Interpretative decision № 2/2017 of 12.04.2017 of the Supreme Administrative Court of the Republic of Bulgaria
The General Assembly of judges of the First and Second College of the Supreme Administrative Court has adopted an interpretative decision regarding controversial case law on the matter: Which limitation period applies in the execution of the administrative sanction “fine” after an interruption of the limitation period by virtue of Art. 82, Para. 2 of the Law on Administrative Violations and Sanctions (LAVS) - the limitation period under Art. 171 of the Tax-Insurance Procedure Code (TIPC) or the limitation period under Art. 82, Para. 1, Letter “a” of the LAVS?
The provision of Art. 82, Para. 1, Letter “a” of the LAVS provides that an administrative sanction shall not be executed if two years have elapsed, where the imposed sanction is a fine. Paragraph two of the same text states that the limitation period begins to run from the date of entry into force of the act whereby a penalty has been imposed and shall be interrupted by each act of duly authorised authorities taken against a penalised individual in respect of the execution of its penalty. After completion of each act whereby the limitation period has been interrupted, a new prescription term shall commence. According to Art. 82, Para. 3 of the LAVS regardless of the suspension or interruption of the prescription term, an administrative sanction shall not be executed if the term expired exceeds by a half the term under Para. 1. The text of Art. 82 is supplemented with the provision of Para. 4 which excludes the application of the preceding paragraph regarding the fine when for its collection in the period under Para. 1 an enforcement procedure is initiated. This shall also apply to pending cases, the prescription term in respect of which has not expired by the entry of this paragraph into force.
According to Art. 171, Para. 1 of the TIPC the public takings shall be redeemed with the expiration of 5 years prescription term, regarding 1 January of the year, which follows the year, during which the public obligation should been paid, unless by a law has been provided for a shorter term. Paragraph two provides an absolute prescription term of 10 years regarding 1 January of the year which follows the year during which the public obligation should been paid, all the public takings shall be redeemed regardless of the suspension or the interruption of the prescription, except for the cases when the obligation has been postponed or rescheduled, or the execution has been halted at the request of the debtor.
The General Assembly supports the opinion that after an interruption of the prescription term for execution under the LAVS a new two-year prescription term shall commence. The fact that the fine is a public taking does not mean that the prescription term for it should be the same as for the rest of the public takings. The prescription, including this one concerning the execution of the punishment is a substantive legal issue. Art. 79 of the LAVS refers to the TIPC only regarding the procedural rules for collection of state receivables. Therefore the provision of Art. 79 of the LAVS may not state an argument in support of the application of Art. 171, Para. 1 of the TIPC.
The provision of Art. 82, Para. 4 of the LAVS excludes the application only of Art. 82, Para 3 of the LAVS. It does not exclude the application of Art. 82, Para. 2 of the LAVS.
The term of Art. 171, Para 1 of the TIPC should not be applied to the fine and because it generally begins to run from the first of January of the year following the year during which the public obligation should been paid. The determination of so long prescription terms for the fine is not justified. The obligation for payment of a fine does not arise under the law and as a result of conducted administrative penal proceedings and after entry into force of a penal provision. Prescription terms for implementation of a fine run from the entry into force of the penal provision.
The Supreme Administrative Court has decided that after an interruption of the limitation period by virtue of Art. 82, Para. 2 of the LAVS in the execution of the administrative sanction “fine” shall apply the limitation period under Art. 82, Para. 1, Letter “a” of the LAVS which is a two-year period.
