3 does not observe the principle of proportionality, invoking Government Ordinance no. 2/2001, the reasoning in Decision no. 197 of 9 April 2019 and the practice of the courts in tailoring sanctions for administrative offences. In the examination part, paragraph 17 answers on the ground of the right to property, through Article 44(8) and (9) of the Constitution, and does not return to proportionality as such. The referring court had pointed out, in paragraph 7, that the issue had already been settled by Decision no. 486 of 25 June 2020, but the present decision cites that ruling for the property argument, not for the one about calibrating the sanction.
The question is all the more visible because the provision raises it by itself. Article 3 used the wording “are confiscated”, in the present indicative, with no threshold, no ceiling and no margin of appreciation. In a case such as the one in the file, where the complementary sanction targeted the revenue, its size does not depend on the seriousness of the breach, but on the turnover in the period checked. Two companies that break the same legal condition, one with a busy location and one without, lose amounts that bear no relation to each other.
Finally, the chronology shows why the discussion has stayed current for so long. The contested sanction report comes from a file registered in 2020, and the law was repealed on 2 November 2020. The Constanța District Court referred the matter to the Court by the interlocutory order of 10 March 2021, the decision was pronounced on 20 November 2025 and published on 10 July 2026, 232 days after it was pronounced. From the referral to the publication, 1,948 days passed. A law that has been out of force for almost six years has therefore received confirmation of its constitutionality only now, for proceedings that are still being heard.
What should be changed
- The proportionality complaint should have received a separate answer. It had been set out with concrete references, and the answer given on the ground of the right to property covers a different question from the one asked.
- A confiscation without a threshold should come with criteria for tailoring it. The repealed provision can no longer be corrected, but the same legislative solution appears in other penalising rules, where the problem remains open.
- Cases based on repealed provisions should be decided as a priority. As long as a rule that is out of force still produces effects only in pending cases, every year of waiting adds uncertainty without adding case law.
Original text of the legal act
The text below is reproduced in Romanian, the official form of publication.
The full text, as published in the Official Gazette of Romania
Official Gazette of Romania no. 569 of 10 July 2026 16 pages PDF, 1.4 MB the act starts on page 2
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This article is for informational purposes only and does not constitute legal advice. For specific situations, consult a licensed attorney or tax advisor.